Lawsuit over drowning of summer camper

Lawsuit asking for $13 million for death of 15 year old boy.

I don’t know any more about this than what the article says and the articles are limited in their facts (and probably wrong.) The article states the teen drowned when he was encouraged to walk behind a waterfall and fell in.

A counselor also drowned who tried to save the camper. The issue is camper did not have a PFD (life jacket) on.

Along with the camp four churches are being sued.

The amount seems a little excessive. This is going to be an interesting lawsuit to follow.

See http://rec-law.us/17FVwkx and http://rec-law.us/1385oUH

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Why did Everest Get Its Name

John Boyle presentation July 23, 2013

clip_image002

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An example of adults and money getting in the way of kids has fun

If more playgrounds were like this, more kids would be outside and more adults would be happier.

What happens when adults tell kids how to have fun. You get structure, organization, injuries and lawsuits. You get budgets and planning and rules. What do

Two playground sets at Hudson Springs Park in ...

Two playground sets at Hudson Springs Park in Hudson, Ohio. \

kids get…..not much!

Read this article. Tear Down the Swing Sets

It looks at what happens when you allow kids to play with each other without structure, without rules, without “equipment.” Some of the studies looked at kids playing with sand or foam blocks and having more fun than any kids have with playground equipment.

When was the last time you looked at kids playing on a playground and came up with a thought like this? “These children are intent, they are cooperative, they are resourceful.”

However, with so much “adult,” community planning and legal involvement we ended up with this.

Then the grownups got skittish. Down came the merry-go-rounds and the jungle gyms, and in their place, a landscape of legally-insulated, brightly-colored, spongy-floored, hard-plastic structures took root. Today, walking onto a children’s playground is like exiting the interstate: Regardless of where you are, you see the exact same thing.

The article also looks at keeping kids safe and finds that does not work. 1. It is not possible and 2 it does not help kids to grow and mature. Kids need to know, experience and understand risk. The head of England’s Royal Society for the Prevention of Accidents said, “…children should be exposed to a certain degree of risk, not because an activity is risky per se but because it is fun, exciting, and challenging.”

This is awesome.” Kids who are bored stay inside and staying inside is ultimately far worse for your health than a broken arm.”

Kids need to be kids to learn about risks, to have fun and to grow. That does not require the intervention, direction or control of adults.

English: Kids playground

English: Kids playground (Photo credit: Wikipedia)

For Similar Articles about this:

This article takes a real look at the risks parents allow their children to face http://rec-law.us/Zwk2yp

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Colorado Department of Transportation looking to hire a Bicycle/Pedestrian Specialized Analyst

You’ll be dodging big trucks but making a difference!

Colorado Department of Transportation

Colorado Department of Transportation (Photo credit: Wikipedia)

Class Title: GENERAL PROFESSIONAL IV

Type of Announcement: This position is open only to Colorado state residents.

Closing Date/Time: Wed. 06/26/13 11:59 PM Mountain Time

Primary Physical Work Address: 4201 East Arkansas Ave., Denver, CO 80222

Salary: $4,733.00 – $6,828.00 Monthly

FLSA Status: Exempt; position is not eligible for overtime compensation.

Job Type: Full Time

Location: Denver Metro, Colorado

How To Apply: Thank you for your interest. Submit an on-line application by clicking the link below or submit a State of Colorado Application for Announced Vacancy and all supplemental questions according to the instructions provided below. Failure to submit a complete and timely application may result in the rejection of your application. Applicants are responsible for ensuring that application materials are received by the appropriate Human Resources office before the closing date and time listed above.

If not applying on-line, submit application to: CDOT Workforce Staffing Attn: Erin Hardin, 4201 E. Arkansas Ave. Suite 290, Denver, CO 80222

Department Contact Information: Erin Hardin, 303.757.9797, erin.hardin@state.co.us

Methods of Appointment: Appointment to the vacancy or vacancies represented by this announcement is expected to be from the eligible list created. However, at the discretion of the appointing authority, the position(s) may be filled by another method of appointment for a valid articulated business reason.

Transcripts Required: An unofficial copy of transcripts must be submitted at the time of application. Transcripts from colleges or universities outside the United States must be assessed for U.S. equivalency by a NACES educational credential evaluation service. This documentation is the responsibility of the applicant and must be included as part of your application materials. Failure to provide a transcript or credential evaluation report may result in your application being rejected and you will not be able to continue in the selection process for this announcement.

For more information and to apply go to: http://rec-law.us/12HqwTG

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Electronic gadgets including video cameras interfere with Avalanche Beacons

Before you head out, find out what electronics interfere and which ones you should leave in the car or turn off.

This video popped up the other day: Transceiver / Go Pro Interference. It shows a video camera affecting an avalanche beacon. If you wear a beacon, and you should, in or out of bounds, you should know which of your electronics may affect your beacon.

Transciver Interference

Dale Atkins, an Avalanche Guru and Recco’s Training and Education Manager for North America told me:

English: Rescuer using RECCO R9 detector on tr...

English: Rescuer using RECCO R9 detector on training drill in Colorado.

GoPros cause grief to some transceivers (and probably to all), but this is not a surprise, and it’s not the fault of the transceiver companies. All electronic devices generate electromagnetic fields. The problem is more noticeable with GoPros (and likely with other movie cameras, too) than with our cell phones or radios because communication devices have shielding. GoPros, iPods, power lines, ski lift motors, thunderstorms, etc. do not.

These electronic devices (and phenomena) rarely cause problems for a sending transceiver, and typically only a few centimeters of separation are enough. However, receive is another story. Transceiver companies have for a number of years recommended one separate electronic gear from their receiving transceiver by 30 centimeters. However, over the years this “electronic” gear was usually shielded communication devices, so the 30 cm distance was more than sufficient. However, now with other electronic gizmos, like GoPros that are “on” (powered) all the time, I suspect we’ll see a new recommendation from the transceiver companies. It might say something to the effect that these devices be turned off and removed off the searcher. However, that’s my guess.

Reccois a non-beacon avalanche search device. The handheld device locates buried victims based on a small bar that is usually sewn into their clothing. If you are

English: Avalanche rescue search with RECCO de...

English: Avalanche rescue search with RECCO detector

looking for ski or mountaineering clothing, I would suggest you look for something that has the Recco Reflector sewn in and a Recco hangtag.

So?

If you ski wearing a beacon, you should pay attention to what is going on with all the battery operating devices you carry.

If you are an Avalanche Beacon manufacturer, you should probably put a notice or warning in your instructions to let people know of the risks.

What do you think? Leave a comment.

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Truer words were never spoken!

clip_image002

Thanks Jef Mallett

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It’s that time of year, release stops lawsuit against ski club

Logo of Indianhead Mountain

Masciola, v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603

Illinois‘s decision holds that the release in question covered the issue complained of by the plaintiff who caused his injuries.

The plaintiff in this case was a member of the Chicago Metropolitan Ski Council, a ski club. The plaintiff entered a race put on by the defendant ski council at Indianhead Mountain, Michigan. To enter the race the plaintiff had to sign a release.

While racing the plaintiff hit a compression area in the race course which caused him to be thrown into telephone poles that marked the finish line. The plaintiff’s injuries were never specified in the decision.

The plaintiff alleged the unsafe conditions of the race course were not contemplated by the release, and the parties were acting under a mutual mistake of fact.

Summary of the case

English: Near the top of the PomaLift at India...

A mutual mistake of fact is usually a way to void a contract. Remember a contract, which a release is, requires a meeting of the minds. Normally, with a release, you write the release so the meeting of the minds is agreed to when the guest signs the agreement.

If the parties do not agree on the specific issues of a contract, the reasons for a contract, then a contract is void. An example would be party A wants to sell his beat up second car. Party A tells party B that his car is for sale. Party B has never seen the second car and assumes party A is selling his good car; the only one party B, thinks party A, owns.

The contract between party A and party B would be void because of mistake of fact. Party A and Party B never had a meeting of the minds on what was being bought/sold so there was no contract.

Under Illinois’s law, like in most states, releases are disfavored, but upheld if there is no fraud, willful and wanton conduct [on the part of the defendant] or legislation prohibiting releases. If those requirements are met the court next looks at the position of the parties to make sure there is no disparity in the bargaining power between the parties. Here because skiing and ski racing is recreational and the plaintiff did not have to race, there was no disparity.

The next requirement is different.

…the question of whether or not an exculpatory clause will be enforced depends upon whether or not defendant’s conduct and the risk of injury inherent in said conduct was of a type intended by the parties to fall within the scope of the clause.

The risk which caused the injury must not be set out specifically in the release; the release must just show that the risk was contemplated by the parties to the release. The court found the release covered the problems the plaintiff claimed injured him.

So Now What?

English: The base of the Nastar course at Indi...

Simply put make sure your release has a broad description of the risk intended to be covered by the release. First start with the life-changing  events, death, quadriplegia, and work your way done to those things that although not of high severity do occur with high frequency.

If you do keep accident reports (see Why accident reports can come back to haunt you.) go through the reports to identify the risks that should be in your release. Always include the loss of property. Dropped phones while riding a ski lift and lost sunglasses whitewater rafting are probably the number one issue that irritates guests. Cover those issues, other minor issues and major problems in your release.

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Snooze you lose or actually in this case you do it wrong to begin with then you won’t correct it, then you fight about it for a decade, then you lose.

ASTM committee approves standards for zip lines, rope’s courses, challenge courses,

Hochseilgarten Dankern

aerial trekking courses, and canopy tours.

Sid Roslund the National Ski Area Associations Technical Guru announced the other day that ASTM (American Society of Testing and Materials) F24 committee on Amusement Rides and Devices had approved new standards for Aerial Adventure Courses. An aerial adventure course is defined as zip lines, ropes courses, challenge courses, aerial trekking courses, and canopy tours.

This should effectively make the ACCT and the PRCA obsolete.

See http://rec-law.us/T7EAKf

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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!

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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

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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.

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

Copyright 2012 Recreation Law (720) Edit Law

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Why do people sue? Not for the money.

Answer their questions and you don’t give someone a reason to find a lawyer.

The headline is Parents file suit against city and club. The lawsuit is over the death of a 6 year old boy who drowned in a city pool less than a month before.

Could you predict this lawsuit was going to happen? I think you could if you were the city. Here are four hints that maybe you are going to be sued.

Hint #1 Even the attorney says the lawsuit is to get information.

“From the family’s point of view, it has been three weeks (since their son died) and they have no information on what happened,” Whitaker said.

“They still don’t know what actually happened.”

He said the lawsuit seeks monetary damages for wrongful death, but a big part of the filing is to have access to information about how the child died.

“All my clients are hearing right now is second-hand,” he said. “It’s terrible for them.”

Hint #2 If you plan to get sued you will get sued.

City officials referred all questions regarding the lawsuit to City Attorney Allen Betz. An employee at Betz’s office said he was out of the office Friday and could not be reached for comment.

Hint #3 If you don’t answer a parent’s questions you are going to get a lawsuit.

“We just want to know what happened. The family feels the only way they will get answers is through the lawsuit.”

Parents wanted to know what happened to their child and the only answers they received was “call the city’s attorney.” There are three major and stupid reasons for doing this.

1. The attorney was not there and therefore, can’t answer any questions.

2. Attorneys don’t answer questions anyway.

3. Attorneys intimidate people. Who wants to talk to an attorney?

I know, I’m an attorney!

What was another hint?

Hint #4 The lawsuit was filed 25 days after the death. People never file lawsuits that soon.

Within three weeks of the death, the family has all ready hired an attorney. Whether because they felt so frustrated that they felt they had no choice, or because they had to fight fire with fire (attorney v. attorney) or a combination of reasons, that should be a hint you need to do something or pay attorneys!

The only real legal issue in the article is the miscommunication between the parents and the pool employees.

In the lawsuit, Whitaker said Terry Lavka told a woman stationed at the sign-in table when he took his son there for the summer day camp that Samuel Lavka was afraid of water, could not swim and should not be allowed near the big pool.

“They didn’t want him in the pool because he couldn’t swim,” Whitaker said. “They were told that, and the parents believed those instructions would be followed.

If someone tells you or one of your employees something about their concerns, fees or beliefs about what you are going to do, you need to correct them or pay attention to them. Here the parents believed that because they had told the pool employees something that was the way it was going to be.

This is a tragic accident. A six year old boy drowns in a city pool. The tragedy is compounded because the parents still don’t know what happened to their son. Their grief will not end but be compounded for years as the litigation drags on, and they grasp tidbits of answers about what happened.

For other articles about this issue see: It’s Not Money and Serious Disconnect: Why people sue.

What do you think? Leave a comment.

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

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