Grand Canyon Gondola Project seems to be Derailed
Posted: May 21, 2015 Filed under: Arizona | Tags: Development, Grand Canyon, Grand Canyon Trust, x, y, z Leave a comment
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FIS establishes new regulations for ski racing helmets. Standards filter down to other ski races and eventually maybe the public.
Posted: May 20, 2015 Filed under: Skiing / Snow Boarding | Tags: DH, Downhill, FIS, Giant Slalom, GS, International Ski Federation, SG, Ski Helmet, skiing, Super G, US Ski Association, USSA Leave a commentBasis of the new test for ski helmets is the helmet must survive a drop test that is approximately three feet higher and at a speed approximately three mph faster.
The FIS, (International Ski Federation) has established new regulations for helmets that will be worn in FIS competitions. Those are the world cup level ski races held around the world.
After FIS adopted these new standards, the USSA (US Ski Association) adopted the same standards for many of their races this year and more the following years.
I’m not going to try to interpret the regulations here you are better off trying to figure it out on your won. Seriously, the regulations are the most convoluted work I’ve read and were made to make it impossible to understand. On top of that they make it impossible to copy the information from their website, even off PDF’s. (Why don’t they want this information to be known?)
1) To show the new helmets meet the new standards they are going to have the CE Mark and conform to one of the following regulations.
a) DIN EN 1077
b) ASTM F2040
c) SNELL S98 or RS 98
2) If the helmet is designed for GS (Giant Slalom), SG (Super G) or DH (Downhill) racing it must have a conformity label affixed in a non-removable way, at the back of the helmet, in a position not be covered by the goggle strap. The conformity label must contain the text “Racing helmet to conform to FIS specifications 2013.”
Why?
If you want a better ski helmet look for one that meets the new requirements. It can take a bigger impact.
It is going to be a simple helmet, hard ear covers, no spoilers, etc. These helmets are going to be pretty dull, little venting and nothing except the stickers you put on them. However, if you want to protect your head….
What do you think? Leave a comment.
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Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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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, USSA, FIS, Skiing, Ski Helmet, GS, DH, SG, Downhill, Super G, Giant Slalom, International Ski Federation, US Ski Association,
Death is something we should have the freedom to choose as part of our life, something we expect to have as a basic freedom.
Posted: May 19, 2015 Filed under: Skydiving, Paragliding, Hang gliding | Tags: Dean Potter, Paragliding, Yosemite Leave a commentThe opportunity to live life as you want includes the opportunity to die attempting to life.
Dean Potter was living life to the absolute when he died. Dean was exercising his freedom to live. He was violating park rules on paragliding and for that and for the fact he died he will be condemned.
But no one will ever be able to say Dean did not live.
Whether you liked Dean or not, you have to support the fact he died free, living life has he wanted.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Dean Potter, Yosemite, Paragliding,
Duty of care for a Massachusetts campground is to warn of dangerous conditions.
Posted: May 18, 2015 Filed under: Assumption of the Risk, Camping, Massachusetts | Tags: Camper, Campground, Commercial Campground, Inc., Land Owner, Landowner, Pathway, Restroom, Shower, Vacation Camp Resorts International, Yogi Bear's Jellystone Park Campground Leave a commentPlaintiff assumes the risk of his injury at a commercial campground if there is not dangerous condition and/or he knows about the condition because he walks the trail during the day.
State: Massachusetts, Appeals Court of Massachusetts
Plaintiff: Anthony Monaco
Defendant: Vacation Camp Resorts International, Inc.’s (VCRI’s) Yogi Bear’s Jellystone Park Campground
Plaintiff Claims: negligent in failing to light the “pathway”3 and maintain it in a safe condition, to warn against its use, or to construct a graded path in its place
Defendant Defenses: Assumption of the Risk
Holding: for the defendant
Year: 2014
This case involves a commercial campground. The plaintiff was walking up to the restroom at night and fell on the path. He sued for his injuries. The plaintiff sued the campground and others who were never clearly identified in the appellate decision.
The lower court stated the plaintiff assumed the risk based upon the defendant’s motion for summary judgment, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The court first reviewed the requirements for a negligence suit to succeed under Massachusetts law and condensed the four steps to one sentence. “To succeed in an action for negligence, the plaintiff must establish duty, breach, causation, and damages.” The duty of care is only owed to those who are foreseeably endangered by the contact with the defendant.
Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.
The duty of a land owner in Massachusetts is that of reasonable care “under all the circumstances in the maintenance and operation of their property.”
Although landowners should anticipate and take measures to avoid the risks that their property poses to invitees, they are not obligated to “consistently and constantly” check for dangerous conditions. The law does not impose a duty on landowners to exercise precautions, unless the dangers are “readily observable” by landowners and imperceptible to invitees. That is, an open and obvious danger negates the existence of a duty of care.
The fact that the plaintiff was injured does not create a legal obligation or duty on the part of the defendant. Evidence is needed to support the lack of care or proof the landowner k of the dangerous condition.
…evidence, other than “the obviousness of the steep slope,” that the pathway posed an apparent danger. To support his claim, the plaintiff submitted expert testimony that the pathway was “rutted,” “uneven,” and “unlit,” and did not comport with International Building Code standards.
The plaintiff had descended the hill earlier and had not seen a dangerous condition. In fact, the plaintiff had been using the campground for eighteen years and had used the path three times the day he fell.
Nor had a dangerous condition on the hillside been identified or spotted during the camps annual inspection.
Both parties had ample opportunities to observe the campground, yet neither noticed any unreasonable dangers. The only risk associated with the pathway was the open and obvious nature of its slope and uneven terrain, which did not impose any duty on the defendants to light or otherwise improve the path.
The court held the defendants owed not duty to protect the plaintiff from the conditions on the pathway.
So Now What?
The requirement that a landowner is not obligated to consistently and constantly check for dangerous conditions is not found in all states. In most states if the dangerous condition exists, the landowner must fix it or warn of it.
The obligations or duties owed to people on your land are usually based upon the reasons why the injured person was originally upon your land. In Massachusetts that issue is not discussed.
Here the obligation was to warn or correct dangerous conditions. It did not matter why the person was on the land.
What do you think? Leave a comment.
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Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
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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, Vacation Camp Resorts International, Inc., Yogi Bear’s Jellystone Park Campground, Camper, Campground, Landowner, Land Owner, Pathway, Restroom, Shower, Commercial Campground,
Monaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272
Posted: May 17, 2015 Filed under: Assumption of the Risk, Camping, Legal Case, Massachusetts | Tags: Camper, Campground, Commercial Campground, Inc., Land Owner, Landowner, Pathway, Restroom, Shower, Vacation Camp Resorts International, Yogi Bear's Jellystone Park Campground Leave a commentMonaco v. Vacation Camp Resorts International, Inc., 86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272
Anthony Monaco vs. Vacation Camp Resorts International, Inc., & another.1
1 Jayne Cohen.
14-P-141
APPEALS COURT OF MASSACHUSETTS
86 Mass. App. Ct. 1125; 21 N.E.3d 187; 2014 Mass. App. Unpub. LEXIS 1272
December 18, 2014, Entered
NOTICE: DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28 ARE PRIMARILY ADDRESSED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL’S DECISIONAL RATIONALE. MOREOVER, RULE 1:28 DECISIONS ARE NOT CIRCULATED TO THE ENTIRE COURT AND, THEREFORE, REPRESENT ONLY THE VIEWS OF THE PANEL THAT DECIDED THE CASE. A SUMMARY DECISION PURSUANT TO RULE 1:28, ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR ITS PERSUASIVE VALUE BUT, BECAUSE OF THE LIMITATIONS NOTED ABOVE, NOT AS BINDING PRECEDENT.
PUBLISHED IN TABLE FORMAT IN THE MASSACHUSETTS APPEALS COURT REPORTS.
PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.
DISPOSITION: [*1] Judgment affirmed.
CORE TERMS: pathway, campground, landowners, summary judgment, favorable, allowance, obvious danger, duty of care, citation omitted, unreasonably dangerous, obstructions, deposition, anticipate, precautions, unexpected, invitees, uneven, slope, fault, owe, shower, paved, path, owed
JUDGES: Cypher, Fecteau & Massing, JJ.
OPINION
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Anthony Monaco seeks to recover for serious injuries he sustained when he fell down a grassy hill that campers used to reach a shower building located on Vacation Camp Resorts International, Inc.’s (VCRI’s) Yogi Bear’s Jellystone Park Campground in New Hampton, New Hampshire. The plaintiff alleges that VCRI and Jayne Cohen2 were negligent in failing to light the “pathway”3 and maintain it in a safe condition, to warn against its use, or to construct a graded path in its place. A Superior Court judge allowed the defendants’ motion for summary judgment, reasoning that traversing the shortcut in lieu of existing paved pathways, and in darkness, is an “obvious baseline danger,” and that the defendants therefore owed no duty. We affirm.
2 Cohen served as president of Vacation Camp Resorts International, Inc., during the time of the incident in question.
3 Construing the record in the light most favorable to the plaintiff, and noting that the shower building was marked with a “restroom” sign visible from the paved road above, we accept the plaintiff’s characterization [*2] of the route between the road and the building as a pathway.
In reviewing the trial court judge’s allowance of a motion for summary judgment, we consider the evidence submitted with the motion, which may include “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 232, 676 N.E.2d 801 (1997) (citation omitted). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). We construe inferences drawn from the record in the light most favorable to the nonmoving party, and review de novo the trial court judge’s application of the law to the facts. LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318, 974 N.E.2d 34 (2012). Allowance of the motion will survive appellate review so long as there is “no genuine issue” of “material fact” and “the moving party is entitled to a judgment as a matter of law.” Id. at 325-326. Mass.R.Civ.P. 56(c).
To succeed in an action for negligence, the plaintiff must establish duty, breach, causation, and damages. Ronayne v. State, 137 N.H. 281, 284, 632 A.2d 1210 (1993).4 “[P]ersons owe a duty of care ‘only to those who they foreseeably endanger by their conduct.'” Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304, 605 A.2d 208 (1992) [*3] (citation omitted). “Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.” Id. at 305.
4 The trial court judge determined that New Hampshire’s substantive law governed this action. The parties do not dispute that the choice of New Hampshire law is appropriate under the circumstances of this case.
“[O]wners and occupiers of land owe plaintiffs a duty of reasonable care under all the circumstances in the maintenance and operation of their property.” Werne v. Exec. Women’s Golf Assn., 158 N.H. 373, 376, 969 A.2d 346 (2009). Although landowners should anticipate and take measures to avoid the risks that their property poses to invitees, they are not obligated to “consistently and constantly” check for dangerous conditions. See Pesaturo v. Kinne, 161 N.H. 550, 555, 20 A.3d 284 (2011). The law does not impose a duty on landowners to exercise precautions, unless the dangers are “readily observable” by landowners and imperceptible to invitees. Ibid. Lawrence v. Hollerich, 394 N.W.2d 853, 855 (Minn. App. Ct. 1986). That is, an open and obvious danger negates the [*4] existence of a duty of care. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 422, 807 A.2d 1274 (2002).
The mere fact that the plaintiff was injured does not trigger a legal duty on the defendants. He must produce some evidence, other than “the obviousness of the steep slope,” that the pathway posed an apparent danger. Lawrence, 394 N.W.2d at 856. To support his claim, the plaintiff submitted expert testimony that the pathway was “rutted,” “uneven,” and “unlit,” and did not comport with International Building Code standards. However, other evidence revealed that the condition of the pathway, as it appeared to both parties, posed no greater risk than walkways maintained by landowners in their ordinary exercise of care. Cf. Paquette v. Joyce, 117 N.H. 832, 835, 379 A.2d 207 (1977). Monaco testified at his deposition that he was not aware of any treacherous condition as he was descending the hill, and Cohen never observed any “unexpected,” unreasonably dangerous condition, Ahern v. Amoskeag Mfg. Co., 75 N.H. 99, 101, 102, 71 A. 213 (1908), during her annual visual inspections of the campground. Thus, Monaco’s inattention to obvious dangers on the pathway was the only risk presented, which did not impose on the [*5] defendants a duty to exercise precautions. Contrast Hacking v. Belmont, 143 N.H. 546, 553, 736 A.2d 1229 (1999) (defendant liable for “unreasonably increased or concealed” risks not inherent in the game of basketball).
Moreover, “[t]here is nothing unfamiliar about the inability to perceive in the dark obstructions to the course of one who walks without light.” Ahern, supra at 101. That is, “[i]f there may be obstructions whose presence cannot be ascertained by the eye, due care requires the use of some other sense to detect them.” Ibid. When the evidence is “uncontradicted” that the plaintiff was familiar with the area where the accident occurred and that the injury occurred because of an “unexpected” condition, the defendant is not at fault for failing to anticipate it. Ibid. Unless the defendant had superior knowledge of the danger, “[i]t cannot reasonably be found that of two persons of equal knowledge and of equal ability to appreciate and understand a danger, one is in fault for not apprehending the danger and the other is not.” Id. at 102.
In this case, Monaco’s knowledge and appreciation of the condition of the pathway was equal to the defendants’. Monaco had camped on the campground once per [*6] year for eighteen years and had used the pathway three times without incident on the day of his fall. Likewise, VCRI had been operating the campground for over two decades, and Cohen was VCRI’s president for approximately six years. Both parties had ample opportunities to observe the campground, yet neither noticed any unreasonable dangers. The only risk associated with the pathway was the open and obvious nature of its slope and uneven terrain, which did not impose any duty on the defendants to light or otherwise improve the path.
Conclusion. Drawing all inferences from the record in the light most favorable to the plaintiff, we conclude that the defendants owed no duty to protect him against the injury-causing condition of the pathway. The allowance of the defendants’ motion for summary judgment was proper.
Judgment affirmed.
By the Court (Cypher, Fecteau & Massing, JJ.5),
5 The panelists are listed in order of seniority.
Entered: December 18, 2014.
Know about Clean Trails? You Should
Posted: May 16, 2015 Filed under: Uncategorized | Tags: Clean Trails, Clean Up, Litter, x, y, z Leave a comment
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Volunteer Spotlight – Amanda Wallander RobertsAmanda Wallander Roberts is on a mission to bring some organization to the Clean Trails organization–if that makes any sense! Amanda is the pulse of the organizational and program development for Clean Trails. She works on the systems and processes that allow individuals to get involved with Clean Trails and determine what they do once they are on board. This very organic and fluid undertaking has evolved into a logic model for the program. Future projects include an evaluation plan for the organization. See, she really does organize the organization! 
Do you Subscribe to Expedition News? You Should!
Posted: May 15, 2015 Filed under: Uncategorized | Tags: Blumenfeld, Blumenfeld and Associates, Expedition News, Explore, Inc., x, y, z Leave a comment
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2014-2015 In bound ski/board fatalities
Posted: May 13, 2015 Filed under: Ski Area, Skiing / Snow Boarding, Snow Tubing | Tags: fatality, ski area, skiing, snowboarding, Tubing Leave a commentIt is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.
Fatalities are high even though the number of skiers is down?
This 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 4, 2015. 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 in-bounds on the slopes
Green Type is Fatalities while sledding at the Resort
Blue Type is a Lift Accidents
2014 – 2015 Ski Season Fatalities
|
# |
Date |
State |
Resort |
Where |
Trail Difficulty |
How |
Cause |
Ski/ Board |
Age |
Sex |
Home town |
Helmet |
Reference |
Ref # 2 |
|
1 |
11/15 |
CO |
Breckenridge |
|
|
|
Natural |
|
48 |
M |
Boulder, CO |
|
|
|
|
2 |
12/8 |
CO |
Eldora |
Jolly Jug |
|
Hit tree |
|
Ski |
22 |
M |
Coral Springs, FL (CU student) |
Yes |
||
|
3 |
12/12 |
CO |
Keystone |
Spring Dipper |
Intermediate |
Hit Tree |
Blunt force trauma |
Boarder |
26 |
M |
Silverthorne |
Yes |
||
|
4 |
|
MI |
Pine Knob |
|
|
Hit tree |
|
Ski |
51 |
F |
Shelby Township |
|
||
|
5 |
12/28 |
WY |
Jackson Hole |
Brush Alley |
|
Found inverted in the snow |
Asphyxiation |
Skier |
54 |
M |
Pepper Pike, OH |
|
||
|
6 |
12/30 |
NY |
Hunter Mtn |
D Lift |
|
Ski caught lift tower |
Fall |
Skier |
44 |
F |
Brooklyn, NY |
|
||
|
7 |
1/31 |
OR |
Mt. Hood Skibowl |
Middle Reynolds Trail |
Expert |
Caught an edge, fell, landing on his head and chest |
blunt-force head trauma |
Skier |
37 |
M |
Medford, OR |
|
||
|
8 |
|
CO |
Keystone Resort |
Elk Run |
Intermediate |
|
|
|
18 |
M |
|
Yes |
||
|
9 |
1/7 |
UT |
Snowbird Ski Resort |
base of the Little Cloud chairlift |
|
struck a tree |
|
Skier |
63 |
M |
Salt Lake City, UT |
Yes |
||
|
10 |
1/13 |
NH |
Nashoba Valley Ski Area |
|
|
Hit a tree |
|
|
13 |
M |
Westford, NH |
|
|
|
|
11 |
1/17 |
MA |
Nashoba Valley Ski Area |
Lobo trail |
Expert |
Hit a tree |
|
Skier |
13 |
M |
Westford |
Yes |
||
|
12 |
1/18 |
CA |
Northstar California ski resort |
Rail Splitter |
Advanced |
|
|
Skier |
67 |
M |
Van Nuys |
|
|
|
|
13 |
1/18 |
AZ |
Arizona Snowbowl |
|
|
Medical episode & fell to snow |
|
Skier |
46 |
M |
Newbury, CA |
|
||
|
14 |
1/19 |
CO |
Copper Mtn |
|
|
Medical |
|
Board |
55 |
F |
Reeds Spring, MO |
Yes |
||
|
15 |
1/22 |
VT |
Stowe Mountain Resort |
|
|
|
|
|
64 |
M |
|
|
|
|
|
16 |
1/23 |
WA |
Mission Ridge Ski |
|
|
lost control on a ski run |
|
Skier |
17 |
M |
|
|
|
|
|
17 |
1/23 |
CO |
Crested Butte |
Lower Treasury |
Intermediate |
Hit a tree |
multiple traumatic chest injuries |
Skier |
13 |
M |
Olathe, CO |
Yes |
||
|
18 |
|
VT |
Stowe Mountain Resort |
|
|
|
medical-related |
Skier |
64 |
M |
|
|
|
|
|
19 |
2/6 |
VT |
Burke Mountain Resort |
|
|
Hit a tree |
|
Skier |
27 |
F |
St. Johnsbury, VT |
Yes |
||
|
20 |
2/7 |
UT |
Park City Mtn Resort |
|
|
hit a padded pole |
aorta ruptured |
Skier |
25 |
M |
|
|
|
|
|
21 |
2/11 |
CO |
Keystone Resort |
Anticipation |
Intermediate |
Hit a tree |
blunt force trauma |
Skier |
43 |
M |
Conifer, CO |
Yes |
||
|
22 |
2/14 |
NM |
Ski Santa Fe |
|
|
struck a tree |
|
Skier |
33 |
F |
El Paso, Texas |
|
|
|
|
23 |
2/7 |
CO |
|
|
|
|
|
Skier |
60 |
M |
|
|
|
|
|
24 |
2/23 |
CO |
Breckenridge Ski Resort |
|
|
|
multiple skull fractures |
Skier |
22 |
M |
|
No |
||
|
25 |
2/26 |
CO |
Breckenridge Ski Resort |
Northstar |
Intermediate |
Hit tree |
|
Skier |
46 |
M |
Rolling Meadows, IL |
Yes |
||
|
26 |
2/25 |
WI |
Granite Peak |
|
|
Went off a jump came down on his neck and head area |
Severe brain injury |
Boarder |
29 |
M |
Oshkosh, WI |
Yes |
||
|
27 |
3/9 |
NH |
Wildcat Mtn |
Lower Polecat trail |
|
lost control, tumbled down the trail and fell over a 60-foot drop |
|
Skier |
34 |
M |
North Conway, NH |
Yes |
||
|
28 |
3/8 |
WA |
Lookout Pass |
Rainbow Ridge |
|
hit a tree |
|
|
61 |
F |
Silverton, ID |
Yes |
||
|
29 |
3/9 |
CO |
Winter Park |
|
|
|
|
|
34 |
M |
North Conway, NH |
|
|
|
|
30 |
3/9 |
NH |
Wildcat Mountain |
|
|
veered into a tree-covered area |
|
|
|
|
|
|
|
|
|
31 |
2/14 |
WI |
|
|
|
|
traumatic brain injury |
Boarder |
25 |
F |
Chicago, IL |
|
||
|
32 |
3/17 |
NH |
Bretton Woods Ski Resort |
|
|
|
|
Boarder |
23 |
M |
Pelham |
|
||
|
33 |
3/22 |
VT |
Killington Resort |
High Road Trail |
Intermediate |
Hit a Tree |
|
Skier |
23 |
M |
Nashua, NH |
Yes |
||
|
34 |
3/25 |
ME |
Sunday River ski resort |
Black Hole |
Expert |
Went off trail |
|
Skier |
35 |
M |
Bethel, ME |
Yes |
||
|
35 |
3/25 |
WV |
Snowshoe Mountain |
|
|
|
|
Skier |
|
M |
|
|
|
|
|
37 |
3/29 |
MI |
Crystal Mountain |
North Face |
|
lose control, striking a tree |
|
Skier |
40 |
M |
Ludington, MI |
Yes |
||
|
38 |
3/28 |
WY |
Jackson Hole Mountain Resort |
|
|
collapsed during the alpine leg of Saturday’s Pole Pedal Paddle race |
cerebral aneurism |
Skier |
58 |
F |
|
|
||
|
39 |
4/12 |
UT |
Deer Valley Resort |
Birdseye run |
Intermediate |
Hit lift tower |
|
Skier |
42 |
M |
Pinebrook, UT |
|
|
|
|
40 |
4/9 |
CO |
Steamboat Ski Area |
Rainbow trail |
|
|
complicated fractures to his C1 and C2 cervical vertebrae |
Skier |
63 |
M |
Steamboat Springs, CO |
|
||
|
41 |
4/19 |
WA |
White Pass Ski Area |
Cool Air |
|
started falling backward. She tried to right herself. The woman crashed into a tree, |
blunt force injuries |
Skier |
60 |
F |
Olympia. WA |
|
||
|
42 |
4/30 |
OR |
Mount Bachelor |
Leeway run |
|
lost control and hit a tree. |
|
Skier |
29 |
M |
Bend, OR |
Yes |
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.
5 Medical causes, 1 lift accident and 17-18 fatalities 16 hitting trees or 2 hitting lift towers.
The numbers were relatively low through the middle of February and then started to climb recently. 20 fatalities in the West, 5 in the Midwest and 10 in the East. I suspect that was based on weather. No snow in the West and too much snow in the East.
If you are unable to view the entire table Email me at Jim@Rec-law.us and put Ski Area Fatality Chart in the subject line. I’ll reply with a PDF of the chart.
What do you think? Leave a comment.
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Looking for a great job? Denver Zoo is hiring for Research North American Bison Issues
Posted: May 13, 2015 Filed under: Uncategorized | Tags: Denver Zoo, Internship, Job, Summer Intern, Summer Job, x, y, z, Zoo Leave a commentDenver Zoo’s Department of Conservation and Research has a growing human dimensions of wildlife research program focused on documenting the social contexts for plains bison (Bison bison) conservation and reintroduction across the Rocky Mountain West. We seek highly qualified and motivated graduate students in conservation social science-related fields to apply for the following two internships:
Internship #1: American Icons in a Metropolitan Grassland – Understanding People, Place and Bison Conservation in Denver, CO
This internship advances the mission of Denver Zoo by assisting with a research study that examines the social meanings of and visitor experiences with bison conservation in metro Denver, Colorado. Using survey and interview research, the study will examine metro Denverites’ knowledge about, attitudes towards and experiences with bison conservation generally, and with three of metro-Denver’s conservation bison herds specifically. The research intern will work 20 hour per week to conduct structured visitor intercept interviews in the field, and, as time permits, assist with public opinion survey design. The internship dates are June 15 – October 16, 2015 (final dates based on hire availability).
Internship #2: Creating Sustainable Futures for People, Animals and the Environment – The Human Dimensions of Bison Reintroduction in Northern Colorado
This internship advances the mission of Denver Zoo by assisting with a collaborative and interdisciplinary One Health study funded by Colorado State University (CSU), which will document the effects of bison reintroduction in Northern Larimer County, Colorado on human, animal and ecological health. The research intern will work 20-30 hours per week at Soapstone Prairie Natural Area (near Fort Collins, CO) to collect data about the ways in which the planned bison reintroduction may affect the visitor experience, recreational use patterns and place attachment through visitor intercept interviews, trail monitor data collection and the distribution of handheld GPS units to track visitor trail use patterns. The internship dates are June 15 – October 16, 2015 (final dates based on hire availability).
Please apply through Denver Zoo’s job portal at: http://www.denverzoo.org/jobs-internships
Closing Date for both internships: May 22, 2015
Rebecca Garvoille, Ph.D.
Postdoctoral Research Fellow, Department of Conservation Biology
Denver Zoo | 2300 Steele St. | Denver, CO | 80205
(Office) 720.337.1676
(Cell) 954.330.7412
(Fax) 720.337.1406
Assumption of the Risk to be a bar to a claim the defendant must not owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.
Posted: May 11, 2015 Filed under: Assumption of the Risk, California | Tags: assumption of the risk, Boating, duty, Primary Assumption of the Risk, Secondary Assumption of the Risk, Yacht Club Leave a commentThe old idea of you knew what you were doing could result in an injury, and you did it anyway does not necessarily prevent lawsuits now days.
State: California, Court of Appeal of California, Fourth Appellate District, Division Three
Plaintiff: Carl Kindrich, III, Barbara Kindrich, and Michael Kindrich
Defendant: Long Beach Yacht Club and Charles Fuller, skipper
Plaintiff Claims: negligent in their use and maintenance of both the boat and the dock, Barbara claimed loss of consortium, and Michael claimed emotional distress
Defendant Defenses: Assumption of the Risk
Holding: For the Plaintiff
Year: 2008
The facts in this case are easy, and to regular readers, sort of annoying. The plaintiff’s father died. The deceased had been a member of the defendant yacht club and wanted to be buried at sea. The yacht club loaned a boat and a skipper to the deceased family to take his ashes out to sea.
Boarding the boat, there was a set of stairs that allowed everyone to climb on the boat. Upon returning the stairs were removed. The Defendant/Skipper/Boat Captain asked the plaintiff to jump down to tie the boat up. He did, injuring his knee.
Free boat to carry out his father’s wishes, knowing the risk, and he still sues. The plaintiff sued the Yacht Club and the skipper, both of whom were donated for disposing the ashes of the plaintiff’s father.
Analysis: making sense of the law based on these facts.
The defendant yacht club filed a motion to dismiss based on assumption of the risk. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.
The court went through a detailed analysis of assumption of the risk in California. The basis of the analysis was the California Supreme Court decision in Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870.
The court first started by defining when assumption of the risk is applied as a complete bar and the differences between primary and secondary assumption of the risk.
Assumption of risk that is based upon the absence of a defendant’s duty of care is called “‘primary assumption of risk.’ ” “First, in ‘primary assumption of risk’ cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in ‘secondary assumption of risk’ cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.”
Primary assumption of the risk is a complete bar to a claim. “Primary assumption of risk, “where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him”” (Knight v. Jewett, supra, 3 Cal.4th at p. 306), remains as a complete defense.”
The court stated that the decision in Knight changed how the court should view assumption of the risk. “Knight shifted the focus of assumption of risk from a plaintiff’s “subjective knowledge and awareness” of the risk to the nature of the activity in question.”
In cases involving ‘primary assumption of risk’–where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” Knight justified maintaining the defense in a sports setting because there “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself” and imposing liability “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule”
The old definition looked at whether the plaintiff knew about the risk and voluntarily assumed the risk. Now the court looks at what was going on to determine what happened. Even if the plaintiff did not understand the activity or the risks, by engaging in the activity, they may still assume the risks. This in many senses is a broader definition which helps the defendant. However, when the activity is not a sport, it is a very narrow definition.
The court then looked at all the California cases that had determined that the defendant did not owe a duty to the plaintiff; therefore, the assumption of the risk was a complete bar to the plaintiff’s claims. From that it determined that the complete bar applied if the plaintiff was participating in a sport.
After reviewing a substantial number of cases applying primary assumption of risk to a variety of activities, the court concluded that “[c]ompiling all of the distinguishing factors, it appears that an activity falls within the meaning of ‘sport’ if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.”
Jumping off a boat is not a sport. It is a common everyday occurrence. As such the activity is not one where the plaintiff assumes the risk because the defendant might owe the plaintiff a duty. The existence of the stairs to begin the boat ride is proof that a duty may be owed. The case was reversed and sent back for further proceedings.
So Now What?
So I’ve posted a lot of cases looking at assumption of the risk. However, you need to make sure you understand that normally, assumption of the risk is not a complete bar to a lawsuit as in this case. For assumption of the risk to bar a plaintiff’s suit, the plaintiff must be involved in an activity or sport.
Here the plaintiff was jumping off a boat. Although the facts make it appear like the suit should be thrown out because when you jump from a boat, it is obvious you can be hurt. The rule states it only applies to how much the trier of fact thinks you were responsible for your injury not whether you assumed the risk as in the past.
Assumption of the risk may still be a complete bar to recovery. It will be dependent upon the state and how the jury sees the facts. However, that must be decided by the trier of fact, and cannot be decided by motions.
By that I mean if the plaintiff does not prove that the defendant was at least or 50 or 51% liable (dependent upon the state) for their injury the plaintiff loses. In some states, the percentage of the plaintiff’s fault only reduces the award to the plaintiff by that percentage the plaintiff is liable, so if the plaintiff is found to be 90% liable the plaintiff only recovers 10% of the damages.
The issue as to how assumption of the risk is to be applied to the facts is based on whether the defendant owed a duty to the plaintiff. In a sport, the defendant does not owe any duty unless the acts of the defendant are reckless or intentional, generally (varies by state). Here, the stairs that were there originally created a duty when they were removed.
The reasoning behind keeping assumption of the risk in some activities as a complete bar is, if the risks are removed from the sport, which the defendant would have to do if they were to protect themselves from suit, the sport would not exist. The risk is part and parcel of the sport. Alternatively, without the risks, the sport would not exist.
The controlling term is “sport”. It does not have to be a team sport or a contact sport, but it has to be more than couch surfing or jumping from a boat.
If you are engaging in the activity for a challenge, a thrill, or enjoyment and requires physical exertion, then assumption of the risk may be a complete bar to a claim by the plaintiff.
You could always put that in your release too………….. J
There is a dissent in this case that reasons that “No good deed goes unpunished” and the actions of the plaintiff fit the definition of assumption of the risk, and the older result should apply in this case.
How would they ever be able to tie the boat up if in this fact situation? If a passenger on the boat cannot jump off the boat to tie the boat up, the captain either has to hand over control of the boat to a passenger (see any problems here) or the boat must wait until someone comes down and brings a set of stairs.
Never thought I would write about a “Yacht Club.”
What do you think? Leave a comment.
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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, Yacht Club, Assumption of the Risk, Primary Assumption of the Risk, Secondary Assumption of the Risk, Duty, Boating,
Snow Peak Recalls Japanese Axe Due to Laceration and Impact Hazards
Posted: May 7, 2015 Filed under: Uncategorized | Tags: Consumer Product Safety Council, CPSC, Ice Axe, Japanese Axe M, Recall, Snow Peak Leave a commentName of Product: Japanese Axe M
Hazard: The handle of the axe can crack, allowing the axe head to come loose, posing a laceration or impact hazard to the user or bystanders.
The axe handle cracks: http://www.cpsc.gov/en/Recalls/2015/Snow-Peak-Recalls-Japanese-Axe/
Remedy: Replace
Consumers should immediately stop using the recalled Japanese Axe M and return it to the Snow Peak’s Portland retail store or contact Snow Peak for a free replacement axe.
Consumer Contact: Snow Peak toll-free at (855) 407-8390 from 9 a.m. to 5 p.m. PT Monday through Friday, email at recall@snowpeak.com or online at http://www.snowpeak.com and click on the recall poster for more information.
Recall Details
Units: About 220
Description: The recalled Japanese Axe M has item number R-061 printed on the back page of the included manual. The black axe head measures 5-3/4 inches high by 4 inches wide and weighs 2 pounds. The axe handle measures 14 inches long and is made of a light colored maple. A small black snow flake (asterisk) is burnt into the handle near the hole at the end of the handle. The handle has a small hole near the end, which is used for hanging the axe. The axe was sold with a white leather holder for the axe head that attaches with a snap strap.
Incidents/Injuries: None reported.
Sold at: Outdoor equipment retail stores including Adventure 16, Backcountry Gear LTD, Camp Saver, Snow Peak Portland Store, UTE Mountaineer, and online at http://www.snowpeak.com from December 2013 through August 2014 for about $160.
Importer: Snow Peak USA, of Portland, Ore.
Manufactured in: Japan
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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You guys confuse me and I need Answers to Write articles you want!
Posted: May 7, 2015 Filed under: Activity / Sport / Recreation | Tags: Opinion poll, Outdoor recreation, What do you do?, Who are you? 1 CommentI’ll write a post and think this is great, thinking it will get tons of readers and it doesn’t. The other day I wrote post that I thought was sort of OK, but not great, and it got the largest readership ever.
The post Monday, April 27 was one of the most earth shattering decisions in outdoor recreation in over a decade. Yet it received almost 20% less hits then the week before. You all have indemnification clauses in your release and to date they have all been nullified by the court. Now there is a decisions that supports indemnification clauses with great legal language.
I need to know more about you. If I am to write what you need to know, and want to know, I need to know more about you. I’m developing a Friday Poll. Every Friday, for awhile, (or until I’m so confused I don’t know what I’m doing). I’m going to ask a question or two about you. You won’t get anything for answering except hopefully, posts that you want.
Here is the first one. Please answer so I know more about you. Click on your profession below.
If you profession is not listed here, email me and let me know. jim@rec-law.us
Thanks!
Federal Judge holds that North Carolina law supports a release signed by the mother of a minor plaintiff to stop a lawsuit
Posted: May 4, 2015 Filed under: Challenge or Ropes Course, North Carolina, Release (pre-injury contract not to sue) | Tags: Cam Lejeune, Marine Corps Base Camp Lejeune, Minor, North Carolina, parent, Quasi-Estoppel, Release, Reserve Officers Training Corp., ROTC, United States District Court for the Eastern District of North Carolina, United States federal judge, Waiver Leave a commentStill not a decision by the NC Supreme Court which is controlling on this issue, however a very interesting case and a very staunch support of the idea that a parent can sign away a minor’s right to sue.
Kelly, v. United States of America, 2014 U.S. Dist. LEXIS 135289
State: North Carolina, United States District Court for the Eastern District of North Carolina, Southern Division
Plaintiff: Morgan Kelly, Pamela Kelly, and Terry Kelly
Defendant: United States of America
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: For the Defendant
Year: 2014
A prior decision in this case was written about in North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations which reviewed Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741.
This is a decision by a federal court. Federal courts do not make decisions changing state law. Federal Courts can only apply state law to the facts in front of them. If the law is not settled it may surmise what the law it, however the courts of the state where the federal court sits, in this case North Carolina, are not bound by the law. Other websites have reported that federal courts can change the effect of the law in a state which is not true. That is why the precautionary warning on this decision. The North Carolina Supreme Court can rule on this issue at some future date and say the opposite of what this decision says. So until the issue of whether a parent can sign away a minor’s right to sue is reviewed by a state appellate or Supreme Court in North Carolina, not is set in stone.
A quick review of the facts: the minor plaintiff, age fifteen, was injured during a confidence course (obstacle course?) while attending a ROTC weekend at United States Marine Corps Base Camp Lejeune. The mother of the minor signed a release so the minor could attend the weekend.
There are several new facts which were argued in this phase of the case, and not in the prior decision, which are interesting. Allegedly the release was it was signed, was signed with the parent believing the twin sister was attending the camp. However at the time the release was signed there were no names on the release. The sister did not attend, the plaintiff did and the plaintiff filled in her name on the release. An information packet was sent to all attendee’s high schools which described the confidence course. However neither of the minor’s parents saw the packet.
All aspects of the trip were free for the cadets except they had to pay for their meals at the Camp Lejeune dining facility at a reduced rate and pay for anything the plaintiff purchased at the Post Exchange.
Prior to undertaking the confidence course the minor and other cadets completed two obstacle courses. The actual element the minor was injured on was the “slide for life.” While climbing the slide for life the minor fell suffering injuries.
Analysis: making sense of the law based on these facts.
The first issue was whether a parent could sign a release and release the minor’s right to sue. The court found in this decision and in the prior decision a parent could sign away a minor’s right to sue.
It does not appear that North Carolina courts have ruled on whether a liability waiver signed by a parent on behalf of a minor child is enforceable, yet numerous courts in other jurisdictions have upheld pre-injury liability waivers signed by parents on behalf of minors in the context of litigation filed against schools, municipalities, and clubs providing activities for children.
The court then reviewed other state law where the court’s had allowed a parent to sign away a minor’s right to sue. The court in reviewing those decisions found them analogous to these facts and applicable to this case.
… the court continues to find that these cases are analogous to the circumstances here, where the facilities and instruction of the NJROTC program were provided at no expense and students were charged only for personal purchases from the Post Exchange and for meals at discount rate.
The court found numerous reasons within those cases why the courts upheld the releases.
… the public is best served when risks or costs of litigation regarding such programs are minimized.
… public interest by respecting the realm of parental authority to weigh the risks and costs of physical injury to their children against the benefits of the child’s participation in an activity.
North Carolina, the law to be applied in this case by the court:
…recognized a public interest in respecting parents’ authority over certain life decisions for their children. North Carolina has recognized a public interest in respecting parents’ authority over certain life decisions for their children.
The court remains persuaded by the analysis of those courts upholding liability waivers signed by parents in the context of litigation against schools, municipalities and clubs, which either implicitly or explicitly found the risk presented by such waivers to be outweighed by interests in providing non-commercial activities and respecting parental authority.
The court also found that this case was not controlled by a public interest argument. The court also found that there was no recognized North Carolina public interest in voiding the release to protect minors over the wishes of the parents. “First, neither the defendant’s status as a government body, nor the volunteer status of a program’s personnel, are controlling factors in the analysis.”
The concluded this analysis and denied a public interest argument in the Federal Tort Claims Act (FTCA).
In turn, JROTC programs promote the community welfare by instilling the values and benefits noted above in the community’s children. Finally, the mere fact that the United States has waived its sovereign immunity through the FTCA does not mean that it should be denied the use of a waiver that other non-governmental volunteer or non-profit organizations could employ. On the contrary, the FTCA only makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.”
The FTCA is the statute that describes how and for what reasons the federal government, including the military can be sued.
The court then looked at the actual release to see if it met the law of North Carolina to be valid. The plaintiff argued there was no meeting of the minds, a basic requirement for a contract, which a release is. This is also referred to as a “mutual mistake.” “However, a unilateral mistake, unaccompanied by fraud, imposition, undue influence or like circumstances is insufficient to avoid a contract.”
Because the mistake, if any, was only a unilateral mistake, it was not enough to void the release. Unilateral mistake meaning only one part to the contract knew about the problem or was affected by the problem.
The plaintiff then argued that because the release was signed by the mother for one daughter who did not go but used by the second daughter who did go, the plaintiff, the release was void. The court found that even if the release was void for this reason, because the plaintiff’s took advantage of the opportunity, which could not be accepted without a release, they had ratified and affirmed the release.
North Carolina courts have held that, when a release is originally invalid or voidable, it may be ratified and affirmed by subsequent acts accepting the benefits.
Similarly, under the North Carolina theory of quasi-estoppel, also known as “estoppel by benefit,” a party who “accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.”
The doctrine is grounded “upon a party’s acquiescence or acceptance of payment or benefits, by virtue of which that party is thereafter prevented from maintaining a position inconsistent with those acts.”
Since the opportunities of the weekend could not be accepted or taken without a signed release, the plaintiff could not after accepting the benefits argue the release was void.
Here, the benefits of the Liability Waiver for plaintiff Pamela Kelly consisted of her daughter’s participation in the NJROTC orientation program, with the attendant benefits of introducing her to the culture, skills, and values that the NJROTC seeks to impart.
By accepting the benefit of her child’s attendance at the orientation session, knowing that a liability waiver was required for attendance, plaintiff Pamela Kelly cannot now disavow the effect of the instrument she signed that allowed her child to attend.
The next issue the plaintiff argued was the release did not identify the risks in the release. “As an alternative ground for denying summary judgment, plaintiffs argue that the Liability Waiver cannot be enforced because the government did not identify the risks that the form covered.”
The plaintiff’s argued they did not know their daughter would be engaging in the risky behavior and activities that caused her injury.
Consequently, they state they anticipated that plaintiff Morgan Kelly would only be visiting Camp Lejeune to observe equipment and other military activities, and that she would only be performing the same activities that she had performed in the past, such as marching in formations, drills, and “ground-based physical fitness training.
The court found this was not required under the law. Here the contract language was clear and the intention of the release for one party to waive the negligence and any accompanying risks of the other party was evident.
The heart of a contract is the intention of the parties,” which “must be determined from the language of the contract, the purposes of the contract, the subject matter and the situation of the parties at the time the contract is executed.” Liability waivers are disfavored under North Carolina law, and strictly construed against the parties seeking to enforce them. However, when the language is clear and unambiguous, construction of the agreement is a matter of law for the court, and the court cannot look beyond the terms of the contract to determine the parties’ intent.
The language was clear and unambiguous in its intent.
As such, the waiver provides ample notice to plaintiffs of the potential for a wide range of activities at the event, not limited in any way to marching, drills, or “ground-based physical fitness training.” Plaintiffs do not allege that they were affirmatively misled as to the nature of the activities that would comprise the event, or that they were prevented from inquiring into the activities or the associated risks.
The next argument was the plaintiff had disaffirmed the release by filing the complaint. “Plaintiffs also argue that summary judgment should be denied because plaintiff Morgan Kelly has disaffirmed it (by filing complaint) and because the Liability.” They buttressed this argument stating the language in the release referred to the plaintiff not a parent. However the court found the plaintiff’s had not provided any legal authority to support their argument.
Yet plaintiffs have not cited any case holding that a form such as that used here, which expressly waives both the claims of the child and her guardians, and which is signed by one of those guardians, cannot be enforced against the guardian who signed it. The court again holds that the Liability Waiver is enforceable to bar the claims of both Morgan and Pamela Kelly.
The next issue was whether the release, signed by the mother and effective against the claims of the mother and daughter also prohibited claims of the father.
The question remains whether the Liability Waiver is effective against the claims of plaintiff Terry Kelly, who did not sign the document, and denies ever seeing it prior to plaintiff Morgan Kelly’s orientation visit.
The court reasoned the release could not be used against the father if he did not know of the release. If you do not know of the contract you cannot be held to the contract even under a quasi-estoppel theory argued earlier in the case.
However the plaintiff’s themselves destroyed this argument. The release had both names of the parents written in by hand. The father in his deposition did not definitively state that the handwriting was not his. The plaintiff’s also argued the thought the release was not an original (which is not a valid evidentiary argument). The court then ordered the plaintiff’s had additional time to visually inspect the document and determine if it was the one they signed.
No additional arguments or support for the argument was made that the release was not the original or not signed by the parents. The court, then found that claim was no longer valid because it did not create a genuine issue concerning the release which is necessary to deny a motion for summary judgment.
Plaintiffs had opportunity to review the original Release Form, and to have it assessed by an expert if deemed necessary. An opponent of summary judgment “must produce more than frivolous assertions, unsupported statements, illusory issues and mere suspicions.”
The court then went back to the quasi-estoppel claim to further foreclose that argument by the plaintiff: “… because the record shows that plaintiff Terry Kelly accepted the benefits of the Release Form as it applied to the orientation visit.” The court further stated:”[A] party will not be allowed to accept benefits which arise from certain terms of a contract and at the same time deny the effect of other terms of the same agreement”
The court summed up that argument by stating:
The same principle operates here, where plaintiff Terry Kelly signed a Release Form surrendering claims related to his daughter’s participation in NJROTC training, then allowed his daughter to attend a NJROTC training orientation visit. On the evidence, there is no genuine issue that plaintiff Terry Kelly accepted that plaintiff Morgan Kelly’s “membership in the Naval Junior Reserve Officers Training Corps training,” included the orientation visit. In consideration of this training, including the orientation visit, he released “claims, demands, actions, or causes of action, due to . . . injury.” De-fendant reasonably relied on plaintiff Terry Kelly’s writing, in addition to his acquiescence to his [*35] daughter’s attendance at the orientation visit. Plaintiff Terry Kelly cannot be allowed to accept the benefits of the Release Form through his daughter’s attendance, while at the same time denying the release that was required as a condition of that attendance.
That eliminated the last claim and argument by the plaintiff and summary judgement was granted.
So Now What?
Although this decision may not be controlling in North Carolina until the North Carolina state courts rule on it, the court effectively argued each point why the release should be valid. On top of that, I do not know if this case is being appealed, which again, may change the outcome.
One point that was argued that I continually argue to do, to save the time and cost of defending a release is to put in the release the risks the plaintiff will be assuming. If the release is thrown out of court, you can get the release in front of the jury to prove the plaintiff assumed the risk of the injury.
This is great legal reasoning on release law. This is a good case to keep handy when you are arguing why a release is valid. Whether your state allows a parent to sign away a minor’s right to sue or not, the legal analysis used here can be used in many different release cases.
What do you think? Leave a comment.
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Copyright 2015 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, ROTC, Cam Lejeune, Reserve Officers Training Corp., Release, Waiver, Minor, Parent, Quasi-Estoppel,
Recall: Felt Cruiser bicycles
Posted: May 2, 2015 Filed under: Cycling | Tags: bicycle, Consumer Product Safety Council, CPSC, Cruiser, El Guapo, Felt, Felt Deep Six, Recall Leave a commentHazard: The bicycle’s brakes can fail, posing a crash hazard.
Remedy: Replace
Consumer Contact: Felt Bicycles toll-free at (866) 433-5887 from 8 a.m. to 5 p.m. PT Monday through Friday or online at http://www.feltbicycles.com/ and click on “Notices” for more information.
Recall Details
Units: About 200
Description: This recall involves beach cruiser style Felt Deep Six and El Guapo model bicycles with one speed and coaster brakes. “Felt” and “Deep Six” or “El Guapo” are printed on the bicycle’s frame. The Deep Six was sold in black cherry with white sidewall tires and the El Guapo was sold in matte black with white tires. The Deep Six has a serial number between YI31106188 and YI31106287. The El Guapo has a serial number between YI31106288 and YI31106387. The serial number is printed on the bicycle’s bottom bracket.
Incidents/Injuries: Felt Bicycles has received 26 reports of incidents with the recalled bicycles. No injuries have been reported.
Remedy: Consumers should immediately stop using the recalled bicycles and contact your local Felt bicycle dealer for a free inspection and replacement of the rear hub cog/driver.
Sold at: Bicycle specialty stores nationwide from June 2014 through March 2015 for between $600 and $750.
Distributor(s): Felt Bicycles, of Irvine, Calif.
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 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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#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, Recall, CPSC, Consumer Product Safety Council, Felt, Cruiser, Bicycle, Felt Deep Six, El Guapo,
You guys confuse me.
Posted: May 1, 2015 Filed under: Activity / Sport / Recreation | Tags: Opinion poll, Outdoor recreation, What do you do?, Who are you? 1 CommentI’ll write a post and think this is great, thinking it will get tons of readers and it doesn’t. The other day I wrote post that I thought was sort of OK, but not great, and it got the largest readership ever.
The post Monday, April 27 was one of the most earth shattering decisions in outdoor recreation in over a decade. Yet it received almost 20% less hits then the week before. You all have indemnification clauses in your release and to date they have all been nullified by the court. Now there is a decisions that supports indemnification clauses with great legal language.
I need to know more about you. If I am to write what you need to know, and want to know, I need to know more about you. I’m developing a Friday Poll. Every Friday, for awhile, (or until I’m so confused I don’t know what I’m doing). I’m going to ask a question or two about you. You won’t get anything for answering except hopefully, posts that you want.
Here is the first one. Please answer so I know more about you.
Thanks!
Colorado Safe Routes to Schools Bill in Danger: Need your Help ASAP
Posted: April 30, 2015 Filed under: Cycling | Tags: Bicycle Colorado, Bicycling, Colorado, Colorado Senate, Cycling, Legislative session, Riding a bike, Safe Routes to School Leave a comment
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Please call or email your state senator TODAY and ask them to support House Bill 1003—Safe Routes to School. If the bill does not pass the Colorado Senate, the Safe Routes to School program will die.2015 USA Pro Challenge Route will Attract Great Racers and Great Fans
Posted: April 30, 2015 Filed under: Colorado, Cycling | Tags: #USAProChallenge, Bicycle Racing, Cycling, x, y, z Leave a comment
USA PRO CHALLENGE ANNOUNCES 2015 ROUTE WITH EPIC MOUNTAINTOP FINISH AND ALTITUDE INFUSED TIME TRIAL
New Host Communities Arapahoe Basin and Copper Mountain
Promise to Delight Fans
DENVER (April 28, 2015) – The 2015 USA Pro Challenge swings into action in its fifth year with a new circuit start in Steamboat Springs on Monday, August 17th and then it makes its way through another eight stunning host cities for the race finale in Denver on Sunday, August 23, 2015.
The Rocky Mountains of Colorado serve as home for the USA Pro Challenge, and every year since its inception over a million fans get to witness the world’s best cyclists, iconic routes and lung-piercing climbs of the seven stage event. With the State of Colorado containing 28 of the 50 highest peaks in the United States, it’s no surprise the race is a favorite for the world’s top teams and cyclists.
“Each of our 2015 host cities offers something unique and special to the 5th anniversary of the Pro Challenge,” said Shawn Hunter, CEO of USA Pro Challenge. “We’re confident that this year’s route will provide the most exciting week of racing yet. We have added new cities and a dramatic mountaintop finish that will prove to be a fierce battleground for riders eager to show they have what it takes to compete on a new climb up Loveland Pass.”
The Pro Challenge has grown into the largest spectator event in Colorado history with tremendous crowds enjoying the weeklong race action and event festivities. New additions to this year’s race include: Arapahoe Basin, Loveland Pass, Copper Mountain and a lung buster time-trial in Breckenridge, a new twist for a familiar host city of past races. This year the USA Pro Challenge also pays homage to the inaugural race in 2011 with a repeat of that year’s final stage – from Golden to Denver.
The 2015 USA Pro Challenge race is back with a combination of familiar host cities and new communities added into the mix.
Highlights of the route include:
Stage 1 – Steamboat Springs Circuit – Monday, August 17, 2015
After a brief venture onto the rolling roads of Routt County in 2013, the USA Pro Challenge knew it had to make a return to put on a classic circuit race. The quiet roads offer straights, twists, and a few rather steep surprises. Match that with the fan favorite host city of Steamboat Springs, and you have the makings of a great opening stage. This 49-mile circuit will be completed twice by the peloton, creating great spectator opportunities both in Steamboat Springs and for on course locations like the Rt. 27 KOM climb and the town of Oak Creek. Will Steamboat Springs be treated to another classic sprint finish or will the challenges of Routt County create an opportunity for a surprise first yellow jersey of 2015? Either way, the fans of Steamboat Springs will be treated to quite a show.
Stage 2 – Steamboat Springs to Arapahoe Basin – Tuesday, August 18, 2015
As the Pro Challenge says goodbye to its overall start host, Steamboat Springs, it welcomes a new member to the family with the race’s first visit to Arapahoe Basin. Leaving Steamboat Springs there is little time to settle in before the pros have to tackle Rabbit Ears Pass. From there, this familiar route heads south through Kremmling, around the Green Mtn. Reservoir, and continues through Silverthorne and Dillon. Unlike years past, the 2015 Pro Challenge will then turn east and suffer 5 miles up Loveland Pass to Arapahoe Basin. Look for jerseys to change hands, dreams fulfilled for some, expectations dashed for others, on this new mountain top finish.
Stage 3 – Copper Mountain to Aspen – Wednesday, August 19, 2015
Another new twist on an old favorite, but this time it is the opening that changes. Copper Mountain plays host to its first ever Pro Challenge stage and sends off Stage 3 in style, while familiar terrain and fans await the race on Independence Pass and the run into Aspen.
No rest for the weary this day as the climbing starts right away with the ascent of Freemont Pass, followed by the gorgeous shores of Turquoise Lake and then a quick sprint through Leadville. However that is only the appetizer as the main course awaits on the upper slopes of Independence Pass and then it’s down the breathtaking descent into Aspen where some of the most memorable moments in Pro Challenge history have played out.
Oh, and by the way, over half of Stage 3 takes place above 10,000 feet. Bring your lungs.
Stage 4 – Aspen to Breckenridge – Thursday, August 20, 2015
This crowd-pleasing stage from 2013 is back for an encore in 2015 as it connects the Pro Challenge’s two most visited towns; Aspen and Breckenridge. Starting off with 20 miles of climbing up Independence Pass is a rude wake up call, but that is only the beginning. The racers still have the climbs of Trout Creek Pass and Hoosier Pass to conquer, while sprints in Buena Vista and Fairplay dot the route to Breckenridge. Once in town, one final obstacle stands between the riders and victory, the wall up Moonstone road and the drop down Boreas Pass to the finish where the always boisterous crowds of Breckenridge await.
Stage 5 – Breckenridge Time Trial – Friday, August 21, 2015
Completely new for 2015, the Breckenridge Time Trial will test all of a rider’s skills and will produce a truly worthy winner. The 8.5-mile time trial starts out flat for the pure time trialists. However, it’s not long before it’s back onto the climb up Moonstone road, still fresh in the pain file from the day before and a real test of climbing skills. Finally, the race could be won or lost going downhill this day, as racers will push the limits on the Boreas Pass descent to shave seconds off their time. Whoever wins the day will certainly be one who can hammer the flats, dance up the climbs, and carve down the descents.
Stage 6 – Loveland to Ft. Collins – Saturday, August 22, 2015
The start and finish location of Stage 6 may be familiar, but what lies between the two is new and challenging.
The early flats and sprints in Windsor and Loveland hide the wicked side of the route that waits in the second half. It may not have the grand names or the huge elevation numbers, but the lower and smaller climbs of this stage still have a serious sting. Climbing the north side of Carter Lake and then onto the new climb up Rist Canyon should get everyone’s attention. It may also present one of the last chances for overall contenders to make a move. Wrapping up with the jagged rollers of Horsetooth Reservoir before bombing into Ft. Collins, this stage proves that a race doesn’t need to reach 12’000’ to be epic.
Stage 7 – Golden to Denver – Sunday, August 23, 2015
For a finale the Pro Challenge goes back to its roots. This route was the final stage of the first Pro Challenge in 2011 and introduced the world to the cycling crowds on the Front Range.
After a short loop north of Golden the race will tackle its main obstacle of the day, the 4-mile climb of Lookout Mtn. Another quick pass of Golden and the race is screaming through Wheat Ridge and Lakewood en route to downtown Denver. Four laps of the familiar Denver circuit await and Civic Center Park, City Park, and 17th street will be treated to blazing speeds as the last prizes of the week are fought for over tooth and nail.
One of the most highly anticipated events on the race calendar, the 2015 USA Pro Challenge will test the riders’ strength and endurance over a 605 mile course. To give fans the opportunity to see their heroes up close and in action, each stage, with the exception of the individual time trial, will start with at least one circuit lap in the start city before leaving town
Host city information, maps and elevation profiles are available on the race website http://www.usaprocyclingchallenge.com/route
About the USA Pro Challenge
Referred to as “America’s Race,” the USA Pro Challenge will take place August 17-23, 2015 and an inaugural Women’s USA Pro Challenge will take place from August 21-23, 2015. For seven consecutive days, the world’s top male and female athletes race through the majestic Colorado Rockies, reaching higher altitudes than they’ve ever had to endure. One of the largest cycling events in U.S. history and the largest spectator event in the history of the state, the USA Pro Challenge is back for 2015. Featuring a challenging course, the fifth annual race will spotlight the best of the best in professional cycling and some of America’s most beautiful scenery.
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Article 8 Tips to Survive Any Crisis has some great ideas I would like to build on for Outdoor Recreation
Posted: April 29, 2015 Filed under: Uncategorized | Tags: 3x5 Card, CISD, Crisis, Crisis Plan, Critical Incident Stress Debriefing, Emergency Plan, Survive, Surviving a Crisis Leave a commentCrisis means after the initial bleeding/weather/disaster has ended, and you are starting to evaluate.
The 8 points the article speaks to are:
· Stop, look, and listen.
· Who, what, when, where, and how.
· Gather your team.
· Communication is key.
· Take care of yourself.
· Seek advice from mentors and trusted colleagues.
· Conduct a post-crisis debriefing.
· Develop a crisis plan.
Each one has an explanation for a business setting. I’ve modified it a bit for the outdoor recreation world.
• Develop a crisis plan for each employee: If it is larger than a 3×5 card, you have too much information to memorize. You won’t have time to research a book or try to remember a novel in a crisis. What have you got, who you can call, how do you call. That is about it.
Your entire crisis plan for an organization should be a stack of 3×5 cards. Each card should relate to the supervisor above that employee. Your overall plan should be a simple hierarchy of information.
• Take care of yourself: If you don’t take care of yourself, you can’t take care of others. If you become a liability, you increase the risk to others. Take care of yourself first and then move on to anyone else who needs help.
• Stop, look, and listen: Are you in immediate danger? Do you need to move?
• Where, How, and When: Where are you and how far away is safety, rescue or additional help? How are you going to get to a safe place and then back to civilization? How long is it going to take and when are you going to make it.
• Gather and Evaluate your team: Who can help, who needs help, who can you rely upon and who do you need to watch. Who is a liability and who are assets.
• Communication is the key: Let everyone know what you have determined. Let everyone know what they roles are in the situation. Let everyone know to be prepared.
• Trust yourself: If you have to get associates or guides with you get input but taking in too many voices can create problems rather than solve them. You are the Trip Leader or Guide for a reason. Your experience, rely on it and your training.
• Conduct a post-crisis debriefing: Beer. Don’t be afraid when you are safe and at home to relax. If you or any member of the team needs to, have them participate in a Critical Incident Stress Debriefing program. However, celebrate your victory.
See 8 Tips to Survive Any Crisis
What do you think? Leave a comment.
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Copyright 2015 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 #Authorrank
#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, Crisis, Survive, Surviving a Crisis, 3×5 Card, CISD, Critical Incident Stress Debriefing, Emergency Plan, Crisis Plan,
After 40 Years, the Ride Continues: Adventure Cycling Seeks to Reconnect with Bikecentennial & TransAm Cyclists
Posted: April 28, 2015 Filed under: Cycling | Tags: Adventure Cycling Association, American Canoe Association, Bicycling, Cherry Hill, Cycling, Glacier National Park (U.S.), Missoula, Montana, National Park Foundation, National Park Service, National Public Lands Day, National Wildlife Federation, New Jersey, x, y, z Leave a comment
After 40 Years, the Ride Continues: Adventure Cycling Seeks to Reconnect with Bikecentennial & TransAm Cyclists
Adventure Cycling’s 40th anniversary celebration in 2016 will include events, tours, reunions, ’76 retro merchandise and more.
MISSOULA, MONTANA, April 22, 2015 —Adventure Cycling Association has been creating social networks since the launch of Bikecentennial in 1976. Now, the largest cycling membership organization in North America wants to reconnect with those involved in Bikecentennial and cyclists who have ridden all or part of the TransAmerica Trail between 1976 and today. In preparation for a yearlong 40th anniversary celebration in 2016, Adventure Cycling invites Bikecentennial and TransAm cyclists to fill out an online form to share their contact and trip information. Anyone interested in participating or volunteering in the 40th anniversary events can also fill out the online form.
“We are looking to reconnect and honor the contributions made by our original Bikecentennial family and those who have cycled our first route, the TransAmerica Bicycle Trail.” stated Eva Dunn-Froebig, events and outreach coordinator for Adventure Cycling. “We are also excited to engage present and future generations with a great lineup of events open to people of all ages.”
Adventure Cycling was founded as Bikecentennial, a 4,250-mile TransAmerican bicycle ride in the summer of 1976, with over 4,100 participants. Today, Adventure Cycling has over 48,000 members, guided tours, an award-winning magazine, 44,673 miles of bicycle routes, an online store, and bicycle travel advocacy programs.
In addition to reconnecting with TranAm and Bikecentennial 76 cyclists, Adventure Cycling is looking to engage anyone who is interested in celebrating 40 years of bike travel with family-friendly events, special tours, retro merchandise, and more. Those interested can fill out the online form.
The 40th anniversary will include The Montana Bicycle Celebration, July 15 – 17, 2016 in Missoula, Montana—home of Adventure Cycling’s headquarters—and will bring together bike travelers from all over the world for celebratory Bikecentennial reunions and parties with inspirational speakers, and music, art and film. Organized bike rides throughout the weekend will showcase Missoula’s trail system including the completed 50-mile Bitterroot Trail south of Missoula. On the same weekend, Tour of Montana will host professional bike races, an expo, and a Gran Fondo.
Two new annual events, set to kick off in 2016, will inspire a bike travel movement throughout North America. National Bike Travel Weekend, June 3 – 5, 2016, will motivate bike travelers from all over North America to go on bike overnights through a festive online community. Adventure Cycling will provide do-it-yourself resources and an interactive map that will connect bike travelers during what will be the most prolific weekend of bike travel in North America. Bike to Your National Park Day on September 24, 2016 will celebrate the National Park Service’s centennial, National Public Lands Day, and Adventure Cycling’s 40th anniversary by promoting bike travel to and within national parks, state parks, and other recreational areas.
In honor of the 40th anniversary, in 2016, Adventure Cycling will offer extra TransAmerica Trail tours and other special epic tours, including on Bicycle Route 66, the Underground Railroad and the Great Divide. Sign-ups will be available on the Adventure Cycling website in the summer of 2015.
For those who cannot attend Adventure Cycling’s events or tours and want to plan their own reunion or ride, Adventure Cycling will provide online tools and resources to help plan Do-It-Yourself Reunions and Celebrations throughout 2016.
Adventure Cycling will also have retro-themed jerseys and merchandise available in the Cyclosource store throughout 2016. Other Bikecentennial projects include a beautiful, large format, picture-laden book about the TransAmerican Trail co-authored by Greg Siple, a co-founder of Adventure Cycling, and longtime Adventure Cycling staff member Mac McCoy; special bike giveaways; a commemorative beer; an online project that will recognize 40 bicyclists who have made significant contributions to the bike travel community; and an archival project with Story Corps to preserve the fulfilling and transformative memories of Bikecentennial cyclists and other bike adventurers.
“Bikecentennial started with a vision to encourage more people to experience bike travel and was fueled by the passion of a small group of dedicated staff and volunteers,” Siple says. “Bikecentennial 76 continues to inspire bike travelers of all ages and backgrounds 40 years later.”
Adventure Cycling invites the public to share photos, stories and words of wisdom from Bikecentennial, now, and any time in between at adventurecycling.tumblr.com.
For more information about Adventure Cycling’s 40th anniversary visit adventurecycling.org/40th.
A federal district court in Massachusetts upholds indemnification clause in a release.
Posted: April 27, 2015 Filed under: Massachusetts, Racing, Racing, Release (pre-injury contract not to sue), Triathlon | Tags: #race, Conscious Pain and Suffering, Duty to Warn, Estate, Indemnification, Negligent infliction of emotional distress, Personal Representative, Release, swimming, Triathlon, USA Triathlon, Waiver, Wrongful Death Leave a commentAll prior decisions have found that indemnification clauses in releases are not effective because it creates a conflict of interest within a family.
Angelo, v. USA Triathlon, 2014 U.S. Dist. LEXIS 131759
State: Massachusetts, United States District Court for the District of Massachusetts
Plaintiff: Cheryl Angelo, Personal Representative of the Estate of Richard Angelo,
Defendant: USA Triathlon
Plaintiff Claims: wrongful death, conscious pain and suffering, and negligent infliction of emotional distress
Defendant Defenses: Release and indemnification
Holding: not a final ruling
Year: 2014
I cannot determine if this case is over, however, the ruling is quite interesting and worth the risk of having to reverse this post.
The deceased joined the USA Triathlon (USAT) and in doing so signed a Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement. The deceased signed the document electronically. The deceased registered online for the National Age Group Championship in Vermont and again signed an “indemnity agreement” electronically. The two releases were identical.
The deceased died during the triathlon during the swim portion of the event. The deceased wife and personal representative of his estate brought this lawsuit in Federal District Court of Massachusetts.
The defendant USAT filed a motion for summary judgment, and this review is of the court’s ruling on that motion.
Analysis: making sense of the law based on these facts.
The motion for Summary Judgment was a partial motion on the counterclaim of the defendant based on the indemnity provisions in the two releases.
The court refers to the releases as “the indemnity agreements” which create a lot of confusion when reading the decision. The court first examined Massachusetts law relating to releases.
Under Massachusetts law, “[c]ontracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished.”
And then Massachusetts law on indemnity agreements.
Indemnity contracts that exempt a party from liability arising from their own ordinary negligence are not illegal. Further, contracts of indemnity can survive a decedent’s death and become an obligation of a decedent’s estate.
The language in the indemnification agreement was deemed by the court to be broad. The plaintiff argued the release was ambiguous as to who the release applied to. However, the court disagreed finding the release:
…clearly states that “I . . . agree to Indemnify, Defend and Hold Harmless” the released parties from liability “of any kind or nature . . . which may arise out of, result from, or relate to my participation in the Event.” Both the scope of the indemnity and the party bound by the agreement are clear and unambiguous.
The court then looked at how the release affected the specific claims of the plaintiff. The first count in the complaint was based on wrongful death, and the third was for wrongful death because of gross negligence of the defendant and included a claim for punitive damages.
The court looked at the damages that might be recoverable under these two theories because how the money was identified would determine if the money could be recovered on the indemnification claim.
That means the indemnification claim is against the person who signed the release or in this case their estate. The deceased could not pledge his wife’s assets to the indemnification because he could not sign for her, only his assets. “The decedent, while having authority to bind his estate, lacked authority to bind his surviving family members who did not sign the indemnity agreements and are not bound thereby.” The wrongful-death claim money is not an asset of the state; it is held by the personal representative on behalf of the heirs to the estate. So any money recovered under the wrongful-death statute or claim would not be subject to indemnification.
That is because “w]rongful death is not, in any traditional sense, a claim of the decedent.”
Accordingly, to satisfy the indemnity obligation, USAT may look to the assets of the decedent’s estate. (noting that a contract of indemnity agreed to by a decedent became an obligation of the decedent’s estate). USAT may not, however, look to any recovery on the wrongful death claim for satisfaction, as that recovery would be held in trust for the statutory beneficiaries and would not become an asset of the estate.
Then the court looked to see if the release would stop gross negligence claims. The court found no “controlling authority” on this issue, but held that it would not stop a claim for gross negligence based on the law of appellate decisions in the state.
In the closely analogous context of releases, the Massachusetts Appeals Court has held that, for reasons of public policy, a release would not be enforced to exempt a party from liability for grossly negligent conduct, though otherwise effective against ordinary negligence.
So the court found the release would stop the negligence claims and dismissed count one of the complaints and found that the release would not stop a claim for gross negligence and allowed count three to proceed.
However, the court also stated the motion was denied if the indemnification provision in the release attempted to be satisfied from the wrongful-death proceeds. Alternatively, the indemnification clause would apply to any money received for any successful claim other than wrongful death.
The second claim was for conscious pain and suffering of the decedent. Under Massachusetts law, conscious pain and suffering is a claim of the decedent, brought on behalf of the decedent by his estate. The release barred this claim and would allow the defendant to be indemnified by it. “By executing the two agreements, the decedent both released his claim of conscious pain and suffering caused by USAT’s negligence and indemnified USAT for any losses occasioned by such a claim.”
Putting aside the release for a moment, if the personal representative of the decedent received any recovery for his conscious suffering, USAT would be able to reach that recovery to satisfy the decedent’s indemnity obligation. Thus, USAT’s Motion for Summary Judgment is ALLOWED insofar as the claim for conscious suffering caused by USAT’s negligence was both released and indemnified.
The fourth count was for Negligent Infliction of Emotional Distress, which was inflicted on the wife of the decedent who was present at the race. The original complaint was only brought in the name of the personal representative, not her name individually. Consequently, the court agreed to allow the plaintiff to amend her complaint to bring this claim.
However, the court also found that any money received by the plaintiff on her claim for negligent infliction of emotional distress would also be subject to the indemnification claims of the defendant.
The indemnity language in those agreements is broad enough to reach a claim for negligent infliction of emotional distress as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnification on any losses resulting from such a claim.
However, the indemnification claim was only applicable to any money paid on this claim to the decedent, not the decedent’s wife. Again, the decedent could not pledge his wife’s assets by his signature.
The court looked at the defendant’s claim that the defense costs of the action should be paid based on the indemnification clause. The court agreed with the defendant’s argument for the costs too.
The language of the indemnity agreements does clearly obligate the decedent’s estate to make USAT whole on these losses. As with the claims discussed above, USAT may seek indemnity from the decedent’s estate for their defense costs, which predate this Motion as well as prospective costs to the extent that the plaintiff chooses to proceed on at least one claim, which is subject to indemnification.
So any money the lawsuit received that was payable to the estate was subject to the indemnification clause in the release, and that money could be received based on money paid or the cost of defending the lawsuit and recovering the money. Money held in trust, based on a wrongful-death claim was not subject to indemnification.
The release blocked all claims of the decedent and any claims of the wife that were derivative of the decedent’s claims.
Effectively, the case is over because there is no way to get any money, that would not be subject to indemnification. Then any other asset of the estate would be subject to the indemnification due to the cost of defending the lawsuit.
So Now What?
The reasoning for the motion for summary judgment is simple. If the defendant is able to act on the indemnification, any money received by the plaintiff will just turn around and go back to the defendant. Consequently, the damages are reduced to about zero and the chances of settling skyrocket.
However, the importance of the motion is the court upheld the indemnification clause! Normally courts through these out as being a violation of the doctrine or parental immunity, or because they create a conflict of interest between members of a family.
I have never seen an indemnification clause upheld in a recreational release.
See Indemnification agreements? What are you signing?
 |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Author: Outdoor Recreation Insurance, Risk Management and Law
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Golden Bike Shop: Bike Junkies Fest Sunday May 3 & Beer
Posted: April 26, 2015 Filed under: Cycling, Mountain Biking | Tags: Bike Junkies Fest, Free Beer, Golden Bike Shop, Mountain Bikes, Mountain biking, x, y, z Leave a comment
River Runner’s Hall of Fame May 15th, Green River Utah
Posted: April 25, 2015 Filed under: Paddlesports | Tags: River Guide, River Runners, Whitewater Rafting, x, y, z 1 Comment
Trek Recalls Bicycles Equipped with Front Disc Brakes to Replace Quick Release Lever Due to Crash Hazard
Posted: April 24, 2015 Filed under: Cycling, Mountain Biking | Tags: Consumer Product Safety Council, CPSC, Disc Brake, Recall, Skewer, Trek Leave a commentThis is going to be the first of many from bicycle and wheel manufacturers.
Name of Product: Trek bicycles equipped with front disc brakes
Hazard: An open quick release lever on the bicycle’s front wheel hub can come into contact with the front disc brake assembly, causing the front wheel to come to a sudden stop or separate from the bicycle, posing a risk of injury to the rider.
Remedy: Replace
Consumers should stop using the bicycles immediately and contact an authorized Trek retailer for free installation of a new quick release on the front wheel. Trek will provide each owner who participates in the recall with a $20 coupon that is redeemable by December 31, 2015 toward any Bontrager merchandise. (The coupon has no cash value.)
Consumer Contact: Trek at (800) 373-4594 from 8 a.m. to 6 p.m. CT Monday through Friday, or online at http://www.trekbikes.com and click on Safety & Recalls at the bottom of the page for more information.
Recall Details
Units: About 900,000 in the U.S. and 98,000 in Canada
Description: This recall involves all models of Trek bicycles from model years 2000 through 2015 equipped with front disc brakes and a black or silver quick release lever on the front wheel hub that opens far enough to contact the disc brake (see Figures 1 and 2). Bicycles with front quick release levers that do not open a full 180 degrees from the closed position, are not included in this recall.
Incidents/Injuries: Trek reports three incidents, all including injuries. One incident resulted in quadriplegia. One incident resulted in facial injuries. One incident resulted in a fractured wrist.
Sold at: Bicycle stores nationwide from about September 1999 through April 2015 for between $480 and $1,650.
Importer: Trek Bicycle Corporation, of Waterloo, Wis.
Manufactured in: Taiwan and China (bicycles)
Manufactured in: Taiwan (quick release)
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
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#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, Recall, CPSC, Consumer Product Safety Council, Trek, Skewer, Disc Brake,
Gorsuch Recalls ERTLRENZ Ski Boot Heat Liners Due to Fire Hazard Recall Summary
Posted: April 24, 2015 Filed under: Skiing / Snow Boarding | Tags: Consumer Product Safety Council, CPSC, Ertlrenz Trim Heat. Foam Heat ski boot liners, Gorsuch, Gorsuch Boot Heaters, Gorsuch Ski Boot Heaters, Heaters, Liners, Ski boot, Warmers Leave a commentName of Product: Ertlrenz Trim Heat and Foam Heat ski boot liners
Hazard: Liner can overheat when charging, posing a fire hazard.
Remedy: Repair or replace
Consumers should immediately stop using the heat liners and return the product with accessories (charger/remote control) to Gorsuch LTD or a Gorsuch store for repair or replacement.
Consumer Contact: Call Gorsuch Ltd toll free at (844) 451-8650 between 9 a.m. and 5 p.m. ET Monday through Friday, or visit http://www.gorsuch.com and click on Recall Heat Liners for more information.
Units: About 300
Description: The ERTLRENZ Trim Heat and Foam Heat are handmade, customized, black inner heat liners for ski boots. Every product is accompanied by a charger and a remote control for the heating system. There also is an accompanying ERTLRENZ instruction manual supplied with the heat liners at the time of purchase.
Sold at: Gorsuch Ltd. stores in Aspen, Vail and Beaver Creek from November 2011 through March 2015 for about $690.
Incidents/Injuries: Gorsuch received three reports of the heat liners smoldering during the charging process. No injuries have been reported.
Importer: Gorsuch Ltd., of Avon, Colo.
Manufactured in: Germany and Austria
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
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#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, Recall, CPSC, Consumer Product Safety Council, Ski Boot, Warmers, Liners, Heaters, Gorsuch, Gorsuch Boot Heaters, Gorsuch Ski Boot Heaters, Ertlrenz Trim Heat. Foam Heat ski boot liners,
Recreation Law 
Comments Needed to Stop Development at the Grand Canyon South Rim & Loss of more Water
Posted: May 12, 2015 | Author: Recreation Law | Filed under: Arizona, Paddlesports, Rivers and Waterways | Tags: Comment Period, Development, Grand Canyon, x, y, z | Leave a commentHow to comment
The scoping process for the town of Tusayan’s roadway and utility easement application will run through June 2. To submit a comment online visit comments-southwestern-kaibab with “Tusayan Roadway Easements” in the subject line.
The Forest Service also will hold three public scoping meetings:
or
you can write to:
Michael Williams, Forest Supervisor
Kaibab National Forest
Williams Ranger District
742 S Clover RD
Williams, AZ 86046
Your own comments are usually better than a talking points form letter. I would suggest you express your concerns about impacts on the GC National Park, including but not limited to night sky, water, wildlife, traffic. You might question the need for such a project as well as better definitions of the scope of the project beyond the easements.
The cumulative effects should be considered. Irreparable and irreversible damage could be done with out a complete and thorough EIS. Insist on one.
Naturally, you will want to comment on the national and international significance of the Grand Canyon Canyon .
Your comments thoughts and frustrations will not be considered if you do not make them formally known.
For those in the area, try to attend one of the public scoping meetings. If you do attend and do comment at more than one meeting, do not repeat yourself, alter your presentation.
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