Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company

Apparent agency requires actual cloaking by the principal with the cloth of agency on the agent so that third parties believe what they are assuming. The third parties must then reply on the agency to their detriment.

Cash v. Six Continents Hotels, 2004 U.S. Dist. LEXIS 2901

State: Pennsylvania, United States District Court for the Eastern District of Pennsylvania

Plaintiff: Malleria Cash and Frederika Harrell

Defendant: SIX CONTINENTS HOTELS

Plaintiff Claims: Negligence

Defendant Defenses: No relationship with the true defendant

Holding: For the defendant

Year: 2004

The plaintiff’s in this case were in Montego Bay Jamaica. They were staying with the defendant, Holiday Inn Sunspree Hotel. Through the hotel, they arraigned a tour to Dunns River Falls in Ocho Rios, Jamaica with Harmony Tours, Ltd.

Harmony Tours Ltd maintained a desk in the hotel lobby. However, there was no other legal connection between Holiday Tours and the defendant hotel.

The plaintiffs were transported to the falls and dropped off “for a long period of time without any guidance or assistance.” While they were there, the plaintiff’s claimed they were trying to climb the waterfall without the assistance of a guide, slipped, fell and sustained injuries.

They filed this suit in Federal District Court for the Eastern District of Pennsylvania, which the parties agreed was the correct court and that Pennsylvania law, controlled the case.

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

The court started out going through the requirements as the court to grant a motion for summary judgment filed by the defendant. The issue that must be answered on whether to grant a motion for summary judgment is “whether reasonable minds may differ as to the verdict.” If there are no facts that are in dispute and no reasonable mind can find differently than the motion should be granted.

However, if the facts can be interpreted differently or a reasonable mind might find differently, then a motion for summary judgment should not be granted.

The basis for the argument of the plaintiff’s that the tour company was related was not legal but apparent. The plaintiff’s argued the tour company was an apparent agent of the tour company. An apparent agent is defined as:

…one who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such an apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.

If the principal “clothes his agent with apparent authority is estopped to deny such authority.” However, the court could find nothing that supported this argument.

In looking at the facts the court identified all the ways the plaintiff’s has been informed that the defendant hotel was not associated with the tour company.

No one every represented that the tour company was an agent or affiliated in any special way with the hotel. The ticket the plaintiffs were given after purchasing the tour state:

…take notice that Harmony Tours Ltd. which conducts tours and excursions sold at this desk is an independent contractor. Holiday Inn (Jamaica) Inc. is not responsible for any loss, damage or injury which anyone may suffer arising out of, or in the course of, or in connection with any such tour or excursion.

On top of that, there was no evidence offered by the plaintiff to support its theory.

Even if there was evidence to support facts showing apparent authority, the plaintiffs must then prove that they justifiably relied upon the representation. The plaintiff’s would have to argue that they relied upon representations that the tour was the principal of the hotel and that the hotel made a representation that leads to the injury.

In this case, that is a reach based on the facts and the court did not buy it.

The case was dismissed.

So Now What?

The critical part is whenever it may appear that you are in a relationship with another business, and you are not; you need to make all customers of both or yours aware of the facts.

Notices posted at the cash register of a retail store that the store is not related to any of the third parties soliciting business in the store.

If you are a hotel, then a sign in the lobby explaining the relationship or near any brochures as well as in this case, printing that notice on the receipt.

Always be up front with your relationship with your customers.

What do you think? Leave a comment.

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

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Agency, Apparent Authority, Principal, Hotel, Tour Company, Jamaica, Dunns River Falls, Montego Bay,

 


Cash v. Six Continents Hotels, 2004 U.S. Dist. LEXIS 2901

Cash v. Six Continents Hotels, 2004 U.S. Dist. LEXIS 2901

MALLERIA CASH and FREDERIKA HARRELL, Plaintiffs, v. SIX CONTINENTS HOTELS, Defendant.

CIVIL ACTION NO. 03-3611

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2004 U.S. Dist. LEXIS 2901

February 19, 2004, Decided

February 19, 2004, Filed

DISPOSITION: Defendant’s motion for summary judgment granted.

COUNSEL: [*1] For MALLERIA CASH and FREDERIKA HARRELL, Plaintiffs: HOWARD M.

GIRSH, STEINBERG & GIRSH, P.C., PHILADELPHIA, PA.

For SIX CONTINENTS HOTELS, BY ITS AGENT OR SUBSIDIARY HOLIDAY INN, Defendant:

FRANCIS H. GREY, JR., JENNIFER M. BROOKS, LAVIN COLEMAN O’NEIL RICCI FINATELLI & GRAY, PHILADELPHIA, PA.

JUDGES: RONALD L. BUCKWALTER, S.J.

OPINION BY: RONALD L. BUCKWALTER

OPINION:

MEMORANDUM

BUCKWALTER, S.J.

February 19, 2004

Presently before the Court is Defendant Six Continents Hotels’ Motion for Summary Judgment, Plaintiffs Malleria Cash’s and Frederika Harrell’s (collectively “Plaintiffs”) Opposition thereto and Defendant’s Reply to Plaintiffs’ Opposition. For the reasons set forth below, Defendant’s motion is granted.

I. BACKGROUND

On or around April 30, 2001, Plaintiffs were staying at the Holiday Inn Sunspree Hotel (“Hotel”) while they vacationed in Montego Bay, Jamaica. The Hotel is owned by SC Hotels & Resorts (Jamaica) Ltd., which is an affiliate of Defendant. While staying at the Hotel, Plaintiffs arranged to take a tour of the Dunns River Falls in Ocho Rios, Jamaica. Plaintiffs booked the tour with a local tour company, Harmony Tours Ltd. For the convenience of its guests, the Hotel [*2] permitted Harmony Tours to maintain a desk in the Hotel lobby where guests could purchase tours. It is undisputed that the Hotel and Harmony Tours have no legal affiliation.

On or around April 30, 2001, Harmony Tours transported Plaintiffs to Dunns Rivers Falls. Plaintiffs allege that they were dropped off at the Falls “for a long period of time without any guidance or assistance.” (Compl. at P 3.) Plaintiffs claim that while they were trying to climb the waterfall – without the assistance of a guide – they slipped, fell and sustained injuries.

On May 13, 2003, Plaintiffs filed a one count complaint in state court alleging that Defendant was negligent for failing to provide a guide as they toured the Falls. On June 12, 2003, Defendant removed the case to this Court.

The parties do not dispute that Pennsylvania law controls this case.

II. STANDARD OF REVIEW

A motion for summary judgment will be granted where all of the evidence demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute about a material fact is genuine [*3] “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Since a grant of summary judgment will deny a party its chance in court, all inferences must be drawn in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962).

The ultimate question in determining whether a motion for summary judgment should be granted is “whether reasonable minds may differ as to the verdict.” Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 129 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.

III. DISCUSSION

The parties do not dispute that Defendant and Harmony Tours are not legally affiliated in any way. Additionally, there is no dispute that Harmony Tours was not a servant or actual agent of Defendant. Rather, Plaintiffs’ sole contention is that Harmony Tours was an apparent agent of Defendant; therefore, [*4] Defendant should be held liable for Harmony Tours’ alleged negligence. (Pls.’ Mot. P 5.)

The Restatement (Second) of Agency § 267 outlines the rule for apparent agency and states, “one who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.” Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 790-91 (3d Cir. 1978)(citing Restatement (Second) of Agency).

While Pennsylvania has not formally adopted § 267, it has adopted the theories of apparent authority and agency by estoppel, which state that “a principal who clothes his agent with apparent authority is estopped to deny such authority.” Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa. Super. 315, 634 A.2d 622, 629 (Pa. Super. Ct. 1993). As the Myszkowski Court noted, apparent agency, “as embodied in § 267, is substantially similar to the doctrines of apparent authority and agency by estoppel. [*5] “ n1 Id.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 The Court also noted that “both apparent authority and agency by estoppel are customarily only relevant in the context of business transactions.” Id.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Plaintiff has not offered any evidence whatsoever to show that Harmony Tours had apparent authority or that Harmony Tours was Defendant’s apparent agent.

Plaintiffs have not even alleged, let alone offered evidence to show, that Defendant made any representation to Plaintiffs that Harmony Tours was its agent. Rather, Plaintiffs stated in their depositions that they just assumed that Harmony Tours was affiliated with Defendant because Harmony Tours had a desk in the Hotel’s lobby. (Pls.’ Br. P 5.) In fact, Plaintiff Harrell testified that nobody at Harmony Tours or the Hotel ever represented that the two entities were affiliated. (Harrell Dep. Tr. at 34-35.) Plaintiffs have simply not offered any evidence that shows Defendant held out Harmony Tours as its agent.

Additionally, the undisputed evidence shows that Harmony Tours actually supplied [*6] Plaintiffs with direct information that Harmony Tours was not an agent of Defendant. Both parties submitted photographs of Harmony Tours’ display desk in the Hotel. (Pls.’ Br. Ex. 4; Def.’s Br. Ex. D.) Behind the desk was a large sign that listed each of the tours that were available. In large capital bold letters, the top of the sign stated “HARMONY TOURS.” Furthermore, the following language was printed on the tour tickets that Plaintiffs purchased:

take notice that Harmony Tours Ltd. which conducts tours and excursions sold at this desk is an independent contractor. Holiday Inn (Jamaica) Inc. is not responsible for any loss, damage or injury which anyone may suffer arising out of, or in the course of, or in connection with any such tour or excursion. n2 (Def.’s Br. Ex. C.)

Not only is there no evidence that Defendant made representations that it was Harmony Tours’ principal, but Harmony Tours directly represented to Plaintiffs that it was an independent contractor that was not affiliated with Defendant.

Accordingly, Plaintiffs cannot meets its burden of proving apparent authority or agency by estoppel.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n2 Plaintiffs argue that this language is an exculpatory clause, and that the validity of such clauses should be determined by a jury. Plaintiffs argument, however, misses the point. Defendant does not offer this language to show that it cannot be held liable for negligence. Rather, Defendant offers this language to show that Harmony Tours informed its customers that it was an independent contractor and not an agent of Defendant; therefore, Plaintiffs cannot succeed on a theory of apparent authority.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*7]

Lastly, even if Plaintiffs could show that Defendant made a representation that it was affiliated with Harmony Tours, Plaintiffs must then show that they justifiably relied on the representation. Myszkowski, 634 A.2d at 629.

Plaintiffs have not supplied any evidence that they relied on any representation made by Defendant. In fact, during her deposition, with regard to purchasing a ticket for the tour, Plaintiff Frederika Harrell testified as follows:

Q. Would you have not bought that ticket if you found out Harmony Tours was not affiliated with Holiday Inn?

A. I don’t know. I mean, I probably would have, because I wanted to take the tour. (Pls.’ Mot. P 5.)

Plaintiff Harrell’s own testimony shows that even if Defendant had made a representation that it was affiliated with Harmony Tours, she did not rely on that representation in any way. She would have taken the tour regardless of who was offering it.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted and judgment is entered against Plaintiffs and on behalf of Defendant. An appropriate Order follows.

ORDER

CIVIL ACTION NO. 03-3611 [*8]

AND NOW, this 19th day of February, 2004, upon consideration of Defendant Six Continents Hotels’ Motion for Summary Judgment (Docket No. 7), Plaintiffs Malleria Cash’s and Frederika Harrell’s Opposition thereto (Docket No. 10) and Defendant’s Reply to Plaintiffs’ Opposition (Docket No. 11), it is hereby ORDERED that Defendant’s Motion for Summary Judgment is GRANTED and judgment is entered on behalf of Defendant and against Plaintiffs. This case is now CLOSED.

BY THE COURT:

RONALD L. BUCKWALTER, S.J.


US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.

Agency requires more than just relationship; it requires actual control over the alleged agents.

Wilson v. United States, 989 F.2d 953; 1993 U.S. App. LEXIS 6165, (8th Cir. 1993)

State: Missouri, United States Court of Appeals for the Eighth Circuit

Plaintiff: Mark D. Wilson; Janet L. Wilson, Jason S. Harbian; Michael Harbian; Sharon Harbian; Daniel R. Winfrey, a Minor, by Susan Crump, his Mother and Next Friend, and; Susan Crump

Defendant: United States of America; the Boy Scouts of America

Plaintiff Claims: Federal Tort Claims Act, and against the Boy Scouts of America (BSA) pursuant to Missouri state law, for negligent supervision and failure to train the adult supervisors

Defendant Defenses: No relationship between the BSA and the adult volunteers and the Missouri Recreational Use Statute

Holding: for the Defendant

Year: 1993

A group of Boy Scouts and their adult leaders were at Fort Leonard Wood, a US Army military post for the weekend to participate in the Army’s Youth Tour Program. The boys and adults stayed in a barrack. Stacked beside the barrack were aluminum alloy irrigation pipes that were approximately 30’ long. The pipes were stacked there when not in use for six years.

Three of the boys grabbed one of the pipes and carried it 20’ west of the building and raised it to a vertical position. It came in contact with a high-voltage line injuring two boys and killing one.

Because one of the defendants was the United States, as the owner of the land and property under the supervision and control of the US Army, the case was brought in the Federal District Court of Missouri for the Eastern District of Missouri.

The trial court dismissed the claims of all plaintiffs because of the Missouri recreational use act for the defendant US Army, and the BSA did not owe the plaintiff’s a duty of care. The plaintiff’s appealed.

Analysis

To sue an agency of the United States, your claims must meet the requirements of the Federal Tort Claims Act. The act allows the defendant to assert any defense allowed under the act and as allowed under the law of the state where the incident occurred.

In this case, the defendant US raised the defense provided by the Missouri Recreational Land Use Statute, Mo. Rev. Stat. §§ 537.345 – 537.348. The act provides immunity to landowners who make their property available for recreation without an entry charge.

Except as provided in sections 537.345 to 537.348, an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.

Recreational use is defined by the act as “hunting, fishing, camping, picnicking, biking, nature study [and] winter sports.”

The immunity is available unless the landowner is:

…found to have been either maliciously or grossly negligent in failing to guard or warn against a dangerous condition which the owner knew or should have known to be dangerous, or if the landowner negligently failed to warn or guard against an ultrahazardous condition. Other exceptions to the nonliability of the statute include injuries occurring on or in any “noncovered land,” which is defined as land used primarily for commercial, industrial or manufacturing purposes.

The Army charged $2.00 per person to say in the building. The plaintiff’s argued that the recreational use act then did not apply to the defendant US Army.

1) the Army charged $ 2.00 per person to be billeted in Building 1614; (2) the United States receives an economic benefit from offering its land; (3) the Boy Scouts were not members of the “general public,” and thus were not covered by the Act; (4) the injury occurred on “noncovered land;” and (5) the United States negligently failed to protect against an ultrahazardous condition.

The Fort was called an open military post. That means that members of the public were allowed to visit the post. The post was open to the public for “fishing, hunting, hiking, camping, picnicking or canoeing.” The Fort also offered the Youth Tour Program which allowed national youth organizations such as the BSA special programs not available to the general public. These programs included “visits to the Fort’s museum, an indoor rifle range, an obstacle course and a cannon range.”

If the youth group or in this case, the BSA, want to spend the night, the Army charges a $2.00 per person fee.

This fee covers the cost of maintaining and equipping the facility with mattresses, toilet paper, soap, and other supplies. If a troop chooses to stay overnight but no beds are available, the lodging fee is reduced to $ 1.00 per person/per night.

The application of the Missouri Recreational Use Statute, construes fees in the act as defined to enter upon the land. The $2.00 fee was paid to stay overnight in the building, entrance onto the base was free.

There is no evidence in the record to indicate that this fee would have been charged to either participate in the Youth Tour Program, or to enter Fort Leonard Wood, if the scouts had elected not to stay overnight. In fact, all the Fort Leonard Wood documents relating to this fee provide that it is a “lodging” fee, and that it is assessed on a per person/per night basis.

The remaining arguments presented by the plaintiffs were quickly dismissed by the court in a paragraph for each argument.

The court then turned to the claims against the Boy Scouts of America. In order to hold the National Council of the BSA liable for the acts of the volunteer adult leaders in Missouri, the plaintiff has to prove an agency relationship existed between the BSA and the adults. This would allow the plaintiff’s to argue a vicarious liability claim against the BSA.  

The appellants claim the BSA had the right to control and supervise Troop 392’s adults, that the BSA is liable for the negligent acts of the troop’s adult leaders which were committed within the scope and course of their agency relationship, and further that the troop’s adult leaders were clothed with implied and apparent authority to act on behalf of the BSA when they were present at Fort Leonard Wood.

The court then accurately related the legal relationship between the BSA national office and volunteers of a unit.

The Boy Scouts of America is a congressionally chartered benevolent national organization, which is divided into geographic areas known as local councils. Three hundred ninety-eight local councils are chartered in the United States. Local sponsors, such as schools, churches or civic organizations apply for charters from the BSA through their local council. Local volunteers form a patrol leaders’ council to plan troop activities. BSA does not conduct or require any training for these adult volunteers. Troops do not need permission from BSA before participating in activities, with the exception of tours outside the United States or five hundred miles or more from the local council. The BSA had no advanced notice of Troop 392’s trip to Fort Leonard Wood. The troop was not required, nor did it receive, permission from the BSA to go to Fort Leonard Wood.

The court then examined the requirements of respondeat superior, needed to hold an employer liable for the acts of an employee.

Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties. The test to determine if respondeat superior applies is whether the person sought to be charged as a master had “the right or power to control and direct the physical conduct of the other in the performance of the act.” If there is no right to control, there is no liability.

The plaintiff failed to produce any evidence that the BSA national council has any control over the “specific activities of individual troops, or that it had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity.”

The appellate court upheld the lower court’s dismissal of the case.

So Now What?

This is another situation where the recreational use statute has been parsed by how the many paid were used by the landowner. Money paid to enter the land does not allow the landowner to use the defense of the state recreational use statute. Money paid for other things once on the land may still allow the use of the statute as a defense.

However, this is a narrow reading of the law and would be specific to each state law. Make sure you have consulted with a local attorney familiar with the law before making this decision to charge for other items.

The Boy Scouts of America do not supervise, control or have any power or authority over its volunteers.

 

What do you think? Leave a comment.

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

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, BSA, Boy Scouts, Boy Scouts of America, Fort Leonard Wood, Recreational Use Statute, Agency, Respondeat Superior,

 


Wilson v. United States of America, 989 F.2d 953; 1993 U.S. App. LEXIS 6165

Wilson v. United States of America, 989 F.2d 953; 1993 U.S. App. LEXIS 6165

Mark D. Wilson; Janet L. Wilson, Appellants, v. United States of America; The Boy Scouts of America, Appellees. Mark D. Wilson; Janet L. Wilson, Plaintiffs, v. The Boy Scouts of America, Defendants. Jason S. Harbian; Michael Harbian; Sharon Harbian; Daniel R. Winfrey, a Minor, by Susan Crump, his Mother and Next Friend, and; Susan Crump, Appellants, v. United States of America; The Boy Scouts of America, Appellees.

No. 92-1438, No. 92-3363

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

989 F.2d 953; 1993 U.S. App. LEXIS 6165

September 18, 1992, Submitted

March 29, 1993, Filed

SUBSEQUENT HISTORY: [**1] Rehearing Denied May 10, 1993, Reported at: 1993 U.S. App. LEXIS 10903.

PRIOR HISTORY: Appeals from the United States District Court for the Eastern District of Missouri. District No. 89-1696-C-7. Jean C. Hamilton, U.S. District Judge.

DISPOSITION: Affirmed

CASE SUMMARY:

COUNSEL: For MARK D. WILSON, JANET L. WILSON, Plaintiffs – Appellants: Alan E. DeWoskin, 314-727-6330, Suite 426, 225 S. Meramec Avenue, St. Louis, MO 63105.

For UNITED STATES OF AMERICA, Defendant – Appellee: Joseph Moore, Asst. U.S. Attorney, 314-539-3280, U.S. ATTORNEY’S OFFICE, 1114 Market Street, St. Louis, MO 63101. Robert William Cockerham, BROWN & JAMES, 705 Olive Street, Suite 1100, St. Louis, MO 63101, 314-421-3400. For BOY SCOUTS, OF AMERICA, Defendants – Appellees: Russell F. Watters, Robert William Cockerham, Thomas Michael Ward, BROWN & JAMES, 705 Olive Street, Suite 1100, St. Louis, MO 63101, 314-421-3400.

JUDGES: Before HANSEN, Circuit Judge, and HEANEY and ROSS, Senior Circuit Judges.

OPINION BY: ROSS

OPINION

[*954] ROSS, Senior Circuit Judge.

Appellants Mark Wilson and Janet Wilson, the parents of Anthony Wilson, and [*955] Jason Harbian and Daniel Winfrey, and their parents, appeal from the trial court’s 1 grant of summary judgment in favor of appellees United States of America and the Boy Scouts of America, in an action arising out of the death of Anthony Wilson and the injuries sustained by Jason Harbian and Daniel Winfrey.

1 The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.

On April 22, 1988, Anthony Wilson, Daniel Winfrey and Jason Harbian, members of Troop 392 of the Boy Scouts of America, St. Louis Area Council, along with other boy scouts and five adult leaders, went to Fort Leonard Wood, a United States Army military post, on a boy scout trip as part of the Army’s Youth Tour Program. A pile of lightweight aluminum [**2] alloy irrigation pipes, approximately thirty feet in length, were stacked outside Building 1614, where the troop was billeted for the weekend. The pipes had been used for irrigation of the athletic field adjacent to the building, and when not in use, were stored alongside the building. The pipes had been stacked in this manner for approximately six years.

On the second night of their weekend stay, at approximately 10:30 p.m., Anthony, age thirteen, and five or six other scouts, ages twelve to sixteen, were outside Building 1614, while the leaders were inside the building. Anthony, Daniel and Jason picked up one of the aluminum pipes, carried it approximately twenty feet west of the building, and raised it to a near vertical position, causing the pipe to come in contact with a 7,200 volt power line which ran over the building. All three scouts received electric shocks; Anthony died as a result of the injuries he sustained.

Mark and Janet Wilson brought a wrongful death action against the United States pursuant to the Federal Tort Claims Act, and against the Boy Scouts of America (BSA) pursuant to Missouri state law, for negligent supervision and failure to train the adult supervisors. [**3] Sometime later the Harbian/Winfrey plaintiffs filed personal injury actions against both the United States and the BSA, and eventually these cases were consolidated with the Wilson case for trial. Motions for summary judgment filed by the United States and the BSA were eventually granted as against all appellants. 2

2 On December 4, 1992, following oral argument of the Wilson appeal before this court, the Harbian and Winfrey cases were consolidated with the Wilson appeal. All parties agree that these cases arose from the same occurrence and are identical in material fact and law. The Harbians and the Winfreys rely on the briefs and oral argument submitted in the Wilson appeal. The Wilsons, Harbians and Winfreys will be collectively referred to as “appellants.”

The appellants’ theory of recovery against the BSA is based on an alleged agency relationship between the BSA and the adult volunteers supervising the scouts. The district court granted the BSA’s motion for summary judgment, concluding [**4] that appellants failed to produce any evidence that the national organization of the BSA had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity. The district court also granted the United States’ motion for summary judgment based on its finding that the United States owed no duty of care to the scouts because they were recreational users of the property under Missouri’s Recreational Land Use Statute. See Mo. Rev. Stat. § 537.346. After careful consideration of each allegation raised by the appellants, we affirm the decision of the district court.

I. United States of America

The action against the United States arises [HN1] under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, thus, the “United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances.” Id. at § 2674. Further, the United States is “entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States . . . as well as any other defenses to which the United States is entitled.” [**5] Id. Therefore, the United States is entitled to [*956] the benefit of state recreational use statutes, if applicable, when it is sued under the Federal Tort Claims Act. See Hegg v. United States, 817 F.2d 1328, 1329 (8th Cir. 1987) (construing the Iowa Recreational Use Statute); Umpleby v. United States, 806 F.2d 812, 815 (8th Cir. 1986) (applying North Dakota’s Recreational Use Statute).

[HN2] The Missouri Recreational Land Use Statute, Mo. Rev. Stat. §§ 537.345 – 537.348 immunizes landowners who make their property available for the recreational use of others without an entry charge. The statute specifically provides:

[HN3] Except as provided in sections 537.345 to 537.348, an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.

Id. at § 537.346. “Charge” is defined in the statute as:

[HN4] the admission price or fee asked by an owner of land or an invitation or permission without price or fee to use land for recreational [**6] purposes when such invitation or permission is given for the purpose of sales promotion, advertising or public goodwill in fostering business purposes.

Id. at § 537.345(1). “Recreational use” as defined in the statute includes outdoor activities, such as “hunting, fishing, camping, picnicking, biking, nature study [and] winter sports. Id. at § 537.345(4).

[HN5] While providing for a general immunity against liability, a landowner may nonetheless be liable if found to have been either maliciously or grossly negligent in failing to guard or warn against a dangerous condition which the owner knew or should have known to be dangerous, or if the landowner negligently failed to warn or guard against an ultrahazardous condition. Id. at § 537.348(1). Other exceptions to the nonliability of the statute include injuries occurring on or in any “noncovered land,” which is defined as land used primarily for commercial, industrial or manufacturing purposes. Id. at § 537.348(3)(d).

The appellants contend that the Missouri Recreational Land Use Statute does not apply to the United States because (1) the Army charged $ 2.00 per person to be billeted in Building 1614; (2) the United States [**7] receives an economic benefit from offering its land; (3) the Boy Scouts were not members of the “general public,” and thus were not covered by the Act; (4) the injury occurred on “noncovered land;” and (5) the United States negligently failed to protect against an ultrahazardous condition.

A.

Fort Leonard Wood is an open military post, where members of the public can freely enter without being stopped or questioned by guards or military police. Specified areas are open to the public for fishing, hunting, hiking, camping, picnicking or canoeing. Many tours are given to various groups, such as senior citizens and church and school groups, free of charge. The Fort also offers a Youth Tour Program which is open only to national youth organizations, such as the Boy Scouts of America. The program includes activities which are not available to the general public, such as visits to the Fort’s museum, an indoor rifle range, an obstacle course and a cannon range.

If a troop in the Youth Tour Program chooses to stay overnight in Building 1614, a $ 2.00 per person/per night lodging fee is charged. This fee covers the cost of maintaining and equipping the facility with mattresses, toilet paper, [**8] soap, and other supplies. If a troop chooses to stay overnight but no beds are available, the lodging fee is reduced to $ 1.00 per person/per night. Significantly, the lodging fee is charged on a per person/per night basis, while there is no charge for the tour itself, which is offered only on Saturdays.

The interpretation of the various recreational use statutes is controlled by the precise language of each statute. Courts that have construed recreational land use statutes with language similar to the Missouri statute have interpreted “charge” as ” [*957] an admission fee to enter the land.” For example, in Genco v. Connecticut Light and Power Co., 7 Conn. App. 164, 508 A.2d 58, 62 (Conn. App. Ct. 1986), noting that the Connecticut General Statute § 52-557f defines “charge” as “the admission price or fee asked in return for invitation or permission to enter or go upon the land,” the court held that “the only way to avoid inconsistent application of the Act . . . is to interpret the word ‘charge’ as an actual admission price paid for permission to enter the land at the time of its use for recreational purposes.” Id. (emphasis added).

Furthermore, a parking fee paid by [**9] a camper is not a charge within the meaning of the Nebraska Recreational Use Statute, which defines “charge” as “the amount of money asked in return for an invitation to enter or go upon the land.” Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309, 313 (Neb. 1984) (emphasis added). In Garreans, the court noted that the

charges were made for the right to park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment of the fee . . . did not entitle . . . [the person paying the fee] to a greater right to use any of the park’s other facilities than that had by the general public.

Id.

As in Jones v. United States, 693 F.2d 1299, 1303 (9th Cir. 1982), where a one dollar fee was charged the injured plaintiff to rent an inner tube for snow sliding, the fee paid by the scouts to bunk in Building 1614 was not “charged to members of the public for entry on to the land or for use of the land.” Id. Rather, the scouts paid the $ 2.00 fee to bunk in Building 1614, but entered the park without paying a fee. The Jones court held that the plaintiff [**10] “could have used . . . the Park without making any payment if she had brought her own tube.” Id. Similarly, the appellants could have used Fort Leonard Wood without making this $ 2.00 payment if they had chosen not to stay overnight. The Missouri statute does not provide that the immunity for an entire parcel should be nullified if a landowner charges for admission to a different portion of the parcel, nor would such a rule be consistent with the statute’s purpose. “Consideration should not be deemed given . . . unless it is a charge necessary to utilize the overall benefits of a recreational area so that it may be regarded as an entrance or admission fee.” Moss v. Department of Natural Resources, 62 Ohio St. 2d 138, 404 N.E.2d 742, 745 (Ohio 1980) (emphasis added).

The appellants herein paid $ 2.00 per night for the right to stay overnight in Building 1614. There is no evidence in the record to indicate that this fee would have been charged to either participate in the Youth Tour Program, or to enter Fort Leonard Wood, if the scouts had elected not to stay overnight. In fact, all of the Fort Leonard Wood documents relating to this fee provide that it is a “lodging” [**11] fee and that it is assessed on a per person/per night basis. The appellants have failed to present any evidence that the fee was required in order to enter Fort Leonard Wood.

B.

The remainder of appellants’ arguments with regard to the liability of the United States are also without merit. The appellants contend that the United States is outside the protection of the Missouri Recreational Land Use Statute because the scouts are not “members of the general public.” They contend that because only members of national youth organizations are eligible to participate in the Youth Tour Program, the scouts should be treated as guests or invitees. Appellants’ argument, however, relies upon a distinction not made within the language of the Missouri Recreational Land Use Statute. The plain language of the statute indicates that a landowner owes no duty of care “to any person who enters on the land without charge” for recreational purposes. Mo. Rev. Stat. § 537.346 (emphasis added).

We also reject the appellants’ argument that the United States is outside the protection of the Missouri statute because the Army’s purpose in allowing admission to Fort Leonard Wood is to develop public [*958] goodwill [**12] in fostering a business purpose. See Mo. Rev. Stat. § 537.345(1). When Boy Scout troops visit the Fort, they are not recruited or encouraged in any way to join the Army, nor are any records kept of scouts who have participated in the Youth Tour Program. Further, appellants have failed to establish that the Army operates as a business within the intended meaning of the statute.

Finally, appellants’ argument that Building 1614 was essentially a commercial “hotel” located in a “populated, residential area,” and therefore falls within the “noncovered land” exception of section 537.348(3)(d) is without merit. The record does not support appellants’ contention that the Fort was “predominately used for residential purposes,” nor that Building 1614 was operated as a commercial enterprise. Nor can we accept appellants’ argument that the United States acted with willful and wanton disregard for the safety of the troops or negligently failed to protect them against an ultrahazardous condition. There simply has been no evidence presented to establish either of these theories.

The judgment of the district court granting summary judgment in favor of the United States is affirmed.

II. Boy [**13] Scouts of America

The appellants also challenge the district court’s grant of summary judgment in favor of the Boy Scouts of America. The appellants contend there is a genuine issue of material fact as to whether an agency relationship existed between the BSA and the adult volunteers of Troop 392 so as to provide for vicarious liability for any negligence on the part of the adult leaders. The appellants claim the BSA had the right to control and supervise Troop 392’s adults, that the BSA is liable for the negligent acts of the troop’s adult leaders which were committed within the scope and course of their agency relationship, and further that the troop’s adult leaders were clothed with implied and apparent authority to act on behalf of the BSA when they were present at Fort Leonard Wood.

The appellants first argue that the district court improperly considered the affidavit of Lloyd Roitstein, Area Director in the North Central Region of the Boy Scouts of America, in considering the relationship between the national organization and the individual troops because the affidavit was not based on personal knowledge. We agree with the district court that Roitstein’s role as an Area Director [**14] establishes his personal familiarity with the Boy Scout organization and conclude that the affidavit was properly considered.

The Boy Scouts of America is a congressionally chartered benevolent national organization, which is divided into geographic areas known as local councils. Three hundred ninety-eight local councils are chartered in the United States. Local sponsors, such as schools, churches or civic organizations apply for charters from the BSA through their local council. Local volunteers form a patrol leaders’ council to plan troop activities. BSA does not conduct or require any training for these adult volunteers. Troops do not need permission from BSA before participating in activities, with the exception of tours outside the United States or five hundred miles or more from the local council. The BSA had no advanced notice of Troop 392’s trip to Fort Leonard Wood. The troop was not required, nor did it receive, permission from the BSA to go to Fort Leonard Wood.

[HN6] Under the doctrine of respondeat superior an employer is liable for the negligent acts or omissions of his employee which are committed within the scope of his employment. Light v. Lang, 539 S.W.2d 795, 799 (Mo. App. Ct. 1976). [**15] Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties. Usrey v. Dr. Pepper Bottling Co., 385 S.W.2d 335, 338 (Mo. Ct. App. 1964). The test to determine if respondeat superior applies is whether the person sought to be charged as a master had “the right or power to control and direct the physical conduct of the other in the performance of the act.” Id. at 339. If there is no right to control, there is no liability.

Courts of other jurisdictions that have addressed the issue now before this court have rejected the imposition of liability against the BSA or the local councils, [*959] noting the lack of control these entities exercise over individual troops and their sponsoring organizations. For example, in Mauch v. Kissling, 56 Wash. App. 312, 783 P.2d 601 (Wash. Ct. App. 1989), the court found there was no basis for the doctrine of apparent authority because the plaintiff had not presented evidence that BSA consented to or had control of the scoutmaster’s activities. Id. at 605.

Similarly, in Anderson v. Boy Scouts of America, Inc., 226 Ill. App. 3d 440, 589 N.E.2d 892, 168 Ill. Dec. 492 (Ill. App. Ct. 1992), [**16] the court found the plaintiffs had failed to establish that an agency relationship existed between the plaintiffs and the local council or the BSA:

We find no provisions in the charter, bylaws, rules and regulations promulgated by the BSA, nor can plaintiffs cite to any provisions within these documents, which specifically grant BSA or its district councils direct supervisory powers over the method or manner in which adult volunteer scout leaders accomplish their tasks.

Id. at 894-95.

Recently, the Missouri Court of Appeals considered the Wilson’s cause of action against the St. Louis Area Council of the Boy Scouts of America, arising from the same circumstances of the instant case. The Missouri court dismissed the suit against the local council, finding that “Council neither controlled the actions of the troop leaders nor ran the program at Fort Leonard Wood.” While the Missouri state court decision involved the local council, it is instructional here because the relationship between the national organization and the individual troop leaders is even more remote.

Appellants also contend that sufficient facts establish a jury question as [**17] to whether a principal/agent relationship existed under a theory of implied agency or apparent authority. Implied agency and apparent authority, however, are based on manifestations by the principal which causes a third person reasonably to believe that an agent of the principal is authorized to do certain acts. Barton v. Snellson, 735 S.W.2d 160, 162 (Mo. Ct. App. 1987). Appellants contend the use of common uniforms, emblems, books and awards in the scouting program, a national insurance program, issuance of the national membership card and other printed materials locally, as well as other indicia of a relationship between BSA and the local council, create a manifestation of authority upon which an innocent third party might reasonably rely.

Appellants fail, however, to produce any evidence that BSA manifested that it had direct control over the specific activities of individual troops or that it had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity. On the contrary, the Boy Scout Handbook clearly provides, “what the troop does is planned by the patrol leaders’ council.” The organizational structure of the BSA [**18] leaves the control of the specific activities at the level closest to the individual troop. Appellants have produced no direct or circumstantial evidence to suggest that in this case BSA manifested control.

In summary, we conclude that the district court properly granted summary judgment in favor of the Boy Scouts of America and the United States. The judgment of the district court is affirmed.


The legal relationship created between manufactures and US consumers

An Overview of the legal relationship created between manufactures and US consumers.

This is a quick memo to simply outline the legal issues encountered by foreign corporations selling in the US Market. This memo will touch on the following issues:

Agency

An agent legally represents the manufacture. From a legal standpoint the agent stands in the shoes of the manufacture. An agent speaks and acts for the principal, the manufacture. As such the manufacture is liable for anything the agent says or does while representing the manufacture until the agency is terminated and that termination is communicated to interested third party consumers.

An agency relationship exists when a principal (in this case the manufacture or distributor) creates a legal relationship with a third party for the third party to represent the principal. In this case the third party is a retailer of products or an independent contractor sales representative. This relationship can be by contract (oral or written) or by actions on the part of either party (I’ll pay you if you do that).

An agency can be created without a legal relationship. Agency by Estoppel is created when third parties or consumers believe that one party has vested rights or an agency in another based on the actions of the principal. If a sales rep says he works for a manufacture and the manufacture does nothing to terminate the relationship or refine the relationship in the minds of the consumer or the shop then the agency does in fact exist. The parameters of the relationship are as defined by the consumer as reasonably interpreted from the actions of the agent. Failure to stop or disclaim the agency confirms the agency.

This places a tremendous burden on manufactures to create a relationship with agents that is within the parameters and/or restrictions the manufacture wants and then to insist the agent work within those parameters. However, if the manufacture does nothing to enforce the parameters or knows the agent is working outside of the parameters the manufacture will be held liable for the acts of the agent.

A good contract outlining the relationship is necessary for most independent contractor’s representative and required by seventeen (17) states.

Agency by law is another type of agency that is created. These are actions that the courts have interpreted over time to be agency relationships. A specific example in this case is again the manufacture and the distributor or the manufacture and the rep. Courts have determined that for the distributor or rep to do their jobs there is an agency relationship for the agent to act for the manufacture. Agency by law then is interpreted to mean the agent has the basic responsibility to act on behalf of the manufacture.

This places a burden on manufactures to do two things. (1) Hire agents who will understand and respect the agency relationship as defined by the manufacture. That then requires a well written contract that gives the agent freedom to do their job and at the same time reserves the rights and powers that the manufacture wishes to retain. (2) To act quickly when the manufacture sees someone acting outside of the defined relationship or a third party who is acting like an agent.

These place tremendous burdens on the manufacture. However the burdens were created to prevent the consumer, who has little or no way of checking on the relationship from getting ripped off.

Specifically a sales rep is the same as a bike shop, both are selling for the manufacture and the public can rely on both in the same way.

Warranties

A warranty is created every time there is a sale. Most warranties in the US are defined in the Uniform Commercial Code (UCC) and in a few cases state and federal laws. Specific Federal laws may affect the sale of certain items such as the Magnuson-Moss Warranty Act which covers warranties on automobiles.

In every sale the UCC states that there is a Warranty of Fitness and a Warranty for a Particular Purpose (UCC – ARTICLE 2 -§2-314 & 315).

§ 2-314. Implied Warranty: Merchantability; Usage of Trade.

(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

(2) Goods to be merchantable must be at least such as

(a) pass without objection in the trade under the contract description; and

(b) in the case of fungible goods, are of fair average quality within the description; and

(c) are fit for the ordinary purposes for which such goods are used; and

(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

(e) are adequately contained, packaged, and labeled as the agreement may require; and

(f) conform to the promise or affirmations of fact made on the container or label if any.

§ 2-315. Implied Warranty: Fitness for Particular Purpose.

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

As innocent as these warranties appear, they are the basis for product liability lawsuits and can be used to void more limiting warranties. However both of these warranties can be voided.

An example of the problem would be a camming device. The salesman states the camming device will work “no matter what.” The user drags the device through the mud so it is just caked and won’t work properly. The consumer uses the device, it fails because of the mud and the consumer is injured. The consumer could sue for their injuries under a breach of warranty theory because the device did not live up to the reason why it was purchased. This is a breach of the fitness for a particular purpose warranty.

Another example of the problem would be selling a bicycle. The salesman states the bicycle will be easy to ride. The new owner has never used a derailleur shifted gears on a bicycle and constantly has trouble shifting the gears. During one attempt to change gears the consumer hits a sewer grate suffering serious injuries. The consumer could sue for their injuries under a breach of warranty theory because the device did not live up to the reason why it was purchased. This is a breach of the fitness for a particular purpose warranty.

There is an out in the law that allows a manufacture to argue that the statements were salesman’s “puffing.” That means the statements that a salesman makes to sell a product that may be over the top. However because the warranty was not properly disclaimed the salesman’s puffing is not a valid defense. This may be in addition to any claim for basic product liability issues.

State Consumer Protection Laws

Each state has enacted a serious of Consumer Protection Laws. These laws are designed to “level the playing field” between consumers and large manufactures. Although the specifics may vary for each state in general the laws lower the threshold needed to prove a case against the manufacture and increase the damages for the consumer. In some cases damages are trebled, with interest costs and attorney fees being added to the damages.

Another disadvantage for manufactures is the manufacture can be forced to defend the action in the consumer’s state if products are sold in that state.

Colorado’s Consumer Protection Act, C.R.S. §§ 6-1-105 et seq has the following sections that would be of interest.

(1) A person engages in a deceptive trade practice when, in the course of such person’s business, vocation, or occupation, such person:

(d) Uses deceptive representations or designations of geographic origin in connection with goods or services;

(r) Advertises or otherwise represents that goods or services are guaranteed without clearly and conspicuously disclosing the nature and extent of the guarantee, any material conditions or limitations in the guarantee which are imposed by the guarantor, the manner in which the guarantor will perform, and the identity of such guarantor. Any representation that goods or services are “guaranteed for life” or have a “lifetime guarantee” shall contain, in addition to the other requirements of this paragraph (r), a conspicuous disclosure of the meaning of “life” or “lifetime” as used in such representation (whether that of the purchaser, the goods or services, or otherwise). Guarantees shall not be used which under normal conditions could not be practically fulfilled or which are for such a period of time or are otherwise of such a nature as to have the capacity and tendency of misleading purchasers or prospective purchasers into believing that the goods or services so guaranteed have a greater degree of serviceability, durability, or performance capability in actual use than is true in fact. The provisions of this paragraph (r) apply not only to guarantees but also to warranties, to disclaimer of warranties, to purported guarantees and warranties, and to any promise or representation in the nature of a guarantee or warranty; however, such provisions do not apply to any reference to a guarantee in a slogan or advertisement so long as there is no guarantee or warranty of specific merchandise or other property.

(3) The deceptive trade practices listed in this section are in addition to and do not limit the types of unfair trade practices actionable at common law or under other statutes of this state.

Colorado’s statute allows the judge to award treble damages, interest and attorney fees if the consumer is successful in the suit. C.R.S. 6-1-113. §§ Damages

Here again the warranties come into play. If the consumer can prove the warranties are not disclaimed and the claim falls within the deceptive trade practices act or a common claim for deceptive trade practices, the damages for the warranty claim are increased.

European Union certifications & the US

Many manufactures from Europe or Asia believe that meeting standards for manufacturing products in Europe is all that is needed to sell in the US. That is correct. However those standards provide no defense in a US Court against product liability claims.

Product liability lawsuits are lawsuits against the manufacture and all entities in the chain of the sale. A product liability action can be brought against the bicycle shop, the distributor and the manufacture of a product. There are three basic product liability claims.

  • Defective manufacture
  • Defective Design
  • Failure to warn

Defective manufacture claims are usually brought when only one product fails because there was a flaw in the manufacturing process for that product. The flaw caused an injury to the consumer using the product.

Defective design is usually the claim made when all of a type of product fails causing injury. A defective design claim can be brought at any time during the useful life of a product. This claim is brought when all of the products of a design fail for the same reason. The design flaw can either be based on the product breaking causing injury or the design preventing the product from working as advertised or as used by consumers.

The most difficult claim to defend is a failure to warn. This claim has two parts. Failure to warn at the time of the purchase and failure to warn of new issues the manufacture learns about. Failure to warn claims are the basics for information and warning labels that are not written in a manner to adequately inform the consumer of the risks of using the product.

Failure to warn claims that arise after time are usually a result of several Defective manufacture claims. Once a manufacture knows of problems in the way a product is being used OR that a product is being used incorrectly, the manufacture MUST warn all users of the problem. This type of claim in practice is similar to a product recall. However a product recall is done before an injury occurs. A failure to warn claim is the lawsuit brought after a recall.

The running of a warranty period does not end product liability claims.

Jurisdiction and Venue

Foreign manufacture believe that by setting up a US distributor, any lawsuit can only be brought against the US distributor and not the parent company in Europe. That is not true. US law allows a lawsuit against the end manufacture, wherever that manufacture is located if the manufacture entered the product in the stream of commerce in the state where the injury occurred or where the consumer lives. Proof of entering into the stream of commerce is a combination of factors: employees or agents living or working in the state; advertising in the state; contracting with retailers to sell the product in the state; advertising at events in the state are a few examples used to prove the manufacture entered the stream of commerce in a particular state.

In some cases, a manufacture can limit suits to just a few states with proper venue and jurisdiction clauses in their information to the consumer; however this is not always successful and will not work in all states. Either way, a foreign manufacture will be brought into the US to defend a product liability claim.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

© 2010 James H. Moss

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #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, #Agency, #Warranty, #Disclaimers, #StateConsumerProtectionLaws, #EuropeanUnioncertifications, #Jurisdiction, #Venue, #ImpliedWarranty, #Merchantability, #ImpliedWarranty, #WarrantyofFitnessforParticularPurpose, #independentcontractor, #rep, #representative, #Principal,

Technorati Tags: ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
Windows Live Tags:
consumers,Agency,Disclaimers,Consumer protection,European Union,Jurisdiction,Venue,agent,distributor,retailer,contractor,sale,Uniform Commercial Code,items,Magnuson Moss Warranty Act,ARTICLE,Usage,Trade,seller,buyer,user,theory,Another,bicycle,owner,gears,sewer,defense,addition,Although,specifics,threshold,attorney,fees,disadvantage,action,Colorado,person,vocation,occupation,origin,connection,services,nature,extent,limitations,guarantor,manner,representation,life,lifetime,requirements,paragraph,disclosure,purchaser,period,tendency,degree,performance,disclaimer,reference,slogan,advertisement,statute,Damages,Here,Many,Europe,Asia,Court,Defective,Design,flaw,injury,basics,result,Once,problems,lawsuit,Foreign,parent,commerce,Proof,combination,employees,events,Either,Leave,Recreation,Edit,Recreaton,Gmail,James,Keywords,adventure,Principal,corporations,sales,parameters,agents,automobiles,purposes,variations,units,affirmations,lawsuits,injuries,statements,representations,designations,purchasers,statutes,retailers,certifications,merchantable
WordPress Tags:
consumers,Agency,Disclaimers,Consumer protection,European Union,Jurisdiction,Venue,agent,distributor,retailer,contractor,sale,Uniform Commercial Code,items,Magnuson Moss Warranty Act,ARTICLE,Usage,Trade,seller,buyer,user,theory,Another,bicycle,owner,gears,sewer,defense,addition,Although,specifics,threshold,attorney,fees,disadvantage,action,Colorado,person,vocation,occupation,origin,connection,services,nature,extent,limitations,guarantor,manner,representation,life,lifetime,requirements,paragraph,disclosure,purchaser,period,tendency,degree,performance,disclaimer,reference,slogan,advertisement,statute,Damages,Here,Many,Europe,Asia,Court,Defective,Design,flaw,injury,basics,result,Once,problems,lawsuit,Foreign,parent,commerce,Proof,combination,employees,events,Either,Leave,Recreation,Edit,Recreaton,Gmail,James,Keywords,adventure,Principal,corporations,sales,parameters,agents,automobiles,purposes,variations,units,affirmations,lawsuits,injuries,statements,representations,designations,purchasers,statutes,retailers,certifications,merchantable
Blogger Labels:
consumers,Agency,Disclaimers,Consumer protection,European Union,Jurisdiction,Venue,agent,distributor,retailer,contractor,sale,Uniform Commercial Code,items,Magnuson Moss Warranty Act,ARTICLE,Usage,Trade,seller,buyer,user,theory,Another,bicycle,owner,gears,sewer,defense,addition,Although,specifics,threshold,attorney,fees,disadvantage,action,Colorado,person,vocation,occupation,origin,connection,services,nature,extent,limitations,guarantor,manner,representation,life,lifetime,requirements,paragraph,disclosure,purchaser,period,tendency,degree,performance,disclaimer,reference,slogan,advertisement,statute,Damages,Here,Many,Europe,Asia,Court,Defective,Design,flaw,injury,basics,result,Once,problems,lawsuit,Foreign,parent,commerce,Proof,combination,employees,events,Either,Leave,Recreation,Edit,Recreaton,Gmail,James,Keywords,adventure,Principal,corporations,sales,parameters,agents,automobiles,purposes,variations,units,affirmations,lawsuits,injuries,statements,representations,designations,purchasers,statutes,retailers,certifications,merchantable

Enhanced by Zemanta