Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351
Posted: July 26, 2016 Filed under: Florida, Legal Case, Pennsylvania, Release (pre-injury contract not to sue), Rivers and Waterways | Tags: Diversity, Florida, Negligence per se, Release, Sailing, Seamanship, Vessel for Hire, Waiver Leave a commentKnarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351
Jean Knarr & Lester Knarr v. Chapman School Of Seamanship
CIVIL ACTION NO. 99-952
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2000 U.S. Dist. LEXIS 5351
April 14, 2000, Decided
April 14, 2000, Filed
COUNSEL: For JEAN KNARR, LESTER KNARR, PLAINTIFFS: DAVID S. KATZ, DAVID S. KATZ, ESQ., P.C., NORRISTOWN, PA USA.
For CHAMPMAN SCHOOL OF SEAMANSHIP, DEFENDANT: ANDREW P. MOORE, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, DOYLESTOWN, PA USA.
JUDGES: JACOB P. HART, UNITED STATES MAGISTRATE JUDGE.
OPINION BY: JACOB P. HART
OPINION
MEMORANDUM AND ORDER
JACOB P. HART
UNITED STATES MAGISTRATE JUDGE
April 14, 2000
The Defendant in this personal injury action has filed a motion for summary judgment. It argues that the Plaintiffs have failed to present any expert testimony to support their contention that the Defendant violated Coast Guard regulations and Florida state laws and codes that would constitute negligence per se pursuant to Florida law. Without the ability to prove negligence per se, Defendant argues that Plaintiffs’ claims are all barred by the release Mrs. Knarr signed.
[HN1] Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, 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. Fed. R. Civ. Pr. 56. [HN2] The moving [*2] party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). [HN3] When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).
Construing the evidence in favor of the Plaintiffs, as we are required to do at this stage of the proceedings, reveals the following. Plaintiff, Jean Knarr, was a student at the Chapman School of Seamanship, (“Chapman”). In March of 1997, Mrs. Knarr slipped and fell on one of the wet, wooden ladder steps, while disembarking from a ship, owned and operated by Chapman. To stop her fall, she attempted to reach for a railing on the right side of the ladder. Unfortunately, there was no railing on the right side of the ladder. As a result of the fall, Mrs. Knarr fractured her right foot, ankle, and leg, and suffered other bruises and lacerations.
Before the accident took place, Mrs. Knarr signed an agreement to indemnify Chapman for any suit or claim arising [*3] from the use of Chapman’s equipment.
I, the undersigned, for myself … and all those claiming by, through or under me, for and in consideration of being allowed to use the equipment, motors and vessels … owned by … the Chapman School of Seamanship, Inc. … hereby forever release and indemnify said Chapman School of Seamanship, Inc. from any … bodily injury … suit or claim arising out of the use of any equipment, motors or vessels, whether or not such … bodily injury … is based upon the sole negligence of Chapman School of Seamanship … .
(Chapman Application/Registration Form).
In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.
[HN4] While, under Florida law, contracts indemnifying a party against its own negligence will be enforced if the language of the contract is clear and unequivocal, see Charles Poe Masonry v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979)(citation omitted), a party [*4] cannot indemnify itself against negligence per se. See John’s Pass Seafood Co. v. Weber, 369 So. 2d 616, 618 (Fl. 2d Dist. Ct. App. 1979)(holding such indemnification is against public policy).
(Order, 9/9/99). Judge Katz found that there were unresolved issues of fact regarding Chapman’s conduct and whether such conduct constituted negligence per se.
Chapman has now filed a second motion for summary judgment, arguing that the Plaintiffs have failed to present any expert testimony supporting their contention that certain conditions on the ship constituted statutory violations, establishing negligence per se. In response, the Plaintiffs present the court with a report and a letter from the engineering firm of Goedken, Liss. Specifically, Harold A. Schwartz, P.E., states that Chapman violated Coast Guard Regulations, Florida laws and codes, and the rules of the State Boating Law Administrators for safe boating certification.
In the report, however, Mr. Schwartz fails to identify any specific statute, regulation, or rule, that Chapman violated. In a follow-up letter, Mr. Schwartz refers to a standard adopted by the American National Standards Institute [*5] (“ANSI”), applying to ladders. He opines that the ladder in question fails to comply with the ANSI standard in three respects. First, the top rung is not level with the landing platform. Second, the side rails failed to extend the required 3 feet 6 inches above the top of the landing platform. Finally, the ladder did not have sufficient step across distance (the distance from the centerline of the rungs to the nearest edge of the structure). (Letter of Schwartz, 12/9/99).
The court is left to answer the questions of whether a violation of these ANSI standards is sufficient to constitute negligence per se under Florida law, and if not, are these standards embodied in any governing statutes, a violation of which would constitute negligence per se.
We answer the first question in the negative. [HN5] According to ANSI, it is the “coordinator of the United States private sector voluntary standardization system.” <<UNDERLINE>http://web.ansi.org/public/about.html, 4/11/00> As such, the ANSI standards do not have the force of law, absent adoption by statute, ordinance, or regulation. See Jackson v. H.L. Bouton Co., 630 So. 2d 1173, 1174-75 (Dist. Ct.App.Fl. 1994)(violation [*6] of ANSI standard is “merely evidence of negligence.”); Evans v. Dugger, 908 F.2d 801, 807 (11th Cir. 1990)(ANSI standards regarding handicapped access adopted by Florida regulation); Nicosia v. Otis Elevator Co., 548 So. 2d 854, 855 (Dist. Ct.App.Fl. 1989)(Florida adopted ANSI standard for elevator safety by statute).
However, our own search of Coast Guard regulations reveals that the Coast Guard has adopted the specific ANSI standard regarding the step off space (minimum of 7 inches) for escape ladders on small passenger vessels. 46 C.F.R. § 177.500(k). Therefore, we must determine whether a violation of this Coast Guard regulation constitutes negligence per se pursuant to Florida law.
[HN6] According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.” DeJesus v. Seaboard Coast Line Railroad Co., 281 So. 2d 198, 201 (Fla. 1973). Although we have been unable to find any case arising out of the state courts in Florida which concludes that a violation [*7] of a Coast Guard regulation amounts to negligence per se, [HN7] the Fifth Circuit and the United States Supreme Court have concluded that such a violation does constitute negligence per se. Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140, 143 (5th Cir. 1980)(“the failure to follow any Coast Guard regulation which is a cause of an injury establishes negligence per se.”); Kernan v. American Dredging Co., 355 U.S. 426, 2 L. Ed. 2d 382, 78 S. Ct. 394 (1958). [HN8] Similarly, Florida state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. See First Overseas Investment Corp. v. Cotton, 491 So. 2d 293, 295 (Dist.Ct.App.Fl. 1986)(violation of Florida Department of Health and Rehabilitative Service Rule constitutes negligence per se); Underwriters at La Concorde v. Airtech Services, Inc., 493 So. 2d 428, 430 (Fla. 1986)(Boyd, J. concurring)(acknowledging expansion of negligence per se concept to include violations of administrative regulations); H.K. Corporation v. Miller, 405 So. 2d 218 (Dist.Ct.App.Fl. 1981)(violation of state administrative [*8] regulation constituted negligence per se); Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222, 1225 (Dist.Ct.App.Fl. 1978)(violation of FAA regulation constitutes negligence per se). But see Murray v. Briggs, 569 So. 2d 476, 480 (Dist.Ct.App.Fl. 1990)(violation of Interstate Commerce Commission regulation not negligence per se); Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1 (Dist.Ct.App.Fl. 1989)(violation of OSHA regulation does not constitute negligence per se). 1 Therefore, we conclude that a violation of a Coast Guard regulation will constitute negligence per se if the plaintiff is a member of the particular class of persons that the regulation sought to protect and she suffered an injury that the regulation was designed to prevent.
1 In Jones v. Spentonbush-Red Star Co., 155 F.3d 587 (2nd Cir. 1998), the Second Circuit distinguished violations of OSHA and Coast Guard regulations. The court explained that OSHA, itself, states that it should not be construed “to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees.” Jones, at 595 (citing 29 U.S.C. § 653(b)(4)). Relying on this language, the court explained that imposing negligence per se for an OSHA violation would “enlarge or diminish or affect … the liability of a maritime employer.” Jones, at 595.
[*9] As indicated above, the only ANSI standard relevant to the issues in this case that has actually been adopted by the Coast Guard, is the one dealing with the minimum distance that must be observed between the rungs of the ladder and the nearest permanent object in back of the ladder (here the side of the cabin). 46 C.F.R. § 177.500(k) requires that this distance be at least 7 inches.
The first question we must answer about this regulation is whether the plaintiff is a member of the particular class of persons that the regulation sought to protect. We have little trouble concluding that she is. The regulation appears at Subchapter T of the Coast Guard regulations. This subchapter specifically covers “Small Passenger Vessels (Under 100 Tons).” There is no dispute here that defendant’s boat is such a vessel. The general provisions of subchapter T state that the provisions of the subchapter apply, inter alia, if the vessel carries less than 150 passengers, but more than 6, so long as at least one of the six passengers is “for hire.” Since she was a student of defendant, using defendant’s boat for instruction, clearly Mrs. Knarr was a passenger “for hire.” Finally, the specific ladder [*10] regulation in question appears under the heading “Escape Requirements.” One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic. Cf. The Titanic, 233 U.S. 718, 34 S. Ct. 754, 58 L. Ed. 1171 (1914).
The next question — whether plaintiff suffered an injury that the regulation was designed to prevent — is a bit more difficult to answer. We nevertheless conclude that there are present here at least some genuine issues of material fact that prevent the court from ruling, as a matter of law, that Mrs. Knarr’s injuries could not have been avoided had the ladder complied with this regulation.
Defendant urges us to give a literal reading to plaintiffs’ complaint, and to find from such a reading that Mrs. Knarr has not alleged any fact from which a jury could conclude that the distance between the cabin wall and the ladder step could have proximately caused her fall. We decline to do so. In addition to the well known principle of federal pleading that [HN9] the facts alleged in a complaint need only put the defendant on notice of the [*11] plaintiff’s theories of recovery and need not state each element of proof with specificity, see Fed.R.Civ.P. 8(a)(2), we have here at least two specific allegations that could relate to the ladder’s set back distance.
In paragraph 10 a. of the complaint, Mrs. Knarr alleges that “the step upon which she was standing was in an unsafe condition.” In the next subparagraph, 10 b., she claims that “there were slippery substances on the steps which were not visible to the plaintiff.” While neither of these allegations specifically attributes negligence to the ladder set-back distance, we think it would be improper, at this point, to preclude plaintiff’s expert from testifying that the setback distance was related to the general “unsafe condition” allegation, or to the plaintiff’s alleged inability to see the condition of the ladder steps themselves.
Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some [*12] of which will, no doubt, be the subject of expert opinions. Accordingly, summary judgment is inappropriate at this time.
An appropriate order follows.
ORDER
AND NOW, this 14 day of April, 2000, upon consideration of the Defendant’s Motion for Summary Judgment, the Plaintiffs’ response, thereto, including the attached reports of his expert engineer, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Motion is DENIED.
BY THE COURT:
JACOB P. HART
UNITED STATES MAGISTRATE JUDGE
Plaintiff argues under Minnesota law, the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Posted: July 25, 2016 Filed under: Minnesota, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Ambiguous, Inc., Mogul, Release, Season Pass, ski area, Wild Mountain, Wild Mountain Ski Area Leave a commentSince the language was not an “offer” no new contract was being offered by the ski area to skiers, and the language did not create any conflict with the release language.
Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212
State: Minnesota, Court of Appeals of Minnesota
Plaintiff: Lee and Cathy Bergin
Defendant: Wild Mountain, Inc. d/b/a Wild Mountain Ski Area
Plaintiff Claims: negligence,
Defendant Defenses: Release
Holding:
Year: 2014
This is a lawsuit by a husband and wife against a ski area for the injuries husband received skiing. A friend purchased season passes online for himself and the defendants. As part of that online purchase, the friend agreed to a release online.
Interesting that just five years ago the issue would have been whether the release signed electronically was valid, now the courts do not even look at that issue.
The friend did not discuss the season pass with the defendants before agreeing to it for them. In a deposition, the husband agreed that he had the friend purchase the passes and had purchased season passes online for the past eleven years and agreed to the release all those years. The defendants wrote a check to the friend for the cost of the season passes.
The trial court held that the friend bound the defendants to the season pass release. The defendants did not argue this issue on appeal.
Seven months later, the defendants picked up their season passes and went skiing. On the back of the season pass was disclaimer language.
The defendants skied “the Wall” a double black diamond trail. The wall had a bump run on the right, and the husband skied the left side. Near the bottom of the run, he hit a bump (mogul?) and went airborne landing on his back. The defendant husband is paralyzed.
This was the only incident the defendant ski area had recorded concerning that run that year. The plaintiff’s sued, and the trial court granted the defendants motion for summary judgment. This appeal followed.
Analysis: making sense of the law based on these facts.
During or prior to the granting of the defendant’s motion for summary judgment, the plaintiff’s moved to amend their complaint to add a claim for reckless, willful or wanton conduct of the defendant. The trial court denied this, and the appellate court looked at this issue on appeal.
In order to support a claim for more than ordinary negligence, the rules of civil procedure required a short and plaint statement describing facts supporting their claim.
The court reviewed the requirements to prove the amended allegations. “Willful and wanton conduct is the failure to exercise ordinary care after discovering a person or property in a position of peril.” The plaintiff’s argued their two expert’s affidavits supported these new claims.
Because the defendant had no other notice of the issues, the defendant had no notice of the problem in advance of the plaintiff’s injuries. A requirement under Minnesota law to prove reckless, willful or wanton conduct.
Because the evidence is insufficient to establish that Wild Mountain engaged in conduct constituting greater-than-ordinary negligence, the district court correctly determined that a claim of greater-than-ordinary negligence would not survive a motion for summary judgment.
The next issue the court looked at was the validity of the release.
A clause exonerating a party from liability,” known as an exculpatory clause, is enforceable if it: (1) is “unambiguous”; (2) is “limited to a release of liability arising out of negligence only”; and (3) does not violate public policy.
An ambiguous clause in Minnesota is one that is “susceptible to more than one reasonable construction.” The trial court held the release was valid because the release was unambiguous and barred only ordinary negligence.
The plaintiff argued the release was ambiguous because they argued the language on the back of the season pass created questions concerning the release. The plaintiff argued the season pass warning was part of the release and therefore, created issues of how the language of the release could be interpreted.
An ambiguity exists only in the language of the document.
Because a contract ambiguity exists only if it is “found in the language of the document itself,” we consider whether the season-pass card is a part of the season-pass agreement between Lee and Wild Mountain.
The court found the season pass was not a contract or part of the release. The language on the season pass emphasized the inherent risk of skiing. The language on the season pass was not a new offer by the defendant, to enter a new or modified contract with the plaintiffs.
As the district court correctly concluded, the season-pass card, itself is not a contract. Although the season-pass card contains language emphasizing the inherent risk of skiing, it does not contain an offer by Wild Mountain to be legally bound to any terms.
Even if the language on the season pass was part of the release contract, it still did not create an ambiguity.
Accordingly, the season-pass agreement’s specific language excluding greater-than-ordinary negligence from the scope of the exculpatory clause supersedes the season-pass card’s general language on the inherent risks of skiing. The district court correctly determined that the exculpatory clause is limited to a release of liability arising out of negligence only and granted summary judgment in favor of Wild Mountain.
Because the release was valid, and the plaintiff’s failed to establish the factual issues supporting a greater than the ordinary negligence claim the appellate court upheld the release and the trial court’s dismissal of the case.
So Now What?
When the plaintiff is paralyzed there is going to be a lawsuit. Either a subrogation claim by a health insurance company or a simple negligence claim will be filed because the possible recovery is so large. The amount of money involved is just too much not to try a lawsuit.
Here innovative thinking looked at the release and the language on the back of the plastic season pass card and found a new way to argue the release should be void.
At the same time, the obvious issue, there was no contract because the plaintiff did not purchase the pass from the defendant was missed.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Wild Mountain, Inc, Wild Mountain Ski Area, Season Pass, Release, Ambiguous, Ski Area, Mogul,
Colorado Parks and Wildlife is Hiring Interns
Posted: July 23, 2016 Filed under: Colorado | Tags: Colorado Parks and Wildlife, Intern, Internship, River Watch, Water quality Leave a comment
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Pacific Cycle Recalls Swivel Wheel Jogging Strollers Due to Crash and Fall Hazards
Posted: July 22, 2016 Filed under: Uncategorized | Tags: Consumer Product Safety Council, CPSC, Inc., Instep, Jogging Strollers, Pacific Cycle, Recall, Schwinn, Swivel Wheel Leave a commenthttp://www.cpsc.gov/en/Recalls/2016/Pacific-Cycle-Recalls-Swivel-Wheel-Jogging-Strollers/
Recall Summary
Name of Product: Instep and Schwinn swivel wheel jogging strollers
Hazard: The front wheel can become loose and detach, posing crash and fall hazards.
Remedy: Repair
Consumers should immediately stop using the recalled jogging strollers and contact Pacific Cycle to obtain a repair kit to secure the front wheel. The repair kit includes a replacement mechanism for securing the front wheel that uses a traditional screw on/off method of attachment instead of the quick release lever method of attachment shipped with the product, as well as new warning labels. Consumers should not return the jogging strollers to retailers where purchased. A repair video is available at www.pacific-cycle.com/safety-notices-recalls/.
Consumer Contact: Pacific Cycle toll-free at 877-564-2261 from 8 a.m. to 5 p.m. CT Monday through Friday, online at www.pacific-cycle.com, www.instep.net or www.schwinnbikes.com and click on “Safety Notices & Recalls” or email customerservice@pacific-cycle.com for more information.
Recall Details
Photos Available At http://www.cpsc.gov/en/Recalls/2016/Pacific-Cycle-Recalls-Swivel-Wheel-Jogging-Strollers/
Units: About 217,600
Description: This recall involves single and double occupant swivel wheel jogging strollers that have a quick release mechanism for removing and re-attaching the front wheel. Instep Safari, Instep Grand Safari, Instep Flight, Schwinn Turismo and Schwinn Discover Single and Double Occupant Swivel jogging strollers with the following model numbers are affected. These models come in a variety of colors. The model number is located on the inside of the metal frame above the rear right wheel.
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Instep Safari — Single |
Instep Grand Safari — Single |
Instep Safari — Double |
Instep Grand Safari — Double |
Instep Flight — Single |
Instep Flight — Double |
Schwinn Turismo — Single |
Schwinn Turismo — Double |
Schwinn Discover — Single |
Schwinn Discover — Double |
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11-AR178 |
11-AR182 |
11-AR220B |
11-AR282 |
11-AR101AZ |
11-AR201AZ |
13-SC113 |
13-SC213 |
13-SC105AZ |
13-SC205AZ |
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11-AR179 |
11-AR183 |
11-AR224 |
11-AR283 |
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11-AR301AZ |
13-SC114 |
13-SC214 |
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11-AR180 |
11-AR184 |
11-AR278 |
11-AR284 |
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13-SC116 |
13-SC216 |
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11-AR181 |
11-AR-192 |
11-AR279 |
11-AR292 |
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13-SC117 |
13-SC217 |
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11-AR240B |
11-AR193 |
11-AR280 |
11-AR293 |
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11-AR245 |
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11-AR281 |
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11-AR250 |
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11-AR290 |
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11-AR255 |
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11-AR291 |
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11-AR700A |
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11-AR340B |
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111-AR750 |
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11-AR345 |
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11-AR178DS |
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11-AR350 |
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11-AR179DS |
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11-AR355 |
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11-AR120B |
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11-AR190 |
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11-AR191 |
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Incidents/Injuries: The firm has received 132 reports of the front wheel becoming loose or unstable, resulting in 215 injuries, including head injuries, sprains, lacerations, bumps, bruises, and abrasions.
Sold at: Small retailers nationwide and online at Amazon.com, Target.com, Toys-R-Us.com, Walmart.com and other online retailers from January 2010 through June 2016 for between $130 and $350.
Importer: Pacific Cycle Inc., of Madison, Wis.
Manufacturer: Lerado (Zhongshan) Industrial Co. Ltd., of China
Manufactured in: China
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council, Pacific cycle, Inc., Instep, Schwinn, Swivel Wheel, Jogging Strollers,
Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal.
Posted: July 18, 2016 Filed under: Delaware, Health Club, Release (pre-injury contract not to sue) | Tags: Delaware, Health club, Planet Fitness, Public Policy, Release, Unequivocal Leave a commentThe decision is very short and very clear. Write a clear and direct release and it will be upheld in Delaware.
Ketler v. PFPA, LLC, 2016 Del. LEXIS 19
State: Delaware, Supreme Court of Delaware
Plaintiff: Deshaun Ketler and Brittany Ketler
Defendant: PFPA, LLC, a Delaware Corporation, d/b/a Planet Fitness
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: For the defendant
Year: 2016
This is a Delaware Supreme Court decision on release law in Delaware from a lawsuit against a health club.
The plaintiff sued the defendant Planet Fitness because she was injured at the health club, a cable broke on a seated rowing machine she was using.
The trial court granted the defendant’s motion for judgment on the pleadings finding the release stopped the claims of the plaintiff. The plaintiff appealed.
Analysis: making sense of the law based on these facts.
The Delaware Supreme Court did not waste a single sentence in this very short very instructive decision.
Releases are valid in Delaware. They must be clear and unequivocal if a release is to be valid.
This Court has previously recognized that a release of prospective negligence may be valid. Such a release must be “‘clear and unequivocal’ to insulate a party from liability
The court looked to the language of the release, and without comment stated the language was clear and unequivocal. The court then looked at the other issues that may void a release.
The release may not be unconscionable.
Unconscionability is a concept that is used sparingly. Traditionally, an unconscionable contract is one which “no man in his senses and not under delusion would make on the one hand, and as no honest or fair man would accept, on the other.”
Unconscionable in Delaware means more than a just a disparity between the party’s ability to bargain. There must be no real choice for the party being offered the release or agreement.
But mere disparity between the bargaining powers of parties to a contract will not support a finding of unconscionability.” “[T]here must be an absence of meaningful choice and contract terms unreasonably favorable to one of the parties.” There is no deprivation of meaningful choice if a party can walk away from the contract. Here, DeShaun was free to accept the Planet Fitness membership or not. The Superior Court did not err in concluding that the release is not unconscionable.
Because the plaintiff was not being forced to sign the contract and a health club contract was not a necessity, the plaintiff could have walked away from the release. Thus the release was not unconscionable.
The next issue was whether the release violated public policy. In Delaware to violate public policy, there must be a statute specifically saying that a release for this activity violates public policy.
The public policy of this state is typically determined by the Delaware General Assembly. No Delaware statute has been identified which bears on the validity of a release of prospective negligence.
The statute must not only look at the issues identified in the release, but must specifically say a release is void for these issues.
However, a general release by its nature releases a party from a potential liability otherwise imposed by law. The public policy involved must be one which disapproves of the release.
The judgement of the lower court was affirmed.
So Now What?
There is very little instructional language in this decision. However, what information is provided is very clear and very easy to understand. Releases in Delaware if they are clear and unequivocal will be upheld in the state.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Delaware, Health Club, Planet Fitness, Release, Public Policy, Unequivocal,
Kwik Tek Recalls Sleds Due to Crash Hazard
Posted: July 15, 2016 Filed under: Uncategorized | Tags: Consumer Product Safety Council, CPSC, Kwik Tek Sled, Recall Leave a commentRecall Summary
http://www.cpsc.gov/en/Recalls/2016/Kwik-Tek-Recalls-Sleds/
Name of Product: Sleds
Hazard: The front handle bar assembly can break, posing a crash hazard.
Remedy: Replace
Consumers should immediately stop using the recalled sleds and contact Kwik Tek for a free replacement front end.
Consumer Contact: Kwik Tek at 800-624-1297 from 9 a.m. to 5 p.m. MT Monday through Friday or online at yukoncharlies.com and click on “Warranty” in the upper right-hand corner for more information.
Recall Details
Photo’s Available At http://www.cpsc.gov/en/Recalls/2016/Kwik-Tek-Recalls-Sleds/
Units: About 4,200
Description: This recall involves the Hammerhead sleds, which were sold in blue, green, orange and yellow. The front handle bars have a steering system with polycarbonate skis. The rear HDPE skis are attached to the main aluminum frame. The units measure 23 inches wide by 9 inches high by 51 inches deep and weigh about 10 pounds. “Hammerhead Pro” is written on the top of the sled.
Incidents/Injuries: None reported
Sold at: LL Bean, Yukon Charlie’s nationwide and online at Amazon.com, EMS.com, LLBean.com, SharperImage.com and YukonCharlies.com from June 2014 to June 2016 for about $180.
Importer: Kwik Tek Inc., of Denver, Colo. (subsidiary of Yukon Charlie’s, of Pocasset, Mass.)
Manufactured in: China
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
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Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council, Kwik Tek Sled,
New York Summer Camp cases are examples of helicopter parenting; I gave you a perfect child, and no injuries shall occur to my child in your care, if one occurs, I will sue.
Posted: July 11, 2016 Filed under: Assumption of the Risk, Camping, Minors, Youth, Children, New York, Youth Camps | Tags: Adequate Supervision, Boy Scouts of America, BSA, Headlamp, negligent supervision, Shower House, Supervision, Youth, YPP, YPT 1 CommentA minor at a Scout camp runs out of a shower house and falls down. The parents sue for his injuries claiming he was not supervised. At the same time, the BSA Youth Protection Training prevented adults in showers with youth. The court in this case realized the absurdity of the plaintiff’s claims and held for the defendants.
State: New York, Supreme Court of New York, New York County
Plaintiff: Davide E. Gomes
Defendant: Northern New Jersey Council, Inc., Boy Scouts of America (Council) and Boy Scout Troop 141 (troop)
Plaintiff Claims: negligent supervision
Defendant Defenses: assumption of the risk, no duty
Holding: for the defendants
Year: 2016
The thirteen-year-old plaintiff was a Boy Scout. He and his troop from New Jersey were at a Scout Camp in the Adirondacks of New York for a canoe trip. While at the camp, the youth walked a few minutes to a bath house. While in the bath house, the plaintiff was fooling around and ran out of the bath house and fell suffering a head injury.
According to plaintiff, the main purpose of the trip to Floodwood was to take a 15-mile canoe trip. On the day of the accident, the scouts and the Troop leaders spent time outside in their campsite within the camp, where “there was a little bit of horsing around,” “a little bit of pushing, playing around,” and all of the scouts were pushing and shoving each other during and after a game of touch football, which the leaders told them to stop. As he walked to the shower house the night of his accident, plaintiff wore a functioning headlamp; the area around the shower house was dark. He does not recall what happened from the time the group walked to the shower house to when he regained consciousness on the ground, bleeding from his head.
The plaintiff does not remember the incidence.
Other Scouts at the shower house reported the incident this way.
It is undisputed that other scouts reported that while they were in the shower house, plaintiff took a water pump from the wall and squirted water on them. When one of the scouts told him to stop, plaintiff ran out of the shower house and fell to the ground. None of the scouts knew what had caused the fall.
The plaintiff had been in Scouting since he was 9. He participated in monthly camp outs with his scout troop.
The plaintiffs brought claims against the troop, the New Jersey Boy Scout council where the troop was chartered and who owned the camp and the Boy Scouts of America and the individual unit leaders.
The claims where the youth were not properly supervised, and the area around the shower house were full of roots, sticks, rocks, etc.
One issue that runs throughout the decision which is not explained is the BSA Youth Protection Program. The program requires youth to always do things in groups or at least two and prohibit adults from actively being in a position where they can observe the youth in the shower. Even if an adult was with the youth, there would have to be two adults.
This program was put in place to protect both the youth and the adults in the Scouting program.
Another issue in this case is the camp was located in New York. The New York State Department of Health (DOH) had massive and strict rules for children’s camps and substantial ability to issue sanctions for violations of those rules. Some of those rules violate or make conforming to the BSA Youth Protection Program difficult.
Analysis: making sense of the law based on these facts.
The court first looked at the New York State Department of Health (DOH) rules concerning this case.
As pertinent here, the regulations require adequate supervision, and that “as a minimum . . . there shall exist visual or verbal communications capabilities between camper and counselor during activities and a method of accounting for the camper’s whereabouts at all times.”
The council had a written plan to confirm to the DOH rules.
Council’s written plan for Floodwood requires that supervision of campers “be maintained for the duration (24/7) of their stay at the camp.” Council’s Leaders Guide for Floodwood provides that “running and horseplay have no place at Scout Camps,” and all scout units must have two adult leaders with the unit at all times.
DOH did find issues with the camp’s plan. The Camp and DOH reached a settlement on those issues. However, by law the information and the settlement cannot be entered into evidence in court.
DOH investigated the incident, after which it and Council entered into a stipulation providing that DOH had alleged that Council had violated various camp regulations, including those relating to the supervision of scouts, and that the parties were thereby settling the matter by Council agreeing not to contest it, paying a fine, and submitting a revised camp safety plan. Additionally, by its terms, the stipulation is
not intended for use in any other forum, tribunal or court, including any civil or criminal proceeding in which the issues or burden of proof may differ, and is made without prejudice to [Council’s] rights, defenses and/or claims in any other matter, proceeding, action, hearing or litigation not involving [DOH] [and] is not intended to be dispositive of any allegations of negligence that may be made in a civil action for monetary damages.
The DOH requires that after any incident, a form be completed. In this case, the form was completed by a camp staffer who had no training in completing the form and had never completed a form before. DOH requires that after any incident a form be completed. In this case the form was completed by a camp staffer who had no training in completing the form and had never completed a form before.
Richard Saunders testified at an EBT that at the time of plaintiff’s accident, he was 18 years old and employed at Floodwood as a camp health officer. He described Floodwood as a “high-adventure base” for scouts older than 13 to do back-country exploring. After the accident, he completed a form as required by the DOH, on which he noted, under the category “Supervision During Incident,” that the “activity was inadequately addressed in the written plan,” by which he intended to convey that he had reviewed the scout’s written plan for the trip and saw nothing therein related to super-vision of the scouts while in the shower house. He also wrote that no camp staff was present when the accident occurred. Although Saunders had first written that the supervision was “adequate,” he changed it to “inadequate” based on the absence of an adult when plaintiff was injured. Saunders had never before filled out such a form, nor was it part of his job.
The plaintiff argued that because he was unable to remember the accident, a relaxed standard of care applied to the plaintiff’s case.
Plaintiff argues that his inability to remember the accident permits a relaxed standard of proof on summary judgment, and contends that there are two possible explanations for his accident: (1) that he was struck over the head with a blunt object by a fellow scout, or (2) that he tripped and fell while running over the uneven and non-illuminated area around the shower house, and that in either scenario, the accident would not have happened if defendants had adequately supervised that night.
The court found issues with this.
A plaintiff who, due to a failure of memory, cannot describe what led to his injury is not held to as high a degree of proof on his or her cause of action.
However, even when a plaintiff suffers from amnesia, he is not relieved of the obligation to provide “some proof from which negligence can be reasonably inferred.”
The court then looked at the duty owed by the defendants.
A “summer camp is duty-bound to supervise its campers as would a parent of ordinary prudence in comparable circumstances” And, while the degree of supervision required depends on the surrounding circumstances, “constant supervision in a camp setting is neither feasible nor desirable.”
The New York requirement for supervision allowed for reality in not requiring constant supervision. The court then looked at the applicable standard of care.
The standard for determining whether a duty to supervise a minor has been breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision.”
Moreover, this standard requires prior knowledge on the part of the camp of dangerous conduct.
Moreover, “in determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow [campers], it must be established that [camp] authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury, that is, that the third-party acts could reasonably have been anticipated.”
Lack of supervision alone is not enough to create a cause of action. The court found the supervision was adequate. The scouts walked to the shower house as a group without incident. Until the plaintiff started horsing around, there were no supervision issues.
The court then looked at why kids go to camps and how parents should deal with those issues.
Moreover, a parent who permits his or her child to attend an overnight camping trip in the woods where the child will be taught skills related to understanding and surviving outdoor conditions, is presumably aware of the hazards and risks of injury associated with such conditions, and it would be illogical for that same parent to require or believe it necessary for the child to be escorted personally to and from every area within the camp. Such a degree of supervision “in a camp setting is neither feasible nor desirable” and camps “cannot reasonably be expected to continuously supervise and control all of [the campers] movements and activities”
Quoting another case the court stated:
The Court observed that ” [r]emembering that this is a Summer camp, it will be seen that constant supervision is not feasible . . . Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy.”
The DOH report was also dismissed by the court because the person who had completed the report:
…because he had no authority to bind defendants to his conclusion, but also based on the circumstances that he was an 18-year old who had never before filled out or even seen a DOH report, and who had received no training or guidance as to how it should be filled out or the meanings of the terms therein.
The court reasoned. The DOH report also had failures because it stated there lacked supervision just because an adult was not present. Supervision is not only based on an adult’s presence.
Reliance on the DOH requirement of “visual or verbal communication” between campers and counselors and Council’s plan for Floodwood which required the supervision of campers “24/7” is misplaced as neither requires that the Troop leaders be constantly present with the scouts
At the same time, the supervision issue was irrelevant if the accident was not foreseeable. There was no evidence presented that the scouts would engage in dangerous conduct or misbehave. Even if some of the misbehavior was foreseeable, there was no evidence that, and it was not foreseeable that the plaintiff would bolt from the shower house, trip and fall and receive an injury.
As it is undisputed that defendants had no notice of the possibility of misbehavior among the scouts, they have established that plaintiff’s accident was not foreseeable.
Even if the Troop leaders had escorted the scouts to the shower house and stood outside while they showered, the alleged misbehavior occurred inside the shower house, and thus the leaders would neither have observed it nor been in a position to stop it. And unless the leaders blocked the entrance, they would not have been able to stop plaintiff from running out of the shower house and falling down.
On top of all of that, even if leaders were present the accident happened too quickly for anyone to have stopped it. Besides, the acts leading to the injury were solely done by the plaintiff, without interference or prodding from anyone other youth or leader. “Moreover, it was plaintiff’s own impulsive and reckless conduct in squirting the other scouts with the water pump and then running out of the shower house, that led to his injury.”
Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.
The final issue tackled by the courts was the lighting and conditions of the area where the shower house was located. Because the plaintiff could not identify what caused him to fall, it could not be said the fall was caused by inadequate lighting.
Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.
On top of that, the plaintiff was wearing a headlamp at the time of the accident so even if lighting were to blame the plaintiff had brought his own. Identifying the area around the shower house without being able to identify which of those conditions caused his injury is not enough to argue a legal claim.
Plaintiff was able, however, to recall the conditions outside of the shower house, which consisted of typical conditions in any wooded or camp area, i.e., rocks, dirt, branches, etc., and having been on several camp trips, was presumably aware of the existence and risks of such conditions. He did not identify or recall any unusual, unexpected, or dangerous conditions, nor have any such conditions been alleged.
The decision of the trial court was upheld, and the plaintiff’s claims were dismissed.
So Now What?
First, more information needs to be given to parents to try to educate them of the risks of any youth activity. On top of this, programs designed to protect kids need to be explained both to why they are used and what the adults can and cannot do, like the BSA YPT program.
On top of that, you need to develop proof that your parents knew the risks of the activity. New York does not allow a parent to sign away a minor’s right to sue. (See States that allow a parent to sign away a minor’s right to sue.) As such the only real defense you would have would be assumption of the risk. (See Assumption of the Risk and Assumption of Risk — Checklist)
I would include in that assumption of the risk form statements about the kid’s age and prior camping/outdoor experience as in this case. Ask the parents to relate or checkbox their outdoor experience.
You can use the form to determine who else can help your unit or program, and you can use the form to prove the parents knew and assumed the risk.
![clip_image002[4]](https://recreation-law.com/wp-content/uploads/2016/07/clip_image0024_thumb.jpg?w=244&h=348 "clip_image002[4]")
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, BSA, Boy Scouts of America, Youth, YPT, YPP, Headlamp, Shower House, Supervision, Adequate Supervision, Negligent Supervision,
Black Diamond Recalls Via Ferrata Climbing Equipment Due to Fall Hazard
Posted: July 8, 2016 Filed under: Uncategorized | Tags: Black Diamond, Consumer Product Safety Council, CPSC, Recall, Via Ferrata Leave a commentHazard: Climbing sets sold without the orange safety stitching on the lanyards can allow the ends to unexpectedly detach, posing a risk of injury or death to climbers from a fall.
http://www.cpsc.gov/en/Recalls/2016/Black-Diamond-Recalls-Via-Ferrata-Climbing-Equipment/
Recall Summary
Name of Product: Black Diamond via ferrata climbing sets
Remedy: Replace
Consumers should immediately stop using the recalled via ferrata climbing sets, inspect the lanyards for the orange safety stitching, then contact Black Diamond for a replacement instructions. Instructions for inspection are also available at https://warranty.bdel.com/ViaFerrataRecall/Landing. Only those sets that lack the safety stitching need to be returned for replacement.
Consumer Contact: Black Diamond at 800-775-5552 from 8 a.m. to 5 p.m. MT Monday through Friday, or online at http://blackdiamondequipment.com and click on “Safety Notices” for more information. Consumers can also email the firm at recall@bdel.com.
Recall Details
Photos Available At http://www.cpsc.gov/en/Recalls/2016/Black-Diamond-Recalls-Via-Ferrata-Climbing-Equipment/
Units: About 100
Description: This recall involves Black Diamond Easy Rider and Iron Cruiser via ferrata climbing sets with manufacturing codes between 5293 and 5350. The manufacturing code is located on a sewn-in fabric label located inside the zippered cover. “Easy Rider” or “Iron Cruiser” and “Black Diamond” are printed on the black nylon cover.
Incidents/Injuries: None reported
Sold at: Camp Saver, Gear Saver Inc., The Gear Coop and other specialty outdoor stores nationwide and online at BlackDiamond.com for between $90 and $110.
Importer/Distributor: Black Diamond Equipment Ltd., of Salt Lake City, Utah
Manufactured in: U.S.A.
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council, Black Diamond, Via Ferrata,
VeloSwap is Growing and Expanding
Posted: July 7, 2016 Filed under: Cycling | Tags: Consumer Bike Expo, National Western Complex, Subaru VeloSwap, Velo, Veloswap Leave a comment
|
Summer 2016 Commercial Fatalities
Posted: July 6, 2016 Filed under: Uncategorized | Tags: Cat Skiing, fatality, Sea Kayaking, Whitewater Rafting Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of June 30, 2016. Thanks.
Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.
Red is a probable death due to medical issues unrelated to the activity
Blue is an employee fatality
Dark blue is a death of an employee while working
|
Date |
Activity |
State |
Location |
What |
Age |
Sex |
Location 2 |
Reference |
Ref 2 |
Company |
|
3/22 |
Cat Skiing |
OR |
Mt. Bailey |
Avalanche hit tree |
|
M |
|
|
||
|
5/4 |
Whitewater Rafting |
WA |
Wenatchee River |
Raft Flipped |
53 |
M |
Dryden |
|
Orion River |
|
|
|
Whitewater Rafting |
ME |
Dead River |
Fell out |
52 |
M |
|
North Country Rivers |
||
|
5/22 |
Whitewater Rafting |
CO |
Arkansas River |
Fell out |
61 |
F |
Parkdale |
Echo Canyon River Expeditions |
||
|
6/4 |
Whitewater Rafting |
AK |
Lowe River |
Fell out |
48 |
F |
|
|
|
|
|
6/15 |
Whitewater Rafting |
CO |
Roaring Fork |
Flip |
50 |
M |
Slaughterhouse section |
Aspen Whitewater Rafting |
||
|
6/15 |
Whitewater Rafting |
AK |
Kongakut River |
Flip |
69 |
F |
|
Alaska Alpine Adventures |
||
|
6/15 |
Whitewater Rafting |
AK |
Kongakut River |
Flip |
67 |
F |
|
Alaska Alpine Adventures |
||
|
6/22 |
Sea Kayaking |
ME |
Downeast Maine |
High Seas |
63 |
M |
Corea Harbor |
|
SeaScape Kayaks |
|
|
6/22 |
Sea Kayaking |
ME |
Downeast Maine |
High Seas |
|
M |
Corea Harbor |
|
SeaScape Kayaks |
|
|
6/24/16 |
Whitewater Rafting |
CO |
Green River |
|
63 |
F |
Disaster Falls |
Adrift Adventures |
||
|
7/2/16 |
Whitewater Rafting |
CO |
Arkansas River |
Fell out |
51 |
F |
Zoom Flume |
River Runners |
If you would like a PDF of this chart please click here.
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2016 Recreation Law (720) Edit Law
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
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New Book, Spitting in the Soup, Explores the History of Sports Doping and Shines Light on Doping in Olympic Sports
Posted: July 5, 2016 Filed under: Uncategorized | Tags: Cycling, Doping, Sports Leave a commentNew Book, Spitting in the Soup, Explores the History of Sports Doping and Shines Light on Doping in Olympic Sports
soup 600×315 pillcasemedal2
Sports journalist Mark Johnson examines how deals made behind closed doors keep drugs in sports and the changes required to kick drugs out of sports once and for all
Boulder, CO, USA — June 28, 2016 — Don’t hate the player. Hate the game. That’s one message of a new book from veteran sports journalist Mark Johnson. In Spitting in the Soup: Inside the Dirty Game of Doping in Sports, Johnson explores how the deals made behind closed doors keep drugs in sports. Johnson unwinds the doping culture from the early days, when pills meant progress, and uncovers the complex relationships that underlie elite sports culture—the essence of which is not to play fair but to push the boundaries of human performance. Read the book’s introduction, chapter summary, and five chapters at www.spittinginthesoup.com. Excerpts and media review copies are available.
Doping is as old as organized sports. From baseball to horse racing, cycling to track and field, drugs have been used to enhance performance for 150 years. For much of that time, doping to do better was expected and considered the mark of a committed professional. It was doping to throw a game that stirred outrage.
Today, though, athletes are vilified for using performance-enhancing drugs. Damned as moral deviants who shred the fair-play fabric, dopers are an affront to the athletes who don’t take shortcuts. But this tidy view swindles sports fans. While we may want the world sorted into villains and victims, putting the blame on athletes alone ignores decades of history in which teams, coaches, governments, the media, scientists, sponsors, sports federations, and even spectators have played a role. The truth about doping in sports is messy and shocking because it holds a mirror to our own reluctance to spit in the soup—that is, to tell the truth about the spectacle we crave and shatter the chivalric ideal of the purity of sports and athletes.
It’s commonly believed that drugs in sports have always been frowned upon, but that’s not true. Drugs in sports are old. It’s banning drugs in sports that is new. Spitting in the Soup offers a bitingly honest, clear-eyed look at why that’s so, and what it will take to kick pills out of the locker room once and for all.
Spitting in the Soup includes chapters covering the origins of doping, Pierre de Coubertin and the myth of fair play, amateurism and the
Spitting in the Soup by Mark Johnson
commercialization of the Olympic Games, the day that drugs became dangerous, the criminalization of performance-enhancing drugs, the accidental birth of the World Anti-Doping Agency, Cold War pressures and the Eastern Bloc sports performance machine, anabolic steroids and American weightlifters, the Amateur Sports Act, blood doping for the 1984 Los Angeles Olympics, Dr. Ferrari and the EPO generation, the U.S. War on Drugs, amphetamines and the dietary supplement industry, DSHEA and baseball’s salvation, genetically modified athletes, and the American prescription drug culture.
Spitting in the Soup: Inside the Dirty Game of Doping in Sports
Mark Johnson
Hardcover with dust jacket.
6 3/8″ x 9 1/4″, 416 pp., $24.95, 9781937715274
Mark Johnson is a sportswriter and sports photographer. He has covered cycling and endurance sports as a writer and photographer since the 1980s. His work often focuses on the business of pro cycling—a topic that frequently intersects with the sport’s long history of doping. Along with U.S. publications like VeloNews and Road, his work is published in Cycling Weekly in the UK, Velo in France, Ride Cycling Review and CyclingNews in Australia as well as general-interest publications including the Wall Street Journal. VeloPress published Johnson’s first book, Argyle Armada: Behind the Scenes of the Pro Cycling Life, in which Johnson was embedded for a year with the Garmin-Cervélo professional cycling team. A category II road cyclist, Mark has also bicycled across the United States twice and completed an Ironman triathlon. A graduate of the University of California, San Diego, the author also has an MA and PhD in English Literature from Boston University. His other passion is surfing, which he does frequently from the home he shares with his wife and two sons in Del Mar, California. Learn more at www.ironstring.com.
To request media review copies, excerpts, and interviews, please contact Dave Trendler at VeloPress via e-mail at dtrendler.
Like VeloPress on Facebook: www.facebook.com/OfficialVeloPress | Tweet at VeloPress: www.twitter.com/velopress
Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.
Posted: July 3, 2016 Filed under: Florida, Release (pre-injury contract not to sue) | Tags: Contract, Go Kart, Negligence, Release Leave a commentRelease probably not written by an attorney and never had specific language that stated that the plaintiff’s claims for negligence would be barred by signing the agreement.
Gillette v. All Pro Sports, LLC., 2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573
State: Florida, Court of Appeal of Florida, Fifth District
Plaintiff: Carol Ann Gillette
Defendant: All Pro Sports, LLC., D/B/A Family Fun Town
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: for the Plaintiff
Year: 2013
This is a very short decision by the Florida appellate court about a release used in a Go Kart case.
The plaintiff crashed into the barrier suffering injuries. She claimed, “Appellee’s employee negligently increased the Go-Kart speed during a race, causing her to lose control of the Go-Kart and crash into the railing.”
Prior to riding the Go-Karts the plaintiff signed a release. The trial court dismissed the plaintiff’s claims because of the release. The plaintiff appealed, and the appellate court reversed finding the release did not meet the necessary requirements under Florida’s law.
Analysis: making sense of the law based on these facts.
The court put the entire release in its opinion and said under Florida, as in all other states, a contract is construed against the person who wrote it, or a release is construed against the person the release is supposed to protect. “Clauses that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability.”
That means that the author bears the burden and the loss if the contract is written poorly. That applies to all contracts and releases. What that means, unless the parties agree in advance in the document, any mistakes in the document are held against the person who wrote the document.
Under Florida’s law, a release, a release must clearly state that the person signing it is giving up their legal right to sue. “To be effective, the wording of such clauses must be so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away.”
There was no language in the alleged release that specifically states the plaintiff is giving up their legal rights.
Here, the release does not expressly state that it includes Appellee’s negligence and, when the document is considered in its totality, it is not clear that negligence of the sort here was intended to be within the scope of the release.
There is language pointing out to the plaintiff that she cannot sue if she is injured due to the negligence of the defendant.
So Now What?
This was a simple case. The release was not a release. It did not have the necessary language to provide notice to people signing it that they were giving up their legal right to sue.
At the trial court, the defendant might still be able to win by using the failed release as an assumption of risk document. The assumption of risk document will be effective if the injury the plaintiff complains of is identified in the assumption of risk document as a risk the plaintiff agreed to assume.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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2016 Climbing for Kids with Bigger Mountains to Climb
Posted: July 2, 2016 Filed under: Youth Camps, Zip Line | Tags: x, y, z Leave a comment2016 Climbing for Kids
What: Each year we climb 14,000 feet to the summit of Mt. Bierstadt to honor children with much bigger mountains to climb
When: August 12th, 2016
Where: Mt. Beirstadt
Beneficiaries:Children’s Hospital Colorado Learning Services and Pediatric Mental Health Institute
Registration:
Team Children’s
Black Diamond Recalls Camming Climbing Devices Due to Fall Hazard
Posted: July 1, 2016 Filed under: Uncategorized | Tags: Black Diamond, Black Diamond Camalot, Camalot, Consumer Product Safety Council, CPSC, Recall Leave a commentName of Product: Black Diamond Camalot climbing devices
http://www.cpsc.gov/en/Recalls/2016/Black-Diamond-Recalls-Camming-Climbing-Devices/
Recall Summary
Hazard: The camming devices can come apart during use and fail, posing a fall hazard to the consumer.
Remedy: Replace
Consumers should immediately stop using the recalled camming devices and contact Black Diamond for inspection and replacement instructions. Instructions for inspection are also available at https://warranty.bdel.com/CamalotRecall/Landing. Only those camming devices that have unformed axle ends are included in the recall.
Consumer Contact: Black Diamond at 877-775-5552 from 8 a.m. to 5 p.m. MT Monday through Friday or online at http://blackdiamondequipment.com and click on “Safety Notices” for more information. Consumers can also email the firm at recall@bdell.com.
Recall Details
Photos Available At http://www.cpsc.gov/en/Recalls/2016/Black-Diamond-Recalls-Camming-Climbing-Devices/
Units: About 45,500 (in addition, 5,700 units were sold in Canada)
Description: This recall involves all sizes of Black Diamond Camalot and Camalot Ultralight camming devices. The climbing devices are used to secure ropes while rock climbing. The Camalots were sold in sizes 0.3 to 6 and have manufacturing codes from 5133 to 6067. The Camalot Ultralights were sold in sizes 0.4 to 4 and have manufacturing codes from 5309 to 6061. Manufacturing codes are printed on the underside of the cams.
Incidents/Injuries: None reported
Sold at: Eastern Mountain Sports, Gear Express, Mountain Gear, REI and other specialty outdoor recreation stores nationwide and online at BackCountry.com and BlackDiamond.com for between $65 and $130.
Importer/Distributor: Black Diamond Equipment Ltd., of Salt Lake City, Utah
Manufactured in: U.S.
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Summer 2016 Commercial Fatalities
Posted: June 29, 2016 Filed under: Whitewater Rafting | Tags: avalanche, Cat Skiing, fatality, Oregon Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of June 15, 2016. Thanks.
Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.
Red is a probable death due to medical issues unrelated to the activity
Blue is an employee fatality
Dark blue is a death of an employee while working
|
Date |
Activity |
State |
Location |
What |
Age |
Sex |
Location 2 |
Reference |
Ref 2 |
Company |
|
3/22 |
Cat Skiing |
OR |
Mt. Bailey |
Avalanche, hit tree |
|
M |
|
|
||
|
5/4 |
Whitewater Rafting |
WA |
Wenatchee River |
Raft Flipped |
53 |
M |
Dryden |
|
Orion River |
|
|
|
Whitewater Rafting |
ME |
Dead River |
Fell out |
52 |
M |
|
North Country Rivers |
||
|
5/22 |
Whitewater Rafting |
CO |
Arkansas River |
Fell out |
61 |
F |
Parkdale |
Echo Canyon River Expeditions |
||
|
6/4 |
Whitewater Rafting |
AK |
Lowe River |
Fell out |
48 |
F |
|
|
|
|
|
6/15 |
Whitewater Rafting |
CO |
Roaring Fork |
Flip |
50 |
M |
Slaughterhouse section |
Aspen Whitewater Rafting |
||
|
6/15 |
Whitewater Rafting |
AK |
Kongakut River |
Flip |
69 |
F |
|
Alaska Alpine Adventures |
||
|
6/15 |
Whitewater Rafting |
AK |
Kongakut River |
Flip |
67 |
F |
|
Alaska Alpine Adventures |
If you would like a PDF of this chart please click here: 2016 Summer Commercial Fatalities
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
What do you think? Leave a comment.
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Copyright 2016 Recreation Law (720) Edit Law
What do you think? Leave a comment.
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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Avalanche, Cat Skiing, Oregon, Whitewater Rafting,
Plaintiff failed to prove her injuries were due to the construction of the water park slide, and she also assumed the risk.
Posted: June 27, 2016 Filed under: Assumption of the Risk, Maryland, Swimming | Tags: assumption of the risk, knowledge and appreciation, Risk, Water Park, Water Slide Leave a commentAn injury is not enough; you must be able to relate your injury to the exact cause, and that cause must be based on a failure to do or not do a duty by the defendant.
Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572
State: Maryland, United States District Court for the District of Maryland
Plaintiff: Beth Stolting, et al.
Defendant: Jolly Roger Amusement Park, Inc. d/b/a Splash Mountain Water Park et al
Plaintiff Claims: Negligence
Defendant Defenses: Assumption of the Risk
Holding: Defendant
Year: 2001
The plaintiff and a boyfriend, who eventually became her husband, went to the defendant’s water park. She had been to water parks 15-20 times over the years, and ridden water slides hundreds of times. However, she had never visited this park.
At the entrance of the park was a sign which warned of the risks of the park.
The attractions contained within the Splash Mountain Waterpark are of a participatory nature and, as such, carry with them an inherent risk of injury. All guests agree, as a condition of admission, to use these facilities at their own risk.
The plaintiff admitted that she read the sign when she entered the park. After entering the park the plaintiff went on several water slides before going down the slide that injured her. Before riding that slide, she watched others go down the slide.
There were no warning signs posted at the slide. Nor were there instructions on how to ride the slide. As the plaintiff prepared to go down the slide, she placed herself in the positions; she had seen other riders with her knees bent about 40 degrees.
After exiting the slide, she hit the bottom of the pool. The plaintiff was assisted out of the pool by a lifeguard who suggested she go to a hospital. The plaintiff transported herself to the hospital. Eventually, she was diagnosed with several broke vertebrae, which required several months of recovery.
The plaintiff sued for her injuries.
Analysis: making sense of the law based on these facts.
Under Maryland law, to prove negligence the plaintiff must prove:
Plaintiffs must establish four elements in order to prevail on a negligence claim: 1) that a duty was owed to the Plaintiffs by the Defendants; 2) a breach of that duty owed by the Defendants; 3) a causal relationship between the breach of that duty and the harm suffered; and 4) that damages were sustained.
The plaintiff argued that the defendant had notice of the dangerous condition because two prior claims had been filed for similar injuries on the same water slide. The plaintiff then claimed that notice of those injuries created a duty on the part of the defendant to post warning signs.
The next issue was the standard of care owed by the defendant to the plaintiff. The rule in Maryland is a water park owes business invitees a duty to use ordinary care.
The general rule is that the operator of a place of amusement owes to business invitees a non-delegable duty to use ordinary care and caution to keep the premises in a reasonably safe condition.” An amusement park is not an insurer of the safety of persons using devices at the place of amusement, but only a proprietor bound to use ordinary care for the safety and protection of its patrons. Hence, the Park’s duty towards its patrons is only to provide “ordinary and diligent care” in keeping the Shotgun slide in a “reasonabl[y] safe condition.”
The plaintiff then argued the defendant breached its duty to provide ordinary and diligent care by not posting warning signs informing patrons of the danger of the slide.
The plaintiff failed on this claim because she presented no admissible evidence that the angle of the slide was too steep. The plaintiff relied upon the opinion of the other injured patrons on the same slide. “The Plaintiffs have not presented evidence sufficient to establish that the Defendants had reason to believe the slide was so dangerous as to require a special warning next to it.”
The park had the slide evaluated after the prior injuries by a licensed professional from the state. Since the plaintiff could not present any evidence of the dangerousness of the slide, the review by the professional was sufficient to defeat this claim. “There is no evidence adequate to establish that a pertinent standard of care required additional warnings.”
On top of that, the plaintiff had read the warnings at the entrance of the park which placed the plaintiff on notice of the dangerous condition, required by the duty owed to business-invitees.
The plaintiff hired an expert witness to assist in her case; however, the expert’s opinion was ruled inadmissible in a prior motion. Consequently, she could not provide any evidence to support here claim that the defendant breached its duty by not posting instructions on how to ride the slide.
Even if her expert’s opinion had been admissible, there was no evidence posted that the way the plaintiff rode the slide was the cause of her injury. There was no connection between riding the slide and riding the slide a specific way that might have caused or would not have caused her injuries.
The final issue was the depth of the pool at the bottom of the slide. Again, she could offer not expert testimony to support that claim. The engineer from the state had inspected the pool and found that its depth was adequate. “There is no evidence sufficient to prove to a reasonable fact finder that Defendants negligently pro-vided too shallow an exit pool.”
The court then found the plaintiff assumed the risk of her injuries. In Maryland, assumption of the risk is a complete bar to a negligence claim. To prove assumption of the risk the defendant must prove:
To establish an assumption of risk defense, the Defendants have the burden of demonstrating that the Plaintiffs: 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) voluntarily confronted the risk of danger.
To determine if the plaintiff knew, appreciated and voluntarily confronted the risk, the court used an objective standard.
An objective standard must be used in deciding “whether a plaintiff had knowledge and appreciation of the risk, . . . and a plaintiff . . . [cannot] say that he did not comprehend a risk which must have been obvious to him.” Overall, the question of whether the plaintiff assumed the risk is usually a question for the jury, however, when it is clear that by using an objective test, “a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.”
The defendant met this standard based on the plaintiff’s experience in riding other water slides and watching people ride this slide. “Those who participate or sit as spectators at sports and amusements may be taken to assume the known risks of being hurt by roller coasters, flying baseballs, [or] hockey pucks . . . .“
Additionally, the plaintiff’s a person of normal intelligence would have understood the risks of this slide. “In the case at Bar, Stolting’s age, education and experience on water slides clearly establishes that she was able to appreciate the risk.”
Finally, the plaintiff voluntarily confronted the risk.
After reading the disclaimer at the front of the Park, watching other patrons maneuver themselves down the slide, and relying on her prior experiences on water slides, Stolting chose to ride the Shotgun slide. Of her own free will, Stolting voluntarily made the decision to go on the ride and take her chances even though, as she was specifically warned, the rides in the Park “carry with them an inherent risk of injury.”
The court found that any reasonable jury would find the plaintiff assumed the risk.
The court concludes that any reasonable jury would have to find that Stolting assumed the risk of injury on the Shotgun slide by having knowledge of the risk, appreciating the risk, and voluntarily confronting the risk of danger. Hence, Stolting’s negligence claim, even if viable, would be barred by the assumption of risk doctrine.
In a rare issue in a decision, the court found two complete and valid defenses to the plaintiff’s claims. Normally, courts only find one reason to support or over throw a decision and stop there.
So Now What?
A lot of this win for the defendant was based on three things. The plaintiff admitted having gone to water parks and down water slides before, she admitted reading the warning sign at the entrance, and she watched other riders before going down the slide herself. That proved she has knowledge and appreciation of the risk and voluntarily assumed the risk.
The second issue was the defendant hired an expert after just a few incidents to check out its slide. Again, acting prior to the lawsuit was better and probably a lot cheaper in the long run to see if the problem was real or isolated incidents.
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Author: Outdoor Recreation Insurance, Risk Management and Law
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Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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SCOTT Recalls Bicycles Due to Fall Hazard
Posted: June 24, 2016 Filed under: Uncategorized | Tags: Consumer Product Safety Council, CPSC, Recall, Scott, Scott bicycles, SYNCROS seat posts Leave a commentHazard: The seat post can break, posing a fall hazard to the rider.
http://www.cpsc.gov/en/Recalls/2016/Scott-Recalls-Bicycles/
Name of Product: SCOTT bicycles with SYNCROS seat posts
Remedy: Replace
Consumers should immediately stop riding the recalled bicycles and return them to an authorized SCOTT dealer to have a free replacement seat post installed.
Consumer Contact: Scott USA toll-free at 888-607-8365 from 8 a.m. to 6 p.m. CT Monday through Friday, by email at recall@scott-sports.com or online at http://www.SCOTT-Sports.com and click on “Safety” at the bottom of the page, then “Recalls” for more information.
Recall Details
Photos Available At http://www.cpsc.gov/en/Recalls/2016/Scott-Recalls-Bicycles/
Units: About 1,400 (in addition, 170 bicycles were sold in Canada)
Description: This recall involves model year 2016 SCOTT men’s and women’s road bicycles with SYNCROS FL 0.1 seat posts. Bicycle models included in the recall are: Addict CX 10 disc, Addict SL, Addict Team Issue, Addict 10, Addict 15, Addict 20, Addict Gravel disc, Solace Premium disc, Solace 10 disc, Frame set Addict 10 (HMF), Frame set Addict CX 10 disc (HMX) mech / Di2 and Seatpost Syncros FL1.0 Carbon Offset 27.2mm. “SCOTT” is printed on the bicycle down tube and “SYNCROS” is printed on the seat post. The bicycles were sold in black, grey and white with yellow, orange, green or blue decals. A complete list of serial numbers included in the recall can be found at
http://www.scott-sports.com/global/en/company/safety-and-recalls. The serial number is printed on a white sticker and embossed on the underside of the bicycle frame near the pedals.
Incidents/Injuries: The firm has received 11 reports of broken seat posts outside of the U.S. No injuries have been reported.
Sold at: Authorized SCOTT dealers nationwide and online from June 2015 through March 2016 for between $3,300 and $9,700.
Importer/Distributor: SCOTT USA Inc., of Salt Lake City, Utah
Manufactured in: Taiwan
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
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Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council, SCOTT, Scott bicycles, SYNCROS seat posts,
Final: 2015-2016 In bound ski/board fatalities
Posted: June 22, 2016 Filed under: Ski Area, Skiing / Snow Boarding | Tags: Aspen, Bear Valley, Blue Mountain, Blue Mountain Ski Area, Burke Mountain, Burke Mountain Ski Area, Cascade Mountain, Cascade Mountain Ski Hill, Chair Lift, fatality, Heavenly Mountain, Jackson Hole, Mount Snow, Mt. Waterman, Park City, Park City Mtn Resort, ski area, skiing, Snoqualmie Pass, Snowbasin, snowboarding, Solider Mountain, Squaw Valley resort, Steamboat Springs Ski Resort, Tubing, Vail, Whiteface, Winter Park Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of April 21, 2016. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Red type is natural or medical conditions that occurred inbounds on the slopes
Green Type is Fatalities while sledding at the Resort
Blue Type is a Lift Accidents
Purple Tye is Employee or Ski Patroller
2015 – 2016 Ski Season Fatalities
|
# |
Date |
State |
Resort |
Where |
Trail Difficulty |
How |
Cause |
Ski/ Board |
Age |
Sex |
Home town |
Helmet |
Reference |
Ref # 2 |
|
1 |
11/29/15 |
CA |
Bear Mountain |
|
|
she collided with a metal stairway |
|
Ski |
21 |
F |
Jackson Township CA |
|
||
|
2 |
12/7/15 |
WY |
Jackson Hole |
Moran Run |
Blue |
Hit tree |
|
Board |
23 |
F |
Boston, MA |
Y |
||
|
3 |
12/15/15 |
CO |
Steamboat |
|
|
fell, landing face down in the snow |
|
Ski |
70 |
M |
Louisville CO |
|
||
|
4 |
12/19/15 |
WA |
Snoqualmie Pass |
Silver Fir |
|
tree-well |
|
Ski |
50 |
M |
North Bend, WA |
|
||
|
5 |
12/22/15 |
WY |
Jackson Hole |
Sundance run |
|
found inverted in a tree well |
|
Ski |
25 |
F |
Jackson Hole, WY |
Y |
||
|
6 |
12/23/15 |
NY |
Whiteface Lake Placid |
Summit Express |
Blue |
fell and struck his head |
blunt impact to the head |
Board |
26 |
M |
Litiz, PA |
N |
|
|
|
7 |
12/23/15 |
CA |
Bear Valley |
|
|
|
|
Ski |
71 |
M |
|
|
||
|
8 |
1/6/16 |
CO |
Vail |
|
|
|
tree well |
Board |
25 |
M |
Avon, CO |
|
||
|
9 |
1/12/16 |
UT |
Park City |
|
Intermediate |
|
|
|
60 |
M |
|
|
|
|
|
10 |
1/20 |
CO |
Keystone |
Elk Run |
|
Hit a tree |
|
|
27 |
M |
Boulder, CO |
|
||
|
11 |
1/24/16 |
VT |
Mount Snow |
Ripcord |
Double Diamond |
Hit Tree |
Blunt Force Trauma |
Board |
57 |
M |
Simsbury CT |
Yes |
||
|
12 |
1/28/16 |
CO |
Winter Park |
|
|
|
|
Skier |
24 |
M |
Kalamazoo, MI |
|
|
|
|
13 |
1/30/16 |
ID |
Solider Mountain |
|
|
Hit building |
|
Ski |
14 |
F |
Twin Falls, ID |
Yes |
||
|
14 |
2/3/16 |
PA |
Blue Mountain Ski Area |
|
|
|
blunt-force trauma |
|
35 |
M |
Tacoma, WA |
|
||
|
15 |
2/6 |
CA |
Mt. Waterman |
|
|
struck a tree |
|
|
60 |
M |
Winnetka, CA |
|
||
|
16 |
2/6 |
WI |
Cascade Mountain Ski Hill |
|
|
struck a tree |
|
|
24 |
F |
Oconto Falls, WI |
No |
||
|
17 |
2/6 |
UT |
Park City Mtn Resort |
Tombstone |
|
collapsed |
|
|
67 |
M |
UT |
|
|
|
|
18 |
2/15/16 |
VT |
Burke Mountain Ski Area |
Big Dipper Trail |
|
collided with a tree |
|
|
58 |
M |
Watertown |
No |
||
|
19 |
2/16 |
NV |
Heavenly Mountain Resort |
Crossover and Comet ski runs |
|
striking a tree |
|
|
77 |
F |
Madison, WI |
|
||
|
20 |
2/22/16 |
UT |
Snowbasin Ski |
Janis’ trail |
|
crashing into a tree, |
|
|
56 |
M |
NJ |
N |
|
|
|
21 |
2/22/16 (2/15) |
CO |
Aspen |
|
Taking Lesson |
Fell down |
Head injury |
|
68 |
M |
CO, |
|
||
|
22 |
2/22/16 |
NY |
Gore Mountain Ski Center |
|
Double Black Diamond |
struck several trees |
|
|
65 |
M |
Minerva, NY |
Y |
||
|
23 |
2/25 |
CO |
Beaver Creek |
|
Intermediate |
Hit a sign attached to a wooden post between runs |
blunt force trauma to the chest |
|
39 |
M |
Knoxville, TN |
Y |
||
|
24 |
2/26 |
MI |
Crystal Mountain |
Cheers Race Course |
Intermediate |
Lost control & slid backward |
|
|
58 |
M |
Traverse City, MI |
Y |
||
|
25 |
2/27 |
PA |
Seven Springs |
Wagner Trail |
|
Skier v. Skier Collision |
|
|
51 |
M |
Delmont |
|
||
|
26 |
2/27 |
|
Squaw Valley resort |
Headwall |
|
fell and slid down the slope through a stand of trees, suffering multiple injuries |
|
|
62 |
F |
Olympic Valley |
Y |
||
|
27 |
3/1 |
CO |
Breckenridge Ski Resort |
Sundown |
intermediate |
he collided with another skier, lost control and ran into a tree |
blunt force trauma injuries |
|
26 |
M |
Breckenridge, CO |
N |
||
|
28 |
|
|
Beaver Mountain Ski Resort |
|
|
struck a tree |
|
|
18 |
M |
Camano Island, WA |
|
||
|
|
3/6 |
WI |
Cascade Mountain Ski Hill |
|
|
running into a tree |
|
|
|
F |
Oconto Falls, WI |
N |
|
|
|
30 |
3/6 |
NV |
Mt. Rose Ski Tahoe |
Galena run |
|
reportedly fallen or collapsed |
|
|
43 |
M |
Reno, NV |
|
||
|
31 |
3/9 |
CO |
Telluride Ski Resort |
Gold Hill |
|
lost his skis and tumbled down a steep, wooded terrain |
|
|
49 |
M |
Colorado Springs, CO |
|
|
|
|
32 |
3/9 |
CO |
Copper Mountain |
American Flyer |
Intermediate |
hit a tree |
blunt force trauma injuries |
|
19 |
M |
Arlington, VA |
Y |
||
|
33 |
|
MT |
|
|
|
in some trees near a ski lift |
|
|
82 |
M |
CA |
|
|
|
|
34 |
3/19 |
CO |
Telluride |
Coonskin |
Black Diamond |
skis detached from his boots |
crashed into trees |
|
69 |
M |
Greenwood, S.C. |
|
||
|
35 |
3/20 |
UT |
Snowbird |
Chip’s Run |
|
|
hit a rock before losing control and colliding with the tree |
|
57 |
M |
|
|
||
|
36 |
3/24 |
CO |
Steamboat Ski Area |
Nastar Course |
|
Fell |
|
|
|
M |
|
|
||
|
37 |
3/27 |
NH |
Cannon Mtn |
Upper Ravine Trail |
|
sharp turn and struck a tree |
Massive head trauma |
|
29 |
M |
Holden, MA |
N |
||
|
38 |
4/2 |
UT |
Park City |
|
Advanced |
collided with a tree |
|
|
48 |
M |
Aspen, CO |
|
||
|
39 |
4/4 |
CO |
Breckenridge |
Tiger |
Expert |
Collided with another skier |
|
|
43 |
M |
Randolph, NJ |
|
||
|
40 |
4/6 |
CO |
Breckenridge |
Claimjumper |
Intermediate |
snowboarder collided with a tree |
blunt force trauma |
Board |
32 |
M |
|
Y |
||
|
41 |
4/9 |
ID |
Bald Mountain Ski Area |
Upper Greyhawk |
|
speed flying |
|
Ski |
24 |
M |
|
|
||
|
42 |
4/20 |
CO |
Breckenridge Ski Area |
Monte Cristo |
|
hitting a tree |
blunt force trauma injuries |
Ski |
20 |
F |
Denver, CO |
Y |
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.
If you cannot read the entire chart you can download it here.
What do you think? Leave a comment.
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Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Skiing, Snowboarding, Fatality, Ski Area, Tubing, Chair Lift, Jackson Hole, Steamboat Springs Ski Resort, Snoqualmie Pass, Mount Snow, Park City, Vail, Bear Valley, Whiteface, Snoqualmie Pass, Burke Mountain Ski Area, Park City Mtn Resort, Cascade Mountain Ski Hill, Mt. Waterman, Blue Mountain Ski Area, Solider Mountain, Solider Mountain, Winter Park, Aspen, Snowbasin, Heavenly Mountain, Burke Mountain, Park City, Cascade Mountain, Blue Mountain, Mt. Waterman, Squaw Valley resort,
Providing First Aid in Colorado just got screwy. New law allows voluntary registration, but also places requirements on EMT’S & First Responders.
Posted: June 21, 2016 Filed under: Colorado, First Aid, Medical | Tags: Colorado, EMT, First Responder, Registration, Voluntary Leave a commentI’m not sure of the reasoning behind this law, it really does not do anything other than track EMT’s and “First Responders.”
House Bill 16-1034 was signed into law by the governor. I’ve attached a copy of the bill if you want to read it.
I’m not sure why the bill was needed. Until things shake out, I would advise my clients not to register. The only benefit to registering is you can say you are a registered EMT or registered first responder rather than saying you are an EMT or first responder?
Download a copy of the bill here: 1034_enr
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Colorado, EMT, First Responder, Voluntary, Registration,
Sign-in sheet language at Michigan’s health club was not sufficient to create a release.
Posted: June 20, 2016 Filed under: Health Club, Michigan, Release (pre-injury contract not to sue) | Tags: Health club, Release, Release Language, Sign in Sheet, Treadmill, Wrongful Death Leave a commentIgnorant health club faces negligence and wrongful-death claim for failing to have a release that meets the requirements of Michigan’s law.
Xu v Gay, 257 Mich. App. 263; 668 N.W.2d 166; 2003 Mich. App. LEXIS 1505
State: Michigan, Court of Appeals of Michigan
Plaintiff: Junyi Xu and Haini Hou
Defendant: Hiedi Gay, d/b/a Vital Power Fitness Center
Plaintiff Claims: ordinary negligence by defendant, loss of consortium, and wrongful death and later gross negligence
Defendant Defenses: Release
Holding: For the Plaintiff
Year: 2003
This is a health club case. The deceased was visiting the defendant health club on a one-week complimentary pass. Each time he visited the club he was required to sign in. Signing in, consisted of signing a “sign in” sheet. The sign-in sheet had at the top had a paragraph titled release.
While using the treadmill the defendant fell and hit his head. The plaintiff contended the deceased stumbled and was thrown off the treadmill hitting his head on a window ledge that was 2.5 feet behind the treadmill. The defendant claims the deceased became ill and fell. No one saw the plaintiff fall or the accident.
The personal representative of the deceased sued the health club for negligence and wrongful death. The defendant filed a motion for summary disposition (motion for summary judgment) arguing the release should stop the claims. The trial court agreed and granted the defendants motion for summary disposition. At the same time, trial court allowed the plaintiff to amend their pleading, which had been filed earlier. The new pleading argued the defendant was also guilty of gross negligence.
Later, the defendant renewed their motion for summary disposition to dismiss the gross negligence and wrongful-death claims. The trial court found there was insufficient evidence to support a claim for gross negligence, and the wrongful-death claim failed because it was a derivative claim.
A derivative claim is one where the second claim is solely based upon the success of the first claim. If the first claim fails, as in this case, then the second claim, which is derivative automatically, fails.
This appeal followed.
Analysis: making sense of the law based on these facts.
The court started its analysis by defining some of the issues under Michigan’s law. At the time of the decision, Gross Negligence was being redefined by the courts. “Common-law gross negligence is not a higher degree of negligence, but rather ordinary negligence of the defendant that follows the negligence of the plaintiff.”
In this case, the definition was adapted from a statute that had a similar intent. “Gross negligence is defined in the GTLA as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” [GTLA is the Government Tort Claims Liability Act]. The court then redefined the definition to state:
Therefore, applying this definition, the question becomes whether reasonable minds could differ regarding whether defendant’s conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted to the decedent.
Looking at the facts, the court found that although the plaintiff’s expert witness stated the defendant had to be “the worst, poorly educated owner/operator of a health club” the facts pointed only to the fact the defendant was ignorant, not grossly negligent. “…mere ignorance does not constitute conduct so reckless as to demonstrate a substantial lack of concern for whether an injury resulted to Yan.”
The court then looked at the requirements for a release to be valid in Michigan. The first issue was the validity. A release is valid if it was fairly and knowingly made. The scope was the next issue, how far the release was to extend or what the release was to cover.
A release of liability is valid if it is fairly and knowingly made. The scope of a release is governed by the intent of the parties as it is expressed in the release.
The next step is whether the release was unambiguous.
A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation. If the terms of the release are unambiguous, contradictory inferences become “subjective, and irrelevant,” and the legal effect of the language is a question of law to be resolved summarily.
A release is knowingly made even if it is not labeled a “release,” or the releasor fails to read its terms, or thought the terms were different, absent fraud or intentional misrepresentation designed to induce the releasor to sign the release through a strategy of trickery. A release is not fairly made if “(1) the releasor was dazed, in shock, or under the influence of drugs, (2) the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct.”
The first issue on the list, the “releaser was dazed in shock” is a new issue I’ve not seen in contract law. Generally, when someone enters into a contract, they have to have their full faculty, although there as some exceptions if you are high or drunk. Contract then and you can still be on the hook.
Applying these issues, the court found the release language on the sign-in sheet was insufficient to stop a claim by the plaintiff.
With these cases as guidance, we simply cannot read the purported release in the instant case as releasing defendant from liability stemming from its own negligence. We find that the language in the alleged release is unambiguous, and clearly states that defendant would not assume responsibility for “any injuries and/or sicknesses incurred to [sic] me or any accompanying minor person as a result of entering the premises and/or using any of the facilities.” However, this provision does not inform the reader that he is solely responsible for injuries incurred or that he waives defendant’s liability by relinquishing his right to sue, nor does it contain the words “waiver,” “disclaim,” or similar language that would clearly indicate to the reader that by accepting its terms he is giving up the right to assert a negligence claim. While such words are not necessary to create a release, we believe that, at a minimum, a release should explicitly inform the reader regarding the effect of the release.
The release failed to inform the reader/signor that he would be responsible for his or her own injuries, a requirement under Michigan’s law. Nor did the release have language indicating the signor was giving up any legal rights or releasing the defendant from liability.
Specific wording is not required for a release to be valid in Michigan. However, the court found that the release should explicitly inform the reader of what the reader is giving up, what the effect of the release will be when signed.
Simply put, the paragraph at the top of a sign-in sheet does not have the necessary language to be a release and stop a claim for negligence. Since the negligence claim could proceed, then wrongful-death claim could proceed. The necessary superseding claim supporting the wrongful-death claim was back, supporting the wrongful-death claim.
Here, because Yan, had he survived, would have been able to maintain an ordinary-negligence claim against the defendant, on the basis of our decision above, plaintiff can maintain an action for damages on the basis of the ordinary negligence of the defendant.
So Now What?
Sign in sheets are simply that. They are a record of who came into the facility and maybe at what time. A release is a contract written to meet the specific requirements of the state the release will be used in.
That language might be found by stealing someone else’s release, searching the internet, or getting lucky. However, in this case the health club was did not get lucky. In fact, I suspect a big check was written to settle this case.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Health Club, Treadmill, Wrongful Death, Sign in Sheet, Release, Release Language,
Gillette v. All Pro Sports, LLC., 2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573
Posted: June 19, 2016 Filed under: Florida, Legal Case, Release (pre-injury contract not to sue) | Tags: Assumption of the Risk Form, Florida, Go Kart, Negligence, Release Leave a commentGillette v. All Pro Sports, LLC., 2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573
Carol Ann Gillette, Appellant, v. All Pro Sports, LLC., D/B/A Family Fun Town, Appellee.
Case No. 5D12-1527
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573
December 6, 2013, Opinion Filed
NOTICE:
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
PRIOR HISTORY: [*1]
Appeal from the Circuit Court for Volusia County, Terence R. Perkins, Judge.
COUNSEL: D. Paul McCaskill of David & Philpot, P.A., and J. Michael Matthews of J. Michael Matthews, P.A. Maitland, for Appellant.
Bruce R. Bogan of Hilyard, Bogan & Palmer, PA, Orlando, for Appellee.
JUDGES: TORPY, C.J., LAWSON and WALLIS, JJ., concur.
OPINION
PER CURIAM.
Appellant challenges a summary final judgment in favor of Appellee on her complaint for injuries she received in a Go-Kart accident at a facility operated by Appellee. Appellant contends that Appellee’s employee negligently increased the Go-Kart speed during a race, causing her to lose control of the Go-Kart and crash into the railing. The lower court held that a waiver and release form signed by Appellant precluded her negligence action. We reverse.
The sole issue on appeal is whether the waiver and release signed by Appellant effectively precludes an action based on Appellee’s purported negligence. The document provides in material part as follows:
WAIVER AND RELEASE FROM LIABILITY FOR GO CARTS AND TRACK
In consideration for being permitted to drive Go Karts at Family Fun Town, 401 S. Volusia Avenue, Orange City, Florida, I acknowledge and agree as follows:
1. I HAVE READ [*2] THE RULES FOR OPERATING THE Go Karts, and accept full responsibility for obeying the rules and all other posted rules and warning signs;
2. I understand that the course of [sic] which the Go Karts operate has curves, which require a degree of skill and responsibility to navigate safely. I have the necessary skill and will exercise the responsibility necessary to operate the Go Karts and navigate the course safely;
3. The Go Karts are controlled by individual drivers, who are capable of making mistakes and intentionally causing harm to others. I could be potentially injured, disabled, or killed, whether by my own actions (or inactions) or the actions or inactions of another driver. I freely and knowingly assume this risk. I take full responsibility for any claims or personal injury, death, or damage to personal property arising out of my use of the G [sic] Karts and/or the Go Kart track, whether to me or to other people. On behalf of myself, my heirs, my assigns and my next of kin, I waive all claims for damages, injuries and death sustained to me or property that I may have against Family Fun Town, and its members, managers, agents, employees, successors, and assigns (each a “Released [*3] Party”).
4. I have been provided the opportunity to inspect the Go Karts and the track prior to signing this Waiver AND Release, and the conditions of each is completely satisfactory to me. If they were not, I would not sign this document or operate or ride in the Go Karts and the track are [sic] completely satisfactory to me.
5. I understand that the terms of this release are contractual and not a mere recital, and that I have signed this document of my own free act.
I have read this waiver and release in its entirety. I understand that I am assuming all the risk inherent in operating and/or riding the Go Karts on the track. I understand that it is a release of all claims that I may have against any released part [sic]. I understand that this is the entire agreement between me and any released party and that it cannot be modified or changed in any way by the representation or statements by any released party or by me. I voluntarily sign my name as evidence of my acceptance of all the provisions in this waiver and release and my agreement to be bound by them.
Clauses that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly [*4] construed against the party seeking to be relieved of liability. UCF Athletics Ass’n v. Plancher, 121 So. 3d 1097, 1101 (Fla. 5th DCA 2013) (citing Cain v. Banka, 932 So. 2d 575 (Fla. 5th DCA 2006); Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998)). To be effective, the wording of such clauses must be so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001) (citing Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590, 591 (Fla. 5th DCA 1998)).
Here, the release does not expressly state that it includes Appellee’s negligence and, when the document is considered in its totality, it is not clear that negligence of the sort here was intended to be within the scope of the release.
REVERSED AND REMANDED.
TORPY, C.J., LAWSON and WALLIS, JJ., concur.
Black Diamond Recalls Climbing Ascenders Due to Fall Hazard
Posted: June 17, 2016 Filed under: Uncategorized | Tags: Black Diamond, Consumer Product Safety Council, CPSC, Index Ascender, Recall Leave a commentHazard: The Index Ascenders’ rivet holding the toothed cam can release, allowing the Ascender to slide on the rope or become detached from the rope, posing a risk of injury or death to climbers from a fall.
http://www.cpsc.gov/en/Recalls/2016/Black-Diamond-Recalls-Climbing-Ascenders/
Name of Product: Black Diamond Index Ascenders for climbing
Recall Summary
Remedy: Replace: Consumers should immediately stop using the recalled ascenders and contact Black Diamond for instructions on inspecting and returning the product for a free replacement. Instructions for inspection are also available at https://warranty.bdel.com/IndexRecall/Landing. Only those ascenders having an unformed rivet need to be returned for replacement.
Consumer Contact: Black Diamond at 800-775-5552 from 8 a.m. to 5 p.m. MT Monday through Friday, email at recall@bdel.com or online at http://blackdiamondequipment.com and click on “SAFETY NOTICES: Recall for Inspection” for more information.
Recall Details
Photos Available At http://www.cpsc.gov/en/Recalls/2016/Black-Diamond-Recalls-Climbing-Ascenders/
Units: About 2,800 (in addition, 300 were sold in Canada)
Description: This recall involves Black Diamond brand Index Ascenders (left and right versions) used as rope clamps for rock climbing and mountaineering. The metal ascenders are orange, with a black and gray grip or silver with a black and gray grip. Index Ascenders with a manufacturing code from 4356 to 6015 are included in the recall. The manufacturing code is located on the frame of the ascenders. “Black Diamond” is imprinted on both sides of the handle.
Incidents/Injuries: None reported
Sold at: Eastern Mountain Sports, Moosejaw Mountaineering, Outdoors Inc., REI, Sport Chalet, and other specialty outdoor stores nationwide and online at Backcountry.com and BlackDiamond.com and for about $80.
Importer/Distributor: Black Diamond Equipment Ltd., of Salt Lake City, Utah
Manufactured in: U.S.
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
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Ketler v. PFPA, LLC, 2016 Del. LEXIS 19
Posted: June 17, 2016 Filed under: Delaware, Health Club, Legal Case, Release (pre-injury contract not to sue) | Tags: Delaware, Health club, Planet Fitness, Public Policy, Release, Unequivocal Leave a commentKetler v. PFPA, LLC, 2016 Del. LEXIS 19
Deshaun Ketler and Brittany Ketler, his wife, Plaintiff-Below, Appellant, v. PFPA, LLC, a Delaware Corporation, d/b/a Planet Fitness, Defendant-Below, Appellee.
No. 319, 2015
SUPREME COURT OF DELAWARE
2016 Del. LEXIS 19
December 2, 2015, Submitted
January 15, 2016, Decided
NOTICE:
THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
PRIOR HISTORY: [*1] Court Below: Superior Court of the State of Delaware. C.A. No. N14C-12-235.
Ketler v. PFPA, LLC, 2015 Del. Super. LEXIS 270 (Del. Super. Ct., June 3, 2015)
DISPOSITION: Upon appeal from the Superior Court. AFFIRMED.
COUNSEL: Edward T. Ciconte, Esquire, Adam F. Wasserman, Esquire, Ciconte, Scerba & Kerrick, LLC, Wilmington, Delaware, for Appellant.
Gary H. Kaplan, Esquire, Jessica L. Tyler, Esquire, Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware, for Appellee.
JUDGES: Before STRINE, Chief Justice; VALIHURA, and VAUGHN, Justices.
OPINION BY: VAUGHN
OPINION
VAUGHN, Justice:
Plaintiffs-Below/Appellants DeShaun Ketler and Brittany Ketler appeal from a Superior Court order granting Defendant-Below/Appellee PFPA, LLC’s (“Planet Fitness”) motion for judgment on the pleadings. DeShaun Ketler was injured while using exercise equipment in a Planet Fitness facility. The Ketlers claim that the injuries were caused by negligence on the part of Planet Fitness. The Superior Court found that the Ketlers claim was barred by a signed release of liability. It determined that a release which allows a party to avoid liability for its own negligence is permissible under Delaware Law if the release is unambiguous, not unconscionable, and not against public policy. It further determined that the release satisfied all three criteria. [*2] On appeal, the Ketlers contend that the Superior Court erred because the release is ambiguous, unconscionable, and against public policy. We approve the Superior Court’s determinations and affirm.
In 2010, DeShaun joined Planet Fitness at a cost of $10 per month.1 DeShaun signed a membership agreement, which contained the following:
I understand and expressly agree that my use of this Planet Fitness facility . . . involves the risk of injury to me or my guest whether caused by me or not. I understand that these risks can range from minor injuries to major injuries including death. In consideration of my participation in the activities and use of the facilities offered by Planet Fitness, I understand and voluntarily accept this risk and agree that Planet Fitness . . . will not be liable for any injury, including, without limitation, personal, bodily, or mental injury. . . resulting from the negligence of Planet Fitness or anyone on Planet Fitness’ behalf whether related to exercise or not. Accordingly, I do hereby forever release and discharge Planet Fitness from any and all claims, demands, injuries, damages, actions or causes of action. I further understand and acknowledge that Planet [*3] Fitness does not manufacture fitness or other equipment in its facilities, but purchases and/or leases equipment, and therefore Planet Fitness may not be held liable for defective products.2
In April 2013, DeShaun was injured when a cable broke on a seated rowing machine that he was using at Planet Fitness.
1 Devana Fitness, LLC was the franchisee of the Planet Fitness location on the date the Membership Agreement was executed. On July 31, 2012, prior to Ketler’s incident, Devana Fitness, LLC assigned its rights and interests in, and under, all Membership Agreements to PFPA, LLC.
2 Appellant’s Op. Br. App. at A8.
This Court has previously recognized that [HN1] a release of prospective negligence may be valid.3 Such a release must be “‘clear and unequivocal’ to insulate a party from liability . . . .”4 The release provision involved here expressly releases Planet Fitness from any liability for any injury resulting from the negligence of Planet Fitness, whether related to exercise or not. It expressly releases Planet Fitness from any and all claims or causes of action. The provision’s language is clear and unequivocal.
3 Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330, 336 (Del. 2012).
4 Id. (quoting State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del. 1972)).
[HN2] It must also not be unconscionable. Unconscionability is a concept that [*4] is used sparingly.5 Traditionally, an unconscionable contract is one which “no man in his senses and not under delusion would make on the one hand, and as no honest or fair man would accept, on the other.”6 “But mere disparity between the bargaining powers of parties to a contract will not support a finding of unconscionability.”7 “[T]here must be an absence of meaningful choice and contract terms unreasonably favorable to one of the parties.”8 There is no deprivation of meaningful choice if a party can walk away from the contract.9 Here, DeShaun was free to accept the Planet Fitness membership or not. The Superior Court did not err in concluding that the release is not unconscionable.
5 See Progressive Int’l Corp. v. E.I. DuPont de Nemours & Co., 2002 Del. Ch. LEXIS 91, 2002 WL 1558382, at *11 (Del. Ch. July 9, 2002) (discussing the reluctance of courts to apply the doctrine).
6 Reserves Mgmt., LLC v. Am. Acquisition Prop., LLC, 86 A.3d 1119, 2014 WL 823407, at *9 (Del. 2014) (internal quotations omitted).
7 Id.
8 Tulowitzki v. Atl. Richfield Co., 396 A.2d 956, 960 (Del. 1978).
9 See Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 913 (Del. 1989) (finding the doctrine of unconscionability inapplicable, in part, because the plaintiffs had the opportunity to cancel the insurance policy); Progressive, 2002 Del. Ch. LEXIS 91, 2002 WL 1558382, at *11 (rejecting the plaintiff’s unconscionability argument, in part, because nothing had prevented the plaintiff from walking away from a contract with allegedly unfavorable terms).
Finally, [HN3] the release must not violate public policy. The public policy of this state is typically [*5] determined by the Delaware General Assembly. No Delaware statute has been identified which bears on the validity of a release of prospective negligence. The Ketlers argue that the release violates the public policy embodied in the principle that a property owner has a duty to make his property safe for business invitees. However, a general release by its nature releases a party from a potential liability otherwise imposed by law. The public policy involved must be one which disapproves of the release.
For the foregoing reasons, the judgment of the Superior Court is AFFIRMED.
Gomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)
Posted: June 17, 2016 Filed under: Camping, Legal Case, New York | Tags: Adequate Supervision, Boy Scouts of America, BSA, Headlamp, negligent supervision, Shower House, Supervision, Youth, YPP, YPT Leave a commentGomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)
Davide E. Gomes, Plaintiff, against Boy Scouts of America, et al., Defendants.
115435/10
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)
March 10, 2016, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
PRIOR HISTORY: Gomes v. Boy Scouts of America, 2013 N.Y. Misc. LEXIS 4622 (N.Y. Sup. Ct., Oct. 9, 2013)
COUNSEL: [*1] For plaintiff: Scott W. Epstein, Esq., Antich, Erlich & Epstein, LLP, New York, NY.
For Council and Troop 141: Brian P. Morrissey, Esq., Connell Foley, LLP, New York, NY.
JUDGES: Barbara Jaffe, JSC.
OPINION BY: Barbara Jaffe
OPINION
Barbara Jaffe, J.
By notice of motion, defendants Northern New Jersey Council, Inc., Boy Scouts of America (Council) and Boy Scout Troop 141 (troop) (collectively, defendants) move pursuant to CPLR 3212 for an order granting them summary dismissal of the complaint against them. Plaintiff opposes.
I. PERTINENT BACKGROUND
By decision and order dated October 8, 2013 (NYSCEF 110), I granted defendant Boy Scouts of America’s (BSA) motion for an order summarily dismissing the complaint against it. As set forth therein, the background of the case is as follows:
On July 24, 2005, plaintiff, then a 13-year-old Boy Scout, was participating in a Boy Scout excursion at Floodwood Mountain Scout Reservation in the Adirondacks. Plaintiff was a member of Boy Scout Troop 141. He and other scouts were accompanied by volunteer [**2] adult leaders. Near or in the shower house at the Reservation, plaintiff sustained head injuries.
In accident and witness reports created after the accident, the other scouts who were at the showers [*2] at the time of plaintiff’s accident stated that they saw plaintiff run from the shower area and discovered him lying prone on the ground and bleeding. None of them saw him fall.
In his amended complaint, plaintiff alleges that as he was walking along the common area and/or grassy area at or near the showers, he fell due to defendants’ failure to keep the area safe, in good repair, well-lit and free from obstruction or defect and supervise him and the other scouts.
In plaintiff’s supplemental verified bill of particulars, he describes the dangerous condition which caused his fall as follows: “that the area in front of the showers where the [ ] accident occurred was not lit, and/or was poorly lit, and/or was inadequately lit; was raised and un-leveled, and had rocks and/or tree limbs/branches strewn about it,” all of which defendants had constructive notice.
At an examination before trial held on December 16, 2011, plaintiff testified that he did not recall his accident or what had caused his fall, and that his last memory before falling was of walking to the showers. At the time of his accident, it was dark outside and there was no lighting outside the showers, although it was lit inside, [*3] and he noticed that there were many rocks on the ground around the shower house. He was wearing a working head lamp as he approached the showers.
(NYSCEF 110).
On this motion, the following relevant facts are undisputed:
(1)Council owns and operates Floodwood and Troop made reservations to attend camp there;
(2)plaintiff had been a scout for several years and had attended previous camping trips;
(3)defendants Lopes and Figueiredo were the two adult Troop leaders in charge of plaintiff’s troop at Floodwood;
(4)the night of plaintiff’s accident, he and the other Troop members were told to put equipment into the Troop’s van and take showers at the camp’s shower house;
(5)of the five other Troop members that accompanied plaintiff to the shower house that night, one was 14 years old, one was 15 years old, and three were 16 years [**3] old;
(6)the adult leaders did not accompany them to the van or the shower house;
(7)the shower house was used by both female and males at alternating hours, and the Troop members had to wait until 10 pm to use it; and
(8)there had been no prior incidents of misbehavior during the trip or among the Troop members.
(NYSCEF 151).
The New York State Department of Health (DOH) promulgates [*4] specific rules for children’s camps. (10 NYCRR § 7-2 et al.). As pertinent here, the regulations require adequate supervision, and that “as a minimum . . . there shall exist visual or verbal communications capabilities between camper and counselor during activities and a method of accounting for the camper’s whereabouts at all times.” (10 NYCRR § 7-2.5[o]).
Council’s written plan for Floodwood requires that supervision of campers “be maintained for the duration (24/7) of their stay at the camp.” (NYSCEF 174). Council’s Leaders Guide for Floodwood provides that “running and horseplay have no place at Scout Camps,” and all scout units must have two adult leaders with the unit at all times. (NYSCEF 175).
At a deposition held on December 16, 2011, plaintiff testified that he had been a scout since age nine, and that while a scout he participated in monthly weekend scout camping trips. During the trips, the Troop leaders would show the scouts how to use tools, and gather firewood; when gathering firewood, the scouts would go into the woods using the buddy system, which requires that scouts be accompanied by at least one other scout. When the scouts went to the bathroom, they also used the buddy system. At a camp attended [*5] by the Troop the week before the one at Floodwood, plaintiff visited the shower facilities using the buddy system or with several scouts. At Floodwood too, the buddy system was used. (NYSCEF 162).
According to plaintiff, the main purpose of the trip to Floodwood was to take a 15-mile canoe trip. On the day of the accident, the scouts and the Troop leaders spent time outside in their campsite within the camp, where “there was a little bit of horsing around,” “a little bit of pushing, playing around,” and all of the scouts were pushing and shoving each other during and after a game of touch football, which the leaders told them to stop. As he walked to the shower house the night of his accident, plaintiff wore a functioning headlamp; the area around the shower house was dark. He does not recall what happened from the time the group walked to the shower house to when he regained consciousness on the ground, bleeding from his head. (NYSCEF 162).
It is undisputed that other scouts reported that while they were in the shower house, plaintiff took a water pump from the wall and squirted water on them. When one of the scouts told him to stop, plaintiff ran out of the shower house and fell to [*6] the ground. None of the scouts knew what had caused the fall. (NYSCEF 167-171, 176).
Pictures taken by the parties at Floodwood after the accident depict the shower house as a building stationed in a large clearing or space in front of a wooded area. (NYSCEF 161; 192).
According to the Troop leaders present that day, it was not scouts’ practice to have adult leaders accompany scouts to camp showers. Both leaders testified that they had known plaintiff and the other scouts for several years, had been with them at another camp the week before they went to Floodwood, and had had no disciplinary issues or previous incidents of misbehavior between them. The leaders testified that Scout protocol differentiated between active activities, such as swimming or rock climbing, and passive activities, such as going to shower or the bathroom or retrieving firewood, and that active activities required adults to be present while passive activities did not necessarily require an adult presence. (NYSCEF 163, 164).
Lopes testified that they defined supervision as permitting the scouts to travel throughout the camp as long as the leaders knew their whereabouts, and that he believed that Scout guidelines [*7] prohibited the leaders from walking the scouts to the shower house and waiting outside while they showered in order to avoid any appearance of impropriety. He testified that it was a three to five-minute walk from the Troop’s campsite to the shower house. (NYSCEF 164).
Figueiredo testified that the Troop’s campsite was located approximately a three-minute walk from the parking lot, that the shower house was located in the general camp, and that it was a three to four-minute walk from the Troop’s campsite to the shower house. He found out about plaintiff’s accident when two of the scouts found him at their campsite, and when he arrived at the shower house, he found plaintiff sitting on the ground in front of the shower house. He investigated the incident by interviewing the other scouts, and concluded that the other scouts were inside the shower house when plaintiff fell outside the shower house. (NYSCEF 163).
Figueiredo testified that although they did not accompany the scouts to the bathroom or shower, they had them use the buddy system and knew their whereabouts and when to expect them to return, which he defined as their supervision of the scouts:
[t]hey were not in a vast wilderness, they [*8] were in a camp. So there are other people in camp, so they’re within earshot of a number of people that are in camp. It is not like . . . I sent them out into the African plains; there were other people around. They were reasonably within earshot to a bunch of people and I knew their whereabouts.
(NYSCEF 163).
At an examination before trial held on March 16, 2012, Grey Rolland, Council’s director of support services, testified, as pertinent here, that he was unaware of any other injuries to scouts at Floodwood before or after plaintiff’s accident, and that plaintiff and the other scouts used the buddy system, which Rolland considers adequate. He did not believe that the adult Troop leaders should have accompanied the scouts to the shower house given the BSA prohibition against permitting adults and youths in shower houses together, and he asserted that it would not be considered “appropriate” for the adults to escort the scouts to the shower house. He acknowledged that if a Troop leader observed scouts running around or engaging in horseplay, it was incumbent upon the leader to tell them to stop. (NYSCEF 165).
Richard Saunders testified at an EBT that at the time of plaintiff’s accident, [*9] he was 18 years old and employed at Floodwood as a camp health officer. He described Floodwood as a “high-adventure base” for scouts older than 13 to do back-country exploring. After the accident, he completed a form as required by the DOH, on which he noted, under the category “Supervision During Incident,” that the “activity was inadequately addressed in the written plan,” by which he intended to convey that he had reviewed the scout’s written plan for the trip and saw [**4] nothing therein related to supervision of the scouts while in the shower house. He also wrote that no camp staff was present when the accident occurred. Although Saunders had first written that the supervision was “adequate,” he changed it to “inadequate” based on the absence of an adult when plaintiff was injured. Saunders had never before filled out such a form, nor was it part of his job.
Saunders described Floodwood as consisting of a main camp area, which includes the buildings where food is organized and meetings occur, and the individual campsites which are approximately a five-minute walk away. The shower house was located between the campsites and the camp buildings. He estimated that the shower house was [*10] a two-minute walk from the Troop’s campsite and in “an area where boys don’t want to have adults and it would be illegal to have them being watched while showering.” As a scout and troop member attending camps like Floodwood, Saunders recalled that adult leaders did not escort scouts to the showers or stand outside while the scouts showered. (NYSCEF 166).
DOH investigated the incident, after which it and Council entered into a stipulation providing that DOH had alleged that Council had violated various camp regulations, including those relating to the supervision of scouts, and that the parties were thereby settling the matter by Council agreeing not to contest it, paying a fine, and submitting a revised camp safety plan. Additionally, by its terms, the stipulation is
not intended for use in any other forum, tribunal or court, including any civil or criminal proceeding in which the issues or burden of proof may differ, and is made without prejudice to [Council’s] rights, defenses and/or claims in any other matter, proceeding, action, hearing or litigation not involving [DOH] [and] is not intended to be dispositive of any allegations of negligence that may be made in a civil action for [*11] monetary damages.
(NYSCEF 177).
By affidavit dated August 3, 2015, Michael J. Peterson states that he is an expert on camp and conference center management, and opines, based on his experience and review of relevant documentation in this case, that defendants violated the DOH regulation which requires, at a minimum, visual or verbal communications capabilities between a camper and a counselor, and that plaintiff’s accident was reasonably foreseeable as the scouts were allowed to remain “totally unsupervised and unregulated for a lengthy period of time in a potentially dangerous/hazardous environment.” He also posits that if the Troop leaders had accompanied the scouts to the shower house, “the level of horse play outside the shower house would have been minimal to non-existent, the boys would have taken their showers without incident, and safely returned to their camp site.” He also states that the defendants should have provided adequate lighting around the shower house. (NYSCEF 193).
II. CONTENTIONS
Defendants deny that they were negligent in any manner related to the physical conditions outside the shower house as they were the ordinary and expected conditions present in a wooded camp. [*12] Troop denies having had any obligation to maintain the area. Defendants also deny having breached a duty to supervise plaintiff absent any prior incidents between plaintiff and any [**5] other Troop member that would have put them on notice of the need to supervise them more closely, and argue that plaintiff’s injury or misbehavior was not reasonably foreseeable. They observe that plaintiff cannot remember how he was injured or whether his injuries were caused by a premises condition or an assault by another scout, and deny having had notice of any prior incidents or accidents around the shower house. (NYSCEF 151).
Plaintiff argues that his inability to remember the accident permits a relaxed standard of proof on summary judgment, and contends that there are two possible explanations for his accident: (1) that he was struck over the head with a blunt object by a fellow scout, or (2) that he tripped and fell while running over the uneven and non-illuminated area around the shower house, and that in either scenario, the accident would not have happened if defendants had adequately supervised that night. He asserts that a jury could conclude that a reasonably prudent parent would not permit [*13] six minors “to wander around the woods at 10:00 pm, for an indefinite period of time, without any adult supervision whatsoever,” and maintains that any “horseplay” should have and would have been discouraged by the Troop leaders. He also observes that defendants violated their own policies by failing to have a troop leader with the troop “at all times” or “for the duration (24/7)” of their trip. (NYSCEF 190).
Plaintiff relies on the stipulation entered into between defendants and DOH, Saunders’s conclusion that factors contributing to the incident included inadequate supervision, and Peterson’s opinion, to demonstrate the lack of adequate supervision. He also argues that Council had a duty to illuminate the area around the shower house, which he characterizes as a “rugged” and “uneven and unpaved camp area containing, inter alia, grass, dirt, rocks, trees, and tree roots.” (Id.).
In reply, defendants maintain that they established, prima facie, their lack of prior knowledge or notice of any scout misbehavior at the camp or any dangerous condition around the shower house. They deny that plaintiff offers evidence that he suffers from any medical condition causing a failure of memory, and [*14] assert that his inability to remember the incident does not warrant relieving him of his burden of proof. They also dispute that the scouts were “traipsing or wandering” through the woods, observing that both Troop leaders testified that they were within the camp, not the woods, where they were within earshot, and were directed to go to the shower house, which they did. (NYSCEF 200).
Defendants also contend that Peterson’s expert affidavit is based on speculation, and that his reliance on the DOH requirement of visual or verbal communication capabilities during “activities” is inapplicable as showering or walking to the shower house is not an activity within the meaning of the rule. They observe that Peterson cites no regulations that defendants allegedly violated relating to the lighting around the shower house, that Peterson never inspected the area, and that in any event, the conditions alleged are ordinary elements of a wooded area. They also deny that Saunders’s statements in the DOH form constitute party admissions, as his completion of the form was not within the scope of his authority at Floodwood. (Id.).
III. ANALYSIS
“The proponent of a summary judgment motion must make a prima [*15] facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Ayotte v Gervasio, 81 NY2d 1062, 1062, 619 N.E.2d 400, 601 N.Y.S.2d 463 [1993] [citation [**6] omitted]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” (Winegrad, 64 NY2d at 853; see also Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982, 985, 615 N.E.2d 1010, 599 N.Y.S.2d 526 [1993]).
Once the proponent’s prima facie burden is satisfied, the opposing party bears the burden of presenting evidentiary facts sufficient to raise triable issues of fact. (Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]; CitiFinancial Co. [DE] v McKinney, 27 AD3d 224, 226, 811 N.Y.S.2d 359 [1st Dept 2006]). Summary judgment may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]), and “should not be granted where there is any doubt as to the existence of a triable issue” of fact (Am. Home Assur. Co. v Amerford Intl. Corp., 200 AD2d 472, 473, 606 N.Y.S.2d 229 [1st Dept 1994]; see also Color by Pergament, Inc. v Pergament, 241 AD2d 418, 420, 660 N.Y.S.2d 431 [1st Dept 1997] [“Summary judgment is an exercise in issue-finding, not issue determination, and may not be granted when material and triable issues of fact are presented”]). The court must examine the evidence in a light most favorable to the party opposing the motion. (Martin v Briggs, 235 AD2d 192, 196, 663 N.Y.S.2d 184 [1st Dept 1997]).
A plaintiff who, due to a failure of memory, cannot describe what led to his injury is not held to as high a degree of proof on his or her cause of action. (Noseworthy v City of New York, 298 NY 76, 80 N.E.2d 744 [1948]; see Bah v Benton, 92 AD3d 133, 936 N.Y.S.2d 181 [1st Dept 2012] [plaintiff who presented medical evidence establishing loss of memory due [*16] to accident at issue entitled to lesser standard of proof applicable to party unable to present party’s version of facts]). However, even when a plaintiff suffers from amnesia, he is not relieved of the obligation to provide “some proof from which negligence can be reasonably inferred.” (Alotta v Diaz, 130 AD3d 660, 11 N.Y.S.3d 868 [2d Dept 2015]; see Schechter v Klanfer, 28 NY2d 228, 269 N.E.2d 812, 321 N.Y.S.2d 99 [1971] [even if amnesiac plaintiff is held to lesser degree of proof, it does not “shift the burden of proof or eliminate the need for plaintiffs to introduce evidence of a prima facie case”]; Santiago v Quattrociocchi, 91 AD3d 747, 937 N.Y.S.2d 119 [2d Dept 2012] [same]).
A. Did defendants breach their duty to supervise plaintiff?
A person, other than a parent, who undertakes to control, care for, or supervise an infant, is required to use reasonable care to protect the infant . . . Such a person may be liable for any injury sustained by the infant which was proximately caused by his or her negligence. While a person caring for entrusted children is not cast in the role of an insurer, such an individual is obligated to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so.
(Alotta v Diaz, 130 AD3d 660, 11 N.Y.S.3d 868 [2d Dept 2015], quoting Appell v Mandel, 296 AD2d 514, 745 N.Y.S.2d 491 [2d Dept 2002]).
A “summer camp is duty-bound to supervise its campers as would a parent of ordinary prudence in comparable [*17] circumstances.” (Phelps v Boy Scouts of Am., 305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]). And, while the degree of supervision required depends on the surrounding circumstances, “constant supervision in a camp setting is neither feasible nor desirable.” (Id. at 335-6).
The standard for determining whether a duty to supervise a minor has been breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same [**7] information would invariably have provided greater supervision.” (Mayo v New York City Tr. Auth., 124 AD3d 606, 3 N.Y.S.3d 36 [2d Dept 2015], quoting Mary KK v Jack LL, 203 AD2d 840, 611 N.Y.S.2d 347 [3d Dept 1994]).
Moreover, “in determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow [campers], it must be established that [camp] authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury, that is, that the third-party acts could reasonably have been anticipated.” (Ragusa v Town of Huntington, 54 AD3d 743, 864 N.Y.S.2d 441 [2d Dept 2008], quoting Mirand v City of New York, 84 NY2d 44, 637 N.E.2d 263, 614 N.Y.S.2d 372 [1994]). Although if an accident occurs in “so short a span in time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendants is warranted.'” (Atehortua v Lewin, 90 AD3d 794, 935 N.Y.S.2d 102 [2d Dept 2011], quoting Nash v Port Wash. Union Free School Dist., 83 AD3d 136, 922 N.Y.S.2d 408 [2d Dept 2011]).
1. Was the supervision adequate?
Even though plaintiff does not remember the accident, the [*18] other boys’ versions of it are consistent and uniform, and present the following picture: Plaintiff and the other scouts walked to the shower house and went inside without incident, whereupon plaintiff obtained a water pump and started spraying water on them. When one of the scouts told plaintiff to stop, he ran out of the shower house, and fell.
Plaintiff’s contention is that for defendants’ supervision to have been adequate that night, the Troop leaders should have escorted or walked the scouts to the shower house, waited outside while they showered, and then walked them back to their campsite. As it is undisputed that the scouts ranged in age from 13 to 16, that they were at Floodwood to learn skills related to survival in the woods and to partake in a 15-mile canoe trip, that the scouts utilized a buddy system when at various camps and that Troop leaders never escorted them to the bathrooms or showers, that the shower house was approximately a three to five-minute walk from their campsite, and that the shower house was located within the camp area where other campers and adults were present and within earshot, defendants have demonstrated that a parent of ordinary prudence placed [*19] in the identical situation and armed with the same information would not have provided greater supervision than that provided by defendants.
Moreover, a parent who permits his or her child to attend an overnight camping trip in the woods where the child will be taught skills related to understanding and surviving outdoor conditions, is presumably aware of the hazards and risks of injury associated with such conditions, and it would be illogical for that same parent to require or believe it necessary for the child to be escorted personally to and from every area within the camp. Such a degree of supervision “in a camp setting is neither feasible nor desirable” (Phelps v Boy Scouts of Am., 305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]), and camps “cannot reasonably be expected to continuously supervise and control all of [the campers] movements and activities” (Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010]).
On point is Kosok v Young Men’s Christian Assn. of Greater New York, where a group of boys at a summer camp injured the plaintiff while playing a prank involving attaching a pail to a fishing rod and letting it descend onto the heads of other unsuspecting boys. The group of boys, ranging in age from 12 to 15, occupied a cabin by themselves; the camp counselor did not stay [*20] in [**8] the cabin with them during the midday break. The Court dismissed the case, finding that there was no negligence by defendants in failing to supervise “the rest period of boys of high-school age for a short period.” (24 AD2d 113, 264 N.Y.S.2d 123 [1st Dept 1965], affd 19 NY2d 935, 228 N.E.2d 398, 281 N.Y.S.2d 341 [1967]). The Court observed that ” [r]emembering that this is a Summer camp, it will be seen that constant supervision is not feasible . . . Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy.” (24 AD2d at 115; see also Gustin v Assn. of Camps Farthest Out, Inc., 267 AD2d 1001, 700 N.Y.S.2d 327 [4th Dept 1999] [same]).
Plaintiff’s reliance on Phelps v Boy Scouts of Am. is misplaced. As I held in granting summary judgment to Boy Scouts of America:
In Phelps . . . “very young campers” were placed in bunks at a camp with “much older campers,” who allegedly assaulted the young campers . . . The court also allowed that very young campers often require closer supervision than older campers, and that placing the younger campers in the bunks with the older campers was an apparent violation of camp policy.
Here, there is no issue of very young campers being unsupervised or placed in risky circumstances as plaintiff and his fellow scouts were all teenagers and there is no evidence that [*21] any camp policy was violated . . .
(305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]).
Moreover, plaintiff’s reliance on Saunders’s conclusion or opinion in the DOH report that the accident was caused by inadequate supervision is not conclusive here, not only because he had no authority to bind defendants to his conclusion, but also based on the circumstances that he was an 18-year old who had never before filled out or even seen a DOH report, and who had received no training or guidance as to how it should be filled out or the meanings of the terms therein. In any event, Saunders testified that he wrote that there was inadequate supervision based only on the fact that the Troop leaders were not physically present at the time of the accident, which is an insufficient basis for the conclusion.
Plaintiff’s submission of the stipulation between DOH and defendants to establish that there was inadequate supervision is barred by the stipulation’s own terms.
Peterson’s expert opinion is based on speculation and is conclusory, and he cites no regulation or requirement that specifies that adequate supervision in this context means that the Troop leaders were required to escort the scouts to the shower house and wait outside until they finished [*22] showering. Indeed, any claim that such supervision is required in camps is undermined by the undisputed fact that at the camp that the scouts attended a week before going to Floodwood, the scouts went to the shower house unescorted and used only the buddy system. Reliance on the DOH requirement of “visual or verbal communication” between campers and counselors and Council’s plan for Floodwood which required the supervision of campers “24/7” is misplaced as neither requires that the Troop leaders be constantly present with the scouts. (See eg, Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010] [while expert concluded that camp was negligent in failing to provide plaintiff with shin guards during soccer game in which he was injured, he failed to allege that camps generally provide shin guards during games or that rules requiring use of shin guards in soccer leagues have been implemented by or [**9] accepted as accepted practice at camps]; Cherry v State of New York, 42 AD2d 671, 344 N.Y.S.2d 545 [4th Dept 1973], affd 34 NY2d 872, 316 N.E.2d 713, 359 N.Y.S.2d 276 [1974] [where camper was injured when nail he struck with hammer while building tent platform struck him, expert’s opinion that the camp was required to provide campers with safety goggles was expert’s personal opinion and neither statute nor regulations required goggles]). [*23]
References to the “traipsing” or “wandering” in the woods unsupervised have no basis in the record; the scouts remained in the camp and never went into the woods. Moreover, the accident did not occur in the woods, and there is no correlation between the woods and plaintiff’s accident.
In any event, whether or not defendants’ supervision of plaintiff was adequate is irrelevant if the accident was not foreseeable or was not proximately caused by the allegedly inadequate supervision.
2. Was plaintiff’s accident foreseeable?
As it is reasonably inferred that the accident occurred as described by the other scouts, there is no evidence suggesting that defendants were on notice that plaintiff and/or the scouts would engage in any dangerous conduct or misbehavior at the shower house. Moreover, even if some of the behavior was foreseeable, plaintiff’s bolting from the shower house, and subsequent fall, was not a foreseeable consequence of any misbehavior.
Kosok is again on point here, with the Court finding that “[a]ssuming that the boys were reasonably quiet – and there is no indication that they were not – no occasion for looking in on them was presented.” The Court also observed that:
[a] certain amount [*24] of horseplay is almost always to be found in gatherings of young people, and is generally associated with children’s camps. It is only to be discouraged when it becomes dangerous. Nothing in the incident itself or surrounding circumstances indicates any notice to defendant that such was likely to result here.
(24 AD2d at 115; see also Gibbud v Camp Shane, Inc., 30 AD3d 865, 817 N.Y.S.2d 435 [3d Dept 2006] [same]).
Even if plaintiff had been assaulted by a fellow scout rather than having tripped and fallen, there is no evidence that defendants were on notice of the possibility of an assault. (See eg Alvero v Allen, 262 AD2d 434, 692 N.Y.S.2d 116 [2d Dept 1999] [boy scout sued troop leader for injury caused by snowball fight; absent proof that leader had notice of ongoing and dangerous snowball fight, plaintiff could not prevail on inadequate supervision claim]; see also Osmanzai v Sports and Arts in Schools Foundation, Inc., 116 AD3d 937, 983 N.Y.S.2d 848 [2d Dept 2014] [injury caused by impulsive, unanticipated act of fellow camper ordinarily will not give rise to negligence claim absent proof of prior conduct that would have given notice to protect against injury-causing act]).
As it is undisputed that defendants had no notice of the possibility of misbehavior among the scouts, they have established that plaintiff’s accident was not foreseeable.
3. Was plaintiff’s accident proximately caused by defendants’ allegedly inadequate [*25] supervision?
Even if the Troop leaders had escorted the scouts to the shower house and stood outside while they showered, the alleged misbehavior occurred inside the shower house, and thus the leaders would neither have observed it nor been in a position to stop it. And unless the leaders blocked the entrance, they would not have been able to stop plaintiff from running out of the shower house and falling down.
Plaintiff’s and Peterson’s belief that the mere presence of the Troop leaders outside the shower house would have been sufficient to stop any horseplay from taking place inside is not only speculative, but unwarranted as the scouts had engaged in horseplay earlier that day while the leaders were with them. (See eg, Stephenson v City of New York, 85 AD3d 523, 925 N.Y.S.2d 71 [1st Dept 2011], affd 19 NY3d 1031, 978 N.E.2d 1251, 954 N.Y.S.2d 782 [2012] [suggestion that student’s assault on plaintiff would have been prevented by his mother accompanying her almost 14-year-old son to school every day did not rise above speculation]; see also Lizardo v Bd. of Educ. of City of New York, 77 AD3d 437, 908 N.Y.S.2d 395 [1st Dept 2010] [rejecting plaintiff’s expert’s assertion that collision between children would have been preventable by teacher watching play more closely, and opinion that incident might have been prevented by closer supervision valid only in retrospect]; Walsh v City School Dist. of Albany, 237 AD2d 811, 654 N.Y.S.2d 859 [3d Dept 1997] [finding unpersuasive allegation [*26] that presence of supervisor could have kept plaintiff and fellow student attentive and injury would have been prevented]).
In any event, the accident occurred too quickly to enable the Troop leaders to prevent it had they been outside the shower house. As in Kosok, “[e]ven if the cabin counsellor had been within earshot of the cabin, it is difficult to see how the accident would have been prevented.” (24 AD2d at 115; see Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010] [as plaintiff was injured at camp during 15-second time span, camp established that it did not negligently supervise him]; see also Jorge C. v City of New York, 128 AD3d 410, 8 N.Y.S.3d 307 [1st Dept 2015] [defendant established that student’s injury did not arise from inadequate supervision, but from impulsive and unanticipated acts of fellow student of finding balloon, filling it with water, and attempting to throw it at plaintiff, and plaintiff running away and looking backwards rather than ahead]).
Moreover, it was plaintiff’s own impulsive and reckless conduct in squirting the other scouts with the water pump and then running out of the shower house, that led to his injury. (See Gibbud v Camp Shane, Inc., 30 AD3d 865, 817 N.Y.S.2d 435 [3d Dept 2006] [plaintiff’s own impulsive and reckless act in grabbing camp counselor from behind, causing counselor to drop plaintiff and fracture plaintiff’s [*27] ankle, led to his injury]).
Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.
B. Did Council breach their duty to illuminate adequately the area around the shower house?
Plaintiff has not identified what caused him to fall, whether it was part of the shower house or something on the ground, either a rock or tree branch or uneven patch of dirt. Absent any such evidence and even if plaintiff is unable to recall, there is no basis on which it may be found that plaintiff’s injury was proximately caused by the lack of lighting around the area. (See Lynn v Lynn, 216 AD2d 194, 628 N.Y.S.2d 667 [1st Dept 1995] [plaintiff’s amnesia did not reduce her burden of proving that allegedly defective condition of stairway was proximate cause of fall]).
Moreover, plaintiff was wearing a working headlamp at the time of the incident, and neither plaintiff nor his expert identified a regulation or rule requiring defendants to light the area around the shower house at all or in any particular manner.
Plaintiff was able, however, to recall the conditions outside of the [*28] shower house, which consisted of typical conditions in any wooded or camp area, i.e., rocks, dirt, branches, etc., and [**10] having been on several camp trips, was presumably aware of the existence and risks of such conditions. He did not identify or recall any unusual, unexpected, or dangerous conditions, nor have any such conditions been alleged.
In Kimbar v Estis, a young camper had wandered off a camp path at night and hit a tree. The Court found that the camp owners had no duty to illuminate the path in the absence of any particular danger on the path, finding:
We have before us a simple camper-camp relationship and the rustic, outdoor camp life that is the very raison d’e tre [sic] of summer establishments such as defendants’. There are certain risks incidental to camping, but these are part of an adventurous summer camp life, and are necessarily assumed by those who would participate therein . . .
Indeed, it is expected that a camp will have trees, that paths will lead through woods and that woods will be dark at night. It is not to be anticipated that floodlights will be supplied for campers through woodland paths. One naturally assumes many ordinary risks when in the woods and in [*29] the country trails are not smooth sidewalks, paths are not paved, trees, brush and insects are to be expected, and even snakes may appear occasionally. These and more are all a part of accepted camp life.
To hold summer camps to a duty of floodlighting woods would not only impose upon them a condition almost impracticable under many circumstances but would be unfair, as well, to the youth who seek the adventure of living closer to nature, participating in outdoor astronomical study at night or bird study before dawn, or when overnight hikes take them for study and adventure far from any source of electrical power. Such a duty, in short, would frequently compel camps to keep boys confined after dark and thereby effectively spell the end of some of the most desirable activities of real camping life.
1 NY2d 399, 135 N.E.2d 708, 153 N.Y.S.2d 197 [1956]).
Defendants thus establish that they breached no duty to illuminate the area around the shower house and that, in any event, the area did not constitute a dangerous condition for which they may be held liable. (See Torres v State of New York, 18 AD3d 739, 795 N.Y.S.2d 710 [2d Dept 2005] [park owner not liable for injury sustained when plaintiff tripped over tree stump in park; “landowners will not be held liable for injuries arising from a condition on the property [*30] that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it”]; Mazzola v Mazzola, 16 AD3d 629, 793 N.Y.S.2d 59 [2d Dept 2005] [dismissing claim by infant plaintiff who tripped and fell over exposed tree roots in backyard as alleged defect was inherent to nature of land]; Moriello v Stormville Airport Antique Show & Flea Market, Inc., 271 AD2d 664, 706 N.Y.S.2d 463 [2d Dept 2000] [owner of field not liable for injuries to plaintiff who tripped on flat rock while walking on unpaved roadway; rock was inherent to nature of unpaved roadway]; Csukardi v Bishop McDonnell Camp, 148 AD2d 657, 539 N.Y.S.2d 408 [2d Dept 1989] [campground owner not liable to person who tripped over grass-covered stump in wooded area, as stump was incidental to nature of campground and could be reasonably anticipated by persons traversing wooded area]; Alcantara v Fed. Girl Scout Councils of Nassau County, Inc., 24 AD2d 585, 262 N.Y.S.2d 190 [2d Dept 1965] [plaintiff could not recover for injury sustained at camp when she tripped over tree stump; [**11] defendant conducted rustic outdoor camp and paths were unpaved, and condition of premises was thus incidental to nature of camp and to be ordinarily expected by plaintiff]).
IV. CONCLUSION
For all of these reasons, it is hereby
ORDERED, that the motion of defendants Northern New Jersey Council, Inc., Boy Scouts of America and Boy Scout Troop 141 for summary judgment dismissing the action against them is granted, and the complaint is dismissed as against them, [*31] with costs and disbursements to said defendants as taxed by the Clerk upon the submission of an appropriate bill of costs, and is further
ORDERED, that the clerk is directed to enter judgment accordingly.
ENTER:
Barbara Jaffe, JSC
DATED: March 10, 2016
New York, New York
Recreation Law 