Even hikers sue for their injuries.

Although I would guess this is a subrogation claim because the plaintiff is now a quadriplegic.

Citation: Kalter, et al., v. Grand Circle Travel, et al., 631 F.Supp.2d 1253 (C.D.Cal. 2009)

State: California, United States District Court, C.D. California

Plaintiff: Jill and Scott Kalter

Defendant: Grand Circle Travel

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: for the defendant

Year: 2009

Summary

The plaintiff fell trying to climb wet stone steps in Machu Pichu. She sued the travel agency she hired to take her there and lost. Climbing wet stones is an open and obvious risk and the doctrine of assumption of the risk prevented the plaintiff’s recovery.

Facts

Grand Circle is a tour operator that arranges vacation packages to destinations around the world. Jill Kalter (” Kalter” ) purchased a Grand Circle ” Amazon River Cruise & Rain Forest” tour, along with an optional post-trip extension to visit the Inca ruins at Machu Picchu. Prior to departing on her trip, Kalter received from Grand Circle an itinerary of the Machu Picchu trip extension (the ” Itinerary” ), which stated that her group would visit Machu Picchu on two consecutive days, and that on the second day she would have the option of remaining with a guide or exploring the ruins on her own. The Itinerary also stated: ” [t]hese Inca sites are not like ancient squares in Europe; they are spread out over steep hillsides with large stone steps and uneven surfaces…. In the ruins, there are no handrails some places where you might like one.” Kalter received and read the itinerary prior to departing on her trip. In addition, the tour guide, Jesus Cardenas, distributed a map of Machu Picchu to the tour participants prior to entering the park. The map includes a section entitled ” Visit Regulations,” which states, among other things, ” Do not climb the walls,” and ” Follow only designated routes according to arrows.”

It was raining on both days Kalter was at Machu Picchu. The first day, she remained with Cardenas and walked on the stone paths The second day, she opted to explore on her own, and ventured off the established paths. states that he gave verbal warnings to the group to use caution due to wet and slippery conditions. Kalter states that she did not hear Cardenas give these warnings, but that she ” has no reason to doubt” that he did so. Kalter went to an area known as the ” terraces,” filled with vertical rock walls that contain small stone protrusions called ” floating steps.” Some of these terraces are along paths color-coded by length, and no paths at Machu Picchu require traversing floating steps. Approximately one hour after venturing out on her own, Kalter became lost and disoriented, and was concerned about connecting with her group so that she would not miss the train. In an effort to get a better view of where she was, Kalter stepped up onto the bottom two floating steps of a vertical wall. Kalter did not think this was a dangerous act. As a result, Kalter fell and suffered serious injuries, and is now a quadriplegic.

The defendant moved for summary judgment, which was granted.

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

The defense raised by the plaintiff’s was assumption of the risk.

The doctrine of primary assumption of the risk applies where ” the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” To determine if primary assumption of the risk applies, courts look to the nature of the activity, and the parties’ relationship to that activity. The question turns on whether the plaintiff’s injury is within the ” inherent” risk of the activity. A risk is inherent to an activity if its elimination would chill vigorous participation in the activity and thereby alter the fundamental nature of the activity. Accordingly, ” the doctrine of primary assumption of risk applies where ‘ conditions or conduct that otherwise might be viewed as dangerous often are an integral part’ of the activity itself.” When primary assumption of the risk applies, a defendant is only liable for a plaintiff’s injuries ” if the defendant ‘ engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity’ or increases the inherent risk involved in the activity.”

However…

If, on the other hand, ” the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty,” the doctrine of secondary assumption of the risk applies, which is analyzed under comparative fault principles.

The court found that inherent in the activity of hiking on uneven terrain among ancient ruins is the risk of falling and becoming injured.

The court then looked at the information the plaintiff received prior to going to Machu Picchu.

The Itinerary Kalter received prior to the tour informed her that the Inca sites at Machu Picchu ” are spread out over steep hillsides with large stone steps and uneven surfaces.” (Itinerary 65.) Eliminating tour participants’ access to these large stone steps and uneven surfaces in an attempt to protect against the risk of falling would eliminate the ability to view the Inca sites, and thus ” alter the fundamental nature of the activity.”

…Kalter did not fall while engaging in the activities condoned by Defendants-she chose to leave the established stone pathway, and further endangered herself by stepping onto the floating steps. Accordingly, the Court finds that primary assumption of the risk applies to Kalter’s injuries from falling while hiking at Machu Picchu.

The defendant would be liable for the plaintiff’s injuries only if the defendant’s conduct was so reckless as to be totally outside the range of the ordinary activity involved in hiking among ancient ruins or uneven terrain.

The plaintiff argued that the defendant was liable for encouraging the plaintiff to roam the ruins on her own.

…Grand Circle’s act of allowing Kalter to explore on her own areas she had not been to with Cardenas was not ” so reckless as to be totally outside the range of ordinary activity” involved in the excursion, nor did it increase the inherent risk of falling and sustaining injury involved in hiking in this region.

The next issue was whether or not the defendant had a duty to warn the plaintiff of the dangers equally obvious to both the plaintiff and others. The plaintiff admitted it was raining and admitted the steps were wet. The map she received told her not to climb the walls.

The court found the risks of the floating steps the plaintiff climbed leading to her fall were open and obvious, and she assumed the risk when climbing on them. “Moreover, numerous courts have held that tour companies and guides have no duty to warn of obvious dangers their customer’s encounter on trips.” Consequently, the defendant had no duty to warn the plaintiff of the dangers of climbing on the steps that lead to her fall.

The court held for the defendant.

As explained above, neither Grand Circle nor Cardenas are liable for Kalter’s injuries because the doctrine of primary assumption of the risk applies, and because neither had a duty to warn her of the open and obvious danger of falling while climbing wet stone steps protruding from a vertical wall.

So Now What?

The plaintiff was a quadriplegic, so I suspect here health or disability insurance carrier started the lawsuit to recover the paid on behalf of the plaintiff. Alternatively, the plaintiff could have started the litigation because so much money was involved if they won that it might have been a lottery.

However the simple fact the plaintiff fell while on her own exploring, a ruin in Peru does not give rise to liability in this case.

What keeps coming to the surface in cases over the past couple of years is the defense of assumption of the risk. Looking at this from a different perspective. The more you educate your client, the less likely you will be sued and the less likely you will lose that lawsuit.

I’ve been saying that for more than thirty years, and it seems to come back with greater defenses and benefits for both the guests and the outfitters.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

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New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry

Foster, et al., v. Kosseff, et al., 2013 U.S. Dist. LEXIS 5380

It is an industry, and it is not based on dreams or what your think it should be: Welcome to the real world

Simply, someone went into a climbing wall at a university, was paid to review the risk-management issues, created a report and is now being sued because of it.

The plaintiff was a student and employee of Whitman College of Spokane Washington. The plaintiff worked at the climbing wall as an instructor. She was injured when she fell 32 feet from the climbing wall. (Some of this information I got from a news article Student crushes vertebrae in climbing wall fall.) The court opinion says she was training on the wall. The article says she was cleaning holds when she fell.

She fell because a shut failed to work properly. The decision said the plaintiff failed to use the shut properly. The manufacturer of the Shut was not included in the lawsuit.

Alex Kosseff and Adventure Safety International, LLC, (ASI) were named as defendants. ASI had been hired by the college to perform a “risk management audit.” A document was prepared by ASI, which was titled Whitman College Outdoor Programs Draft Risk Management Audit. One of the major arguments was the report was labeled a draft report.

ASI, according to the article, was also hired by the college after the accident to investigate the complaint.

The plaintiff sued, and ASI filed an answer to the complaint. This motion was then filed moving to have ASI dismissed from the suit.

The court found that the plaintiff could continue her claim against the defendant because she was a third party beneficiary of the agreement between the college and the defendant or because as an employee of the college at the time of the accident, she was part of the agreement. Plaintiff would not have a claim against the defendant if she was an incidental beneficiary of the contract.

The question then “depends upon the extent to which ASI agreed to undertake the risk management audit for the benefit of the college’s employees and students rather than for the benefit the college itself.”

So if she was an employee of college at the time of the accident, is the basis for this claim a worker’s compensation subrogation claim?

Summary of the case

The basis of ASI’s motion was it did not owe a duty to the plaintiff.

The crux of ASI’s argument is that it did not owe Plaintiff a duty of care because the dangerous condition which caused her accident was simply “outside the scope of the risk-management audit” that it agreed to perform. Specifically, ASI argues that the scope of the audit was limited to “gain[ing] a general understanding of [Whitman College’s] risk management practices,” and that it did not “guarantee that future operations will be free of safety incidents.”

ASI is saying that they were working for the college, not the plaintiff. The court did not buy the argument.

The court held the audit report was not the only reason for its decision and was not necessarily required by the plaintiff to prove her case. That issue, whether the defendant owed the plaintiff a duty of care.

The court looked at the plaintiff as the intended recipient, the third party beneficiary, of the work done by ASI. I also think the court could have held that the plaintiff was the intended beneficiary of the report because she was an employee of the College.

If you are hired to work for a college and the work, you are performing is for the benefit of the patrons of the college, you are possibly liable to the students.

This was just a preliminary motion, there is a lot of litigation and trial left in this case, and ASI may eventually be dismissed. However, ASI will have to find better arguments.

So Now What?

1.      If you are performing this type of work, you can be sued. I’ve known it for years, and I’m amazed the number of people who are astounded by this decision.

2.    If you do this type of work, you need insurance to cover your liability.

3.    If you do this type of work, based on this decision, you can’t miss anything.

4.    If you do this type of work you better not be stupid enough to call what you do an audit.

Remember that marketing makes promises that risk management has to pay for. Audit sounded like a cool word to use to describe walking into a program and looking around. However, audit has a much more definitive definition. Wikipedia uses the following words to define “audit:” thoroughly examines and reasonable assurance that the statements are free from material error.

5.     Why are you doing this work? Do you have the credentials and the experience to make these decisions? What is your engineering degree? What ASTM committees that are involved in the creation of the equipment and facilities that you audit are you on? What equipment are you taking with you to perform the appropriate tests?

And this is not the only way that a third party can be brought into a suit like this. They misrepresented their abilities (Which I believe every single one of them is doing) which can lead to liability.

You just can’t say I’ve done it for 10 years. Therefore, I can tell you how to do it. You have to study and inspect and test. You have to take the climbing wall apart and see if the structure is built correctly. Are the bolts the proper size and strength and not just was some pseudo organization says but what the ASTM says it should be? What is the force the climbing wall can sustain? Is all the equipment in the chain where force will be applied, built and maintained to sustain that force?

This is a bad case, but not one that is unexpected just took longer to occur then I would have guessed.

If you do have an accident, you can’t hire the person who did your inspect to do the accident inspection. Besides that, inspection is not protected and is discoverable by the plaintiff.

The three largest payouts in the OR industry occurred after third party investigators were hired to determine what happened. In one, the plaintiffs took the investigators report and turned it into the complaint.

If you have a wall or run a program hire professional. Not people you may meet at a show, but people with real credentials after their name.

If you think, you still want to keep doing this, make sure your agreement with the program defines what you can and cannot do, and that you are not liable for the programs’ failure to follow your recommendations.

 

Plaintiff: Stephanie Foster

 

Defendant: Alex Kosseff, et al.

 

Plaintiff Claims: Defendant was negligent in failing to discover the risk posed by the Super Shut anchor.

 

Defendant Defenses: Defendant did not owe the plaintiff a duty of care.

 

Holding: Defendant’s motion to dismiss was denied.

 

What do you think? Leave a comment.

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

Copyright 2013 Recreation Law (720) Edit Law

Email: blog@rec-law.us

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                  Jim Moss

#RecreationLaw, #@RecreationLaw, #Cycling. Law #Fitness. Law, #Ski. Law, #Outside. Law, #RecreationLaw, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Whitman College, Alex Kosseff, Adventure Safety International, LLC’s, Stephanie Foster, Climbing Wall, Super Shut, Fixe Hardware,

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Contributers Wanted! For a New Book on Adventure Education & Travel

CONTRIBUTORS WANTED! For a New Book on Adventure Education & Travel

What does adventure education & travel look like now and how will it look in the future?
Edited by Dr Rosemary Black, Charles Sturt University, Australia; Dr Kelly Bricker, University of Utah, USA

Readership: Undergraduate students and researchers in adventure education, adventure tourism, adventure therapy, outdoor recreation, and commercial recreation and professionals in the adventure education and adventure tourism industries.

Description: This new book will focus primarily on preparing undergraduate students for employment in the adventure profession as we move into the 21st century. This diverse profession will be explored in this new volume covering past and current trends, issues and programs, and future opportunities and challenges, as well as hot topics such as climate change, risk management, technology, sustainability and conservation.

Writers wanted for Chapters and Case Studies: Chapters 6-7,000 words and Case Studies at 2-3,000 words. We need writers for these topics:
Chapters
• Chapter on Adventure program design, delivery & evaluation
• Chapter on Outdoor recreation trends
• Chapter on operating a commercial adventure business
Case Studies
• Case studies on corporate adventures
• Case studies on communication, group dynamics & group management
• Regional case studies on adventure – Asia-Pacific, N. America, UK & Europe • Case studies on adventure on public lands/protected areas
• Case studies on artificial adventure venues
• Case studies on adventure programs for special needs groups
• Case studies on ethical issues in adventure
• Case studies on the use of technology in adventure
• Case studies on adventure program design, delivery & evaluation
• Case studies on iconic locations where adventure occurs

Interested in contributing to the book?

If you are interested in contributing to the book please contact Kelly Bricker – email kelly.bricker by 30 November 2012.

Final Chapters and Case Studies need to be submitted to the editors by 15 February 2013. Publisher: Venture Publishing Inc. Venture Publishing, Inc., 1999 Cato Ave, State College, PA 16801, USA. http://www.venturepublish.com/

Kelly S. Bricker
Associate Professor, Department of Parks, Recreation, and Tourism
Sustainable Tourism Management
The International Ecotourism Society, Chair
250 South 1850 East, Room 200
Salt Lake City, Utah 84112-0920
Office: 801.585.6503
Email: kelly.bricker

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In this cycle race case, the release was void by state law, but could still be used to prove assumption of the risk.

Ganz vs. United States Cycling Federation, 1994 Mont. Dist. LEXIS 756

At trial it is too late to find out that the release you had everyone sign has no value.

This is a motion hearing in Federal District Court for the great Western Stage Race held in Missoula. Montana by statute does not allow the use of a release. See States that do not Support the Use of a Release. The plaintiff was attempting to have two issues precluded from the trail:

·        The fact the defendant was a non-profit.

·        The fact the plaintiff signed  a release which is void under Montana’s law.

To do that, you file a motion in limine. A motion in limine argues before the judge that because of a statute or the laws of evidence something the other side is going to try to say or introduce as evidence should be excluded. See Why accident reports can come back to haunt youfor more on motions in limine.

The facts that gave rise to the case are the plaintiff was a competitor in the bicycle race. During the race, a pedestrian darted out in front of him and caused him to crash. He was claiming, “alleges negligence on the part of the Defendants for failure to create, establish, follow, and/or enforce appropriate safety standards on the race course.”

The first issue, the non-profit status of the defendant was quickly granted. Because most states have statutes, which state a non-profit is the same as a for-profit corporation, the issue of the defendant being a non-profit would only prejudice the jury.

The second issue, the release is of more interest. Pursuant to Montana’s law, a release is void and against public policy.

M.C.A. § 28-2-702  Contracts that violate policy of law — exemption from responsibility.

All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

So the release signed by the plaintiff in this case could not be used as a release. The plaintiff’s motion in limine was to exclude the release for any purpose; the jury would never know a release was signed.

So?

The court held the release could be used but only to the extent to show the portion of the release which showed that he was aware of the risks of the race.

The mention of the release form for the purpose of proving that no liability exists is prohibited.  However, the Defendants should be allowed to show that Mr. Ganz [the plaintiff] signed that portion of the release which shows that he was aware of the dangers on the race course, without actually showing the release in its entirety to the jury.

Dependent upon how the release was written and the statement of the risks in the release, this could be a powerful document showing the plaintiff knew of and assumed the risks.

So Now What?

Make sure your release is written to include the risks of the activity or program. There are several reasons for doing this.

·        Guests who have no clue will have a better time if they understand the risks.

·        Guests who read about the risks have a better understanding of the risks and decided if this is the type of opportunity they want to take.

·        If your release is thrown out, you can still use the release as proof the plaintiff assumed the risk.

You can’t write all the risks into a release. However, you can write in the following:

1.      Those injuries that are common to the activity or program.

2.    Those injuries that can cause permanent injury or death.

3.    Those risks which are different in your activity from the normal or competitive activities.

The second group is easy to identify. If it is rock climbing, it is falling or having something fall on you resulting in permanent injury or death. In paddlesports it is drowning, hypothermia, or a “near-drowning” resulting in brain injury.

The first is also easy. Look at every injury you have ever seen in your activity. Injuries from falling on the hike to the base of the climb or falling down carrying a boat to the river. After lunch on the river, people sit on a hot raft getting a burn or rope burn while belaying. Those injuries that are not life threatening but occur regularly and deplete your stock of band aids.

The third category is a little harder. How is your program or activity different from the rest of the people in your industry. If the majority of climbing walls have padding on the floor, and yours does not you should identify this as a risk. In cycling, you need to identify if you have a closed course, a race course without cars on it is critical for participants to know.

As always, you have to have your release created by someone who understands your risks, your sport your activity and knows how to write a release.

What do you think? Leave a comment.

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Colorado Bicycle Summit February 11 and 12, 2013

The powers that be in the cycling community of Colorado will be meeting to keep moving cycling forward

Colorado Bicycle Summit Dates Announced

Mark Your Calendars!

The 2013 Colorado Bicycle Summit will take place Monday, February 11, and Tuesday, February 12, in downtown Denver. The first day of the summit will include keynote speakers, breakout sessions and an industry happy hour. Monday’s session will be held at a new venue, The Embassy Suites, which is easily accessible by bike, bus or light rail. On Tuesday, we will take our collective voice to the Colorado legislature at the State Capitol. More details and registration information will be coming soon!

To find out more about the Summit contact Bicycle Colorado.

Bicycle Colorado

1525 Market Street, Suite 100

Denver, CO 80202-1661

Phone: (303) 417-1544

Email:  info@BicycleColorado.org

While you are at it, Join!

What do you think? Leave a comment.

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If any of your lawyers who are members of the ABA are so inclined

ABA Legal Blog Nominations are open

You know, just sort of, if you wanted to nominate www.recreation-law.com for an ABA legal blog nomination you could go here……

The name of the site is: Blawg 100 Amici

What do you think? Leave a comment.

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Delaware decision upholds a release signed by a parent against a minor’s claims

Hong v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

One more state recognizes the need to allow people to decide to waive a claim to allow their children to participate.

In this case, the mother of the injured child filed a claim after the child was hurt on playground equipment at a health club. The child was three years old when he fell and broke his arm.

The release was contained in the Membership Application and Agreement. Both parents signed the agreement and listed their three children on the agreement as members of the club.

The plaintiffs sued for negligence, which was not clearly defined in the case or as set forth by the court in the complaint.

Summary of the case

Delaware requires that the language in a release be crystal clear and unequivocal. The parties to the release must contemplate a release when they make the agreement. The crystal clear and unequivocal language is met if the contract provisions include language “specifically referring to the negligence of the protected party.” The court in reviewing the release stated:

Here, Hong signed a comprehensive waiver of liability and release in connection with her Membership Agreement that expressly stated that she (and all others on her membership) assumed the risk of “any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises,” including the use of “any equipment in the facility” and participation “in any activity, class, program, instruction, or any event sponsored by HAC.”

HAC is the acronym for the defendant health club, Hockessin Athletic Club.

The plaintiff argued that the release only applied to activities “sponsored” by HAC such as classes, not just injuries from being there.

The court then looked at the complaint on its whole and found the complaint failed to allege any claim of negligence with specificity. Consequently, the court found the complaint also was to be dismissed because the complaint failed to state a claim.

So Now What?

Maybe this will place Delaware in the category of a state where a parent can sign away a minor’s right to sue. However, this is a decision of the trial court, and this case can still be appealed to the Delaware Supreme Court. If this case is not appealed, it may be the start.

So for the time being, you cannot rely on this case, and you probably can only rely on it if it is not appealed for the County of New Castle Delaware.

This case also points out the importance of making sure your release is written correctly. Here the court stated that a release must include the word negligence of the defendant or person to be protected.

What do you think? Leave a comment.

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Outdoor Retailer (and probably Interbike) new Badge Bar Codes can probably be read from your phone

The system is new so bring your paper copy until we know for sure

I was able to confirm today the possibility of paperless entry into the Nielsen Outdoor Shows Outdoor Retailer and Interbike. The system has not been fully tested yet so bring your paper copies of your badges until you know for sure.

This is pretty exciting with the possibility of dropping another layer of paper from the tradeshow industry.

Cool

What do you think? Leave a comment.

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Colorado Sees Skier Visits Recede for 2011/12 Season

FOR IMMEDIATE RELEASE

http://www.coloradoski.com/media/press-releases

A person without the use of his legs learning ...

(Photo credit: Wikipedia)

Colorado Sees Skier Visits Recede for 2011/12 Season

Bright Spots in Colorado Ski Country USA amid Lackluster Winter

Boulder, Colo.June 6, 2012 – Colorado Ski Country USA (CSCUSA) announced today at its 49th Annual Meeting, that its 22 member resorts hosted an estimated 6.16 million skier visits during the 2011-12 ski season. This represents a decrease of 11.4 percent, or approximately 790,000 skier visits, compared to last season, which was the fourth best season on record. Compared to the five year average, CSCUSA member resort skier visits are down 11.9 percent. The overall snow related decline interrupted the recovery resorts had been building since 2008/09.

In an indication of the extreme weather impacting Colorado resorts this season, Colorado’s western slope experienced its third driest and seventh warmest winter in records going back to 1895. Precipitation on the Western Slope this winter was 43 percent below average, and down every month of the winter. In Colorado overall, March 2012 was the driest in more than 100 years, and we experienced the second warmest March on record. President and CEO of Colorado Ski Country USA Melanie Mills noted, “Fortunately, seasons such as the one just ended have proved to be historically rare and the ski industry has exhibited a remarkable ability to bounce back after poor snow years in the past.”

Mills continued, “Much of the ski industry in the US was confronted with weather challenges last year, but several of our resorts bucked the national trend and showed signs of resilience during what was clearly an uninspiring winter.”

The diversity of ski resorts in Colorado saw some areas post increases and even records in visitation. Colorado Ski Country resorts also saw strength in both domestic and international destination visitors which helped soften the economic impacts to resort operators and resort communities of the overall decline in visitation.

Colorado is favorably positioned for rare dry spells given that resorts are at higher elevations where the air is dryer and colder, therefore allowing the snow to maintain consistency. Aided by colder temperatures favorable for snowmaking, resort snowmakers and slope groomers were able to maintain a quality snow surface throughout most of the season.

Momentum going into the season was strong after seeing an uptick in visitation last year, and economic conditions generally improved during the season. Abundant amounts of snow came in the fall, allowing some resorts to open earlier than planned, but the uncharacteristic precipitation deficit brought that momentum to a standstill. Snow came in the middle of the season and several resorts broke single day snowfall totals, but perception of an underperforming winter was already set in skiers’ minds. “We’ve had dry years in the past, and we’ll have dry years again,” Mills explained. “Not every year can be a record breaking year, and with nary a snowflake in what is normally our snowiest month in Colorado, season visitation numbers are disappointing, but not unexpected.”

CSCUSA resorts upheld their dedication to providing guests with a quality product and superior service which sets Colorado apart from other ski destinations, and keeps the state’s appeal as the premiere place for winter travelers. “Our resorts have so much to offer visitors that in some cases the world class skiing is just one of a menu of activities. And for many people, the season was more about being outside and spending time with friends and family taking in the beautiful outdoors and wonderful amenities of our resorts.”

With certain assumptions in place, statewide skier visits for Colorado are estimated at 11,010,584 million. This estimation shows Colorado being down 9.8 percent, or approximately 1,195,000 visits, compared to last season. On a national level, skier visits overall are down 15.7 percent with the Rocky Mountainregion seeing a decrease of 7.2 percent.

Skier carving a turn off piste

Skier carving a turn off piste (Photo credit: Wikipedia)

Skier visits are the metric used to track participation in skiing and snowboarding. A skier visit represents a person participating in the sport of skiing or snowboarding for any part of one day at a mountain resort.

These numbers are preliminary results and subject to final adjustments by CSCUSA members. The decision to release individual numbers is up to each individual resort.

 


Expert Witness Reports. Got one?

New ideas and service

I know talking about old lawsuits is a thrill, but I’m trying to track down some information. I’m trying to locate expert witness reports used in litigation against camps and other outdoor recreation businesses.  Reports used by the plaintiffs are my first priority but defendant expert reports are also of interest.

I have two reasons for doing this. The first is to track down different times when experts are being used who have been trained by the organization that the defendants are members of. Several OR member organizations have been training for their members. I doubt their intention is to train people who are then being hired as experts to sue their membership. However, it is happening.

This is sort of delicate (well as delicate as I can ever be). I don’t want to tear down any organization. I believe the OR organizations great that have done a lot of good and will continue to do so. At the same time, the standards issues need to be brought to light. The only way of doing that will be to show times when the organization information has been used to sue is members.

The other thing I am going to do is to scan the reports and keep them available.  It is always great to have former expert’s reports to refer to see if they have made a statement in a prior report that contradicts their statement or opinion in the latest report.  It’s something I’ve been doing for years for the rafting and mountaineering industry.

If you are interested and can email me an electronic copy of any  report you have or send me a copy. I would appreciate it.

What do you think? Leave a comment.

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Client dies, be banned from your occupation for five years.

Once you leave the US, you are no longer protected by US laws.

Two ski instructors are facing a five year ban from skiing and a fine for the death of a client in an Avalanche. The ski instructors had taken the client into a known danger zone where the client was caught and died.

See Prosecutor wants 5 year ban for ESF instructors

Dombai, general view of skiing routes from the...

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Architects, Engineers and Recreation, we need the first two, to be successful in the second

No, not to tear down the wilderness, I’m talking about what we build.

In the recreation industry, we build a lot of things that our customers use: Ropes courses, zip lines, climbing walls, raft frames, etc. I see a lot of these being built by owners or by contractors who are not the correctly licensed people for the jobs. If you have clients interacting with something, you built; you better have an engineer/architect approve the plans and the construction. You also may need to have the plans approved the structure approved by the appropriate city, county, or state licensing authority.

Additionally, you may be violating city, county or state laws if the work is not approved in advance by an architect or engineer and or built by a “licensed” person/contractor.

This is hard to write because the laws are usually local in nature, so there is no uniform way to look at the issues. In the general, I’ll use the term state to mean any government entity, city, county, municipal, tax district, state or federal agency.

It does not matter what letters or made-up name is behind a person’s name when they tell you they can build your wall/course/building. Each state law requires the person who approves it be licensed by the state to plan and make sure the works is done correctly. The actual builder can be anyone in most cases, although this varies by state law. But somewhere in the process a city, county or state requires the plans be created or approved by a licensed engineer or architect.

You may also have to make sure that the city; county or state code is met and approved as well as fire code.

Why pay the extra money? Because if something goes wrong, only that license can prove you are not intentional injuring people. Here is why.

·        The architect or engineer is going to be local; you can find him to have him or her testify on your behalf. You won’t be calling a number that is not being answered in another state.

·        The license is going to give you the first defense, rather than a liability.

·        If the licensed person did screw up, they have insurance to cover you rather than a general liability policy which has holes the insurance company can use to exit the lawsuit with its money in its pocket.

·        There is probably a law or regulation that requires it. If you violate this law and do not have the plans or construction approved by the appropriate people you are negligent per se. As such, you may not have a defense to the claim, including the release you use.

·        The licensed local person is going to know the laws and regulations you must meet. You should not have a government inspector show up later and close you down.

It might be a problem if you are first climbing wall/gym/ropes course the licensing bureau has ever seen. You may need to bring photographs, videos and other examples to show what you are doing.

You may also have to do the same if you are hiring a licensed contractor to explain to them what you are trying to accomplish.

Either way, in the long run, it is the only legal way to go.

It is better than jail time, by the way. Yes, if you have not correctly licensed your structure, you could be facing zoning issues and violation of other laws, which could result in fines. In this example, the owner of this tree house ended up in court. See Golden takes aim at elaborate treehouseor Fight over Golden tree house set to go to court.

What do you think? Leave a comment.

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Inc has a great article on fitness, CO2 reduction and employees

The article tells you how to encourage your employees to bike to work.

The article Get Your Employees Biking to Work is actually full of great information. The article not only talks about the reasons why you as an employer want to encourage your employees to bike but what your employees may want to ride their bikes to work.

Do Something

Read the article, follow the advice, and encourage your employees to ride their bikes to work.

Cover of "Biking to Work (The Chelsea Gre...

Cover via Amazon

Read the article: Get Your Employees Biking to Work

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Bicycling Magazine, May 2012: Safe for Any Speed

There is no government involvement in cycling (or any other) helmets

April 3, 2012

Peter Flax, Editor in Chief

Bicycling

400 South 10th Street

Emmaus, PA  18098

Via Email:      Bicycling@rodale.com

A bicycling helmet.

A bicycling helmet. (Photo credit: Wikipedia)

Re: Bicycling Magazine, May 2012: Safe for Any Speed

Dear Editor Flax:

Love your magazine; however your article Safe for Any Speed in the May 2012 edition incorrectly stated that bicycle helmets were controlled by government standards. No US government, state or federal or agency of a state or the federal government controls or has anything to do with standards for bicycle helmets.

The standards for Bicycle helmets are set by the ASTM International (formerly American Society for Testing and Material), Committee F08 on Sports Equipment and Facilities. Specifically Committee F08.53 on Headgear and Helmets (F1447-06 Standard Specification for Helmets Used in Recreational Bicycling or Roller Skating) is responsible for the standard and how the standard will be tested. For more information on this standard you can go to the ASTM and purchase the standard.

More importantly the standards are voluntary. No government, body, agency or board on a federal level requires any standard. Some state laws refer to the standards for cycling helmet laws.

Sincerely,

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Alaska statute on Parents right to sign away minors right to sue

TITLE 9.  CODE OF CIVIL PROCEDURE

The Alaska state seal.

Image via Wikipedia

CHAPTER 65.  ACTIONS, IMMUNITIES, DEFENSES, AND DUTIES

Go to the Alaska Code Archive Directory

Alaska Stat. § 09.65.292  (2012)

Sec. 09.65.292.  Parental waiver of child’s negligence claim against provider of sports or recreational activity

   (a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.

(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.

(c) In this section,

   (1) “child” means a minor who is not emancipated;

   (2) “parent” means

      (A) the child’s natural or adoptive parent;

      (B) the child’s guardian or other person appointed by the court to act on behalf of the child;

      (C) a representative of the Department of Health and Social Services if the child is in the legal custody of the state;

      (D) a person who has a valid power of attorney concerning the child; or

      (E) for a child not living with the child’s natural or adoptive parent, the child’s grandparent, aunt, uncle, sister, or brother who has reached the age of majority and with whom the child lives;

   (3) “provider” has the meaning given in AS 09.65.290;

   (4) “sports or recreational activity” has the meaning given in AS 09.65.290.

HISTORY: (§ 2 ch 67 SLA 2004)

NOTES: CROSS REFERENCES. –For findings and legislative intent statement applicable to the enactment of this section, see § 1, ch. 67, SLA 2004, in the 2004 Temporary and Special Acts.

EDITOR’S NOTES. –Section 3, ch. 67, SLA 2004 provides that this section applies “to acts or omissions that occur on or after September 14, 2004.”

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

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Research shows beacons have issues with multivictim searches

Problems may be more prevalent with older models of beacons

The issue is that some beacons will mask another beacon. If two victims with beacons are buried in close proximity then you may only see the one victim.

The article and issues are complex and are still be investigated, however if you are a professional or possibly use your beacon in multivictim situations you should read the article.

See Problems with multivictim searches or watch a Video about the issue.

What do you think? Leave a comment.

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Tough fight on a case, release used to stop all but one claim for a CO ski accident

Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234

But for an outrageous expert opinion, the release would have ended this lawsuit.

This case is a lawsuit against Breckenridge Outdoor Education Center (BOEC) and two of its employees by a disabled skier. Also sued was the manufacturer of the bi-ski, a device that allows people with no mobility to experience skiing. BOEC is a non-profit that provides tons of great services for people, most of whom are disabled. In this case, the plaintiff was a “legally blind, cognitively delayed, and physically limited by cerebral palsy” minor.

The plaintiff went to BOEC with a group people from Kansas, the Adventure Fitness Program at Camp Fire USA. Before going on the trip the plaintiff’s mother signed the necessary documents, including a release and reviewed the marketing and other information provided to her. Upon arrival, the plaintiff was taken to Breckenridge Ski Area with two BOEC employees. She was skiing in a bi-ski with the two defendant skiers. One was a lookout or later termed blocker in the case and one held tethers, which controlled the bi-ski.

On the second run, the three were skiing down a blue or intermediate ski run. A third party not part of the suit lost control and skied between the defendant employee and the bi-ski into the tethers. This separated the BOEC employee from the bi-ski. The bi-ski proceeded down the ski slope, out of control hitting a tree. The injuries to the plaintiff were not described.

The plaintiff through her mother sued the bi-ski manufacture, BOEC and the two BOEC employees. The plaintiff claimed four counts of negligence per se because of violations of the Colorado Skier Safety Act against the defendant employee who was holding the tethers. (To see a definition of Negligence Per Se under Colorado law see Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability.) The plaintiff argued another claim sounding in “negligence, willful and wanton, reckless, and/or gross negligence” against BOEC. The remaining claims were against the manufacturer of the bi-ski which was dismissed in another action not the subject of this opinion.

This motion was a motion for Summary Judgment filed by BOEC to eliminate the fifth claim, the negligence, willful and wanton, reckless, and/or gross negligence of BOEC.

Validity of a Release for a minor signed by a parent under the CO Statute

The court first looked at the requirements for a release signed by a parent to be upheld under Colo. Rev. Stat. § 13-22-107, generally that the parent’s signature must be voluntary and informed. Prior to this decision, the only case that has taken a look at this issue was Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo. App. 2010) which I reviewed in Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.

In Wycoff, the release signed by the mother for the child was not upheld. The Wycoff release only had one sentence referring to releasing any claims. Here, the BOEC release had a minimum of six paragraphs informing the plaintiff’s mother that she was waiving her daughter and her legal rights.

Colorado law does not require the specific use of the word negligence in a release. However, all Supreme Court decisions to date had some language referencing waiving personal injury claims based on the activity the release covered.

The court concluded that the plaintiff’s mother signed a document that was clearly identified as a release, and thus she signed it voluntarily.

The court then looked at the release to see if it informed the plaintiff’s mother of the risks of the activity. The release had one full page that explained in detail the degree of risk involved in the BOEC programs. On top of that, the plaintiff’s mother had called and talked to the staff at BOEC as well as the staff of Adventure Fitness Program at Camp Fire USA that was taking her daughter on the trip.

After all of this, the plaintiff’s mother the court concluded was informed of the risks of the trip and the activity.

Validity of the Release

The court started by reviewing the Colorado requirements on how a release will be reviewed under Colorado law. This is fairly standard in all legal decisions.

Exculpatory agreements are construed strictly against the party seeking to limit its liability.” Hamill v. Cheley Colorado Camps, Inc.,     P. 3d    , 2011 Colo. App. LEXIS 495, 2011 WL 1168006, (Colo. App. March 31, 2011) (Reviewed here in Release stops suit for falling off horse at Colorado summer Camp.)

The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998)

Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence” is disfavored, “it is not necessarily void as against public policy . . . as long as one party is not at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004)

To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy. Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093

BOEC bears the burden of proving each of these elements

The court then went through each of the four steps to make sure this release met the requirements.

(i) there must not have been an obvious disparity in bargaining power between the releasor and releasee;

(ii) the agreement must set forth the parties’ intentions in clear and unambiguous language;

(iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and

(iv) the agreement may not violate public policy

Other courts had found that recreation services are not essential services and there is no unfair bargaining advantage in these types of services. Those recreational services in Colorado where courts had made this decision included mountain biking, bicycle rental, skydiving, handicapped downhill ski racing, and rental of ski equipment.

The issue of whether the party’s intentions are clear and unambiguous requires a review of the document. To do that the court looked at the requirements for a contract in general. (A release is a contract, an agreement between two parties with consideration flowing between the parties.) “Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.“

In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.

The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.

Here, the release was written in simple and clear terms that were free from legal jargon, not inordinately long and/or complicated. Finally, the fact that the plaintiff’s mother indicated she understood the release satisfied this requirement.

The third requirement requires that the contract be fairly entered into. That means that one party is not so obviously disadvantaged that they are at the mercy of the other party. Because recreational activities are not essential services, and those services can be found through other parties who offer them this requirement is always met in the recreational setting. Essential services are those necessary for life. Examples are public transportation, utilities or food.

The last requirement is that the release does not violate public policy. This means that the release does not waive a duty of BOEC’s which cannot be waived. Again, recreational services do not make up a public policy or violate a public policy. In fact, under Colorado law, the public policy is to support recreational activities and thus have parent’s sign releases.

The expressed public policy in Colorado is “to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities. Colo. Rev. Stat. § 13-22-107(1)(a)(VI)

Was there a Material Misrepresentation or Fraud in the Inducement in the relationship between the plaintiff and her mother and the defendant BOEC.

or

Marketing makes promises that Risk Management must pay for.

A release is voidable if it was secured based on a material misrepresentation or fraud in the inducement. Here, the plaintiff argued that BOEC claimed it met the highest standards of the Association of Experiential Education (AEE), which it did not. The plaintiff claimed that BOEC claimed that it was accredited by AEE when it was not, and it met the standards of AEE for adaptive ski programs when there was not any standard for that program.

BOEC stated that at the time of the accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. BOEC also admitted that at the time of the accident the accreditation was for other programs of BOEC, and that AEE did not accredit adaptive ski programs.

Based on these two representations, the plaintiff then argued that BOEC misrepresented itself to the plaintiff.

To establish fraud, a plaintiff has to prove that

(1) a fraudulent misrepresentation of material fact was made by the defendant;

(2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false;

(3) the plaintiff relied on the misrepresentation;

(4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and

(5) the reliance resulted in damages.

Here, the plaintiff could not prove that it relied on the misrepresentations of the BOEC and that the reliance was justified. The court did not find that BOEC had not misrepresented itself or its credentials. The court found the plaintiff had not proven reliance the final step needed to prove fraud.

The court also found that BOEC had not misrepresented the facts to the extent needed to be an intentional fraudulent misrepresentation.

At the time, BOEC followed the adaptive ski standards of the Professional Ski Instructors of America, (PSIA). BOEC was accredited by AEE for its other programs. The letter which had the critical information in it about standards, and accreditation was a letter used for all BOEC programs.

Was the conduct of the parties Willful and Wanton rising to the level of Gross Negligence?

This is always an issue when a release is signed because if the actions of the defendant rise to this level than the release cannot be used to stop claims for gross negligence or intentional acts.

“Gross negligence is willful and wanton conduct; that is, action committed recklessly, with conscious disregard for the safety of others.”  

The court then reviewed the opinion of the plaintiff’s expert witness. His report labeled the BOEC program as inherently unsafe and went on from there. (See Come on! Expert’s will say anything sometimes.)

Based on the expert witness report, the court did not dismiss the last claim of the plaintiffs for gross negligence. The opinion of the expert raised enough facts to create an issue that could not be decided by the court.

All but this final claim was dismissed by the court.

A well-written  release in this case almost won the day; it definitely took a lot of fight out of the plaintiff’s case. The only issue the release could not beat was an outrageous opinion by the plaintiff’s expert witness.

So Now What?

1.       Don’t make the court look for a clause to support your release. Put in the release the magic word negligence and that the signor is giving up their legal rights for any injury or claims based on your negligence. Here, the court was able to find six paragraphs that did the same thing. You can eliminate a few paragraphs if you are up front and honest. You are giving up your right to sue me for any claim or loss based on my negligence.

2.      Identify your document as a release. The court based its decision upholding the release based on the language in the release, and because it was labeled a release.

3.      If you communicate with a client in advance of the activity about the risks or the release, make a note of it. This again was important to the court in proving the mother was not misled and knew what she was signing.

4.      Besides specifically informing the signor of the fact they are giving up their right to sue, your release needs to point out the risks of your activity. Here, the court points out the page long list of risks as important in upholding the release. Too many releases do not include the risks.

5.       Make it easy for your guests to contact you and ask questions about your release, your activity and the risks. Again, the court pointed this out as a specific issue that was important in the court finding for the defendant in this case.

6.      The burden on proving that the release meets the requirements needed in a specific state is on the defendant. Consequently, it behooves the defendant recreation provider to place those requirements in the release so the plaintiff, upon signing, helps prove the document is valid.

7.       Marketing sinks more ships in the outdoor recreation industry than injuries. Make sure your marketing matches who you are and what you do, and that you are not misrepresenting who you are and what you can do. In this case, BOEC escaped a disaster with its marketing of standards and accreditation that either did not exist, or that it did not have.

What do you think? Leave a comment.

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