Finken v. USA Cycling, Inc., 2020 U.S. Dist. LEXIS 97928

Finken v. USA Cycling, Inc., 2020 U.S. Dist. LEXIS 97928

United States District Court for the District of Utah

June 3, 2020, Decided; June 3, 2020, Filed

Civil No. 1:17-cv-79

Counsel:  [*1] For Gerald Finken, Plaintiff: P. Matthew Muir, LEAD ATTORNEY, Lesley A. Manley, JONES WALDO HOLBROOK & MCDONOUGH, SALT LAKE CITY, UT.

For USA
Cycling, Defendant: Robert L. Janicki, LEAD ATTORNEY, Lance H. Locke, STRONG & HANNI, SANDY, UT.

For Ogden Weber Convention Visitors Bureau, Ogden/Weber Convention & Visitors Bureau, Defendants: Lloyd R. Jones, LEAD ATTORNEY, LAW OFFICE OF LLOYD R JONES, OKLAHOMA CITY, OK.

For Breakaway Promotions, LLC, Defendant: Dennis R. James, LEAD ATTORNEY, MORGAN MINNOCK RICE & MINER, SALT LAKE CITY, UT.

Judges: Clark Waddoups, United States District Judge. Magistrate Judge Paul M. Warner.

Opinion by: Clark Waddoups

Opinion

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Plaintiff Gerald Finken entered the 2014 USA
Cycling Masters Road Championship race. On August 25, 2014, Finken did a pre-ride of the course using the map published for the race. As he came around a turn on the route, he saw a concrete barrier blocking the road. Finken attempted to swerve around it, but crashed and suffered serious neck and back injuries. He has filed suit against USA Cycling, Inc. and Breakaway Promotions, LLC for negligently failing to warn riders about the barricade. Defendants have moved for summary judgment [*2]  on the ground that Finken signed a waiver of liability. For the reasons stated below, the court denies the motions for summary judgment.

FACTUAL BACKGROUND

The 2014 USA
Cycling Masters Road Championship race (“2014 Championship”) was held in Weber County, Utah on September 3-7, 2014. “USA
Cycling is the national governing body for the sport of cycling in the United States of America and was responsible for conducting the 2014 Championships.” Amended Complaint, ¶ 11 (ECF No. 20); USA
Cycling Answer, ¶ 11 (ECF No. 30). It entered into an Independent Contractor Agreement with Breakaway Promotions, LLC (“Breakaway”), where Breakaway agreed to perform multiple duties, including implementing the “course design and layout for each race course as well as start and finish areas.” Breakaway Agmt., ¶ 7 (ECF No. 56-7). Breakaway also agreed to be responsible for “[a]ll organization and course safety evaluations for each race venue.” Id. Breakaway further agreed to supply information “for the race Technical Guide” and contracted that such information would be “precise and accurate[].” Id.
USA
Cycling retained the responsibility, however, to publish the Technical Guide “in a reproducible format that [*3]  [could] be printed or sent digitally.” Id. The Technical Guide included maps and course route information.
1
USA
Cycling Depo., 33:19-35:1 (ECF No. 38-5) (given by Charles R. Hodge).

Before publication, USA
Cycling typically reviewed maps to ensure compliance with its rules. Leif Depo., 9:24-10:10 (ECF No. 45-1). Once a map “was approved, [it] would post it online and make it part of the event materials.” Id. 10:10-14. “One of the purposes of posting” the map online was so “participants or prospective participants [could] see . . . where the course [was to be] located.” Id. at 10:15-20. Chad Sperry, the owner of Breakaway, asserts Breakaway prepared “a preliminary map” for USA
Cycling to review, and then “USA
Cycling created their own map for the technical guide and to post online of this particular race course.” Sperry Depo., 30:4-17 (ECF No. 56-8). USA
Cycling disputes it prepared the map. Id. at 30:18-23; Leif Depo., 11:1-5 (ECF No. 45-1).

Part of the route for the race went along State Road 226, which is known as the Old Snowbasin Road. Prior to “submit[ing] the course layout to USA
Cycling for the event,” Breakaway knew a portion of the road was closed near the Ard Nord Trailhead. [*4]  Sperry Depo., 20:10-14, 23:1-3 (ECF No. 56-8). A concrete barricade had been placed across the road due to the road’s condition beyond the barricade. Id. at 21:2-6, 22:16-20. The plan was to have the barricade removed after the road was repaired for the race. Id. at 26:21-23. No warnings about the road closure were noted when the course map was posted for participants to view.

Sperry did a site visit in early August 2014, and saw the concrete barriers were still in place at that time. Id. at 22:9-15, 23:8-11. Additionally, Rachel Leif, USA
Cycling‘s National Events Manager, also learned prior to the race that a portion of the road was closed. Leif Depo., 12:22-24 (ECF No. 45-1). “[A] concerned masters rider” sent an email to USA
Cycling, which contained photographs of the route, including a picture of the concrete “barriers across the road and a ‘Road Closed’ sign.” Id. at 14:1-19, 15:3-5. The Vice President of National Events, Micah Rice, forwarded the email to Sperry on August 5, 2014, and copied Leif on it. Id. at 14:18-22, 39:24-40:2. “[B]y August 5th or 6th, 2014, [Leif] understood the road was closed.” Id. at 15:10-13. Although she “was the point person,” and knew she was viewing [*5]  pictures of the racecourse, she did not take action to notify participants of the road closure at that time. See id. at 13:11-17, 15:6-9, 16:13-22. Her conversations with participants pertained only to potholes that needed to be fixed in the road. Id. at 17:14-18. This is so even though Leif knew that “race participants will often pre-ride a course to prepare.” Id. at 30:3-10. Similarly, Sperry took no action to notify participants about the closure. Sperry Depo., at 40:10-25 (ECF No. 56-8).

On August 25, 2014, Finken did a pre-ride of the course using the map provided by USA
Cycling. Finken Depo., 60:5-7, 63:6-16 (ECF No. 38-3). Finken alleges he rode the route cautiously during his pre-ride due to his lack of knowledge about the course and wet road conditions. Id. at 68:8-25. Nevertheless, as he came around a turn and saw the concrete barriers across the road, he “locked up the brakes” but was not able to stop. Id. at 78:18-79:12. He attempted to swerve onto a worn path beside the barrier, but his handlebars and left hand struck the barrier. Id. at 77:10-16, 80:7-12, 82:24-83:21. Finken became airborne and landed on his right side. Id. at 82:4-5, 83:25-84:2. He was hospitalized for [*6]  two days for serious neck and back injuries. Id. at 107:16-108:25.

After the accident, USA
Cycling modified the Technical Guide to warn participants doing a pre-ride that a portion of the route was closed and would remain closed until the day before the event. Leif Depo., 24:23-25:3, 26:3-7, 27:9-21. Finken contends Breakaway and USA
Cycling were negligent in not giving that warning sooner. Both defendants contend, however, they cannot be liable for negligence because Finken signed a pre-injury waiver entitled, “Acknowledgment of Risk, Release of Liability, Indemnification Agreement and Covenant not to Sue” (the “Waiver”).

Finken registered for the race on or about July 27, 2014. Order Summary, at 4 (ECF No. 45-1). Part of that registration required Finken to sign the Waiver. Finken does not recall seeing or signing the Waiver, but for purposes of these summary judgment motions, it is undisputed that he signed it. The Waiver is broad. It notes “that cycling is an inherently dangerous sport” and includes dangers such as “collision with pedestrians, vehicles, other riders, and fixed or moving objects.” Waiver, 2 (ECF No. 56-6) (emphasis omitted). It further notes “the possibility of serious [*7]  physical and/or mental trauma or injury, or death associated with the event.” Id.
Finken agreed to “waive, release, discharge, hold harmless, and promise to indemnify and not to sue” USA
Cycling and specified others for “any and all rights and claims including claims arising from [their] own negligence.” Id. (emphasis omitted). Finken also agreed to release “all damages which may be sustained by [him] directly or indirectly in connection[] with, or arising out of, [his] participation in or association with the event, or travel to or return from the event.” Id.

ANALYSIS

I. SUMMARY JUDGMENT STANDARD

“Summary judgment is proper if the movant demonstrates that there is ‘no genuine issue as to any material fact’ and that it is ‘entitled to judgment as a matter of law.'” Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (quoting Fed. R. Civ. P. 56(c)). The defendants’ motions seek summary judgment based on the terms of a preinjury waiver. The parties have applied Utah law to address the claims in this case.

II. WAIVER AND INDEMNITY AGREEMENTS

In Utah, “[i]t is well settled that preinjury releases of claims for ordinary negligence can be valid and enforceable.” Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 25, 301 P.3d 984 (citation omitted). “Indeed . . . the majority of jurisdictions” permit “people to surrender their rights [*8]  to recover in tort for the negligence of others.” Id. (citations omitted). This does not mean, however, that preinjury waivers are favored. Rather, “the shortcomings of exculpatory clauses . . . provide ample cause to approach preinjury releases with caution.” Berry v. Greater Park City Co., 2007 UT 87, ¶ 11, 171 P.3d 442, overruled in part by Penunuri, 2017 UT 54, ¶¶ 22, 27, 423 P.3d 1150. Thus, not all preinjury waivers are valid. “Specifically, (1) releases that offend public policy are unenforceable; (2) releases for activities that fit within the public interest exception are unenforceable; and (3) releases that are unclear or ambiguous are unenforceable.” Penunuri, 2013 UT 22, ¶ 25, 301 P.3d 984 (quotations and citations omitted).

As to indemnification provisions, “[i]n general, the common law disfavors agreements that indemnify parties against their own negligence because one might be careless of another’s life and limb, if there is no penalty for carelessness.” Hawkins v. Peart, 2001 UT 94, ¶ 14, 37 P.3d 1062 (quotations and citation omitted). “Because of this public safety concern,” Utah court’s “strictly construe indemnity agreements against negligence.” Id. (citation omitted).

A. Clarity of the Waiver

“Preinjury releases, to be enforceable, must be communicated in a clear and unequivocal manner.” Pearce v. Utah Athletic Found., 2008 UT 13, ¶ 22, 179 P.3d 760, 767, overruled in part by Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶¶ 22, 27, 423 P.3d 1150, (quotations and citations omitted). The Utah [*9]  Supreme Court has stated, “[t]o be effective, a release need not achieve perfection . . . . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.” Id. (quotations and citation omitted). Whether a contract is facially ambiguous is a question of law. Daines v. Vincent, 2008 UT 51, ¶ 25, 190 P.3d 1269 (citation omitted). If there is ambiguity as to the intent of the parties, that is a question of fact requiring admission of parol evidence. Id. (citation omitted). In this case, however, the court only addresses facial ambiguity because if the Waiver is not clear on its face, it is unenforceable.

i. USA
Cycling

The Waiver has clear language releasing USA
Cycling from negligence. What is less clear is negligence from what activity? The Waiver notes “that cycling is an inherently dangerous sport” due to such dangers as “collision with pedestrians, vehicles, other riders, and fixed or moving objects.” Waiver, at 2 (ECF No. 56-6) (emphasis added). It further notes “the possibility of serious physical and/or mental trauma or injury, or death associated with the event.” Id. (emphasis added). These provisions appear to provide notice about the event itself and [*10]  the dangers that may arise from it. Finken‘s injuries, however, arose from a pre-ride. When a map is published of a racecourse on a public road, one reasonably anticipates that road is open to travel. Although both defendants knew the road was closed until the race, they did not inform participants of that fact. Thus, they exposed pre-riders to a risk that is not inherent in a race on a public road. See Rutherford v. Talisker Canyons Fin., Co., LLC, 2019 UT 27, ¶¶ 19, 79, 445 P.3d 474 (citation omitted) (noting inherent risks are those that are an essential characteristic of a sport and “cannot be alleviated by the use of reasonable care” by an operator).

The Waiver goes on to state, however, that it releases “all damages which may be sustained by [Finken] directly or indirectly in connection[] with, or arising out of, [his] participation in or association with the event, or travel to or return from the event.” Id. (emphasis added). The only reason Finken was on the Old Snowbasin Road was in preparation for the event. His pre-ride therefore was in connection with his participation in that 2014 Championship race. Accordingly, the court concludes the Waiver was clear as to USA
Cycling.

ii. Breakaway

Breakaway contends the waiver also applied to it because it releases [*11]  “USA
Cycling‘s Event Directors, Affiliates, Agents, and Officials.” Mem. in Supp., at 14 (ECF No. 56). While the Waiver does release those persons, Breakaway has not specified which of those it was. It has failed to show it was an event director, affiliate, agent, or official.

The Waiver was USA
Cycling‘s waiver, and it appears to protect those persons directly affiliated with USA
Cycling. Based on Leif’s title as National Event Manager and Rice’s title as Vice President of National Events, the “Event Directors” may reference them and not Breakaway. The term is not defined in the Waiver and is too ambiguous for the court to conclude the Waiver is sufficiently clear on its fact to apply to Breakaway.

Breakaway entered an Independent Contractor Agreement that specifies it was “not an employee, or servant of” USA
Cycling. Breakaway Agmt., ¶ 2 (ECF No. 56-7). The agreement further specifies that Breakaway would “be solely and entirely responsible for its acts, and for the acts of independent contractor’s agents, employees, servants and subcontractors during the performance of this agreement.” Id. ¶ 3 (emphasis omitted). Nowhere in the agreement does it identify Breakaway as an event director, [*12]  or as an affiliate, agent, or official of USA
Cycling.

Because the Waiver does not clearly and unambiguously extend to Breakaway as an independent contractor, the court concludes Finken‘s claim against Breakaway is not barred67 c x.

B. Public Interest Exception

The public interest exception invalidates a preinjury release when “it attempts to limit liability for activities in which there is a strong public interest.” Berry, 2007 UT 87, ¶ 12, 171 P.3d 442. The Utah Supreme Court has adopted the six factors stated in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963) to determine if the public interest exception applies. Pearce, 2008 UT 13, ¶ 17, 179 P.3d 760 (citations omitted). For recreational activities, however, it has gone one step further. In Pearce, the Court “join[ed] other states in declaring, as a general rule, that recreational activities do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception.” Id. at ¶¶ 18, 21.

As stated above, Finken‘s pre-ride was done in connection with his expected participation in the 2014 Championship. Because the event and the pre-ride were recreational activities, the court concludes the public interest exception is inapplicable in this case.

C. Public Policy Exception

Finken [*13]  further contends the Waiver is unenforceable because it is contrary to public policy. “To determine whether a contract offends public policy,” a court must “first determine whether an established public policy has been expressed in either constitutional or statutory provisions or the common law.” Penunuri, 2013 UT 22, ¶ 26, 301 P.3d 984. The Utah Supreme Court also has stated, “for a contract to be void on the basis of public policy, there must be a showing free from doubt that the contract is against public policy.” Id. (quotations, citation, and alteration omitted). Thus, this exception should be applied, “if at all, only with the utmost circumspection.” Id. (quotations and citation omitted).

i. Penunuri Analysis – Equine Act

In Penunuri, the Utah Supreme Court addressed whether Utah’s Equine and Livestock Activities Act made certain preinjury waivers unenforceable as a matter of public policy. The waiver at issue in Penunuri, noted “that horseback riding involves significant risk of serious personal injury, and that there are certain inherent risks associated with the activity . . . that may result in injury, harm, or death to persons on or around them.” Id. at ¶ 3 (quotations omitted).

Utah’s Equine Act specifies “equine [*14]  activity sponsors are not liable for injuries caused by the ‘inherent risks’ associated with equine activities.” Id. at ¶ 9 (citing Utah Code Ann. § 78B-4-202)). The same section also specifies, however, that a sponsor may be liable if an injury results from actions of the sponsor. Utah Code Ann. § 78B-4-202(2). The plaintiff argued the Legislature struck a balance as a matter of public policy by removing liability for inherent risks but keeping liability for negligent actions. She asserted the balancing of interests was similar to the Court’s analysis in Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560. Thus, she argued any waiver barring recovery from a sponsor who was negligent was contrary to public policy. The Court disagreed.

It found the Equine Act did not have a public policy statement like Utah’s Inherent Risk of Skiing Act addressed in Rothstein. Id. at ¶ 24. When the Legislature eliminated liability for the inherent risks of horseback riding, it did “not explain the motivation behind” that decision. Id. at ¶ 32. Nor did the Equine Act note the economic importance of the activity for the State. Most importantly, it lacked the central purpose of the Skiing Act to “permit equine sponsors to purchase insurance at affordable rates.” Id. at ¶ 33 (quotations and citation omitted). [*15]  “[I]t was that ‘central purpose’ . . . that led [the Court] to infer that the Legislature had struck a ‘public policy bargain’ when it eliminated liability for the inherent risks of skiing.” Id. Without “a similar expression . . . in the Equine Act,” the Court “resist[ed] the temptation to add language or meaning to the Act where no hint of it exist[ed] in the text.” Id. (quotations and citation omitted). Thus, the Court concluded the waiver in Penunuri did not violate public policy. The Court reached a similar conclusion in Pearce, whereby “a preinjury release between a public bobsled ride operator and an adult bobsled rider” was deemed enforceable. Pearce, 2008 UT 13, ¶ 15, 179 P.3d 760.

ii. Rothstein Analysis – Skiing Act

The distinguishing factor between Rothstein and other cases is the combination of a public policy statement and a legislative balancing of risks between operators and participants. In Rothstein, a skier “collided with a retaining wall constructed of stacked railroad ties and embedded partially in the mountain.” Rothstein, 2007 UT 96, ¶ 3, 175 P.3d 560. “At the time of the accident, a light layer of snow camouflaged the retaining wall from [the skier’s] view. . . . [T]he retaining wall was unmarked and no measures had been taken to alert skiers [*16]  to its presence.” Id. Rather, the ski resort “had placed a rope line with orange flagging near the wall,” but the rope stopped short and created “a large gap between the end of the rope and a tree.” Id. The skier thought the gap “indicated an entrance to the Fluffy Bunny run.” Id. He suffered serious injuries when he collided with the retaining wall. Id.

When analyzing Utah’s Skiing Act, the Court observed that “[s]eldom does a statute address directly the public policy relevant to the precise legal issue confronting a court.” Id. ¶ 11. It nevertheless found a clear “public policy rationale” for the Skiing Act. Id. Within that statute, the Legislature found that skiing “‘significantly contribute[es] to the economy of this state.'” Id. ¶ 12 (quoting Utah Code Ann. § 78-27-51 renumbered at
§ 78B-4-401). The Legislature also found ski operators were having difficulty obtaining insurance at an affordable rate or at all. Id. (citing Utah Code Ann. § 78-27-51). Thus, it struck a balance where operators could not be held liable “‘for injuries resulting from those inherent risks.'” Id. (quoting Utah Code Ann. § 78-27-51).

The Court therefore found the following:

The bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would [*17]  be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance. By extracting a preinjury release from [the skier] for liability due to their negligent acts, [the resort] breached this public policy bargain.

Id. ¶ 16. The distinguishing factor between the balance struck in the Equine Act and the balance struck in Skiing Act was the express public policy statement that the balance was necessary due to the economic benefit to the State and the ski resort’s inability to insure itself for the inherent risks associated with skiing.

iii. Bike Racing Analysis

The facts giving rise to Finken‘s injuries are closely analogous to the facts in Rothstein. In Rothstein, a wall was unmarked and where one did not expect it to be. In this case, a barricade was unmarked on the course map and where one did not expect it to be. Neither the wall nor the barricade was within the inherent risks of the relevant sport. Although the facts are similar between the two cases, the issue before the court is whether Utah has a public policy that precludes USA
Cycling from avoiding liability for risks that are not inherent in a [*18]  bike race.

The Utah Legislature has found there are inherent risks associated with bike riding. Utah Code Ann. § 78B-4-509(1)(a), (d). For injuries arising from inherent risks of participating in bike riding, the Legislature has afforded protection to “a county, municipality, local district, . . . or special service district.” Id.
§ 78B-4-509(2)(a). It also has afforded protection to “the owner of property that is leased, rented, or otherwise made available to” the government “for the purpose of providing or operating a recreational activity.” Id.
§ 78B-4-509(2)(b). The Legislature chose not to “relieve any other person from an obligation that the person would have in the absence of this section to exercise due care.” Id.
§ 78B-4-509(3)(b). That balance is different from the Equine Act and the Skiing Act because it leaves operators of biking events without any statutory protections.

In another section of statute, the Legislature more particularly addressed bike races. It stated bike racing is permitted on a highway only if approved by the highway authority of the relevant jurisdiction. Id.
§ 41-6a-1111. The State has a significant interest in ensuring safety on its public highways. Bike racing can impact not just the participants, but spectators or those in a motor vehicle trying [*19]  to navigate the same highway. Thus, the Legislature specified before approval may be granted, conditions must exist to “assure reasonable safety for all race participants, spectators, and other highway users.” Id.
§ 41-6a-1111(2)(b).

The Utah Department of Transportation instituted regulations to carry out the intent and purpose of the statute. The Department noted one purpose of its regulation was to “[e]ncourage and support special events such as . . . bicycle races” because it “recognize[d] their importance to Utah’s economy and to the well-being of residents of and visitors to Utah.” Utah Admin. Code R920-4-1(1)(b). Nevertheless, “to further . . . governmental interests,” it implemented safety protocols to ensure “[t]he safety of all participants in, and spectators of, special events,” as well as the travelling public. Id. at R920-4-1(2)(b), (c).

One protocol requires a person or entity to obtain a special event permit before holding a bike race on a highway. Id. at R920-4-1(4)(g), (i). To obtain a special event permit, the applicant must “provide a detailed map.” Id. at R920-4-13. The applicant also must have “liability insurance,” and such insurance must list the State of Utah “as an additional insured.” Id. at R920-4-9(1);  [*20] see also id. at R920-4-6. Consistent with statute, the applicant must obtain a waiver and release of liability from participants that releases the State and governmental personnel. Id. at R920-4-9(3)-(4). Although the statutory provision bars claims against the government for inherent risks, the regulatory waiver bars all claims. Similarly, though, there is no exclusion from liability for the operator of a bike race.

Based on the Rothstein analysis and harmonization of the relevant statutes and regulations, the court concludes the Legislature and Department of Transportation allow bike races on public highways but recognize inherent risks associated with such races. Safety is paramount because a bike race can impact not only those in the race, but spectators, or motorists who have no association with it. Detailed maps and liability insurance are pre-requisites to obtaining a special event permit to help protect against risks. As the Utah Supreme Court noted in Hawkins, “one might be careless of another’s life and limb, if there is no penalty for carelessness.” Hawkins, 2001 UT 94, ¶ 14, 37 P.3d 1062 (quotations and citation omitted). Thus, the requirement for liability insurance helps ensure safety for participants, spectators, [*21]  and the travelling public.

Utah has recognized, however, that if liability insurance must cover inherent and non-inherent risks of a sport, the cost may be prohibitive and thereby hinder holding events or activities that would provide an economic benefit to the state. Hindering such economic benefits would be contrary to one of the stated purposes of the regulation. Thus, one may reasonably conclude that liability for inherent risks may be waived by the bike race participants so as not to hinder the economic benefits to the State.

The court concludes, however, if an operator is allowed to obtain a waiver from participants even for risks that are not inherent in the sport, it would alter one of the elements for a special event permit. Liability insurance is meant to cover liabilities. If all liability has been waived for bike participants, then the purpose for carrying liability insurance is altered as to those participants. Because bike races on highways are prohibited unless the reasonable safety of participants, spectators, and the travelling public may be assured, a balance was struck and cannot be altered via a waiver of liability. Accordingly, the court concludes as a matter of [*22]  public policy, the Waiver in this case is unenforceable because it attempts to waive liability even for non-inherent risks arising from or associated with the negligent acts of USA
Cycling.
2

iv. Modification of the Utah’s Skiing Act

An additional issue has arisen since briefing on the motions. From 2007 until 2020, the Rothstein balance existed between operators and skiers whereby preinjury waivers were enforceable for risks inherent in skiing, but not for unforeseen risks arising from the negligent actions of the operator. See Rothstein, 2007 UT 96, ¶¶ 16, 19, 175 P.3d 560. In 2020, the Utah Legislature altered this balance by passing legislation that allows preinjury waivers without regard to whether the risk was unforeseen. Utah Code Ann. § 78B-4-405 (2020). Moreover, claims brought on or after May 12, 2020, if not otherwise barred, have a noneconomic damages cap of $1,000,000. Id. at § 78B-4-406. The Legislature’s actions have abrogated the ruling in Rothstein and will necessarily impact future preinjury waiver analyses for other recreational activities.

The question here is whether the Legislature’s change of public policy should be applied retroactively to the analysis in this case. The United States Supreme Court has stated “the principle that the legal effect [*23]  of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S. Ct. 1483, 1497, 128 L. Ed. 2d 229 (1994) (quotations and citation omitted). Moreover, the Due Process Clause “protects the interests in fair notice and repose that may be compromised by retroactive legislation.” Id. at 266 (citation omitted).

Here, the legislation was approved on March 28, 2020, but made effective May 12, 2020. This shows a clear intent for future application of law. Accordingly, the public policy analysis applied in Rothstein was still applicable at the time of the events in this case and informs this court’s decision.

CONCLUSION

For the reasons stated above, the court DENIES the Motions for Summary Judgment filed by USA
Cycling and Breakaway (ECF Nos. 38, 56).

DATED this 3rd day of June, 2020.

BY THE COURT:

/s/ Clark Waddoups

Clark Waddoups

United States District Judge


Houston, we have a problem! Colorado should be the North American Capitol of Bicycle Racing! We need to support the next two days of the Colorado Classic race to become what our cycling destiny should be.

Attendance at Vail was terrible and the racing was fantastic!

Bicycle racing like we have in Colorado is fun. The Colorado Classic has gone to extraordinary links to increase the fun aspect of all parts of the race.

Day 3 in Denver will bring premier a new course we have not seen in decades if ever. Starting and ending in downtown Denver, the course will take in Wheat Ridge, Lakewood, Golden, Kittredge, Evergreen, Conifer and include Dinosaur Ridge, a classic front range hill. Here again, there will be dozens of opportunities to see the racers up close and personal!

Day 4 is the classic downtown Denver crit from downtown to City Park and back. Women will race this course four times and men eight. This gives spectators another opportunity to see speed and see it several times as the racers come past. Watch in amazement, eat a sandwich, have a beer and watch in amazement, repeat.

The real difference is the Velorama. A combination music festival and cycling street fair. I went between races and enjoyed my time there. It adds easy ways to get fed and still enjoy the wait times between race laps or races.

Issues from 2018.

  1. You have to get the word out that you don’t have to have a Velorama ticket to watch the race. Several people who I expected to watch the race said they did not because of the cost.

    The Velorama provides more fun and most importantly more income to support the bicycle race. Yes, we have grown accustomed to watching a lot of amateur racing in Colorado for free. However, a professional race costs a lot more money. Support the race by buying a ticket to Velorama.

    However, if you can’t you should still go see the bicycle races. A least buy a hat!

Issues Now 2019

1. We knew about the Velorama; no one knew about the Colorado Classic. It got lost in the push to finance the race. Press releases about the race were few and far between, and 90% of those covered the music festival. I understand Velorama is financing the race. I understand, to a limited degree, how much a bicycle race costs to put on, especially one brining in UCI World teams.

But we may be, to use a phrase from my “upbringing” throwing the baby out with the bath water. In an effort to pay for the race, we forgot to tell people about the race.

2. The news has to get out earlier than weeks before the race. People schedule their summers all winter long. We work through the winter to ski and plan for summer. By the time press releases started coming out about the race, it was too late. People had their summer booked.

Driving down from Vail this afternoon I was in a crowd of cars, team trailers and an RV or two. But the traffic leaving Denver was bumper to bumper and stopped in several places. Those people are too late for the Vail races and not going to see the Denver racing. And the Denver racing is going to be great!

Colorado is better than that. I rode a press car up twice during the time-trial today and saw one I knew about the course. The last time I did that I saw dozens of people I knew. The hillside at the now-defunct pro challenge at the time, trial finish line was covered with bicycles of people who had ridden up from Summit Count or from Vail. Today there was one bike on the hillside.

The racing was great. I followed Gillian Ellsay, @GillianEllsay of Rally Cycling, @Rally_Cycling up the time trial in the media car; she passed six other riders, five on the uphill section of the course. She was amazing. You should have seen this 21-year-old phenomena kick butt. Her time was better than a lot of the men later that day. You missed it if you weren’t there.

Yet the time-trial today carried on a tradition of racing on that course, the Vail Time Trial, first started in 1975. The course is so well known, that European cyclists know about it and today a lot of them learned about it, steep hill and no oxygen. 43 years of racing just on this one spot, think of the tires and sweat that have hammered up that hill.

I understand this is a balancing act money versus not having racing, and like 99.99% of the people in the US, I don’t have a solution, and it sounds like all I can do is complain. That is NOT my goal. My goal is to keep professional cycling in Colorado as a sport, not just the home of great cyclists who are racing other places.

However, I think a few of these things can be solved cheaply, hopefully.

So what, if a lot of July cycling yellow jerseys are not present. You can see future yellow jersey wearers now and tell your friends in seven years how you knew they were going to be leaders when you first watched them race at the Colorado Classic. And we got Taylor Phinney @taylorphinney riding. Taylor are you having a good time? “Always!” is new Colorado blood and sweat with the greatest smile and attitude professional cycling needs. Get out and cheer @taylorphinney on! (@TaylorPhinney which my spell checker want’s to change to @ethylmorphine?)

More importantly, if you are reading this find a shady spot on a hill for tomorrow’s races, MEN’S and WOMEN’S and enjoy what is truly a spectacular sport. Find a cooler, umbrella and chair and plan on spending Sunday watching the crit at city park or the Rhino district. No matter what, unclip and get out to watch professionals, men and women race this weekend!

What do you think? Leave a comment.

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Colorado Classic Bike Race Announces Top Pro Women’s Teams

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Colorado Classic Bike Race Announces Initial Lineup of Top Pro Women’s Teams

Expanded, four-stage women’s race runs August 16-19, in Vail and Denver

DENVER—At least 14 of pro cycling’s top women’s teams will compete in the newly expanded Colorado Classic in August, race officials announced today.

The second annual Colorado Classic will showcase women’s cycling by doubling the number of stages for female competitors in 2018, expanding from two to four stages with courses similar to the men’s race.

The effort to advance women’s racing is already paying dividends by attracting teams that include some of the fastest women in the sport.

“We’re building one of the premier pro cycling events in North America for women as well as men, and the caliber of this year’s women’s teams – coupled with expanding from two to four stages – is an important step in the process,” said David Koff, CEO of RPM Events Group, the organization that puts on the Colorado Classic.

The women’s Colorado Classic will once again feature some of the sport’s top squads. To date, officials have secured 14 women’s teams including Rally Cycling, whose Sara Poidevin dominated the Colorado Classic in 2017:

  • Rally Cycling* (USA)
  • UnitedHealthcare Pro Cycling Team* (USA)
  • Twenty20 presented by Sho-Air* (USA)
  • Hagens Berman / Supermint* (USA)
  • ALP Cycles Women’s Racing Team (USA, Colorado based)
  • Amy D. Foundation – (USA, Colorado based)
  • CONADE-Specialized-Visit Mexico Pro Cycling Team (MEX)
  • Fearless Femme (USA)
  • Orion Racing(USA)
  • Palmares (USA, Colorado based)
  • Point S Auto / Nokian Tyres (USA)
  • QCW Cycling Team (USA)
  • Stages Cycling Team (USA, Colorado based)
  • Team Affinity (USA, Colorado based)

* Indicates UCI registered women’s team

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Though rosters won’t be announced until later this summer, the teams that will be competing include racers who are previous podium finishers from the inaugural Colorado Classic, Olympic medalists, National Champions and World Champions.

The women’s Colorado Classic will be held in conjunction with men’s racing over the course of four days, beginning in Vail on August 16 with a circuit race through Vail Village, followed by a time trial up Vail Pass. When the Classic moves to Denver on August 18, the women will race a dynamic criterium around the Velorama Festival, followed by a final circuit race through the RiNo Art District and downtown Denver to City Park on Aug. 19.

The four-stage women’s race will cover:

Stage 1: Vail Village Circuit (Thursday, August 16)
Stage 2: Vail Pass Time Trial (Friday, August 17)
Stage 3: Denver Criterium (Saturday, August 18)
Stage 4: Denver City Park Circuit (Sunday, August 19)

The men’s and women’s stages of the Colorado Classic are part of the USA Cycling Pro Road Tour, which showcases the premier domestic road events in the United States.

“Colorado has a tremendous legacy for hosting world-class women’s cycling that dates back to the ‘80s, and we’re building on that this year with the expanded women’s race and a great field,” said Women’s Race Director and UCI Road Commission member Sean Petty. “The strong response we’ve received from the top U.S. women’s teams honors that legacy, and we expect incredible racing from some of the best riders in the world.”

RPM Events Group, organizer of the race, is committed to advancing women’s racing and empowering women through cycling by investing significant resources in expanding the race, routes, video and streaming recap coverage and fan engagement for women. Additional resources for expanding the women’s race were supplied in part by Antero Resources, an independent exploration and production company headquartered in Denver, and a sponsor of the Colorado Classic women’s race.

“As avid cyclists ourselves, we understand the power of cycling to transform lives,” said Paul Rady, founder, Chairman and CEO of Antero Resources. “We are proud to sponsor an expanded women’s race at the Colorado Classic and help create a more level playing field for women athletes everywhere.”

Last week, the race announced an international field of 15 of the top men’s pro cycling teams.

For more information, please visit www.ColoradoClassic.com.

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Colorado Classic Announces 2018 Team Line UP, a lot of Favorites are Back

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15 Men’s Teams Including 4 World Tour Teams Coming to Colorado Classic
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Today we announced the initial lineup of men’s teams for the 2018 Colorado Classic. The teams, which come from six countries, include four UCI World Tour teams, five UCI Professional Continental squads, five UCI Continental teams, and the return of the national Team Rwanda Cycling.

We will announce our women’s teams later this month, and we expect a similar field of competitive teams. The men’s teams are:

UCI World Tour Teams

Team EF Education First-Drapac P/B Cannondale (USA)

Trek-Segafredo (USA)

Mitchelton-Scott (AUS)

Team LottoNL-Jumbo (NED)

UCI Professional Continental Teams

Hagens Berman Axeon (USA)

Holowesko|Citadel P/B Arapahoe Resources (USA)

Israel Cycling Academy (ISR)

UnitedHealthcare Professional Cycling Team (USA)

Rally Cycling (USA)

UCI Continental Teams

Aevolo (USA)

Elevate-KHS Pro Cycling (USA)

Jelly Belly P/B Maxxis (USA)

Silber Pro Cycling (CAN)

303 Project (USA)

National Teams

Team Rwanda Cycling (RWA)

For more information, visit our website at ColoradoClassic.com, or read our blog post.

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Read Our Blog Post!
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6 Ways Colorado Biking is Best
It takes ample amounts of black top, singletrack, sunshine and friendly people to create a biker’s paradise to match Colorado. Lively Colorado biking communities ensure that events abound, spring through autumn, and that road-biking and trail-riding options proliferate in every part of the state.
Check out this article
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We released our 2018 Routes
Did you miss our route release? Read our blog post to learn more about Stages 1 and 2 in Vail, and Stages 3 and 4, starting and finishing in Denver.
Route Release Blog Post
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Interested in volunteering for the Colorado Classic?
Fill out our volunteer interest form, and you will be contacted by our Volunteer Coordinator closer to the event.
Become a Volunteer!
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2017 Cycling Pro Tour Announced, includes a race in Colorado!

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2017 Pro Road Tour schedule announced

(Oct. 20, 2016) – USA Cycling announced Thursday the 2017 Pro Road Tour (PRT) calendar, which features a tighter and more geographically convenient lineup of events since the 2016 merger of the National Racing Calendar (NRC) and National Criterium Calendar (NCC).

“We have had input from the Pro Road Committee and various teams, athletes and race directors, including a sit-down meeting in May, and we feel that this lineup of events is an excellent step in the second year of the Pro Road Tour,” said Micah Rice, Vice President of Events, USA Cycling. “We had a great first year of the PRT last year, and we feel that 2017 will allow for some excellent racing.”

2017 Pro Road Tour:

Date

Event

Location

Classification

March 30-April 2

Joe Martin Stage Race

Fayetteville, Ark.

UCI 2.2 M/W

April 8-9

Sunny King Omnium

Anniston, Ala.

M/W

April 19-23

Tour of the Gila

Silver City, N.M.

UCI 2.2 M/W

April 30

Dana Point Grand Prix of Cycling

Dana Point, Calif.

M/W

May 3-7

Redlands Bicycle Classic

Redlands, Calif.

M/W

May 28

Winston-Salem Classic Criterium

Winston-Salem, N.C.

M/W

May 29

Winston-Salem Road Race

Winston-Salem, N.C.

UCI 1.1 M/W

June 4

Philadelphia International Cycling Classic

Philadelphia, Pa.

UCI 1.1 Men

June 9-11

Saint Francis Tulsa Tough

Tulsa, Okla.

M/W

June 14-18

North Star Grand Prix

Minneapolis, Minn.

M/W

July 14

Chrono Kristin Armstrong Time Trial

Boise, Idaho

UCI 1.2 M/W

July 15

ASWB Twilight Criterium

Boise, Idaho

M/W

July 19-23

Cascade Classic

Bend, Ore.

UCI 2.2 M/W

July 31-Aug. 6

Larry H. Miller Tour of Utah

Utah

UCI 2.HC Men

Aug. 10-13

Tour of Colorado

Colorado

UCI 2.HC Men

Aug. 19

Rochester Twilight Criterium

Rochester, N.Y.

M/W

Aug. 24-27

Tour of the Commonwealth

Virginia

UCI 2.1 Men

Sept. 1-4

Gateway Cup

St. Louis, Mo.

M/W

Sept. 9

Reading 120

Reading, Pa.

UCI 1.2 Men

Sept. 10

Doylestown Criterium

Doylestown, Pa.

M/W

Sept. 16

Mayor’s Cup Boston

Boston, Mass.

M/W

The revamp of the 2017 calendar aims to eliminate weekends with multiple events and make racing more geographically convenient for teams, allowing them to compete as much as possible from March to September. Given the order and timing of the 2017 PRT, teams can get to a greater amount of races relative to the overall schedule in a more cost-effective manner.

In the event that two or more events fell on the same weekend when creating the 2017 calendar, USA Cycling looked at a number of factors printed as selection criteria in the published bid packet. Size of event, media market/footprint, level of event production, popularity among riders and teams, spectator count—including on-site, broadcast and social media engagement, event history and other criteria were taken into account.

For questions, please contact Rice at mrice@usacycling.org.

 

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USA ProChallenge gear is now available. Race is a month away. Get Ready

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STEAMBOAT SPRINGS | ARAPAHOE BASIN
COPPER MOUNTAIN | ASPEN | BRECKENRIDGE | LOVELAND
FORT COLLINS | GOLDEN | DENVER
AUGUST 17-23, 2015
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PEARL IZUMI & USA PRO CHALLENGE ANNOUNCE GROUNDBREAKING YEAR-ROUND PARTNERSHIP “Pearl Izumi has been an exceptional partner since day one of the Pro Challenge, as the official provider of our race jerseys,” said Shawn Hunter, CEO of USA Pro Challenge. “We have no doubt that in this expanded role their designs for the entire Pro Challenge merchandise line will be a huge hit with our fans. We are extremely pleased that Pearl Izumi decided take on this exciting new role with us.

READ MORE

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Host City Highlight: Arapahoe Basin
Join A-Basin’s two-day festival of concerts, camping and cycling on Monday, August 17 and on the day of the USA Pro Challenge Stage 2 finish – Tuesday, August 18, 2015. Sample one of our famous A-Basin Bacon Bloody Marys and hang out with the “funnest” people in Summit County.READ MORE
UPCOMING EVENTS
Northern Colorado Community Ride7/21/15 – 6p – Fort Collins
Copper Mountain Community Ride7/26/15 – 12:30p – Copper
Denver Community Ride8/2/15 -12:20p – Denver

Volunteer Registration is Now Open for the USA ProChallenge

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STEAMBOAT SPRINGS | ARAPAHOE BASIN
COPPER MOUNTAIN | ASPEN | BRECKENRIDGE | LOVELAND
FORT COLLINS | GOLDEN | DENVER
AUGUST 17-23, 2015
Volunteer Registration is now open! Cycling fans and enthusiasts alike are encouraged to take part in making it all happen by signing up for volunteer positions along the 604 mile course, which winds it’s way through Steamboat Springs, Arapahoe Basin, Copper Mountain, Aspen, Breckenridge, Loveland, Fort Collins, Golden and Denver.
CLICK HERE TO SIGN-UP NOW!

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Lexus Ride Like a Pro Sweepstakes during the USA ProChallenge

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Dear Pro Challenge Fan,How would you like to attend two stages of the USA Pro Challenge as a Lexus VIP?Lexus is giving one winner and guest a trip to remember at the 2015 USA Pro Challenge, August 20th and 21st, 2015. The opportunity to “Ride Like a Pro” starts at Stage 4 in Aspen. Guests will be whisked away in a Lexus to follow the pros on course and end in Breckenridge, where they will enjoy VIP hospitality.Accommodations for stage 4 will be provided by Lexus Hotel Partner St. Regis Aspen. Winner will also take home official USA Pro Challenge merchandise.

The Lexus Ride Like a Pro Sweepstakes is brought to you exclusively by Lexus, a proud partner of USA Pro Cycling Challenge. To read the rules and regulations, click here.

*Trip will include round-trip coach class air transportation for winner and one (1) guest from a major commercial airport near the winner’s residence to a major commercial airport near Aspen, CO. Hotel accommodations will include four days/three nights from Wednesday, August 19, 2015 through Saturday, August 22, 2015 (one room, double occupancy). Sponsor is not responsible if any event listed in the prize description above is canceled, delayed or postponed.

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Click Here
to Enter Sweepstakes
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2015 USA Pro Challenge Route will Attract Great Racers and Great Fans

USA PRO CHALLENGE ANNOUNCES 2015 ROUTE WITH EPIC MOUNTAINTOP FINISH AND ALTITUDE INFUSED TIME TRIAL

New Host Communities Arapahoe Basin and Copper Mountain

Promise to Delight Fans

DENVER (April 28, 2015) – The 2015 USA Pro Challenge swings into action in its fifth year with a new circuit start in Steamboat Springs on Monday, August 17th and then it makes its way through another eight stunning host cities for the race finale in Denver on Sunday, August 23, 2015.

The Rocky Mountains of Colorado serve as home for the USA Pro Challenge, and every year since its inception over a million fans get to witness the world’s best cyclists, iconic routes and lung-piercing climbs of the seven stage event. With the State of Colorado containing 28 of the 50 highest peaks in the United States, it’s no surprise the race is a favorite for the world’s top teams and cyclists.

“Each of our 2015 host cities offers something unique and special to the 5th anniversary of the Pro Challenge,” said Shawn Hunter, CEO of USA Pro Challenge. “We’re confident that this year’s route will provide the most exciting week of racing yet. We have added new cities and a dramatic mountaintop finish that will prove to be a fierce battleground for riders eager to show they have what it takes to compete on a new climb up Loveland Pass.”

The Pro Challenge has grown into the largest spectator event in Colorado history with tremendous crowds enjoying the weeklong race action and event festivities. New additions to this year’s race include: Arapahoe Basin, Loveland Pass, Copper Mountain and a lung buster time-trial in Breckenridge, a new twist for a familiar host city of past races. This year the USA Pro Challenge also pays homage to the inaugural race in 2011 with a repeat of that year’s final stage – from Golden to Denver.

The 2015 USA Pro Challenge race is back with a combination of familiar host cities and new communities added into the mix.

Highlights of the route include:

Stage 1 – Steamboat Springs Circuit – Monday, August 17, 2015

After a brief venture onto the rolling roads of Routt County in 2013, the USA Pro Challenge knew it had to make a return to put on a classic circuit race. The quiet roads offer straights, twists, and a few rather steep surprises. Match that with the fan favorite host city of Steamboat Springs, and you have the makings of a great opening stage. This 49-mile circuit will be completed twice by the peloton, creating great spectator opportunities both in Steamboat Springs and for on course locations like the Rt. 27 KOM climb and the town of Oak Creek. Will Steamboat Springs be treated to another classic sprint finish or will the challenges of Routt County create an opportunity for a surprise first yellow jersey of 2015? Either way, the fans of Steamboat Springs will be treated to quite a show.

Stage 2 – Steamboat Springs to Arapahoe Basin – Tuesday, August 18, 2015

As the Pro Challenge says goodbye to its overall start host, Steamboat Springs, it welcomes a new member to the family with the race’s first visit to Arapahoe Basin. Leaving Steamboat Springs there is little time to settle in before the pros have to tackle Rabbit Ears Pass. From there, this familiar route heads south through Kremmling, around the Green Mtn. Reservoir, and continues through Silverthorne and Dillon. Unlike years past, the 2015 Pro Challenge will then turn east and suffer 5 miles up Loveland Pass to Arapahoe Basin. Look for jerseys to change hands, dreams fulfilled for some, expectations dashed for others, on this new mountain top finish.

Stage 3 – Copper Mountain to Aspen – Wednesday, August 19, 2015

Another new twist on an old favorite, but this time it is the opening that changes. Copper Mountain plays host to its first ever Pro Challenge stage and sends off Stage 3 in style, while familiar terrain and fans await the race on Independence Pass and the run into Aspen.

No rest for the weary this day as the climbing starts right away with the ascent of Freemont Pass, followed by the gorgeous shores of Turquoise Lake and then a quick sprint through Leadville. However that is only the appetizer as the main course awaits on the upper slopes of Independence Pass and then it’s down the breathtaking descent into Aspen where some of the most memorable moments in Pro Challenge history have played out.

Oh, and by the way, over half of Stage 3 takes place above 10,000 feet. Bring your lungs.

Stage 4 – Aspen to Breckenridge – Thursday, August 20, 2015

This crowd-pleasing stage from 2013 is back for an encore in 2015 as it connects the Pro Challenge’s two most visited towns; Aspen and Breckenridge. Starting off with 20 miles of climbing up Independence Pass is a rude wake up call, but that is only the beginning. The racers still have the climbs of Trout Creek Pass and Hoosier Pass to conquer, while sprints in Buena Vista and Fairplay dot the route to Breckenridge. Once in town, one final obstacle stands between the riders and victory, the wall up Moonstone road and the drop down Boreas Pass to the finish where the always boisterous crowds of Breckenridge await.

Stage 5 – Breckenridge Time Trial – Friday, August 21, 2015

Completely new for 2015, the Breckenridge Time Trial will test all of a rider’s skills and will produce a truly worthy winner. The 8.5-mile time trial starts out flat for the pure time trialists. However, it’s not long before it’s back onto the climb up Moonstone road, still fresh in the pain file from the day before and a real test of climbing skills. Finally, the race could be won or lost going downhill this day, as racers will push the limits on the Boreas Pass descent to shave seconds off their time. Whoever wins the day will certainly be one who can hammer the flats, dance up the climbs, and carve down the descents.

Stage 6 – Loveland to Ft. Collins – Saturday, August 22, 2015

The start and finish location of Stage 6 may be familiar, but what lies between the two is new and challenging.

The early flats and sprints in Windsor and Loveland hide the wicked side of the route that waits in the second half. It may not have the grand names or the huge elevation numbers, but the lower and smaller climbs of this stage still have a serious sting. Climbing the north side of Carter Lake and then onto the new climb up Rist Canyon should get everyone’s attention. It may also present one of the last chances for overall contenders to make a move. Wrapping up with the jagged rollers of Horsetooth Reservoir before bombing into Ft. Collins, this stage proves that a race doesn’t need to reach 12’000’ to be epic.

Stage 7 – Golden to Denver – Sunday, August 23, 2015

For a finale the Pro Challenge goes back to its roots. This route was the final stage of the first Pro Challenge in 2011 and introduced the world to the cycling crowds on the Front Range.

After a short loop north of Golden the race will tackle its main obstacle of the day, the 4-mile climb of Lookout Mtn. Another quick pass of Golden and the race is screaming through Wheat Ridge and Lakewood en route to downtown Denver. Four laps of the familiar Denver circuit await and Civic Center Park, City Park, and 17th street will be treated to blazing speeds as the last prizes of the week are fought for over tooth and nail.

One of the most highly anticipated events on the race calendar, the 2015 USA Pro Challenge will test the riders’ strength and endurance over a 605 mile course. To give fans the opportunity to see their heroes up close and in action, each stage, with the exception of the individual time trial, will start with at least one circuit lap in the start city before leaving town

Host city information, maps and elevation profiles are available on the race website http://www.usaprocyclingchallenge.com/route

About the USA Pro Challenge

Referred to as “America’s Race,” the USA Pro Challenge will take place August 17-23, 2015 and an inaugural Women’s USA Pro Challenge will take place from August 21-23, 2015. For seven consecutive days, the world’s top male and female athletes race through the majestic Colorado Rockies, reaching higher altitudes than they’ve ever had to endure. One of the largest cycling events in U.S. history and the largest spectator event in the history of the state, the USA Pro Challenge is back for 2015. Featuring a challenging course, the fifth annual race will spotlight the best of the best in professional cycling and some of America’s most beautiful scenery.

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USA ProChallenge Host Cities for 2015 Announced. Different cities, Going to be a slightly Different Race. Cool!

Host Cities Announced for 2015 USA Pro Challenge

Fans Can Help Shape the Route for America’s Most Difficult Professional Cycling Race

Colorado’s largest sporting event is back for 2015, and today race officials unveiled seven of the host cities that will be highlighted as starts and finishes for the 2015 USA Pro Challenge. Taking place Aug. 17-23, the race will feature several dramatic changes for 2015, including a new overall start in beautiful Steamboat Springs, new host communities Arapahoe Basin and Copper Mountain and a challenging individual time trial course in in the scenic town of Breckenridge. And with six of the seven stages set, organizers are looking to fans to help determine the location of Stage 6.

“The start and finish cities for the 2015 USA Pro Challenge are going to create some unique challenges for the riders while also showcasing some of Colorado’s most beautiful regions to our worldwide audience,” said Rick Schaden, owner of the USA Pro Challenge. “We are always humbled by the amount of interest we receive from cities across the state that want to host the race and we feel confident that the partners we’ve selected this year will help us continue to raise the bar for professional cycling in America.”

After drawing more than 1 million fans each year and generating $130 million in economic impact to the State of Colorado in 2014 alone, the USA Pro Challenge will make its return with an overall start in Steamboat Springs. Over the course of seven days of intensely competitive racing, the world’s best riders will return to iconic Colorado cities that have been key parts of the race in previous years, such as Aspen and Denver.

In a mix of new and prior host cities, the stages of the 2015 USA Pro Challenge include:

  • Stage 1: Monday, Aug. 17 – Steamboat Springs Circuit Race
  • Stage 2: Tuesday, Aug. 18 – Steamboat Springs to Arapahoe Basin
  • Stage 3: Wednesday, Aug. 19 – Copper Mountain Resort to Aspen
  • Stage 4: Thursday, Aug. 20 – Aspen to Breckenridge
  • Stage 5: Friday, Aug. 21 – Breckenridge Individual Time Trial
  • Stage 6: Saturday, Aug. 22 – ???
  • Stage 7: Sunday, Aug. 23 – Golden to Denver

Last year, fans weighed in on the final stage and ultimately determined a route that took the riders from Boulder, through Golden and finished in Downtown Denver. Due to overwhelming fan interest and support, organizers are again letting people have a say in the course. Fans will be able to help shape the race by logging on to www.prochallenge.com/2015stage6 before 11:59 p.m. MT December 12, and giving their opinion on what part of the state Stage 6 should visit.

“Last year we turned to our dedicated fans to help determine the route for the final stage of the Pro Challenge,” said Shawn Hunter, CEO of the USA Pro Challenge. “The enthusiasm and valuable opinions that we received convinced us that we should look to our supporters again for their input on the 2015 race. We know our fans are passionate about the sport and we’re looking forward to hearing where they want Stage 6 to go.”

A new overall start for the Pro Challenge, Steamboat Springs, with a population of just more than 12,000, should see that number at least double on race day. Located just west of the Continental Divide and Rabbit Ears Pass, Steamboat is the perfect location to kick off the race and showcase Colorado’s unique scenic beauty. And as the Colorado city that has produced more Olympians than any other, the riders should feel right at home.

In one of the most significant changes to the 2015 route, Breckenridge will host the individual time trial. Located 9,600 ft. above sea level, this course will test the riders with challenging, hilly terrain. With these additions combined with new host cities Arapahoe Basin and Copper Mountain Resort, the 2015 course will create dramatic moments for the riders and fans.

Known for lung-searing altitudes and intense climbs through the Colorado Rockies, the race is the largest spectator event in the history of the state. The 2014 USA Pro Challenge saw part-time Aspen resident Tejay van Garderen of BMC Racing Team take the overall win for the second year in a row this past August in Denver.

“I am so happy to hear the USA Pro Challenge is going through Aspen again,” said van Garderen. “It is always great to be able to race in front of my family and close friends. Of course, I am curious to see the route they will pick and I am expecting it to be the most challenging route yet.”

Additional details regarding the exact start and finish locations of the 2015 race, as well as the specific, detailed route will be announced in the spring.


USA Pro Challenge Professional Cycling Race Brings an Estimated $130 Million to Colorado!

USA Pro Challenge Professional Cycling Race Brings an Estimated

$130 Million in Economic Impact to the State of Colorado, 12 Percent Increase Over 2013

Largest Spectator Event in Colorado Leaves Lasting Impact on the StateIMG_8572

The 2014 USA Pro Challenge saw 128 of the best professional cyclists in the world compete in the toughest professional cycling race in the U.S.   over the course of seven days, Aug. 18-24. Fans came out in droves to watch the action-packed, heart-pounding racing through the Colorado Rockies. After traveling to 10 host cities for the official stage starts and finishes, and passing through many other notable towns along the way, the estimated economic impact of the race to the State of Colorado is $130 million, according to a study done by Sponsorship Science, a global sports research firm.

The Pro Challenge delivered another strong economic performance in its fourth running, with direct spending by traveling spectators contributing a significant portion of the economic impact. Both those fans from outside the state and Coloradans traveling 50 miles or more to take in an event stage contributed $130 million on lodging, food, transportation and entertainment, an increase of 12 percent year over year. This change was largely driven by a 10 percent increase in the average number of nights stayed and an 11 percent increase in per night average party spend, the result of a 15 percent increase in average per night lodging cost.

“Seeing the enthusiasm and passion from the fans lining the streets during the 2014 USA Pro Challenge really gave a sense of the growing support for the sport of cycling in the U.S.,” said Rick Schaden, owner of the race. “This race showcases Colorado to the world and creates an incredible economic impact locally that can be felt throughout the year. Further, it was great to see an increase in television viewership.”IMG_8230

Following an epic week of racing through picturesque Colorado scenery, America’s most challenging race came to a conclusion in Downtown Denver when Aspen resident Tejay van Garderen (USA) of BMC Racing Team maintained his lead and took the overall win for the second year in a row. The race received unprecedented coverage totaling 30 hours on NBC, NBCSports and Universal Sports in the U.S. Additionally, through 40 hours of international coverage, the race was seen in more than 175 countries and territories around the world.

A draw for Colorado travel, 56 percent of spectators claimed they would not have traveled to the state at this time if it were not for the race. And with that, 70.9 percent stated they are likely to return to watch the race next year.

Additional interesting analysis points include:

· Spectators traveled in groups, with the average party consisting of three people

· The average hotel stay for spectators increased in 2014 to 5.3 nights

· 53 percent of race attendees live in households with income exceeding $85,000 and within that group 32 percent had household incomes in excess of $120,000

· Spectators enjoyed their race experience, with more than 80 percent saying they were very satisfied or satisfied with the race

· More than half of spectators in attendance reported they ride a bike for fitness, with 47 percent saying they engage in road cycling a lot

· This was an audience that appreciates the world-class level of competition at the USA Pro Challenge and watches major cycling events on television, with 83.8 percent stating they watch the Tour de France

About the research studyIMG_8276

The USA Pro Challenge commissioned Sponsorship Science LLC, a global sports marketing & research consultancy firm with more than 50 years of executive experience working with events around the world, to continue conducting quantitative research measuring the change in overall economic impact of the Pro Challenge over time.

“While we conduct these types of studies for sports and entertainment clients around the world, across many platforms and geographies, cycling has always been a core sport, and one where we have a wealth of experience, ” said David Porthouse, SVP of Sponsorship Science, LLC. “Our history with the event and trust in the Pro Challenge management team, as well as the promoter Medalist Sports, has allowed us to develop the data and models used to accurately and fairly evaluate the growth of the race over time and its impact on the state of Colorado.”

Sponsorship Science, LLC designed the study from the outset to deliver consistent, defensible results which address many of the contentious issues surrounding economic impact reporting. Kevin Schott, director of Sponsorship Science notes the multi-year relationship with academia via Dr. Brett Boyle, professor within the sports business program at St. Louis University, has paid enormous dividends in terms of scientific rigor and credibility throughout the duration of this long-term relationship, serving as the foundation for the future. Key areas addressed included:

· Substitution effects – Since local fans will often spend similar amounts on local sports and other entertainment, Sponsorship Science, LLC did not include the local fan spend in the economic impact report, as a net impact, although local participation was thoroughly tracked, and forms a significant part of the appeal

· Time shifting – Colorado is an attractive destination for travel, so Sponsorship Science, LLC deliberately filtered respondents to ensure they were not capturing data from spectators already in Colorado, independent of the Pro Challenge, and also used elimination questions to remove those fans who intended to come to Colorado in the near future independent of the race. Despite these rigorous procedures, the number of dedicated fans travelling to the Pro Challenge has followed a long-term growth trend

· Sample sizes – Large samples were taken at all stages, distributed across the race locations, in order to create samples and sub-samples (by age, income, distance travelled, etc.) that are all statistically significant

 


Tour of Utah UCI ranking increases to 2.HC

International Ranking for Tour of Utah Cycling Event

Elevated to Highest Classification

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SALT LAKE CITY, UTAH (September 25, 2014) – One month following a record-setting 10th edition of the Larry H. Miller Tour of Utah, the Union Cycliste Internationale (UCI) has confirmed that the Utah race has been elevated to its highest classification on the UCI America Tour, a 2.HC stage race. The Tour of Utah joins the Amgen Tour of California (May 10-17) and USA Pro Challenge (August 17-23) as the only events on the UCI America Tour with 2.HC designations. The 2015 Larry H. Miller Tour of Utah will be held Aug. 3-9.The UCI grades each individual stage race for road cycling on a four-category scale. A 2.2 is the lowest rating for a multi-day stage race. A 2.HC designation, from the French “hors categorie” meaning beyond category, is the highest rating a stage race can receive outside of the WorldTour races, such as the Tour de France. A higher categorization means that the event offers greater prize money and more UCI points for competitors, allowing organizers to invite and attract the best teams in the world. As a 2.HC event in 2015, the Tour of Utah will be allowed to invite more ProTeams to compete. Up to 65 percent of the field may now be comprised of teams in the top world rankings.“This upgraded designation by the international governing body of cycling is further evidence of the Tour of Utah’s growing stature,” said Steve Miller, president of Miller Sports Properties, which organizes the Tour of Utah. “We aspire to continue to organize a world-class race that showcases our state and the sport.”The Tour of Utah began in 2004 as a three-day, regional competition for amateur and elite cycling athletes. By 2011 the Tour had expanded to six days of racing for professional teams and offered more than $125,000 for a prize purse, tripling the amount from previous years. The UCI recognized the Tour of Utah in 2011 as a 2.1-rated stage race, adding it to the UCI America Tour for the first time. For 2015, the Tour of Utah will be part of the UCI America Tour, which includes 25 professional cycling events in North America and South America.

“The elevation of the Larry H. Miller Tour of Utah to HC-status on the international calendar is a tremendous honor and a clear acknowledgement by cycling’s International governing body that the event is one of the world’s great races,” said USA Cycling CEO & President Steve Johnson. “I would like to congratulate Steve Miller and the extraordinary staff and volunteers of the Larry H. Miller Tour of Utah on the success of their efforts over the past 10 years; and also thank the Utah cycling and business community for their tremendous support of the event.”

In 2014, the Tour of Utah set records with 275,000 spectators and $20 million in economic impact for the state. The seven-day event, known “America’s Toughest Stage RaceTM”, featured 753 miles of racing and 57,863 vertical feet of climbing for 16 of the best professional teams in the U.S. and abroad. American Tom Danielson of Team Garmin-Sharp claimed the overall title for the weeklong Larry H.Miller Tour of Utah for a second year in a row. The inaugural Tour of Utah Women’s Edition presented by PlayHard GiveBack was held on Aug. 6, a 15-lap circuit race at Miller Motorsports Park, and was won by American Coryn Rivera of UnitedHealthcare.

Next year’s Tour of Utah will continue as the first internationally-sanctioned cycling competition in North America following the Tour de France. Host venues and the overall route for 2015 will be announced in the coming weeks. The Larry H. Miller Tour of Utah continues to be free to all spectators, making professional cycling one of the most unique professional sports in the world today. More information about the Tour of Utah and its partners can be found by visiting www.tourofutah.com, as well as social channels Facebook (tourofutah), Twitter (thetourofutah), Instagram (thetourofutah) and YouTube (2014 Tour of Utah).


USA Pro Challenge brings out the best in its fans

Bicycle racing is more than just cycling. The atmosphere is always fun.

Why do spectators enjoy looking great at cycling raisesclip_image002

One of the great joys of watching the climbs on the grand European tours is the time we have to watch the outfits the spectators wear. That desire to be European fashion conscious has crossed the Atlantic and is growing in the US. The US Pro Challenge has seen an increase each year in the desire to be seen on the tour.

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People in costumes always waive and love to have their picture taken.

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Her sign says have you seen my friend. She must have known an orange cowboy hat and purple tights might make her friends hard to find.clip_image008

Do the riders have the time as they wiz by to see the outfits?

Some costumes are difficult to assign a category too, however at least he is riding a bike. That may or may not be good for cycling.

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Some of the outfits can be as easy as a hat to makes you stand out in the crowd or a hair color so you loved ones can spot you…..and hide. When wearing a similar hat the pope always seems to smile.clip_image012

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Do you think Jens saw him?

Then you see the group costumes where friends (or at least I hope they are friends) agree on a theme to wear to the raise. clip_image016

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I’m not exactly sure the true nature of some of the themes. The relationship between Santa Clause and a Yeti in Vail still has me confused. The Wheaties box is just an afterthought….I hope.

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It is bad when two people in a costume start to argue about it. It is always a hard to hear what the argument is about when both voices are coming from fur covered heads.

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Age is not a limiting factor in costumes. No matter how small you may be getting dressed up is part of the excitement of the tour.clip_image024

Unless maybe you dad makes you wear the costume, in the heat. But at least no one can recognize you if it covers your face.clip_image026

There always the marketing gurus who send employees out to represent their products. Energy snacks, water bottles two perennial favorites.

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The best are when friends know a rider in the tour and want to show their support. Although I’m not sure I would come out of the team RV to see my friends of a gold speedo was the costume of choice.clip_image032clip_image034

His face mask almost matches his tattoo.

Even the UCI gets into the race, maybe just a crown, but it is still more than a non-descript ball cap.clip_image036

What is curious is when a city gets into the act. The winner of the stage that ends in Breckenridge has the dubious honor of being photographed with a fur hat and shield. I thought winners were to be lauded, not punished?clip_image038

Even if you are not a big fan of bicycle racing (heaven forbid) you should at least stroll the start and finish near you to see the fans!


Buffets

BuffetsIMG_3233

You work with the PR team of a professional cycling team to schedule a time to talk to a rider. You email back and forth frantically during the race, at night and stop by the team bus in the morning to stand around wearing a pleading puppy face.

You get a date so you start working on your questions. You research the rider you got the time to sit down with, and you know the person inside and out. You start out with general ones, softballs to set the ground work, to start the information flowing. Then you start working your way to the tougher questions.

Then the day arrives. You attend the race and jot notes about your rider’s race that day. You get back to your room early to clean up, and you arrive ten minutes before the scheduled time.  Not too early to look too eager, but never late. You find a place to talk, secure yet open so everyone feels good and information will flow. The rider comes down and sits down to talk. You exchange pleasantries, and you start with the easy questions to get things rolling.

But the rider throws back a curve, and your prepared questions gently fall to the floor as you grin and jump on the answer.

Buffets. What is your favorite thing about racing in the US? Buffets.

I had the opportunity to interview Richie Porte of Team Sky at the USA Pro Challenge. Every statement above is true. I did not want to sound like an amateur or an idiot and by the end of the interview, I did not care. When you ask a professional bicycle racer what his favorite thing about racing in a county, and he says the buffet’s it throws you for a laughing out loud loop from which you never recover.

After talking to professional cyclists for years, this was the last answer I expected, but it was the first thing out of the mouth of Richie Porte during the USA Pro Challenge. However, after listening to him compare the fare offered at the Tour de France or the rest of the European races I understood. Based on Richie’s comments, it was easy to maintain weight on the Tour de France because if you waited too long there was nothing to it. Even if you got to dinner early, it still was slim pickings.

Richie Porte, along with Chris Froome had been in the US for two weeks training and enjoying the country before the USA Pro Challenge even started. Once the race started, they raced. However, they thoroughly enjoyed the racing in the US, buffets included.

The next thing Richie said was the fans were fantastic. I’m sure after watching the three segments of the Tour de France through the IMG_3228UK, he might change his mind, but he said the US fans were fantastic. If you went off the back in France, the fans called you names, gave you grief and sometimes spit at you.

Here in the US, the fans cheered and clapped for everyone, even the last rider was encouraged to ride better. US fans are just happy to watch great athletes race.

Teams enjoy coming to the US for the USA Pro Challenge besides the food and the fans. The views along the race course are unmatched outside of Nepal. The crowds are not only enthusiastic, but they understand bicycle racing. The word peloton in Colorado does not get you a questioning express. Coloradans understand bicycle racing.

After spending an hour with Richie Porte, I had a great time, met a great person and obviously, a great cyclist. Richie still had a smile and a great sense of humor even after a hard day riding in the thin air.

This tough piece investigating a Team Sky rider reads like a chamber of commerce piece encouraging people to come to Colorado. Obviously, the riders enjoy racing in the US.

A Start


Want to Volunteer for the USA Pro Challenge, sign up Now!

Every stage is a story - Aspen, Crested Butte - Gunnison - Monarch Mountain - Colorado Springs - Woodland Park - Breckenridge - Vail - Boulder - Denver

USA Pro Challenge Volunteer Opportunities – Sign-Up Now!

The USA Pro Challenge is seeking volunteers for the professional cycling race, which will travel through some of Colorado’s most scenic regions August 18-24. Cycling fans and enthusiasts are encouraged to participate in this momentous event by signing up for volunteer positions along the 550-mile course in Aspen, Snowmass, Crested Butte, Gunnison, Monarch Mountain, Colorado Springs, Woodland Park, Breckenridge, Vail, Boulder and Denver.Volunteers looking for an opportunity to participate in the race can apply online for positions at http://www.prochallenge.com/volunteer-signup. The majority of volunteers are needed to serve as course marshals, providing support to professional course marshals that travel with the Tour and the local law enforcement authorities in each host city. Volunteers selected as course marshals will have the unique opportunity to be present on the race route, in a close proximity to the cyclists, and are tasked with monitoring pedestrian traffic, street closures and barricades.READ MORE
Volunteer for the USA Pro Challenge
2014 host cities
Merch of the Month
See the 2014 Host Cities
Sign-up today for the Inaugural Aspen Gran Fondo on June 14th!
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Aspen Silver Cycling, in partnership with the USA Pro Challenge is set to stage the inaugural ASPEN GRAN FONDO June 14th in Aspen & Snowmass Colorado. This mass participation ride is open to all riders at all skill levels and will showcase a 50 mile route with portions of ride along the same route the pros will ride in the upcoming Stage One & Two of the 2014 USA Pro Challenge-August 18th & 19th.Don’t delay- register today! Reserve your spot for this unique cycling experience.Visit www.granfondoaspen.com for more details
Pro Challenge Experience Presented by UnitedHealthcare – August 10th!
UPC-145ProChallengeExperienceLogo_2014.114732.png
We’ve added a new element to the Pro Challenge Experience presented by UnitedHealthcare this year! Compete in the new Champions Challenge, where three teams of 30 will race to finish the 50 mile course first- captained by a National Champion. Who will you side with? Timmy Duggan (Team Red), Chris Baldwin (Team White) or Alison Dunlap (Team Blue)?The aggregate scores of the top ten riders in each team will determine the winning team. The fastest overall individual will receive two passes to the VIP Hospitality Tent at the Stage 7 Denver finish.Spots are limited, so register today!

For more information, visit:
www.usaprocyclingchallenge.com/pro-challenge-experience

Peter Sagan: Last Year’s Top Cyclist Looks to Second Half of the Season Success
Monarch & Salida
Throughout 2013, the man known as “The Terminator”, did all he could to exact Judgment Day on the rest of the professional peloton last year, notching 27 wins and winning the Sprint Points jersey in five stage races, landing him as the world’s second-ranked rider at the end of the season.READ MORE
Host City Highlight: Colorado Springs
Colorado Springs
Often referred to as the “Amateur Sports Capital of the U.S.”, Colorado Springs is home to the U.S. Olympic Committee, the Olympic Training Center and 56 sports organizations including 22 National Governing Bodies of Sports (USA Cycling, USA Triathlon, USA Hockey, etc.).READ MORE
LOOK FOR THE YELLOW: MAVIC BACK AS NEUTRAL TECH SERVICES
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Known for their yellow cars that roll behind the professional peloton racing the 700-plus miles of roads of the USA Pro Challenge, MAVIC is back providing neutral technical services.READ MORE
Nissan UnitedHealthcare Colorado Smashburger
Sierra Nevada CSU Centura Health 1stBank
CO National Guard Coke Team Novo Nordisk Jelly Belly
Pearl Optum 9news Denver Post

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Eric’s Big Day Is a Whimsical Bicycle Ride for Children

????????????????????????????VeloPress is pleased to announce the release of a new children’s book, Eric’s Big Day: A Bicycle Race Unlike Any Other, by award-winning author and illustrator Rod Waters. The book is now available in bookstores, bike shops, and online. Preview a flipbook of Eric’s Big Day at http://www.velopress.com/eric.

It’s a big day for Eric, the day of the bike race. His knapsack packed, Eric rides his bicycle to his friend Emily’s for a picnic near the finish.

Pedaling from his house, Eric is slowed as he aids wayward bike racers, using helpful items from his backpack. The faster he rides to meet Emily, the more delays he encounters, until he tears off in a burst of speed. The cheers of a crowd surprise Eric, but where is Emily?

Eric’s Big Day is a colorful adventure on wheels, full of fun and authentic cycling flavor. Children 4-8 will love this lighthearted tale of a boy who helps others and finds himself a winner.

Eric’s Big Day: A Bicycle Race Unlike Any Other Rod Waters Hardcover with color illustrations.

10″ x 7 ¾”, 28 pp., $14.95, 978-1-937715-23-6 For children ages 4-8.

Rod Waters is a writer and an award-winning illustrator based in London. He has worked with The Folio Society, The Spectator, The Independent, Nelson Thornes, The N.H.S., The Tower of London, Virgin Atlantic, Clifton Nurseries, The Surveyor, and MJ Magazine. His illustrations have won the Winning Hand competition and have been shortlisted for the Picture This and the London Cartoon competitions. Waters is a level 2 British Cycling coach and holds a Guinness World Record for cycling between Paris and London in just over 14 hours.????????????????????????????

VeloPress is the leading publisher of books about the endurance sports of cycling, triathlon, running, and swimming. VeloPress books help beginners and committed athletes build fitness and achieve their goals. VeloPress celebrates the icons of endurance sports through history books, biographies, memoirs, and photography books. For more information, please visit http://www.velopress.com.

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USA Pro Challenge gets jump on 2014 and announces host cities

Last day of race to be voted on by viewers and cyclists and Tom Danielson got his wish

The USA Pro Challenge has announced the 2014 race. The host start and finish cities are:

Stage 1: Monday, Aug. 18 – Aspen Circuit Race

Stage 2: Tuesday, Aug. 19 – Aspen to Mt. Crested Butte

Stage 3: Wednesday, Aug. 20 – Gunnison to Monarch Mountain (mountaintop finish)

Stage 4: Thursday, Aug. 21 – Colorado Springs Circuit Race

Stage 5: Friday, Aug. 22 – Woodland Park to Breckenridge

Stage 6: Saturday, Aug. 23 – Vail Individual Time Trial

Stage 7: Sunday, Aug. 24 – ???

The question mark for the final stage is a pretty neat finish idea. The public will get to vote for the final stage they want. The choices are:

Denver Circuit Race similar to the final stage of the 2013 race

Start in Golden (2012 Stage 6 start city) and finish in Denver

Start in Boulder (2012 Stage 6 finish city) and finish in Denver

Start in Boulder and end in Golden

Go here to vote on the race you want. What’s Your Vote For Stage 7? Voting gets you a 15% discount off USA Pro Challenge items in the store.

The course:

The course is similar to the very successful 2013 race. Cities with two things; money and people who want to watch a bicycle race are involved. So Aspen and Vail are probably always going to be on the race circuit. The turn out and support in Gunnison, Crested Butte and Mt Crested Butte is 100%, even though that is only 20% of what Vail turns out. Breckenridge and Colorado Springs are next as far as both and the perennial Denver is becoming the home to great cycling because of work of past volunteers and the USA Pro Challenge.

Merry Christmas Tom DanielsonIMG_3187

The only location with issues will be the finish on Monarch Mountain. This finish is a long way from Gunnison and close to Chaffee County, but still lacking in numbers of people. However it fulfills team Garmin Sharp’s Tom Danielson’s Christmas wish to have a mountain stage win at the Pro Challenge. Now he better win that stage!

But that will be a great finish no matter how many people. If you are a fan of the tour in Europe everyone watches, this will become a classic just like those finishes. It is a long and grueling climb. Probably only Wolf Creek Pass from the west is steeper. Finding a good place to see the race is going to be tough so get their early to stake out your spot.

Overall the race course looks fantastic so far. Until we see the actual routes we’ll not know the elevation or distances, however with the starts and finishes already picked this is destined to be another great week of cycling in Colorado.

It is going to be a great week of bicycle racing in Colorado.

See Host Cities Announced for 2014 USA Pro Challenge

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Release and proof of knowledge stop claim from bicycle racer.

Records help prove even if your release is weak, the plaintiff really understood the risks.

Walton v. Oz Bicycle Club of Wichita, 1991 U.S. Dist. LEXIS 17655

Plaintiff: Eric Walton

Defendant: Oz Bicycle Club

Plaintiff Claims: negligence

Defendant Defenses: (1) that the release signed by Walton bars the present action; (2) that Walton assumed the risk of the injuries received; and (3) that Oz assumed no duty of due care towards Walton

Holding: for the defendant

In Walton v. Oz Bicycle Club of Wichita, the federal district court upheld a release used in a bicycle race. The race was held in Wichita Kansas, by the Oz Bicycle Club of Wichita. The plaintiff was rounding a corner in the lead on an open race course when he swerved to miss a car and crashed. An open bicycle race course means cars are on the roadway. An open course is not closed to traffic or pedestrians. A closed course, all cars have been prohibited on the course.

The defendant bicycle club filed a motion for summary judgment, which was granted by the court. The plaintiff when he signed up for the race was handed a release which he signed. The plaintiff had raced twenty to thirty times before and signed releases each time. He did not read this release but had read others and knew what he was signing. Prior to the start of the race the plaintiff had been informed that the course was not closed. The plaintiff encountered  traffic on the race course at least twice prior to his crash.

The plaintiff was an employee of a bicycle manufacturing company which was also a sponsor of the race.

Summary of the case

The court first reviewed the issue of whether Assumption of Risk was a defense at this time in Kansas. The court concluded it probably not because the Kansas Supreme Court had not handed down a decision that was specific in stating assumption of risk was a defense in Kansas.

The court quoted the heading and four paragraphs of the release in its decision. The heading of the release read: “NOTICE: THIS ENTRY BLANK AND RELEASE FORM IS A CONTRACT WITH LEGAL CONSEQUENCES. READ IT CAREFULLY BEFORE SIGNING.”

The plaintiff argued that releases were not favored under Kansas law; however, the plaintiff never showed how the release at issue, was void under Kansas law.

The court in one paragraph summed up the requirements for the release to be valid under Kansas law:

Although exculpatory agreements have an inherent potential for abuse and overreaching, and hence are subjected to close scrutiny by the courts, these agreements have a vital role to play in allowing the individual to participate in activities of his own choice. If the individual has entered into an exculpatory clause freely and knowingly, and the application of the clause violates no aspect of fundamental public policy, the individual’s free choice must be respected. Here, public policy supports, rather than detracts from, the application of the exculpatory clause. “Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.”

The court looked at the release and found it to be valid. The release lacked the word negligence; however, it spoke to “rights and claims” for “any and all damages” sustained by participating in the event. The court concentrated on the fact the plaintiff had signed more than 20 other releases, participated in more than 20 races and had crashed in at least two races. This is another situation where the facts and knowledge of the plaintiff helped seal the release in the mind of the court.

So Now What?

It was obvious that the defendant’s ability to show the court 20-30 other releases for bicycle racing signed by the plaintiff was instrumental in proving the arguments of the plaintiff did not matter. You need to hold on to releases, you never know when one many years old maybe valuable in proving your case.

That does not require that you hold onto each paper copy of a release. Electronic copies are equally valid. Invest in a scanner and take all of your old releases and scan them. You can organize them by date or race or activity. You do not need to identify each release at the time. You cans scan them in a way that they are searchable later, and if you ever need to find one, you can.

Also instrumental was the fact the plaintiff was informed at the beginning of the race that the course was open, going to have cars on the course. Add to that the defendant could prove the plaintiff had avoided cars on the course during the race and had raced on open courses in the past. I would suggest putting important information such as the course being open into the release, so you can prove you gave the rider the information. Having that information in the release, should not, however, remove the responsibility to tell the people about the open course also.

While working at a ski area, we threw in the weather report and an area map into all big accident files. We never knew if any accident would lead to a suit, however, why worry about it. Make sure the file has everything you need, every back reference or proof needed when you build the file so you don’t have to search for it. We had a lot of stored weather reports and ski area maps, but if one was needed in a lawsuit, they were easy to find.

We also included all of the skiing history we had on the injured guest. Any logs from his skiing that year, each time his pass had been scanned if the injured guest had a season pass. Prior season pass or skiing history if we had it. Proof that the injured guest knew how to ski and assumed the risk or proof that the injured guest had signed numerous releases.

That ability to find information, electronically or on paper, saved the day in this bicycle race case.

What do you think? Leave a comment.

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Walton v. Oz Bicycle Club Of Wichita, 1991 U.S. Dist. LEXIS 17655 (Dist Kan 1991)

Walton v. Oz Bicycle Club Of Wichita, 1991 U.S. Dist. LEXIS 17655 (Dist Kan 1991)

Eric Walton, Plaintiff, vs. Oz Bicycle Club Of Wichita, Defendant.

No. 90-1597-K

United States District Court For The District Of Kansas

1991 U.S. Dist. LEXIS 17655

November 21, 1991, Decided

November 22, 1991, Filed

COUNSEL: PLAINTIFF COUNSEL: David P. Calvert, Focht, Hughey, Hund & Calvert, 807 North Waco, Suite 300, Wichita, KS 67203

DEFENSE COUNSEL: Don D. Gribble, II, Donald N. Peterson, II, Kahrs, Nelson, Fanning, Hite & Kellogg, 200 West Douglas, Suite 630, Wichita, KS 67202

JUDGES: KELLY

OPINION BY: PATRICK F. KELLY

OPINION: Nearing the end of the sixth lap of the seven-lap bicycle race held in Hutchinson, Kansas on August 12, 1989, Eric Walton began to pull into the lead. Closely pursued by two other racers, Walton approached the intersection of Crazy Horse and Snokomo Streets. The course of the race required the racers traveling east on Crazy Horse to make a left turn at the intersection onto Snokomo.

MEMORANDUM AND ORDER

Leaning into the turn at about 30 miles per hour, Walton cut the northwest corner of the intersection about two feet from the curb. Flying past the corner, Walton was able to see for the first time the car stopped at the stop sign at the intersection and which had been hidden by the crowd of spectators lining Crazy Horse. Walton turned to the right to avoid the car. His bike went off the roadway, striking the open door of the van owned by the race’s referee, Gaylen Medders. As a result of this accident, Walton sustained injuries which have formed the basis for the present action.

The defendant, Oz Bicycle Club of Wichita, Kansas, has moved for summary judgment on the claims advanced by Walton. Oz presents three arguments in support of its motion: (1) that the release signed by Walton bars the present action; (2) that Walton assumed the risk of the injuries received; and (3) that Oz assumed no duty of due care towards Walton.

[HN1] Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show 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). [HN2] In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). [HN3] The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff’s claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

[HN4] In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. “In the language of the Rule, the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). [HN5] One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Walton was an employee of the Continental Cyclery Company in Hutchinson, Kansas, and participated in the race as a member of the Continental Cyclery team. An experienced racer, Walton had participated in 20 to 30 prior races, and had experienced two prior accidents while racing.

The August 12 race in Hutchinson was sponsored by Continental Cyclery, as well as a local pizzeria and mortuary. The race was conducted under the auspices of defendant Oz Bicycle Club of Wichita, which conducts periodic bicycle races as a part of its “Toto Racing Series.” For the August 12 race, local sponsors arranged for standby emergency medical and law enforcement services, planned the course of the race, and arranged for corner marshals along the route. Medders, the chairman of Oz, took participant applications, and served as the official and timer of the race.

Entrants in the race paid an $ 8.00 fee to Oz. In addition, entrants were required to sign a release. This release provides in part:

NOTICE: THIS ENTRY BLANK AND RELEASE FORM IS A CONTRACT WITH LEGAL CONSEQUENCES. READ IT CAREFULLY BEFORE SIGNING.

In consideration of the acceptance of my application for entry in the above event, I hereby freely agree to and make the following contractural [sic] representations and agreements.

I fully realize the dangers of participating in a bicycle race and fully assume the risks associated with such participation including, by way of example, and not limitation, the following: the dangers of collision with pedestrians, vehicles, other racers, and fixed or moving objects; the dangers arising from surface hazards, equipment failure, inadequate safety equipment, and weather conditions; and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition.

I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter accrue to me against the sponsors of this event, the Oz Bicycle Club, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, special districts, and properties (and their respective agents, officials, and employees) through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event.

Similar releases were contained in the registration forms for each of the 20 to 30 prior races in which Walton had participated. Walton was given an opportunity to read the release. Having read similar forms on prior occasions, Walton did not read this release. Walton was aware of what was in the release and understood its terms.

Walton’s participation in the race was not required. However, Walton voluntarily wished to enter the race and knew that signing the release was a requirement for participation. Walton recognized the dangers of participating in a bike race. Walton signed the release.

Prior to the start of the race, Medders had warned the participants that the course of the race was not closed to traffic, and during the course of the race Walton had encountered other cars on the course. However, as he cut the corner at the end of the sixth lap, Walton had not thought of the possibility of a car, hidden by the crowd, laying in his path on the other side of the intersection.

The status of the doctrine of assumption of risk is not clear under present Kansas law. In Shufelberger v. Worden, 189 Kan. 379, 385, 369 P.2d 382 (1962), the court indicated that the doctrine of assumption of risk was generally limited to situations involving an “employment relationship or [a] contractual relationship, express or implied.” By a process of slow osmosis, the Kansas Supreme Court has held most recently that the doctrine of assumption of risk is “limited to cases such as this where a master-servant relationship is involved.” Borth v. Borth, 221 Kan. 494, 499, 561 P.2d 408 (1977). To what extent this evolution, reflected in Smith v. Blakey, 213 Kan. 91, 101, 515 P.2d 1062 (1973); Ballhorst v. Hahner-Forman-Cale, Inc., 207 Kan. 89, 484 P.2d 38 (1971); Perry v. Schmitt, 184 Kan. 758, 339 P.2d 36 (1959); George v. Beggs, 1 Kan.App.2d 356 Syl para. 1, 564 P.2d 593 (1977), is the result of an intentional, conscious modification of the law is uncertain. At no time have the state courts considered the impact of the adoption of comparative fault in relation to the continued validity of the doctrine of assumption of risk. But it is unnecessary to resolve the issue of assumption of risk here, since the court finds that the release signed by Walton is a valid exculpatory agreement which bars the present action.

In his brief in opposition to the motion for summary judgment, Walton presents several arguments in opposition to the application of the release agreement. Walton contends that the agreement reflects “overreaching” by the defendant, and cites the long list of persons protected by the agreement, including property owners in the area, law enforcement officers, and all public entities. This argument might be considered if the defendant were such a party, unconnected with either the race or the release agreement. Here, however, Oz is the bicycle club which helped to organize the race, took the applications of participants, and required the release agreements to be signed by those participants. In inserted, typed language, the agreement specifically lists “Oz Bicycle Club” as one of the parties protected by the release agreement.

Citing several Kansas cases, Walton contends that the law does not favor exculpatory agreements. This is certainly correct. But the cases cited by Walton merely establish that such agreements are disfavored and therefore are to be strictly construed. They do not establish that exculpatory agreements are inherently void as contrary to law. Mid-America Sprayers, Inc., v. United States Fire Ins. Co., 8 Kan.App.2d 451, 660 P.2d 1380 (1979).

It is correct, as Walton notes, that exculpatory agreements are void where they are contrary to established public interests. Hunter v. American Rentals, 189 Kan. 615, 371 P.2d 131 (1962); In re Estate of Shirk, 186 Kan. 311, 350 P.2d 1 (1960). Yet, despite this suggestion, Walton does not attempt to explain how bicycle racing affects important and established public interests.

The position advanced by Walton has been expressly rejected elsewhere. [HN6] Voluntary sporting competitions are not matters of important public interest, as that term is used in considering which matters may not be the subject of exculpatory agreements. “There is no compelling public interest in facilitating sponsorship and organization of the leisure activity of bicycle racing for public participation.” Okura v. United States Cycling Fed., 186 Cal.App.3d 1462, 231 Cal. Rptr. 429 (1986). See also Dobratz v. Thomson, 161 Wis.2d 502, 468 N.W.2d 654 (1991) (water skiing); Barnes v. Birmingham Intern. Raceway, Inc., 551 So.2d 929 (Ala. 1989) (automobile racing); Milligan v. Big Valley Corp., 754 P.2d 1063 (Wyo. 1988) (downhill skiing); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704 (Wyo. 1987) (mock gunfight conducted by gun club); McAtee v. Newhall Land & Farming, 169 Cal.App.3d 1031, 216 Cal.Rptr. 465 (1985) (motorcross racing); Hulsey v. Elsinore Parachute Center, 168 Cal.App.3d 333, 214 Cal.Rptr. 194 (1985) (sky diving); Williams v. Cox Enternrises, Inc., 159 Ga.App. 333, 283 S.E.2d 367 (1981) (10,000 meter foot race). Even the fact that a participant considers the sport to be more than a “hobby” and hopes to someday participate at an Olympic level, will not raise the matter to a compelling public interest. Buchan v. U.S. Cycling Fed., 227 Cal. App.3d 134, 277 Cal. Rptr. 887 (1991).

Walton also argues that the danger herein — an automobile on the course of the race — was not a hazard normally associated with bicycle competitions, and cites the decision of the California Court of Appeals in Bennett v. United States Cycling Fed., 193 Cal.App.3d 1485, 239 Cal. Rptr. 55 (1987), in which the court found that an automobile’s presence on the course of the raceway was found to be a risk not normally associated with bicycle racing, and therefore not within the contemplation of an exculpatory agreement signed by the plaintiff. Unlike Bennett, where the bicycle race involved a “closed race” in which automobiles were not to be permitted on the raceway, the uncontradicted facts herein establish that the presence of automobiles on the course of the Toto race in Hutchinson was not unknown to the participants. Rather, the fact that the course was open to normal traffic was explicitly made known to the participants. Under the factual background of the case, there is no basis for the contention that the plaintiff could not or should not have anticipated the presence of automobiles on the raceway as a danger reflected in the release agreement.

[HN7] Although exculpatory agreements have an inherent potential for abuse and overreaching, and hence are subjected to close scrutiny by the courts, these agreements have a vital role to play in allowing the individual to participate in activities of his own choice. If the individual has entered into an exculpatory clause freely and knowingly, and the application of the clause violates no aspect of fundamental public policy, the individual’s free choice must be respected. Here, public policy supports, rather than detracts from, the application of the exculpatory clause. “Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.” Buchan, 227 Cal.App.3d at 147.

IT IS ACCORDINGLY ORDERED this 21 day of November, 1991, that the defendant’s motion for summary judgment (Dkt. No. 35) is hereby granted.

PATRICK F. KELLY, JUDGE

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You can’t sue for a danger which you could have seen when biking on someone’s land

Besides riding a BMX course before it is open is not smart.

Cottom v. USA Cycling, Inc, 2002 U.S. Dist. LEXIS 6745 (W.D. Mich. 2002)

Plaintiff: Bradley J. R. Cottom and Melissa Cottom

Defendant: USA Cycling, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: the danger which injured the plaintiff was Open and Obvious

Holding: for the defendant on its motion for summary judgment

 

In this Federal District Court case from Michigan, the court discusses the open and obvious rule applied to a mountain biker on someone else’s land. In this case, the plaintiff entered upon an unfinished BMX or dirt bike track being built by USA Cycling, Inc. and was injured in loose dirt. Because the condition of the track was open and obvious, he could not recover from the defendant.

The plaintiff was a fairly experienced BMX rider. He had seen a dirt track being built and went over to investigate. He saw construction workers as well as cyclists on the track. Talking to one construction worker, he as assured the track was safe. He rode around the track once without incident. On the second lap, he fell when he hit a rock or slipped on loose gravel and hyperextended his knee and broke his leg.

Summary of the case

Under Michigan’s law, the plaintiff was identified as a licensee. A licensee is someone who:

…is a person who is privileged to enter the land of another by virtue of the possessor’s consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit.

The other two categories describing people on another’s land are trespasser and invitee. A trespasser is there without any benefit for the land owner generally, and an invitee is one who is there for the benefit to the landowner and at the bequest of the landowner.

The defense is whether the danger that injured the plaintiff was hidden or open and obvious.

USA Cycling [defendant] argues that because the condition of the track was open and obvious, it did not owe Cottom [plaintiff] a duty of protection or warning. USA Cycling notes that Cottom was able to observe the track prior to riding, that he rode around the track one time without falling, and that he was able to get a feel for the track conditions prior to his accident. Thus, according to USA Cycling, there were no hidden dangers present and it cannot be held liable for Cottom’s accident.

To prove the danger that injured the plaintiff was not open and obvious the plaintiff must complete a two-step test. Plaintiff must prove that the defendant should have known of the potentially dangerous condition and that the plaintiff did not know about the dangerous condition. The court stated the plaintiff failed to prove the second part of the test because there is no requirement to safeguard licensees from dangers that are open and obvious because those dangers come with their own warnings. The open and obvious test is an objective one, whether a reasonable person in the position of the plaintiff would have foreseen the danger.

…there is no duty to take steps to safeguard licensees from conditions that are open and obvious, for “such dangers come with their own warning. A danger is open and obvious if “‘an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.”

The plaintiff’s experience, visual review of the track and one lap without incident defeated his claim.

Cottom, an experienced BMX cyclist, was able to casually inspect the track and the track conditions before his accident by watching other bikers on the track and then riding on the track once himself. A reasonable person in this position would foresee the dangers the track presented, making the condition of the track open and obvious. In fact, most Americans have ridden bicycles in their youth and know that bike riders lose control of their bikes in loose dirt or that a rock will cause a bike to tip over.

First, the unpacked, gravelly condition of the track surface did not make the likelihood of injury higher than an ordinary, complete bike track. It is just as difficult for an ordinarily prudent person to ride a bike on a race track of loose dirt without losing control of the bike or falling as it is on any other dirt track. Second, there was not a high potential for severe harm. Thousands of people ride bikes every day, and many of them fall while riding their bikes on sidewalks, bike paths, tracks or trails. Bumps, bruises, and scrapes, or occasionally broken bones or more serious injuries, are the normal incidents of bike riding, especially BMX bike riding as in this case.

Because the plaintiff was able to inspect the track himself, had seen other bikers on the track and ridden the track once before falling on this second lap the plaintiff had a chance to see any dangers. The danger that cased the injury, therefore, was open and obvious and the defendant did not owe any greater duty to the defendant licensee.

Once this burden was met by the defendant the only option left to the plaintiff was to argue the danger was unreasonable. Whether there were special aspects of the danger that created or differentiated the risk. The court explained the differences this way.

For example, a pothole in a parking lot presents an open and obvious risk for which the premise’s owner would not normally be liable if someone were to trip and fall because of the hole. An unguarded, 30-foot-deep pit might present an unreasonable risk, however, because of the danger of death or severe injury.

The plaintiff was unable to argue that a rock on a dirt track was an unreasonable danger.

Thousands of people ride bikes everyday, and many of them fall while riding their bikes on sidewalks, bike paths, tracks or trails. Bumps, bruises, and scrapes, or occasionally broken bones or more serious injuries, are the normal incidents of bike riding, especially BMX bike riding as in this case.

The risks of the track were ordinary, not an unguarded deep pit. Nor was he able to prove the person who gave him the assurance that the track was safe was an employee of the defendant or that the person providing the warning had any greater knowledge about the track than the plaintiff.

The court granted the defendants motion for summary judgment.

So Now What?

This decision besides explaining the landowner’s duty for hidden dangers and the defense of open and obvious danger has great language in it for any cycling decision. The court sets forth facts that falling is a part of cycling. “Bumps, bruises, and scrapes or occasionally broken bones or more serious injures” are normal for bike riders. If you are a land owner, bike rental company, or cycling retailer, this is important language to keep available or even incorporate into your release.

If you are a land owner offering your land to someone, you should review your risks with an attorney specializing in real estate. You have multiple defenses available to you so you can allow people the opportunity to recreate. The first is all states have a statute that provides indemnity for landowners who allow others to recreate for free. These laws are called Recreational Use statutes. They differ wildly from state to state and the amount of protections they provide. Make sure you understand what you must and must not do to qualify for this protection.

What do you think? Leave a comment.

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Cottom v. USA Cycling, Inc, 2002 U.S. Dist. LEXIS 6745

Cottom v. USA Cycling, Inc, 2002 U.S. Dist. LEXIS 6745

Bradley J. R. Cottom and Melissa Cottom, Plaintiffs, v. USA Cycling, Inc., Defendant.

Case No. 1:01-CV-474

United States District Court for the Western District of Michigan, Southern Division

2002 U.S. Dist. LEXIS 6745

April 11, 2002, Decided

April 11, 2002, Filed

Counsel: For BRADLEY J.R. COTTOM, MELISSA COTTOM, plaintiffs: Michael J. Cronkright, Michael J. Cronkright, PC, Lansing, MI.

For USA CYCLING INC, defendant: John J. Hoffman, Thomas, DeGrood, Witenoff & Hoffman, Southfield, MI.

Judges: GORDON J. QUIST, UNITED STATES DISTRICT JUDGE.

Opinion By: GORDON J. QUIST

Opinion:

Plaintiffs, Bradley Cottom (“Cottom”) and his wife Melissa, filed this premises liability action against Defendant, USA Cycling, Inc. (“USA Cycling“), in state court after Cottom suffered injuries in a bicycling accident. USA Cycling removed the action to this Court based on diversity jurisdiction, and the matter is now before the Court on USA Cycling’s motion for summary judgment. Oral argument on the Motion was heard on April 9, 2002.

Facts

Cottom, an avid dirt bicycle rider, participated in competitive BMX bicycle racing from age 14 to 20. (Cottom Dep. at 4-5, Pl.’s Br. Resp. Ex. A.) Since that time, he has primarily restricted himself to recreational riding on streets and bike trails. n1 (Id. at 10-11, 20.) At approximately 5 p.m. on July 12, 2000, Cottom took his high performance Diamondback Reactor BMX bicycle to Gier Park in Lansing, Michigan. (Id. at 6, 15.) USA Cycling was constructing a dirt bike race track at the park, and Cottom went to investigate the progress of the track construction. (Id. at 6-7.) Cottom had been to the park approximately one month before and had seen a bulldozer working at the site. (Id. at 7-9.) At that time, he observed approximately 12 riders using the track. (Id. at 9.) When Cottom arrived at the park on July 12, he saw a bulldozer and men who appeared to be construction workers, but they were not working on the track at the time. (Id. at 47, 103.) Other people present at the park were picking up rocks and removing them from the track. (Id. at 93, 103.) There was no fence or other barricade around the track, and no warning or construction signs were posted. (Compl. PP 8-9, 19f.) Other riders were using the dirt track, and Cottom retrieved his bike from his truck in order to join them on the track. (Cottom Dep. at 26-28.) The track was dry, and it was still daylight when he began to ride. (Id. at 26.)

n1 Cottom was 36 years old at the time of his deposition in November 2001. (Cottom Dep. at 4.)

Cottom rode his bike around the track one time without incident. (Id. at 29.) Plaintiffs allege in the Complaint that Cottom stopped to discuss the track conditions with a worker at the track and that the worker assured him that the track was safe. (Compl. P 10.) Plaintiffs have not presented evidence regarding the identity of this person. It is unknown whether the person was an employee or agent of USA Cycling, a construction worker employed by an independent contractor, or merely a bystander, a passerby, or a volunteer picking up rocks. There is nothing in the record to indicate that the person had any more experience on the track or knowledge of the track conditions than Cottom had.

On his second lap around the track, Cottom was riding through a banked turn and heading toward a jump when he lost control of his bike. (Cottom Dep. at 61.) He hyperextended his knee while attempting to recover control and fell to the ground, injuring his leg. (Id. at 32-34, 40.) Cottom testified at his deposition that he was not sure exactly what caused his accident, but he surmised that his tire may have hit a rock or a rut or sank into loose, gravelly dirt. (Id. at 30-32, 92-93.) According to Cottom, his bike was functioning properly and he was “taking it easy” by traveling between 5-10 miles per hour at the time, so neither the condition of his bike nor his speed caused him to lose control. (Id. at 41, 91-92.) Cottom’s wife was present at the park at the time, but she did not see the fall. (Id. at 42.)

Cottom was taken to a hospital where he was admitted for four days. (Compl. P 13.) He fractured his lower left leg in the fall and has undergone three corrective surgeries on his leg and knee since the accident. n2 (Medical Records, Pl.’s Br. Resp. Ex. B.)

n2 The Complaint states that Cottom injured his right leg, but at his deposition, Cottom testified that it was his left leg that was injured. (Compl. PP 11, 23; Cottom Dep. at 33.) Cottom’s medical records confirm that it was his left leg that was fractured. (Medical Records, Pls.’ Br. Resp. Ex. B.)

Standard

[HN1] Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Id. at 248, 106 S. Ct. at 2510. The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. Id. at 251, 106 S. Ct. at 2511 (citing Improvement Co. v. Munson, 81 U.S. 442, 14 Wall. 442, 448, 20 L. Ed. 867 (1872)).

[HN2] A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). If the motion is so supported, the party opposing the motion must then demonstrate with “concrete evidence” that there is a genuine issue of material fact for trial. Id.; Frank v. D’Ambrosi, 4 F.3d 1378, 1384 (6th Cir. 1993). The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992)(quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).

Analysis

The parties agree that Michigan law governs the substantive issues of this case because all of the events occurred in Michigan, the forum state. (Def.’s Br. Supp. at 8-9; Pls.’ Br. Resp. at 4.) See Haque Travel Agency, Inc. v. Travel Agents Int’l, Inc., 808 F. Supp. 569, 572 (E.D. Mich. 1992).

USA Cycling makes several arguments as to why it is entitled to summary judgment. Because the Court believes that the “open and obvious” argument is dispositive, the Court will address only that argument.

USA Cycling argues that because the condition of the track was open and obvious, it did not owe Cottom a duty of protection or warning. USA Cycling notes that Cottom was able to observe the track prior to riding, that he rode around the track one time without falling, and that he was able to get a feel for the track conditions prior to his accident. Thus, according to USA Cycling, there were no hidden dangers present and it cannot be held liable for Cottom’s accident. The Court agrees.

For the purposes of this motion, the parties agree that Cottom entered USA Cycling’s premises as a licensee. (Def.’s Br. Supp. at 10; Pls.’ Br. Resp. at 8-9.) The Michigan Supreme Court has defined licensee status and explained the duty owed to a licensee by a premises owner:

[HN3] A “licensee” is a person who is privileged to enter the land of another by virtue of the possessor’s consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit.

Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596-97, 614 N.W.2d 88, 91-92 (2000)(citation omitted).

Plaintiffs contend that USA Cycling knew of the dangers presented by an unfinished dirt track, and they submit as evidence publications from USA Cycling regarding safety guidelines and its recommendations concerning BMX track conditions that discuss the dangers of unpacked, loose dirt tracks. (Insurance Guidelines and Safety Manual, Pls.’ Br. Resp. Ex. F; Building the Track – Suggestions, Pls.’ Br. Resp. Ex. E.) Even assuming that USA Cycling knew of the dangers presented by the track at Gier Park, this assertion only gets Plaintiffs halfway over their burden of proof. In order to hold USA Cycling liable for Cottom’s accident, Plaintiffs must not only show that USA Cycling knew or should have known of the potential danger on the premises but also that Cottom did not know about it. This is because [HN4] there is no duty to take steps to safeguard licensees from conditions that are open and obvious, for “such dangers come with their own warning.” Pippin v. Atallah, 245 Mich. App. 136, 143, 626 N.W.2d 911, 914 (2001). A danger is open and obvious if “‘an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.'” Abke v. Vandenberg, 239 Mich. App. 359, 361-62, 608 N.W.2d 73, 75 (2000) (per curiam) (alteration in original) (quoting Novotney v. Burger King Corp., 198 Mich. App. 470, 475, 499 N.W.2d 379, 381 (1993)). The test is an objective one, asking whether a reasonable person in the position of the plaintiff would foresee the danger. Hughes v. PMG Bldg., Inc., 227 Mich. App. 1, 11, 574 N.W.2d 691, 696 (1997).

Cottom, an experienced BMX cyclist, was able to casually inspect the track and the track conditions before his accident by watching other bikers on the track and then riding on the track once himself. A reasonable person in this position would foresee the dangers the track presented, making the condition of the track open and obvious. In fact, most Americans have ridden bicycles in their youth and know that bike riders lose control of their bikes in loose dirt or that a rock will cause a bike to tip over. Therefore, USA Cycling is absolved of potential liability unless Plaintiffs can show that the condition of the track posed “an unreasonable risk of harm.” Abke, 239 Mich. App. at 361, 608 N.W.2d at 75 (citing Millikin v. Walton Manor Mobile Home Park, Inc., 234 Mich. App. 490, 498-99, 595 N.W.2d 152, 156-57 (1999)). Michigan courts have explained that “special aspects of a condition [might] make even an open and obvious risk unreasonably dangerous.” Lugo v. Ameritech Corp., 464 Mich. 512, 517, 629 N.W.2d 384, 386 (2001). In Lugo, the Michigan Supreme Court discussed the “special aspect” exception to the open and obvious doctrine:

[HN5] With regard to open and obvious dangers, the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly “special aspects” of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the “special aspect” of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability.

. . . .

. . . In sum, only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.

Id. at 517-19, 629 N.W.2d at 387-88. For example, a pothole in a parking lot presents an open and obvious risk for which the premises owner would not normally be liable if someone were to trip and fall because of the hole. An unguarded, 30-foot-deep pit might present an unreasonable risk, however, because of the danger of death or severe injury. Id. at 520, 629 N.W.2d at 388.

Cottom has failed to present a genuine issue of material fact about whether the unfinished condition of the track made it unreasonably dangerous. First, the unpacked, gravelly condition of the track surface did not make the likelihood of injury higher than an ordinary, complete bike track. It is just as difficult for an ordinarily prudent person to ride a bike on a race track of loose dirt without losing control of the bike or falling as it is on any other dirt track. Second, there was not a high potential for severe harm. Thousands of people ride bikes everyday, and many of them fall while riding their bikes on sidewalks, bike paths, tracks or trails. Bumps, bruises, and scrapes, or occasionally broken bones or more serious injuries, are the normal incidents of bike riding, especially BMX bike riding as in this case. The track at Gier Park presented these same types of dangers, making it more like an ordinary pothole and less like a deep, unguarded pit. Finally, Cottom has failed to support with any evidence the allegation that an employee or agent working on the track assured him that it was safe for use. There is no indication in the record that this person was actually an employee or agent of USA Cycling rather than a passerby or bystander who came to watch people ride on the track. Moreover, there is nothing to demonstrate that he or she was any more knowledgeable about the safety of the track conditions than was Cottom. In fact, Cottom had the benefit of riding around the track one time and experiencing the track conditions firsthand, and he himself concluded that the track was suitable for riding. (Cottom Dep. at 48-49.)

USA Cycling is entitled to summary judgment because the dangers presented by the track were open and obvious and Plaintiffs have failed to show that there were special aspects of the track making it unreasonably dangerous.

Conclusion

For the foregoing reasons, the Court will grant USA Cycling’s motion for summary judgment.

An Order consistent with this Opinion will be entered.

Dated: APR 11 2002

GORDON J. QUIST

UNITED STATES DISTRICT JUDGE

ORDER

For the reasons stated in the Opinion filed this date,

IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (docket no. 24) is GRANTED.

This case is closed.

Dated: APR 11 2002

GORDON J. QUIST

UNITED STATES DISTRICT JUDGE

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Okura v. United States Cycling Federation et al., 186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178

Okura v. United States Cycling Federation et al., 186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178

Kevin Okura, Plaintiff and Appellant, v. United States Cycling Federation et al., Defendants and Respondents

No. B021058

Court of Appeal of California, Second Appellate District, Division Five

186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178

November 12, 1986

PRIOR HISTORY: [***1] Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. *

* Pursuant to California Constitution, article VI, section 21.

DISPOSITION: For the foregoing reasons, the judgment is affirmed.

CALIFORNIA OFFICIAL REPORTS SUMMARY In an action for personal injuries brought by a participant in a bicycle race for injuries suffered during the race, against the organizers of the race and the city in which the race was held, the trial court entered summary judgment for defendants based on a release which plaintiff had signed prior to entry in the race. (Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. *)

In an action for personal injuries brought by a participant in a bicycle race for injuries suffered during the race, against the organizers of the race and the city in which the race was held, the trial court entered summary judgment for defendants based on a release which plaintiff had signed prior to entry in the race. (Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. *)

* Pursuant to California Constitution, article VI, section 21.

The Court of Appeal affirmed. The court held that the release was not one involving a transaction affecting the public interest, and was therefore not invalid under Civ. Code, § 1668, making contracts which have exemption of anyone from responsibility for his own wilful injury to the person or property of another as their object against the policy of the law. Further, there were no triable issues of fact regarding whether the release form was clear and legible or whether the release form released defendants from the type of risk which caused plaintiff’s injuries. (Opinion by Hastings (Gary), J., + with Feinerman, P. J., and Ashby, J., concurring.)

+ Assigned by the Chairperson of the Judicial Council.

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports, 3d Series

(1) Compromise, Settlement and Release § 8–Requisites and Validity–Preincident Releases. –Preincident releases that do not involve transactions affecting “the public interest” are not invalid under Civ. Code, § 1668, providing that contracts which have exemption of anyone from responsibility for his own wilful injury to the person or property of another as their object are against the policy of the law. The areas to consider to determine whether or not the public interest is affected are whether it concerns a business suitable for public regulation; whether the party seeking exculpation is performing a service of great importance to the public; whether the party holds himself out as willing to perform the service for any member of the public who seeks it, or at least for any member coming within certain established standards; whether, as a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services; whether, in exercising his superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and whether, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

(2) Compromise, Settlement and Release § 8–Requisites and Validity–Preincident Release–Participation in Organized Bicycle Race. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly entered summary judgment for defendants based on a release which plaintiff had signed prior to entering the race. The release was not invalid under Civ. Code, § 1668, providing that all contracts which have for their object the exemption of anyone for responsibility for his own wilful injury to the person or property of another are against the policy of the law, since the preincident release did not affect the public interest.

(3) Compromise, Settlement and Release § 8–Requisites and Validity–Clarity and Legibility of Release Form. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly granted summary judgment for defendants based on an otherwise valid preincident release which plaintiff had signed prior to entering the race, since no triable issues of fact existed regarding whether the release form was clear and legible. The release was not buried in a lengthy document or hidden among other verbiage. The type was clear and legible, and in light of the fact that the release had no other language to compete with, its size, three and one-half inches by eight inches, was appropriate.

(4) Compromise, Settlement and Release § 9–Construction, Operation and Effect–Release From Type of Risk Causing Injuries. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly entered summary judgment for defendants based on a preincident release which plaintiff had signed prior to entering the race, since the otherwise valid release form released defendants from the type of risk which caused plaintiff’s injuries. The language was clear and unambiguous and the entities released from liability that could have arisen out of negligence or carelessness on the part of the persons or entities mentioned in the release obviously included defendants, who were the promoters and sponsors of the event, and the city, which was an involved municipality.

COUNSEL: Edwin J. Wilson, Jr., and Jo Ann Iwasaki Parker for Plaintiff and Appellant.

Hagenbaugh & Murphy, Robert F. Donohue, Spray, Gould & Bowers, David T. Acalin, Cynthia Goodman and Robert Dean for Defendants and Respondents.

JUDGES: Opinion by Hastings (Gary), J., + with Feinerman, P. J., and Ashby, J., concurring.

+ Assigned by the Chairperson of the Judicial Council.

OPINION BY: HASTINGS

OPINION

[*1464] [**429] On August 4, 1984, appellant was injured while participating in a bicycle race known as the Hermosa Beach Grand Prix. The race was organized and staffed by members and volunteers of the South Bay Wheelmen, Inc., a nonprofit affiliate of the United States Cycling Federation. The United States Cycling Federation is a nonprofit organization of amateur competitive cyclists which sanctions bicycle races and provides clinics and training for members to prepare them for racing events. The race was run on closed portions of the public streets of Hermosa [***2] Beach. The city had issued a permit for the event.

Appellant has brought suit against the South Bay Wheelmen, United States Cycling Federation and the City of Hermosa Beach alleging negligence in the preparation and maintenance of the course. Plaintiff was racing in the second to last race of the day and apparently fell when his bicycle hit [*1465] loose debris as he was crossing railroad tracks on the course. He slid into a loose guardrail and was injured upon impact.

Summary judgment was granted to respondents herein based upon a release admittedly signed by appellant prior to entering the race. The release is contained on the entry form which is titled “Southern California Cycling Federation Standard Athelete’s Entry Blank and Release Form.” The language of the release contained immediately below the title is as follows: “In consideration of the acceptance of my application for entry in the above event, I hereby waive, release and discharge any and all claims for damages for death, personal injury or property damage which I may have, or which may hereafter accrue to me, as a result of [**430] my participation in said event. This release is intended [***3] to discharge in advance the promoters, sponsors, the U.S.C.F., the S.C.C.F., the promoting clubs, the officials, and any involved municipalities or other public entities (and their respective agents and employees), from and against any and all liability arising out of or connected in any way with my participation in said event, even though that liability may arise out of negligence or carelessness on the part of the persons or entities mentioned above.

“I further understand that serious accidents occasionally occur during bicycle racing: and that participants in bicycle racing occasionally sustain mortal or serious personal injuries, and/or property damage, as a consequence thereof. Knowing the risks of bicycle racing, nevertheless, I hereby agree to assume those risks and to release and hold harmless all of the persons or entities mentioned above who (through negligence or carelessness) might otherwise be liable to me (or my heirs or assigns) for damages.

“It is further understood and agreed that this waiver, release and assumption of risk is to be binding on my heirs and assigns.

“I agree to accept and abide by the rules and regulations of the United States Cycling [***4] Federation.” (Italics added.) The only remaining terms on the form are for information regarding the entrant such as: signature, name, address, phone number, date, age and class entered. The whole form is only eight inches wide and three and one-half inches high. The language of the release portion quoted above takes up approximately 40 percent of the form.

The facts presented to the trial court regarding the release were uncontradicted. Appellant admitted signing the release but complained he had no choice and that he had no chance to inspect the course himself because the organizers prevented the participants from going onto the course except during the race. He argues that the release form is void as against public [*1466] policy because it is a contract of adhesion and that the form itself is not sufficient to put a participant on notice that he is actually signing a release.

(1) (2) Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693] sets forth the basic law regarding the validity of preincident releases. First of all, the case recognizes that [HN1] not all releases of liability are invalid under Civil Code section [***5] 1668. Those releases that do not involve transactions affecting “the public interest” may stand. The case sets forth six areas to consider to determine whether or not the public interest is affected: “In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus [HN2] the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of [***6] bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of [**431] the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” (Italics added, fns. omitted, 60 Cal.2d at pp. 98-101.) Bearing these in mind, we will analyze this case.

1. Public Regulation

The transaction in this case was entry into a public bicycle race organized by private nonprofit organizations. While bicycles generally are regulated to the extent they are subject to motor vehicle laws, the organized racing of bicycles is not the subject of public regulation. Neither the South Bay Wheelmen nor the United States Cycling Federation are subject to public regulation.

2. Is This a Service of Great Importance to the Public

The service provided here was the organization and running [***7] of competitive bicycle races for members of the organizers and the public. The race organizers [*1467] obtained the necessary permits; laid out the course; manned the course; obtained sponsors; and advertised the event. This is very similar to the organization and sponsorship of the numerous 10-kilometer and marathon running events that have blossomed since the mid to late 1970’s. However, herein, the races were divided into different classes. Appellant was riding in an “open” public event. Without such organization and sponsorship, those that desire to enter bicycle racing would undoubtedly have no chance to do so under organized settings. Therefore, there is no doubt but that respondents offer a public service. However, does it measure up to the public importance necessary to void the release.

In Tunkl v. Regents of University of California, supra, 60 Cal.2d 92, the question was whether or not a public hospital provided a service of great public importance. The question was answered in the affirmative. The question was also answered in the affirmative regarding escrow companies in Akin v. Business Title Corp. (1968) 264 Cal.App.2d 153 [70 Cal.Rptr. [***8] 287]. In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410], the Supreme Court held that hospitals, and the relationship between hospitals and physicians, were sufficiently important to prevent an exculpatory clause from applying to a doctor suing a hospital based upon hospital bylaws. In Vilner v. Crocker National Bank (1979) 89 Cal.App.3d 732 [152 Cal.Rptr. 850], the court found that the practice of night deposits was of great public importance regarding the banking industry and its customers so that an exculpatory clause in a night deposit agreement was unenforceable. Also, common carriers provide a sufficiently important public service that exculpatory agreements are void. ( Rest.2d Contracts, § 195, com. a, p. 66.)

Measured against the public interest in hospitals and hospitalization, escrow transactions, banking transactions and common carriers, this transaction is not one of great public importance. [HN3] There is no compelling public interest in facilitating sponsorship and organization of the leisure activity of bicycle racing for public participation. The number of participants is relatively minute compared [***9] to the public use of hospitals, banks, escrow companies and common carriers. Also, the risks involved in running such an event certainly do not have the potential substantial impact on the public as the risks involved in banking, hospitals, escrow companies and common carriers. The service certainly cannot be termed one that “is often a matter of practical necessity for some members of the public.” ( Tunkl v. Regents of University of California, supra, 60 Cal.2d at p. 99.)

3. That the Service Is Open to Any Member of the Public.

It appears that anyone with a bicycle and the entrance fee who desires to enter the event can do so under standards established by the organizers.

[*1468] 4. The Economic Setting and “The Essential Nature of the Service.”

Item 4 seeks to measure the relative bargaining strengths of the parties. However, [**432] its prefaced by the words “the essential nature of the service.” (60 Cal.2d at pp. 99-100.) This ties in with item 2 above. The service provided herein can hardly be termed essential. It is a leisure time activity put on for people who desire to enter such an event. People are not compelled to enter the event [***10] but are merely invited to take part. If they desire to take part, they are required to sign the entry and release form. The relative bargaining strengths of the parties does not come into play absent a compelling public interest in the transaction.

5. Superior Bargaining Power and Standardized Adhesion Contract.

As set forth in item 4, this is not a compelled, essential service. The transaction raises a voluntary relationship between the parties. The promoters and organizers volunteer to hold a race if the entrants volunteer to take part for a nominal fee and signature on the entry and release form. These are not the conditions from which contracts of adhesion arise. Therefore, this item is not applicable.

6. The Provision of Control.

Compared to the patient who has placed himself in the exclusive control of the hospital in Tunkl, or the passenger who sits on a public conveyance, no such release of control exists here. Appellant retained complete control of himself and his bicycle and at any time could have dropped out of the race. Respondents had no control over how appellant rode his bicycle or approached the area in question except as to the general [***11] layout of the course.

Except for item 3, appellant’s situation does not fall within the guidelines set out in Tunkl. (60 Cal.2d at p. 92.) This situation does not present a transaction affecting the public interest. Therefore, there is no proscription for the release contained in the entry and release form herein. The trial court correctly relied upon the case of McAtee v. Newhall Land & Farming Co. (1985) 169 Cal.App.3d 1031 [216 Cal.Rptr. 465].

(3) (4) Finally, no triable issues of fact exist regarding whether the release form is clear and legible or whether the release form released respondents from the type of risk which caused appellant’s injuries. As previously indicated, the entire form is only three and one-half inches by eight inches and the only printing on the form other than the incidental information relating to the competitor is the release language. It is not buried in a lengthy document or hidden among other verbiage. The type is clear [*1469] and legible and in light of the fact it has no other language to compete with, its size is appropriate. The language is clear and unambiguous and the first paragraph concludes with “even though that liability [***12] may arise out of negligence or carelessness on the part of the persons or entities mentioned above.” The entities mentioned obviously include the South Bay Wheelmen who were the “promoters and sponsors” of the event, the United States Cycling Federation and the City of Hermosa Beach, “any involved municipalities.”

For the foregoing reasons, the judgment is affirmed.

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USA Pro Challenge offers riders chance to shine

Every stage is a story USA PRO CHALLENGE Aspen Snowmass Breckenridge steamboat springs beaver creek vail loveland fort collins denver
May 24, 2013
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Announcing the Pro Challenge Experience Presented by UnitedHealthcare!
Come Ride On Sunday, August 11th!
First 200 riders to register receive Premium Cycling Sunglasses valued at $100+!REGISTER TODAY!

Fastest time up Red Feather KOM receives a spot to ride before the Pros in the Amateur Time Trial, along with two hospitality passes to the Founders Box on August 23rd in Vail!

Join the adventure on Sunday, August 11 for the first annual Larimer County Pro Challenge Experience! Larimer County is famous for 3 things: the rugged natural beauty of the Rockies and our countless nature areas, a commitment to bike culture (which led this year to Fort Collins receiving Platinum status in the League of American Cyclists Bike Friendly Communities rankings), and our passion for great beer. The Larimer Experience brings all 3 together for one day that celebrates everything that makes Northern Colorado great. After departing from the famed New Belgium Brewery, the course tours the vast and breathtaking vistas of the region via tranquil county roads. But make no mistake, this is no Sunday cruise. The frontier spirit of Larimer County is on display in the 108 mile challenge, which includes over 30 miles of roadie friendly gravel and clay roads, plus an epic ascent from the front range into the remote and awe-inspiring Red Feather Lakes region. The more forgiving 52 and 30 mile courses are no less scenic, and all finish back at New Belgium for a great party. Ride benefits the Noco Rebuilding Network, a local charity supporting the rebuilding efforts of those affected by natural disasters in Northern Colorado.

King of Red Feather KOM

Between the town of Livermore and the community of Red Feather Lakes, Red Feather Lakes Road starts as an idyllic series of paved rollers that gradually transition to long sustained climbs, with sections of grades over 10%. This challenging ascent requires more than simple endurance. Any rider who wants the crown had better come prepared with climbing smarts and cunning, as well as the lungs and legs to back them up!

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2013 Amgen Tour of California Route Announced

2013 AMGEN TOUR OF CALIFORNIA ROUTE ANNOUNCED

For the First Time, America’s Greatest Cycling Race Will Travel South to North, Beginning in Escondido and Crossing

English: Paul Martens getting to race from San...

Beaches, Deserts, Mountains, Golden Gate Bridge

LOS ANGELES (February 12, 2013) – Changing direction for the first time in its eight-year history from south to north, America’s largest and most prestigious professional cycling stage race, the 2013 Amgen Tour of California, will bring riders and spectators first-time destinations, unprecedented climbs and demanding sprints on the approximately 750-mile course.

Amgen returns as the title sponsor for the heralded 8-stage race, set for May 12 to 19, 2013. Beginning with a circuit in Escondido, the route will run through 13 official host cities and include a first-time finish at the top of Mount Diablo, the 3,864-foot peak in the San Francisco Bay area. The race’s last stage will begin along the San Francisco Bay and continue across the Golden Gate Bridge, where a rolling traffic break will give cyclists uninterrupted access for the six-minute crossing.

Two new cities join the race route roster: Greater Palm Springs and Murrieta will host Stage 2, which will include an intense finish up the Palm Springs Aerial Tramway, one of the toughest climbs anywhere with an 1,880-foot elevation gain in the last four miles. Two other firsts: Escondido and Santa Rosa will become the first cities in race history to have hosted both an overall start and an overall finish.

“We take great pride in creating challenging, beautiful Amgen Tour of California routes that attract top international riders and showcase

Levi Leipheimer winning Stage 5 of the Amgen T...

the state’s amazing terrain and scenery,” said Kristin Bachochin, executive director of the race and senior vice president of AEG Sports. “We also consider the many fan and rider route suggestions before we settle on a final course. This year will be not only the most competitive but the most spectacular with diverse California scenery, from coastal routes to mountain vistas.”

As one of the most anticipated professional cycling races on the international calendar, the Amgen Tour of California draws top cyclists from the ranks of Olympic medalists, Tour de France competitors and world champions including BMC Racing Team’s current world road champion Philippe Gilbert.

The 2013 Amgen Tour of California will feature the following highlights*:

Stage 1, Presented by Nissan: Sunday, May 12 – Escondido

Start/Finish Location: Broadway and Grand Ave.

Start Time: 11:15 a.m.

Stage Length: 104.3 miles

Expect huge crowds as the Amgen Tour of California returns to San Diego County for the first time since 2009, when record numbers greeted the tour along the course and at the start and finish cities of Rancho Bernardo and Escondido. The 2013 route will include a climb up Mount Palomar, an effort that is often compared to the arduous Alpe d’Huez at the Tour de France.

Stage 2, Presented by Visit California: Monday, May 13 – Murrieta to Greater Palm Springs

2011 Amgen Tour of California Stage 4 Finish a...

Start Location: Murrieta City Hall/Town Square Park

Finish Location: Palm Springs Aerial Tramway

Start Time: 10:20 a.m.

Stage Length: 126.1 miles

Well versed in staging cycling races, Murrieta has been the host city for the popular Tour of Murrieta for several years. Incorporating a new part of California into the race, this stage will wind south through Temecula Valley Wine Country. Then the riders will tackle the climb up the San Jacinto Mountains to the hamlet of Idyllwild, one of the country’s top mountain biking destinations, before descending into the Coachella Valley and the towns of Palm Desert, Rancho Mirage, Cathedral City and Palm Springs. The stage will finish spectacularly as riders climb Tramway Road to the Palm Springs Aerial Tramway parking lot. The last 3.8 miles of the race will gain 1,880 feet of elevation – one of the toughest climbs anywhere.

Stage 3: Tuesday, May 14 – Palmdale to Santa Clarita

Start Location: Marie Kerr Park

Finish Location: Magic Mountain Parkway

Start Time: 11:20 a.m.

Stage Length: 111.8 miles

The race will return to host cities Palmdale and Santa Clarita, but will traverse entirely new roads. The stage will feature the 22-mile climb up Lake Hughes Road and follow the route of the famous Furnace Creek 508, the ultra-endurance race through Santa Clarita. The peloton will likely break apart on the massive climb, but an 18-mile descent to the finish will give the riders a chance to regroup and mount a large field sprint toward the finish line.

Stage 4: Wednesday, May 15 – Santa Clarita to Santa Barbara

Start Location: Theater Drive and Town Center

Finish Location: Cabrillo Blvd.

Start Time: 12:35 p.m.

Stage Length: 84.7 miles

Veteran Amgen Tour of California racers will recognize this stage from past races, but they’ll be riding it in reverse. After the desert terrain of Stage 3, they’ll welcome ocean breezes as they descend to the finish in coastal Santa Barbara. They’ll have their work cut out for them: punishing headwinds are a regular feature along the route to Santa Paula, site of the first sprint of the stage. A sprint in Ojai will be preceded by the K.O.M. and technical descent of Dennison Grade. Past Ojai, the climb up Casitas Pass will give way to long downhill and flat finish along the beach in Santa Barbara. There is no question that this stage will favor the sprinters.

Stage 5, Presented by Visit California: Thursday, May 16 – Santa Barbara to Avila Beach

This is the starting line of the Amgen Tour of...

Start Location: Cabrillo Blvd.

Finish Location: Front St.

Start Time 11 a.m.

Stage Length: 116.4 miles

A start along the beach in Santa Barbara will see the race retrace much of its 2006 route, but in reverse order. The riders will continue over the steep and windy San Marcos Pass along state Route 154 before descending into the Lake Cachuma Recreation Area. The racers will then tackle Foxen Canyon Road outside of Los Olivos and pass through Orcutt and the quaint farm town of Guadalupe, which gave the race a warm welcome in 2006. A sprint in Arroyo Grande will foreshadow an anticipated massive sprint to the finish in Avila Beach, which offers a picturesque harbor, quaint shops, a beautiful beach and the opportunity for its 1,700 residents to join thousands of race fans to watch the peloton storm down Front Street in hopes of capturing the stage win.

Stage 6: Friday, May 17 – San Jose (Individual Time Trial)

Start Location: Bailey Ave.

Finish Location: Metcalf Road – Metcalf Motorcycle Park

Start Time: 12:50 p.m.

Stage Length: 19.6 miles

San Jose is a familiar setting for the race; it’s the only city to participate in all eight editions of the Amgen Tour of California. The race returns to the 2006 time trial course for the first three-fourths of the day, with the addition of a wicked stinger at this year’s finish. This 19.6-mile stage features a climb that begins soon after the riders push off the starting ramp. As the racers navigate around beautiful lakes and golf courses, they will begin to prepare for the most difficult finish posed by any Amgen Tour of California time trial course. Once they make the final right-hand turn on the route, they will face the strenuous, three kilometer climb up Metcalf Road to the finish. The riders will gain nearly 1,000 feet in elevation and attack several pitches with a grade of 10 percent or more.

Stage 7, Presented by Nissan: Saturday, May 18 – Livermore to Summit of Mount Diablo

Start Location: 3rd St./Carnegie Park

Finish Location: Mount Diablo – summit parking lot

Start Time: 11:35 a.m.

Stage Length: 93 miles

In all likelihood, the 2013 Amgen Tour of California will be won or lost on the climb to the peak of Mount Diablo. The 92-mile route features several cyclist favorites, including Morgan Territory Road, new to the race this year. The riders will navigate narrow, twisting climbs through bucolic farm country and redwoods before making a roller-coaster descent. The race will return to Patterson Pass Road where they will encounter the infamous “wall,” a short, steep climb toward the end of the road where riders will peddle up grades over 15 percent in the last two kilometers. The peloton will return to Livermore for a sprint, and finally, expect large crowds at Mount Diablo, which historically has attracted some of the largest audiences for a mountain race route. This year, the race will cover an additional 4.5 miles of climbing to the summit, perhaps the greatest viewscape of any mountain in California with breathtaking views up to 200 miles in any direction.

Stage 8, Presented by Amgen: Sunday, May 19 – San Francisco to Santa Rosa

Start Location: Marina Green

Finish Location: 3rd Street and Santa Rosa Ave.

Start Time: 8:15 a.m.

Stage Length: 86.2 miles

We could not have designed a better stage for the finish of 2013 Amgen Tour of California! This stage encompasses some of the most

Tom Danielson at the 2007 Amgen Tour de California

The race will be capped off by two spectator-friendly finish circuits in downtown Santa Rosa where the winner of the 2013 Amgen Tour of California will be crowned in a special awards ceremony. At the end of the race, the winner and the team who supported him will take top honors for having conquered the longest and most difficult stage race ever mounted in the United States.

Cycling fans can experience the excitement of America’s biggest professional stage race up close and personal by becoming a race volunteer. Race organizers are looking to fill nearly 5,000 volunteer positions. Registration and further information about the various duties available is nowavailable online at www.AmgenTourofCalifornia.com.

For the last five years, title sponsor Amgen has recognized outstanding individuals making a difference for cancer patients and their loved ones in communities across California through the Breakaway from Cancer initiative, designed to raise awareness of the important resources that are available to those affected by cancer – from prevention through survivorship. Four individuals – one from each of the 2013 Amgen Tour of California communities of Escondido, Santa Clarita, Santa Barbara and Livermore – will ultimately be selected as the Breakaway from Cancer Champions. Nominations will be accepted online until Feb. 25 to recognize a cancer survivor, patient, caregiver or advocate for those impacted by cancer. Learn more about becoming a Breakaway from Cancer Champion at www.breakawayfromcancer.com/champions.

About the Amgen Tour of California

The largest cycling event in America, the 2013 Amgen Tour of California is a Tour de France-style cycling road race, created and presented by AEG, that challenges the world’s top professional cycling teams to compete along a demanding course from May 12-19, 2013. For more information, please visit www.AmgenTourofCalifornia.com.

*Route and start times are subject to change.


USA Pro Challenge brought $99.6 million to Colorado!!!!!

This is pretty amazing and backed up by the research done by the Denver Post.

This article by the Denver Post reports about a great bicycle race. However, the article goes beyond that and backs up the press release with additional research. Thanks

MONTROSE, CO - AUGUST 21:  (L-R) Teammates Vin...

Denver Post and Thanks USA Pro Challenge.

Please read the entire article, but here are some of the highlights.

Organizers said the privately funded race stirred $99.6 million in spending, up from $83.5 million last year.

The private firm hired to do the study surveyed 2,000 attendees in host cities and along the route to establish an economic impact of $81.5 million spent on lodging, food, transportation and entertainment. The rest came from race support.

The Denver Post found that visitation was around 5,000 to 7,500 at each of the first few stops of the race in Telluride, Montrose, Crested Butte and Gunnison. Crowds began swelling, with 10,000 to 15,000 in Aspen, Beaver Creek and Breckenridge.

Numbers for the first half of the race fell below expectations. Leaders in some communities said they were prepared for at least twice as many spectators.

The Forest Service was braced for tens of thousands atop Independence Pass outside Aspen and counted fewer than 1,500, (which happens when you make too many rules and make it a bad place to watch the race USFS!)

….all host cities embraced the race, noting the long-term value from the race’s exposure and televised coverage.

Boulder’s Open Space and Mountain Parks counted 10,000 spectators lining Boulder’s climactic finish on Flagstaff Mountain, roughly a third of the number expected for the final 4-mile ascent. (Again, Boulder made the mountain inhospitable (a pain in the butt to get too) so no one went up to watch the race.)

Most host cities across Colorado reported increased sales-tax collections for August.

MONTROSE, CO - AUGUST 21:  (L-R) Teammates Jor...

Durango’s sales and use tax for August 2012 was $1.27 million, a 5.7 percent increase from the previous August. August 2012 sales tax collections for Durango were the highest for the month since 2008.

The Town of Telluride, where local organizers estimated the Pro Challenge drew about 6,000 for the finish of Stage 1 on Monday Aug. 20, saw a 21 percent jump in sales tax revenue in August,….

City of Montrose estimated 5,000 spectators watched the start of Stage 2 on Tuesday, Aug. 21. The city saw its August sales tax climb 0.8 percent over the previous August….

Town of Crested Butte saw its sales tax collections increase 1.7 percent in August 2012,… The local Mountain Express bus service saw a 25 percent increase in ridership on race day.MONTROSE, CO - AUGUST 21:  Thomas Danielson of...

Aspen sold out every one of its 3,200 rentable units in the city on Aug. 22, the afternoon racers finished Stage 3 in Aspen and the night before the downtown Stage 4 start. … August lodging tax collections (2 percent of total lodging spending) climb 23 percent in August….

The Town of Avon saw an 8.4 percent annual bump in its August 2012 sales tax and a 12.2 percent bump

Breckenridge saw spending on retail, restaurant and lodging climb 6 percent in August 2012….

Colorado Springs had 15,000 people gathered in downtown Colorado Springs to watch the race and another 35,000 lined city streets

Denver‘s lodging tax collections reached $6.3 million in August 2012, compared to $5.9 million in August 2011 and $4.7 million in 2010.

That is a substantial jump in tax for municipalities, cities and the state as well as the cause for the taxation, a lot of money flowing into the area.

How this is the number that is surprising! The people who watched the race were from 25 states, and 53 percent of spectators came from outside Colorado. Come on Colorado, you just got your butt kicked by tourists!

Remember this next spring when the RFP goes out to host the race next year. This race brings money and people to Colorado!

Denver Capital building

See USA Pro Challenge saw 1 million spectators and $99.6 million impact

What do you think? Leave a comment.

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