Defendant was not sanctioned for failing to preserve broken bicycle parts, but only because the plaintiff could not prove the defendant’s acts were willful and contumacious.
Posted: November 20, 2017 Filed under: Cycling, New York | Tags: asking, bicycle, Bicycle Parts, Bike, confirmed, contumacious, deposition, destroy, destroyed, discarding, Email, failed to demonstrate, front wheel, layperson, material evidence, negligently, Notice, pick, preservation of evidence, prima facie case, Quick Release, repair, repaired, replaced, riding, shop, stricken, subject accident, threw, willful, Willful and contumacious Leave a commentPreservation of evidence has become a major issue of lots of litigation. Every business not needs to create a plan for how long to retain documents, email, records, etc., and why those records are destroyed when they are.
John v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)
State: New York; Supreme Court of New York, Kings County
Plaintiff: Hywel John
Defendant: CC Cyclery and CO LLC and William Svenstrup
Plaintiff Claims: Motion to strike defenses of the defendant for failing to preserve evidence
Defendant Defenses: failure to preserve the evidence was not willful
Holding: for the Defendant
Year: 2017
Summary
When you are placed on notice of possible litigation, you must preserve all evidence surrounding the facts of the litigation. That includes in this case, broken bicycle parts. Failing to preserve evidence can result in sanctions, including denial of your defenses.
Facts
The plaintiff had his bicycle serviced at the defendant’s bicycle shop. While riding his bicycle one day the front wheel of the bike dislodged causing him to fall to the ground.
After the accident, he took his bicycle back to the defendant. While the plaintiff was at the shop, he requested information about the defendant’s insurance policy. The defendant did not provide that information to the plaintiff. The plaintiff later emailed the defendant an ask for the same information and again was not provided it.
The defendant repaired the damages to the bike. After replacing the broken parts, he eventually threw them away.
In his post-accident repair of plaintiff’s bicycle, Mr. Underwood stated that he replaced several of the parts, including a device called a quick release. Mr. Underwood further admitted that upon showing plaintiff which bicycle parts he fixed, he threw away the broken parts including the quick release. Additionally, Mr. Underwood testified that he held onto the defective parts “until the trash came” on the week that plaintiff picked up his bicycle….
Again, the plaintiff asked for information about the shop’s insurance policy. Again, the shop refused to provide that information. The shop also claimed that it never touched the plaintiff’s quick release, so therefore the shop could not be
at fault for the plaintiff’s accident.
The plaintiff then filed this lawsuit. Upon being placed on notice of a potential litigation, the law requires all parties to preserve evidence. Because the broken parts of the bicycle were thrown away, the plaintiff filed a motion asking for sanctions against the defendant for failing to preserve the evidence.
Analysis: making sense of the law based on these facts.
The basis of the plaintiff’s motion was:
Plaintiff contends that defendants’ Answer should be stricken pursuant to CPLR § 3126 because Mr. Underwood disposed of the bicycle
parts without first “advis[ing] plaintiff or anyone else that he intended to throw out or destroy the purportedly defective parts”. Plaintiff asserts that “Mr. Underwood threw out these parts in spite of having preserved and retained exclusive possession and control over these parts at CC Cyclery from November 28, 2014 (DOA) and continuing until sometime after the plaintiff returned to the shop to pick up his bicycle on January 23, 2015”. According to plaintiff, defendants “knew or should have known that the parts removed and replaced from
plaintiff’s bicycle were significant and material evidence in a reasonably foreseeable litigation, based upon plaintiff’s repeated requests for insurance information in order for him to effectuate a claim for the damages he sustained in this accident”
In order for the court to grant any sanctions against the defendant, the plaintiff must prove the acts of the defendant were done in a willful or contumacious manner.
The issue then resolves around the point in time that the defendant should have known that possible litigation was imminent. The plaintiff argued this occurred, and the defendant was placed on notice when he asked for the defendant’s
insurance information. The defendant argued that since the defendant was a lay person, how could he interpret this as being placed on notice.
Additionally, defendants aver that Mr. Underwood–an unrepresented layperson at the time–would not have interpreted plaintiff’s request for insurance as notice that he was required to preserve the replaced bicycle parts
The defense also argued that loss of the broken bicycle parts was more damaging to them because they could not show how the plaintiff failed to keep his bicycle in proper condition and failed to provide for proper maintenance for his bike.
The court denied the plaintiff’s motion for several reasons. First, the plaintiff could not show that the destruction of the evidence, the broken parts was not “willful, contumacious or in bad faith.” Nor at the time of the destruction of the evidence was the defendant on notice of possible litigation.
Moreover, under the common law, “when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading”
Additionally, a pleading may be stricken where the evidence lost or destroyed is so central to the case .that it renders the party seeking the evidence “prejudicially bereft of appropriate means to confront a claim with incisive evidence”. Notably, “even if the evidence was destroyed before the spoliator became a party, [the pleading may nonetheless be stricken] provided [the party] was on notice that the evidence might be needed for future litigation
The plaintiff’s motion was denied.
So Now What?
Although not a new area of the law, destruction of evidence has taken on new meaning and value in the digital age. Communications by phone never needed to be kept because there was no way to keep them. Emails can be preserved indefinitely, and this has created tons of litigation setting out the rules for when evidence must be preserved and when it can be destroyed.
When in doubt, unless told to destroy it by your attorney or your insurance company, keep it. Better, give the broken parts back to your customer. 99% of the time the parts will be thrown away by the time the customer gets back home.
However, this is an area you need to check with your attorney about. Create a plan for how long you are going to hold on to documents, preserve emails and other digital information and what to with broken parts.
Sanctions for failing to preserve evidence in many other states do not have such a high bar to protect the defendant. Willful
and contumacious in most other states is far beyond what is required. So, in many other locals, sanctions are easily levied.
By the way Contumacious means stubbornly or willfully disobedient to authority or is a stubborn refusal to obey authority or, particularly in law, the willful contempt of the order or summons of a court. The term is derived from the Latin word contumacia, meaning firmness or stubbornness.[i]
What do you think? Leave a comment.
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facie case, failed to demonstrate, negligently, discarding, layperson,
destroyed, destroy, threw, front wheel, confirmed, repaired, riding, asking,
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contumacious, quick release, bicycle parts,
John v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)
Posted: November 19, 2017 Filed under: Cycling, Legal Case, New York | Tags: asking, bicycle, Bicycle Parts, Bike, confirmed, contumacious, deposition, destroy, destroyed, discarding, Email, failed to demonstrate, front wheel, layperson, material evidence, negligently, Notice, pick, preservation of evidence, prima facie case, Quick Release, repair, repaired, replaced, riding, shop, stricken, subject accident, threw, willful, Willful and contumacious Leave a commentJohn v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)
Hywel John, Plaintiff, -VS- CC Cyclery and CO LLC and William Svenstrup, Defendants. Index No. 501255/15
501255/15
SUPREME COURT OF NEW YORK, KINGS COUNTY
2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)
August 22, 2017, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: bicycle, subject accident, notice, deposition, replaced, shop, repair, contumacious, stricken, willful, pick, material evidence, prima facie case, failed to demonstrate, negligently, discarding, layperson, destroyed, destroy, threw, front wheel, confirmed, repaired, riding, asking, email, bike
JUDGES: [*1] PRESENT: HON. LARRY D. MARTIN, J.S.C.
OPINION BY: LARRY D. MARTIN
OPINION
Upon the foregoing papers, plaintiff Hywel John (“plaintiff”) moves for an order: (1) pursuant to CPLR § 3126, striking the Answer of defendants CC Cyclery and Co LLC and William Svenstrup (collectively, “defendants”) on the grounds of negligent and/or intentional spoliation of material evidence; and (2) extending the time to file a Note of Issue (NOI).
Brief Facts & Procedural History
Plaintiff commenced the instant action to recover compensatory damages for personal injuries he allegedly sustained on. November 28, 2014, when the front wheel of a bicycle (the “subject bicycle”) he was riding dislodged, causing him to be flung from the bicycle onto the ground (the “subject accident”). In the verified bill of particulars, plaintiff alleges, among other things, that defendants “negligently repaired and maintained” (Bill of Particulars, ¶ 13) the subject bicycle.
At his January 11, 2016 deposition, plaintiff testified that he initially went to defendants’ repair shop, CC Cyclery and Co. LLC (“Cyclery”), to have guards placed on the subject bicycle’s wheels and a rack fitted onto the back (Plaintiff’s Affirmation, exhibit E, Hywel Deposition, 26: 24-25; [*2] 27: 13-14; 22-23). Plaintiff returned to Cyclery on the date of the subject accident to pick up his bicycle, and was riding along Avenue A, in Brooklyn, New York, when the subject accident occurred [**2] (id. at 31: 22-25; 32:2-11). Plaintiff testified that immediately after his accident, he returned to Cyclery, informed an individual named Mr. Jeff Underwood (“Mr. Underwood”) of what transpired and left the bicycle in the shop’s possession for further repairs to be performed (id. at 64: 7-12).
Thereafter, plaintiff emailed Mr. Underwood on December 3, 2014 asking for the company’s insurance information, claiming that he was “pretty concerned about [his] healthcare contribution going forward” as well as his “lack of ability to work properly over the next couple of months” due to his injuries (id. at exhibit M). Mr. Underwood responded to plaintiff in an email dated December 9, 2014 stating, among other things, “your front wheel had to be straightened and the tire had to be replaced . . .” and “I also switched out the quick release on the front to a Allen bolt . . .” (id. at exhibit L). Mr. Underwood did not address plaintiff’s request for insurance information in his email. According to plaintiff, he returned [*3] to Cyclery on January 23, 2015 to pick up his bike and, once again, asked Mr. Underwood for the company’s insurance information (id. at 68: 15-17). However, plaintiff claims that Mr. Underwood refused to comply with plaintiff’s request for insurance information (id. at 68: 18-20).
At Mr. Underwood’s deposition on July 26, 2016, he stated that he is the former owner of Cyclery and, among other things, was working as a mechanic for the company at the time of the subject accident (id. at exhibit H, Underwood Deposition, 17: 5-9; 18: 12-14). Mr. Underwood confirmed that he made repairs to plaintiff’s bicycle both before and after the subject accident. Moreover, during his deposition, Mr. Underwood identified a photo of the subject bicycle (previously marked as Defendants’ exhibit A) and confirmed that it accurately depicted the condition of the bike on the date of the accident (id. at 53: 23-25; 54: 2-3; see exhibit K).
In his post-accident repair of plaintiff’s bicycle, Mr. Underwood stated that he replaced several of the parts, including a device called a quick release (id. at 60: 5-22). Mr. Underwood further admitted that upon showing plaintiff which bicycle parts he fixed, he threw away the broken parts including the quick [*4] release (id. at 61: 15-23). Additionally, Mr. Underwood testified that he held onto the defective parts “until the trash came” on the week that plaintiff picked up his bicycle [**3] (id. at 64: 5-9).
According to Mr. Underwood, plaintiff asked him to talk to the shop owner about submitting an insurance claim on plaintiff’s behalf, and Mr. Underwood replied that the company could not do so (id. at 63: 16-19). Mr. Underwood asserted that he never touched the quick release device prior to the subject accident, and, therefore, defendants could not be at fault for plaintiff’s accident (id. at exhibit H, 52: 3-5; 8; 19-21).
Plaintiff thereafter commenced the instant action on February 4, 2015. On March 1, 2016, plaintiff served defendants with a notice to “preserve and retain any and all parts and equipment f[ro]m the plaintiff’s bicycle . . .” (see id. at exhibit F). On May 5, 2016, a compliance conference was held and an order was issued directing, among other things, for plaintiff to “preserve the bicycle at issue for inspection by defendants” (id. at exhibit G).
Discussion
Plaintiff contends that defendants’ Answer should be stricken pursuant to CPLR § 3126 because Mr. Underwood disposed of the bicycle parts without first “advis[ing] plaintiff or [*5] anyone else that he intended to throw out or destroy the purportedly defective parts” (Plaintiff’s Affirmation, ¶ 45). Plaintiff asserts that “Mr. Underwood threw out these parts in spite of having preserved and retained exclusive possession and control over these parts at CC Cyclery from November 28, 2014 (DOA) and continuing until sometime after the plaintiff returned to the shop to pick up his bicycle on January 23, 2015” (id.). According to plaintiff, defendants “knew or should have known that the parts removed and replaced from plaintiff’s bicycle were significant and material evidence in a reasonably foreseeable litigation, based upon plaintiff’s repeated requests for insurance information in order for him to effectuate a claim for the damages he sustained in this accident” (id. at ¶ 54).
In response, defendants assert that they did not act in a willful or contumacious manner in discarding the bicycle parts. Rather, defendants contend that plaintiff’s act in asking Mr. Underwood about insurance was “merely a request for insurance information that [plaintiff] could use to obtain additional health care contributions” and did not constitute notice “that the accident would result [*6] in [**4] litigation with claims of negligence on the part of the defendants” (see Defendants’ Affirmation in Opp, ¶ 4). Additionally, defendants aver that Mr. Underwood–an unrepresented layperson at the time–would not have interpreted plaintiff’s request for insurance as notice that he was required to preserve the replaced bicycle parts (see Defendants’ Affirmation in Opp, ¶ 4). In any event, defendants argue that striking their Answer is not an appropriate sanction in this instance because the missing bicycle parts do not prejudice or impede plaintiff’s ability to make out his prima facie case (id. at ¶ 5). In fact, defendants assert that the loss of such evidence is more prejudicial to them, “as it will be evidence that they now lack to show that plaintiff failed to keep his bicycle in proper condition and failed to request a proper maintenance from defendants at the time that he [initially] brought the bicycle in to be repaired” (id. at ¶ 6).
Based upon a review of the record submitted by the parties and the relevant law, the Court denies plaintiff’s motion. CPLR § 3126 provides for the striking out of a party’s pleadings when that party “refuses to obey an order for disclosure or wilfully fails [*7] to disclose information which the court finds ought to have been disclosed . . .” (CPLR § 3126 [3]). However, such a drastic remedy is “unwarranted absent a ‘clear showing that the failure to comply with discovery demands was willful, contumacious or in bad faith'” (Foncette v LA Express, 295 AD2d 471, 472, 744 N.Y.S.2d 429 [2d Dept 2002]). Moreover, under the common law, “when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading” (Baglio v St. John’s Queens Hosp., 303 AD2d 341, 342, 755 N.Y.S.2d 427 [2d Dept 2003]). Additionally, a pleading may be stricken where the evidence lost or destroyed is so central to the case .that it renders the party seeking the evidence “prejudicially bereft of appropriate means to confront a claim with incisive evidence” (Foncette, 295 AD2d at 472; see Awon v Harran Transp. Co., Inc., 69 AD3d 889, 890, 895 N.Y.S.2d 135 [2d Dept 2010]). Notably, “even if the evidence was destroyed before the spoliator became a party, [the pleading may nonetheless be stricken] provided [the party] was on notice that the evidence might be needed for future litigation” (Baglio, 303 AD2d at 342).
[**5] As an initial matter, the Court notes that a Notice to Preserve Evidence was not served on defendants until more than one year after the subject accident occurred and the instant action was commenced (see MetLife Auto & Home v Joe Basil Chevrolet, Inc., 1 NY3d 478, 484, 807 N.E.2d 865, 775 N.Y.S.2d 754 [2004]) [*8] . Absent such notice, the Court finds that plaintiff’s act in requesting insurance information was insufficient to put a layperson such as Mr. Underwood on notice that litigation was contemplated.
Moreover, the Court finds that plaintiff has failed to demonstrate that Mr. Underwood’s act in discarding the removed bicycle parts was willful and contumacious (see Di Domenico v C & S Aeromatik Supplies, 252 AD2d 41, 52, 682 N.Y.S.2d 452 [2d Dept 1998]). Plaintiff also fails to establish that Mr. Underwood’s actions have completely deprived him of the ability to prove his prima facie case (cf. Baglio, 303 AD2d at 342). As defendants note, plaintiff still has at his disposal the photograph reflecting the defective condition of the bicycle at the time of the accident, as well as Mr. Underwood’s undisputed deposition testimony detailing which portions of the bicycle he fixed and which portions he discarded. Thus, while it cannot be said that plaintiff is not adversely affected by the loss of the defective bicycle parts, the Court finds that plaintiff has failed to demonstrate that he is prejudiced by this loss (see Awon, 69 AD3d at 890; Foncette, 295 AD2d at 472).
Conclusion
Accordingly, that portion of plaintiff’s motion seeking to strike defendants’ Answer is denied. That portion of plaintiff’s motion seeking an order providing for the filing of [*9] the NOI is denied as moot. A review of the court’s record indicates that plaintiff filed the NOI herein on October 14, 2016. The parties are reminded of their September 6, 2017 appearance in JCP.
The foregoing constitutes the decision and order of the Court.
ENTER,
/s/ Larry Martin
HON. LARRY MARTIN
J.S.C.
2017 Winners of the National Outdoor Book Awards have been Announced.
Posted: November 16, 2017 Filed under: Uncategorized | Tags: Literature, National Outdoor Book Awards, NOBA, NOBA-Web, Outdoor Books Leave a comment
Outdoor Literature |
Winner. A Fly Rod of Your Own. By John Gierach. Simon and Schuster, New York.
ISBN 9781451618341
There’s no better way to bring back memories of your own fishing trips than to read of some by John Gierach. He has a warm, inviting quality to his writing that makes him such a pleasure to read. In honoring this book, the judges also wanted to recognize Gierach’s body of work which now totals more than 20 previous books. His themes are simple: a favorite stream near home, a missed cast just when everything is perfect, a culinary misadventure on a trip. With a wave of his writer’s wand, simple stories become utterly absorbing, and you find yourself captured by his magic, reading well into the night.
Winner. On Trails: An Exploration. By Robert Moor. Simon and Schuster, New York.
ISBN 9781476739236
Author Robert Moor has a thing with trails. It’s a fascination of sorts that began on a five-month, 2,200-mile hike of the Appalachian Trail. Those miles and miles of trail passing beneath his feet gave him plenty of time to think, and upon finishing the hike Moor set off on another journey, this one of the intellectual kind, researching the concept of trails. His investigations quickly move him beyond the realm of hiking to the use of trails by insects, mammals and ancient humans. Through it all, Moor’s observations on trails are fresh, thought provoking, erudite, and full of delightful surprises.
Honorable Mention. No Barriers: A Blind Man’s Journey to Kayak the Grand Canyon. By Erik Weihenmayer and Buddy Levy. Thomas Dunne Books/St. Martin’s Press. New York.
ISBN 9781250088789
Imagine paddling a kayak into the biggest rapid in the Grand Canyon of the Colorado. The sound is deafening. Mammoth waves toss your kayak about like it’s a toy. Then imagine paddling into those waves completely blind, not knowing when the next wave is coming or from where. Born with a rare eye disease which left him blind at the age of 13, Erik Weihenmayer takes on the rapids of the Colorado—and other adventures—in this stirring and inspiring book. It may be a cliché, but not for Weihenmayer. He turns the notion of impossible upside down and reveals that all is possible.
History/Biography |
Winner. Art of Freedom: The Life and Climbs of Voytek Kurtyka. By Bernadette McDonald. Rocky Mountain Books, Vancouver, BC.
ISBN 9781771602129
In this masterpiece of a biography, Bernadette McDonald chronicles the life of Voytek Kurtyka who pushed the boundaries of mountaineering to its very limits. He grew up in Poland and lived during a time of upheaval: of communist domination and its eventual downfall. Kurtyka is a reflection of those turbulent times, buying and selling on the black market to make a living, and scheming ways to outwit party bureaucrats to undertake climbing expeditions. Known for his bold and lightning-fast ascents of big, unclimbed walls in the Himalaya, Kurtyka is a thoughtful and private individual and has largely shunned the limelight. Fortunately, McDonald was able to conduct interviews with Kurtyka as well as undertake exhaustive research. The result of her efforts is a work of outstanding artistry and a powerful and moving portrait of Kurtyka’s life.
Natural History Literature |
Winner. Tides: The Science and Spirit of the Ocean. By Jonathan White. Trinity University Press, San Antonio. ISBN 9781595348050
The regular ebb and flow of the ocean’s tide is not easily explained—unless it is Jonathan White who’s doing the explaining. In fact, White makes the science of tides an adventure. He takes you along as he travels the globe, seeking out the unusual and dangerous. In Alaska’s Kalinin Bay, he struggles to save his 65-foot wooden schooner which the tides have left laying on its side in the mud. With an Inuit hunter in northern Canada, he squeezes through a small hole into a cavity under the sea ice to gather mussels, nervously counting the minutes as the cavity begins filling with the incoming tide. And in China, he sprints to high ground to avoid a 25-foot tidal bore barreling up a river. White does what an excellent writer can do, lure you into an unfamiliar world, take you on adventures, change you with intriguing images and ideas.
Nature and the Environment |
Winner. Monarchs and Milkweed. By Anurag Agrawal. Princeton University Press, Princeton. ISBN 9780691166353
Who can’t admit being captivated by the monarch? We are attracted by its beauty, of course, and by its amazing migration that can exceed 3,000 miles. But there is something else that makes the monarch fascinating, and that is its perilous relationship with its main food source, the milkweed. As it turns out, milkweed is toxic, and while monarchs have adapted to its toxicity, the plant is still able to marshall its defenses, killing off monarch larvae by various means. In this colorfully illustrated work, Agrawal covers the scientific work behind this combative relationship, among which includes some of his own pioneering studies. Monarchs and Milkweed is not only about a butterfly, but it also gives us a peek into the mind of an inventive scientist, one who clearly admires his subject and who guides us to a better understanding of this most remarkable creature.
Honorable Mention. The Pipestone Wolves: The Rise and Fall of a Wolf Family. By Günther Bloch. Photography by John E. Marriott. Rocky Mountain Books, Vancouver, BC. ISBN 9781771601603
Some 20 years ago, a new wolf family moved into the Bow Valley of Banff National Park and ended up dominating the area for the next five years. This book is about the investigations of two dedicated field researchers into that wolf family, and thanks to their efforts we know a great deal more about the dynamics of wolf packs and wolf families. Later chapters deal with the eventual collapse of the Pipestone wolves and how human activity contributed to it. Researcher and writer, Günther Bloch pulls no punches when he discusses the management of wolves and other wildlife in Banff. It is the old dilemma of how to maintain a healthy environment for animals in the face of a growing human population. It is hoped that, at the least, key aspects of his research will lead to management improvements.
Classic Category |
Winner. Kingbird Highway: The Biggest Year in the Life of an Extreme Birder. By Kenn Kaufman. Houghton Mifflin, Boston. ISBN 9780618709403
In January of 1972, a month shy of his 18th birthday, Kenn Kaufman left his home in Kansas and hitched a ride to Texas. He was a high school dropout with little money and few prospects for the future. Nevertheless, driven and single-minded, Kaufman was embarking on a quest, a quest far removed from that of a typical 18-year old. He was out to establish the record for the most birds identified in the US in one year. This is the story of that year-long quest: of living on pennies a day, of hitch hiking from one end of the country to the other, and of sleeping under bridges—and yet slowly, he filled his lists with birds. And what of his uncertain future? He didn’t do too badly. Have you heard of the Kaufman guides, that popular series of bird, mammal and insect guides which have sold in the thousands? Oh yes, that’s the same Kaufman.
Design & Artistic Merit |
Winner. Wild Encounters: Iconic Photographs of the World’s Vanishing Animals and Cultures. Photography and Commentary by David Yarrow. Rizzoli, New York.
ISBN 9780847858323
David Yarrow is one of the virtuosos of black and white wildlife photography. His art has graced galleries from Europe to North America. In this large format, portfolio-sized book, you’ll be treated to some of his finest work. Arranged by the latitude of locale, his dramatic monochromatic photographs of wild and endangered animals appear to leap from the page. Some of the most powerful images are tightly framed close-ups in which almost every hair of the animal can be seen. The emphasis of the book is on wildlife, but he also features people who live in close proximity with the creatures he photographs, and included among those are stunning portrayals of the Inuit in northern Canada and the stately Dinka people of the South Sudan. You won’t be disappointed. This is truly the work of an artist at the height of his powers.
Children’s Category |
Winner. Pup the Sea Otter. By Jonathan London. Illustrated by Sean London. WestWinds Press/Graphic Arts Books, Portland.
ISBN 978194332887
This delightful book, the work of a father and son team, is about a ball of fur called Pup. Jonathan London tells the story of a newly born sea otter, while his son Sean, a gifted illustrator, provides color and form to the story with his tender and eye-catching paintings. Pup grows and learns how to forage for food, all under the watchful eye of his mom. Children will love the dialog: slurp, slurp, slurp; munch, crunch, munch. There’s even some danger and excitement when a shark appears, but it all turns out fine when—you guessed it—mom comes to the rescue. For ages 4-8.
Honorable Mention. Treecology: 30 Activities and Observations for Exploring the World of Trees and Forests. By Monica Russo. Photographs by Kevin Byron. Chicago Review Press, Chicago. ISBN 9871613733967
This wonderful learning book about trees is for budding naturalists age seven and older. Chapters typically start with a discussion of some aspect of tree biology which, in turn, is followed by one or more hands-on activities related to the discussion. The activities are fun and designed to help children develop their own writing, drawing and literacy skills. It is colorful, nicely designed, and perfect for a learning adventure in a nearby woods.
Instructional |
Winner. Backpacker Long Trails: Mastering the Art of the Thru-hike. By Liz Thomas. Falcon Guides, Lanham, MD. ISBN 9871493028726
Every so often a book comes along, finds broad acceptance, and becomes the bible of a sport. This book is destined to rise to that position among long-trail hiking guides. Authored by Liz Thomas who has hiked the big three—Appalachian, Continental Divide and Pacific Crest—this comprehensive work is literally brimming full of practical advice for backpackers planning to spend weeks on the trail. In addition to Thomas’s fine writing, sidebars written by other experienced hikers offer alternative ideas and strategies. If you have a hankering to go on a long hike, there’s no question about it. This is the one book that you’ll want to read before you go.
Winner. Big Walls, Swift Waters: Epic Stories from Yosemite Search and Rescue. By Charles R. “Butch” Farabee. Yosemite Conservancy, Yosemite National Park, CA. ISBN 9781930238749
Big Walls, Swift Waters is a little bit of everything. It’s a history, a compilation of case studies, and an instructional guide about rescue equipment and techniques. Well illustrated with photographs from past rescues, author Charles “Butch” Farabee documents many of the classic search and rescues that have occurred in Yosemite National Park. It’s a fascinating, insider’s view of rescue, and you’ll find yourself rappelling out of helicopters, hanging on granite walls, and plunging into icy waters.
Nature Guidebooks |
Winner. The Scout’s Guide to Wild Edibles. By Mike Krebill. St. Lynn’s Press, Pittsburg.
ISBN 9781943366064
Sometimes good guidebooks come in small packages. The Scout’s Guide to Wild Edibles almost fits in a back pocket, and yet, for its relatively small size, it packs in a lot of information. Author Mike Krebill knows his wild edibles, and he knows how to make a guidebook fun for young people. A wild food expert and a Scout leader, he divides the book into two parts: the first is the identification guide profiling 40 widely found edible wild plants and mushrooms. The second half consists of recipes and ways of cooking wild foods. In this last half boys and girls are pictured preparing and cooking plants that they have gathered on their outdoor forays. It’s oriented to the younger set, of course, but adults just might want to sneak one along on the next outing. They’ll find it pretty handy too.
Winner. Butterflies of Pennsylvania: A Field Guide. By James L. Monroe and David M. Wright. University of Pittsburg Press, Pittsburg.
ISBN 9780822964551
Butterflies of Pennsylvania is one of those guidebooks that sets out with a purpose and ends up doing it well. What appealed to the judges is that all of the information on a butterfly species is covered on a single page or a two-page spread. There’s no need to look elsewhere for maps and other information. The photos are crisp. The text is clear, and the maps and charts easy to use. If you live in Pennsylvania or in surrounding states, this fine guidebook is a must-have.
Outdoor Adventure Guidebooks |
Winner. Outdoor Adventures, Acadia National Park: Your Guide to the Best Hiking, Biking and Paddling. By Jerry and Marcy Monkman. Appalachian Mountain Club, Boston.
ISBN 9781628420579
Situated along the rugged coastline of Maine, Acadia National Park is truly a Northeast treasure. It’s the oldest designated national park area east of the Mississippi River and has a little of everything: 125 miles of hiking trails, 45 miles of historic carriage roads, rocky mountains, ponds, islands and dense evergreen forests. One of the best ways to enjoy it is with this guidebook by Jerry and Marcy Monkman. The Monkman’s are accomplished Eastern writers and photographers, and in this guide, they have detailed 50 choice hiking, biking and paddling trips. There’s even a two-sided 20” x 25” full color map which can be removed from the back cover and which shows all of the routes covered in the book.
If you work in the Ski Industry you need to be a Member of the American Avalanche Association. Upcoming Avalanche Training for the 2017-18 Season Announced.
Posted: November 14, 2017 Filed under: Avalanche, Skiing / Snow Boarding | Tags: American Avalanche Association, avalanche Leave a comment
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Non-governmental park not liable under Georgia Recreational Use Statute because cyclists failed to negotiate a barricade. The dangerous condition was open, obvious and visible to all including the deceased.
Posted: November 13, 2017 Filed under: Cycling, Georgia | Tags: actual knowledge, barricade, bicycle, bicyclist, block, captain, cone, Dangerous Condition, distance, evidence sufficient, feet, genuine, Georgia Recreational Use Statute, guard, injured party, issues of material fact, matter of law, Non-governmental Park, prong, property owners, punctuation, recreational, recreational purposes, Recreational Use, stationed, Stone Mountain Memorial Association, stream, subjective, Summary judgment, user, visible, warn, Warning, willful Leave a commentBecause cyclists failed to look up and did not see the barricades in time, does not change the fact the barricades were visible for hundreds of feet.
State: Georgia; Court of Appeals of Georgia
Plaintiff: Nancy Amestoy
Defendant: Stone Mountain Memorial Association
Plaintiff Claims: (1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).
Defendant Defenses: Georgia Recreational Use Statute
Holding: For the Defendant at trial Court, Plaintiff on appeal
Year: 2016
Summary
The Georgia Recreational Use Statute extends immunity to non-governmental landowners. Here a cyclist died after failing to look up and see barricades blocking a road. Because the barricades were open and obvious, the Recreational Use Statute protected the landowner from suit.
Facts
The deceased was on a bike ride. The road he was riding had been closed for a foot race. The closure was accomplished by two saw horse barricades. The deceased in attempting to negotiate between them fell suffering head injuries, while wearing a helmet, and died.
…between 7:30 and 7:45 a.m. on the day in question, officers with SMMA’s public-safety department engaged in temporary traffic-control efforts on portions of Stone Mountain Park’s Robert E. Lee Boulevard in anticipation of a 5k walk/run event that was scheduled to begin at 8:00 a.m. These temporary traffic-control efforts consisted of two saw-horse style barricades placed side-by-side across the road’s southbound lanes, spanning approximately ten-feet wide with an approximately one-and-a-half foot gap between them. Both barricades bore orange and white stripes and “do not enter” signs.
It appeared to witnesses that the deceased did not look up until the last minute to see the barricades.
…Martin Amestoy was observed riding his bicycle toward the barricades at what a witness believed was a “safe, normal speed”; however, Amestoy’s head was down. Amestoy then traveled between the barricades, striking the inside corner of the lefthand barricade with his handlebar, and was thrown forward off of his bike.3 Although he was wearing a helmet, Amestoy suffered severe head trauma and died later that day.
The plaintiff, wife of the deceased, sued for:
(1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual
knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).
The defendant filed a motion for summary judgment stating it was not liable because of the Georgia Recreational Use Act. The plaintiff argued that the exception to the act applied, if the landowner of and did not warn of a dangerous condition. The Trial court agreed and the defendant immediately appealed that order.
SMMA responded and filed a motion for summary judgment, contending that it was immune from suit under the RPA. The trial court ultimately denied SMMA’s motion when it concluded that genuine issues of material fact remained as to whether (1) the barricades were a dangerous condition and (2) SMMA had actual knowledge that this condition was dangerous.
Analysis: making sense of the law based on these facts.
The defendant appealed the decision based upon the facts that:
… (1) there was no evidence that it had actual knowledge of a dangerous condition, (2) the allegedly dangerous condition was
open and obvious as a matter of law, and (3) there was no evidence that it willfully failed to warn of the allegedly dangerous condition. Because the allegedly dangerous condition–i.e., the barricades blocking the southbound lanes of Robert E. Lee Boulevard–was open and obvious as a matter of law….
Under the Georgia Recreational Use Act, the landowner owes no duty of care to keep the premises safe for others entering the land for recreational purposes.
In enacting the RPA, the General Assembly sought to “encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.”8 In this regard, OCGA § 51-3-22 provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”
There is a liability for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. Under Georgia’s law:
…”willful failure” involves “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive omission.” And malice requires either “an actual intent to cause the particular harm produced or the wanton and [willful] doing of the act with an awareness of the plain and strong likelihood that harm may result.” Thus, in order for the “willful or malicious failure” exception to apply, Nancy Amestoy must show that the property owner (SMMA) had actual knowledge that (1) the property was being used for recreational purposes; (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible con-sequences. Constructive knowledge is insufficient to meet this burden of proof, and the property owner has no duty to inspect the property. Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.
The court held the plaintiff failed to produce any evidence to create a jury question on whether or not the condition was not apparent to those using the property, the third prong of the test.
The court cited witness statements and statements from the investigators that the barriers where visible at least for hundreds of feet.
Considering the above testimony, Nancy Amestoy presented no evidence that SMMA had actual knowledge that the barricades were not apparent to park users when they were open and obvious, as overwhelmingly demonstrated by the foregoing testimony and photographic evidence.
The Appellate Court reversed the trial court and granted the defendant’s motion for summary judgment based on the Georgia Recreational Use Statute.
So Now What?
The first take away is the Georgia Recreational Use Statute protects parks owned non-governmental landowners from suit. The second is, even though the statute has an exception for “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity,” the landowner must have actual knowledge, not just constructive knowledge of the dangerous condition.
Here because the barricades were visible for hundreds of feet, the barricades did not constitute a dangerous condition.
If you are a cyclist, look up once in a while.
What do you think? Leave a comment.
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barricade, actual knowledge, dangerous condition, prong,
summary judgment, visible, punctuation, warn, recreational purposes, property
owners, warning, ‘willful, feet, bicyclist, matter of law, issues of material
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Georgia Recreational Use Statute
Posted: November 12, 2017 Filed under: Georgia | Tags: Failure to Guard, Failure to Warn, Georgia Recreational Use Statute, Landowner, Landowner Immunity, Landowner Liability, Limitation of Landowner's Liability, malicious, Open and Obvious, Recreational Use, Recreational Use Act, Recreational Use Statute, Wilful Leave a comment OFFICIAL CODE OF GEORGIA
ANNOTATED
TITLE 51. TORTS
CHAPTER 3. LIABILITY OF OWNERS AND OCCUPIERS OF LAND
ARTICLE 2. OWNERS OF PROPERTY USED FOR RECREATIONAL
PURPOSES
§ 51-3-22. Duty of owner of land to those using same for recreation generally
§ 51-3-23. Effect of invitation or permission to use land for recreation
§ 51-3-25. Certain liability not limited
§ 51-3-26. Construction of article
The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.
§ 51-3-21. Definitions
As used in this article, the term:
(1) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land.
(2) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(3) “Owner” means the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises.
(4) “Recreational purpose” includes, but is not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, aviation activities, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites.
§ 51-3-22. Duty of owner of land to those using same for recreation generally
Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.
§ 51-3-23. Effect of invitation or permission to use land for recreation
Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby:
(1) Extend any assurance that the premises are safe for any purpose;
(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or
(3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.
§ 51-3-24. Applicability of Code Sections 51-3-22 and 51-3-23 to owner of land leased to state or subdivision for recreation
Unless otherwise agreed in writing, Code Sections 51-3-22 and 51-3-23 shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.
§ 51-3-25. Certain liability not limited
Nothing in this article limits in any way any liability which otherwise exists:
(1) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or
(2) For injury suffered in any case when the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this Code section.
§ 51-3-26. Construction of article
Nothing in this article shall be construed to:
(1) Create a duty of care or ground of liability for injury to persons or property; or
(2) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this article to exercise care in his use of the land and in his activities thereon or from the legal consequences of failure to employ such
care.
The New York Court found the injuries received by the Plaintiff, there was an inference that the collision was violent.
Posted: November 6, 2017 Filed under: Assumption of the Risk, New York, Skier v. Skier, Skiing / Snow Boarding | Tags: beginner, Beginner Slope, Collision, Inherent Risk, Reckless, Reckless Conduct, skier v. skier, Skier v. Skier Collision, skiing, snowboarding, Standing, Unreasonably Increased Risk, Violent Collision Leave a commentSnowboarder standing at the base of the hill talking was injured when a skier struck here when he could not stop.
State: New York; Supreme Court of New York, Appellate Division, First Department
Plaintiff: Keri Horowitz
Defendant: Ethan Chen
Plaintiff Claims: Negligence
Defendant Defenses: Inherent Risk
Holding: For the Plaintiff
Year: 2016
Summary
The entire case resolves around two issues. The inherent risks of skiing do not include standing at the bottom of the hill and getting hit when just talking and the plaintiff’s injuries were so bad; she was obviously hit by the defendant at a high rate of speed.
Facts
The facts are best described by the court.
Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably in-creased risk
Analysis: making sense of the law based on these facts.
A very simple case. When a skier is skiing out of control at a high rate of speed in the beginner area and knows he has limited ability to stop, is he liable if he hits someone standing in the beginner area. This court said yes.
Collisions are an inherent risk of skiing in New York. However, as here, the collision could not be expected. The plaintiff was not skiing, was barely “on the slope” and was still hit by a skier.
Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.
The court found that those factors possibly gave rise to reckless conduct. Reckless conduct is not an inherent risk of skiing.
The supporting statement the court made about reckless conduct is interesting. The court found the injuries the plaintiff received could also infer the plaintiff was skiing recklessly.
Furthermore, in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.
Rarely are the injuries to the plaintiff ruled as indicative of something other than the injuries the plaintiff received unless an expert opines that the injuries could only have occurred by something specific happening. Meaning an expert witness is required to say that an injury that bad meant the defendant was traveling so fast.
So Now What?
It’s really hard to argue with this decision. When you get to the bottom of the hill, you should be slowing down and under control. Here the defendant was not doing either and hit the plaintiff. No one skiing could expect to be hit when standing at the bottom of the ski area. Consequently, a collision like that is not an inherent risk of skiing.
What do you think? Leave a comment.
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Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335
Posted: November 5, 2017 Filed under: Assumption of the Risk, Legal Case, New York, Skier v. Skier, Skiing / Snow Boarding | Tags: beginner, Beginner Slope, Collision, Inherent Risk, Reckless, Reckless Conduct, skier v. skier, Skier v. Skier Collision, skiing, snowboarding, Standing, Unreasonably Increased Risk, Violent Collision Leave a commentHorowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335
Keri Horowitz, Respondent, v Ethan Chen, Appellant.
1649, 152242/14
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
July 5, 2016
July 5, 2016, Entered
PRIOR HISTORY: Horowitz v Chen, 2015 N.Y. Misc. LEXIS 4314, 2015 NY Slip Op 32238(U) (N.Y. Sup. Ct., Nov. 20, 2015)
CORE TERMS: skiing, reckless conduct, snowboarding, reckless, beginner’s, slope, speed
HEADNOTES
Negligence–Assumption of Risk–Skiing and Snowboarding Accident–Possibility of Reckless Conduct by Defendant
COUNSEL: [***1] Law Offices of Michael E. Pressman, New York (Stuart B. Cholewa of counsel), for appellant.
Gersowitz Libo & Korek, P.C., New York (Michael Chessa of counsel), for respondent.
JUDGES: Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ.
OPINION
[*410] [**61] Order, Supreme Court, New York County (Robert D. Kalish, J.), entered November 24, 2015, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk” (Pantalone v Talcott, 52 AD3d 1148, 1149, 861 NYS2d 166 [3d Dept 2008]).
Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented. Furthermore, in view of the [***2] significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances (see Moore v Hoffman, 114 AD3d 1265, 980 NYS2d 684 [4th Dept 2014]). Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ. [Prior Case History: 2015 NY Slip Op 32238(U).]
Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Posted: October 30, 2017 Filed under: Connecticut, Cycling, Release (pre-injury contract not to sue) | Tags: arranged, bicycle, Bike, borrow, chaotic, custom, disputed, entities, entitled to judgment, exculpatory, Felt Racing, genuine, LLC., movant, moving party, nonmoving party, participating, Pedal Power, pre-sized, primary function, Products Liability, Public Policy, question of fact, quotation marks omitted, Release, relieve, ride, rider, riding, sponsored, sponsors, sufficient time, Summary judgment, tort law, unambiguous Leave a commentPlaintiff successfully argued he did not have enough time to read the release before he signed it. The court bought it.
DeWitt, Jr. v. Felt Racing, LLC et al., 2017 Conn. Super. LEXIS 235
State: Connecticut, Superior Court of Connecticut, Judicial District of New Haven at New Haven
Plaintiff: Guy DeWitt, Jr.
Defendant: Felt Racing, LLC and Pedal Power, LLC
Plaintiff Claims: no time to read the release, not told he needed to sign a release
Defendant Defenses: Release
Holding: for the plaintiff
Year: 2017
Summary
This case looks at demoing a bike in Connecticut. The rider/plaintiff argued that he did not have enough time to read the release, and the bike shop was chaotic creating confusing for him. He was injured when the handlebars broke causing him to fall.
Facts
The plaintiff participated in the Wednesday night right put on by Pedal Power, LLC, one of the defendants. That night Pedal Power made arrangements for people to demo Felt Bicycles. Most people did so and sent their information to Felt Racing so the bikes were fit and ready to go when they arrived.
The plaintiff arrived with his own bike. However, once he got there he decided to demo a felt bicycle. While the bike was being fitted for him, he was handed a release to sign. The plaintiff stated the place was chaotic, and he did not have time to read the release.
During the ride, the handlebar failed or cracked causing the plaintiff to fall and hit a tree.
What is disputed is whether the plaintiff was given sufficient time to read and consider the Release and Waiver. The plaintiff claims that he did not read it because there wasn’t time to do so. “Everything was very chaotic and rushed there What is disputed is whether the plaintiff was given sufficient time to read and consider the Release and Waiver. The plaintiff claims that he did not read it because there wasn’t time to do so. “Everything was very chaotic and rushed there to make the ride. I just did not have the time to read that . . .” Further, the plaintiff claims that there was no mention of it until his bike was taken, and the Felt employees had begun custom fitting the Felt bike to him. The defendants, on the other hand, denied during oral argument that the scene was “chaotic” or that the plaintiff was coerced into riding the Felt bike because he had his own personal bike that he could ride. to make the ride. I just did not have the time to read that . . .” Further, the plaintiff claims that there was no mention of it until his bike was taken, and the Felt employees had begun custom fitting the Felt bike to him. The defendants, on the other hand, denied during oral argument that the scene was “chaotic” or that the plaintiff was coerced into riding the Felt bike because he had his own personal bike that he could ride.
The defendants filed a motion for summary judgment, and this was the analysis of the motion by the court.
Analysis: making sense of the law based on these facts.
Each state has its own requirements for when a court can grant a motion for summary judgment. The court in this case set forth those requirements before starting an analysis of the facts as they applied to the law.
“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. Practice Book section 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”
Most states apply similar standards to deciding motions for summary judgment. The major point is there is no genuine issue of fact’s material to the case. Meaning no matter how you look at the facts, the motion is going to win because the law is clear.
Additional statements in the case indicated the court was not inclined to grant any motion for summary judgment.
“Summary judgment is particularly ‘ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law . . . [T]he conclusion of negligence is necessarily one of fact . . .”
“The courts hold the movant to a strict standard. To satisfy [their] burden the movant[s] must make a showing that it is clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”
The court then analyzed the entire issue of why summary judgments are rarely granted in this judge’s opinion.
“[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when tort system is the prophylactic factor of preventing future harm . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.” “Thus, it is consistent with public policy ‘to posit the risk of negligence upon the actor’ and, if this policy is to be abandoned, ‘it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not shift the risk to the weak bargainer.’
The writing on the wall, or in the opinion, makes it pretty clear this judge was not inclined to grant motions for summary judgment in tort cases when the risk of the injury would transfer to the plaintiff.
The court then reviewed the requirements of what is required in a release under Connecticut law.
…requirements for an enforceable agreement as well as the elements which demonstrate that an agreement violates public policy and renders the agreement unenforceable: the agreement concerns a business of a type suitable for regulation; the party seeking to enforce the agreement is engaged in performing a service of great importance to the public; the party holds itself out as willing to perform a service for any member of the public; there is an economic component to the transaction; the agreement is an adhesive contract; and as a result of the transaction, the plaintiff is placed under the control of the seller.
Nowhere in the requirements does it state a requirement that the plaintiff have enough time to read the release, even if did go ahead and sign the release.
The language quoted sounds like similar language found in other decisions in other states regarding releases.
Connecticut also requires “that in order for an exculpatory clause to validly release the defendant, it must be clear and contain specific reference to the term “negligence.”
In this release, the term negligence is only found once.
The plaintiff argued that he did not have time to sign the release, and the place was chaotic. This was enough for the court to say there were material facts at issue in this case. “If the plaintiff was not afforded the opportunity to read and consider the Waiver and Release, then the agreement cannot be enforced. It is for the trier of fact to determine this.”
The defendants created the conditions under which the plaintiff could participate in the ride on a Felt bicycle. Enforcement of an agreement requiring the plaintiff to assume the risk of the defendants’ actions when there is a question of fact regarding whether the plaintiff had been given sufficient time to read and consider the Waiver and Release, would violate public policy, even if the language of the agreement was explicit and clear. For this reason, this court denies the defendants’ motions for summary judgment.
The motion for summary judgment was denied.
So Now What?
This is the first time I have read a decision where the claim there was not enough time to read the release was upheld by a court. Normally, the court states if the release is signed the signor read and agreed to the terms.
This is one more argument that will eliminate releases in Connecticut. There have been several already, and although there are several decisions that support releases, there is a growing list of decisions that are providing opportunities for the courts to throw them out.
The final issue to be aware of is the language in this case is identical to language in most other release cases. However, here that language was used to throw out a release rather than support it.
Other Connecticut Decisions Involving Releases
Connecticut court works hard to void a release for a cycling event
Connecticut court determines that a release will not bar a negligent claim created by statute.
What do you think? Leave a comment.
Copyright 2017 Recreation Law (720) 334 8529
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bike, ride, summary judgment, public policy, relieve,
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Felt Racing, LLC, Pedal Power, LLC, Products Liability, Release,
DeWitt, Jr. v. Felt Racing, LLC et al., 2017 Conn. Super. LEXIS 235
Posted: October 29, 2017 Filed under: Connecticut, Cycling, Legal Case, Release (pre-injury contract not to sue) | Tags: arranged, bicycle, Bike, borrow, chaotic, custom, disputed, entities, entitled to judgment, exculpatory, genuine, movant, moving party, nonmoving party, participating, pre-sized, primary function, Public Policy, question of fact, quotation marks omitted, relieve, ride, rider, riding, sponsored, sponsors, sufficient time, Summary judgment, tort law, unambiguous Leave a commentDeWitt, Jr. v. Felt Racing, LLC et al., 2017 Conn. Super. LEXIS 235
Guy DeWitt, Jr. v. Felt Racing, LLC et al.
CV136040482
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN AT NEW HAVEN
2017 Conn. Super. LEXIS 235
February 6, 2017, Decided
February 6, 2017, Filed
NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
CORE TERMS: bike, ride, summary judgment, public policy, relieve, bicycle, quotation marks omitted, disputed, participating, chaotic, riding, custom, rider, tort law, moving party, entitled to judgment, nonmoving party, question of fact, primary function, exculpatory, unambiguous, genuine, movant, entities, sufficient time, sponsored, pre-sized, arranged, sponsors, borrow
JUDGES: [*1] Angela C. Robinson, J.
OPINION BY: Angela C. Robinson
OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENTS #149 AND #150
Guy DeWitt, Jr., the plaintiff, claims that on June 18, 2013, he was injured as a direct result of the negligence and/or actions of the defendants, Felt Racing, LLC and Pedal Power, LLC, in violation of the products liability statute. At the time of the incident, the plaintiff was participating in a group ride of bicyclists that was sponsored by Pedal Power. During the ride, at the time he was injured, the plaintiff was riding a bike he borrowed from Felt Racing. Prior to participating in the ride, and before he was allowed to borrow the Felt bike, the plaintiff signed a Waiver and Release.
The defendants both now move for summary judgment based upon the Waiver and Release, which they argue releases them from all liability. The plaintiff objects to the defendants’ motion claiming that the language of the Release and Waiver does not sufficiently relieve the defendants of liability; and that it violates public policy.
Most of the facts pertinent to the resolution of the motion are not in dispute. Pedal Power sponsored a group ride in Middletown, Connecticut. Felt Racing arranged [*2] to have a Felt bicycle demonstration at the Pedal Power store, and brought 35 Felt bikes to loan out for the ride. The plaintiff had brought his own bike to ride during the activity, but decided to try a Felt bike. The plaintiff was provided with a Felt AR2, which was selected and custom fit to him by a Felt employee. He had not arranged to ride the bike ahead of time. According to Mr. Rudzinsky, Certified USA Cycling Professional Mechanic and agent of Felt Racing, the plaintiff was not one of “the guys that was pre-sized . . .” Rather, “he showed up late.” (Rudzinsky Depo p. 57.) In order to borrow the bike, the plaintiff signed a Waiver, provided a copy of his driver’s license and left his personal bike as collateral. As the plaintiff was riding the Felt AR2 eastbound on Livingston Street in Middletown, Connecticut the right side of the handle bars failed and/or cracked, ejecting him off the bike and causing him to violently hit the ground and collide with a tree.
What is disputed is whether the plaintiff was given sufficient time to read and consider the Release and Waiver. The plaintiff claims that he did not read it because there wasn’t time to do so. “Everything was very chaotic [*3] and rushed there to make the ride. I just did not have the time to read that . . .” (Deposition of Plaintiff attached to Plaintiff’s Objection.) Further, the plaintiff claims that there was no mention of it until his bike was taken, and the Felt employees had begun custom fitting the Felt bike to him. The defendants, on the other hand, denied during oral argument that the scene was “chaotic” or that the plaintiff was coerced into riding the Felt bike because he had his own personal bike that he could ride.
The defendants request that judgment enter in their favor on the plaintiff’s complaint based upon the Release and Waiver.
“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Practice Book section 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003).
“Summary [*4] judgment is particularly ‘ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law . . . [T]he conclusion of negligence is necessarily one of fact . . .” Michaud v Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
“The courts hold the movant to a strict standard. To satisfy [their] burden the movant[s] must make a showing that it is clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.” (Internal quotation marks omitted.) Zielinski v Kotsoris, 279 Conn. 312, 318-9, 901 A.2d 1207 (2006).
The defendants claim to be entitled to judgment because the Waiver contains language transferring all the risks of participating in the group ride from Felt Bicycles, and sponsors of the ride to the participant rider borrowing the Felt bike. Specifically, the Waiver provides:
I HEREBY WAIVE, RELEASE, DISCHARGE, AND COVENANT NOT TO SUE Felt Bicycles, Felt Racing, or its . . . agents . . . members, volunteers and employees, and/or other participants, sponsors [*5] . . . and/or where applicable, owners and lessors or (Sic) premises on which the Event takes place . . . from liability, claims, demands, losses or damages.
Though term “negligence” appears only once in the waiver, in paragraph 1, the defendants maintain that this is not determinative of their motion regarding the negligence claims. Further, the defendants argue that the language of the waiver sufficiently covers the actions of the agents and/or employees of Felt, LLC and Pedal Power, LLC, as well as the legal entities, themselves.
To support their arguments, both the defendants and the plaintiff rely primarily upon Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734, (2005). The plaintiff also cites and relies upon Hyson v. White Water Mountain Resorts of Connecticut, 265 Conn. 636, 829 A.2d 827 (2003); Lewis v. Habitat for Humanity of Greater New Haven, Superior Court, Judicial District of New Haven, docket no. CV 095030268 (January 9, 2012, Frechette, J.) [53 Conn. L. Rptr. 512, 2012 Conn. Super. LEXIS 146]; Kelly v. Deere & Co, 627 F.Sup. 564 (D.C. 1986).
In Hanks v. Powder Ridge Restaurant, Corp, the Supreme Court held that because exculpatory agreements relieve a party of liability, they undermine public policy considerations governing our tort system, and should be enforced judiciously, only when certain factors are present. First and foremost, the agreement should be enforced only when “an ordinary person of reasonable intelligence would understand that [*6] by signing the agreement, he or she was releasing the defendants from liability from their future negligence.” Id. at 324-5. But, even if it is clear and unambiguous, it should not be enforced if it violates the principles that undergird Tort Law.
“[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when tort system is the prophylactic factor of preventing future harm . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.” (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79, 717 A.2d 215 (1998). “Thus, it is consistent with public policy ‘to posit the risk of negligence upon the actor’ and, if this policy is to be abandoned, ‘it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not shift the risk to the weak bargainer.’ Tunkl v. Regents of the Univ. Of Cal., 60 Cal.2d 92, 101, 383 P.2d 441, 32 Cal.Rptr. 33 (1963).” Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 327, 885 A.2d 734.
Hanks sets forth the [*7] requirements for an enforceable agreement as well as the elements which demonstrate that an agreement violates public policy and renders the agreement unenforceable: the agreement concerns a business of a type suitable for regulation; the party seeking to enforce the agreement is engaged in performing a service of great importance to the public; the party holds itself out as willing to perform a service for any member of the public; there is an economic component to the transaction; the agreement is an adhesive contract; and as a result of the transaction, the plaintiff is placed under the control of the seller. These are not the exclusive elements to consider. The “ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” Id. at 330.
Also, the Hyson v. Whitewater Mountain Resorts court required that in order for an exculpatory clause to validly release the defendant, it must be clear and contain specific reference to the term “negligence.” Id. at 643.
The plaintiff argues that the language of the release is not clear; and that there are insufficient references to the [*8] word “negligence.” Also, the plaintiff asserts that the circumstances under which he was required to sign the release prevented him from reading it or considering the ramifications of it. Defense counsel disputed the characterization of the transaction as “chaotic.”
Because of this factual dispute, the court concludes that the motions should be denied. It is irrelevant to the court’s consideration whether the transaction was commercial or not; whether the language was sufficiently clear and unambiguous; or whether the plaintiff could have ridden his own bike during the ride. If the plaintiff was not afforded the opportunity to read and consider the Waiver and Release, then the agreement cannot be enforced. It is for the trier of fact to determine this.
There is no dispute that Felt Racing brought the bikes to the ride for the specific purpose of demonstrating and loaning them to interested riders and potential future customers. They were prepared for and anticipated last minute requests for bikes. Additionally, they custom fitted the bikes to the riders, regardless of whether the bikes had been pre-sized for them or not.
There are certainly instances in which it may be appropriate and [*9] in line of public policy to enforce contractual agreements which relieve one party of liability to another for injuries. However, Connecticut has a long history of requiring courts to carefully scrutinize such contracts. See e.g., Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006) (“[T]he law does not favor contract provisions which relieve a person from his own negligence . . . Hyson v. White Water Mountain Resorts of Conn., Inc. . . .”).
The defendants created the conditions under which the plaintiff could participate in the ride on a Felt bicycle. Enforcement of an agreement requiring the plaintiff to assume the risk of the defendants’ actions when there is a question of fact regarding whether the plaintiff had been given sufficient time to read and consider the Waiver and Release, would violate public policy, even if the language of the agreement was explicit and clear. For this reason, this court denies the defendants’ motions for summary judgment.
Robinson, A., J.
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This is a hard case–hard not in the sense that it is legally difficult or tough to crack, but in the sense that it requires us to deny relief to a plaintiff for whom we have considerable sympathy.
Posted: October 23, 2017 Filed under: Assumption of the Risk, Rhode Island, Swimming | Tags: beach, cliff, Dangerous Condition, deliberations, depth, dive, Diving, dove, Duty of care, guard, juror, Lifeguard, maliciously, matter of law, new trial, obvious danger, Open and Obvious, owed, peril, pond, pool, recreational, Recreational Use, Recreational Use Statute, shallow, shallow water, split, State Land, State park, swimming, swimming pool, trial justice, unanimous, user's, warn, willfully 2 CommentsWe do what we must, for ‘it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.
Roy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88
State: Rhode Island, Supreme Court of Rhode Island
Plaintiff: Dawn K. Roy, in her capacity as the administratrix of the estate of Brett A. Roy, et al.
Defendant: Rhode Island Department of Environmental Management (DEM), and two individuals in their official capacities as DEM employees
Plaintiff Claims:
Defendant Defenses: Open and Obvious and Recreational Use Statute
Holding: for the Defendant
Year: 2016
Summary
The title is a quote from another case and states perfectly the situation most judges face when looking at a case.
In this one, a man dove into a lake at a State Park in Rhode Island. He broke his neck and became a quadriplegic. The Rhode Island Supreme Court dismissed his claims because the assumed the risk and the Rhode Island Recreational Use Statute prevented his claims.
Facts
The state owned the land in question and ran it as a state park. There was a man-made pond in the park that was “treated much like a swimming pool.” Because of changes to the pond, the decision was made to close the pond and now allow swimming. No swimming signs were posted, and no lifeguards were on duty. Other parks of the park were still open, including the bathhouses.
Rhode Island did not allow the operation of a body of water on a swim at your own risk basis.
The plaintiff was a 29-year-old husband and father of two. He went to the park with a friend. While at the park he ran and dove into the water breaking his neck and becoming a paraplegic.
The plaintiff by and through his wife, as Administratrix of the estate of the plaintiff used the state and various agencies for his injuries. The case when to trial and the jury returned a verdict for the defendants. The plaintiff filed a motion for a new trial, which was granted and the defendant filed this appeal to the Rhode Island Supreme Court.
Analysis: making sense of the law based on these facts.
The state based its appeal on the Rhode Island Recreational Use Statute, and the state owed no duty for an open and obvious natural condition.
The court first looked at the Rhode Island Recreational Use Statute. The statute provided immunity to landowners and to state and municipalities. The limitation was not absolute. A landowner could be liable if the plaintiff could prove “…[f]or
the willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity after discovering the user’s peril…”
The state argued nothing it did established proof of willful or malicious failure to warn. The court could not find any evidence to support the plaintiff’s claims. On top of that, the best defense was provided by the plaintiff when he admitted
he knew about the dangers of diving into shallow water, and that he had not checked the depth of the water. Finally, he admitted he was probably irresponsible.
The court then looked at the open and obvious danger defense. Here again, the plaintiff failed.
This Court held that the defendants had not owed any duty of care to the plaintiff in that case in part because “requiring citizens to place warnings against[–]and barriers preventing persons from[–]diving into shallow water would provide little disincentive to individuals * * *. As a practical matter, the danger of diving into shallow water is one of common knowledge, and one [the plaintiff] admit he was aware of.”
The court concluded.
Because it is our considered opinion that the state bore no liability for Roy’s injuries–either because diving is an open and obvious danger or because it was protected under the Recreational Use Statute–we conclude that the trial justice erroneously denied its motion for judgment as a matter of law.
So Now What?
To many this case might suck, sending this young man to live a life without the financial support he may need. However, as the quote in the beginning said, the law is the law. When you undertake to engage in a sport or activity, you assume
the risks of those activities.
More importantly when recreating on land for free, the landowner owes no duty to keep you safe from yourself. If not, recreation would only be on federal lands where the chance of proving a claim is negligible. State, City and County Parks and Open Spaces would all close because they could not afford the insurance needed to keep them open.
What do you think? Leave a comment.
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Roy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88
Posted: October 22, 2017 Filed under: Assumption of the Risk, Legal Case, Rhode Island, Swimming | Tags: beach, cliff, Dangerous Condition, deliberations, depth, dive, Diving, dove, Duty of care, guard, juror, Lifeguard, maliciously, matter of law, new trial, obvious danger, Open and Obvious, owed, peril, pond, pool, recreational, Recreational Use, Recreational Use Statute, shallow, shallow water, split, State Land, State park, swimming, swimming pool, trial justice, unanimous, user's, warn, willfully Leave a commentRoy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88
Dawn K. Roy, in her capacity as the administratrix of the estate of Brett A. Roy, et al.1 v. The State of Rhode Island et al.
1 The original plaintiff, Brett A. Roy, passed away while the instant appeal was pending. An order substituting “Dawn K. Roy, the administratrix of the estate of Brett A. Roy” as a party in this case entered on April 15, 2016. See Rule 25(a) of the Superior Court Rules of Civil Procedure.
No. 2013-213-Appeal. No. 2014-39-Appeal.
SUPREME COURT OF RHODE ISLAND
139 A.3d 480; 2016 R.I. LEXIS 88
June 23, 2016, Filed
PRIOR HISTORY: [**1] Providence County Superior Court. (PC 09-2874). Associate Justice Susan E. McGuirl.
Roy v. State, 2013 R.I. Super. LEXIS 54 (2013)
CASE SUMMARY:
COUNSEL: For Plaintiffs: Patrick C. Barry, Esq., Douglas E. Chabot, Esq.
For State: Rebecca T. Partington, Department of the Attorney General; Adam J. Sholes, Department of the Attorney General.
JUDGES: Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION BY: Paul A. Suttell
OPINION
[*482] Chief Justice Suttell, for the Court. A wise jurist once wrote:
“This is a hard case–hard not in the sense that it is legally difficult or tough to crack, but in the sense that it requires us * * * to deny relief to a plaintiff for whom we have considerable sympathy. We do what we must, for ‘it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.'” Burnham v. Guardian Life Insurance Co. of America, 873 F.2d 486, 487 (1st Cir. 1989) (Selya, J.) (quoting United States v. Clark, 96 U.S. 37, 49, 24 L. Ed. 696, 13 Ct. Cl. 560 (1877) (Harlan, J., dissenting)).
This is indeed such a hard case. Tragically, on July 10, 2008, twenty-nine-year-old Brett A. Roy broke his neck when diving into the pond at World War II Veterans Memorial Park in Woonsocket, resulting in his paralysis from the neck down. Roy’s injuries were vast and undeniable. Roy and his wife, Dawn K. Roy (plaintiffs), individually and as the parents of their two children, [**2] filed this action against the state, the Rhode Island Department of Environmental Management (DEM), and two individuals in their official capacities as DEM employees (collectively, the state), alleging several counts of negligence and premises liability. After a multi-week trial and lengthy deliberations, a jury returned a verdict for the state, finding that the state had not “fail[ed] to guard or warn against a dangerous condition, use, structure or activity” or against a “non-obvious, latent dangerous condition” at the pond. Subsequently, both parties filed renewed motions for judgment as a matter of law, which the trial justice denied. However, the plaintiffs also filed a motion for a new trial, which was granted. Thereafter, the state brought the instant appeal arguing that the trial justice erred in granting the plaintiffs’ motion for a new trial, and that, as a matter of law, the state owed no duty to Roy. The plaintiffs filed a cross-appeal arguing that their motion for judgment as a matter of law should have been granted and that the trial justice erred in denying their motion for additur or alternatively their motion for a new trial on damages only. For the reasons set forth herein, [**3] we vacate the judgment of the Superior Court.
I
Facts and Travel
A
World War II Veterans Memorial Park and Pond
In July 2008, the pond at World War II Veterans Memorial Park in Woonsocket [*483] was one of several bodies of water operated by the state as a recreational facility. At trial several state workers testified to the condition and maintenance of the park and pond.
The director of DEM at the time of the incident, W. Michael Sullivan, testified that the man-made pond was “filled mechanically” and “treated much like a swimming pool.” Sullivan testified that, in June 2008, he made the decision to fill the pond, and he appeared at a press conference where he announced his decision.2 Sullivan stated that, in July 2008, there were “no swimming” signs posted, but DEM “expected that there would be people * * * using the park.” Sullivan explained that facilities such as the bathhouses were open, but he stated that he “did not ever consider the beach to be open.” Sullivan agreed that it was prohibited under DEM rules to operate the pond on a “swim-at-your-own-risk” basis, and he explained that, “if there were not lifeguards present at a swimming facility, that the swimming facility was closed.” Sullivan [**4] explained that, in July 2008, staff on-site at the park had been directed “to tell people that the beach — that the water was closed to swimming, to point to signage and refer them to that, but it was not expected that they would stand there and order people out [of the water] * * *.”
2 Sullivan had explained that, in February 2008, World War II Veterans Memorial Park had been “slated for closure” in the budget presented to the Legislature that year. However, at the end of June, after local officials expressed concern, he made the decision as the Director of DEM to fill the pond.
The Associate Director of Natural Resources for DEM, Larry Mouradjian, also testified at trial. He described the pond, explaining that there was a designated lap pool, a swim area, and a diving platform. He testified that he had seen the pond with and without water, and, based on his opinion, diving near the wall into the lap pool would be dangerous because it was too shallow. Mouradjian testified that the pond was typically not filled “until such time as we were able to fully staff the * * * swim area and invite the public to swim at the pond * * *.” Mouradjian stated that he thought the decision to fill the [**5] pond was untimely “[b]ecause the things normally done to prepare the pond to be open to the public had not been done * * *.” He testified that he had spoken to Sullivan and recommended that the pond be drained or left empty until DEM “beg[a]n to acquire the resources necessary.”
The DEM Chief of the Rhode Island Division of Parks and Recreation, Robert Paquette, and the Deputy Chief, John Faltus, also testified at trial. Paquette confirmed that Mouradjian was hesitant to open the pond and that Mouradjian told him that “we should really look into this.” However, Paquette testified that “[Sullivan] was ordering [him] to open up the facility.” Paquette also testified that he had never been told that “there was ever a problem with shallow water [along the wall of the pond].” Faltus testified that he was never “officially informed” that people were diving at the pond, but he had “heard hearsay that there’s possible diving activity after hours.” Faltus stated that generally they did not “allow diving at any [state] swimming areas.” However, he also admitted that “[p]eople [were] allowed to possibly do some shallow entry dives,” explaining that whether diving was allowed “[d]epends on how you define ‘dive.'”
William Mitchell [**6] Jr., the Regional Park Manager for DEM in 2008, testified that there was no “system that was in place to warn people of the depth of the water.” However, he stated that “if a patron * * * [*484] ask[ed] an employee * * * they would advise them as to the depth of the water, [and] if they asked about diving, [they] would tell them the rules and regulations * * *.” Mitchell agreed that Roy’s injury was “[g]enerally” the type of thing that he could foresee and he was concerned that it was the kind of injury that would happen when he was told to fill the pond before lifeguards had been hired.
Peter Lambert, a DEM caretaker supervisor who was employed at World War II Veterans Memorial Park from 1990 to 2008, testified at trial extensively about the physical characteristics and operation of the park and pond. He explained that, as the caretaker supervisor, he was the “acting park manager,” testifying that he “handled pretty much everything that had to do with the park itself: scheduling the staff, supervising the lifeguards, interviewing park rangers, interviewing seasonal people, assigning various work to people.” Essentially he either directly worked on or helped supervise everything that needed to be done at the [**7] park.
Lambert described the park as “16 acres * * * in the center of * * * Woonsocket [with] a man made [sic] pond, * * * two tennis courts, a playground area, horseshoe pits, * * * [an] Olympic pool area, * * * and the beach area * * *.” Lambert described the water depth near the wall where the Olympic pool met the beach area as being “pretty consistent over the years.” He testified that, when the pond was drained, he would try to “smooth the bottom” of it. Lambert explained that the pond “wouldn’t be perfectly level like a pool,” but testified that he “would try to eliminate any erosion, any heels, any high spots.” He testified that he was unable to do “any preparatory work to the bottom” of the pond in 2008 because he had been “informed that the park was closing and the beach wouldn’t be opened that year, and [his] job was being eliminated.” However, Lambert also explained that he did not rake the pond every year because “there were years when there was very little shifting on the bottom.” Subsequently, Lambert testified about the diving policies at the pond. He stated that diving had “never [been] allowed.” However, he admitted to seeing “people periodically dive * * * off of [the] [**8] wall on the pool area, [but] not during hours that [the pond was] in operation.”
B
The Events of July 10, 2008
Kenneth Henderson, a seasonal laborer for DEM who worked as a groundskeeper at the park in 2008, testified at trial that he was working on July 10, 2008. Henderson stated that he saw “about half a dozen” people swimming in the pond that day but did not tell them that swimming was prohibited because, in his words, “[he] had no authority.”
Laura Oliver and Carol Gear had also been at the park on July 10, 2008, and testified at trial. Oliver testified that on July 10 there were no lifeguards, lifeguard chairs, or buoy lines in the pond, and the fountain was off. Oliver said that she allowed her children to go swimming despite the “no swimming” signs “because there [had been] a write-up in the paper, and nobody told [them] different[ly].” She added that there were often “no swimming” signs in place, even when lifeguards were present and watching the swimmers. However, Oliver testified that a DEM employee, who she later learned was a groundskeeper, had told her children not to jump in the water. Oliver explained that she saw people jumping and “do[ing] all kinds of stuff” off the diving platform on July [**9] 10. However, she knew from experience that diving was not allowed in the pond because in previous years if someone [*485] dove into the water, then “lifeguards would be on top of it. If they kept doing it, [the lifeguards] would tell them they had to leave.” She added that she never saw anyone get hurt while diving prior to July 10. Oliver described Roy’s dive as “a belly flop kind of dive; not a complete dive.”
Gear testified that she had been to the pond to swim “[t]hree times” before July 10, 2008, and had seen people dive, but had never seen anyone injured from diving before Roy suffered his injury. Gear described Roy’s actions that she witnessed on July 10, stating: “He threw something on the ground, and [ran], like you run when you bowl, and then he just dove in.” She labeled Roy’s dive as a “[r]egular kind of dive.” She clarified that she would call it “a shallow dive.” She explained that “[i]t was more like he * * * just * * * put his head down and kind of went in. It wasn’t like a real dive like on a diving board.”
Hope Braybon, who accompanied Roy to the pond on July 10, also testified to the events of the day. Braybon stated that she watched Roy “jog” from the car in the parking lot and “d[i]ve in.” She testified [**10] that, as Roy was diving, she “was telling him not to dive over there * * * because it was shallow water.”
Roy was unable to testify at trial but his deposition was read into the record. Roy was six feet tall and twenty-nine years old at the time of the incident. Roy testified that on July 10 he had dropped Braybon, her daughter, and his children at the park and “they * * * walked towards the beach.” He recalled seeing “20 to 30 people, small children, adults, adolescent children in the middle of the pond” swimming, which indicated to him that the park was open. He testified that he “never saw a sign that said ‘[n]o [s]wimming.'” Roy further testified that, when he arrived at the park, he “walked over towards the corner [of the pond], * * * [a]nd * * * wasn’t going to jump in,” but, he described the day as “hot, * * * very hot. So, [he] figured * * * [he would] jump in.” He stated that he looked at the water and “[i]t looked deep enough.” He described the water as “murky” and said that he “definitely couldn’t see the bottom.” He explained that “if the water was too shallow, [he would] be able to see it.” Before jumping in, Roy returned to his car to put his things away and then he “walked down to the end[,] [**11] * * * dove in the water[,] and [he] broke [his] neck.” Roy described his dive as a “shallow dive, just like a normal, flat dive,” meaning, “the only parts that [he] would want to hit the water would be the * * * tops of [his] hand and [his] belly.” Roy testified that around July 2007 he dove in the same spot, and “[n]othing was ever said to [him].” Roy admitted that he knew there was soil erosion in the pond, and, consequently, that soil had been added to the pond in the past. Roy stated that “the way that [he] check[ed] the depth of the water * * * was probably irresponsible * * *.”
C
The Jury Verdict and Posttrial Motions
After the close of evidence, both parties filed motions for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, and the trial justice denied both motions. Subsequently, the jury was charged on May 25, 2011. During the course of deliberations, the jury exchanged over fifty notes with the trial justice. On the morning of the third day of deliberations, the trial justice addressed the jury and asked the jurors to keep deliberating because she was “really confident that the eight [jurors were] going to be able to * * * reach a decision that is fair and just for everyone.”
[*486] On the fourth day of deliberations, [**12] the jury asked the court to “clarify if [six] jurors are for one party and [two] jurors are for another[,] [d]o the questions have to be answered in favor of the way the six jurors feel and the [other two jurors would] not be able to express their own feelings[?]” The trial justice responded that she was “not exactly sure what [they] [were] asking but the jury’s verdict must be unanimous with all [eight] [jurors] agreeing.” Later that day, the trial justice held a chambers conference at which she suggested to counsel that, in light of the jury’s note, the jury might be split six to two.
During the fifth day of deliberations, the jury asked the trial justice to reinstruct them that they needed to follow the instructions of law and not their emotions. After a series of conferences with juror No. 109 and the jury foreperson, individually, the trial justice excused juror No. 109. At approximately 3:50 p.m. that day, the jury sent a note to the trial justice that it could not come to a unanimous agreement. Approximately ten minutes later the trial justice responded: “Is there anything we can do to assist you?” The jury responded that “nothing else will make a difference” and indicated a six-to-one [**13] split. Thereafter, the trial justice released the jurors for the day and asked counsel to think of options and to determine from their respective clients whether they would accept a split verdict.
The following day–day six of deliberations–both parties agreed to accept a six-to-one split decision if the jury was unable to reach a unanimous verdict. The parties expressed that they “understood at the time that the jury would be sent to deliberate” and that if the jury “inform[ed] the [c]ourt that it could not reach a unanimous verdict, [the trial justice] would then disclose [to the jury] that the parties [had] agreed to accept a [six] to [one] split decision * * *.” Subsequently, the jury exchanged additional notes with the trial justice and returned for additional instructions on the Recreational Use Statute and the issue of liability, included as questions 1 and 2 on the verdict form. Thereafter, the jury indicated that it had reached a verdict.
The jury reached a unanimous verdict and found that the state had not “willfully or maliciously failed to guard or warn against a dangerous condition, use, structure or activity at the pond * * *” and therefore was not liable under question 1. However, the jury [**14] found that the state was liable under question 2 for “willfully or maliciously fail[ing] to guard against a non-obvious, latent dangerous condition, knowing that there existed a strong likelihood that a user of the swimming pond would suffer serious injury or death[.]” The jury rejected the assumption-of-the-risk defense and found that both parties were negligent and assigned a 50/50 split with “zero” damages. The trial justice then called counsel to sidebar where plaintiffs argued that the jurors were not following the instructions because they found in favor of them but awarded no damages; the state disagreed. The trial justice instructed the jury that they were required to award damages. At that time, the state moved for a mistrial “based on the inconsistencies of the answers to the questions on the verdict sheet”; plaintiffs objected, and the trial justice denied the motion. The jury then sent a note explaining that they had “reached a unanimous verdict [because] no money was awarded.” They explained that if they had to award damages, “part of [the] jury [would] have one answer [and] part [would] have another. In other words, [they would] have to begin again.” The trial justice clarified [**15] with the jury that they were “referring to the [six-to-one] split/vote” and then released the jury for the day.
[*487] After the jury was sent home, the trial justice held a chambers conference with counsel. The parties discussed four potential options to consider: (1) a mistrial; (2) accept a six-to-one verdict; (3) accept half of the verdict; or (4) allow the verdict to stand. On the seventh day of deliberations, plaintiffs made a motion for additur or, in the alternative, for a new trial on the issue of damages. The trial justice denied plaintiffs’ motion and offered the parties a choice of accepting a split verdict or a mistrial. Both parties agreed to accept a six-to-one split verdict. The trial justice notified the jury that the parties would accept a six-to-one verdict. The jury returned the verdict and answered “no” to questions 1 and 2–finding no liability on behalf of the state, and judgment entered.
Following the jury verdict, both parties made renewed motions for judgment as a matter of law. In support of its motion, the state argued that plaintiffs failed to establish the state’s liability under the Recreational Use Statute and that, as a matter of law, Roy’s conduct was so “highly [**16] dangerous” that “no duty was owed to him.” The plaintiffs argued that the state’s witnesses admitted sufficient facts at trial to establish the state’s liability as a matter of law under the Recreational Use Statute. Additionally, plaintiffs moved for a new trial on damages, or, in the alternative, a new trial on all the issues. The trial justice issued a written decision on March 26, 2013, denying both parties’ motions for judgment as a matter of law, and granting plaintiffs’ motion for a new trial on all the issues. The state timely appealed this decision, and plaintiffs filed a cross-appeal.
II
Parties’ Arguments on Appeal
On appeal, the state argues that the trial justice erred in refusing to apply the decisions in Banks v. Bowen’s Landing Corp., 522 A.2d 1222 (R.I. 1987) and Bucki v. Hawkins, 914 A.2d 491 (R.I. 2007), which, the state contends, “stand for the proposition that the [s]tate owed no duty to Roy to protect him from an open and obvious natural condition * * *.” The state maintains that, “under the proper application of the Recreational Use Statute, the evidence fails to establish that the state willfully and/or maliciously failed to warn against a dangerous condition.” The state also argues that “Roy assumed the risk of injury by diving into murky water without first checking [**17] its depth” and that plaintiffs failed to prove the element of causation. Furthermore, the state contends that it is shielded from liability under the theory of discretionary immunity. The state also asserts that “the trial justice misconstrued material evidence and committed significant errors of law in granting plaintiffs’ motion for a new trial.” However, the state adds, if the matter is remanded for a new trial, “the statutory cap on damages should apply.”
In response, plaintiffs argue that the trial justice properly granted their motion for a new trial. The plaintiffs aver that they proved liability under the Recreational Use Statute and that the “open and obvious danger” rule articulated in Bucki, 914 A.2d at 496, is inapplicable here due to distinguishable facts. The plaintiffs maintain that Roy could not have “assumed the risk” under these facts as a matter of law and that plaintiffs proved proximate causation. Furthermore, plaintiffs contend that the trial justice and two motion justices properly applied the law and limited the state’s defenses with respect to governmental immunity and the damages cap. On cross-appeal, plaintiffs argue that the trial justice incorrectly denied their motions for additur, [**18] a new trial on the issue [*488] of damages only, and judgment as a matter of law. Additionally, plaintiffs argue that a new trial was warranted based on other legal errors made by the trial justice and that the second jury verdict was “the result of bias, prejudice, or passion.”
Because we conclude that the state owed no duty to Roy, we shall address only the state’s renewed motion for judgment as a matter of law.
III
Judgment as a Matter of Law
A
Standard of Review
[HN1] “In reviewing a trial justice’s decision on a motion for judgment as a matter of law, this Court is bound to follow the same rules and legal standards as govern the trial justice.” Hough v. McKiernan, 108 A.3d 1030, 1035 (R.I. 2015) (quoting Perry v. Alessi, 890 A.2d 463, 467 (R.I. 2006)). “The trial justice, and consequently this Court, must examine ‘the evidence in the light most favorable to the nonmoving party, without weighing the evidence or evaluating the credibility of witnesses, and draw[] from the record all reasonable inferences that support the position of the nonmoving party.'” Id. (quoting Perry, 890 A.2d at 467). Thus, a trial justice should enter judgment as a matter of law “when the evidence permits only one legitimate conclusion in regard to the outcome.” Id. (quoting Long v. Atlantic PBS, Inc., 681 A.2d 249, 252 (R.I. 1996)).
B
Discussion
[HN2] The Rhode Island Recreational Use Statute, G.L. 1956 [**19] chapter 6 of title 32, limits the liability of landowners, declaring that one
“who either directly or indirectly invites or permits without charge any person to use that property for recreational purposes does not thereby:
“(1) Extend any assurance that the premises are safe for any purpose;
“(2) Confer upon that person the legal status of an invitee or licensee to whom a duty of care is owed; nor
“(3) Assume responsibility for or incur liability for any injury to any person or property caused by an act of omission of that person.” Section 32-6-3.
[HN3] The purpose of this statute “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability to persons entering thereon for those purposes.” Section 32-6-1. In order to achieve this, “the [Recreational Use Statute] modifies the common law by treating users of public and private recreational properties as trespassers, thus greatly reducing the duty of care that owners owe to recreational users.” Symonds v. City of Pawtucket, 126 A.3d 421, 424 (R.I. 2015). As we have noted, “it is clear from the unambiguous language of the 1996 amendment [to the Recreational Use Statute] that the [L]egislature intended to include the state and municipalities among owners entitled to immunity [**20] under the statute.” Id. (quoting Pereira v. Fitzgerald, 21 A.3d 369, 373 (R.I. 2011)).3
3 In 1996, the General Assembly amended the definition of “owner” in G.L. 1956 § 32-6-2(3) to include the state and municipalities. P.L. 1996, ch. 234, § 1.
[HN4] Although the Recreational Use Statute limits liability, this limitation is not absolute. Section 32-6-5 provides, in relevant part: “(a) Nothing in this chapter limits in any way any liability which, but for this chapter, otherwise exists: (1) [f]or the willful or malicious failure to guard or [*489] warn against a dangerous condition, use, structure, or activity after discovering the user’s peril * * *.” “Thus, the Legislature declared that all people who use this state’s public recreational resources are classified as trespassers to whom no duty of care is owed, save to refrain from willful or malicious conduct as defined in the [Recreational Use Statute].” Berman v. Sitrin, 991 A.2d 1038, 1044 (R.I. 2010).
On appeal, the state argues that the evidence presented at trial did not establish that the state willfully and/or maliciously failed to warn against a dangerous condition. Specifically, the state argues that “there was no evidence of a substantial number of injuries flowing from a known dangerous condition”; that “the state did not fail to guard or warn against a dangerous condition, use, [**21] structure, or activity”; and that “no witness made testimonial admissions sufficient to extinguish protection under the Recreational Use Statute.” Conversely, plaintiffs argue that they proved liability under the Recreational Use Statute because the evidence supported a finding that the state “breached the duty to refrain from willful and malicious failures to guard and warn against known latent conditions.” In support of this argument, plaintiffs rely on Berman.
In Berman, 991 A.2d at 1042, the plaintiff was walking on the Newport Cliff Walk when the ground “gave way,” causing the plaintiff to suffer injuries that rendered him a quadriplegic. This Court specifically noted that this was “not * * * a case in which a visitor came too close to the edge of a cliff and fell off, as tragic as that would be.” Id. at 1049. Rather, “the events leading to [the plaintiff’s] tragic injury were caused by latent defects in the structure of the Cliff Walk that [were] not obvious to the occasional visitor.” Id. This Court explained that “the record before [it was] replete with evidence demonstrating that * * * the city knew that the forces of natural erosion were taking a toll on the Cliff Walk.” Id. at 1050. Thus, this Court concluded that “because [**22] of the multiple incidents of death and grievous injury * * * the city [could] not successfully defend [the plaintiff’s] claim based on an assertion that it had no specific knowledge of [the plaintiff] or any peril confronting him.” Id. at 1051. Consequently, this Court held that “the immunity provided by the [Recreational Use Statute] [was] not available to defendant City of Newport, in the context of the Cliff Walk” because a “fact-finder reasonably could find that * * * the city voluntarily and intentionally failed to guard against the dangerous condition, knowing that there existed a strong likelihood that a visitor to the Cliff Walk would suffer serious injury or death.” Id. at 1052, 1053.
The plaintiffs argue that this case is comparable to Berman because the “record is replete with evidence of DEM’s admitted knowledge of numerous unique dangerous conditions, including shallow water in areas where users had been known to dive from the park’s structures, and the historic presence of the sandbar in the same (normally deeper) area.” The plaintiffs maintain that the “shallow water and dangers of diving at this particular facility were not obvious to users * * * yet were in fact known to DEM.”
In the case at bar, [**23] although the state admitted knowledge of the unique features of the pond, Roy also admitted that he was aware of the danger of making a dive into shallow water and that “the way that [he] check[ed] the depth of the water * * * was probably irresponsible * * *.” He confirmed that he knew the soil in the pond was eroding and, consequently, that soil was added to the pond. We would note that, examining the evidence in the light most favorable to the plaintiffs as we [*490] must, the actions of the defendants are a far cry from the egregious conduct attributed to the City of Newport in Berman. There, we held that “[i]t is because of the multiple incidents of death and grievous injury that we conclude that the city may not successfully defend this claim based on an assertion that it had no specific knowledge of [the plaintiff] or any peril confronting him.” Berman, 991 A.2d at 1051. Here, there is only one indication in the record of a relatively minor injury reported several days before Roy’s catastrophic injuries. Therefore, we are of the opinion that, under these circumstances, this case is distinguishable from Berman. There is no evidence to support a finding that the state “willful[ly] or malicious[ly] fail[ed] to guard or warn against a dangerous condition, [**24] use, structure, or activity after discovering [a] user’s peril * * *.” See § 32-6-5(a)(1). Thus, the state’s motion for judgment as a matter of law should have been granted.
Moreover, even if the Recreational Use Statute did not apply, this Court has held that [HN5] the danger of diving in and of itself is an “open and obvious” danger, Bucki, 914 A.2d at 496, one of “common knowledge,” Banks, 522 A.2d at 1225, such that a landowner does not owe a duty of care to warn individuals who enter the premises. In Banks, 522 A.2d at 1224, the plaintiff filed a negligence claim for injuries he suffered after diving off a railing on the defendant’s property into the Newport Harbor. This Court held that the defendants had not owed any duty of care to the plaintiff in that case in part because “requiring citizens to place warnings against[–]and barriers preventing persons from[–]diving into shallow water would provide little disincentive to individuals * * *. As a practical matter, the danger of diving into shallow water is one of common knowledge, and one [the plaintiff] admit he was aware of.” Id. at 1225. Similarly, in Bucki, 914 A.2d at 493, the plaintiff filed a negligence claim for injuries he sustained after diving into a lake while he was a guest at one defendant’s waterfront property. This Court concluded that [**25] the plaintiff’s harm was foreseeable but again held that the defendants did not have a duty to warn of the dangers of diving. Id. at 496-97. This Court stated that:
“It is only reasonable for a diver, who cannot ascertain the water’s depth by looking, to further inspect the area before diving into dark water. The danger of diving into shallow water was open and obvious to a twenty-four-year-old man, regardless of whether a sign was erected alerting him to the danger.” Id. at 496.
Thus, this Court held that “as a matter of law, [the] plaintiff must be held to have had knowledge and an appreciation of this risk [because][,] [u]ltimately, it was [the] plaintiff’s own behavior that caused his injuries.” Id.
We also note that other courts have reached similar conclusions. For example, the Maryland Court of Appeals commented that:
“Bodies of water like the stream involved in this case have historically and consistently been afforded distinctive treatment in the law relating to landowners’ liability. The necessity, or at least desirability, of maintaining such bodies of water, coupled with known inherent dangers and the difficulty of effectively protecting against those dangers, have led courts across the country to pronounce [**26] water an ‘open and obvious danger,’ for which no warning or special precaution is ordinarily needed.” Casper v. Charles F. Smith & Son, Inc., 316 Md. 573, 560 A.2d 1130, 1134-35 (Md. 1989).
[*491] In a case affirming the grant of summary judgment in favor of the Chicago Park District against swimmers who were injured when they dove into Lake Michigan from concrete seawalls, Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 665 N.E.2d 826, 827, 828, 839, 216 Ill. Dec. 568 (Ill. 1996), the Illinois Supreme Court pronounced:
“In cases involving obvious and common conditions, such as fire, height, and bodies of water, the law generally assumes that persons who encounter these conditions will take care to avoid any danger inherent in such condition. The open and obvious nature of the condition itself gives caution and therefore the risk of harm is considered slight; people are expected to appreciate and avoid obvious risks.” Id. at 832.
The Illinois Supreme Court further reasoned that “bodies of water are ordinarily considered to be open and obvious conditions and thereby carry their own warning of possible danger.” Id. at 835. This is clearly the position adopted by this Court in Bucki, 914 A.2d at 497, where this Court stated that “[w]e are of the opinion that in this case [the] defendant did not owe [the] plaintiff a duty of care, but, rather, that [the] plaintiff voluntarily exposed himself to the perils of an open and obvious danger.” [**27] Because it is our considered opinion that the state bore no liability for Roy’s injuries–either because diving is an open and obvious danger or because it was protected under the Recreational Use Statute–we conclude that the trial justice erroneously denied its motion for judgment as a matter of law.
IV
Conclusion
For the reasons stated herein, we vacate the judgment of the Superior Court and remand the case with instructions to enter judgment in favor of the state. The record shall be returned to the Superior Court.
Rhode Island Recreational Use Statute
Posted: October 22, 2017 Filed under: Rhode Island | Tags: Recreational Use, Recreational Use Act, Recreational Use Statute, Rhode Island Leave a commentGeneral Laws of Rhode Island
TITLE 32. PARKS AND RECREATIONAL AREAS
CHAPTER 6. PUBLIC USE OF PRIVATE LANDS — LIABILITY
LIMITATIONS
R.I. Gen. Laws § 32-6-1 (2017)
§ 32-6-3. Liability of landowner
§ 32-6-4. Land leased to state
§ 32-6-5. Limitation on chapter
§ 32-6-6. Construction of chapter
§ 32-6-1. Purpose of chapter
The purpose of this chapter is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability to persons entering thereon for those purposes.
§ 32-6-2. Definitions
As used in this chapter:
(1) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land;
(2) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty;
(3) “Owner” means the private-owner possessor of a fee interest, or tenant, lessee, occupant, or person in control of the premises, including the state and municipalities;
(4) “Recreational purposes” includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, horseback riding, bicycling, pleasure driving, nature study, water skiing, water sports, viewing or enjoying historical, archaeological, scenic, or scientific sites, and all other recreational purposes contemplated by this chapter; and
(5) “User” means any person using land for recreational purposes.
§ 32-6-3. Liability of landowner
Except as specifically recognized by or provided in § 32-6-5, an owner of land who either directly or indirectly invites or permits without charge any person to use that property for recreational purposes does not thereby:
(1) Extend any assurance that the premises are safe for any purpose;
(2) Confer upon that person the legal status of an invitee or licensee to whom a duty of care is owed; nor
(3) Assume responsibility for or incur liability for any injury to any person or property caused by an act of omission of that person.
§ 32-6-4. Land leased to state
Unless otherwise agreed in writing, the provisions of § 32-6-3 and this section shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision or agency thereof or land that the state or any subdivision or agency thereof possesses an easement for recreational purposes.
§ 32-6-5. Limitation on chapter
(a) Nothing in this chapter limits in any way any liability that, but for this chapter, otherwise exists:
(1) For the willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity after discovering the user’s peril; or
(2) For any injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for that lease shall not be deemed a “charge” within the meaning of this section.
(b) When the coastal resources management council designates a right-of-way as part of its designation process as specified in § 46-23-6(5), or when the coastal resources management council stipulates public access as a condition of granting a permit, the landowner automatically will have “limited liability” as defined in this chapter, except as specifically recognized by or provided in this section.
§ 32-6-6. Construction of chapter
Nothing in this chapter shall be construed to:
(1) Create a duty of care or ground of liability for an injury to persons or property;
(2) Relieve any person using the land of another for recreational purposes from any obligation that he or she may have in the absence of this chapter to exercise care in his or her use of that land and in his or her activities thereon, or from the legal consequences of the failure to employ that care; or
(3) Create a public or prescriptive right or easement running with the land.
If you have had Toliosis in the Grand Canyon, take this Survey
Posted: October 18, 2017 Filed under: Uncategorized | Tags: Coconino County, Colorado River, Grand Canyon, Tolio, Toliosis Leave a commentThe Coconino County Public Services Health District is working to identify how tolio is and has been affecting river runners. A survey for do-it-yourself river runners has been set up to get your feedback on this condition that can impact river runners feet and hands.
Please click on the link below and fill out the survey if you have ever had the skin affliction commonly being referred to as tolio. The purpose of this survey is to get some baseline information about how tolio has recently been affecting people.
Here is the link: https://www.surveymonkey.com/r/DIY-tolio
For additional information, contact
Matthew Maurer, MPH, REHS
Epidemiologist
Coconino County Public Health Services District
2625 N. King Street, Flagstaff, AZ 86004
Phone: 928-679-7332
UIAA News Release – Final Calendar 2018 UIAA Ice Climbing season
Posted: October 18, 2017 Filed under: Climbing Wall | Tags: Calendar, Ice climbing, UIAA, UIAA Ice Climbing, UIAA Ice Climbing Competition Leave a comment
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If you work outdoors in the Winter, you should be a member of the American Avalanche Association
Posted: October 17, 2017 Filed under: Avalanche | Tags: AAA, American Avalanche Association, Pro, Pro Avalanche Training, Pro Trainer Workshops, Pro Training Coordinator, Pro Training Program Leave a comment
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Virus-free. www.avast.com |
UIAA News Release_Nominees for 2017 UIAA Mountain Protection Award
Posted: October 17, 2017 Filed under: Uncategorized | Tags: Mountain Protection Award, UIAA Leave a comment
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Crashing while mountain biking is an inherent risk under Indiana’s law.
Posted: October 16, 2017 Filed under: Assumption of the Risk, Cycling, Indiana, Mountain Biking | Tags: approaching, berm's, bicycle, bicyclist, Bike, challenging, City of Indianapolis, contributorily negligent, contributory negligence, designated, drop, genuine, golf ball, golf course, grade, high grade, Hoosier Mountain Bike Association, Inc., Indy Parks and Recreation, inherent risk. Inherent risk, Invitee, Issue of Material Fact, landowner's, Mountain, Mountain bike, Mountain biking, objectively, obstacles, precaution, Premises Liability, ride, rider, riding, risk of harm, Sport, Summary judgment, Trail Leave a commentThe plaintiff also admitted that he knew the risks of mountain biking and as such were contributorily negligent which barred his claims against the park owner.
Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133
State: Indiana, Court of Appeals of Indiana
Plaintiff: (At Trial) Richard Kaler
Defendant: (At Trial) Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation
Plaintiff Claims: Premises Liability
Defendant Defenses: No liability and Contributory Negligence
Holding: For the Defendants (at Trial)
Year: 2017
Summary
Crashing while mountain biking is an inherent risk under Indiana’s law. The plaintiff, an experienced mountain biker could not recover from the park because he knew and had crashed mountain biking and his knowledge of mountain biking also made him contributorily negligent. Contributory negligence under Indiana Law is a complete bar to recovery when suing a municipality.
Facts
This decision the parties in the heading is reversed. The plaintiff is listed second in this case at the appellate court heading and the defendants are listed first. The reason is the defendants are appealing the trial court’s ruling and they the defendants are prosecuting the case to the appellate court. Few states work this way in titling their decisions.
The City of Indianapolis, through its Indy Parks and Recreation department owns Town Run Trail Park. It has numerous mountain bike trails through the park which are managed by the Hoosier Mountain Bike Association.
The plaintiff had been mountain biking for five or six years. An Eagle Scout had created a berm in the park as part of a “merit badge” in the park. While riding the berm the plaintiff crashed and sued.
He described himself as an “experienced” and “better than average” bicyclist. Although he was familiar with the trails at Town Run, he had not been on the mountain-bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.”
Analysis: making sense of the law based on these facts.
All states have Premises Liability statutes. These statutes set out the duties of land owners relative to people on their land. If the land owner fails to meet those duties, the landowner is liability. An injury to a person on someone’s land is called a premises liability claim.
The plaintiff mountain biker brought a premises liability claim for his injuries. To win a premises liability claim in Indiana the plaintiff must prove the landowner.
(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable
risk of harm to such invitees, and
(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) Fails to exercise reasonable care to protect them against the danger.
The plaintiff failed to prove this to the appellate court on two different arguments. First, the plaintiff’s experience as a mountain bike showed he knew that crashing was a possibility mountain biking, and he crashed often.
He admitted that a fall “was just a general consequence of the sport.” Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark, but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” At no point, did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions.
Second he had ridden the wooden berm once before that day, electing to take a lower ride through the berm. The second time he went faster taking the higher edge of the berm when he crashed.
The plaintiff could not prove that actual or constructive knowledge that the City knew the trail created an unreasonable risk of harm to the plaintiff. Not because of the lack of the cities’ knowledge, but because crashing was part of the sport. Therefore, there was no unreasonable risk. The plaintiff had testified that crashing was part of the sport.
As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element.
Having the plaintiff admit crashing was part of the sport, the court held that while mountain biking crashing was an inherent risk of the sport. If a risk is inherent to the sport, then you could not sue for injuries from an inherent risk.
The second defense brought by the City on appeal was the plaintiff was contributorily negligent. Contributory negligence
“[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.
If you can prove the plaintiff was responsible for his own injuries, then the defendant is not liable. In some states, this could act to reduce the plaintiff’s damages. In Indiana, it was a complete bar to the plaintiff’s claims.
Reviewing the testimony of the plaintiff, the court found that the plaintiff was not completely free of all negligence. Meaning the plaintiff was also negligent and therefore, barred from suing for his claims.
So Now What?
Two great ideas came out of this for land owners in Indiana. The first is crashing is an inherent risk of the mountain biking. Most mountain bikers already knew this; however, having a court make the statement is great.
Second premises liability statute in Indiana has been interpreted to allow the defendant to introduce the knowledge and skill of the plaintiff as a defense to the plaintiff’s claims and as a denial of his claims.
What do you think? Leave a comment.
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Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133
Posted: October 15, 2017 Filed under: Assumption of the Risk, Cycling, Indiana, Legal Case, Mountain Biking | Tags: approaching, assumption of the risk, berm's, bicycle, bicyclist, Bike, challenging, City of Indianapolis, contributorily negligent, contributory negligence, designated, drop, Falling, genuine, golf ball, golf course, grade, high grade, Hoosier Mountain Bike Association, Hoosier Mountain Bike Association Inc., Indy Parks and Recreation, Inherent Risk, Invitee, Issue of Material Fact, landowner's, Mountain, objectively, obstacles, precaution, Premises Liability, ride, rider, riding, risk of harm, Sport, Summary judgment, Trail Leave a commentHoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133
Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation,1 Appellants-Defendants, v. Richard Kaler, Appellee-Plaintiff.
1 On February 23, 2017, Hoosier Mountain Bike Association, Inc. filed a notice of settlement with Richard Kaler and, as part of the settlement, dismissed this appeal. Accordingly, Hoosier Mountain Bike Association, Inc. is no longer a party in this cause. We will still include facts with respect to the Hoosier Mountain Bike Association, Inc. where necessary for our decision.
Court of Appeals Case No. 49A04-1604-CT-865
COURT OF APPEALS OF INDIANA
73 N.E.3d 712; 2017 Ind. App. LEXIS 133
March 23, 2017, Decided
March 23, 2017, Filed
PRIOR HISTORY: [**1] Appeal from the Marion Superior Court. The Honorable Cynthia J. Ayers, Judge. Trial Court Cause No. 49D04-1209-CT-35642
COUNSEL: ATTORNEYS FOR APPELLANTS: Donald E. Morgan, Lynne D. Hammer, Kathryn M. Box, Office of Corporation Counsel, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: John F. Townsend, III, Townsend & Townsend, LLP, Indianapolis, Indiana.
JUDGES: Riley, Judge. Crone, J. and Altice, J. concur.
OPINION BY: Riley
OPINION
[*714] Riley, Judge.
STATEMENT OF THE CASE2
2 We held oral argument in this cause on March 7, 2017, in the Indiana Court of Appeals Courtroom in Indianapolis, Indiana. We thank both counsel for their advocacy.
P1 Appellants-Defendants, the City of Indianapolis and Indy Parks and Recreation (the City),3 appeal the trial court’s denial of their motion for summary judgment with respect to Appellee-Plaintiff’s, Richard Kaler (Kaler), claims of negligence after Kaler sustained injuries in riding the City’s mountain bike trail at Town Run Trail Park.
3 For all practical purposes, Appellant is the City of Indianapolis as the City’s Indy Parks and Recreation department cannot be sued outside the Access to Public Records Act context. See City of Peru v. Lewis, 950 N.E.2d 1, 4 (Ind. Ct. App. 2011) (noting that units of local government, but not their individual departments, are suable under Indiana law), trans. denied.
P2 We reverse.
ISSUES
P3 The City presents us with four issues on appeal, which we consolidate and restate as follows:
(1) Whether a genuine issue of material fact precluded the entry of summary judgment on Kaler’s claim of premises liability; and
(2) Whether a genuine issue of material fact precluded the entry of summary judgment based on the City’s claim that Kaler was contributorily negligent.
FACTS AND PROCEDURAL HISTORY [**2]
P4 The City of Indianapolis owns and operates the Town Run Trail Park through its Indy Parks and Recreation department. The Hoosier Mountain Bike Association, Inc. (HMBA) is responsible for maintaining the trails, which have a difficulty rating from beginner through intermediate. In the spring of 2011, an Eagle Scout, as part of his merit badge project, built a new technical trail feature along Town Run’s mountain bike trail. The feature can best be described as a banked wooden turn, also known as a berm. A rider, approaching the berm, has three options for completing the turn. First, riders can avoid the berm by staying on the dirt path on its left side. Second, riders can elect to enter the berm and ride it on the low grade, or third, riders can negotiate the turn by riding the berm’s more challenging high grade. The entrance onto the wooden turn is fully tapered with the ground, while the exit is only partially tapered. A rider [*715] choosing the low grade would exit the berm with a “little jump” off the end of the feature. (City’s App. Vol. II, pp. 100-01). A rider exiting on the high grade would have to make a two-foot jump back down to the trail.
P5 By July 9, 2011, Kaler had been mountain [**3] biking for approximately four to five years. He described himself as an “experienced” and “better than average” bicyclist. (City’s App. Vol. II, pp. 90, 91). Although he was familiar with the trails at Town Run, he had not been on the mountain bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.” (City’s App. Vol. II, p. 89). He understood that “on a mountain bike trail there’s multiple paths that you can take, one being more dangerous or less dangerous than another.” (City’s App. Vol. II, p. 89). In fact, Kaler had ridden a “fairly sophisticated” trail before which had a “four or five foot drop.” (City’s App. Vol. II, pp. 95, 96). While riding a mountain bike, Kaler was “never [] a casual rider. [He] always enjoyed the obstacles[.]” (City’s App. Vol. II, p. 100). He “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). “[I]t was just a general consequence of the sport.” (City’s App. Vol. II, [**4] p. 95).
P6 On July 9, 2011, Kaler and his girlfriend took their first trip on the trail. The mountain bike trail is shaped as a “figure 8,” with an approximate length of 6 miles. (City’s App. Vol. II, p. 92). When he first approached the berm, Kaler “took the low grade” on the feature. (City’s App. Vol. II, p. 95). As he approached the end of the turn, Kaler could see “there was a drop” so he “pull[ed] up on the fork and [did] a little bunny hop[.]” (City’s App. Vol II, pp. 102, 101). On their second trip around the course, Kaler’s girlfriend decided to take a shorter loop back to the trailhead. She was not as “adventurous” as Kaler and was concerned about getting back to the trailhead before dusk. (City’s App. Vol II, p. 92). Despite the approaching darkness, Kaler “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. II, p. 101). He reached the berm again around 9:30 p.m. Feeling “capable of riding that high line,” Kaler sped up and rode the berm “as high as [he] could possibly ride it with [his] skill set.” (City’s App. Vol. II, p. 101). As he was near the end of the berm’s high grade, he “just saw [him]self lose control [] and just knew he was dropping.” [**5] (City’s App. Vol. II, p. 101). Kaler “didn’t see the drop, [nor] was he aware of the drop” at the end of the high grade turn, instead he “thought it tapered off.” (City’s App. Vol. II, p. 104). Due to the fall, Kaler sustained lacerations to his spleen and kidney. After calling his mother and girlfriend to inform them that he had crashed, he rode his bicycle back to the trail head. That evening, Kaler and his girlfriend went out for dinner.
P7 Around 1:30 a.m. on the following morning, Kaler went to the hospital where he was diagnosed with lacerations to his spleen and kidney. On discharge, Kaler was offered physical therapy but refused it because he “didn’t feel it was necessary.” (City’s App. Vol. II, p. 99). Kaler’s recovery did not last long and he participated in a 100-mile bicycle ride later that summer.
P8 On September 7, 2012, Kaler filed his Complaint against the City, sounding in premises liability. On August 21, 2015, the City filed its motion for summary judgment. (City’s App. Vol II, p. 46). In turn, Kaler submitted his response to the City’s motion, as well as his designation of evidence. On January 6, 2016, the trial court [*716] conducted a hearing on the City’s motion for summary [**6] judgment. On February 2, 2016, the trial court issued its Order, summarily denying the motion. The trial court certified its Order for interlocutory appeal and the City sought this court’s permission to appeal. We granted the request and accepted the interlocutory appeal on May 19, 2016.
P9 Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
P10 Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).
P11 In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of [**7] the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff’s cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.
P12 We observe that in the present case, the trial court did not enter findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer this court valuable insight unto the trial court’s rationale for its review and facilitate appellate review. Id.
II. Premises Liability
P13 In support of its argument that the trial court erred in denying its motion for summary judgment, the City relies on Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991), and Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). In Burrell,4 [*717] Indiana’s seminal case for premises liability, [**8] our supreme court imposed a three-part test to determine a landowner’s liability for harm caused to an invitee5 by a condition of its land. Under the Burrell test, a landowner can be held responsible only if the landowner:
(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) Fails to exercise reasonable care to protect them against the danger.
Burrell, 569 N.E.2d at 639-40.
4 We acknowledge that on October 26, 2016, our supreme court redrew the premises liability landscape with its decision in Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016), in which the court issued a new test with respect to the situation where an invitee’s injury occurs not due to a dangerous condition of the land but due to claims involving activities on the land. In Rogers, our supreme court distinguished Burrell as follows:
When a physical injury occurs as a condition of the land, the three elements described in the Restatement (Second) of Torts Section 343 accurately describe the landowner-invitee duty. And because Burrell involved an injury due to a condition on the land, it accordingly framed the landowner-invitee duty broadly. [] [W]hile Section 343 limits the scope of the landowner-invitee duty in cases involving injuries due to conditions of the land, injuries could also befall invitees due to activities on a landowner’s premises unrelated to the premises’ condition–and that landowners owe their invites the general duty of reasonable care under those circumstances too.
Rogers, 63 N.E.3d at 322-23. Because Kaler’s injury occurred when riding a mountain bike trail feature, we find the cause more properly analyzed pursuant to Burrell [**9] as it involved a condition of the land.
5 All parties agree that Kaler is an invitee of the City.
P14 On May 18, 2011, our supreme court issued Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), which applied the Burrell test in the realm of premises liability while participating in sports activities. In Pfenning, Cassie Pfenning was injured by a golf ball at a golf outing when she was sixteen years old. Id. at 396. At the time of the incident, Pfenning drove a beverage cart and after making several trips around the golf course “was suddenly struck in the mouth by a golf ball while driving the beverage cart on the cart path approaching the eighteenth hole’s tee pad from its green.” Id. at 397. The ball was a low drive from the sixteenth tee approximately eighty yards away. Id. The golfer’s drive traveled straight for approximately sixty to seventy yards and then severely hooked to the left. Id. The golfer noticed the roof of another cart in the direction of the shot and shouted “fore.” Id. But neither the plaintiff nor her beverage-serving companion heard anyone shout “fore.” Id. After hearing a faint yelp, the golfer ran in the direction of the errant ball and discovered the plaintiff with injuries to her mouth, jaw, and teeth. Id.
P15 Pfenning brought, among others, a premises liability claim against the Elks, the fraternal lodge that owned and [**10] operated the golf course. Id. at 405. Finding that the injury arose from a condition on the premises, the supreme court turned to Burrell in its articulation of the contours of the Elks’ duty. Id. at 406. In applying the Burrell test, the court held that the two first aspects of premises liability were not established by the designated evidence. Id. at 407. First, turning to the second element–the discovery or realization of danger–the court concluded that “for the purpose of our premises liability jurisprudence, the issue here is [] whether the Elks objectively should have expected that [Pfenning] would be oblivious to the danger or fail to protect herself from it.” Id. at 406. In applying this principle the court found “no genuine issue of fact to contravene the objectively reasonable expectation by the Elks that persons present on its golf course would realize the risk of being struck with an errant golf ball and take appropriate precautions.” Id. Addressing Burrell‘s first element–unreasonable [*718] risk of harm–the Pfenning court reasoned that “the risk of a person on a golf course being struck by a golf ball does not qualify as the ‘unreasonable risk of harm’ referred to in the first two components of the Burrell three-factor [**11] test.” Id.
P16 Likewise, here, we conclude that the designated evidence does not satisfy the Burrell requirements with respect to the duty component of premises liability. Initially, we find that it was objectively reasonable for the City under the facts of this case to expect Kaler to appreciate the risks of riding the trail and take suitable protections. The trail’s difficulty was advertised as appropriate for beginner through intermediate. Kaler’s own deposition characterized himself as an “experienced” bicyclist, who had ridden “a fairly sophisticated” trail before and who “always enjoyed the obstacles.” (City’s App. Vol. II, pp. 91, 95, 100). He conceded that to “try to get an idea of the technical requirements of the trail,” he would get off his bike, especially if he noticed something “as a danger.” (City’s App. Vol. II, p. 89). He admitted that a fall “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. [**12] II, p. 101). At no point did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions.
P17 We also conclude that the designated evidence fails to establish that the City had actual or constructive knowledge of a condition on the trail that involved an unreasonable risk of harm to Kaler. Kaler’s own deposition unequivocally affirms that being involved in a bicycle crash “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). In fact, Kaler “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element. See Pfenning, 947 N.E.2d at 407.
P18 Finding that the designated evidence conclusively established that two of the elements of the premises liability [**13] test are not satisfied, we conclude that the trial court erred by denying summary judgment to the City. We reverse the trial court’s decision and now find summary judgment for the City.
II. Contributory Negligence
P19 Next, the City maintains that Kaler is foreclosed from any recovery because of his failure to exercise the care a reasonable, prudent mountain biker should have exercised. It should be noted that Kaler brought his claim against the City, a governmental entity, and therefore, his claim falls under the common law defense of contributory negligence, as the Indiana Comparative Fault Act expressly excludes application to governmental entities. See I.C. § 34-51-2-2. Consequently, even a slight degree of negligence on Kaler’s part, if proximately contributing to his claimed damages, will operate as a total bar to his action for damages against the City, even though, as against nongovernmental defendants, any fault of Kaler would only operate to reduce the damages he might obtain.
[*719] P20 A plaintiff is contributorily negligent when the plaintiff’s conduct “falls below the standard to which he should conform for his own protection and safety.” Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006). Lack of reasonable care that an ordinary person would [**14] exercise in like or similar circumstances is the factor upon which the presence or absence of negligence depends. Id. Expressed another way, “[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.” Id. at 599. Contributory negligence is generally a question of fact and is not an appropriate matter for summary judgment “if there are conflicting factual inferences.” Id. “However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law.” Id.
P21 In Funston, the plaintiff sued the school after incurring injuries caused by a fall when he leaned backwards while sitting on the top row of a set of bleachers. Id. at 599. Funston had been at the gym for about four hours, watching two basketball games while sitting on lower rows on other sets of identical bleachers. Id. For the third game, he moved to the top row of one of the bleachers. Id. It was clearly visible that there was no back railing for spectators sitting on the top row, but Funston leaned back anyway because he “thought there [**15] was something back there[.]” Id. Our supreme court concluded that Funston was contributorily negligent as a matter of law, finding that:
It certainly is understandable that [Funston] would be distracted as he engaged his attention on his son’s basketball game. But being understandable does not equate with being completely free of all negligence.
Id. at 600.
P22 In his deposition, Kaler affirmed that in trying to build a skill, it would not be unusual for him “to get off [his] bike and look at the [] obstacles.” (City’s App. Vol. II, p. 89). He also acknowledged that he knew the berm’s high grade would be challenging because he had just started riding high berms and had never ridden a berm as steep as the one at Town Run. As he approached the end of the turn during his first ride on the berm, Kaler could see “there was a drop[.]” (City’s App. Vol. II, p. 103). After a successful first run on the berm’s low grade, Kaler decided to ride the feature again. Despite the approaching darkness, he planned to ride the berm’s high grade as high as he possibly could because it would be “really cool to ride it and get that speed[.]” (City’s App. Vol. II, p. 101). Notwithstanding the coolness factor, Kaler conceded [**16] that riding obstacles posed a risk of bodily injury as crashes were a general consequence of the sport. Typically, to get an idea of the technical requirements of a trail, the biker “would get off his bike.” (City’s App. Vol. II, p. 89).
P23 Based on the designated evidence, we cannot conclude that Kaler was “completely free of all negligence.” See id. Kaler knew and understood the precautions a reasonably prudent mountain biker should take–inspect the feature prior to riding it–but chose not to follow them. There is no evidence that the jump from the high grade was obscured from view and Kaler conceded that he could have anticipated the drop from the high grade had he taken the precaution a reasonable bicyclist riding an unfamiliar trail would take. Accordingly, we find Kaler contributorily negligent.
[*720] CONCLUSION
P24 Based on the foregoing, we hold that there is no genuine issue of material fact that precludes the entry of summary judgment in the City’s favor on Kaler’s claim of premises liability; and Kaler was contributorily negligent when riding the City’s mountain bike trail at Town Run.
P25 Reversed.
P26 Crone, J. and Altice, J. concur
Any angry injured guest or a creative attorney will try about anything to win. In this case, the New Jersey Consumer Fraud Act was used to bring a Pennsylvania Ski Area to court in New Jersey
Posted: October 9, 2017 Filed under: Assumption of the Risk, New Jersey, Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: actionable, advertised, advertisement, ascertainable loss, Assumption of risk, assumption of the risk, business practice, Camelback Mountain Ski Resort, Cammelback, Cause of action, cognizable, common law, concealment, Consumer, consumer fraud, Downhill, factual allegations, Immunity, Legal Case, material fact, merchandise, misleading, New Jersey, New Jersey Consumer Fraud Act, NJCFA, omission, Pennsylvania, presumed to know, quotation marks omitted, reasonable inference, residents, ski area, Ski Area Statutes, Ski Resort, Skier's Responsibility Act, skiing, Skiing / Snow Boarding, Snow, Sport, tort liability, unlawful practice Leave a commentThe lawsuit failed, this time. However, the failure was due to Pennsylvania law more than New Jersey law. The plaintiff argued it was a violation of the act to advertise to New Jersey residents to come skiing in Pennsylvania and now warn of the difficulty of suing for injury’s skiing.
Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183
State: Pennsylvania, United States District Court for the Middle District of Pennsylvania
Plaintiff: Gyl Cole, Ronald Cole, her husband
Defendant: Camelback Mountain Ski Resort
Plaintiff Claims: Violation of the New Jersey Consumer Fraud Act
Defendant Defenses: The statute did not apply
Holding: For the defendant
Year: 2017
Summary
In this case the plaintiff sued arguing, the New Jersey consumer Fraud Act was violated by the defendant ski area because it did not put a notice in its ad that was seen in New Jersey, that suing a Pennsylvania ski area was difficult, if not impossible, because of the Pennsylvania Skier’s Responsibility Act.
However, there was nothing in the act that applied to advertising nor was there anything in the law requiring a defendant to inform the consumer about the law that might apply to any relationship between the guest and the ski area.
Facts
The plaintiff and her husband lived in Waretown New Jersey. They went skiing at defendant Camelback Mountain Ski Resort, which is located in Pennsylvania. Although not stated, allegedly they went skiing after reading an advertisement by Camelback.
While skiing on a black diamond run the plaintiff slammed into a six-inch metal pipe and sustained severe injuries.
The plaintiff sued, first in New Jersey state court. The case was transferred to the Federal District Court in New Jersey. How the case was transferred to the Pennsylvania Federal court that issued this opinion is not clear.
The Pennsylvania Federal District Court dismissed the plaintiff’s complaint with the above captioned opinion.
Analysis: making sense of the law based on these facts.
The basis of the plaintiff’s complaint was that a ski area advertising in New Jersey needed to inform New Jersey residents that it was impossible to sue and win a lawsuit against a Pennsylvania ski area. Because the ads of the defendant ski area did not mention that fact, the plaintiffs claimed that the defendant had violated the New Jersey New Jersey Consumer Fraud Act.
All states have a Consumer Fraud Act. Each states act is different from any other state, but generally they were enacted to prevent scam artists from ripping people off. The New Jersey Act awards treble damages and attorney’s fees if a consumer could prove there was “(1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss.…”
Most state consumer fraud statutes include greater than simple damages as a penalty to keep fraudulent acts from happening. Many also include attorney fees and costs to encourage attorneys to take up these cases to defend the consumer put fraudulent practices or business on notice or out of business.
Under the act, an unlawful practice was defined as:
[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .
An unlawful practice was defined as falling into one of three categories: “affirmative acts, knowing omissions, and regulation violations.”
A failure to inform, the argument being made by the plaintiff, was an omission. You could sue based upon the omission if you could prove the defendant “(1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.”
The underlying duty on the part of the defendant was a duty to disclose. If there was no duty to disclose, then there was no omission. The plaintiffs argued, the Pennsylvania Skier’s Responsibility Act prevented lawsuits against ski areas, or as the
plaintiff’s argued, indemnified ski areas from lawsuits. That information the plaintiff argued needed to be included in the ad, or it violated the New Jersey Act.
The court then looked at Pennsylvania Supreme Courts interpretations of the Pennsylvania Skier’s Responsibility
Act. Those decisions stated the act did not create new law, but kept in place long standing principles of the common law. Meaning that the act reinforced the common law assumption of the risk defense that preceded the Pennsylvania Skier’s Responsibility Act.
The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.
Since the act did not create new law, only codified the law, there was little if any requirement of a duty to inform anyone of the law.
Going back to the New Jersey New Jersey Consumer Fraud Act, nothing in the act nor had any court decision interpreting the act held a requirement to inform any consumer of any law. In fact, the law is based on the fact that all people know and understand the law. (A tenet of the law that I personally find confusing. You must know the law; however, to give legal advice you must go to law school. After law school, I know I don’t know all the laws!)
Consequently, there can be no duty to tell a consumer what the law states because they already know law. “…a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.”
There are exceptions to this rule, when a statute specifically requires some type of notice be given to the consumer, but that was not the case here.
Finally, the court held that to find in favor of the plaintiffs would create a never-ending liability on businesses. In that part of the US, an ad could be seen by someone living in Pennsylvania, New Jersey and New York. No ad could fully inform consumers in all three states about the possible laws that might be in play in that particular ad. “Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.”
The case was dismissed.
So Now What?
I don’t think you can simply think that this case has no value. You need to take a look, or have your attorney look, at your own state consumer fraud statute. Placing disclaimers in ads would not be logical, but making sure you don’t cross the line and violate your state consumer fraud law can keep you from being sued for violation of the statute in your own state. And damages can skyrocket in many cases once they are trebled and attorney fees, costs and interest are added.
Remember, Marketing makes Promises Risk Management has to pay for©
What do you think? Leave a comment.
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Recreation Law 
Information on National Park Entrance Fees increase to $70 Comment period closes November 23, 2018
Posted: October 27, 2017 | Author: Recreation Law | Filed under: Uncategorized | Tags: Comment Period, Entrance Fee, National Park Service, National Parks | Leave a comment$70 to visit Grand Canyon? There is a 30 days comment period underway right now where the public (and that means you) can weigh in on a significant entrance fee proposal that would affect a number of national parks inclu
ding Grand Canyon. See this link for details and to access the website for submitting comments. https://www.nps.gov/…/1…/10-24-2017-fee-changes-proposal.htm
Will lower income and under-served populations be priced out? Shouldn’t national parks be affordable and accessible to everyone? But how do we pay for the massive maintenance backlog that exists in our national parks? Our parks belong to ALL Americans, not just those who visit them, and our administration should be boosting park budgets, not cutting them. Congress should also support the bipartisan legislation introduced specifically to address the NPS maintenance backlog — the National Parks Legacy Act (HR 2584 and SB 751) which is currently pending.
Also, please read these related blogs from our good friends at the National Parks Conservation Association:
https://www.npca.org/articles/1669-administration-proposes-massive-park-fee-increase
https://www.npca.org/articles/1508-sens-warner-portman-introduce-bipartisan-legislation-to-address-national
“We should not increase fees to such a degree as to make these places — protected for all Americans to experience — unaffordable for some families to visit,” NPCA president and CEO Theresa Pierno said in a statement. “The solution to our parks’ repair needs cannot and should not be largely shouldered by its visitors.”
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