Headline is more than Misleading, it is plain Wrong

https://rec-law.us/32tlT4y

State: Colorado

This is the headline about skiing in Colorado “Why Colorado’s Slopes Are More Dangerous This Year” I checked; the mountains did not get taller; the slopes did not get steeper; no one planted more trees on the slopes. How could the risk of skiing change?

The article is not about the risks of skiing. The article is about the chances of recovering if you are injured at a ski area and want to sue a ski area. The entire article is a rehash of prior Colorado case law concerning ski areas an attempt by several Plaintiff’s attorneys to make changes to the Colorado Skier Safety Act to make it easier to sue ski areas.

Honestly, a couple of the recent decisions concerning skiing in Colorado caught me off guard. However, the law is the law, and if you are injured skiing in Colorado, you will not have a chance of successfully suing the ski area for your injuries. Either accept the risk or go somewhere else to ski.

And using the media to try to get your point across in an attempt, to change the law has been around since the first person reported the news. Nothing new there.

However, the reporter writing the article, or maybe the person putting their name on the article, whomever wrote it, should at least have some journalistic integrity to be honest within the article.

More so from Westword, which for the 37 years I’ve lived in Colorado has earned a reputation for standing up and speaking the truth. Unless it has been the last ten years when Westword has been writing about ski areas. I don’t pick up the paper anymore because of that.

Why Is This Interesting?

Cause I hate it when people are misled. There is enough of a story to put an honest headline on the article. This one is just crap.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry @DenverWestword #SkiAreaLaw #SkiLaw

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

CV

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Lawsuit continues against Avalanche airbag manufacturer for failure to deploy

https://rec-law.us/3GWSMFQ

State: Colorado

The good news is the lawsuit against the San Juan Search and Rescue, the Silverton Avalanche School and the school’s guide; Zachary Lovell have been dismissed.

Never Sue Search & Rescue!

They are just volunteers trying to save your dumb A$$

In that initial lawsuit, the airbag manufacturer Backcountry Access, a subsidiary of K2 was also sued.

The lawsuit argued the school, guide and pack-maker “created substantial and unreasonable risks of serious injury and death to participants” in the safety class.

The lawsuit is attempting to tie the failure of the airbag to deploy to a recall of the product.

The U.S. Consumer Products Safety Commission reported the recall of 8,200 Float 18 packs on Nov. 26, 2013, with a warning that the trigger assembly can fail “resulting in the air bag not deploying, posing a risk of death and injury in the event of an avalanche.”

Why Is This Interesting?

This will be watched, for several reasons.

  1. Product liability lawsuits are nasty & don’t change anything.
  2. Avalanches kill. If you are in the backcountry in the wintertime, there is not much you can do about that, except get lucky.
  3. Backcountry skiing is growing and when a sport grows so do the lawsuits.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry @JjasonBlevins @ColoradoSun #Fatality #Lawsuit #InherentRisk #SkiAreaLaw #Avalanche @FriendsofCAIC @COAvalancheInfo

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

CV

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Why waste the time & money and the anguish to the family to have a trial knowing you won’t collect a dime? Because Lawyers of Egos

https://rec-law.us/3lR1Kwj

State: Texas

A group of lawyers sued a defunct bar and received a judgment for $301 billion dollars. The lawyers admitted they won’t get a dime.

Why would you do that? Why would you put the family through that hell?

I do not know. You could have accomplished everything by a motion.

The only thing I can guess is it makes better press?

Why Is This Interesting?

Because it is a total waste of time and worse, it puts the family through additional pain and suffering.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Lawsuit filed to stop required overtime payments for outdoor Guide Companies

https://rec-law.us/3ozw8gj

State: Federal

Three Arkansas River Rafting Company owners have sued the federal government over new hourly wage laws. On any outdoor trip, rafting, mountaineering, even mountain biking a guide works long hours. Most guides work 12 and some days a lot more hours in a day. The new regulations would require those guides to be paid time & ½ for every hour after eight hours.

For an outfitter working under a federal permit or concession agreement, as a federal sub-contractor, they must now pay a guide for those extra hours. Since employee costs are the biggest expenses for most outfitters, that this going to price a lot of trips out of 90% of their customers’ ability to pay.

Guides also get fed while on trips, so there are some deductions for those costs in some cases, but not much. Guides are also usually paid a flat fee for the day. A guide paid $100 for an 8-hour day is now going to get a pay raise to the minimum wage at 1.5 times per hour. If a state’s minimum wage is $12 per hour, the guide for each hour after eight will be getting $18 an hour. And that will usually be another 4 or more hours. On a five-day trip that could be as much as another days pay at time and a half, if not more.

Probably, instead of helping guides, it will put a lot of them out of business. The cost of a trip will be so high; the number of trips will decrease, putting guides out of work.

With fewer trips, a lot of outfitters will also struggle. Multi day trip numbers have been declining over the years. Fewer people take the time to have a 3-5-day trip away from phones.

Mistake 1: For the three outfitters starting this lawsuit, they and their fellow permittees pushed so hard to have the Arkansas River become a National Monument, thinking it would increase the value of their permits; it has not, and has come back to haunt them, as many people predicted.

Why Is This Interesting?

Honestly, other than a few rivers such as the Grand Canyon that are only taking the upper class as guests anyway, this will destroy guided trips across the board. Outfitters do not make enough money on a trip to pay wages this high.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

What do you think? Leave a comment below.

Copyright 2021 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


SAR is not a way to make money, SAR saves lives, probably this #IdiotInTheBackcountry is one of them

https://buff.ly/3lw7A66

State: Arizona

A woman being rescued after falling on a hike is going to receive $450,000 for her injuries after the rescue basket she was in started spinning while she was being hoisted into a helicopter.

The line, used to stop baskets from spinning broke. The woman spun for 40 seconds until the spinning was under control.

She allegedly suffered $290K in medical bills from the spinning.

Why Is This Interesting?

From the spinning for from the fall. Her injuries were a spinal code injury. Would you be more likely to receive an injury falling off a trail or from lying flat in a basket that was spinning?

If she needed evacuated because of her injuries from a fall hiking don’t you suspect those were the worse injuries she could receive?

#ThankGodforSAR @RecreationLaw #SAR #Search_Rescue #BoycottNH #NoChargeforRescue #NoChargeforSAR #RecLaw #RecreationLaw

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


CURRICULUM VITAE

This post was published to Recreation Law at 7:35:34 PM 12/11/2021

CURRICULUM VITAE

 

JAMES H. MOSS

CURRICULUM VITAE

720 334 8529

jim@rec-law.us

http://Recreation-Law.com/

HIGHLIGHTS. 1

PROFESSIONAL HISTORY.. 2

EDUCATION.. 4

POST COLLEGE EDUCATION AND DEVELOPMENT.. 4

TRIAL EXPERIENCE.. 4

EXPERT WITNESS. 4

EDITORIAL BOARDS. 4

PUBLICATIONS – BOOKS. 4

PUBLICATIONS –NEWSLETTERS. 5

PUBLICATIONS. 5

VIDEOS AND FILMS. 8

PUBLIC SPEAKING.. 9

TEACHING EXPERIENCE.. 15

PODCASTS. 16

VOLUNTEER ACTIVITIES. 16

LICENSES & CERTIFICATIONS: 16

MEMBERSHIPS & PROFESSIONAL AFFILIATIONS: 17

HONORS: 17

HIGHLIGHTS

November 1985 – Present:

Private practice specializing in business law and litigation:  Represented clients in business law, contracts, business formation, real estate, landlord/tenant, and estate planning. Experienced trial attorney, from traffic to complex commercial litigation. Clients range from individuals to large corporations, located throughout Colorado and the United States. Worked with start-up companies and represented several high-risk recreational businesses, providing them with advice and research to prevent litigation. Worked for and have developed legal defense programs for several insurance companies.

Specialization in outdoor recreation law: Represented a wide variety of outdoor industry trade associations, organizations and companies including manufacturers and universities. Developed a national reputation for outdoor recreation litigation, contracts and defense programs. Trial assets are ability to communicate and relate to the jury and to cross-examine witness.

Author: Outdoor Recreation, Insurance, Risk Management, and Law, Sagamore Publishing, Inc. 2018

PROFESSIONAL HISTORY

November 1985 – Present:

Private practice specializing in business law and litigation:  Represented clients in business law, contracts, business formation, real estate, landlord/tenant, and estate planning. Experienced trial attorney, from traffic to complex commercial litigation. Clients range from individuals to large corporations, located throughout Colorado and the United States. Worked with start-up companies and represented several high-risk recreational businesses, providing them with advice and research to prevent litigation. Worked for and have developed legal defense programs for several insurance companies.

Specialization in outdoor recreation law: Represented a wide variety of outdoor industry trade associations, organizations and companies including manufacturers and universities. Developed a national reputation for outdoor recreation litigation, contracts and defense programs. Trial assets are ability to communicate and relate to the jury and to cross-examine witness.

August 2002 – July 2012 & August 2015 – 2017

Instructor Ski Area Operations, Risk Management. Colorado Mountain College, Leadville, CO. Author SAO Risk Management on line curriculum. Colorado Mountain College, Leadville, CO. Author Ski Area Operations, Risk Management on line course (http://www.coloradomtn.edu/programs/sao/field.shtml)

February 2008 – Present

Author – www.recreation-law.com:      Author of a weekly blog on the issues in the outdoor recreation community.

February 2001 – Present

Consultant Risk Management and Disaster Planning. Work with business to identify source of lawsuits and eliminate those sources. Consult on all forms of litigation, risk management, disaster planning.

May 2004 – 2011

Editor the Outdoor Recreation & Fitness Law Review. The Law Review is an online publication informing lawyers and business of changes in the law of outdoor recreation, fitness and outdoor education. (www.snewsnet.com/lawreview)

August 2006 – December 2006

Developer the Parks Recreation and Tourism Program, University of Utah, PRT Risk Management Insurance & Law

January 2005 – August 2006

Park’s College (Everest) Adjunct Instructor in the paralegal program, teaching Contracts, Real Property, Estates, Administrative and Probate law.

1989 – 2002: Small Business Risk Management Seminars:

Conducted two- and three-day risk management seminars for outdoor recreation businesses. Seminars provide the participant with hands-on training in how to detect risks and handle problems when they occur to prevent litigation.

February 2001 – August 2002

Risk Manager, Copper Mountain Resort Claims Management, Worker’s Compensation, and Training program. Reduced General Liability Claims costs from the three-year average Ninety (90%) percent. Received thank you notes from injured guests and family members of fatalities. Eliminated all lawsuits by injured guests. Converted Risk Management into a customer service department. Empowered Ski Patrol and Guest Service employees to solve problems to reduce claims. Reduced Worker’s Compensation costs by 67% and reduced claims by 20%. Wrote the weekly newsletter for Intrawest (Parent Corporation) for risk management personnel.

1999 – 2001: Publisher, Outdoor Recreation Newsletter:  Created and publish a monthly electronic newsletter exploring various aspects of risk management, liability, and legal issues affecting the outdoor recreation, travel and hospitality industry.

1984 — 1985: Attorney, Nationwide Financial Services, Mutual Fund Co. Developed and managed the training 3,000 agents in securities, tax law, and sales. Developed a multi-media training program explaining IRS and SEC regulations on the sale of securities. This three-day seminar was culminated a two-year series of training programs tying the entire program together. Developed marketing and advertising plans for agent promotions. Coordinated sales, marketing, and legal functions with other departments within the company. Also coordinated mutual fund programs with other companies within Nationwide.

1983-1984:  Attorney, Nationwide Life Insurance Co. Wrote pension plans and trained agents and stockbrokers in pension law. Provided in-house and on-site sales support for mutual funds, tax-sheltered annuities, life insurance products, and other financial instruments. Assisted in the development of “BEST of AMERICA,” the first tax sheltered annuity to wrap public mutual funds. Trained the brokerage community in the sales of tax-sheltered annuities of Nationwide Life Insurance Company.

1983-1985:  Rock climbing instructor and Money Management Instructor, Ohio State University Creative Arts Program. Taught 2,000 students rock climbing skills. Courses ranged from a 10-week experience, to a one-day program for youth groups. Developed a new teaching technique for rock climbing teaching 25 students to climb at one time.

The Money Management program was directed at professional students entering the work force for the first time. The class concentrated on investments, but started with checking accounts and ended with retirement.

1980- 1982: Law Clerk, Sebastian and Marsh, commercial litigation firm.

Mediator, Columbus City Attorney’s office, night prosecutor’s program. Mediated disputes between citizens of Columbus, OH. The program was instituted to relieve the courts and police of handling domestic and non-arrest incidents and to provide a forum of civilian disputes.

1978 – 1980: Nationwide Insurance – Self-employed multi-line insurance agent. Held SEC series 6, life/health and property/casualty insurance license

1977 — 1978: Boy Scouts of America District Executive. Responsible for year-round program, adult and youth leader training, fund raising, and recruitment of youth and adults. Developed youth programs in character building, leadership and outdoor recreation. Provided training to adults working with youth and outdoor skills to youth.

EDUCATION

August 1980 — December 1982: J.D., Capital University Law

1972 — 1977: B.S., Ohio State University

POST COLLEGE EDUCATION AND DEVELOPMENT

  • National Executive Institute (BSA)
  • National Camping School (BSA)
  • National Exploring Law Enforcement Conference (BSA)
  • Exploring Leader Training (BSA)
  • Scoutmaster Leader Training
  • Emergency Medical Technician
  • Colorado Continuing Legal Education Classes (Participant & Instructor)

 

TRIAL EXPERIENCE

Developed a national expertise as a consultant and trial attorney specializing in recreational risk issues, encompassing several areas with primary emphases on litigation prevention. Litigated and consulted on a broad scope of issues including risk management as it relates to recreation and outdoor education, risk management and program exposure evaluation, equipment and product liability and insurance issues.

Currently represent a large segment of the whitewater rafting insurance industry, scuba insurance industry, canoe livery and outdoor recreation industry. Consulted on or successfully litigated rafting, backpacking, kayaking, snowmobiling, ropes course and rock-climbing cases.

EXPERT WITNESS

Expert witness in outdoor recreation, commercial guiding, and recreation education cases

EDITORIAL BOARDS

Sports Facilities and the Law review, Holt Hackney Publications, https://sportsfacilitieslaw.com/

Sport and Recreation Law Association Presentation Review Board, http://www.srlawebsite.com/

PUBLICATIONS – BOOKS

Outdoor Recreation, Insurance, Risk Management, and Law, Sagamore Publishing, Inc., 2015, 427 pages, Sagamore Publishing, Inc., Urbana, IL

Risk Management and Law for Outdoor Recreation Professionals: Compiled November 1995. 400-page compendium of articles issues and reference material for individuals and businesses.

The Lawyer’s Advisor: Published September 1996. 160-page book written to provide consumers and lawyers with maxims for dealing with each other. Published by ICS Books, Merrillville, IN.

Outdoor Recreation Forms, Published September 1999, 200-page book published by the National Association of RV Parks and Campgrounds, to provide members with risk management forms for their businesses.

Legal Liability and Risk Management in Adventure Tourism: Ross Cloutier with Daniel Garvey, Will Leverette, James Moss & Gilles Valade. I was responsible for Chapter Seven Canadian Businesses Carrying on Operations in the United States.

Boy Scout Fieldbook: Contributing Author for the Risk Management chapter, Boy Scouts of America

Outdoor Programmers Resource Guide, Risk Management, Association of Outdoor Recreation & Education, 2004

Boating the Grand Canyon: A “How To” for Private Boaters, Amazon Kindle, 2019

Management of Parks and Recreation Agencies, 4th Edition, Chapter 2: Law and Jurisdiction (5th Edition currently in the Editing process) NRPA and Sagamore Press

Mountain Medicine & Technical Rescue 2nd Edition Chapter 13: Legal Aspects of Mountain Medicine, Carreg Limited

PUBLICATIONS –NEWSLETTERS

Liability Corner, Paddle Dealer Magazine. Quarterly magazine for the paddlesport’s industry, Paddlesport Publishing, Inc., Steamboat, Colorado.

Outdoor Recreation, Travel and Hospitality Law Newsletter, monthly electronic newsletter detailing changes, actions, lawsuits and results for the Outdoor Recreation, Travel and Hospitality Community.

PUBLICATIONS

In the Who’s-To-Blame Game, Be Trained in Self-Defense. Outside Business, October 1989, Taking Cover –

The Ins and Outs of Outdoor Education Cases, The Outdoor Network, fall 1990, Vol. 1 No. 7, Lawsuits: (Reprinted, January 1991 in Christian Wilderness Leaders Coalition; 1991 Newsletter National Association of Canoe Liveries and Outfitters.)

Medical Release Forms, The Outdoor Network, winter 1990, Vol. 1 No. 8,

Liability and Outdoor Equipment, The Outdoor Network, spring 1991, Vol. 1 No. 9,

Avoiding a Lawsuit, The Outdoor Network, spring 1991, Vol. 1 No. 9,

Using Industry Knowledge to Your best Advantage., The Outdoor Network, fall 1991, Vol. 3 No. 3,

Outdoor Programmer’s Resource Guide, Liability Section Outdoor Recreation Coalition of America, 1991,

Outdoor Recreation Liability in the Future and How to Prepare for that Threat Today. Proceedings: Sixth International Conference on Outdoor Recreation:

Paperwork: It Destroys Trees, Takes up Space and Maybe Necessary to Prevent Lawsuits. Proceedings: Sixth International Conference on Outdoor Recreation:

Avoiding a Lawsuit Pathways to Outdoor Communication, a publication of the New York State Outdoor Education Association, Inc., spring 1992, (Reprint of The Outdoor Network, spring 1991, Vol. 1 No. 9, Avoiding a Lawsuit)

Liabilities of Endorsers, Trade Associations, or Similar Parties Who Approve a Product in the Outdoor Recreation Industry. The Outdoor Network, spring 19921, Vol. 4 No. 1,

Whitewater Rafting Liability. The Outdoor Network, spring 1992, Vol. 4 No. 2,

Current Trends in the Use of Waivers and Releases. The Outdoor Network, fall 1992, Vol. 4 No. 4,

Are “out-of-bounds” laws out of bounds? Le Chronicle du Couloir, November 1992

Liability for Sexual Contact between Guides and Guests Proceedings: Sixth International Conference on Outdoor Recreation.

Current Trends in Outdoor Recreation Liability. Proceedings: Sixth International Conference on Outdoor Recreation

The Legal Perspective for the Outdoor Recreation Community Proceedings: Sixth International Conference on Outdoor Recreation: Certification and Accreditation.

Y’know what we do to poachers…boy? Le Chronicle du Couloir, January 1995

Product Liability of Outdoor Recreation Equipment Continuing Legal Education in Colorado, Sports Law, May 5, 1995.

Troubled Waters Outdoor Retailer, April 2000.

Outfitter Release Forms: How to Keep Them Meaningful Paddle Dealer, Liability Corner, spring 2000

A Few Words on “Standards” Paddle Dealer, Liability Corner, spring 2000

Pay Special Attention to Children Paddle Dealer, Liability Corner, summer 2000

Running a Retail Operation: Should you Rent Equipment Paddle Dealer Liability Corner, fall 2000

Special Attention Required When it comes to Children, Lawsuits, Releases and Assumption of Risk Scouter Magazine, Vol 2, Issue 1

The Basics of Negligence Paddle Dealer, Liability Corner, winter 2001

Renting Equipment Inside/Outside Magazine, spring 2003

It’s Not Money, CLE International, Recreation and Adventure Program law and Liability Conference,

A Good Contract Between Manufacturers and Independent Reps Makes for a Sound Business Marriage and a Smoother Divorce- If it comes to That. Gear Trends Magazine, summer 2004,

How to Reduce Injuries on the job; Put down the pencil, get off your chair, and get out of your office, Lorman Education Services, CLE Program, Worker’s Compensation:

Assumption of the Risk, Mountain Bulletin, a Publication of the American Mountain Guide Association, Vol. XVIII, No. 3, Summer 2004

Legal Watch: Prescriptions and the Law, Wilderness Medicine, the Journal of the Wilderness Medical Society, Fall 2007 (http://www.wms.org/pubs/WMSFall2007_MagazineFINAL_lowres.pdf)

Storm Over Everest, Frontline High-Altitude Ethics Roundtable, May, 2008, www.frontline.org/everest/etc/roundtable.html

California Supreme Court Limits Good Samaritan Protection, Wilderness Medicine, the Journal of the Wilderness Medical Society, Summer 2009

Lawsuits, Recreation Management, February, 2010

When we try to prevent accidents…are we creating them, Outward Bound International Journal, 2013, (Reprint https://recreation-law.com/2012/07/18/when-we-try-and-prevent-accidentsare-creating-them)

National Bicycle Dealers Association, Recalls Call for Retailer Action, http://rec-law.us/1FHAhA6

Protecting Your Bike Shop and Yourself When Hosting Events, Marsh & McLennan Agency, http://rec-law.us/1zAPdu5

Federal Court Dismisses Claims by BMX Rider for More Money from Sponsor, Sports Litigation Alert, Vol 12, Issue 17, http://www.sportslitigationalert.com/

Can You Buy a Season Pass at a Ski Area and Avoid Criminal Prosecution? Sports Litigation Alert, Vol 13, Issue 2, http://www.sportslitigationalert.com/

Judicial Ruling Creates Chaos in Oregon Where Volunteer Activities on Recreational Lands Have Come to a Halt, Sports Litigation Alert, March 17, 2017, Vol 14, Issue 5, http://www.sportslitigationalert.com/

Colorado Supreme Court Determines that a Piece of Playground Equipment on School Property Is Not Protected by the Colorado Governmental Immunity Act, Sports Litigation Alert Vol. 14, Iss. 13, http://www.sportslitigationalert.com/

California Proposition 65 Affects Retailers and Dealers, Too, National Sporting Goods Association, February 8, 2018 https://www.nsga.org/prop65

Court: Plaintiff Cannot Assume a Risk Which Is Not Inherent in the Activity or Which He Does Not Know, Sports Litigation Alert, Volume 15, Issue 13, July 20, 2018, http://www.sportslitigationalert.com/

Court: Plaintiff Cannot Assume a Risk Which Is Not Inherent in the Activity or Which He Does Not Know, Sport Facilities and the Law, July-August 2018 l Volume 3, Issue 1, https://sportsfacilitieslaw.com/

Kentucky Appellate Court Holds That Exclusions in an Insurance Policy That Render the Policy Worthless to the Insured Are Valid, Sport Facilities and the Law, Volume 15, Issue 18      September 28, 2018, https://sportsfacilitieslaw.com/

Court Allows a Release to Stop a Gross Negligence Claim, Sport Facilities and the Law, March-April 2019 Volume 3, Issue 5, https://sportsfacilitieslaw.com/

VIDEOS AND FILMS

Consulted on or written the scripts and provided legal advice for the following Videos and Films.

National Livery Safety System, “Accepting the Responsibility… A Guide to Safe Paddling.”  1993. American Canoe Association

National Livery Safety System, “You’re in Control…A Guide to Safe Paddling.” 1993. American Canoe Association

National Livery Safety System, “So Take the Time…A Guide to Risk Management Training for Outfitters.” 1993. American Canoe Association

Scuba Schools International, Basic Scuba Training, 1993.

Jack’s Plastic Welding, “Operation of the Paddle Cat.” 1993.

National Livery Safety System, “Whitewater Rafting.” 2000. American Canoe Association

National Livery Safety System, “Whitewater Kayaking.” 2000. American Canoe Association

OARS Whitewater Rafting Safety Orientation Videos, 2012, http://rec-law.us/NvHtqu

CONSULTATIONS FOR PUBLICATIONS: Quoted in or consulted by the following newspapers and magazines concerning risk management or outdoor recreation.

Anchorage Daily News, Anchorage, Alaska

Bicycle Retailer and Industry News

Bike Bix, UK

Boston Globe, Boston, Massachusetts

Camp Business

Club Industry, October 2011 Clubs, Manufactures Can Lessen Lawsuit Possibilities

Meetings & Conventions

Outdoor Hospitality Magazine

Outdoor Network, Boulder, Colorado

Outdoor Retailer, California

Outside Business, Chicago, Illinois

Outside Magazine, Santa Fe, NM

Rock & Ice, Letters to the Editor

Rocky Mountain News, Denver, Colorado

Ski Area Management, Boulder, Colorado

Velo News, Boulder, Colorado

Wall Street Journal, New York, New York

Forbes.com

Colorado Sun

The Rōbert Report

PUBLIC SPEAKING

Western River Guides Association, Annual Meeting December 1988: Reducing Your Exposure to Lawsuits, Reno, Nevada.

Colorado River Outfitters Association Annual Meeting, February 1988, 1989, 1990, 1992 and 1993: various recreational risk topics.

Western River Guides Association, Annual Meeting December 1988: Paperwork Necessary to Prevent Lawsuits.

Boy Scouts of America, National Search and Rescue Conference, July 1989, Reducing Your Risk of Being Sued, Colorado Springs, Colorado.

Outside Business, Taking Cover in the who’s to blame game, be trained for self-defense, October 1989.

Boy Scouts of America, National Law Enforcement Exploring Conference, July 1990, Reducing Your Risk of Being Sued, Boulder, Colorado.

Boy Scouts of America, National Exploring Conference 1990, Working with Parents to Avoid Litigation, Boulder, Colorado.

The Outdoor Network, Avoiding a Lawsuit, Spring 1991

Boy Scouts of America, North Central Region Exploring Law Enforcement Conference 1991: BSA Programs and Their Effect in Reducing Your Lawsuit Risk, Denver, Colorado.

Coalition of Exclusive Agents, First Annual Conference, July 1991, Reducing Your Errors and Omission’s Exposure, Las Vegas, Nevada.

International Conference on Outdoor Recreation: Outdoor Recreation Liability in the Future and How to Prepare for that Threat Today, University of Idaho, Moscow, Idaho.

International Conference on Outdoor Recreation: Paperwork: It Destroys Trees, Takes up Space and Maybe Necessary to Prevent Lawsuits, University of Idaho, Moscow, Idaho.

America Outdoors, Confluence 91, Reducing Your Liability, Orlando, Florida.

America Outdoors, Confluence 91, Understanding Your Insurance, Orlando, Florida.

Wilderness Education Association, Post Incident Emergency Legal Response, February 1992, University of Southern Colorado, Pueblo, Colorado.

Sixth International Conference on Outdoor Recreation, Liability for Sexual Contact between Guests and Guides, November 1992, University of Calgary, Calgary, Canada.

Sixth International Conference on Outdoor Recreation, Panel Discussion on: Liability for Certification, Accreditation and Endorsements in the Outdoor Recreation Industry, November 1992, Calgary, Canada.

Sixth International Conference on Outdoor Recreation, Panel Discussion of: Current trends in Outdoor Recreation Liability, November 1992, Calgary, Canada.

First Annual Challenge Course Symposium: Lawsuits: How to Handle them and How to Avoid Them, April, Boulder Colorado.

Exploring Search and Rescue Conference, Liability of Explorer Post Leaders. August 1993, Colorado Springs, Colorado.

Seventh International Conference on Outdoor Recreation: Emerging Trends in Outdoor Recreation, November 1993, Corvallis, Oregon

Seventh International Conference on Outdoor Recreation: Legalese, understanding the language, November 1993, Corvallis, Oregon

Confluence 1993, National Association of Canoe Liveries and Outfitters: National Livery System Video used as a Trial Defense Exhibit, December, Florida.

Second Annual Challenge Course Symposium: Setting up Your Course and Your Business to Avoid Litigation Threats, April, Boulder, Colorado

Fifth International Symposium on Human and Resource Management: Legal liability in Resource Management, June 1994, Fort Collins, Colorado

Building Partnerships, Building Trails: Risk Management for Trail Maintenance and Design. June 23, 1994, Park City, Utah.

Alpha Phi Omega Regional Conference: Alcohol Liability, a New Risk Plan for APO, October 29, 1994, Boulder, Colorado.

The Challenge Course Manager, Rick Management, March 28, 1995, Golden, Colorado

The Challenge Course Manager, Paperwork, Liability Defense, March 29, 1995, Golden, Colorado

Continuing Legal Education in Colorado, Sports Law, Product Liability of Outdoor Recreation Equipment, May 5, 1995.

Colorado Bar Association 1995 Convention, Sports Law, Outdoor Recreation in Colorado, September 8, 1995.

Seminar, Cornell University, Risk Management and Liability, Protecting you and your program from assault, October 24, 1995

Seminar, Cornell University, Paperwork, the Documents you need for Liability Protection, October 25, 1995.

International Conference on Outdoor Recreation, Risk Management in Outdoor Recreation Programs, October 24-25, 1995, Cornell University, New York.

International Conference on Outdoor Recreation, Risk Liability in University Outdoor Recreation Programs, October 24-25, 1995, Cornell University, New York.

International Conference on Outdoor Recreation, Update in Outdoor Recreation Law, October 24-25, 1995, Cornell University, New York.

National Association of Canoe Liveries and Outfitters, 1995 Convention, Risk Management in Outdoor Recreation Operations, November 26 – 27, 1995.

Wilderness Medicine Society, Liability Issues in Outdoor Recreation Law, February, 1996, Big Sky, Montana

Wilderness Education Association, Outdoor Recreation Liability Issues in College and University Outdoor Programs, February 23, 1996, Fall Creek Falls, Tennessee.

Wilderness Education Association, What’s New in University and College Outdoor Recreation, February 24, 1996, Fall Creek Falls, Tennessee

Outdoor Recreation Coalition of America Rendezvous and Conference, Liability Issues of College and University Programs, June 1, 1996, Colorado Springs, Colorado.

Seventh International Conference on Outdoor Recreation and Education, Land Management Issues for Colleges and Universities, November 7, 1996, Salt Lake City, Utah.

Seventh International Conference on Outdoor Recreation and Education, Update in Risk Management and the Law for Colleges and Universities, November 7, 1996, Salt Lake City, Utah.

Professional Paddlesports Association National Waterways Conference, Asset Protection and Estate Planning for the Canoe Livery Owner, December 5, 1996, Destin Florida.

Challenge Course Mangers Symposium, Legal and Risk Management Issues for the Challenge Course Manager, December 15, 1996, Boulder, Colorado.

Non-Profits in Travel Conference, Risk Management for Adventure Travel Industry, March 3, 1997, Arlington, Virginia

American Association of Health, Physical Education and Recreation Directors, Recreation Programs: Are You What You Think You Are, March 21, 1997, St. Louis, Missouri.

International Boating and Water Safety Summit, Signs, Signs Everywhere a Sign, April 22, 1997, San Diego, California

International Boating and Water Safety Summit, Is Your Insurance Adjuster Prospecting You for a Lawsuit?  April 22, 1997, San Diego, California

International Conference on Outdoor Recreation and Education, How to Protect Your Mexican Assets from US Attorneys, November 7, 1997, Merida, Mexico.

Professional Paddlesports Association Conference, Signs, Signs, Everywhere a Sign, December 4, 1997, Clearwater, Florida.

Professional Paddlesports Association Conference, Update in Outdoor Recreation Law, December 4, 1997, Clearwater, Florida.

First World Conference on the Cold and 7th European Cold Conference, How to Protect Your Assets from US Lawsuits, January 15, 1998, Kiruna, Sweden

American Mountain Guides Annual Conference, Your Client Is Not Breathing, Not Bleeding and Maybe Dead, What Do You Do Next. October 17, 1997, Golden, Colorado.

International Conference on Outdoor Recreation & Education, The Association of Outdoor Recreation and Education in the Year 2000. October 22, 1998, Fort Walton Beach, Florida.

Wilderness Medicine Society, Liability Issues for Physicians and Wilderness Medicine, August 1999, Whistler, Canada

International Conference on Outdoor Recreation and Education, Update in Outdoor Recreation Law, Dealing with the Federal Land Managers and Access, November, 1999, Jackson, Wyoming

National Association of RV Parks & Campgrounds, Asset Protection Planning, Training Your Employees to Prevent Lawsuits, Employee/Employer Law, November 1999, San Antonio TX

Challenge Course Manager, Running your Program without attracting lawsuits, December 1999, Golden, CO

Maine Campground Owners Association 2000 Spring meeting and Trade Show, Asset Protection Planning and Risk Management, April 14, 2000, Portland, Maine.

International Conference on Outdoor Recreation and Education, Stump the Lawyer, November 11, 2000, Miami University, Oxford Ohio.

International Conference on Outdoor Recreation and Education, Update in OR Law, November 5-6, 2001, University of Idaho, Pocatello, ID

Inside Outside Magazine, Room for Rentals: Liability Concerns shouldn’t keep Retailers from renting equipment, March 2004

CLE International, Recreation and Adventure Program law and Liability Conference, April 10 & 11, 2003, Vail Colorado

International Conference on Outdoor Recreation and Education, How to Teach Risk Management, November 7, 2003, Utah Valley State College, Orem Utah

International Conference on Outdoor Recreation and Education, Pre-Trip Risk management Planning, November 9, 2003, Utah Valley State College, Orem Utah

American Mountain Guides Association Annual Conference, Insurance, October 23, 2004, Moab Utah

International Conference on Outdoor Recreation and Education, Product Liability, October 29, 2004, Nashville, TN

International Conference on Outdoor Recreation and Education, Legal Terminology, October 29, 2004, Nashville, TN

International Conference on Outdoor Recreation and Education, Legal Update, October 29, 2004, Nashville, TN

Lorman Education Services, CLE Program, Worker’s Compensation: How to Reduce Injuries on the job, October 17, 2004, Grand Junction, CO

CLE International, Recreation and Adventure Law CLE: Update in Outdoor Recreation Law, April 28 & 29, 2005, Denver, Colorado,

Wilderness Medical Society, Annual Conference, Legal issues for Physicians dealing with Outdoor Recreation Programs, July 23, 2005, Snowmass, Colorado

International Conference on Outdoor Recreation and Education, Risk Management Update, October 2006, Buffalo, NY

International Technical Rescue Symposium, Standards, November 3, 2007, Golden Colorado. Standards, (Was voted “Most Thought Provoking Presentation” by the attendees.)

Lorman CLE Workers’ Compensation Update, November 27, 2007, Colorado Springs Colorado, “Keeping Your Worker’s Compensation Costs Low

Mountain Rescue Association Winter Meeting, January 12, 2008, Salt Lake City, UT, Standards

Sports and Recreation Law Association Annual Conference March 4, 2009, San Antonio, TX, Releases and Minors: An Update

Sports and Recreation Law Association Annual Conference March 4, 2009, San Antonio, TX, Releases and the Common Law

Rocky Mountain Lift Association Annual Conference, May 4, 2009, Grand Junction, CO, Risk Management: An Update

Rocky Mountain Lift Association Annual Conference, May 11, 2010, Grand Junction, CO, Customer Service from Lift Operations and Lift Maintenance

Rocky Mountain Lift Association Annual Conference, May 11, 2010, Grand Junction, CO, HR Paperwork

Association of Outdoor Recreation and Education, November 12, 2010, Keystone, CO, Major Legal Issues in Outdoor Recreation and Adventure Travel

Association of Outdoor Recreation and Education, November 12, 2010, Keystone, CO, First Aid Myths, Magic and Misconception from a Legal Standpoint

Association of Independent Camps Annual Conference, February 7, 2011, San Diego, CA, Kids Camps and Angry Parents who want to Sue.

Betty van der Smissen Memorial Lecture Risk Management and Legal Liability, Indiana University April 22, 2011, Bloomington, IN, Practical Procedures do not necessarily Prevent Punitive Proceedings or Sacred Cows in the Outdoor Recreation Industry

Rocky Mountain Lift Association Annual Conference, May 11, 2011, Grand Junction, CO, Creating a Workable, easy to write and use Risk Management Plan that won’t haunt you on the witness stand

Rocky Mountain Lift Association Annual Conference, May 11, 2011, Grand Junction, CO, Customer Service is Risk Management is Customer Service is Risk Management is Customer Service

Rocky Mountain Lift Association Annual Conference, May 11, 2011, Grand Junction, CO, Employee Discipline, Crap I have More Paperwork to Do.

Professional Paddlesports Association, November 8, 2011, Sandusky, Ohio, Ask the Attorney I.

Professional Paddlesports Association, November 8, 2011, Sandusky, Ohio, Ask the Attorney II.

Professional Paddlesports Association, November 8, 2011, Sandusky, Ohio, Wake Up and Smell the Liability.

Association of Independent Camps Annual Conference, February 20, 2012, Atlanta, GA, Update in the law

National Cave Association, September, 25, 2012, Deadwood, SD, Cave Risk Management and Liability

Outdoor Retailer, January 23, 2013, Salt Lake City, UT, How to Bring Scouts into Your Store: There’s Even an App for That!

Outdoor Retailer, January 23, 2013, Salt Lake City, UT, Outdoor Recreation Retail Store: Liability Issues

NHEIC Risk Management Conference, April 3, 2013, Nashville, TN Things You Don’t Know and Should.

National Bicycle Dealer Association, Interbike, September 17, 2013, Las Vegas, NV, Risk Management and Legal Issues for the NBDA

Sport and Recreation Law Association Conference, 2014, Orlando, FL, Update on Release Law

Loveland Ski Area, September 24, 2013, Georgetown, CO Update on Risk Management Issues and Customer Service for Ski Areas.

Sport and Recreation Law Association Conference 2016, New Orleans, LA, Standard of Care in Skier v. Skier Collisions.

Sport and Recreation Law Association Conference 2016, New Orleans, LA, Releases for Gross, Intentional or Reckless Acts.

Colorado Alliance of Environmental Educators, March 19, 2016, 21st Century issues drug forward from the past: Claims and Lawsuits, but 21st Century ways to deal with them

Outdoor Recreation Managers Training, IMCOM G9, San Antonio, TX, Risk Management Update

Sport and Recreation Law Association Conference 2017, Las Vegas, NV, The Evolution of the Public Policy Doctrine in Voiding Releases.

U.S. Army MWR Attorneys Association, June 13, 2017, Orlando, FL, Update on Recreation Legal Issues.

Sport and Recreation Law Association Conference 2018, San Antonio, TX, Electronic Releases

Sport and Recreation Law Association Conference 2018, San Antonio, TX. What Drives People: Extreme Sports.

Adaptive Outdoor Recreation Summit April 30 – May 2, 2018 (Skype) in Park City, UT, Update in the Legal issues facing Disabled Programs

Sport and Recreation Law Association Conference 2019, Philadelphia, PA, Managing the Risk of Events Through Insurance – Exclusions Do Apply!

Sport and Recreation Law Association Conference 2019, Philadelphia, PA, Legal Issues of Misrepresentation & Fraud in Outdoor Recreation.

Sport and Recreation Law Association Conference 2020, Louisville, are waivers being replaced by statutes

Sport and Recreation Law Association Conference 2020, Louisville, Recreation Case Law

Sport and Recreation Law Association Conference 2020, Online Conference, Covid-19 and Cruises

Sport and Recreation Law Association Conference 2020, Online Conference, Criminal Liability for Backcountry Skiing

Sport and Recreation Law Association Conference 2020, Online Conference, is a Fiduciary Duty Owed in Sport Recreation Settings

TEACHING EXPERIENCE

Prescott College, Prescott, Arizona, Risk Management for Recreation Programs. Case Studies of Outdoor Recreation Accidents and Responses, April 1992,

Community College of Aurora, Business Law, April — May 1992, Substitute Instructor

Oregon State University, Outdoor Recreation Liability, 1993

Cornell University, Outdoor Recreation Liability, 1994

University of Utah, Outdoor Recreation Liability, 1996

Colorado State University, Adjunct Professor, Human Resources, Ph.D. program 1993-97

Pikes Peak Community College, Adjunct Professor, Risk Management and Insurance Law, 1998, 1999

University of Idaho, Outdoor Recreation Liability, 2001

Continuing Legal Education in Colorado, Sports Law, Product Liability of Outdoor Recreation Equipment, May 5, 1995.

Colorado Mountain College, Leadville, CO Risk Management, Ski Area Operations. Live Class (Fall 2002 to 2017) and Online Class (2004 to 2017)

University of Utah, Salt Lake City, UT, Outdoor Recreation, Risk Management, Insurance and Law, Spring 2006 (online)

University of Arkansas, Update in Recreation Law, February 9, 2018

University of Arkansas, Update in Recreation Law, Sport and Recreation Risk Management, August 2, 2018

PODCASTS

The Spokesmen Cycling Roundtable Podcast, http://www.the-spokesmen.com/wordpress/

VOLUNTEER ACTIVITIES

Board of Directors, Denver Area Council 2014 – Present, Boy Scouts of America

Activities Committee Chairman, April 2021 – Present, Denver Area Council, Scouting USA

District Chairman, Timberline District 2014 – 2019, Denver Area Council, Boy Scouts America

Chairman, Youth Protection Program, 2018 – Present, Denver Area Council, Boy Scouts of America

Risk Management & Insurance Committee, 2018 – Present, Denver Area Council, Boy Scouts of America

Cycling Committee Chairman, 2020 – Present, Denver Area Council, Boy Scouts of America

Board of Directors, Colorado Alliance of Environmental Education 2008 – 2014, http://www.caee.org/

Board of Directors and Secretary, Galapagos Preservation Society 2006 – Present, http://gpsociety.org/

Board of Directors, Trade Association of Paddlesports 2004 – 2010, https://www.facebook.com/Paddlesports

Member and/or Chairman, American Alpine Club Library Committee, 2004 – 2019 http://americanalpineclub.org/p/library

Founder and Board of Directors, National Outdoor Book Awards 1997 – Present, http://www.noba-web.org/

LICENSES & CERTIFICATIONS:

Licensed to practice law in:

Ohio (inactive)

Colorado

Federal District Court, Colorado

Tenth Circuit Court of Appeals

Certified alpine ski binding technician

 

MEMBERSHIPS & PROFESSIONAL AFFILIATIONS:

Academy of Legal Studies in Business

Adventure Sports Lawyer’s Group

American Alpine Club

American Avalanche Association

American Society of Testing & Materials (http://www.astm.org/)

Bicycle Colorado

Colorado Alliance of Environmental Education

Colorado Bar Association

Denver Area Council, Boy Scouts of America

Galapagos Conservation Action

International Climbing and Mountaineering Federation – (UIAA) (Union Internationale des Association d’Alpinisme) Safety Committee

First Judicial District Bar Association

National Ski Area Association (Past)

National Ski Patrol (Past)

Society of Park and Recreation Educators

Sports & Recreation Law Association

Trade Association of Paddlesports (Past)

HONORS:

Sport and Recreation Law Association President’s Award

East Muskingum School District Distinguished Alumni Hall of Fame

Boy Scouts of America, Denver Area Council, Silver Beaver Award

Boy Scouts of America, Denver Area Council, Exploring Division, District Award of Merit

Boy Scouts of America, Denver Area Council, Timberline District, District Award of Merit

Colorado Mountain College Advisory Board, Ski Area Operations

Copper Mountain Peak Heroic Moment Award February 2002

Denver Area Council, BSA Certificates of Appreciation

Globe Pequot Press, Falcon Publishing Editorial Review Board

ICS Books, Editorial Review Board

Moab Confluence Writing Festival, Judge

National Outdoor Book Awards Co-Founder and Judge, (http://www.noba-web.org/)

National Summit on Outdoor Recreation, Ambassador, 1994

Pike’s Peak Community College Advisory Board, Recreation and Guide Program

Speaker, Betty van der Smissen Risk Management Lecture, University of Indiana 2011

Eagle Scout, Boy Scouts of America

Vigil Honor Member, Lifetime, Order of the Arrow, Boy Scouts of America

 


More Information about Dr claiming injury to get rescued on Denali

https://buff.ly/3FsJyQO

State: :Alaska

#IdiotInTheBackCountry argued that since he had paid his fee to the National Park Service to Climb Denali, they owed him a rescue.

Just for the record, unless you are guiding someone or placed the person in peril, no one owes anyone a rescue in the US. That goes doubly so for the US Government.

Why Is This Interesting?

Taking the money, time and effort to climb Denali and not understanding the issues is stupid. Just because you have the money does not mean you have the brains to be in the backcountry.

@DenaliNPS #IdiotsIntheBackCountry #ThankGodforSAR @RecreationLaw #SAR #Search_Rescue #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Client suing Climbing Guide in Canada

https://rec-law.us/3nik4zx

State: British Columbia, Canada

First, this information comes from a press release issued by the attorney representing the injured client so it totally one-sided and meant to make you feel back for the client.

Second, the grounds of the lawsuit are based on a breach of contract, according to the press release that was created when the guide said, “on belay” and the client said “climbing.”

The suit alleges, “When [the guide] called out “on-belay'” and the plaintiff responded by calling back “climbing,” there formed an ancillary agreement between [the guide] and the plaintiff whereby [the guide] became immediately responsible for securing the safety of the plaintiff while climbing up the particular pitch on belay. [The guide] broke this agreement when he let go of the rope, letting the plaintiff fall, wantonly and recklessly putting the plaintiff in mortal peril.”

Third, the lawsuit also is suing the Canadian Mountain Guides Association because “a duty of care in relation to, amongst other things, the training of the guide.”

Why Is This Interesting?

I believe this is the third lawsuit I’ve read about where a client is suing a guide. These are Extremely rare.

Furthermore, the facts of this situation are probably not relayed correctly so it is a little difficult to understand what exactly happened.

This is going to be a mess.

@RecreationLaw #RecLaw #RecreationLaw #Mountaineering #MountaingClimbing #RiskManagement

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Dr. Charged with 3 Felonies for faking need for rescue on Denali

https://rec-law.us/3kvMiVD

State: Alaska

Dr. on Denali claimed he needed rescued due to lack of equipment after his partner was rescued. When that did not work he claimed he was hypothermic. However, people climbing with him stated he has no injuries or problems descending when he was told rescue was impossible.

When questioned the next day the Dr. was found to be evasive and obstructive and believed to have been deleting messages from his satellite device (?).

Lance is facing a charge of interference with a government employee and violating lawful order for refusing to hand over the device at the ranger’s request and for deleting messages, the charges state. Lance is facing a third charge of false reporting for claiming another climber was experiencing shock and hypothermia in order to prompt rescue.

Why Is This Interesting?

I’ve never heard of anyone being charged like this. I have heard and seen people fake injuries to get rescued before.

#ThankGodforSAR @RecreationLaw #SAR #Search_Rescue #BoycottNH #NoChargeforRescue #NoChargeforSAR #RecLaw #RecreationLaw @RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Montana Recover & receives $2.2 Billion to its economy due to the outdoor industry

https://https://buff.ly/30gWZ7ubuff.ly/30gWZ7u

State: Montana

$2.2 Billion was added to the Montana economy in 2020 due to outdoor recreation 5.4% of the state’s employment is in the outdoor recreation industry which translates to 26,000 jobs. Montana tied for second with Alaska and after Hawaii, for the highest percentage of jobs attributed to the outdoor industry.

Why Is This Interesting?

That is a huge chunk of money for a state that historically relied upon extraction for its economy.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


In the UK you get arrested in the US you get sued

https://lnkd.in/gUavGDuX

State:

Women arrested in UK for suspicion of gross negligence manslaughter after four people died on #SUP trip. The news report is unclear about exactly what happened or how the four people died.

Why Is This Interesting?

This is a clear example of how the US legal system is so different from the UK or GB legal system. When you leave the US to guide, you might not get sued, but you might go to jail if there is an incident. (You still might get sued when you are back in the US.)

#Fatality #SUP #Paddleboard @RecreationLaw #Paddlesports #PaddleSportsLaw #RecLaw #RecreationLaw

What do you think? Leave a comment below.

Copyright 2020 Recreation Law (720) 334 8529

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Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Man rescued in Yellowstone park is banned for 5 years and ordered to pay $2880 for helicopter rescue

https://lnkd.in/gp9QKCCG

State: Wyoming

A man searching for Forrest Fenn’s treasure got lost in Yellowstone National Park and had to be rescued. The NPS then charged the man, and he was sentenced to $2880 in restitution, the cost of the helicopter evacuation and banned from the park for five years.

Why Is This Interesting?

As dumb as this idiot might be, it is only going to make SAR in @YellowstoneNPS harder and more difficult putting victims and rescuers at greater risk.

@YellowstoneNPS #IdiotsIntheBackCountry #ThankGodforSAR @RecreationLaw #SAR #Search_Rescue #BoycottNH #NoChargeforSAR #RecLaw #RecreationLaw

What do you think? Leave a comment below.

Copyright 2020 Recreation Law (720) 334 8529

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

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Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


2 Person Team summits Tengkangpoche in Nepal but only after raiding gear cache’s of other climbers

https://lnkd.in/gZU9WwiP

State:

When mountaineering can you “borrow” or “steal” from the gear cache from previous attempts? The successful summiters of Tengkangpoche did. The gear was left there because the owners were going to come back and attempt the climb again.

This has created a controversy on the web and probably should.

Abandoned gear, litter or trash or necessary equipment for the next attempt?

Awesome climb of a route that repeatedly turned back great mountaineers marred by the use of someone else’s gear.

@RecreationLaw #RecLaw #RecreationLaw #Mountaineering #MountaingClimbing #RiskManagement

What do you think? Leave a comment below.

Copyright 2020 Recreation Law (720) 334 8529

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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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


ABUS Recall of Youth Helmets for failing to meet CPSC federal safety standard

https://buff.ly/3kApwMi

ABUS MountZ Youth Helmets

ABUS Recalls Youth Helmets Due to Risk of Head Injury because they do not comply with U.S. CPSC federal safety standard

Hazard: The recalled helmets do not comply with the U.S. CPSC federal safety standard for bicycle helmets, posing a risk of head injury.

Remedy: Refund

Recall Date: November 10, 2021

Units: About 790

Why Is This Interesting?

It’s scary, but pass the word along to let everyone know.

@RecreationLaw #Helmets @KaliProtectives #Mipsprotection @6DHelmets #CyclingHelmets #CyclistsNotInvisible #RecLaw #RecreationLaw

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Trampoline Court Safety Act

§ 691.1731. Short title

This act shall be known and may be cited as the ‘trampoline court safety act’.”

Mich. Comp. Laws 691.1731 Short title (Michigan Compiled Laws (2021 Edition))

§ 691.1733. Operator; duties

An operator shall do all of the following:

(a) Post the duties of trampoliners and spectators as prescribed in this act and the duties, obligations, and liabilities of operators as prescribed in this act in conspicuous places.

(b) Comply with the safety standards specified in ASTM F2970 – 13, “Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts” published in 2013 by the American society for testing and materials.

(c) Maintain the trampoline court according to the safety standards cited in subdivision (b).

(d) Maintain the stability and legibility of all required signs, symbols, and posted notices.

(Added by 2014, Act 11,s 3, eff. 2/18/2014.)…

Mich. Comp. Laws 691.1733 Operator; duties (Michigan Compiled Laws (2021 Edition))

§ 691.1735. Trampoliner; duties

While in a trampoline court, a trampoliner shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Read and follow all posted signs and warnings.

(c) Avoid bodily contact with other trampoliners or spectators.

(d) Not run on trampolines, over pads, or on platforms.

(e) Refrain from acting in a manner that may cause injury to others.

(f) Not participate in a trampoline court when under the influence of drugs or alcohol.

(g) Properly use all trampoline court safety equipment provided.

(h) Not participate in a trampoline court if he or she has a preexisting medical condition, a bone condition, a circulatory condition, a heart or lung condition, a back or neck condition, high blood pressure, or a history of spine, musculoskeletal, or head injury, if he or she has had recent surgery, or if she may be pregnant.

(i) Remove inappropriate attire, including hard, sharp, or dangerous objects, such as buckles, pens, purses, or badges.

(j) Conform with or meet height, weight, or age restrictions imposed by the operator to use or participate in the trampoline court activity.

(k) Avoid crowding or overloading individual sections of the trampoline court.

(l) Use the trampoline court within his or her own limitations, training, and acquired skills.

(m) Avoid landing on the head or neck. Serious injury, paralysis, or death can occur from that activity.

(Added by 2014, Act 11,s 5, eff. 2/18/2014.)


Redmond v. Spring Loaded I, LLC, 349683Court of Appeals of Michigan, May 06, 2021

Redmond v. Spring Loaded I, LLC, 349683Court of Appeals of Michigan, May 06, 2021

Scott Redmond, Plaintiff-Appellant,

v.

Spring Loaded I, LLC, and Spring Loaded III, LLC, Defendants,

and

Spring Loaded II, LLC, doing business as Airtime Trampoline-Sterling Heights, Defendant-Appellee.

No. 349683

Court of Appeals of Michigan

May 6, 2021

UNPUBLISHED

Macomb Circuit Court LC No. 2016-004272-NO

Before: Gleicher, P.J., and K. F. Kelly and Riordan, JJ.

PER CURIAM.

In this tort action, plaintiff appeals as of right the circuit court’s order granting summary disposition in favor of defendant, Spring Loaded II, LLC (Spring Loaded II), under MCR 2.116(C)(10).[ 1] We affirm.

I. FACTS & PROCEDURAL HISTORY

Plaintiff, a 47 year-old, 275 pound man, sustained a severe ankle injury while jumping on a trampoline at a facility owned and operated by Spring Loaded II. Plaintiff’s injury was captured on a surveillance camera. Spring Loaded II’s trampoline court facility is a large room filled with trampolines that are connected to one another by padded frames. Plaintiff’s injury occurred as he attempted to jump from one trampoline to another. He gained momentum to hurdle a two-foot-wide section of padding by jumping near the edge of the trampoline. In doing so, his ankle buckled and he fell onto the trampoline. Although he was in close proximity to the padding, it does not appear that he touched the padding when he landed.

Plaintiff sought to recover damages from Spring Loaded II under a negligence theory and for Spring Loaded II’s alleged failure to comply with the Trampoline Court Safety Act, MCL 691.1731 et seq. After engaging in discovery, Spring Loaded II filed a motion for summary disposition under MCR 2.116(C)(10). The circuit court granted Spring Loaded II’s motion and this appeal followed.

II STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for summary disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. at 160. When considering a motion under MCR 2.116(C)(10), the trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. “A motion under MCR 2.116(C)(10) may only be granted when there is no genuine issue of material fact.” Id. (citation omitted). “A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ.” Id. (citation and quotation marks omitted).

III. ANALYSIS

The circuit court properly granted Spring Loaded II’s motion for summary disposition under MCR 2.116(C)(10).

A. THE TRAMPOLINE COURT SAFETY ACT

Plaintiff argues that summary disposition was inappropriate because there were genuine issues of material fact regarding whether Spring Loaded II violated the Trampoline Court Safety Act and whether the alleged violations caused plaintiff’s injury.[ 2] We disagree.

The Trampoline Court Safety Act prescribes duties and liabilities of trampoline court operators and individuals who use trampoline courts. MCL 691.1737 provides that “[a] trampoliner, spectator, or operator who violates this act is liable in a civil action for damages for the portion of the loss or damage that results from the violation.” Thus, in order to recover under MCL 691.1737, a party must establish both a violation of the Trampoline Court Safety Act and causation. Under MCL 691.1733(b), a trampoline court operator shall “[c]omply with the safety standards specified in ASTM[3] F2970-13, ‘Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts’ published in 2013 by the American society for testing and materials.”

Plaintiff argues that a reasonable trier of fact could find that Spring Loaded II’s failure to develop and communicate patron size restrictions to employees and patrons violated ASTM F2970-13 §§ 6, 9.1, 16.21, 16.22, and A.1.1.4 as well as ASTM F770-11 §§ 4.2 and 4.2.1, thereby causing plaintiff’s injury. However, ASTM F2970-13 § 6 applies only to “designers/engineers or manufacturers” of trampolines and § A.1.1.4 applies only to manufacturers. Spring Loaded II is an operator of a trampoline court facility and plaintiff presented no evidence that Spring Loaded designed or manufactured the trampoline.

ASTM F2970-13 § 9.1 requires trampoline manufacturers to furnish operating and maintenance information to trampoline court operators, and ASTM F2970-13 § 9.2 requires trampoline court operators to permanently affix the operating and maintenance information in a visible location in the trampoline court. ASTM F2970-13 § 9.2.5 requires the operating and maintenance information to include the “[m]aximum total patron weight per trampoline bed and per trampoline court.” Spring Loaded II conceded that the information plate was not posted in the trampoline court facility, and explained that the omission was due to the manufacturer’s failure to provide an information plate for that trampoline. However, even if a reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 § 9.1 by failing to post the information plate, no reasonable trier of fact could find that the omission caused plaintiff’s injury. Under ASTM F2970-13 § 6.8.[ 3], trampoline manufacturers are generally required to design trampolines that are able to support users weighing 300 pounds and plaintiff testified in his deposition that he weighed approximately 275 pounds on the date of his injury. Thus, plaintiff would not have been informed that he exceeded the maximum user weight even if the information plate had been posted. Moreover, plaintiff failed to present any evidence that he would not have used the trampolines if the information plate had been posted.[ 4]

ASTM F2970-13 § 16.21 provides that the operator of a trampoline court facility “may deny entry to the device to any person, if in the opinion of the owner/operator the entry may cause above normal exposure to risk of discomfort or injury to the person who desires to enter . . . .” ASTM F2970-13 § 16.22 provides that “[t]rampoline court attendants should be given guide[]lines on the special considerations concerning patron size, and patrons with physical or mental disabilities or impairments . . . .” However, the word “may” indicates that ASTM F2970-13 § 16.21 is a discretionary provision and does not require trampoline court operators to deny entry to individuals that may have above normal exposure of risk to discomfort or injury. Moreover, plaintiff presented no evidence that any employees at Spring Loaded II believed plaintiff to be at an above normal risk of injury and considered exercising their discretion to deny entry to plaintiff. Furthermore, although Spring Loaded II should have given trampoline court attendants guidelines on the special considerations concerning patron size, ASTM F2970-13 § 16.22 did not require Spring Loaded II to do so in the instant matter. See In re Forfeiture of Bail Bond, 496 Mich. 320, 328; 852 N.W.2d 747 (2014) (noting that the significance of a statutory amendment changing “should” to “shall” is that the statute becomes mandatory). Therefore, no reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 §§ 16.21 or 16.22 by not advising its attendants regarding any risks associated with a 275 pound patron. In addition, the language in ASTM F770-11 §§ 4.2 and 4.2.1 is almost identical to the language in ASTM F2970-13 §§ 16.21 and 16.22, and therefore, that plaintiff’s arguments with respect to those provisions fail for the same reasons.

Plaintiff next argues that a reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 §§ 6.1 and 14.2, as well as ASTM F770-11 §§ 4.1, 8.1, and 8.3, by failing to develop and communicate information regarding the risks associated with jumping near the edge of the trampoline bed or the risks associated with jumping from one trampoline to another, thereby causing plaintiff’s injury. We disagree.

ASTM F2970-13 § 6.1 applies to designers, engineers, and manufacturers of trampolines, and as previously stated, plaintiff presented no evidence that Spring Loaded II was anything other than an operator of a trampoline facility. Additionally, ASTM F2970-13 § 14.2 requires trampoline court owners and operators to “notify the appropriate manufacturer(s) of any known incident as specified in Practice F770-11 Section 8.3.” F770-11 § 8.3 requires notification of incidents that result in a serious injury within seven days of the occurrence of the incident and incorporates F770-11 § 8.1, which states that owners and operators should complete an incident report including information regarding the injury. The use of the word “should” indicates that completing an incident report in accordance with F770-11 § 8.1 is discretionary. See In re Forfeiture of Bail Bond, 496 Mich. at 328 (noting that the significance of a statutory amendment changing “should” to “shall” is that the statute becomes mandatory). Additionally, Spring Loaded II’s obligation to notify the manufacturer of plaintiff’s injury could not have arisen until after plaintiff’s injury occurred. Thus, even assuming Spring Loaded II failed to notify the trampoline manufacturer of plaintiff’s injury, no reasonable trier of fact could find that the failure to do so caused plaintiff’s injury. Similarly, F770-11 § 4.1 requires owners and operators to “read and become familiar with the contents of the manufacturer’s recommended operating instructions and specifications, when received[, ]” and to prepare an “operating fact sheet” that shall be made available to trampoline court attendants. F770-11 § 4.1 does not mandate providing any information to patrons, and plaintiff failed to present any evidence that the manufacturer’s recommended operating instructions addressed an increased risk associated with jumping near the edge of a trampoline or jumping from one trampoline to another. Thus, no reasonable trier of fact could find that Spring Loaded II’s alleged failure to provide an operating fact sheet to trampoline court attendants caused plaintiff’s injury.

B. DUTY TO WARN

Plaintiff argues that there is a genuine issue of material fact regarding whether Spring Loaded II breached its duty to warn plaintiff of the risks associated with jumping on a trampoline at higher weights or the risks associated with jumping from one trampoline to another. We disagree.

MCL 691.1736 provides: An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoliner that are not otherwise attributable to the operator’s breach of his or her common[-]law duties.

The surveillance video shows that plaintiff’s injury occurred just before he attempted to jump from one trampoline to another. Plaintiff jumped on the trampoline in order to gain momentum to traverse a small section of padded frame that joined the two trampolines. While jumping near the padded section, but before traversing the frame, plaintiff’s ankle buckled and he fell onto the trampoline. Based upon the surveillance video, there is no genuine issue of material fact regarding whether plaintiff accepted the inherent danger of sustaining an injury from landing on the trampoline or trampoline pad. Accordingly, plaintiff cannot recover unless his injury was otherwise attributable to Spring Loaded II’s breach of its common-law duties. MCL 691.1736.

Plaintiff contends that product sellers have a duty to transmit safety-related information when they know or should know that the buyer or user is unaware of the information, and this duty may be attributed to a successor in possession of the product. Plaintiff posits that Spring Loaded II had a duty to transmit safety-related information to its patrons regarding the increased risks associated with patron weight and jumping from one trampoline to another because Spring Loaded II was a successor in possession of trampolines. In support of this premise, plaintiff relies upon Foster v Cone-Blanchard Mach Co, 460 Mich. 696, 707; 597 N.W.2d 506 (1999), in which our Supreme Court held that “in certain circumstances a successor may have an independent duty to warn a predecessor’s customer of defects in a predecessor’s product.” However, plaintiff failed to present any evidence that there were defects in the trampoline, and therefore, plaintiff’s reliance on Foster is misplaced. Thus, there is no genuine issue of material fact regarding whether Spring Loaded II had a duty to warn in this regard.

Moreover, there is no genuine issue of material fact regarding causation because plaintiff failed to present any evidence that he would not have used the trampolines if he had been warned about the increased risk of injury associated with higher weight or jumping from one trampoline to another.[ 5]

IV. CONCLUSION

The circuit court properly granted Spring Loaded II’s motion for summary disposition under MCR 2.116(C)(10). Accordingly, we affirm.

Gleicher, J. (concurring in part and dissenting in part)

Plaintiff Scott Redmond sustained a devastating ankle injury when he landed improperly on a trampoline. Redmond brought a negligence claim against defendant Spring Loaded II, LLC, the owner and operator of the trampoline park where the accident occurred. The Trampoline Safety Act, MCL 691.1731 et seq., governs Redmond’s claim. The act imposes certain safety standards on trampoline manufacturers and operators, but also limits liability through an assumption of the risk provision, as follows: An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoline are that are not otherwise attributable to the operator’s breach of his or her common law duties. [MCL 691.1736.] [1]

Despite this provision, if an injured plaintiff establishes a violation of one of the specific duties of care imposed under the act, the plaintiff may recover damages to the extent that the defendant’s violations caused the injury. MCL 691.1737; see also Rusnak v Walker, 273 Mich.App. 299, 304; 729 N.W.2d 542 (2006) (construing virtually identical language in the in the Ski Area Safety Act, MCL 408.321 et seq.).

The majority holds that defendant did not violate any of the specific safety standards set forth in the act, and I agree. Unfortunately for trampoline users, few of the safety standards referenced in the act apply to trampoline court operators. But despite that plaintiff’s claim for damages arising from defendant’s alleged safety standard violations must fail for the reasons discussed by the majority, I would hold that plaintiff’s common-law failure to warn claim survives.

Plaintiff alleges that his injury occurred when he landed on the foam padding between two trampolines as he attempted to jump from one trampoline to the other, and that defendant failed to warn of the danger of jumping from trampoline to trampoline. The majority rejects that plaintiff landed on the foam padding. According to the majority’s interpretation of a surveillance video, “[a]lthough he was in close proximity to the padding, it does not appear that he touched the padding when he landed.”

I disagree with the majority’s interpretation of the video, and I further object to the majority’s usurpation of the fact-finding role reserved to the jury. I have watched the video at least a dozen times, and it appears to me that a portion of Redmond’s foot did, in fact, come in contact with the foam padding. It is a close question: a paradigmatic issue of fact. The video was created from a single camera pointed in a single direction. It captures only one angle of view. It is impossible to discern from the video exactly where Redmond’s foot landed as he completed his final jump. Redmond testified that he landed on the foam padding, and the video does not blatantly contradict his testimony. For that reason, the majority errs by finding otherwise. See Scott v Harris, 550 U.S. 372, 378-381; 127 S.Ct. 1769; 167 L.Ed.2d 686 (2007). Viewing the evidence in the light most favorable to Redmond, a question of fact exists regarding where his foot made contact. For summary disposition purposes, we must assume that Redmond landed on the pad between trampolines, as he testified, rather than on the trampoline itself.

Plaintiff’s expert witness, Dr. Marc Rabinoff, authored a lengthy report detailing the dangers of jumping from one trampoline to another. He explained that “[t]rampolines are not designed to have persons jump on the edge of the trampoline bed near the frame,” and generally “are not designed for lateral movement, including the lateral movement required to jump from one bed, over the frame, and on to another bed.” Dr. Rabinoff opined that “there is a substantial increase in the risk of injury to persons who jump on the edge of the trampoline bed near the frame or who are jumping laterally from one trampoline bed to another.” He stressed: Notably, there is nothing inherent about a trampoline park that requires a user to jump near the edge of a trampoline bed. Nor is there anything inherent about a trampoline park that requires a user to jump from one trampoline bed over the frame and padding and on to another trampoline bed.

Dr. Rabinoff concluded that “the proximity of the trampoline beds, coupled with the absence of any signage prohibiting the practice, supports the conclusion that jumping from one bed to another was promoted by the owner/operator at the time of Mr. Redmond’s injury,” and that Spring Loaded failed to warn “that jumping near the edge of the trampoline bed, or using the trampoline for lateral propulsion, or jumping over the frame from one trampoline bed to another, materially increased the risks to users beyond the risk that is normally associated with jumping on a single trampoline bed.”

Based on Dr. Rabinoff’s testimony, I would hold that Redmond has established a jury question regarding whether jumping from one trampoline to another is an inherent risk of the activity. If it is not, Redmond did not accept a risk of injury by attempting this maneuver, and should be entitled to present his negligence claim to a jury.

My analysis considers the language of MCL 691.1736, which states that “obvious and necessary dangers” that “inhere[]” in the sport of trampolining include “injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoline that are not otherwise attributable to the operator’s breach of his or her common law duties.” I am aware that this Court has applied the last antecedent canon in interpreting a similarly worded statute in the Roller Skating Safety Act, MCL 445.1721 et seq., holding that the Legislature meant to eliminate a cause of action for a breach of a common-law duty only when an “object or artificial structure” is in the path of travel. Dale v Beta-C, Inc, 227 Mich.App. 57, 69; 574 N.W.2d 697 (1997) (“[W]e hold that the only enumerated risk that is limited by an operator’s breach of a common-law duty is for injuries ‘which involve objects or artificial structures properly within the intended travel of the roller skater.’ “).

In my view, Dale improperly applied the last antecedent canon, and this Court should not make the same mistake in the context of the statute now at issue. Our Supreme Court has cautioned that “the last antecedent rule should not be applied if ‘something in the statute requires a different interpretation’ than the one that would result from applying the rule.” Dye v Esurance Prop & Cas Ins Co, 504 Mich. 167, 192; 934 N.W.2d 674 (2019), quoting Hardaway v Wayne Co, 494 Mich. 423, 428; 835 N.W.2d 336 (2013). “[T]he last antecedent rule does not mandate a construction based on the shortest antecedent that is grammatically feasible; when applying the last antecedent rule, a court should first consider what are the logical metes and bounds of the ‘last’ antecedent.” Hardaway, 494 Mich. at 429.

A natural construction of the language of MCL 691.1736 suggests that the clause “that are not otherwise attributable to the operator’s breach of his or her common law duties” qualifies the term “injuries” and should be applied to all forms of trampolining “injuries,” rather than being artificially limited to the statute’s final clause. [2] Indisputably, common-law duties of care attend to all facets of trampolining, including the conduct of “other trampoliners or other spectators,” maintenance and inspection of the “trampoline, pad, or platform,” and the substance of the warnings owed to trampoliners at a commercially operated trampoline park. It makes no sense, logically or linguistically, that the Legislature would carve out a single aspect of trampolining for common-law application, leaving the others unaffected.

In Dale, 227 Mich.App. at 69, this Court’s analysis centered on the absence of a comma at the end of the last “injuries” clause: “Proper syntax provides that commas usually set off words, phrases, and other sentence elements that are parenthetical or independent.” The absent comma, the Court ruled, meant that the phrase “not otherwise attributable to the operator’s breach of his or her common law duties” applies only to the last clause. Id. at 68-69. I cannot agree that punctuation is decisive, particularly when the sense of the paragraph leads to a different conclusion than would be dictated by a rigid application of the last antecedent rule. “When the sense of the entire act requires that a qualifying word or phrase apply to several preceding or succeeding sections, the word or phrase will not be restricted to its immediate antecedent.” 2A Sutherland, Statutes and Statutory Constructions (7th ed), § 47.33.

The context of MCL 691.1736 supports that all four described forms of trampolining injuries (resulting from “collisions with other trampoliners or other spectators,” “falls,” “landing on the trampoline, pad, or platform,” and those that involve “objects or artificial structures properly within the intended travel of the trampoliner”) are inherent risks of the activity unless they are “otherwise attributable to the operator’s breach of his or her common law duties.” That “duties” is plural reinforces my view that the term applies to more than just the final form of injury. See, e.g., Duffy v Dep’t of Natural Resources, 490 Mich. 198, 221; 805 N.W.2d 399 (2011). I would reverse the trial court’s grant of summary disposition and would remand for trial regarding whether Redmond accepted an inherent risk when he attempted to jump from one trampoline to the next, and whether a common-law duty required defendant to warn him of the risks of that activity.

Notes:

[ 1] Spring Loaded I, LLC, Spring Loaded II, LLC, and Spring Loaded III, LLC are separate franchises of an entity named Airtime International, and are owned by the parent company Spring Loaded LLC. Spring Loaded I, LLC and Spring Loaded III, LLC were dismissed from the case below and are not part of this appeal.

[ 2] Plaintiff argues in his reply brief that the issue of causation was not properly before the circuit court because it was not raised by Spring Loaded II when seeking summary disposition. We disagree. Under MCR 2.116(G)(4), “[a] motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact.” Spring Loaded II addressed the issue of proximate cause in its April 17, 2019 supplemental brief in support of its motion for summary disposition. Specifically, Spring Loaded II rebutted the opinion of plaintiff’s expert that Spring Loaded II’s failure to develop and communicate weight restrictions contributed to plaintiff’s injuries. Spring Loaded II argued that the expert’s opinion regarding causation was mere speculation and plaintiff’s injury was caused solely by plaintiff’s improper landing technique rather than any alleged violation of the Trampoline Court Safety Act.

[ 3] ASTM is an acronym for the American Society for Testing and Materials.

[ 4] Although plaintiff stated in an affidavit that he would not have used the trampolines if he had been warned about the increased risk of injury associated with higher weight, plaintiff’s affidavit was filed as part of plaintiff’s motion for reconsideration after the circuit court granted summary disposition in favor of Spring Loaded II. When reviewing an order granting or denying summary disposition, we consider only the evidence that was properly presented to the trial court in deciding the motion. Village of Edmore v Crystal Automation Sys Inc, 322 Mich.App. 244, 262; 911 N.W.2d 241 (2017). We will not consider evidence on appeal that was first presented in a subsequent motion for reconsideration. Innovative Adult Foster Care, Inc v Ragin, 285 Mich.App. 466, 474 n 6; 776 N.W.2d 398 (2009). Thus, we do not consider plaintiff’s affidavit here.

[ 5] Although plaintiff stated in an affidavit that he would not have used the trampolines if he had been warned about the increased risks, plaintiff’s affidavit was filed after the circuit court granted summary disposition in favor of Spring Loaded II. Thus, we will not consider it in this appeal. Village of Edmore, 322 Mich.App. at 262; Innovative Adult Foster Care, Inc, 285 Mich.App. at 474 n 6.

[1] In Felgner v Anderson, 375 Mich. 23, 39-40; 133 N.W.2d 136 (1965), the Michigan Supreme Court eliminated the assumption of the risk defense in tort cases. The Trampoline Safety Act resurrects the doctrine in trampoline-associated negligence claims.

[2] By way of reminder, here is the language. I have highlighted the words leading to the mosty natural reading: An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoline are that are not otherwise attributable to the operator’s breach of his or her common law duties. [MCL 691.1736.]


Michigan Trampoline Statute protects Trampoline Operator from claims that he violated ANSI standards.

Statute did not require nor did the ANSI requirement state that the defendant trampoline park needed to tell the plaintiff, he was too fat and unskilled to jump on the trampoline.

Redmond v. Spring Loaded I, LLC, 349683Court of Appeals of Michigan, May 06, 2021

State: Michigan

Plaintiff: Scott Redmond

Defendant: Spring Loaded I, LLC, and Spring Loaded III, LLC, Defendants, and Spring Loaded II, LLC, doing business as Airtime Trampoline-Sterling Heights

Plaintiff Claims: Failure to comply with Michigan’s Trampoline Court Safety Act, MCL 691.1731 et seq.

Defendant Defenses: It complied with the Michigan’s Trampoline Court Safety Act, MCL 691.1731 et seq.

Holding: For the Defendant

Year: 2021

Summary

A 47-year-old 275 man was injured while attempting to jump from one trampoline to another at the defendant’s trampoline facility. He claimed the defendant had a duty to warn him of the risks and failed to follow ANSI standards.

The court found the plaintiff assumed the risks, so there was no duty to warn and ANSI standards were created for manufacturers and designers of trampolines, not operators.

Facts

Plaintiff, a 47 year-old, 275 pound man, sustained a severe ankle injury while jumping on a trampoline at a facility owned and operated by Spring Loaded II. Plaintiff’s injury was captured on a surveillance camera. Spring Loaded II’s trampoline court facility is a large room filled with trampolines that are connected to one another by padded frames. Plaintiff’s injury occurred as he attempted to jump from one trampoline to another. He gained momentum to hurdle a two-foot-wide section of padding by jumping near the edge of the trampoline. In doing so, his ankle buckled and he fell onto the trampoline. Although he was in close proximity to the padding, it does not appear that he touched the padding when he landed.

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

This is simply an interpretation of a surveillance video and the application of a statute to what the court saw on the video. The statute is the Michigan Trampoline Court Safety Act, § 691.1731 et. seq.

§ 691.1731. Short title This act shall be known and may be cited as the ‘trampoline court safety act’.”

Mich. Comp. Laws 691.1731 Short title

§ 691.1733. Operator; duties

An operator shall do all of the following:

(a) Post the duties of trampoliners and spectators as prescribed in this act and the duties, obligations, and liabilities of operators as prescribed in this act in conspicuous places.

(b) Comply with the safety standards specified in ASTM F2970 – 13, “Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts” published in 2013 by the American society for testing and materials.

(c) Maintain the trampoline court according to the safety standards cited in subdivision (b).

(d) Maintain the stability and legibility of all required signs, symbols, and posted notices.

§ 691.1735. Trampoliner; duties

While in a trampoline court, a trampoliner shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Read and follow all posted signs and warnings.

(c) Avoid bodily contact with other trampoliners or spectators.

(d) Not run on trampolines, over pads, or on platforms.

(e) Refrain from acting in a manner that may cause injury to others.

(f) Not participate in a trampoline court when under the influence of drugs or alcohol.

(g) Properly use all trampoline court safety equipment provided.

(h) Not participate in a trampoline court if he or she has a preexisting medical condition, a bone condition, a circulatory condition, a heart or lung condition, a back or neck condition, high blood pressure, or a history of spine, musculoskeletal, or head injury, if he or she has had recent surgery, or if she may be pregnant.

(i) Remove inappropriate attire, including hard, sharp, or dangerous objects, such as buckles, pens, purses, or badges.

(j) Conform with or meet height, weight, or age restrictions imposed by the operator to use or participate in the trampoline court activity.

(k) Avoid crowding or overloading individual sections of the trampoline court.

(l) Use the trampoline court within his or her own limitations, training, and acquired skills.

(m) Avoid landing on the head or neck. Serious injury, paralysis, or death can occur from that activity.

The simple analysis of the plaintiff’s argument is the ANSI code which applies to the manufacturing of Trampolines was not met by the defendant, and the defendant did not pass on required notices established by the code to the plaintiff.

The first issue was defendants failed to pass on the size restrictions that ANSI requirements might require. The court denied this argument by stating the ANSI code applied to manufacturers not trampoline owners or operators.

However, ASTM F2970-13 § 6 applies only to “designers/engineers or manufacturers” of trampolines and § A.1.1.4 applies only to manufacturers. Spring Loaded II is an operator of a trampoline court facility and plaintiff presented no evidence that Spring Loaded designed or manufactured the trampoline.

The next issue was ANSI required an operation’s plate to be firmly affixed to the trampoline. The defendant argued there was no operation’s plate because the trampoline did not come with one. The operation’s information was to include the maximum size of someone allowed on the trampoline. At the time of his injury, the plaintiff testified in his deposition; he weighed 275 pounds.

The court struck this argument down because the failure to post the plate was not the cause of the plaintiff’s injury. There must be a causal connection, proximate cause, to prove negligence. Generally, the court found trampolines are designed to hold 300 lbs., so that would not have changed the issues with the plaintiff since he weighed less than the design of the trampoline. Finally, there was no argument by the plaintiff that if the information were posted, he would not have used the trampoline.

However, even if a reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 § 9.1 by failing to post the information plate, no reasonable trier of fact could find that the omission caused plaintiff’s injury. Under ASTM F2970-13 § 6.8.[ 3], trampoline manufacturers are generally required to design trampolines that are able to support users weighing 300 pounds and plaintiff testified in his deposition that he weighed approximately 275 pounds on the date of his injury. Thus, plaintiff would not have been informed that he exceeded the maximum user weight even if the information plate had been posted. Moreover, plaintiff failed to present any evidence that he would not have used the trampolines if the information plate had been posted.

The plaintiff argued the defendant violated an ANSI standard for:

…failing to develop and communicate information regarding the risks associated with jumping near the edge of the trampoline bed or the risks associated with jumping from one trampoline to another, thereby causing plaintiff’s injury.

Again, the court struck this down because the ANSI standard was for designers and manufacturers not operators. The standard argued by the plaintiff that was not met also had a duty to inform the manufacture of any incident within seven days of the incident which was not done in this case. Again, the failure to notify the manufacture of the incident within seven days was not the cause of the plaintiff’s injury.

The plaintiff next argued the defendant had a duty to warn of the risks of jumping on a trampoline when you were fat or the risks of jumping from one trampoline to another.

The court found the defendant did not have a duty to warn of jumping on a trampoline near the edge or jumping from one trampoline to another. The statute states “An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary.” An assumption of the risk statement set out in the statute. Based on the video, the plaintiff clearly accepted the risks of his actions and as such assumed the risk requiring no duty to warn on the part of the defendant.

The plaintiff argued:

Plaintiff contends that product sellers have a duty to transmit safety-related information when they know or should know that the buyer or user is unaware of the information, and this duty may be attributed to a successor in possession of the product. Plaintiff posits that Spring Loaded II had a duty to transmit safety-related information to its patrons regarding the increased risks associated with patron weight and jumping from one trampoline to another because Spring Loaded II was a successor in possession of trampolines.

However, this argument fails because it speaks to defects in the product. In this case, there were no defects in the trampoline that caused the plaintiff’s injuries.

There was a dissent in the decision. The dissenting judge agreed with the majority that there was no violation of the Michigan Trampoline Safety Act. However, the dissent did believe that there was a valid failure to warn claim. This argument stems from the dissenting judges view of the video where he believes the plaintiff’s toe touched the foam padding at the edge of the trampoline, leading to a requirement on the part of the defendant to warn patrons of jumping from mat to mat. Because the dissenting judge viewed the video differently than from the majority, he felt that factual issues should be allowed to go to the jury.

However, the dissent is just that, a minority opinion and the majority opinion is the way the decision is handled.

The circuit court properly granted Spring Loaded II’s motion for summary disposition under MCR 2.116(C)(10). Accordingly, we affirm.

So Now What?

  1. The defendant should immediately post notices of the dangers of jumping from trampoline to trampoline and other risks. Just because the defendant won the appeal does not mean that the dissent is not an important legal analysis that can be ignored.
    1. Included in those warnings should be one about fitness and weight of anyone jumping.
  2. The defendant should use a release. A release in Michigan would have stopped this lawsuit sooner or might have prevented it from starting.
  3. I would even post the Michigan Trampoline Safety Act duties required of a patron, and the risks accepted by a patron.

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Coal Rolling Texas Teenager gets 6 Felony counts for Running Over 6 Cyclists

https://lnkd.in/gVWeiVQE

State:

Teenager in diesel pick up had rolled coal or intentional blew diesel smoke in the cyclists faces. However, as he did that he lost control and ran over 6 of the cyclists. The teenager was not charged at the scene, creating an outcry, even in Texas for letting him go.

Now a grand jury has charged the 16-year-old 6 felony aggravated assault with a deadly weapon charges

Why Is This Interesting?

Even Texas may be coming around and recognizing cyclists as having the legal right to be on the roads.

@RecreationLaw #CylingLaw #CyclistsNotInvisible #RecLaw #RecreationLaw

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Man sues kayak rental company after falling in Tampa Bay, allegedly catching flesh-eating bacteria

https://buff.ly/3C5VEgX

State: Florida

The plaintiff rented a kayak from the defendant on Tampa Bay. The seat was not working so an attendant adjusted the seat. After paddling away, the seat failed and the man fell out of the kayak.

He obviously could not re-enter the kayak, so he swam to the put in and tied up the kayak and then swam around looking for an exit. While attempting to get out of the water, he scraped his leg.

He went back to the rental agency and demanded a refund. The agency was dumb enough not to return his money. Mistake
2.

The next day the man developed flesh-eating bacteria and went to the hospital.

Mistake 1 is not having a release (or one that is reported in the article)

Why Is This Interesting?

Based on the article the lawsuit sounds like an admiralty case based on a bad boat charter.

Robert Williams and Ailey Penningroth filed a complaint on September 22 in Hillsborough County Circuit Court against Bay Breeze Paddle Adventures LLC (BBPA) d/b/a Tampa Bay Sup for negligence, breach of charter and loss of consortium.

#Paddling.com @RecreationLaw #Paddlesports #PaddleSportsLaw #RecLaw #RecreationLaw

What do you think? Leave a comment below.

Copyright 2020 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

Email: Jim@Rec-Law.US

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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,


Code of the District of Columbia: Chapter 39. Consumer Protection Procedures

Code of the District of Columbia

Chapter 39. Consumer Protection Procedures.

§ 28–3901. Definitions and purposes.    1

§ 28–3902. Department of Consumer and Regulatory Affairs as consumer protection agency.    4

§ 28–3903. Powers of the consumer protection agency.    5

§ 28–3904. Unfair or deceptive trade practices.    10

§ 28–3905. Complaint procedures.    14

§ 28–3906. Consumer education and information.    22

§ 28–3907. Advisory Committee on Consumer Protection.    23

§ 28–3908. Severability.    24

§ [28-3909.01]. Attorney General Authority.    24

§ 28–3910. Investigatory powers of Attorney General [for the District of Columbia].    25

§ 28–3911. District of Columbia Consumer Protection Fund. [Repealed]    26

§ 28–3912. Submissions to the Council.    27

§ 28–3913. Rules.    27

§ 28–3901. Definitions and purposes.

(a) As used in this chapter, the term —

(1) “person” means an individual, firm, corporation, partnership, cooperative, association, or any other organization, legal entity, or group of individuals however organized;

(2) “consumer” means:

(A) When used as a noun, a person who, other than for purposes of resale, does or would purchase, lease (as lessee), or receive consumer goods or services, including as a co-obligor or surety, or does or would otherwise provide the economic demand for a trade practice;

(B) When used as an adjective, describes anything, without exception, that:

(i) A person does or would purchase, lease (as lessee), or receive and normally use for personal, household, or family purposes; or

(ii) A person described in § 28-3905(k)(1)(B) or (C) purchases or receives in order to test or evaluate qualities pertaining to use for personal, household, or family purposes.

(3) “merchant” means a person, whether organized or operating for profit or for a nonprofit purpose, who in the ordinary course of business does or would sell, lease (to), or transfer, either directly or indirectly, consumer goods or services, or a person who in the ordinary course of business does or would supply the goods or services which are or would be the subject matter of a trade practice;

(4) “complainant” means one or more consumers who took part in a trade practice, or one or more persons acting on behalf of (not the legal representative or other counsel of) such consumers, or the successors or assigns of such consumers or persons, once such consumers or persons complain to the Department about the trade practice;

(5) “respondent” means one or more merchants alleged by a complainant to have taken part in or carried out a trade practice, or the successors or assigns of such merchants, and includes other persons who may be deemed legally responsible for the trade practice;

(6) “trade practice” means any act which does or would create, alter, repair, furnish, make available, provide information about, or, directly or indirectly, solicit or offer for or effectuate, a sale, lease or transfer, of consumer goods or services;

(7) “goods and services” means any and all parts of the economic output of society, at any stage or related or necessary point in the economic process, and includes consumer credit, franchises, business opportunities, real estate transactions, and consumer services of all types;

(8) “Department” means the Department of Consumer and Regulatory Affairs;

(9) “Director” means the Director of the Department of Consumer and Regulatory Affairs;

(10) “Chief of the Office of Compliance” means the senior administrative officer of the Department’s Office of Compliance who is delegated the responsibility of carrying out certain duties specified under section 28-3905;

(11) “Office of Adjudication” means the Department’s Office of Adjudication which is responsible for carrying out certain duties specified under section 28-3905;

(12) “Office of Consumer Protection” means the Department’s Office of Consumer Protection which is responsible for carrying out the statutory requirements set forth in § 28-3906; and

(13) “Committee” means the Advisory Committee on Consumer Protection which is responsible for carrying out the statutory requirements set forth in section 28-3907.

(14) “nonprofit organization” means a person who:

(A) Is not an individual; and

(B) Is neither organized nor operating, in whole or in significant part, for profit.

(15) “public interest organization” means a nonprofit organization that is organized and operating, in whole or in part, for the purpose of promoting interests or rights of consumers.

(b) The purposes of this chapter are to:

(1) assure that a just mechanism exists to remedy all improper trade practices and deter the continuing use of such practices;

(2) promote, through effective enforcement, fair business practices throughout the community; and

(3) educate consumers to demand high standards and seek proper redress of grievances.

(c) This chapter shall be construed and applied liberally to promote its purpose. This chapter establishes an enforceable right to truthful information from merchants about consumer goods and services that are or would be purchased, leased, or received in the District of Columbia.

(d) In construing the term “unfair or deceptive trade practice” due consideration and weight shall be given to the interpretation by the Federal Trade Commission and the federal courts of the term “unfair or deceptive act or practice,” as employed in section 5(a) of An Act To create a Federal Trade Commission, to define its powers and duties, and for other purposes, approved September 26, 1914 (38 Stat. 719; 15 U.S.C. § 45(a)).

(July 22, 1976, D.C. Law 1-76, § 2, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 8, 1991, D.C. Law 8-234, § 2(b), 38 DCR 296; Feb. 5, 1994, D.C. Law 10-68, § 27(b), 40 DCR 6311; Apr. 9, 1997, D.C. Law 11-255, § 27(u), 44 DCR 1271; Oct. 19, 2000, D.C. Law 13-172, § 1402(b), 47 DCR 6308; Oct. 20, 2005, D.C. Law 16-33, § 2032(b), 52 DCR 7503; June 12, 2007, D.C. Law 17-4, § 2(a), 54 DCR 4085; Apr. 23, 2013, D.C. Law 19-282, § 2(b)(1), 60 DCR 2132; July 17, 2018, D.C. Law 22-140, § 2(b), 65 DCR 5970.)

Prior Codifications

1981 Ed., § 28-3901.

1973 Ed., T. 28, Appx., § 2.

Section References

This section is referenced in § 1-350.10, § 28-3301, and § 28-3905.

Effect of Amendments

D.C. Law 13-172 in subsec. (b)(1) inserted “and deter the continuing use of such practices” following “practices” in subsec. (b)(1) and added subsec. (c) providing for liberal construction of the chapter.

D.C. Law 16-33 rewrote subsec. (a)(12), which had read:

“(12) ‘Office of Consumer Education and Information’ means the Department’s Office of Consumer Education and Information which is responsible for carrying out the statutory requirements set forth in section 28-3906; and”

D.C. Law 17-4 rewrote subsec. (a)(3), which had read as follows: “(3) ‘merchant’ means a person who does or would sell, lease (to), or transfer, either directly or indirectly, consumer goods or services, or a person who does or would supply the goods or services which are or would be the subject matter of a trade practice;”.

The 2013 amendment by D.C. Law 19-282 rewrote (a)(2); added (a)(14) and (a)(15); and added the last sentence in (c).

Cross References

Automobile Consumer Protection Act, see § 50-501 et seq.

Employer-paid personnel services, operation requirements, see § 32-406.

Employment agencies and counseling services, operation requirements, see §§ 32-404 and 32-405.

Job listing services, operation requirements, see § 32-407.

Emergency Legislation

For temporary (90-day) amendment of section, see § 1402(b) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) amendment of section, see § 1402(b) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 day) amendment of section, see § 2032(b) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

Short Title

Short title of subtitle D of title II of Law 16-33: Section 2031 of D.C. Law 16-33 provided that subtitle D of title II of the act may be cited as the Department of Consumer and Regulatory Affairs Consumer Protection Revitalization Act of 2005.

Delegation of Authority

Delegation of authority pursuant to Law 1-76, see Mayor’s Order 86-132, August 12, 1986.

§ 28–3902. Department of Consumer and Regulatory Affairs as consumer protection agency.

(a) The Department of Consumer and Regulatory Affairs shall be the principal consumer protection agency of the District of Columbia government and shall carry out the purposes of this chapter.

(b) Repealed.

(c) The Director of the Department of Consumer and Regulatory Affairs shall exercise the powers set forth in section 28-3905 through the Office of Compliance, and shall appoint a Chief of the Office of Compliance from among active members of the unified District of Columbia Bar. The Chief of the Office of Compliance may carry out investigative, conciliatory, and other duties assigned by the Director.

(d) Repealed.

(e) The Mayor shall appoint one or more attorneys qualified to serve as administrative law judges or attorney examiners to conduct adjudicatory proceedings. Any administrative law judge or attorney examiner appointed pursuant to this subsection may hear cases pursuant to § 2-1801.03.

(f) Repealed.

(g) Repealed.

(h) Repealed.

(i) Notwithstanding any other provision of District law, enforcement of this chapter by the Department of Consumer and Regulatory Affairs is suspended until October 1, 2002. This subsection shall not prevent the Department of Consumer and Regulatory Affairs from cooperating with, and making appropriate referrals to, another law enforcement agency.

(July 22, 1976, D.C. Law 1-76, § 3, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 5, 1981, D.C. Law 3-159, § 2(a), 27 DCR 5147; Oct. 5, 1985, D.C. Law 6-42, § 422, 32 DCR 4450; Mar. 8, 1991, D.C. Law 8-234, § 2(c), 38 DCR 296; Mar. 8, 1991, D.C. Law 8-237, § 4, 38 DCR 314; Feb. 5, 1994, D.C. Law 10-68, § 27(a), (c), 40 DCR 6311; Sept. 26, 1995, D.C. Law 11-52, § 812, 42 DCR 3684; Apr. 9, 1997, D.C. Law 11-255, § 27(v), 44 DCR 1271; Apr. 29, 1998, D.C. Law 12-86, § 1301(a), 45 DCR 1172; Mar. 26, 1999, D.C. Law 12-175, § 1403, 45 DCR 7193; Apr. 20, 1999, D.C. Law 12-264, § 27(b), 46 DCR 2118; Oct. 19, 2000, D.C. Law 13-172, § 1402(c), 47 DCR 6308.)

Prior Codifications

1981 Ed., § 28-3902.

1973 Ed., T. 28, Appx., § 3.

Effect of Amendments

D.C. Law 13-172 in subsec. (i) substituted 2002 for 2000 and added a new sentence at the end thereof providing cooperating with and making referrals to another law enforcement agency.

Cross References

Prescription drug price posting, enforcement, cease and desist orders, see § 48-804.03.

Prescription drug price posting, informational posters provided to pharmacies, see § 48-801.02.

Emergency Legislation

For temporary amendment of section, see § 811 of the Omnibus Budget Support Congressional Review Emergency Act of 1995 (D.C. Act 11-124, July 27, 1995, 42 DCR 4160).

For temporary amendment of section, see § 503 of the Health Insurance Portability and Accountability Federal Law Conformity Emergency Amendment Act of 1998 (D.C. Act 12-339, May 4, 1998, 45 DCR 2947) and § 503 of the Health Insurance Portability and Accountability Federal Law Conformity, Motor Vehicle Insurance, Regulatory Reform, and Consumer Law Congressional Review Emergency Amendment Act of 1998 (D.C. Act 12-429, August 6, 1998, 45 DCR 5890).

For temporary amendment of section, see § 1003 of the Fiscal Year 1999 Budget Support Emergency Act of 1998 (D.C. Act 12-401, July 13, 1998, 45 DCR 4794) and § 1003 of the Fiscal Year 1999 Budget Support Congressional Review Emergency Act of 1998 (D.C. Act 12-564, January 12, 1999, 46 DCR 669).

For temporary (90-day) amendment of section, see § 1003 of the Fiscal Year 1999 Budget Support Congressional Review Emergency Act of 1999 (D.C. Act 13-41, March 31, 1999, 46 DCR 3446).

For temporary (90-day) amendment of section, see § 1402(c) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) amendment of section, see § 1402(c) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

Temporary Legislation

For temporary (225 day) amendment of section, see § 503 of Health Insurance Portability and Accountability Federal Law Conformity, Motor Vehicle Insurance, Regulatory Reform, and Consumer Law Temporary Amendment Act of 1998 (D.C. Law 12-154, September 18, 1998, law notification 45 DCR 6951).

§ 28–3903. Powers of the consumer protection agency.

*NOTE: This section includes amendments by temporary legislation that will expire on February 4, 2022. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*

(a) The Department, in its discretion, may:

(1) receive and investigate any consumer complaint and initiate its own investigation of deceptive, unfair, or unlawful trade practices against consumers where the:

(i) amount in controversy totals $250 or more; or

(ii) case, or cases, indicates a pattern or practice of abuse on the part of a business or industry;

(2) issue summonses and subpoenas to compel the production of documents, papers, books, records, and other evidence, hold hearings, compel the attendance of witnesses, administer oaths, and take the testimony of any person under oath, concerning any trade practice;

(3) issue cease and desist orders with respect to trade practices determined to be in violation of District law by the Department;

(4) report to appropriate governmental agencies any information concerning violation of any law;

(5) present the interest of consumers before administrative and regulatory agencies and legislative bodies;

(6) assist, advise, and cooperate with private, local and federal agencies and officials to protect and promote the interest of the District of Columbia consumer public;

(7) assist, develop, and conduct programs of consumer education and information through public hearings, meetings, publications, or other materials prepared for distribution to the consumer public of the District of Columbia;

(8) undertake activities to encourage local business and industry to maintain high standards of honesty, fair business practices, and public responsibility in the production, promotion, and sale of consumer goods and services and in the extension of credit;

(9) exercise and perform such other functions and duties consistent with the purposes or provisions of this chapter which may be deemed necessary or appropriate to protect and promote the welfare of District of Columbia consumers;

(10) [repealed];

(11) implead and interplead persons who are properly parties to a case before the Department under section 28-3905;

(12) negotiate, agree to, and sign consent decrees;

(13) determine whether a person has executed a trade practice in violation of any law of the District of Columbia, and provide full remedy for such violation by:

(A) damages in contract, and orders for restitution, rescission, reformation, repair, and replacement,

(B) stipulations, conditions, and directives, both temporary and permanent, of all kinds,

(C) enforcement of orders and decrees, collection of civil penalties, and other activities, in the courts,

(D) and other lawful methods;

(14) maintain both confidential and public records, and publicize its own actions, in accordance with section 28-3905;

(15) [repealed];

(16) appoint private attorneys from the District of Columbia bar, who shall take action in the name of the Department, and shall promulgate regulations implementing this provision, in order to assist in the enforcement of any consumer complaint; and

(17) impose civil fines, pursuant to Chapter 18 of Title 2, as alternative sanctions for any violation of the provisions of this chapter or of any rules issued under the authority of this chapter. Any violation of this chapter, or of any rule issued under the authority of this chapter, shall be a Class 2 infraction pursuant to 16 DCMR § 3200.1(b), unless the violation is classified otherwise pursuant to rules issued by the Department; except, that notwithstanding any other provision of District law or regulation, during a period of time for which the Mayor has declared a public health emergency pursuant to § 7-2304.01, a violation of this chapter or of any rule issued under the authority of this chapter shall be a Class 1 infraction within the meaning of 16 DCMR § 3200.1(a).

(b) The Department shall:

(1) perform the functions of the Mayor, Department of Consumer Affairs, Board of Consumer Goods Repairs Services or Department of Economic Development in:

(A) the District of Columbia Consumer Credit Protection Act of 1971 (Title 28, Chapters 36, 37, 38, et al.),

(B) the District of Columbia Consumer Retail Credit Regulation (16 DCMR Ch. 1),

(C) the District of Columbia Consumer Goods Repair Regulation (16 DCMR Ch. 6); and

(D) the District of Columbia Consumer LayAway Plan Act (section 28-3818);

(2) render annual reports to the Council and the Mayor as to the number of complaints filed and the nature, status, and disposition thereof, and about the other activities of the Department undertaken during the previous year.

(c) The Department may not:

(1) order damages for personal injury of a tortious nature;

(2) apply the provisions of section 28-3905 to:

(A) landlord-tenant relations;

(B) persons subject to regulation by the Public Service Commission of the District of Columbia;

(C) professional services of clergymen, lawyers, and Christian Science practitioners engaging in their respective professional endeavors;

(D) a television or radio broadcasting station or publisher or printer of a newspaper, magazine, or other form of printed advertising, which broadcasts, publishes, or prints an advertisement which violates District law, except insofar as such station, publisher or printer engages in a trade practice which violates District law in selling or offering for sale its own goods or services, or has knowledge of the advertising being in violation of District law; or

(E) an action of an agency of government.

(July 22, 1976, D.C. Law 1-76, § 4, 23 DCR 1185; June 11, 1977, D.C. Law 2-8, § 4(a), 24 DCR 726; Oct. 4, 1978, D.C. Law 2-115, § 3, 25 DCR 1997; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 8, 1991, D.C. Law 8-234, § 2(d), 38 DCR 296; Feb. 5, 1994, D.C. Law 10-68, § 27(a), (d), 40 DCR 6311; Apr. 9, 1997, D.C. Law 11-255, § 27(w), 44 DCR 1271; Apr. 29, 1998, D.C. Law 12-86, § 1301(b), 45 DCR 1172; Oct. 20, 2005, D.C. Law 16-33, § 2032(c), 52 DCR 7503; Mar. 2, 2007, D.C. Law 16-191,§ 100, 53 DCR 6794; Aug. 16, 2008, D.C. Law 17-219, § 2024, 55 DCR 7598; Feb. 26, 2015, D.C. Law 20-155, § 2012(a), 61 DCR 9990; Oct. 22, 2015, D.C. Law 21-36, § 7029, 62 DCR 10905; June 24, 2021, D.C. Law 24-9, § 305, 68 DCR 004824.)

Prior Codifications

1981 Ed., § 28-3903.

1973 Ed., T. 28, Appx., § 4.

Section References

This section is referenced in § 28-3905, § 28-3906, and § 28-4002.

Effect of Amendments

D.C. Law 16-33 repealed subsecs. (a)(10) and (a)(15), which had read:

“(10) publish rules and regulations governing the Department’s procedures, developed by the Director in accordance with the District of Columbia Administrative Procedure Act ( sections 2-501 et seq.);”

“(15) issue rules that interpret, define, state general policy, or prescribe requirements to prevent unfair, deceptive, and unlawful trade practices as set forth in section 28-3904;”

D.C. Law 16-191, in subsecs. (a)(13)(D) and (14), validated previously made technical corrections.

D.C. Law 17-219, in subsec. (a)(1)(i), substituted “$250” for “$2,500”.

The 2015 amendment by D.C. Law 20-155 added (a)(17) and made related changes.

The 2015 amendment by D.C. Law 21-36 substituted “Chapter 18 of Title 2″ for ” Section 28-3905″ in (a)(17).

Cross References

Hearing aid dealers and consumers, office of consumer protection, powers and duties, see § 28-4002.

Prescription drug price posting, enforcement, cease and desist orders, see § 48-804.03.

Prescription drug price posting, informational posters provided to pharmacies, see § 48-801.02.

Emergency Legislation

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Congressional Review Emergency Amendment Act of 2021 (D.C. Act 24-96, June 7, 2021, 68 DCR 006025).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Emergency Amendment Act of 2021 (D.C. Act 24-30, Mar. 17, 2021, 68 DCR 003101).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Second Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-405, Aug. 19, 2020, 67 DCR 10235).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-328, June 8, 2020, 67 DCR 7598).

For temporary (90 days) amendment of this section, see § 305 of Coronavirus Support Emergency Amendment Act of 2020 (D.C. Act 23-326, May 27, 2020, 67 DCR 7045).

For temporary amendment of section, see § 2 of the Omnibus Regulatory Reform Amendment Act of 1998 Emergency Repealer Act of 1998 (D.C. Act 12-297, March 4, 1998, 45 DCR 1773), and see § 2 of the Omnibus Regulatory Reform Congressional Review Emergency Repealer Act of 1998 (D.C. Act 12-387, July 13, 1998, 45 DCR 4792).

For temporary amendment of section, see § 2 of the Omnibus Regulatory Reform and Alcoholic Beverage Control DC Arena Clarifying Emergency Amendment Act of 1999 (D.C. Act 13-1, January 29, 1999, 46 DCR 2284).

For temporary (90 day) amendment of section, see § 2032(c) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

For temporary (90 days) amendment of this section, see § 2012(a) of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).

For temporary (90 days) amendment of this section, see § 2012(a) of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).

For temporary (90 days) amendment of this section, see § 2012(a) of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).

For temporary (90 days) amendment of this section, see § 2(c- 1) of the Fiscal Year 2015 Budget Support Clarification Congressional Review Emergency Amendment Act of 2014 (D.C. Act 20-587, January 13, 2015, 62 DCR 1294, 21 STAT 758).

For temporary (90 days) amendment of this section, see § 7016(c) of the Fiscal Year 2016 Budget Support Emergency Act of 2015 (D.C. Act 21-127, July 27, 2015, 62 DCR 10201).

Temporary Legislation

For temporary (225 days) amendment of this section, see § 305 of Coronavirus Support Temporary Amendment Act of 2021 (D.C. Law 24-9, June 24, 2021, 68 DCR 004824).

For temporary (225 days) amendment of this section, see § 305 of Coronavirus Support Temporary Amendment Act of 2020 (D.C. Law 23-130, Oct. 9, 2020, 67 DCR 8622).

For temporary (225 day) amendment of section, see § 2 of the Cooperative Association Amendment Act of 1998 (D.C. Law 12-117, April 13, 1999, law notification 46 DCR 3839).

For temporary (225 day) amendment of section, see § 2 of the Omnibus Regulatory Reform Temporary Amendment Act of 1999 (D.C. Law 13-3, May 28, 1999, law notification 46 DCR 5303).

For temporary (225 days) amendment of this section, see § 2(c) of the Fiscal Year 2015 Budget Support Clarification Temporary Amendment Act of 2014 (D.C. Law 20-179, March 7, 2015, 62 DCR 424).

Short Title

Short title: Section 2023 of D.C. Law 17-219 provided that subtitle J of title II of the act may be cited as the “Consumer Protection Act of 2008”.

§ 28–3904. Unfair or deceptive trade practices.

*NOTE: This section includes amendments by temporary legislation that will expire on February 4, 2022. To view the text of this section after the expiration of all emergency and temporary legislation, click this link: Permanent Version.*

It shall be a violation of this chapter for any person to engage in an unfair or deceptive trade practice, whether or not any consumer is in fact misled, deceived, or damaged thereby, including to:

(a) represent that goods or services have a source, sponsorship, approval, certification, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have;

(b) represent that the person has a sponsorship, approval, status, affiliation, certification, or connection that the person does not have;

(c) represent that goods are original or new if in fact they are deteriorated, altered, reconditioned, reclaimed, or second hand, or have been used;

(d) represent that goods or services are of particular standard, quality, grade, style, or model, if in fact they are of another;

(e) misrepresent as to a material fact which has a tendency to mislead;

(e-1) [r]epresent that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;

(f) fail to state a material fact if such failure tends to mislead;

(f-1) [u]se innuendo or ambiguity as to a material fact, which has a tendency to mislead;

(g) disparage the goods, services, or business of another by false or misleading representations of material facts;

(h) advertise or offer goods or services without the intent to sell them or without the intent to sell them as advertised or offered;

(i) advertise or offer goods or services without supplying reasonably expected public demand, unless the advertisement or offer discloses a limitation of quantity or other qualifying condition which has no tendency to mislead;

(j) make false or misleading representations of fact concerning the reasons for, existence of, or amounts of price reductions, or the price in comparison to price of competitors or one’s own price at a past or future time;

(k) falsely state that services, replacements, or repairs are needed;

(l) falsely state the reasons for offering or supplying goods or services at sale or discount prices;

(m) harass or threaten a consumer with any act other than legal process, either by telephone, cards, letters, or any form of electronic or social media;

(n) cease work on, or return after ceasing work on, an electrical or mechanical apparatus, appliance, chattel or other goods, or merchandise, in other than the condition contracted for, or to impose a separate charge to reassemble or restore such an object to such a condition without notification of such charge prior to beginning work on or receiving such object;

(o) replace parts or components in an electrical or mechanical apparatus, appliance, chattel or other goods, or merchandise when such parts or components are not defective, unless requested by the consumer;

(p) falsely state or represent that repairs, alterations, modifications, or servicing have been made and receiving remuneration therefor when they have not been made;

(q) fail to supply to a consumer a copy of a sales or service contract, lease, promissory note, trust agreement, or other evidence of indebtedness which the consumer may execute;

(r) make or enforce unconscionable terms or provisions of sales or leases; in applying this subsection, consideration shall be given to the following, and other factors:

(1) knowledge by the person at the time credit sales are consummated that there was no reasonable probability of payment in full of the obligation by the consumer;

(2) knowledge by the person at the time of the sale or lease of the inability of the consumer to receive substantial benefits from the property or services sold or leased;

(3) gross disparity between the price of the property or services sold or leased and the value of the property or services measured by the price at which similar property or services are readily obtainable in transactions by like buyers or lessees;

(4) that the person contracted for or received separate charges for insurance with respect to credit sales with the effect of making the sales, considered as a whole, unconscionable; and

(5) that the person has knowingly taken advantage of the inability of the consumer reasonably to protect his interests by reasons of age, physical or mental infirmities, ignorance, illiteracy, or inability to understand the language of the agreement, or similar factors;

(s) pass off goods or services as those of another;

(t) use deceptive representations or designations of geographic origin in connection with goods or services;

(u) represent that the subject of a transaction has been supplied in accordance with a previous representation when it has not;

(v) misrepresent the authority of a salesman, representative or agent to negotiate the final terms of a transaction;

(w) offer for sale or distribute any consumer product which is not in conformity with an applicable consumer product safety standard or has been ruled a banned hazardous product under the federal Consumer Product Safety Act (15 U.S.C. § 2051-83), without holding a certificate issued in accordance with section 14(a) of that Act to the effect that such consumer product conforms to all applicable consumer product safety rules (unless the certificate holder knows that such consumer product does not conform), or without relying in good faith on the representation of the manufacturer or a distributor of such product that the product is not subject to a consumer product safety rule issued under that Act;

(x) sell consumer goods in a condition or manner not consistent with that warranted by operation of sections 28:2-312 through 318 of the District of Columbia Official Code, or by operation or requirement of federal law;

(y) violate any provision of the District of Columbia Consumer LayAway Plan Act (section 28-3818);

(z) violate any provision of the Rental Housing Locator Consumer Protection Act of 1979 (section 28-3819) or, if a rental housing locator, to refuse or fail to honor any obligation under a rental housing locator contract;

(z-1) violate any provision of Chapter 46 of this title;

(aa) violate any provision of sections 32-404, 32-405, 32-406, and 32-407;

(bb) refuse to provide the repairs, refunds, or replacement motor vehicles or fails to provide the disclosures of defects or damages required by the Automobile Consumer Protection Act of 1984;

(cc) violate any provision of the Real Property Credit Line Deed of Trust Act of 1987;

(dd) violate any provision of title 16 of the District of Columbia Municipal Regulations;

(ee) violate any provision of the Public Insurance Adjuster Act of 2002 [Chapter 16A of Title 31];

(ff) violate any provision of Chapter 33 of this title;

(gg) violate any provision of the Home Equity Protection Act of 2007 [Chapter 24A of Title 42];

(hh) fail to make a disclosure as required by § 26-1113(a-1);

(ii) violate any provision of Chapter 53 of this title;

(jj) violate any agreement entered into pursuant to section 28-3909(c)(6);

(kk) violate any provision of subchapter 2 of Chapter 38 of this title;

(ll) violate any provision of 17 DCMR § 3013;

(mm) violate any provision of 17 DCMR § 3117; or

(nn) Not Funded.

(July 22, 1976, D.C. Law 1-76, § 5, 23 DCR 1185; Oct. 4, 1978, D.C. Law 2-115, § 3, 25 DCR 1997; June 21, 1980, D.C. Law 3-71, § 3(a), 27 DCR 1891; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 13, 1985, D.C. Law 5-136, § 16, 31 DCR 5727; Mar. 14, 1985, D.C. Law 5-162, § 9(a), 32 DCR 160; Jan. 28, 1988, D.C. Law 7-67, § 5, 34 DCR 7441; Mar. 8, 1991, D.C. Law 8-234, § 2(e), 38 DCR 296; Mar. 8, 1991, D.C. Law 8-236, § 9, 38 DCR 306; Feb. 5, 1994, D.C. Law 10-68, § 27(e), 40 DCR 6311; July 25, 1995, D.C. Law 11-30, § 7(h), 42 DCR 1547; Apr. 9, 1997, D.C. Law 11-255, § 27(x), 44 DCR 1271; Mar. 27, 2003, D.C. Law 14-256, § 11(b), 50 DCR 238; Mar. 13, 2004, D.C. Law 15-105, § 63, 51 DCR 881; Nov. 24, 2007, D.C. Law 17-42, § 3(b), 54 DCR 9988; Jan. 29, 2008, D.C. Law 17-87, § 7, 54 DCR 11913; Jan. 29, 2008, D.C. Law 17-90, § 3, 54 DCR 11925; Mar. 25, 2009, D.C. Law 17-353, § 222, 56 DCR 1117; Apr. 23, 2013, D.C. Law 19-282, § 2(b)(2), 60 DCR 2132; Feb. 26, 2015, D.C. Law 20-155, § 2012(b), 61 DCR 9990; Apr. 22, 2017, D.C. Law 21-280, § 6(b), 64 DCR 168; July 17, 2018, D.C. Law 22-140, § 2(c), 65 DCR 5970; June 17, 2020, D.C. Law 23-98, § 2(b)(1), 67 DCR 3923; Mar. 16, 2021, D.C. Law 23-187, § 2(b), 68 DCR 001031; June 24, 2021, D.C. Law 24-9, § 302(b), 68 DCR 004824.)

Prior Codifications

1981 Ed., § 28-3904.

1973 Ed., T. 28, Appx., § 5.

Section References

This section is referenced in § 16-4431, § 28-3905, § 28-3909, § 28-4006, and § 38-1312.

Effect of Amendments

D.C. Law 14-256 added subsec. (ee).

D.C. Law 15-105, in subsec. (ee), validated a previously made technical correction.

D.C. Law 17-42, in subsec. (cc), deleted “or” from the end; in subsec. (dd), substituted a semicolon for a period; in subsec. (ee), substituted “; or” for a period; and added subsec. (ff).

D.C. Law 17-87, in subsec. (ee), deleted “or” from the end; in subsec. (ff), substituted “; or” for a period; and added subsec. (gg).

D.C. Law 17-90, in subsec. (ff), deleted “or” from the end; in subsec. (gg), substituted “; or” for a period; and added subsec. (hh).

D.C. Law 17-353 validated previously made technical corrections in pars. (ff), (gg), and (hh).

The 2013 amendment by D.C. Law 19-282 added (e-1) and (f-1).

The 2015 amendment by D.C. Law 20-155 rewrote (m).

Cross References

Automobile Consumer Protection Act, limitations of actions, see § 50-507.

Automobile Consumer Protection Act, rules and regulations for implementation, see § 50-508.

Education licensure commission, criminal sanctions, fines and penalties, see § 38-1312.

Employment Services Licensing and Regulation Act, penalties for violations, see § 32-414.

Hearing aid dealers and consumers, grounds for revocation and suspension, see § 28-4006.

Applicability

Applicability of D.C. Law 23-187: § 3 of D.C. Law 23-187 provided that the change made to this section by § 2(b) of D.C. Law 23-187 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.

Emergency Legislation

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Congressional Review Emergency Amendment Act of 2021 (D.C. Act 24-96, June 7, 2021, 68 DCR 006025).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Emergency Amendment Act of 2021 (D.C. Act 24-30, Mar. 17, 2021, 68 DCR 003101).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Second Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-405, Aug. 19, 2020, 67 DCR 10235).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-328, June 8, 2020, 67 DCR 7598).

For temporary (90 days) amendment of this section, see § 302(b) of Coronavirus Support Emergency Amendment Act of 2020 (D.C. Act 23-326, May 27, 2020, 67 DCR 7045).

For temporary (90 days) amendment of this section, see § 2012(b) of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).

For temporary (90 days) amendment of this section, see § 2012(b) of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).

For temporary (90 days) amendment of this section, see § 2012(b) of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).

Temporary Legislation

For temporary (225 days) amendment of this section, see § 302(b) of Coronavirus Support Temporary Amendment Act of 2021 (D.C. Law 24-9, June 24, 2021, 68 DCR 004824).

For temporary (225 days) amendment of this section, see § 302(b) of Coronavirus Support Temporary Amendment Act of 2020 (D.C. Law 23-130, Oct. 9, 2020, 67 DCR 8622).

References in Text

The Public Insurance Adjuster Licensure Act of 2002, referred to in subsec. (ee), is D.C. Law 14-256.

The “Automobile Consumer Protection Act of 1984”, referred to in paragraph (bb) of this section, is D.C. Law 5-162, codified as Chapter 5 of Title 50.

The “Real Property Credit Line Deed of Trust Act of 1987,” referred to in subsection (cc) of this section, is codified as Chapter 23 of Title 42.

Effective Dates

Section 4 of D.C. Law 17-42 provided: “This act shall take effect following the certification by the Chief Financial Officer, through a revised quarterly revenue estimate for fiscal year 2008, that local funds exceed the annual revenue estimates incorporated in the fiscal year 2008 budget and financial plan in an amount sufficient to account for its fiscal effect. The Chief Financial Officer shall set aside revenue to account for the cost of fully implementing this act.”

Editor’s Notes

Application of D.C. Law 14-256 including the amendments to this section: See section 12 of D.C. Law 14-256, codified as § 31-1631.12.

§ 28–3905. Complaint procedures.

(a) A case is begun by filing with the Department a complaint plainly describing a trade practice and stating the complainant’s (and, if different, the consumer’s) name and address, the name and address (if known) of the respondent, and such other information as the Director may require. The complaint must be in or reduced by the Director to writing. The filing of a complaint with the Department shall toll the periods for limitation of time for bringing an action as set out in section 12-301 until the complaint has been resolved through an administrative order, consent decree, or dismissal in accordance with this section or until an opportunity to arbitrate has been provided in Chapter 5 of Title 50.

(b)(1) Except as provided in paragraph (2) of this subsection, the Director shall investigate each such complaint and determine:

(A) What trade practice actually occurred; and

(B) Whether the trade practice which occurred violates any statute, regulation, rule of common law, or other law of the District of Columbia.

(2) The Director may, in his or her discretion, decline to prosecute certain cases as necessary to manage the Department’s caseload and control program costs.

(b-1) In carrying out an investigation and determination pursuant to subsection (b) of this section, the Director shall consult the respondent and such other available sources of information, and make such other efforts, as are appropriate and necessary to carry out such duties.

(c) If at any time the Director finds that the trade practice complained of may, in whole or in part, be a violation of law other than a law of the District of Columbia or a law within the jurisdiction of the Department, the Director may in writing so inform the complainant, respondent and officials of the District, the United States, or other jurisdiction, who would properly enforce such law.

(d) The Director shall determine that there are, or are not, reasonable grounds to believe that a trade practice, in violation of a law of the District of Columbia within the jurisdiction of the Department, has occurred in any part or all of the case. The Director may find that there are not such reasonable grounds for any of the following reasons:

(1) any violation of law which may have occurred is of a law not of the District of Columbia or not within the jurisdiction of the Department, or occurred more than three years prior to the filing of the complaint;

(2) in case paragraph (1) of this subsection does not apply, no trade practice occurred in violation of any law of the District;

(3) the respondent cannot be identified or located, or would not be subject to the personal jurisdiction of a District of Columbia court;

(4) the complainant, to the Director’s knowledge, no longer seeks redress in the case;

(5) the complainant and respondent, to the Director’s knowledge, have themselves reached an agreement which settles the case; or

(6) the complainant can no longer be located.

(d-1) The Director may dismiss any part or all of a case to which one or more of the reasons stated in subsection (d) of this section apply. The Director shall inform all parties in writing of the determination, and, if any part or all of the case is dismissed, shall specify which of the reasons in this subsection applies to which part of the case, and such other detail as is necessary to explain the dismissal.

(e) The Director may attempt to settle, in accordance with subsection (h) of this section, each case for which reasonable grounds are found in accordance with subsection (d-1) of this section. After the Director’s determination as to whether the complaint is within the Department’s jurisdiction, in accordance with subsection (d-1) of this section, the Director shall:

(1) effect a consent decree;

(2) dismiss the case in accordance with subsection (h)(2) of this section;

(3) through the Chief of the Office of Compliance present to the Office of Adjudication, with copies to all parties, a brief and plain statement of each trade practice that occurred in violation of District law, the law the trade practice violates, and the relief sought from the Office of Adjudication for violation; or

(4) notify all parties of another action taken, with the reasons therefor stated in detail and supported by fact. Reasons may include:

(A) any reason listed in subsections (d)(1) through (d)(6) of this section; and

(B) that the presentation of a charge to the Office of Adjudication would not serve the purposes of this chapter.

(5) Repealed.

(f) When the case is transmitted to the Office of Adjudication, the Chief of the Office of Compliance shall sign, and serve the respondent, the Department’s summons to answer or appear before the Office of Adjudication. Not less than 15 nor more than 90 days after such transmittal, the case shall be heard. The case shall proceed under section 10 of the District of Columbia Administrative Procedure Act (section 2-509). The Office of Adjudication may, without delaying its hearing or decision, attempt to settle the case pursuant to subsection (h) of this section, and has discretion to permit any stipulation or consent decree the parties agree to. The Director shall be a party on behalf of the complainant. Applications to intervene shall be decided as may be proper or required by law or rule. Reasonable discovery shall be freely allowed. Any finding or decision may be modified or set aside, in whole or part, before a notice of appeal is filed in the case, or the time to so file has run out.

(g) If, after hearing the evidence, the Office of Adjudication decides a trade practice occurred in which the respondent violated a law of the District of Columbia within the jurisdiction of the Department, such Office of Adjudication shall issue an order which:

(1) shall require the respondent to cease and desist from such conduct;

(2) shall, if such Office of Adjudication also decides that the consumer has been injured by the trade practice, order redress through contract damages, restitution for money, time, property or other value received from the consumer by the respondent, or through rescission, reformation, repair, replacement, or other just method;

(3) shall state the number of trade practices the respondent performed in violation of law;

(4) shall, absent good cause found by the Office of Adjudication, require the respondent to pay the Department its costs for investigation, negotiation, and hearing;

(5) may include such other findings, stipulations, conditions, directives, and remedies including punitive damages, treble damages, or reasonable attorney’s fees, as are reasonable and necessary to identify, correct, or prevent the conduct which violated District law; and

(6) may be based, in whole or part, upon a violation of a law establishing or regulating a type of business, occupational or professional license or permit, and may refer the case for further proceedings to an appropriate board or commission, but may not suspend or revoke a license or permit if there is a board or commission which oversees the specific type of license or permit.

(h)(1) At any time after reasonable grounds are found in accordance with subsection (d) of this section, the respondent, the Department (represented by (i) the Director prior to transmittal to the Office of Adjudication and after an order issued pursuant to subsection (f) of this section has been appealed, and (ii) the Office of Adjudication after transmittal to the Office of Adjudication and prior to such appeal), and the complainant, may agree to settle all or part of the case by a written consent decree which may:

(A) include any provision described in subsection (g)(2) through (6) of this section;

(B) not contain an assertion that the respondent has violated a law;

(C) contain an assurance that the respondent will refrain from a trade practice;

(D) bar the Department from further action in the case, or a part thereof; or

(E) contain such other provisions or considerations as the parties agree to.

(2) The representative of the Department shall administer the settlement proceedings, and may utilize the good offices of the Advisory Committee on Consumer Protection. All settlement proceedings shall be informal and include all interested parties and such representatives as the parties may choose to represent them. Such proceedings shall be private, and nothing said or done, except a consent decree, shall be made public by the Department, any party, or the Advisory Committee, unless the parties agree thereto in writing. The representative of the Department may call settlement conferences. For persistent and unreasonable failure by the complainant to attend such conferences or to take part in other settlement proceedings, the Director, prior to transmittal to the Office of Adjudication, may dismiss the case.

(3) A consent decree described in paragraph (1) of this subsection may be modified by agreement of the Department, complainant and respondent.

(i)(1) An aggrieved party may appeal to the District of Columbia Court of Appeals after:

(A) the Office of Adjudication decides a case pursuant to subsection (f) of this section;

(B) all parts of a case have been dismissed by operation of subsection (d) or (e) of this section; or

(C) the Director dismisses an entire case in accordance with subsection (h)(2) of this section.

(1A) Such appeals shall be conducted in accordance with the procedures and standards of section 11 of the District of Columbia Administrative Procedure Act (section 2-510), and take into account the procedural duties placed upon the Department in this section and all actions taken by the Department in the case.

(2) An aggrieved party may appeal any ruling of the Office of Adjudication under subsection (j) of this section to the Superior Court of the District of Columbia.

(3)(A) Any person found to have executed a trade practice in violation of a law of the District within the jurisdiction of the Department may be liable for a civil penalty not exceeding $1,000 for each failure to adhere to a provision of an order described in subsection (f), (g), or (j) of this section, or a consent decree described in subsection (h) of this section.

(B) The Department, the complainant, or the respondent may sue in the Superior Court of the District of Columbia for a remedy, enforcement, or assessment or collection of a civil penalty, when any violation, or failure to adhere to a provision of a consent decree described in subsection (h) of this section, or an order described in subsection (f), (g), or (j) of this section, has occurred. The Department shall sue in that Court for assessment of a civil penalty when an order described in subsection (g) of this section has been issued and become final. A failure by the Department or any person to file suit or prosecute under this subparagraph in regard to any provision or violation of a provision of any consent decree or order, shall not constitute a waiver of such provision or any right under such provision. The Court shall levy the appropriate civil penalties, and may order, if supported by evidence, temporary, preliminary, or permanent injunctions, damages, treble damages, reasonable attorney’s fees, consumer redress, or other remedy. The Court may set aside the final order if the Court determines that the Department of Consumer and Regulatory Affairs lacked jurisdiction over the respondent or that the complaint was frivolous. If, after considering an application to set aside an order of the Department of Consumer and Regulatory Affairs, the Court determines that the application was frivolous or that the Department of Consumer and Regulatory Affairs lacked jurisdiction, the Court shall award reasonable attorney’s fees.

(C) Application to the Court to enforce an order shall be made at no cost to the District of Columbia or the complainant.

(4) The Attorney General for the District of Columbia shall represent the Department in all proceedings described in this subsection.

(j) If, at any time before notice of appeal from a decision made according to subsection (f) of this section is filed or the time to so file has run out, the Director believes that legal action is necessary to preserve the subject matter of the case, to prevent further injury to any party, or to enable the Department ultimately to order a full and fair remedy in the case, the Chief of the Office of Compliance shall present the matter to the Office of Adjudication, which may issue a cease and desist order to take effect immediately, or grant such other relief as will assure a just adjudication of the case, in accordance with such beliefs of the Director which are substantiated by evidence. The Office of Adjudication’s ruling may be appealed to court within 7 days of notice thereof on the Director, respondent, and complainant.

(k)(1)(A) A consumer may bring an action seeking relief from the use of a trade practice in violation of a law of the District.

(B) An individual may, on behalf of that individual, or on behalf of both the individual and the general public, bring an action seeking relief from the use of a trade practice in violation of a law of the District when that trade practice involves consumer goods or services that the individual purchased or received in order to test or evaluate qualities pertaining to use for personal, household, or family purposes.

(C) A nonprofit organization may, on behalf of itself or any of its members, or on any such behalf and on behalf of the general public, bring an action seeking relief from the use of a trade practice in violation of a law of the District, including a violation involving consumer goods or services that the organization purchased or received in order to test or evaluate qualities pertaining to use for personal, household, or family purposes.

(D)(i) Subject to sub-subparagraph (ii) of this subparagraph, a public interest organization may, on behalf of the interests of a consumer or a class of consumers, bring an action seeking relief from the use by any person of a trade practice in violation of a law of the District if the consumer or class could bring an action under subparagraph (A) of this paragraph for relief from such use by such person of such trade practice.

(ii) An action brought under sub-subparagraph (i) of this subparagraph shall be dismissed if the court determines that the public interest organization does not have sufficient nexus to the interests involved of the consumer or class to adequately represent those interests.

(2) Any claim under this chapter shall be brought in the Superior Court of the District of Columbia and may recover or obtain the following remedies:

(A)(i) Treble damages, or $1,500 per violation, whichever is greater, payable to the consumer;

(ii) Notwithstanding sub-subparagraph (i) of this subparagraph, for a violation of § 28-3904(kk) a consumer may recover or obtain actual damages. Actual damages shall not include dignitary damages, including pain and suffering.

(B) Reasonable attorney’s fees;

(C) Punitive damages;

(D) An injunction against the use of the unlawful trade practice;

(E) In representative actions, additional relief as may be necessary to restore to the consumer money or property, real or personal, which may have been acquired by means of the unlawful trade practice; or

(F) Any other relief which the court determines proper.

(3) Any written decision made pursuant to subsection (f) of this section is admissible as prima facie evidence of the facts stated therein.

(4) If a merchant files in any court a suit seeking to collect a debt arising out of a trade practice from which has also arisen a complaint filed with the Department by the defendant in the suit either before or after the suit was filed, the court shall dismiss the suit without prejudice, or remand it to the Department.

(5) An action brought by a person under this subsection against a nonprofit organization shall not be based on membership in such organization, membership services, training or credentialing activities, sale of publications of the nonprofit organization, medical or legal malpractice, or any other transaction, interaction, or dispute not arising from the purchase or sale of consumer goods or services in the ordinary course of business.

(6) The right of action established by this subsection shall apply to trade practices arising from landlord-tenant relations.

(l) The Director and Office of Adjudication may use any power granted to the Department in section 28-3903, as each reasonably deems will aid in carrying out the functions assigned to each in this section. Each, while holding the primary responsibility of the Department for decision in a certain case, may join such case with others then before the Department. No case may be disposed of in a manner not expressly authorized in this section. Every complaint case filed with the Department and within its jurisdiction shall be decided in accordance with the procedures and sanctions of this section, notwithstanding that a given trade practice, at issue in the case, may be governed in whole or in part by another law which has different enforcement procedures and sanctions.

(m)(1) Whenever requested, the Department will make available to the complainant and respondent an explanation, and any other information helpful in understanding, the provisions of any consent decree to which the Department agrees, and any order or decision which the Department makes.

(2) The Director shall maintain a public index for all the cases on which the Department has made a final action or a consent decree, organized by:

(A) name of complainant;

(B) name of respondent;

(C) industry of the merchant involved;

(D) nature of the violation of District law alleged or found to exist (for example, subsection of section 28-3904 involved, or section of a licensing law involved);

(E) final disposition.

(n) There shall be established a Consumer Protection Education Fund (“Fund”). All monies awarded to or paid to the Department by operation of this section, including final judgements, consent decrees, or settlements reduced to final judgements, shall be paid into the Fund in order to further the purpose of this chapter as enumerated in § 28-3901.

(o) Every complaint case that is before the Department in accordance with this section shall proceed in confidence, except for hearings and meetings before the Office of Adjudication, until the Department makes a final action or a consent decree.

(p) The Director may file a complaint in accordance with subsection (a) of this section, on behalf of one or more consumers or as complainant, based on evidence and information gathered by the Department in carrying out this chapter. Persons not parties to but directly or indirectly intended as beneficiaries of an order described in subsection (f), (g), or (j) of this section, or a consent decree described in subsection (h) of this section, arising out of a complaint filed by the Director, may enforce such order or decree in the manner provided in subsection (i)(3)(B) of this section.

(q) At any hearing pursuant to subsection (f) or (j) of this section, a witness has the right to be advised by counsel present at such hearing. In any process under this section, the complainant and respondent may have legal or other counsel for representation and advice.

(r) All cases for which complaints were filed before March 5, 1981, may be presented to and heard by the Office of Adjudication notwithstanding the time limits previously provided in section 28-3905(d), 28-3905(e), and 28-3905(f) for the investigation and transmittal of cases to the Office of Adjudication, and for the hearing of cases by the Office of Adjudication.

(July 22, 1976, D.C. Law 1-76, § 6, 23 DCR 1185; June 11, 1977, D.C. Law 2-8, § 4(b), 24 DCR 726; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 5, 1981, D.C. Law 3-159, §§ 2(b), (c), 3, 27 DCR 5147; Mar. 8, 1991, D.C. Law 8-234, § 2(f), 38 DCR 296; Feb. 5, 1994, D.C. Law 10-68, § 27(f), 40 DCR 6311; Apr. 9, 1997, D.C. Law 11-255, § 27(y), 44 DCR 1271; Apr. 29, 1998, D.C. Law 12-86, § 1301(c), 45 DCR 1172; Oct. 19, 2000, D.C. Law 13-172, § 1402(d), 47 DCR 6308; Oct. 20, 2005, D.C. Law 16-33, § 2032(d), 52 DCR 7503; June 12, 2007, D.C. Law 17-4,§ 2(b), 54 DCR 4085; Apr. 23, 2013, D.C. Law 19-282, § 2(b)(3), 60 DCR 2132; Feb. 26, 2015, D.C. Law 20-155, § 2012(c), 61 DCR 9990; Feb. 22, 2019, D.C. Law 22-206, § 2(a), 65 DCR 12363; June 17, 2020, D.C. Law 23-98, § 2(b)(2), 67 DCR 3923.)

Prior Codifications

1981 Ed., § 28-3905.

1973 Ed., T. 28, Appx., § 6.

Section References

This section is referenced in § 28-3818, § 28-3901, § 28-3902, § 28-3903, § 28-3906, and § 28-4002.

Effect of Amendments

D.C. Law 13-172 added the introductory sentence to subsec. (k)(2) pertaining to the penalties being cumulative and additional and rewrote subsec. (k)(1).

D.C. Law 16-33 rewrote subsec. (b), which had read:

“(b) The Director shall investigate each such complaint and determine:

“(1) what trade practice actually occurred, and

“(2) whether the trade practice which occurred violates any statute, regulation, rule of common law, or other law, of the District of Columbia.”

D.C. Law 17-4 added subsec. (k)(5).

The 2013 amendment by D.C. Law 19-282 rewrote (k)(1) and (k)(2).

The 2015 amendment by D.C. Law 20-155 rewrote (i)(3)(A).

Cross References

Hearing aid dealers and consumers, office of consumer protection, powers and duties, see § 28-4002.

Emergency Legislation

For temporary (90-day) amendment of section, see § 1402(d) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) amendment of section, see § 1402(d) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 day) amendment of section, see § 2032(d) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

For temporary (90 days) amendment of this section, see § 2012(c) of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).

For temporary (90 days) amendment of this section, see § 2012(c) of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).

For temporary (90 days) amendment of this section, see § 2012(c) of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).

§ 28–3906. Consumer education and information.

(a) The Office of Consumer Protection is established within the Department. The Office of Consumer Protection shall:

(1) Inform the public and the business community of existing laws, regulations, and guidelines concerning consumer rights and standards of fair treatment;

(2) Coordinate consumer education programs with, and use consumer education programs to help carry out, the consumer protection programs of the Department, including enforcement options through the Department and the Office of the Attorney General and before the courts;

(2A) Develop a consumer education program to educate consumers about the appropriateness of video and computer games for certain age groups, which may include information on video and computer game rating systems and the manner in which parental controls can enhance the ability of parents to regulate their children’s access to video and computer games;

(3) Handle publicity for the Department concerning cases under § 28-3905 when the Director requests;

(4) Aid the Director in the formulation of consumer protection plans and recommend legislation and regulations related to consumer education;

(5) Cooperate with consumer-related agencies, groups, and individuals in the District of Columbia metropolitan area to improve consumer education efforts; and

(6) Perform the functions of the Department under § 28-3903(7) and (8) [§ 28-3903(a)(7) and (8)].

(b) The Chief of the Office of Consumer Protection shall be appointed by the Director.

(c) In fiscal year 2006, the Office of Consumer Protection shall focus on investigation and mediation in the areas of auto repair and home improvement.

(July 22, 1976, D.C. Law 1-76, § 7, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Mar. 8, 1991, D.C. Law 8-234,§ 2(g), 38 DCR 296; Oct. 20, 2005, D.C. Law 16-33, § 2032(e), 52 DCR 7503; Mar. 6, 2007, D.C. Law 16-218, § 2, 53 DCR 10209.)

Prior Codifications

1981 Ed., § 28-3906.

1973 Ed., T. 28, Appx., § 7.

Section References

This section is referenced in § 28-3901.

Effect of Amendments

D.C. Law 16-33, rewrote section, which had read:

“(a) The Office of Consumer Education and Information shall:

“(1) inform the public and the business community of existing laws, regulations and guidelines concerning consumer rights and standards of fair treatment;

“(2) coordinate consumer education programs with, and use consumer education programs to help carry out, the consumer protection programs of the Office;

“(3) handle publicity for the Office Department concerning cases under section 28-3905, when the Director requests;

“(4) aid the Director in the formulation of consumer protection plans and recommend legislation and regulations related to consumer education;

“(5) cooperate with consumer-related agencies, groups and individuals in the D.C. area to improve consumer education efforts.

“(b) The Chief of the Office of Consumer Education and Information shall be appointed by the Director.”

D.C. Law 16-218, in subsec. (a), added par. (2A).

Emergency Legislation

For temporary (90 day) amendment of section, see § 2032(e) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

Editor’s Notes

The bracketed language has been inserted in (a)(3) to correct an error in D.C. Law 8-234.

§ 28–3907. Advisory Committee on Consumer Protection.

(a) There shall be an Advisory Committee on Consumer Protection consisting of 11 members appointed by the Mayor for three-year terms. The nongovernmental members, immediately prior to the effective date of this chapter, of the Advisory Committee on Consumer Affairs established in Organization Order No. 40 (C.O. 73-225; October 3, 1973), shall carry out their terms. No District Government employees shall be members. Four members shall be District merchants. Seven members shall be persons with demonstrated and current records of activity on behalf of consumers.

(b) The Committee shall:

(1) recommend priorities in, and, at the Committee’s discretion, carry out investigations and research, which concern broad, developing, or frequently encountered consumer problems;

(2) assist the Director as the Director may request;

(3) monitor the performance and organization of the Office, by quantitative and qualitative methods, and make recommendations and criticisms, based thereon; and

(4) cooperate with consumer-related agencies, groups, and individuals in the District and in the metropolitan area to improve city-wide and area-wide consumer protection and education efforts.

(c) The Committee shall elect one of its members as Chairperson and another as Vice-Chairperson, each to serve at the pleasure of the Committee, and such other officers and subcommittees as it determines.

(d) The Office shall provide staff support for the Advisory Committee. Appropriate expenses incurred by the Committee as a whole, or by individual members, may be paid when authorized by the Director.

(e) The Committee shall meet on call by the Chairperson as frequently as required to perform its duties, but no less than once each month, and it shall submit an annual report to the Mayor, Council, and the public.

(f) The Committee shall hold public hearings as deemed necessary.

(July 22, 1976, D.C. Law 1-76, § 8, 23 DCR 1185; Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900; Apr. 9, 1997, D.C. Law 11-255, § 27(z), 44 DCR 1271.)

Prior Codifications

1981 Ed., § 28-3907.

1973 Ed., T. 28, Appx., § 8.

Section References

This section is referenced in § 28-3901.

§ 28–3908. Severability.

If any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of this chapter, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected.

(July 22, 1976, D.C. Law 1-76, § 9, 23 DCR 1185; enacted, Sept. 6, 1980, D.C. Law 3-85, § 3(a), (d), 27 DCR 2900.)

Prior Codifications

1981 Ed., § 28-3908.

1973 Ed., T. 28, Appx., § 9.

§ [28-3909.01]. Attorney General Authority.

*NOTE: This section was created by temporary legislation that will expire on February 4, 2022.*

Notwithstanding any District law, the Attorney General for the District of Columbia may use the enforcement authority set forth at [§ 28-3909] against any merchant, including a utility provider, that violates any provisions of this act (D.C. Law 24-9).

(June 24, 2021, D.C. Law 24-9, § 307(g), 68 DCR 004824.)

Emergency Legislation

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Congressional Review Emergency Amendment Act of 2021 (D.C. Act 24-96, June 7, 2021, 68 DCR 006025).

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Emergency Amendment Act of 2021 (D.C. Act 24-30, Mar. 17, 2021, 68 DCR 003101).

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Congressional Review Emergency Amendment Act of 2020 (D.C. Act 23-328, June 8, 2020, 67 DCR 7598).

For temporary (90 days) creation of this section, see § 307(g) of Coronavirus Support Emergency Amendment Act of 2020 (D.C. Act 23-326, May 27, 2020, 67 DCR 7045).

Temporary Legislation

For temporary (225 days) creation of this section, see § 307(g) of Coronavirus Support Temporary Amendment Act of 2021 (D.C. Law 24-9, June 24, 2021, 68 DCR 004824).

§ 28–3910. Investigatory powers of Attorney General [for the District of Columbia].

(a) In the course of an investigation to determine whether to seek relief under section 28-3909, the Attorney General for the District of Columbia may subpoena witnesses, administer oaths, examine an individual under oath, and compel production of records, books, papers, contracts, and other documents. Information obtained under this section is not admissible in a later criminal proceeding against the person who provides the evidence.

(b) A subpoena issued pursuant to subsection (a) of this section shall be issued in accordance with [§  1-301.89c].

(Oct. 19, 2000, D.C. Law 13-172, § 1402(f), 47 DCR 6308; Oct. 22, 2015, D.C. Law 21-36, § 1036, 62 DCR 10905; July 17, 2018, D.C. Law 22-140, § 2(e), 65 DCR 5970.)

Effect of Amendments

The 2015 amendment by D.C. Law 21-36 designated the existing text as (a); and added (b).

Emergency Legislation

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act of 2018 (D.C. Act 22-486, Oct. 22, 2018, 65 DCR12042).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Emergency Amendment Act of 2018 (D.C. Act 22-402, July 16, 2018, 65 DCR 7518).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Emergency Amendment Act of 2017 (D.C. Act 22-164, Oct. 23, 2017, 64 DCR 10790).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act of 2017 (D.C. Act 22-23, Mar. 27, 2017, 64 DCR 3065).

For temporary (90 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Emergency Amendment Act of 2016 (D.C. Act 21-576, Dec. 19, 2016, 63 DCR 15695).

For temporary (90-day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 days) amendment of this section, see § 1036 of the Fiscal Year 2016 Budget Support Emergency Act of 2015 (D.C. Act 21-127, July 27, 2015, 62 DCR 10201).

Temporary Legislation

For temporary (225 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Temporary Amendment Act of 2018 (D.C. Law 22-172, Oct. 30, 2018, 65 DCR 9540).

For temporary (225 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Temporary Amendment Act of 2017 (D.C. Law 22-45, Jan. 25, 2018, 64 DCR 12399).

For temporary (225 days) amendment of this section, see § 2(b) of At-Risk Tenant Protection Clarifying Temporary Amendment Act of 2016 (D.C. Law 21-271, Apr. 15, 2017, 64 DCR 944).

§ 28–3911. District of Columbia Consumer Protection Fund. [Repealed]

Repealed.

(Oct. 19, 2000, D.C. Law 13-172, § 1402(f), 47 DCR 6308; Mar. 8, 2007, D.C. Law 16-237, § 2(d), 54 DCR 393; Sept. 18, 2007, D.C. Law 17-20, § 3023, 54 DCR 7052; Jan. 23, 2008, D.C. Law 17-68, § 2, 54 DCR 11648; Mar. 3, 2010, D.C. Law 18-111, § 3002, 57 DCR 181; Sept. 14, 2011, D.C. Law 19-21, § 9003(a), 58 DCR 6226.)

Emergency Legislation

For temporary (90-day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Emergency Act of 2000 (D.C. Act 13-376, July 24, 2000, 47 DCR 6574).

For temporary (90 day) addition of section, see § 1402(f) of the Fiscal Year 2001 Budget Support Congressional Review Emergency Act of 2000 (D.C. Act 13-438, October 20, 2000, 47 DCR 8740).

For temporary (90 day) addition of section, see § 2(b) of Residential Water Lead Level Test Emergency Act of 2004 (D.C. Act 15-436, May 25, 2004, 51 DCR 5953).

For temporary (90 day) amendment of section, see § 2 of District of Columbia Consumer Protection Fund Emergency Amendment Act of 2007 (D.C. Act 17-64, June 28, 2007, 54 DCR 7046).

For temporary (90 day) amendment of section, see § 3023 of Fiscal Year 2008 Budget Support Emergency Act of 2007 (D.C. Act 17-74, July 25, 2007, 54 DCR 7549).

For temporary (90 day) amendment of section, see § 2 of District of Columbia Consumer Protection Fund Congressional Review Emergency Act of 2007 (D.C. Act 17-138, October 17, 2007, 54 DCR 10729).

For temporary (90 day) amendment of section, see § 3002 of Fiscal Year 2010 Budget Support Second Emergency Act of 2009 (D.C. Act 18-207, October 15, 2009, 56 DCR 8234).

For temporary (90 day) amendment of section, see § 3002 of Fiscal Year Budget Support Congressional Review Emergency Amendment Act of 2009 (D.C. Act 18-260, January 4, 2010, 57 DCR 345).

Temporary Legislation

For temporary (225 day) amendment of section, see § 2 of the District of Columbia Consumer Protection Fund Temporary Amendment Act of 2007 (D.C. Law 17-34, October 18, 2007, law notification 54 DCR 10704).

Short Title

Short title: Section 3001 of D.C. Law 18-111 provided that subtitle A of title III of the act may be cited as the “Consumer Protection Funds Act of 2009”.

Editor’s Notes

Section 9052(b) of D.C. Law 19-21 purported to amended this section which was repealed by section 9003(a) of Law 19-21.

§ 28–3912. Submissions to the Council.

The Department shall, in coordination with the Office of the Attorney General, submit 2 plans to the Council:

(1) A detailed plan for fiscal year 2006 on the steps that the Department shall take in providing consumer protection education in the District, including the dissemination of information regarding legal options through the Department and before the Office of the Attorney General and the Courts, to be submitted by September 1, 2005; and

(2) A plan to fully implement this subchapter in fiscal year 2007, including any recommended amendments to this subchapter, to be submitted by February 1, 2006, in anticipation of the fiscal year 2007 budget.

(Oct. 20, 2005, D.C. Law 16-33, § 2032(f), 52 DCR 7503.)

Emergency Legislation

For temporary (90 day) addition, see § 2032(f) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

§ 28–3913. Rules.

The Mayor may issue rules necessary to carry out this chapter. Rules proposed pursuant to this section shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, in whole or in part, by resolution, within this 45-day review period, the proposed rules shall be deemed disapproved.

(Oct. 20, 2005, D.C. Law 16-33, § 2032(f), 52 DCR 7503.)

Emergency Legislation

For temporary (90 day) addition, see § 2032(f) of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).


Washington DC consumer law set to suck money from retailers AND manufacturers who sell to Washington DC Residents

My advice. STOP ALL SALES TO WASHINGTON DC RESIDENTS OR WASHINGTON DC ADDRESSES!

The letter below was received from a Georgia cycling store. The letter demands thousands of dollars for violating Washington DC Chapter 39. Consumer Protection Procedures. Allegedly the prices on the website prior to the sale price were higher than the Manufacturers Suggested Retail Price (MSRP). In Most states you can sell something for any price unless you have an agreement with the manufacturer to sell within a price range. (Sherman Anti-Trust Act and the Manufacturers Suggested Retail Price regulations.)

The letter is posted here with permission from Joe Elam of Habersham Bicycles. THANKS JOE!






The law firm is real, but the website for the firm is not finished. https://www.dcclg.com/

The organization the law firm is representing is also a one-person operation and is listed by different firms that monitor non-profits as questionable. http://www.i4tm.org/#page-top.

https://www.causeiq.com/organizations/institute-for-truth-in-marketing,473475721/

https://nonprofitlight.com/dc/washington/institute-for-truth-in-marketing-inc.

The products were purchased in three different sales and shipped to:

Jared Zecco

1629 K St.

Suite 300

Washington DC 20006

The letter is demanding $1500 for each violation of the Washington DC law, however the only penalty I can find in the statute says not exceeding $1000 per violation.

§ 28–3905. Complaint procedures.

(3)(A) Any person found to have executed a trade practice in violation of a law of the District within the jurisdiction of the Department may be liable for a civil penalty not exceeding $1,000 for each failure to adhere to a provision of an order described in subsection (f), (g), or (j) of this section, or a consent decree described in subsection (h) of this section.

However, if the seller is taken to court, then $1500 can be recovered.

(A)(i) Treble damages, or $1,500 per violation, whichever is greater, payable to the consumer;

Here is the problem. You will be sued in a DC court.

Do Something

Don’t Sell to DC online until you understand this law.

MORE COMING

What do you think? Leave a comment.

Copyright 2020 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

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Email: Rec-law@recreation-law.com

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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,

 


One paragraph would have eliminated this lawsuit.

Badly written release and a bad attempt to tie two documents together almost cost the defendant outfitter.

Hamric v. Wilderness Expeditions, Inc

State: Colorado, United States Court of Appeals, Tenth Circuit

Plaintiff: Alicia Hamric, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor

Defendant: Wilderness Expeditions, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2021

Summary

Deceased died while repelling with the defendant and surviving spouse sued Colorado company in Colorado but attempted to use Texas law, where the release was signed, as a way to void the release.

Facts

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. [emphasize added]

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

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

The Tenth Circuit Court of Appeals is an appellate court that sits in Denver. The Tenth Circuit hears cases from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming federal district courts. The court, consequently, hears a few appeals of recreation cases because of Colorado, Utah, New Mexico and Wyoming recreation activities.

This appealed covered four different legal issues. Three of the issues were procedural and won’t be reviewed here. The fourth was the dismissal of the case by the lower-court magistrate on a motion for summary judgement because of the release.

The plaintiff argued the release should be read using Texas law because the release was read and signed in Texas.

There was no Jurisdiction and Venue Clause in the Release!

The defendant had the deceased sign two forms. One was a release, and the second was a medical form. Neither form had a venue or jurisdiction clause. Having a medical information formed signed is a quick give away that the defendant does not understand the legal issues involved. The defendant wrote both forms, so they conflicted with each other in some cases and attempted to tie the forms together. Neither really worked.

The plaintiff argued the forms were one because they conflicts would have made both forms basically invalid.

Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise, the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.

However, after a lengthy review, the court found the forms were two different documents and ignored the medical form and the release like language in it.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI.

The next issue is what law should apply to determine the validity of the release. Choice of laws is a compete course you can take in law school. I still have my Choice of Laws’ textbook after all these years because it is a complicated subject that hinges on minutia in some cases to determine what court will hear a case and what law will be applied.

The case was filed in the Federal Court covering Colorado. Since the defendant was not a Texas business or doing business in Texas, the lawsuit needed to be in the defendant’s state. Federal Court was chosen because disputes between citizens of two states should be held in a neutral court, which is the federal courts. A Texan might not feel they are getting a fair deal if they have to sue in a Colorado state court. That is called the venue. What court sitting where will hear the case.

If the defendant had operated in Texas, been served in Texas or had a history of actively looking for clients in Texas this would have been a Texas lawsuit, probably with a different outcome.

So, the decision on what court to sue was somewhat limited. However, that is not the end. Once the court is picked, venue, the next argument is what law will be applied to the situation. The Plaintiff argued Texas Law. Texas has stringent requirements on releases. If Texas law was applied to the release, there was a chance the release would be void under Texas law. The defendant argued Colorado law, which has much fewer requirements for releases.

Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas.

Here is the court’s analysis on what states laws should apply.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

It is not a slam dunk for Colorado law. In this case, the plaintiff made a very good argument that Texas law should apply. The deceased was a Texas resident recruited in Texas by the defendant. The release had been given to the deceased in Texas, and he signed it in Texas. If the analysis ended there Texas law would have applied.

However, there was more to the investigation the court is required to do.

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado.

Honestly, the trial court and appellate court bent over backwards to help this defendant.

This argument switched the discussion from applying Texas law to Colorado law.

Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law; such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

It is significant to note that the court looked at the issue of waiting until customers arrive in the state of Colorado to have them sign the release. The court intimated that doing so would put pressure on them to sign after already traveling to Colorado. Legally, that could be argued as duress, which voids a release or contract.

It is these small statements in decisions that must be watched and remembered so that in the future they are not used to void a release. You must have your clients sign a release as soon as possible and waiting until they travel to Colorado maybe to late to have the release survive in court.

In a rare statement, the court also commented on the outdoor recreation industry in Colorado and the need for releases.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado.

The final analysis the court discussed on the issue was the legal issue of binding effect. When a contract does define what is required to create the contract, such as the signature of both parties to the contract, then the last act that gives life or that is necessary to form the contract is considered the point when the contract was valid. Where that last act occurs is the place where the contract should be litigated and the law that should be applied to the contract. Here the last act occurred when the deceased was in Colorado and the church group he was with, handed over the signed releases.

Further, the considerations and contacts listed in § 188 of the Restatement favor application of Colorado law. As to the first contact, in accord with the commentary, a contract is formed in “the place where occurred the last act necessary to give the contract binding effect.” Here, that act occurred when the church group provided the forms to WEI in Colorado; for, before the forms were provided to WEI, Mr. Hamric had not conveyed his acceptance to WEI, and WEI did not know whether Mr. Hamric would complete the forms and agree to the liability release.

The plaintiff then argued the release did not meet the requirements of Colorado or Texas law. The plaintiff argued the contract was ambiguous. Colorado has five factors that must be considered to determine if a contract is ambiguous.

In general accord with this statement, federal district courts in Colorado have discerned five factors from Colorado Supreme Court decisions to determine if a release is unambiguous: (1) “whether the agreement is written in simple and clear terms that are free from legal jargon”; (2) “whether the agreement is inordinately long or complicated”; (3) “whether the release specifically addresses the risk that caused the plaintiff’s injury”; (4) “whether the contract contains any emphasis to highlight the importance of the information it contains”; and (5) “whether the plaintiff was experienced in the activity making risk of that particular injury reasonably foreseeable.”

The court reviewed the release and found it was not ambiguous. Only one factor the last one, whether the plaintiff has experience in the activity, was possible and the Colorado Supreme Court had weakened that requirement.

The sole factor clearly cutting against enforcement of the liability release is Mr. Hamric’s lack of rappelling experience. However, as noted above, the Colorado Supreme Court has not found this consideration to be dispositive against the enforcement of a liability waiver.

So, the court first determined that the release should be reviewed under Colorado law and then determined that under Colorado law, the release was valid and stopped the claims of the plaintiffs.

Finally, I have to comment about one incredibly stupid move on the part of the defendant. As quoted in the facts and by the court.

Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course.

Besides eliminating the defense of assumption of the risk by doing this, you have created a situation where you have increased the chance of a participant getting injured or as in this case died. You cannot assume a risk which you don’t know about.

First, what are you doing taking beginners rappelling over an overhang. This is not a beginner move.

Second, you have a scary section you CANNOT hide it from people, especially if they cannot see it or understand it. You MUST inform your participants of the risk.

Third, the defendant did not tell the deceased how to correct the problem if they found themselves in a compromised position. That is the main goal of any safety talk, to tell your participants how to keep themselves safe and how to rescue or be rescue.

Fourth, you need to hire new guides because it is clear your current guides do not understand the gravity of the situation, let alone the legal liability, of doing this to someone.

So Now What?

However, for one simple paragraph, or actually, one sentence, this lawsuit would have never gotten off the ground. The issue is a jurisdiction and venue clause. If the release would have stated any lawsuit must be in Colorado and Colorado law must apply, this lawsuit would not have had a chance.

Of special note in writing a release in Colorado and a few other states, if you do not outline or identify the possible risks to the participant signing the release, the release may be ambiguous. This issue is facing more scrutiny by the plaintiffs, and you are seeing more courts have to deal with the issue. On top of that, failing to identify the possible risks, eliminates the defense of assumption of the risk, which might be needed.

The other issue that the court waded through that could have done the defendant in was the competing language in the two contracts. First why collect information you cannot use, such as medical information? Only a physician and the participant have the ability to make the decision, as to whether or not they can medically undertake an activity. If you, the activity, business or program, decide a person can’t participate because of a medical issue, you are practicing medicine without a license which is a crime.

That does not mean you cannot collect information that you might need if a participant is injured.

Worse the above in this case, was both documents attempted to include release language and neither agreement had language stated which one was controlling. If you have your participants sign multiple documents you need to make sure that the release is not voided by another contract. You need to make sure one contract is primary, and the other contact has nothing in it that cancels, modifies or revokes the release.

What do you think? Leave a comment.

Copyright 2021 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

Email: Jim@Rec-Law.US

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

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Hamric v. Wilderness Expeditions, Inc.,

Hamric v. Wilderness Expeditions, Inc.

ALICIA HAMRIC, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor, Plaintiff – Appellant,

v.

WILDERNESS EXPEDITIONS, INC., Defendant-Appellee.

No. 20-1250

United States Court of Appeals, Tenth Circuit

July 26, 2021

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-01442-NYW)

William J. Dunleavy, Law Offices of William J. Dunleavy, Allen, Texas (Stephen A. Justino, Boesen Law, Denver, Colorado, on the briefs), for Plaintiff – Appellant.

Malcolm S. Mead (Peter C. Middleton and Jacob R. Woods with him on the brief), Hall & Evans, Denver, Colorado, for Defendant – Appellee.

Before TYMKOVICH, Chief Judge, HOLMES, and McHUGH, Circuit Judges.

McHUGH, CIRCUIT JUDGE

Gerald Hamric, a Texas resident, joined a church group on an outdoor recreation trip to Colorado. The church group employed the services of Wilderness Expeditions, Inc. (“WEI”) to arrange outdoor activities. Before the outdoor adventure commenced, WEI required each participant, including Mr. Hamric, to complete a “Registration Form” and a “Medical Form.” On the first day, WEI led the church group on a rappelling course. In attempting to complete a section of the course that required participants to rappel down an overhang, Mr. Hamric became inverted. Attempts to rescue Mr. Hamric proved unsuccessful, and he died.

Alicia Hamric, Mr. Hamric’s wife, sued WEI for negligence. WEI moved for summary judgment, asserting the Registration Form and the Medical Form contained a release of its liability for negligence. Ms. Hamric resisted WEI’s motion for summary judgment in four ways. First, Ms. Hamric moved for additional time to conduct discovery under Federal Rule of Civil Procedure 56(d). Second, Ms. Hamric moved for leave to amend her complaint to seek exemplary damages based on willful and wanton conduct. Third, Ms. Hamric filed a motion for leave to disclose an expert out of time. Fourth, Ms. Hamric argued Texas law controlled the validity of the purported liability release in the Registration Form and the Medical Form, and additionally that the release was not conspicuous as required by Texas law.

In a single order, a magistrate judge addressed each of the pending motions. The magistrate judge first declined to grant leave to amend the complaint due to Ms. Hamric’s failure to (1) sustain her burden under Federal Rule of Civil Procedure 16(b) because the deadline for amendments had passed; and (2) make out a prima facie case of willful and wanton conduct as required by Colorado law to plead a claim seeking exemplary damages. Next, the magistrate judge concluded WEI was entitled to summary judgment, holding the liability release was valid under both Colorado law and Texas law. Finally, the magistrate judge denied as moot Ms. Hamric’s motions for additional discovery and to disclose an expert out of time.

We affirm the magistrate judge’s rulings. As to Ms. Hamric’s motion for leave to amend, a party seeking to amend a pleading after the deadline in a scheduling order for amendment must satisfy the standard set out by Federal Rule of Civil Procedure 16(b). But Ms. Hamric concedes she has never sought to satisfy the Rule 16(b) standard. Turning to the discovery motions, where this case hinges on the validity of the liability release and all facts necessary to this primarily legal issue appear in the record, we reject Ms. Hamric’s contentions that further discovery or leave to belatedly disclose an expert were warranted. Finally, while the magistrate judge’s summary judgment analysis was not free of error, we apply de novo review to that ruling. And, under de novo review, we conclude (1) relying on contract law to resolve the choice-of-law issue, as argued for by the parties, Colorado law, rather than Texas law, controls whether the Registration Form and the Medical Form contain a valid liability release; and (2) the forms contain a valid release for negligence by WEI, barring Ms. Hamric’s action.

I. BACKGROUND

A. The Rappelling Excursion, Mr. Hamric’s Death, and the Liability Release

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”[ 1]

The Registration Form has three sections. The first section requires the participant to provide personally identifiable information and contact information. The second section is entitled “Release of Liability & User Indemnity Agreement for Wilderness Expeditions, Inc.” App. Vol. I at 57, 83.[ 2] The text under this bold and underlined header reads, in full: I hereby acknowledge that I, or my child, have voluntarily agreed to participate in the activities outfitted by Wilderness Expeditions, Inc. I understand that the activities and all other hazards and exposures connected with the activities conducted in the outdoors do involve risk and I am cognizant of the risks and dangers inherent with the activities. I (or my child) and (is) fully capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility whether it is obvious or not. I understand and agree that any bodily injury, death, or loss of personal property and expenses thereof as a result of any, or my child’s, negligence in any scheduled or unscheduled activities associated with Wilderness Expeditions, Inc. are my responsibilities. I understand that accidents or illness can occur in remote places without medical facilities, physicians, or surgeons, and be exposed to temperature extremes or inclement weather. I further agree and understand that any route or activity chosen may not be of minimum risk, but may have been chosen for its interest and challenge. I agree to defend, indemnify, and hold harmless Wilderness Expeditions. Inc., the USDA Forest Service, Colorado Parks and Recreation Department, and any and all state or government agencies whose property the activities may be conducted on, and all of their officers, members, affiliated organizations, agents, or employees for any injury or death caused by or resulting from my or my child’s participation in the activities, scheduled and unscheduled, whether or not such injury or death was caused by my, or their, negligence or from any other cause. By signing my initials below, I certify this is a release of liability.

Id.[ 3] Immediately after this paragraph, the form reads, “Adult participant or parent/guardian initial here:(Initials).” Id. The third and final section of the form is entitled: “Adult Agreement or Parent’s/Guardian Agreement for Wilderness Expeditions, Inc.” Id. The text of this provision states: I understand the nature of the activities may involve the physical demands of hiking over rough terrain, backpacking personal and crew gear, and voluntarily climbing mountains to 14, 433 feet in elevation. Having the assurance of my, or my child’s, good health through a current physical examination by a medical doctor, I hereby give consent for me, or my child, to participate in the activities outfitted by Wilderness Expeditions, Inc. I have included in this form all necessary medical information about myself, or my child, that should be known by the leadership of the program. I assure my, or my child’s, cooperation and assume responsibility for my, or my child’s, actions. I understand that I am responsible for any medical expenses incurred in the event of needed medical attention for myself, or my child. I further agree that I will be financially responsible to repair or replace all items lost or abused by myself or my child. In the event of an emergency, I authorize my consent to any X-ray examination, medica1, dental, or surgical diagnosis, treatment, and/or hospital care advised and supervised by a physician, surgeon, or dentist licensed to practice. I understand that the designated next of kin will be contacted as soon as possible. By signing my initials below, I certify this is a release of liability.

Id. And, as with the second section, the form then provides a line for the participant or the parent or guardian of the participant to initial.

The Medical Form has four sections. The first section seeks information about the participant. The second section is entitled “Medical History.” Initially, this section asks the participant if he suffers from a list of medical conditions, including allergies, asthma, and heart trouble. If the participant does suffer from any medical conditions, the form requests that the participant explain the affirmative answer. Thereafter, the section includes the following language: Note: The staff will not administer any medications, including aspirin, Tums, Tylenol, etc. If you need any over the counter medications, you must provide them. Be sure to tell your staff members what medications you are taking. List any medications that you will have with you: Note about food: Trail food is by necessity a high carbohydrate, high caloric diet. It is high in wheat, milk products, sugar, com syrup, and artificial coloring/flavoring. If these food products cause a problem to your diet, you will be responsible for providing any appropriate substitutions and advise the staff upon arrival. * Doctor’s signature is required to participate. No other form can be substituted. By signing below a physician is verifying the medical history given above and approving this individual to participate.

Id. at 58, 84. The form then includes a section titled “Physician’s Evaluation.” Id. This section seeks certification of the participant’s medical capability to partake in the outdoor activities and asks the physician for contact information. It reads: The applicant will be taking part in strenuous outdoor activities that may include: backpacking, rappelling, hiking at 8-12, 000 feet elevation, and an all day summit climb up to 14, 433 feet elevation. This will include high altitude, extreme weather, cold water, exposure, fatigue, and remote conditions where medical care cannot be assured. The applicant is approved for participation. Physician Signature: ___ Date: ___ Physician Name: ___ Phone Number: ___ Office Address: ___ City: ___ State: ___ Zip: ___

Id. The final section of the form is entitled “Participant or Parent/Guardian Signature – All sections of these forms must be initialed or signed.” Id. The text of the section reads: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document[.] I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Id.

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. Id. at 203.

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

B. Procedural History

In the District of Colorado, Ms. Hamric commenced a negligence action against WEI, sounding in diversity jurisdiction. As a matter of right, Ms. Hamric amended her complaint shortly thereafter. See Fed. R. Civ. P. 15(a)(1)(A) (permitting plaintiff to file amended complaint “as a matter of course” within twenty-one days of serving original complaint). The parties, pursuant to 28 U.S.C. § 636(c), consented to a magistrate judge presiding over the case. WEI answered Ms. Hamric’s First Amended Complaint, in part raising the following affirmative defense: “Decedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation form which Defendant relied upon. The execution of these document [sic] bars or reduces [Ms. Hamric’s] potential recovery.” Id. at 31-32.

The magistrate judge entered a Scheduling Order adopting several deadlines: (1) August 31, 2019, for amendments to the pleadings; (2) January 31, 2020, for Ms. Hamric to designate her expert witnesses; and (3) April 10, 2020, for the close of all discovery. The Scheduling Order also noted WEI’s defense based on the purported liability release, stating “[t]he parties anticipate that mediation . . . may be useful to settle or resolve the case after meaningful discovery and summary judgment briefing on the issue of the validity and enforceability of the liability release.” Id. at 38 (emphasis added). Finally, the Scheduling Order concluded with language reminding the parties that the deadlines adopted by the order “may be altered or amended only upon a showing of good cause.” Id. at 42 (italicized emphasis added).

In November 2019, after the deadline for amendments to the pleadings but before the discovery deadlines, WEI moved for summary judgment based on its affirmative defense that both the Registration Form and Medical Form contained a liability release that barred Ms. Hamric’s negligence claim. In support of its motion, WEI contended Colorado law controlled the interpretation and validity of the liability release. Ms. Hamric opposed summary judgment, arguing that because Mr. Hamric completed the forms in Texas, a Colorado court would apply Texas law and that, under Texas law, the liability release was not adequately conspicuous to be valid.

Ms. Hamric also sought to avoid disposition of WEI’s motion for summary judgment and dismissal of her action by filing three motions of her own. First, Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) for additional time to conduct discovery, contending further discovery would, among other things, reveal details about Mr. Hamric’s completion of the forms and whether Colorado or Texas law should control the interpretation and validity of the purported liability release. Second, in February 2020, Ms. Hamric moved pursuant to Federal Rule of Civil Procedure 15(a), for leave to file a second amended complaint to seek exemplary damages under § 13-21-102 of the Colorado Revised Statutes based on new allegations of WEI’s willful and wanton conduct.[ 4] Ms. Hamric’s motion to amend, however, did not cite Federal Rule Civil Procedure 16(b) or seek leave to amend the August 31, 2019, Scheduling Order deadline for amendments to the pleadings. Third, in March 2020, Ms. Hamric moved for leave to disclose out of time a “‘Rappelling/Recreational Activities Safety’ expert.” App. Vol. II at 37. Ms. Hamric contended the expert’s opinions about the training, knowledge, and rescue efforts of the WEI guides supported her contention in her proposed second amended complaint that WEI acted in a willful and wanton manner.

The magistrate judge disposed of the four pending motions in a single order. Starting with Ms. Hamric’s motion for leave to amend her complaint, the magistrate judge concluded Ms. Hamric (1) “failed to meet her burden under Rule 16(b) of establishing good cause to generally amend the operative pleading” and (2) had not made out a prima facie case of wanton and willful conduct. Id. at 94. The magistrate judge then turned to WEI’s motion for summary judgment. The magistrate judge concluded WEI’s affirmative defense raised an issue sounding in contract law such that principles of contract law controlled the choice-of-law analysis. Applying contract principles, the magistrate judge determined that although Texas law imposed a slightly more rigorous standard for enforcing a liability release, the difference between Texas law and Colorado law was not outcome-determinative and the court could, therefore, apply Colorado law. The magistrate judge read Colorado law as holding that a liability release is valid and enforceable “so long as the intent of the parties was to extinguish liability and this intent was clearly and unambiguously expressed.” Id. at 106 (citing Heil Valley Ranch v. Simkin, 784 P.2d 781, 785 (Colo. 1989)). Applying this standard, the magistrate judge held the liability release used clear and simple terms such that, even though Mr. Hamric was inexperienced at rappelling, the release was valid and foreclosed Ms. Hamric’s negligence claim. Therefore, the magistrate judge granted WEI’s motion for summary judgment. And, having denied Ms. Hamric’s motion for leave to amend and granted WEI’s motion for summary judgment, the magistrate judge denied both of Ms. Hamric’s discovery motions as moot.

Ms. Hamric moved for reconsideration, which the magistrate judge denied. Ms. Hamric timely appealed.

II. DISCUSSION

On appeal, Ms. Hamric contests the denial of her motion for leave to amend and the grant of summary judgment to WEI. Ms. Hamric also tacitly challenges the magistrate judge’s denial of her discovery motions. We commence our analysis with Ms. Hamric’s motion for leave to amend, holding the magistrate judge did not abuse her discretion in denying the motion where the motion was filed after the Scheduling Order’s deadline for amendments to pleadings and Ms. Hamric did not attempt to satisfy Federal Rule of Civil Procedure 16(b)’s standard for amending a deadline in a scheduling order. Next, we discuss Ms. Hamric’s two discovery motions, concluding the magistrate judge did not abuse her discretion by denying the motions because (1) WEI’s motion for summary judgment presented a largely legal issue on which all facts necessary for resolution already appeared in the record; and (2) consideration of the proposed expert’s opinions potentially capable of supporting allegations of willful and wanton conduct was mooted upon Ms. Hamric failing to satisfy Rule 16(b)’s standard for amending her complaint to allege such conduct. Finally, we analyze WEI’s motion for summary judgment. Although the magistrate judge’s decision was not free of error, the errors are not outcome determinative on appeal given our de novo standard of review. Exercising de novo review, we conclude Colorado law governs the validity of the liability release. And considering the entirety of both the Registration Form and the Medical Form, we conclude the liability release satisfies the factors in Colorado law for enforceability. Therefore, we affirm the magistrate judge’s grant of summary judgment.

A. Ms. Hamric’s Motion for Leave to Amend

1. Standard of Review

“We review for abuse of discretion a district court’s denial of a motion to amend a complaint after the scheduling order’s deadline for amendments has passed.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015). “An abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.” Id. (quotation marks omitted). “A district court also abuses its discretion when it issues an arbitrary, capricious, whimsical or manifestly unreasonable judgment.” Id. (internal quotation marks omitted).

2. Analysis

“A party seeking leave to amend after a scheduling order deadline must satisfy both the [Federal Rule of Civil Procedure] 16(b) and Rule 15(a) standards.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 989 (10th Cir. 2019). Under the former of those two rules, “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed.R.Civ.P. 16(b)(4). To satisfy this standard a movant must show that “the scheduling deadlines cannot be met despite the movant’s diligent efforts.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014) (internal quotation marks omitted). We have observed the “good cause” standard for amending deadlines in a scheduling order is “arguably [a] more stringent standard than the standards for amending a pleading under Rule 15.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009).

In moving for leave to file a second amended complaint, Ms. Hamric discussed Federal Rule of Civil Procedure 15 and how Colorado law did not permit a plaintiff to seek exemplary damages until after commencement of discovery. But Ms. Hamric did not advance an argument for amending the Scheduling Order as required by Rule 16(b). Nor does Ms. Hamric cite Rule 16(b) in her briefs on appeal, much less explain how she satisfied, in her papers before the magistrate judge, the Rule 16(b) standard. In fact, Ms. Hamric conceded at oral argument that, before the magistrate judge, she sought only to amend her complaint and “did not seek to amend the scheduling order.” Oral Argument at 7:42-7:46; see also id. at 7:31-9:10. Ms. Hamric also conceded at oral argument that she had not advanced an argument on appeal regarding satisfying Rule 16(b).

This omission by Ms. Hamric is fatal to her argument. Specifically, when a party seeking to amend her complaint fails, after the deadline for amendment in a scheduling order, to present a good cause argument under Rule 16(b), a lower court does not abuse its discretion by denying leave to amend. Husky Ventures, Inc. v. B55 Invs. Ltd., 911 F.3d 1000, 1019-20 (10th Cir. 2018). Even if a party who belatedly moves for leave to amend a pleading satisfies Rule 15(a)’s standard, the party must also obtain leave to amend the scheduling order. But Rule 16(b) imposes a higher standard for amending a deadline in a scheduling order than Rule 15(a) imposes for obtaining leave to amend a complaint. Thus, as Husky Ventures suggests, a party’s ability to satisfy the Rule 15(a) standard does not necessitate the conclusion that the party could also satisfy the Rule 16(b) standard. Id. at 1020; see also Bylin, 568 F.3d at 1231 (observing that Rule 16(b) imposes “an arguably more stringent standard than the standards for amending a pleading under Rule 15”). Accordingly, where Ms. Hamric did not attempt to satisfy the Rule 16(b) standard for amending the Scheduling Order, we affirm the district court’s denial of Ms. Hamric’s motion for leave to amend.

B. Ms. Hamric’s Discovery Motions

After WEI moved for summary judgment, Ms. Hamric filed a pair of discovery-related motions-a motion for additional discovery before disposition of WEI’s motion for summary judgment and a motion to disclose an expert out of time. The magistrate judge denied both motions as moot. After stating the applicable standard of review, we consider each motion, affirming the magistrate judge’s rulings.

1. Standard of Review

We review the denial of a Federal Rule of Civil Procedure 56(d) motion for additional discovery for an abuse of discretion. Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1192 (10th Cir. 2015). Likewise, we review the denial of a motion to revisit a scheduling order and allow the disclosure of an expert out of time for an abuse of discretion. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1253-54 (10th Cir. 2011). “We will find an abuse of discretion when the district court bases its ruling on an erroneous conclusion of law or relies on clearly erroneous fact findings.” Ellis, 779 F.3d at 1192 (internal quotation marks omitted). “A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made.” Id. (quotation marks omitted).

2. Analysis

a. Motion for additional discovery

Before the April 10, 2020, deadline for discovery, WEI filed its motion for summary judgment based on the liability release. Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) to delay resolution of WEI’s motion for summary judgment, asserting additional discovery would allow her to learn further information about the liability release. The magistrate judge denied the motion as moot, concluding further discovery was not needed to assess the validity of the liability release.

Under Rule 56(d), a party opposing a motion for summary judgment may seek additional time for discovery. To do so, a party must “submit an affidavit (1) identifying the probable facts that are unavailable, (2) stating why these facts cannot be presented without additional time, (3) identifying past steps to obtain evidence of these facts, and (4) stating how additional time would allow for rebuttal of the adversary’s argument for summary judgment.” Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017). “[S]ummary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). “Requests for further discovery should ordinarily be treated liberally.” Cerveny, 855 F.3d at 1110. “But relief under Rule 56(d) is not automatic.” Id. And Rule 56’s provision allowing a non-moving party to seek additional discovery before disposition on a motion for summary judgment “is not a license for a fishing expedition.” Lewis v. City of Ft. Collins, 903 F.2d 752, 759 (10th Cir. 1990); see also Ellis, 779 F.3d at 1207-08 (affirming denial of Rule 56(d) motion where party “required no further discovery to respond to the . . . summary-judgment motion” and additional discovery sought was speculative).

Through the affidavit supporting her Rule 56(d) motion, Ms. Hamric sought four areas of additional discovery. First, she sought discovery on “the drafting of the purported liability release forms” and the meaning of language on the forms. App. Vol. I at 94. Regardless of whether Colorado or Texas law applies, the four corners of the Registration Form and Medical Form, not WEI’s thought process when drafting the forms, controls the validity of the liability release. See B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 (Colo. 1998) (requiring that intent of parties to extinguish liability be “clearly and unambiguously expressed” (quoting Heil Valley Ranch, 784 P.2d at 785)); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) (“[A] party seeking indemnity from the consequences of that party’s own negligence must express that intent in specific terms within the four corners of the contract.”). Therefore, the drafting process employed by WEI and its understanding of the language of the forms is not relevant to whether the forms included sufficiently specific language to foreclose a claim for negligence.

Second, Ms. Hamric sought to discover information about WEI’s process for distributing the forms and how the church group members, including Mr. Hamric, completed and submitted the forms. Ms. Hamric also requested time to discover matters related to the choice-of-law issue, including the “place of contracting,” “the place of performance,” and “the domicile, residence nationality, place of incorporation and place of business of the parties.” App. Vol. I at 95. Information on these matters, however, was known to Ms. Hamric prior to the magistrate judge’s summary judgment ruling. For instance, the record shows Mr. Hamric received and completed the forms in Texas a few months before the WEI-led excursion and that the church group provided WEI the completed forms upon its arrival at WEI’s location in Colorado. Accordingly, there was no need to delay summary judgment proceedings to discover matters already known to the parties. See Ellis, 779 F.3d at 1207-08.

Third, Ms. Hamric, as part of a challenge to the authenticity of the forms, initially sought to discover information regarding anomalies and alterations on the forms attached to WEI’s motion for summary judgment, as well as evidence of fraud by WEI. Subsequent to Ms. Hamric filing her motion for additional discovery, WEI provided her the original forms signed by Mr. Hamric, and she withdrew her challenge to the authenticity of the forms. Accordingly, by the time the district court ruled on WEI’s motion for summary judgment and Ms. Hamric’s motion for additional discovery, the requests for discovery regarding the authenticity of the forms was moot.

Fourth, Ms. Hamric sought time to discover “evidence of willful and wanton conduct by Defendant WEI and/or by its agents, servants and/or employees.” Id. Discovery on this matter, however, became moot with the magistrate judge’s denial of Ms. Hamric’s motion for leave to amend her complaint to seek exemplary damages and add allegations of willful and wanton conduct, a ruling we affirm. See supra at 12-14, Section II(A).

Having considered each additional discovery request advanced by Ms. Hamric, we conclude the magistrate judge did not abuse her discretion by ruling on WEI’s motion for summary judgment without permitting Ms. Hamric additional time for discovery. Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s Rule 56(d) motion.

b. Motion for leave to disclose expert out of time

Ms. Hamric moved for leave to disclose a “‘Rappelling/Recreational Activities Safety’ expert” out of time. App. Vol. II at 37. Attached to the motion was a Federal Rule of Civil Procedure 26(a)(2) expert disclosure, offering opinions about the alleged negligent and/or willful and wanton conduct of WEI and its employees. The magistrate judge denied this motion as moot. Considering the magistrate judge’s other rulings and our holdings on appeal, we conclude the magistrate judge did not abuse her discretion. Any opinion offered by the expert as to willful and wanton conduct lost relevance with the denial of Ms. Hamric’s motion for leave to amend her complaint to add allegations of willful and wanton conduct and to seek exemplary damages-a ruling we affirmed supra at 12-14, Section II(A). And the expert’s opinion about WEI acting in a negligent manner lost relevance upon the magistrate judge concluding the liability release was valid and barred Ms. Hamric from proceeding on her negligence claim-a ruling we affirm infra at 19-37, Section II(C). Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s motion for leave to disclose an expert out of time.

C. WEI’s Motion for Summary Judgment

After stating our standard of review, we discuss Ms. Hamric’s contentions that the magistrate judge (1) applied the wrong standard when considering WEI’s affirmative defense based on the liability release and (2) resolved issues of disputed fact in favor of WEI. Although we conclude the magistrate judge’s ruling is not free of error, the errors do not bind us because we need not repeat them when conducting our de novo review of the grant of summary judgment. Thus, we proceed to consider the validity of the liability release. In conducting our analysis, we hold that, where the parties contend contract principles provide the framework for our choice-of-law analysis, Colorado law governs the validity of the release.[ 5] And we conclude that, under Colorado law, the liability release is valid and enforceable so as to foreclose Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment.

1. Standard of Review

We review the district court’s rulings on summary judgment de novo. Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson, 477 U.S. at 250. “In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th Cir. 2018) (internal quotation marks omitted). For purposes of summary judgment, “[t]he nonmoving party is entitled to all reasonable inferences from the record.” Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013). Finally, “we can affirm on any ground supported by the record, so long as the appellant has had a fair opportunity to address that ground.” Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 (10th Cir. 2009) (internal quotation marks omitted).

2. Alleged Errors by the Magistrate Judge

Ms. Hamric argues the magistrate judge (1) applied the incorrect standard when considering WEI’s affirmative defense and (2) resolved disputed issues of material fact in favor of WEI. We consider each contention in turn.

a. Standard applicable to affirmative defenses

Ms. Hamric contends the magistrate judge announced an incorrect standard of review and impermissibly shifted evidentiary burdens onto her, as the non-moving party. The disputed language in the magistrate judge’s opinion states: When, as here, a defendant moves for summary judgment to test an affirmative defense, it is the defendant’s burden to demonstrate the absence of any disputed fact as to the affirmative defense asserted. See Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). Once the defendant meets its initial burden, the burden shifts to the nonmovant to put forth sufficient evidence to demonstrate the essential elements of her claim(s), see Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), and to “demonstrate with specificity the existence of a disputed fact” as to the defendant’s affirmative defense, see Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).

App. Vol. II at 100 (emphasis added). Ms. Hamric takes issue with the emphasized phrase.

Nothing on the pages the magistrate judge cited from Anderson and Simms requires a plaintiff responding to a motion for summary judgment based on an affirmative defense to identify evidence supporting each element of her claim. See Anderson, 477 U.S. at 248 (requiring nonmoving party in face of “properly supported motion for summary judgment” to “‘set forth specific facts showing that there is a genuine issue for trial'” (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968))); Simms, 165 F.3d at 1326, 1328 (discussing summary judgment standard in context of employment discrimination claim and burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). In fact, the standard announced by the magistrate judge would unnecessarily require a plaintiff, in response to a motion for summary judgment based on an affirmative defense, to identify evidence supporting elements of her claim never drawn into question by the defendant. Placing such a burden on a plaintiff is all the more problematic where, as here, the parties contemplated a bifurcated summary judgment process initially focused on the validity of the liability release, and WEI filed its motion for summary judgment before the close of discovery.

We have previously stated that a district court errs by requiring a party opposing summary judgment based on an affirmative defense to “establish at least an inference of the existence of each element essential to the case.” Johnson v. Riddle, 443 F.3d 723, 724 n.1 (10th Cir. 2006) (quotation marks omitted). We reaffirm that conclusion today. To defeat a motion for summary judgment, a plaintiff, upon the defendant raising and supporting an affirmative defense, need only identify a disputed material fact relative to the affirmative defense. Id.; Hutchinson, 105 F.3d at 564; see also Leone v. Owsley, 810 F.3d 1149, 1153-54 (10th Cir. 2015) (discussing defendant’s burden for obtaining summary judgment based on an affirmative defense). Only if the defendant also challenges an element of the plaintiff’s claim does the plaintiff bear the burden of coming forward with some evidence in support of that element. See Tesone, 942 F.3d at 994 (“The party moving for summary judgment bears the initial burden of showing an absence of any issues of material fact. Where . . . the burden of persuasion at trial would be on the nonmoving party, the movant may carry its initial burden by providing ‘affirmative evidence that negates an essential element of the nonmoving party’s claim’ or by ‘demonstrating to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.’ If the movant makes this showing, the burden then shifts to the nonmovant to ‘set forth specific facts showing that there is a genuine issue for trial.'” (first quoting Celotex Corp., 477 U.S. at 330, then quoting Anderson, 477 U.S. at 250)); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (if summary judgment movant carries its initial burden of showing a lack of evidence in support of an essential element of plaintiff’s claim, “the burden shifts to the nonmovant to go beyond the pleadings and set forth specific facts” supporting the essential element (internal quotation marks omitted)).

The magistrate judge’s erroneous statement regarding Ms. Hamric’s burden, however, does not foreclose our ability to further review the grant of summary judgment. Rather, in accord with the applicable de novo standard of review, we review WEI’s motion for summary judgment under the standard that “should have been applied by the [magistrate judge].”[ 6] Nance v. Sun Life Assurance Co. of Can., 294 F.3d 1263, 1266 (10th Cir. 2002) (quotation marks omitted).

b. Resolution of disputed issues of material fact

Ms. Hamric contends the magistrate judge impermissibly resolved two issues of disputed fact in WEI’s favor. We discuss each asserted factual issue in turn, concluding factual disputes existed and the magistrate judge incorrectly resolved one of the disputes against Ms. Hamric. However, even if this factual dispute were material, we may proceed to analyze the validity of the liability release after resolving the dispute in Ms. Hamric’s favor. See Lincoln, 900 F.3d at 1180 (“In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” (internal quotation marks omitted)).

i. Language of Registration Form and Medical Form

In moving for summary judgment, WEI’s brief contained edited versions of the Registration Form and Medical Form that focused the reader’s attention on the language most pertinent to Mr. Hamric’s participation in the outdoor excursion and the release of liability. For instance, the version of the forms in WEI’s brief left out phrases such as “(or my child)” and the accompanying properly-tensed-and-conjugated verb that would apply if the forms were completed by a parent or guardian of the participant, rather than by the participant himself. Compare App. Vol. I at 46, with id. at 57, 83.

Although WEI and Ms. Hamric attached full versions of the forms to their papers on the motion for summary judgment, the magistrate judge’s quotation of the language in the forms mirrored that which appeared in WEI’s brief. Ms. Hamric contends the magistrate judge, in not quoting the full forms, resolved a dispute of fact regarding the language of the forms in WEI’s favor. It is not uncommon for a court to focus on the pertinent language of a contract or liability release when putting forth its analysis. In this case, Ms. Hamric claims the forms should be reviewed on the whole. Although there is no indication the magistrate judge did not review the forms in their entirety, despite her use of incomplete quotations, we attach full versions of the Registration Form and Medical Form completed by Mr. Hamric as an appendix to this opinion. And we consider all the language on the forms when assessing whether the forms contain a valid liability release.

ii. Registration Form and Medical Form as single form

The magistrate judge viewed the Registration Form and the Medical Form as a single, “two-page agreement.” App. Vol. II at 103; see also id. at 101 (“Adult customers are required to execute a two-page agreement with WEI before they are permitted to participate in WEI-sponsored activities. The first page of the agreement is a ‘Registration Form’, followed by a ‘Medical Form’ on page two.”). Ms. Hamric contends the two forms are separate agreements, not a single agreement. While a jury could have concluded that the Registration Form and Medical Form were separate agreements, this dispute of fact is not material given applicable law regarding the construction of agreements that are related and simultaneously executed.

It is clear from the record that a participant needed to complete both forms before partaking in the WEI-lead excursion. Further, while the Medical Form required a signature and a date, the Registration Form required only that a participant place his initials on certain lines, suggesting the forms were part of a single agreement. However, the forms do not contain page numbers to indicate they are part of a single agreement. Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

App., Vol. I at 58, 84 (emphases added). Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.[ 7] Accord Navajo Nation v. Dalley, 896 F.3d 1196, 1213 (10th Cir. 2018) (describing the cannon of expressio unius est exclusio alterius as providing “that the ‘expression of one item of an associated group or series excludes another left unmentioned'” and that “the enumeration of certain things in a statute suggests that the legislature had no intent of including things not listed or embraced.” (quoting NLRB v. SW Gen., Inc., 137 S.Ct. 929, 940 (2017))). Thus, a reasonable jury could have found the Registration Form and the Medical Form were separate agreements.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI. Under Colorado law, it is well established that a court may, and often must, construe two related agreements pertaining to the same subject matter as a single agreement. See Bledsoe v. Hill, 747 P.2d 10, 12 (Colo.App. 1987) (“If a simultaneously executed agreement between the same parties, relating to the same subject matter, is contained in more than one instrument, the documents must be construed together to determine intent as though the entire agreement were contained in a single document. Although it is desirable for the documents to refer to each other, there is no requirement that they do so.” (citing In re Application for Water Rights v. N. Colo. Water Conservancy Dist., 677 P.2d 320 (Colo. 1984); Harty v. Hoerner, 463 P.2d 313 (Colo. 1969); Westminster v. Skyline Vista Dev. Co., 431 P.2d 26 (Colo. 1967))).[ 8] Thus, although a jury could conclude the Registration Form and Medical Form technically constitute separate agreements, we consider the agreements together when determining if Mr. Hamric released WEI for its negligent acts.

3. Choice-of-Law Analysis

At the heart of WEI’s motion for summary judgment was whether Colorado or Texas law controls and whether the release is valid under the appropriate law. On appeal, Ms. Hamric contends “contract principles” control the choice-of-law analysis because WEI’s affirmative defense “was a contract issue on a purported agreement to release liability.” Opening Br. at 26-27. Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas. WEI agrees that if contract principles govern the choice-of-law issue, the Restatement (Second) on Conflict of Laws provides the appropriate factors for this court to consider. But WEI contends (1) the liability release is valid under both Colorado and Texas law and (2) the relevant factors in §§ 6 and 188 of the Restatement favor application of Colorado law if this court is inclined to resolve the conflict-of-law issue.

Outdoor recreation and tourism is a growing industry in Colorado, as well as several other states within our circuit. And many outdoor tourism outfitters, like WEI, require participants to complete forms containing liability releases. See Redden v. Clear Creek Skiing Corp., ___ P.3d ___, 2020 WL 7776149, at *2 (Colo.App. Dec. 31, 2020); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 947-48 (Colo.App. 2011); see also Dimick v. Hopkinson, 422 P.3d 512, 515-16 (Wyo. 2018); Penunuri v. Sundance Partners, Ltd., 301 P.3d 984, 986 (Utah 2013); Beckwith v. Weber, 277 P.3d 713, 716-17 (Wyo. 2012). With the prevalence and recurrence of questions regarding the validity of liability releases in mind, and viewing the choice-of-law issue as sounding in contract law as urged by the parties, we consider whether the law of the state where the outdoor recreation company is based and the outdoor excursion occurs controls or whether the law of the state of residence of the participant controls.

a. Framework for choice-of-law analysis

“In a diversity action we apply the conflict-of-laws rules of the forum state.” Kipling v. State Farm Mut. Auto. Ins. Co., 774 F.3d 1306, 1310 (10th Cir. 2014). “This is true even when choice of law determinations involve the interpretation of contract provisions.” Shearson Lehman Brothers, Inc. v. M & L Invs., 10 F.3d 1510, 1514 (10th Cir. 1993). Accordingly, this court must look to Colorado choice-of-law rules to determine if Colorado or Texas law applies.

“Colorado follows the Restatement (Second) of Conflict of Laws (1971) . . . for both contract and tort actions,” Kipling, 774 F.3d at 1310 (citing Wood Brothers Homes, Inc. v. Walker Adjustment Bureau, 601 P.2d 1369, 1372 (Colo. 1979); First Nat’l Bank v. Rostek, 514 P.2d 314, 319-20 (Colo. 1973)). Absent a forum-state “statutory directive,” the Restatement advises a court to consider seven factors: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws: Choice-of-Law Principles § 6 (Am. L. Inst. 1971). The commentary to § 6 identifies the first factor as “[p]robably the most important function of choice-of-law rules” because choice-of-law rules are designed “to further harmonious relations between states and to facilitate commercial intercourse between them.” Id. § 6 cmt. d. Meanwhile, the second factor takes into account any special interests, beyond serving as the forum for the action, that the forum state has in the litigation. Id. § 6 cmt. e. As to the fourth factor-“the protection of justified expectations, “- the comments to § 6 note: This is an important value in all fields of the law, including choice of law. Generally speaking, it would be unfair and improper to hold a person liable under the local law of one state when he had justifiably molded his conduct to conform to the requirements of another state.

Id. § 6 cmt. g.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws: Law Governing in Absence of Effective Choice by the Parties § 188.

b. Colorado law controls

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado. Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law, such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado. Such an approach is impractical and illogical.

Further, the considerations and contacts listed in § 188 of the Restatement favor application of Colorado law. As to the first contact, in accord with the commentary, a contract is formed in “the place where occurred the last act necessary to give the contract binding effect.” Id. § 188 cmt. e. Here, that act occurred when the church group provided the forms to WEI in Colorado; for, before the forms were provided to WEI, Mr. Hamric had not conveyed his acceptance to WEI and WEI did not know whether Mr. Hamric would complete the forms and agree to the liability release. See Scoular Co. v. Denney, 151 P.3d 615, 619 (Colo.App. 2006) (discussing means of accepting an offer and stating “general rule that communication is required of the acceptance of the offer for a bilateral contract”). The second contact consideration is not applicable because the terms of the Medical Form precluded alteration, and there is no suggestion in the record Mr. Hamric attempted to negotiate the terms of the liability release before signing the forms. The third and fourth factors heavily favor application of Colorado law because WEI provides outdoor excursion services in Colorado, not Texas, and Mr. Hamric knew such when he signed the forms. Finally, the fifth factor is neutral because Mr. Hamric was a resident of Texas and WEI has its place of business in Colorado. With three factors favoring Colorado law, one factor inapplicable, and one factor neutral, the overall weight of the § 188 factors favors application of Colorado law.

Concluding that both § 6 and § 188 of the Restatement strongly support application of Colorado law, we hold that a Colorado court would choose to apply Colorado law, not Texas law, when determining whether the Registration Form and Medical Form contain a valid liability release. We, therefore, proceed to that analysis.

4. The Liability Release Is Valid under Colorado Law

Under Colorado law, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, 784 P.2d at 783.But, such “[e]xculpatory agreements are not necessarily void,” as courts recognize that “[t]hey stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts.” Id. at 784.In assessing the validity of a release, “a court must consider: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981); see also Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (a release agreement “must be closely scrutinized to ensure that the intent of the parties is expressed in clear and unambiguous language and that the circumstances and the nature of the service involved indicate that the contract was fairly entered into”).

Ms. Hamric challenges only WEI’s ability to show “whether the intention of the parties is expressed in clear and unambiguous language.”[ 9] “To determine whether the intent of the parties is clearly and unambiguously expressed, [the Colorado Supreme Court has] examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick, 100 P.3d at 467. In general accord with this statement, federal district courts in Colorado have discerned five factors from Colorado Supreme Court decisions to determine if a release is unambiguous: (1) “whether the agreement is written in simple and clear terms that are free from legal jargon”; (2) “whether the agreement is inordinately long or complicated”; (3) “whether the release specifically addresses the risk that caused the plaintiff’s injury”; (4) “whether the contract contains any emphasis to highlight the importance of the information it contains”; and (5) “whether the plaintiff was experienced in the activity making risk of that particular injury reasonably foreseeable.” Salazar v. On the Trail Rentals, Inc., Civil Action No. 11-cv-00320-CMA-KMT, 2012 WL 934240, at *4 (D. Colo. Mar. 20, 2012) (deriving factors from Heil Valley Ranch, 784 P.2d at 785; Chadwick, 100 P.3d at 467); see also Eburn v. Capitol Peak Outfitters, Inc., 882 F.Supp.2d 1248, 1253 (D. Colo. 2012) (citing factors set forth in Salazar). Each and every factor, however, need not be satisfied for a court to uphold the validity of a liability release, as the Colorado Supreme Court has upheld the validity of a release where the signor was a novice at the outdoor activity in question. See B & B Livery, Inc., 960 P.2d at 138 (upholding liability release without finding every factor favored validity); id. at 139-40 (Hobbs, J., dissenting) (discussing signor’s inexperience riding horses).

The first four factors taken from Heil Valley Ranch and Chadwick support the validity of the liability release in the Registration Form and Medical Form. The forms span a mere two pages, with language pertinent to the liability release in only four sections of the forms. And those four sections are generally free of legal jargon. For instance, in detailing the scope of the release, the Registration Form required the participant/signor to “hold harmless Wilderness Expeditions, Inc. . . . for any injury or death caused by or resulting from my or my child’s participation in the activities.”[ 10] App. Vol. I at 57, 83. And this language comes after the form describes several of the risks associated with the activities, including “that accidents or illness can occur in remote places without medical facilities” and that “any route or activity chosen [by WEI] may not be of minimum risk, but may have been chosen for its interest and challenge.” Id. The Registration Form also twice places bolded emphasis on the fact that a participant was releasing WEI from liability: “By signing my initials below, I certify this is a release of liability.”Id. Finally, although not explicitly a factor identified by Colorado courts, we observe WEI provided the church group with the forms, and Mr. Hamric completed the forms, months before the booked excursion. Thus, if Mr. Hamric personally had difficulty understanding any of the language on the forms, he had ample time to contact WEI for an explanation or consult legal counsel.

The sole factor clearly cutting against enforcement of the liability release is Mr. Hamric’s lack of rappelling experience. However, as noted above, the Colorado Supreme Court has not found this consideration to be dispositive against the enforcement of a liability waiver. See B & B Livery, Inc., 960 P.2d at 138-39. And, where the liability release between Mr. Hamric and WEI is otherwise clear, specific, and uncomplicated, Mr. Hamric’s lack of experience rappelling is insufficient to defeat the release as a whole.

Accordingly, applying Colorado law, we hold the liability release is valid and its enforcement bars Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment in favor of WEI.

III. CONCLUSION

We affirm the denial of Ms. Hamric’s motion for leave to amend her complaint because the magistrate judge did not abuse her discretion where Ms. Hamric did not attempt to satisfy the Federal Rule of Civil Procedure 16(b) standard for amending the Scheduling Order. We also affirm the denial of Ms. Hamric’s discovery motions, holding the magistrate judge did not abuse her discretion where the items Ms. Hamric sought to discover were either already in the record, were not necessary to determine the validity of the liability release, or went to Ms. Hamric’s effort to obtain exemplary damages, which she could not pursue given the denial of her motion for leave to amend her complaint. Finally, applying de novo review to the choice-of-law issue and the issue regarding the validity of the liability release, we conclude Colorado law applies and the release is valid and enforceable under that law. Therefore, we affirm the magistrate judge’s grant of summary judgment to WEI.

———

Notes:

[ 1]Here, we summarize the Registration Form and the Medical Form. Copies of the full forms, taken from the Appendix submitted by Ms. Hamric, are attached to this opinion. We rely on the full forms, and all of the language thereon, when conducting our analysis. Further, as discussed infra at 25-27, Section II(C)(2)(b)(ii), while the Registration Form and Medical Form could be viewed as separate forms, Colorado law requires us to consider both forms together when conducting our analysis.

[ 2]Throughout our opinion, we cite simultaneously to the Registration Form or Medical Form attached to WEI’s motion for summary judgment, App. Vol. I at 57- 58, and the Registration Form or Medical Form attached to Ms. Hamric’s response to WEI’s motion for summary judgment, id. at 83-84. Although the language of the two sets of forms are identical, the clarity of the text varies somewhat, seemingly based on the proficiency of the respective copy machines used by the parties.

[ 3]In quoting the forms, we seek to replicate the font size, spacing, and bolding of the text of the Registration Form and Medical Form completed by Mr. Hamric.

[ 4] Under Colorado law: A claim for exemplary damages in an action governed by [§ 13-21-102 of the Colorado Revised Statutes] may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after the exchange of initial disclosures . . . and the plaintiff establishes prima facie proof of a triable issue.

Colo. Rev. Stat. § 13-21-102(1.5)(a).

[ 5]Although Ms. Hamric’s action sounds in tort law, on appeal, the parties do not contend that tort principles provide the framework for the choice-of-law analysis regarding the liability release. Thus, we reach no conclusion as to whether Colorado law or Texas law would govern if tort principles played a role in the choice-of-law analysis.

[ 6]While the magistrate judge incorrectly stated the standard governing WEI’s motion for summary judgment, it is not apparent the magistrate judge’s analysis and conclusion that WEI was entitled to summary judgment hinged on Ms. Hamric’s failure to identify evidence supporting each element of her negligence claim. Rather, the magistrate judge correctly granted WEI summary judgment based on the liability release and WEI’s affirmative defense.

[ 7]WEI has advanced inconsistent positions on whether the Registration Form and Medical Form comprised a single agreement. Although on appeal WEI argues the forms constitute a single agreement releasing liability, WEI’s Answer to Ms. Hamric’s Complaint treats the two forms as separate agreements, stating that “[d]ecedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation.” App. Vol. I at 32 (emphasis added).

[ 8]Although we conclude that Colorado law, not Texas law, controls the validity of the liability release, infra at 28-33, Section II(C)(3), Texas law likewise permits a court to read separate but related documents together when determining the intent of the parties, see Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (“The City’s argument ignores well-established law that instruments pertaining to the same transaction may be read together to ascertain the parties’ intent, even if the parties executed the instruments at different times and the instruments do not expressly refer to each other, and that a court may determine, as a matter of law, that multiple documents comprise a written contract. In appropriate instances, courts may construe all the documents as if they were part of a single, unified instrument.” (footnotes omitted)).

[ 9]Ms. Hamric also argues that the question of whether Mr. Hamric and WEI entered into a liability release was a question of fact for a jury. But Ms. Hamric withdrew her fact-based challenge to the authenticity of the forms. Further, under Colorado law, “[t]he determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). And, where a liability release has force only if it is “clear and unambiguous,” id., the question of the existence of a liability release and its validity are one in the same because if the language relied on by a defendant does not form a valid release, then no liability release exists.

[ 10] The omitted language marked by the ellipses also required a signor/participant to hold federal and state agencies harmless for injuries or death that might occur as a result of WEI-led activities on federal or state land. Like the rest of the release, this language is plain and clear such that any reasonably educated individual would understand the nature of the release as to these third parties.


This is why you should BOYCOTT NEW HAMPSHIRE! Do not recreate in this state.

New Hampshire charges for Search & Rescue. To be able to charge it must prove you were negligent. If you get hurt or need rescued you are NEGLIGENT in New Hampshire.

N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 116 A.3d 1060, 2015 N.H. LEXIS 34

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: New Hampshire Fish and Game Department

Defendant: Edward Bacon

Plaintiff Claims: Negligent

Defendant Defenses: No proof that the defendants actions were negligent

Holding: For the Plaintiff, state of New Hampshire

Year: 2015

Summary

A law in New Hampshire, which you cannot beat or get around, requires the state to charge you for the costs of search and rescue. The court simply stated the New Hampshire Fish & Game statement that the actions of the defendant were negligent. Proof was the prior injuries the plaintiff had suffered in his life. Boycott New Hampshire.

Facts

On September 16, 2012, the defendant began a five-day solo hiking trip in the White Mountains, during which he planned to hike several mountains with summits over 5,000 feet. At the time of the hike, the defendant was fifty-nine years old, had undergone four hip surgeries since 2005, and had an artificial hip that had dislocated on five occasions, twice during the prior year. The defendant also had a “bad back” and was taking a variety of medications for multiple ailments. In preparation for his hike, the defendant trained in a city park in Michigan, which had 250-foot hills and some “gravelly” spots. The conditions on the Franconia Ridge Trail between Liberty and Little Haystack Mountains, on which the rescuers eventually located the defendant, are rocky and steep in various locations.

On September 18, the defendant left the Liberty Springs campsite to begin a planned hike to the summits of Liberty, Little Haystack, Lincoln, and Lafayette Mountains; he planned to end at the Greenleaf Hut, which provides overnight accommodations to hikers. Days in advance, stormy weather had been forecast for the morning the defendant began the hike, and rain began a few hours after he departed the campsite. A bit later, the defendant’s pack cover “on its own accord came off and flew away in the wind.” Sergeant Brad Morse, a Conservation Officer with the Department who helped rescue the defendant, testified that the winds were among the worst he had ever experienced in that part of the Franconia Ridge Trail and had repeatedly blown him to the ground. Sometime that morning, the defendant slipped on loose gravel, slid down the trail, hit his pack on a rock, and lost his tent which fell down a ravine. At noon time, the defendant took a photograph of two other hikers he encountered on the trail, both of whom were wearing full rain gear with their hoods over their heads.

At around 1:00 p.m., the defendant encountered a waist-high rock ledge that he needed to traverse in order to continue on the trail. He attempted to jump backward up onto the ledge and, in the process, fell and dislocated his hip. Approximately one hour later, Morse received an alert that a hiker had dislocated his hip and needed assistance. He responded immediately and eventually located the defendant on the trail between Little Haystack and Lincoln Mountains. Morse testified that when he found the defendant his left leg was flexed and internally rotated, the very position that the defendant’s orthopedic surgeon had warned him to avoid due to his hip replacement.

Approximately fifteen Department personnel and thirty-five volunteers participated in the defendant’s rescue during the afternoon and evening of September 18 and into the early morning hours of September 19. When Lieutenant James Kneeland visited the defendant in the hospital after his rescue, the defendant explained that he had misread the weather report: he thought the forecast called for 30-40 mph winds with gusts up to 70 mph and heavy rain, instead of the actual forecast of 30-40 mph winds increasing to 70 mph and heavy rain. The defendant also told Kneeland that he had caught his left leg while attempting to jump backward up onto a rock ledge and dislocated his artificial hip when he fell.

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

The New Hampshire Supreme Court first looked at the statute in question.

§ 206:26-bb. Search and Rescue Response Expenses; Recovery

I. Any person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department for the reasonable cost of the department’s expenses for such search and rescue response, unless the person shows proof of possessing a current version of any of the following:

(a)    A hunting or fishing license issued by this state under title XVIII.

(b)    An OHRV registration under RSA 215-A, a snowmobile registration under RSA 215-C, or a vessel registration under RSA 270-E.

(c)    A voluntary hike safe card. The executive director shall adopt rules under RSA 541-A for the issuance to purchasers on the department’s Internet site, and subsequent annual renewals, of a hike safe card prior to a person’s need for a search and rescue response. The annual fee for a hike safe card shall be $25 for an individual or $35 for a family. A “family” shall consist of the purchaser, the purchaser’s spouse, and the purchaser’s minor children or stepchildren. In addition, if the purchaser or the purchaser’s spouse has been appointed as a family guardian for an individual under RSA 464-A, that individual shall be considered part of the purchaser’s family. A transaction fee determined by the department shall be for the Internet license agent as provided in RSA 214-A:2. The executive director shall forward to the state treasurer the sum collected from each individual hike safe card purchased and each family hike safe card purchased, less the amount of such transaction fee, for deposit in the fish and game search and rescue fund under RSA 206:42.

I-a.    The executive director shall bill the responsible person for such costs. Payment shall be made to the department within 30 days after the receipt of the bill, or by some other date determined by the executive director. If any person shall fail or refuse to pay the costs by the required date, the department may pursue payment by legal action, or by settlement or compromise, and the responsible person shall be liable for interest from the date that the bill is due and for legal fees and costs incurred by the department in obtaining and enforcing judgment under this paragraph. All amounts recovered, less the costs of collection and any percentage due pursuant to RSA 7:15-a, IV(b), shall be paid into the fish and game search and rescue fund established in RSA 206:42.

II.    If any person fails to make payment under paragraph I, the executive director of the fish and game department may:

(a)    Order any license, permit, or tag issued by the fish and game department to be suspended or revoked, after due hearing.

(b)    Notify the commissioner of the department of health and human services of such nonpayment. The nonpayment shall constitute cause for revocation of any license or certification issued by the commissioner pursuant to RSA 126-A:20 and RSA 151:7.

(c)    Notify the director of motor vehicles of such nonpayment and request suspension of the person’s driver’s license pursuant to RSA 263:56.

III.    Regardless of a person’s possession of a document satisfying subparagraph I(a), (b), or (c), a person shall be liable to the department for search and rescue response expenses if the person is judged to have done any of the actions listed in RSA 153-A:24, I.

As you can see in reading the statute, there is no definition of what a negligent act might be in New Hampshire that would trigger this requirement. To the best of my knowledge and research, neither does the New Hampshire Fish & Game Department. EVERY ACT where a rescue is run is negligence and everyone gets charged.

There are four steps to prove negligence in most states. Duty, Breach of the Duty, Injury and Damages. The last to I suppose are the cost of the rescue to New Hampshire. But what is the duty of care and who is the duty of care owed too?

A duty is a level of doing or not doing something, below which the action or in action is actionable if it causes injury. So, a hiker, as in this case, owed a duty to New Hampshire? For what? There is a duty not to get injured? There is a duty not to require assistance in getting out of the backcountry? If the duty is either of those issues, then there is a breach of duty every time and thus negligence every time.

However, at no time, has New Hampshire ever argued or proved any duty. No other state has ever identified a duty of a person away from the city owing a duty to the state to be good.

If the failure to be good is so great it violates a criminal act, that is another story. A criminal act is action so bad it causes harm to an individual or society. So, is New Hampshire arguing that an individual causing a financial loss to the state is breaching a duty to the state? Absurd!

This is how the court explained the duty of care in this case.

Also plain is that the statute imposes as the duty of care the common law standard of negligence, which we have defined as how a reasonable person would be expected to act under the same circumstances. Thus, in order to avoid liability for search and rescue costs, the defendant must have hiked in a manner that was reasonable under all of the circumstances.

Hiking in a manner that is reasonable under all circumstances” If this is the standard of care, then every hiker in New Hampshire is violating the standard of care. What is reasonable? In this case, there was no expert testimony as to the reasonableness of what the defendant did. Is it reasonable to step on a rock that may roll causing the hiker to fall. Or is it reasonable to step in the mud and water between the rocks suffering foot injury, cold and other injuries.

If you can’t Hike in a Manner that is Reasonable under ALL Circumstances, don’t go to New Hampshire.

The court continued to justify its findings.

As previously stated, a person violates RSA 206:26-bb by not acting as a reasonable person would have acted under the same circumstances. The defendant argues that he did not act negligently because he was prepared for the conditions, physically capable, had proper equipment, and had adequately planned his hike. The trial court concluded to the contrary when it found that the defendant did not act as a reasonably prudent hiker would have acted under the same circumstances.

What more is needed to hike other than prepared for the conditions, physically capable and proper equipment? The 10 essentials (which there are hundreds of versions of) seems to be covered here.

However, the court found the defendant was not reasonable because of his prior injuries.

…the defendant had undergone multiple hip surgeries; he had an artificial hip that had dislocated five times, twice within the year prior to his hike; he had trained in a city park that did not remotely resemble the challenging terrain he would experience in the White Mountains; he had continued his hike despite the fact that bad weather had been forecast days in advance and that he encountered high winds and rain early into his hike; and he chose to jump backward over a rock ledge he was unable to pass, despite his artificial hip and experience with hip dislocation.

So, anyone with any prior injury should not hike in New Hampshire because that is proof, they are hiking in a reasonable manner under all circumstances.

I wonder what the Americans with Disabilities Act says about that?

And because the defendant had had prior injuries, it was foreseeable as determined by the NH Fish & Game and the court that he would get injured again.

To the extent that the defendant argues that his injury was not foreseeable, we agree with the trial court’s conclusions that the defendant’s injury was foreseeable and directly caused his need to be rescued by the Department.

This explains why there are no professional sports teams in New Hampshire, they would spend the off-season in court. Fans could sue any team arguing that since they played previously injured players, they were negligent in playing them in New Hampshire.

So Now What?

What is the real issue? The real issue is this puts rescuers at greater risk. Instead of calling at 2:00 PM in the afternoon when the weather is sunny and nice, a victim waits and calls when they are desperate, 2:00 AM. Darkness, bad weather, and little sleep put rescuers at greater risk of becoming injured in a rescue. Charging for a rescue puts rescuers at risk!

Besides the simple fact that charging for rescues increases the risk to the people in trouble and the rescuers, New Hampshire continues to do so. Either to keep people from recreating in the state or because the Legislators & the Courts are not too bright or refuse to understand.

To not pay New Hampshire for a rescue, recreate in a state other than New Hampshire.

Boycott New Hampshire

#BoycottNewHampshire

For additional Articles & Support on this subject see:

Who Charges for Search and Rescue?    http://rec-law.us/xtM6hp

Update: Give me a break! Teen charged $25K for a rescue he did not need    http://rec-law.us/zndiA7

What do you think? Leave a comment.

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N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 116 A.3d 1060, 2015 N.H. LEXIS 34

N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 116 A.3d 1060, 2015 N.H. LEXIS 34 

Supreme Court of New Hampshire

January 15, 2015, Argued; April 30, 2015, Opinion Issued

No. 2014-158

New Hampshire Fish and Game Department v. Edward Bacon

Prior History:  [***1]  6th Circuit Court — Concord District Division.

NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

NH1.[] 1.

Negligence > Standard of Care > Ordinary and Reasonable Care

The search and rescue response statute plainly is intended to create a statutory cause of action in favor of the New Hampshire Fish and Game Department to recover the costs it incurs in conducting a search and rescue operation for a person whose negligent conduct required such an operation. Whether or not a common law duty exists, a plaintiff may maintain an action directly under a statute if a statutory cause of action is either expressed or implied by the legislature. Also plain is that the statute imposes as the duty of care the common law standard of negligence, which has been defined as how a reasonable person would be expected to act under the same circumstances. Thus, in order to avoid liability for search and rescue costs, the defendant must have acted in a manner that was reasonable under all of the circumstances. Accordingly, the trial court did not err in using the common law standard of negligence to evaluate defendant’s conduct under the statute. RSA 206:26-bb.

NH2.[] 2.

Appeal and Error > Standards of Review > Generally

The court will uphold the trial court’s findings and rulings unless they lack evidentiary support or are legally erroneous. It is within the province of the trial court to accept or reject, in whole or in part, whatever evidence was presented, including that of the expert witnesses. The standard of review is not whether the court would rule differently than the trial court, but whether a reasonable person could have reached the same decision as the trial court based upon the same evidence. Thus, the court defers to the trial court’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence.

NH3.[] 3.

Negligence > Proceedings > Generally

In determining that a hiker was liable under the search and rescue response statute for his rescue costs, the trial court properly found that he was negligent when he had undergone multiple hip surgeries, had an artificial hip that had dislocated five times, had trained in a city park that did not remotely resemble the challenging mountain terrain he [*592]  would experience, had continued his hike despite the fact that bad weather had been forecast days in advance and when he encountered high winds and rain early on, and chose to jump backward over a rock ledge he was unable to pass. RSA 206:26-bb.

NH4.[] 4.

Negligence > Proximate Cause > Tests and Standards

To establish proximate cause a plaintiff must show that the defendant’s conduct caused or contributed to cause the harm.

NH5.[] 5.

Damages > Practice and Procedure > Generally

In reviewing damage awards, the court will consider the evidence in the light most favorable to the prevailing party. Furthermore, the court will not disturb the decision of the fact-finder unless it is clearly erroneous. The law does not require absolute certainty for recovery of damages. The court does, however, require an indication that the award of damages was reasonable.

NH6.[] 6.

Negligence > Damages > Particular Cases

The damage award of $9,186.38 against a rescued hiker who was found to have been negligent under the search and rescue response statute was reasonable when it represented the costs for the 15 people who participated in the rescue, including overtime, mileage, and benefits. The hiker’s argument that the Fish and Game Department employees were on duty and would have been paid regardless of their participation in the rescue failed to take into account the overtime paid, and also ignored the fact that by being diverted to the rescue operation, the employees were unable to perform their other assigned duties. RSA 206:26-bb.

NH7.[] 7.

Environment and Natural Resources > Game and Fish > Particular Matters

The search and rescue response statute specifically states that the New Hampshire Fish and Game Department is to receive the reasonable costs associated with a rescue. Nothing in the statute otherwise limits the Department’s recovery, and the court will not add limiting language to the statute that the legislature did not include. RSA 206:26-bb.

NH8.[] 8.

Statutes > Generally > Legislative History or Intent

A court interprets legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.

Counsel: Joseph A. Foster, attorney general (Philip B. Bradley, assistant attorney general, on the brief and orally), for the State.
Seufert, Davis & Hunt, PLLC, of Franklin (Brad C. Davis on the brief and orally), for the defendant.

Judges: LYNN, J. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

Opinion by: LYNN

Opinion

 [**1062]  Lynn, J. The defendant, Edward Bacon, appeals an order of the Circuit Court (Boyle, J.), following a bench trial, finding that he violated RSA 206:26-bb (2011) (amended 2014) by acting negligently while hiking, so as to require a search and rescue effort by the plaintiff, the New Hampshire Fish and Game Department (Department), and that he, thus, was responsible to the Department for the reasonable costs associated with the search and rescue. We affirm.

I

The following facts are established by the record. On September 16, 2012, the defendant began a five-day solo hiking trip in the White [*593]  Mountains, during which he planned to hike several mountains with summits over 5,000 feet. At the time of the hike, the defendant was fifty-nine years old, had undergone four hip surgeries since 2005, and had an artificial hip that had dislocated on five occasions, twice [***2]  during the prior year. The defendant also had a “bad back” and was taking a variety of medications for multiple ailments. In preparation for his hike, the defendant trained in a city park in Michigan, which had 250-foot hills and some “gravelly” spots. The conditions on the Franconia Ridge Trail between Liberty and Little Haystack Mountains, on which the rescuers eventually located the defendant, are rocky and steep in various locations.

 [**1063]  On September 18, the defendant left the Liberty Springs campsite to begin a planned hike to the summits of Liberty, Little Haystack, Lincoln, and Lafayette Mountains; he planned to end at the Greenleaf Hut, which provides overnight accommodations to hikers. Days in advance, stormy weather had been forecast for the morning the defendant began the hike, and rain began a few hours after he departed the campsite. A bit later, the defendant’s pack cover “on its own accord came off and flew away in the wind.” Sergeant Brad Morse, a Conservation Officer with the Department who helped rescue the defendant, testified that the winds were among the worst he had ever experienced in that part of the Franconia Ridge Trail and had repeatedly blown him to the ground. [***3]  Sometime that morning, the defendant slipped on loose gravel, slid down the trail, hit his pack on a rock, and lost his tent which fell down a ravine. At noon time, the defendant took a photograph of two other hikers he encountered on the trail, both of whom were wearing full rain gear with their hoods over their heads.

At around 1:00 p.m., the defendant encountered a waist-high rock ledge that he needed to traverse in order to continue on the trail. He attempted to jump backward up onto the ledge and, in the process, fell and dislocated his hip. Approximately one hour later, Morse received an alert that a hiker had dislocated his hip and needed assistance. He responded immediately and eventually located the defendant on the trail between Little Haystack and Lincoln Mountains. Morse testified that when he found the defendant his left leg was flexed and internally rotated, the very position that the defendant’s orthopedic surgeon had warned him to avoid due to his hip replacement.

Approximately fifteen Department personnel and thirty-five volunteers participated in the defendant’s rescue during the afternoon and evening of September 18 and into the early morning hours of September 19. [***4]  When Lieutenant James Kneeland visited the defendant in the hospital after his rescue, the defendant explained that he had misread the weather report: he thought the forecast called for 30-40 mph winds with gusts up to 70 mph and heavy rain, instead of the actual forecast of 30-40 mph winds increasing [*594]  to 70 mph and heavy rain. The defendant also told Kneeland that he had caught his left leg while attempting to jump backward up onto a rock ledge and dislocated his artificial hip when he fell.

The defendant testified to a different version of events at trial. For instance, he testified that he was unaware of the weather conditions on the day of the hike because he did not have his reading glasses with him, and that he did not encounter any significant rain or wind. Additionally, he testified that when he dislocated his hip he had not fallen, as he told Kneeland, but instead had jumped backward over a rock ledge and swung his legs up while perfectly maintaining his left leg to avoid flexion and internal rotation.

At the close of the trial, the court accepted closing memoranda from both parties. Thereafter, the court found for the Department “for all of the reasons cited in the plaintiff’s [***5]  closing memorandum,” and awarded the Department $9,334.86 in damages. The defendant filed a motion to reconsider, to which the Department objected. The court denied the defendant’s motion, stating that “[t]he actions of the defendant were a gross deviation from those of a reasonable person that surpasses the [negligence] standard required.” This appeal followed.

II

The defendant raises three arguments on appeal. First, he argues that the trial  [**1064]  court erred by judging his conduct under an ordinary negligence standard which, he asserts, is not the standard mandated by RSA 206:26-bb. Second, he argues that there was insufficient evidence to support the court’s finding that his actions while hiking were negligent, thus necessitating his rescue by the Department. Third, he argues that the court’s damages award was improper under RSA 206:26-bb because the award included recovery for expenses that the Department would have incurred regardless of its effort to rescue him. We address each argument in turn.

A

The defendant first argues that the court erred by applying the ordinary negligence standard to determine his liability under RSA 206:26-bb. He characterizes this standard as “incorrect,” and asserts that the court should instead have [***6]  applied “the full and complete” civil standard of negligence, although he fails to articulate how this standard differs from the standard of “ordinary negligence.”

To resolve this issue we must engage in statutory interpretation. HN1[] “Statutory interpretation is a question of law, which we review de novo.” [*595] 
Appeal of Local Gov’t Ctr., 165 N.H. 790, 804, 85 A.3d 388 (2014). “In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.” Id. “We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning.” Id. “We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. “We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Id.

NH[1][] [1] We have not previously had occasion to construe the search and rescue response statute. It provides, in pertinent part:

HN2[] I. [A]ny person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department [***7]  for the reasonable cost of the department’s expenses for such search and rescue response. The executive director shall bill the responsible person for such costs. Payment shall be made to the department within 30 days after the receipt of the bill, or by some other date determined by the executive director. If any person shall fail or refuse to pay the costs … the department may pursue payment by legal action … .

RSA 206:26-bb. HN3[] This statute plainly is intended to create a statutory cause of action in favor of the Department to recover the costs it incurs in conducting a search and rescue operation for a person whose negligent conduct required such an operation. See Marquay v. Eno, 139 N.H. 708, 714, 662 A.2d 272 (1995) (“Whether or not a common law duty exists, … a plaintiff may maintain an action directly under [a] statute if a statutory cause of action is either expressed or implied by the legislature.”). Also plain is that the statute imposes as the duty of care the common law standard of negligence, which we have defined as how a reasonable person would be expected to act under the same circumstances. See Gelinas v. Metropolitan Prop. & Liability Ins. Co., 131 N.H. 154, 161, 551 A.2d 962 (1988). Thus, in order to avoid liability for search and rescue costs, the defendant must have hiked in a manner that was reasonable under [***8]  all of the circumstances. Accordingly, we hold that the trial court did not err in using the common law standard of negligence to  [**1065]  evaluate the defendant’s conduct under RSA 206:26-bb.

B

The defendant next argues that there was insufficient evidence upon which to find that he acted negligently, resulting in his need for rescue by [*596]  the Department. In particular, the defendant takes issue with the fact that the trial court’s order stated that it found for the Department “for all of the reasons cited in the plaintiff’s closing memorandum.” He asserts that, in so doing, the court improperly adopted as its findings the facts recited in the Department’s memorandum — which facts, he claims, are not supported by the evidence. We disagree.

NH[2][] [2] HN4[] We will uphold the trial court’s findings and rulings unless they lack evidentiary support or are legally erroneous. Cook v. Sullivan, 149 N.H. 774, 780, 829 A.2d 1059 (2003). “It is within the province of the trial court to accept or reject, in whole or in part, whatever evidence was presented, including that of the expert witnesses.” Id. “Our standard of review is not whether we would rule differently than the trial court, but whether a reasonable person could have reached the same decision as the trial court based upon the same [***9]  evidence.” Id. “Thus, we defer to the trial court’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence.” Id.

We first consider the defendant’s argument that the trial court’s findings are not supported by the evidence because the court adopted the Department’s closing memorandum, which he claims relied upon findings that were also not supported by the evidence. Having reviewed both the evidence presented at trial and the Department’s closing memorandum, we reject the defendant’s argument that the Department’s closing memorandum was not supported by the evidence.

NH[3][] [3] We next consider whether there was sufficient evidence to support the trial court’s determination that the defendant acted negligently. As previously stated, a person violates RSA 206:26-bb by not acting as a reasonable person would have acted under the same circumstances. The defendant argues that he did not act negligently because he was prepared for the conditions, physically capable, had proper equipment, and had adequately planned his hike. The trial court concluded to the contrary when it found that the defendant did not act as a reasonably [***10]  prudent hiker would have acted under the same circumstances. The following facts, recited by the Department in its memorandum and based upon the evidence, support the trial court’s conclusion: the defendant had undergone multiple hip surgeries; he had an artificial hip that had dislocated five times, twice within the year prior to his hike; he had trained in a city park that did not remotely resemble the challenging terrain he would experience in the White Mountains; he had continued his hike despite the fact that bad weather had been forecast days in advance and that he encountered high winds and rain early into his hike; and he chose to jump backward over a rock ledge he was unable to pass, despite his artificial hip and experience with hip dislocation.

 [*597] NH[4][] [4] To the extent that the defendant argues that his injury was not foreseeable, we agree with the trial court’s conclusions that the defendant’s injury was foreseeable and directly caused his need to be rescued by the Department. See Estate of Joshua T. v. State, 150 N.H. 405, 408, 840 A.2d 768 (2003) (stating that HN5[] to establish proximate cause a plaintiff must show “that the defendant’s conduct caused or contributed to cause the harm”). For the foregoing reasons  [**1066]  we conclude that the trial court’s determination [***11]  that the defendant acted negligently does not lack evidentiary support and is not legally erroneous. See Cook, 149 N.H. at 780. Accordingly, we uphold the trial court’s ruling.

C

Finally, the defendant argues that the court’s damages award was improper because it included wages and mileage for on-duty Department officers who would have been paid regardless of their participation in the rescue operation. In essence, he claims that the damages provide a windfall to the Department. We disagree.

NH[5][] [5] HN6[] “In reviewing damage awards, we will consider the evidence in the light most favorable to the prevailing party.” Gallentine v. Geis, 145 N.H. 701, 703, 765 A.2d 696 (2001) (quotation and brackets omitted). “Furthermore, we will not disturb the decision of the fact-finder unless it is clearly erroneous.” Id. (quotation omitted). “The law does not require ‘absolute certainty’ for recovery of damages.” Id. (quotation omitted). “We do, however, require an indication that the award of damages was reasonable.” Id.
RSA 206:26-bb states that “any person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department for the reasonable cost of the department’s expenses for such search and rescue response.” (Emphasis [***12]  added.)

NH[6][] [6] The trial court awarded $9,186.38 in damages to the Department, plus costs and interest. At trial, Kneeland testified that this amount represented the Department’s costs for the fifteen personnel who participated in the rescue, and included overtime, mileage, and benefits. These figures were contained in a document entitled “Search and Rescue Mission Report,” which was admitted by stipulation as a full exhibit. This detailed, itemized report, when viewed in the light most favorable to the Department, indicates that the trial court’s damages award represented the “reasonable costs” associated with the rescue, as required by RSA 206:26-bb.

NH[7,8][] [7, 8] We reject the defendant’s argument that this sum provides a windfall to the Department because certain officers were on duty and thus would have been paid regardless of their participation in his rescue. Not only does this argument fail to take into account the overtime paid to [*598]  Department employees who would not have worked in the absence of the rescue, but it also ignores the fact that, by being diverted to the rescue operation, Department employees were unable to perform their other assigned duties. HN7[] The statute specifically states that the Department is [***13]  to receive the “reasonable costs” associated with the rescue. RSA 206:26-bb. Nothing in the statute otherwise limits the Department’s recovery, and we will not add limiting language to the statute that the legislature did not include. See Appeal of Local Gov’t Ctr., 165 N.H. at 804 (HN8[] “We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.”). Because the trial court’s damages award of $9,186.38, plus costs and interest, is reasonable, and thus is not clearly erroneous, we uphold it.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, and Bassett, JJ., concurred.