California statute allowing law enforcement to close land for avalanche risk or emergency.

§ 409.6.  Power of peace officers to close area after avalanche; Unauthorized entry

(a) Whenever a menace to the public health or safety is created by an avalanche, officers of the Department of the California Highway Patrol, police departments, or sheriff’s offices, any officer or employee of the Department of Forestry and Fire Protection designated a peace officer by subdivision (g) of Section 830.2, and any officer or employee of the Department of Parks and Recreation designated a peace officer by subdivision (f) of Section 830.2, may close the area where the menace exists for the duration thereof by means of ropes, markers, or guards to any and all persons not authorized by that officer to enter or remain within the closed area.

If an avalanche creates an immediate menace to the public health, the local health officer may close the area where the menace exists pursuant to the conditions which are set forth above in this section.

(b) Officers of the Department of the California Highway Patrol, police departments, or sheriff’s offices, or officers of the Department of Forestry and Fire Protection designated as peace officers by subdivision (g) of Section 830.2, may close the immediate area surrounding any emergency field command post or any other command post activated for the purpose of abating hazardous conditions created by an avalanche to any and all unauthorized persons pursuant to the conditions which are set forth in this section whether or not that field command post or other command post is located near the avalanche.

(c) Any unauthorized person who willfully and knowingly enters an area closed pursuant to subdivision (a) or (b) and who willfully remains within that area, or any unauthorized person who willfully remains within an area closed pursuant to subdivision (a) or (b), after receiving notice to evacuate or leave from a peace officer named in subdivision (a) or (b), shall be guilty of a misdemeanor. If necessary, a peace officer named in subdivision (a) or (b) may use reasonable force to remove from the closed area any unauthorized person who willfully remains within that area after receiving notice to evacuate or leave.

(d) Nothing in this section shall prevent a duly authorized representative of any news service, newspaper, or radio or television station or network from entering the areas closed pursuant to this section.

clip_image002What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, California, Avalanche, Emergency, Closure, Power to Close Land,

 

 

 

 

 

 


In most you assume the risk of the risks of the sport (but not all) unless the defendant did something to increase that risk to you.

In this case, the defendant was snowboarding without a retention strap. His snowboard got away from him hitting a young girl. The California Appellate Court held this was not a risk the plaintiff assumed when she went skiing.

Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

State: California

Plaintiff: Jennifer Campbell

Defendant: Eric Derylo

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 1999

Snowboarders argue they don’t have to wear retention straps because their binding keeps their snowboards attached to them. Snowboard bindings are not releasable. That is true until the Snowboarder sits down to adjust his board or boots and takes his bindings off or tears his bindings off his board.

Working at a ski area you see snowboards coming down the hill that have escaped from boarders.

Most state laws also say that you cannot board a lift without a retention strap.

In this case, the plaintiff was skiing down a run at Heavenly Valley Ski resort. She skied to an icy section and took off her skis and hiked down the icy section. She was sitting on the snow putting her skis back on when the accident occurred.

The defendant was snowboarding on the same run when he encountered the icy section. He sat down to take his snowboard off to walk down the icy section when his snowboard got away from him. The snowboard hit the plaintiff in the lower back.

California does not have a skier safety statute. El Dorado County, the county where Heavenly Valley Ski Resort is located does have a county ordinance requiring all skiers and boarders to have a safety retention strap on their skis and boards.

The skier responsibility code also used by Heavenly requires retention straps.

The plaintiff filed this lawsuit, and the defendant filed a motion for summary judgment based on assumption of the risk. The trial court granted the motion, and the plaintiff appealed.

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

The trial court’s supporting argument for granting the defendant’s motion for summary judgment was:

The trial court concluded that primary assumption of the risk barred plaintiff’s action because injury from runaway snowboards is an “everyday risk in the sport of skiing or snowboarding.” Plaintiff contends that primary assumption of risk does not bar this action because defendant’s use of a snowboard unequipped with a retention strap amounted to conduct outside the inherent nature of the sport.

The Appellate court first went to the deciding case in California (and relied upon in most other states) concerning assumption of the risk. Knight v. Jewett (1992) 3 Cal. 4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696]. The California Supreme Court in Knight defined assumption of the risk.

…ordinary duty of care to avoid injury to others is modified by the doctrine of “primary assumption of risk.” Primary assumption of the risk negates duty and constitutes a complete bar to recovery. .) Whether primary assumption of the risk applies depends on the nature of the sport or activity in question and the parties’ relationship to that activity. In the context of sports, the question turns on “whether a given injury is within the ‘inherent’ risk of the sport.”

The court then looked at California cases dealing with skiing where assumption of the risk was a basis for the defense.

…assumption of the risk applies to bar recovery for “. . . moguls on a ski run, trees bordering a ski run, snow-covered stumps, and numerous other conditions or obstacles such as variations in terrain, changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment, and myriad other hazards which must be considered inherent in the sport of skiing.”

Knight, Id, however, does not grant immunity to “all defendants participating in sporting activity.” Defendants have a duty of care not to increase the risks to another participate “over and above those inherent in the sport.”

Meaning if you increase the risk of a sport to another participant, you have eliminated the inherent risk from the sport. Inherent risks of a sport are assumed by the participants, whether or not those risks are truly inherent or identified as inherent by statute.

The court then applied a quasi but for test to determine if the actions of the defendants in cases increased the risk unnecessarily. In a baseball game, the actions of the mascot took a spectator’s attention away from the game, and he was hit with a foul bar. The game of baseball could be played without a mascot; therefore, having the mascot increased the risk to the spectators.

In a skiing case you could ski without alcohol. Therefore, skiing drunk increases or changes the risk to the other skiers on the slope placing them at greater risk of a collision. Therefore, the inherent risk of skiing was changed when the defendant was drunk.

The court then looked at the present case as: “the question whether defendant’s use of a snowboard without a retention strap could be found by a jury to have  increased the inherent risk of injury to coparticipants from a runaway snowboard.”

The court found that both the county ordinance and the Heavenly Valley Skier Responsibility Code which was posted at the resort require the use of a retention strap. Therefore, there was a demonstrated recognition that retention straps were a necessary safety equipment to reduce the risk of runaway ski equipment.

A jury could find that, by using a snowboard without the retention strap, in violation of the rules of the ski resort and a county ordinance, defendant unnecessarily increased the danger that his snowboard might escape his control and injure other participants such as plaintiff. The absence of a retention strap could therefore constitute conduct not inherent to the sport which increased the risk of injury.

A test in the drunken skier case upheld this conclusion.

[C]onduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.”

When you assume the risk, those risks are the normal risks, even if they occur infrequently or rarely. More so, the risks you assume in a sport are not changed by the individual actions of one person.

The defendant also argued there was no proximate cause between this action in taking off his board and the injury the plaintiff suffered because the board could have gotten away from him at any time when he was taking it off to walk down the hill. The court looked at statements from the Defendant’s expert witness to refute that argument.

However, the declaration of plaintiff’s expert established that, used properly; the retention strap would have tethered defendant’s leg or boot to his snowboard. Defendant offered no evidence to refute the possibility that the strap would have provided him an opportunity to secure control of the board and prevent the accident.

The court reversed and sent the case back to the lower court for trial because “We conclude that defendant owed a duty of care not to increase the risks of skiing beyond those inherent to the sport.”

So Now What?

The first obvious issue is, do not snowboard without a retention strap or a way to secure your board from getting away. Even if you take your board off to walk down the slope or work on your board/binding you need to secure the board. Skis all have breaks now days, and if you drop a ski on the slope, it will stop.

More importantly, this case looks at the upper limit of assumption of an inherent risk in a sport.

The inherent risks of a sport are those risks that are part and parcel of the sport or activity. Without those risks, the sport would not be what it is. Remove the inherent risks and the sport has no value to the players.

In skiing, most ski area safety statutes have broadened the definition of the inherent risk of skiing to include numerous other risks. Several other state statutes have done the same for other activities.

California has not defined the inherent risk of skiing except through case law. Consequently, each new injury a skier suffers on the slope is defined afterwards by the courts as being an assumed risk or not, rather before the injured guest starts skiing.

Here, the inherent risks of skiing were tightened in California, and I would guess most other courts would come to the same conclusion.

clip_image002What do you think? Leave a comment.

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

 

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

 

 

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Inherent Risk, Assumption of the Risk, skiing, snowboarding, Heavenly Valley Ski Area, California,

 


Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

JENNIFER CAMPBELL, a Minor, etc., Plaintiff and Appellant, v. ERIC DERYLO, Defendant and Respondent.

No. C030104.

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

October 14, 1999, Decided

SUBSEQUENT HISTORY: [***1] Review Denied January 13, 2000, Reported at: 2000 Cal. LEXIS 132.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of El Dorado County. Super. Ct. No. SV1129. Suzanne N. Kingsbury, Judge.

DISPOSITION: The judgment is reversed. Plaintiff shall recover costs.

COUNSEL: Law offices of Edwin E. Williams and Edwin E. Williams for Plaintiff and Appellant.

Caulfield, Davies & Donahue, James R. Donahue and Catherine A. Woodbridge for Defendant and Respondent.

JUDGES: Opinion by Callahan, J., with Kolkey, J., concurring. Blease, Acting P. J., concurred in the result.

OPINION BY: CALLAHAN

OPINION

[*825] [**520] CALLAHAN, J.

Jamie Xelowski, as guardian ad litem of her daughter Jennifer Campbell, a minor, plaintiff, appeals from a judgment granting defendant summary judgment in this negligence action against defendant Eric Derylo. The trial court ruled that the doctrine of primary assumption of risk precluded plaintiff from recovering for injuries [**521] sustained when defendant’s runaway snowboard hit Jennifer in the back. We shall reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 1994, Jennifer, then 11 years old, was skiing down the World Cup [***2] ski run at the Heavenly Valley Ski Resort when she stopped and removed her skis due to ice on the slope. She walked down the remainder of the hill and at the bottom sat down to put her skis back on. At this time defendant Derylo, then age 17, was snowboarding down the same run. He stopped approximately 100 yards from the bottom and removed his snowboard due to fatigue and ice on the slope. After he had removed his feet from the bindings, the snowboard slid out of his control and down the slope, hitting Jennifer in the lower back.

An El Dorado County ordinance, as well as the skier responsibility code posted at Heavenly Valley, require participants to wear a retention strap that attaches to the bindings of the board and is secured to the snowboarder’s leg or boot. For purposes of this motion, it is uncontested that defendant’s snowboard was not equipped with such a strap on the day of the accident.

[*826] Defendant moved for summary judgment on the basis of assumption of risk. The trial court granted the motion on the ground that the danger of being injured by runaway snowboards was inherent in the sport of skiing and there was no evidence of recklessness on the part of defendant. [***3] Plaintiff appeals.

DISCUSSION

(1) [HN1] On appeal from an order granting summary judgment, the reviewing court conducts a de novo examination of the record to determine whether the moving party was entitled to summary judgment as a matter of law or whether genuine issues of material fact remain. ( [HN2] Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal. App. 3d 205, 212 [285 Cal. Rptr. 717].)

“We independently review the parties’ papers supporting and opposing the motion, using the same method of analysis as the trial court. . . . [HN3] The moving party bears the burden of proving that the claims of the adverse party are entirely without merit on any legal theory. . . . The opposition must demonstrate only the existence of at least one triable issue of fact . . ., and all doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion.” ( Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal. App. 4th 1830, 1836 [20 Cal. Rptr. 2d 913], [***4] citations omitted.)

The trial court concluded that primary assumption of the risk barred plaintiff’s action because injury from runaway snowboards is an “everyday risk in the sport of skiing or snowboarding.” Plaintiff contends that primary assumption of risk does not bar this action because defendant’s use of a snowboard unequipped with a retention strap amounted to conduct outside the inherent nature of the sport.

(2a) In Knight v. Jewett (1992) 3 Cal. 4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] and its companion case Ford v. Gouin (1992) 3 Cal. 4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724, 34 A.L.R.5th 769], the Supreme Court concluded that the [HN4] ordinary duty of care to avoid injury to others is modified by the doctrine of “primary assumption of risk.” Primary assumption of the risk negates duty and constitutes a complete bar to recovery. ( [HN5] Knight, supra, at pp. 309-310, 314-316.) Whether primary assumption of the risk applies depends on the nature [***5] of the sport or activity in question and the parties’ relationship to that activity. ( Id. at p. 313.) In the context of sports, the question turns on “whether a given injury is within the ‘inherent’ risk of the sport.” ( Staten v. Superior Court (1996) 45 Cal. App. 4th 1628, 1635 [53 Cal. Rptr. 2d 657].)

In Knight, a defendant carelessly knocked over a coparticipant and stepped [**522] on her hand during a touch football game. (3 Cal. 4th at pp. 300-301.) The [*827] conduct was deemed an inherent risk of the sport and therefore recovery was barred under primary assumption of risk. ( Id. at p. 321.) The court in Knight reasoned that “. . . vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct.” ( Id. at p. 318.)

In the context of skiing, courts have held that primary assumption of the risk applies to bar recovery for “. . . moguls on a ski run ( Knight v. Jewett, supra, 3 Cal. 4th 296, 315-316), trees bordering a ski run ( Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal. App. 3d 111 [266 Cal. Rptr. 749]), [***6] snow-covered stumps ( Wright v. Mt. Mansfield Lift (D.Vt. 1951) 96 F. Supp. 786), and numerous other conditions or obstacles such as variations in terrain, changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment, and myriad other hazards which must be considered inherent in the sport of skiing.” ( O’Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal. App. 4th 188, 193 [35 Cal. Rptr. 2d 467].) A runaway snowboard resulting from ordinary skier carelessness would seem to fit within the realm of those risks inherent to the sport. 1

1 We quickly dismiss plaintiff’s contention that there is a triable issue over whether plaintiff and defendant were coparticipants. At Heavenly Valley Ski Resort, skiers and snowboarders share the same slope. Both parties were in a designated ski area; moreover, putting on and taking off equipment is an integral part of the sport. Skiing, like ice skating, is a sport which may be engaged in just as well alone as with others. There is no requirement that athletes be acquainted with each other or join together in order to be considered coparticipants within the meaning of Knight. (See Staten v. Superior Court, supra, 45 Cal. App. 4th at p. 1633 [figure skater assumes risk of collision with other skaters even when skating solo, where “proximity to one another created certain risks of collision”].)

[***7] Knight however does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that [HN6] “. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (3 Cal. 4th at pp. 315-316, italics added.) Thus, even though “defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself,” they may not increase the likelihood of injury above that which is inherent. ( Id. at p. 315.)

The principle is illustrated in the skiing context in Freeman v. Hale (1994) 30 Cal. App. 4th 1388, 1396 [36 Cal. Rptr. 2d 418]. In Freeman the defendant had consumed alcoholic beverages to the point of inebriation prior to skiing. While on the slopes defendant collided with plaintiff coparticipant, rendering her a quadriplegic. ( Id. at p. 1391.) The defendant claimed he was immune from liability because the plaintiff had assumed [***8] the risk of harm by participating in the sport. (Ibid.) The Fourth District reversed summary judgment for the defendant.

[*828] While conceding that inadvertent collisions are an inherent risk of skiing and therefore assumed by participants (30 Cal. App. 4th at p. 1395), Freeman pointed out that the consumption of alcoholic beverages, an activity not ordinarily associated with skiing, may have unnecessarily increased the risk of collision. Furthermore, “the increased risks presented by the consumption of alcohol are not inherent in the sport of skiing.” ( Id. at p. 1396.) A skier has a duty not to increase the risks of the sport beyond those inherent, and summary judgment is improper where the [**523] circumstances suggest that the defendant engaged in activity that increased the risk. ( Id. at p. 1397.)

In Lowe v. California League of Prof. Baseball (1997) 56 Cal. App. 4th 112, 123 [65 Cal. Rptr. 2d 105], the plaintiff was a spectator at a minor league baseball game. He was sitting in an uncovered section of the stadium when a foul ball struck him in the face. Immediately prior to being struck, the [***9] team’s mascot was behind the plaintiff and his tail was hitting the plaintiff on the head and shoulders. The plaintiff turned to see what the mascot was doing and as he was turning back around to face the field, a foul ball hit him. ( Id. at pp. 116-118.)

While agreeing that the risk of being hit with a foul ball was inherent in the sport of baseball and therefore assumed by spectators, the court, relying on Knight, held that the defendant had a duty not to increase the risk of a spectator being struck. ( Lowe v. California League of Prof. Baseball, supra, 56 Cal. App. 4th at p. 123.) Summary judgment was improper because, “. . . whether such antics [by the mascot] increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.” (Ibid.; see also Branco v. Kearny Moto Park, Inc. (1995) 37 Cal. App. 4th 184, 193 [43 Cal. Rptr. 2d 392] [bicycle jump’s unsafe design may have increased risk to bicycle racers].)

Finally, in Yancey v. Superior Court (1994) 28 Cal. App. 4th 558 [33 Cal. Rptr. 2d 777], the court ruled that a participant in discus throwing owed a duty to a coparticipant [***10] to ascertain that the target area was clear before releasing the discus onto the playing field. In reversing summary judgment, the court found that the inherent risks of discus throwing do not include being injured by a discus thrown with no regard for its potential path. ( Id. at p. 566.)

(3a) Here, we are confronted with the question whether defendant’s use of a snowboard without a retention strap could be found by a jury to have [*829] increased the inherent risk of injury to coparticipants from a runaway snowboard. 2 The factual showing below demonstrates triable issues of fact.

2 At the hearing on the motion, plaintiff’s counsel listed four separate acts or omissions by defendant which he contended went beyond “ordinary careless conduct” and increased the inherent risk to Jennifer: (1) failure to wear a retention strap; (2) taking the board off on a steep slope without consideration for downhill skiers; (3) failure to move to the edge of the slope before removing his snowboard; and (4) failure to leave one foot in his snowboard and walk down the slope. This appeal focuses solely on the absence of a retention strap. We agree with plaintiff’s implicit concession that each of the other instances of misfeasance mentioned by counsel constitutes mere ordinary negligence which is not actionable under the doctrine of primary assumption of the risk.

[***11] Both El Dorado County Ordinance No. 9.20.040, subdivision A6, and the skier responsibility code which was posted at Heavenly Valley Ski Resort, require the use of a retention strap. These safety regulations demonstrate a recognition that retention straps reduce the risk of injury from runaway ski equipment. As the declaration of plaintiff’s expert explains, this requirement is especially important when it comes to snowboards because, unlike skis which are equipped with automatic braking devices, snowboards have no built-in stopping mechanism. A jury could find that, by using a snowboard without the retention strap, in violation of the rules of the ski resort and a county ordinance, defendant unnecessarily increased the danger that his snowboard might escape his control and injure other participants such as plaintiff. The absence of a retention strap could therefore constitute conduct not inherent to the sport which increased the risk of injury. 3

3 We decline to address the issue of whether Evidence Code section 669, read in conjunction with El Dorado County Ordinance No. 9.20.040, subdivision A6, establishes an independent duty of care which overrides the primary assumption of risk doctrine. The Supreme Court granted review in Cheong v. Antablin (1997) 16 Cal. 4th 1063 [68 Cal. Rptr. 2d 859, 946 P.2d 817], purportedly to settle this question, but ended up avoiding it by concluding that the ordinance evinced “no clear intent to modify common law assumption of risk principles.” ( Id. at p. 1069.) As evidenced by the four separate concurring opinions in Cheong (including one by the author of the majority opinion, Justice Chin), there appears to be no clear consensus on the high court about this issue.

[***12] [**524] (2b) Our conclusion is consistent with the test advanced by Freeman to determine what risks are inherent in a sport: [HN7] “[C]onduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” (30 Cal. App. 4th at p. 1394.) Freeman found that “[t]he consumption of alcoholic beverages could be prohibited during or shortly before skiing without fundamentally altering the nature of the sport.” ( Id. at p. 1396.) The doctrine of primary assumption of risk was not an absolute bar to recovery because the risks associated with skiing while under the influence of alcohol are not inherent in the sport and thus not assumed by fellow participants.

[*830] In Lowe the court used similar reasoning, to conclude that “. . . the antics of the mascot are not an essential or integral part of the playing of a baseball [***13] game,” and “the game can be played in the absence of such antics.” (56 Cal. App. 4th at p. 123.)

Thus, “. . . the key inquiry here is whether the risk which led to plaintiff’s injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game.” ( Lowe v. California League of Prof. Baseball, supra, 56 Cal. App. 4th at p. 123.) (3b) Use of a mandatory retention strap would not impede or alter the sport of snowboarding. On the contrary, retention straps can be used “without fundamentally altering the nature of the sport.” ( Freeman v. Hale, supra, 30 Cal. App. 4th at p. 1396.) Furthermore, use of a retention strap would in no way chill or deter vigorous participation in skiing or snowboarding. ( Knight v. Jewitt, supra, 3 Cal. 4th at p. 317.)

Defendant claims that he was entitled to summary judgment in any event, because he would necessarily have removed the strap in order to walk down the slope. According to this argument, the board would have hit plaintiff regardless of whether it was equipped with a strap. Defendant is essentially arguing that proximate cause [***14] was lacking as a matter of law.

However, the declaration of plaintiff’s expert established that, used properly, the retention strap would have tethered defendant’s leg or boot to his snowboard. Defendant offered no evidence to refute the possibility that the strap would have provided him an opportunity to secure control of the board and prevent the accident. The record therefore presents a triable issue as to whether defendant’s use of a snowboard without a retention strap was the proximate cause of plaintiff’s injuries. Since all inferences in a summary judgment dispute are to be drawn in favor of the party opposing the motion ( Tully v. World Savings & Loan Assn. (1997) 56 Cal. App. 4th 654, 660 [65 Cal. Rptr. 2d 545]), defendant did not eliminate proximate cause as a triable issue.

We conclude that defendant owed a duty of care not to increase the risks of skiing beyond those inherent to the sport. The doctrine of primary assumption of the risk is not an absolute bar to recovery on these facts, because the lack of a retention strap could be found by a jury to have increased the risk of harm to plaintiff beyond what was inherent in the sport of skiing. Defendant [***15] also did not establish as a matter of law that the lack of a retention strap was not a proximate cause of plaintiff’s injuries. Accordingly, summary judgment was improperly granted.

[*831] [**525] DISPOSITION

The judgment is reversed. Plaintiff shall recover costs.

Kolkey, J., concurred. Blease, Acting P. J., concurred in the result.

Respondent’s petition for review by the Supreme Court was denied January 13, 2000. Kennard, J., and Chin, J., were of the opinion that the petition should be granted.


States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

Sec. 05.45.120 does not allow using a release by ski areas for ski injuries

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

 

Florida

Florida Statute § 744.301 (3)

Florida statute that allows a parent to release a minor’s right to sue

Virginia

Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Allows a parent to sign a release for a minor for equine activities

Utah

78B-4-203.  Limitations on Liability for Equine and Livestock Activities

Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

 

By Case Law

 

California

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

 

Florida

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Allows a release signed by a parent to require arbitration of the minor’s claims

Florida

Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147

Release can be used for volunteer activities and by government entities

Massachusetts

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

 

Minnesota

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

 

North Dakota

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

 

Ohio

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

 

Wisconsin

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

Maryland

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
Kelly , v. United States of America, 2014 U.S. Dist. LEXIS 135289

Ruling is by the Federal District Court and only a preliminary motion
And final decision dismissing the case

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act,

 


The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win

Plaintiff signed up on a cruise ship to hike on a lava field. She was fully informed of the risks and admitted to knowing the risks in advance which is defined as assumption of the risk.

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

State: California and Hawaii, the accident occurred in Hawaii but the lawsuit was filed in California

Plaintiff: Ana Maria Andia, M.D.

Defendant: Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures

Plaintiff Claims: (1) negligence, on grounds that Defendant breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Defendant failed to warn Plaintiff of the known dangers and risks associated with the lava hike. & (1) negligence, on grounds that defendant cruise breached its duty of care to Plaintiff by failing to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that defendant cruise failed to warn Plaintiff of the dangers and risks associated with the lava hike.

Defendant Defenses: assumption of the risk

Holding: for the defendant

Year: 2007

Simple case, however, the facts are long because the defendants provided the plaintiff with a ton of information about the risks of the activity which the court reviewed.

The plaintiff signed up for a hike in the lava fields in Hawaii while on a cruise ship. The information about the hike stated the distance of the hike was always changing because of the lava flow. The hikers could return at any time; however, if they did they would return the way they came by themselves.

This information was provided to the plaintiff in a description of the hike provided by the defendant cruise line, in a brochure that plaintiff was given, in a release the plaintiff signed, and during a talk before the hike began.

Plaintiff in her deposition also admitted that she was an experienced hiker, that falling was always a possibility when hiking.

During a point in the hike, the plaintiff decided to turn around. While hiking back to the ranger station she fell breaking her foot. She sued for her injuries.

The lawsuit was started in the Federal District Court of Southern California. The defendant travel company was dismissed earlier in the case. The defendant hiking company cruise line filed motions for summit judgment.

Summary of the case

The court first looked at the claims against the defendant hiking business. (The type of entity or whether it was an entity was never identified, and the court was not sure what the hiking company was also.)

The basis of the motion from the hiking company was that the risk of “…slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking.”

The duty of care owed by the defendant hiking company in this situation is:

…a duty to use due care and avoid injury to others, and may be held liable if they’re careless conduct injures another person. The doctrine of primary assumption of the risk is an exception to this general rule. The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity; the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.”

The court then found the doctrine of primary assumption of the risk applied because:

…conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.”

Summing up its own analyses of primary assumption of risk the court stated:

If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity.

The plaintiff argued that the hiking company, Arnott’s, was guilty of gross negligence because:

Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day of her cruise vacation.

However, the plaintiff’s arguments were not backed up with any facts. Arguing a point with facts that do not support your argument fails.  

The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

Nor did the actions of the defendant hiking company increase the risk of injury to the plaintiff.

The plaintiff knew the risks of hiking prior to the hike in question and admitted that in her deposition. The plaintiff was given information about the hike and had the risks of the hike explained to her four different ways prior to the hike. The plaintiff assumed the risk of here injuries, and the risk that plaintiff suffered causing her injury were visible to anyone hiking in the lava field.

The next issue the court reviewed with regard to the defendant hiking company was the duty to warn. “It is established law, at least in the exercise of ordinary care, that one is under no duty to warn an-other of a danger equally obvious to both.”

The court found for the hiking company on this issue based on the facts and found the plaintiff assumed the risk of her injuries because she could see the risk and continued on anyway. If you can see the risk, you cannot complain about not knowing about the risk.

The plaintiff’s claims against the cruise ship were then reviewed. A cruise ship has a different duty of care owed to its passengers. “The duty of care of the owner of an excursion ship is a matter of federal maritime law. That duty is to exercise reasonable care under the circumstances.”

Here the plaintiff presented no evidence that the defendant cruise line did not exercise reasonable care to the plaintiff. The same facts when applied to the case also showed the defendant cruise ship had not breached its duty to warn to the plaintiff. The information and brochure were provided by the cruise ship to the plaintiff when she signed up for the hike.

[I]t is generally accepted that where a carrier.  . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.”

So Now What?

The case was won on two issues. The first was the risks of the activity were pointed out over and over again by the hiking company to the plaintiff. Information, brochures, safety talks all stated the risks of the activity which the plaintiff accepted when she turned around.

The second issue was the plaintiff in her deposition admitted to hiking experience. Possibly one or the other could have been enough to prove a defense for the defendants in this case; however, since both were so clear, the defense was easily proven.

Many times on hikes, we point out risk, as well as birds and beauty, to others with us. If you are guiding a hike, this requirement should concentrate your attention to these issues and your actions in pointing out risks. You can cover many of the risks of an activity such as hiking with a general talk at the beginning. “We are going to be walking on uneven surfaces. There will be many rocks and roots to trip on. Pay attention to where you are putting your feet and make sure you are on a solid surface when walking.”

As much as releases are an important defense and source of information for your guests, assumption of the risk is making a comeback in the outdoor recreation industry. If your release fails for any reason, assumption of the risk is the best and maybe the only other defense you have available.

Besides the more your gusts know and understand the risks of the activity the less likely the will be to be injured and the better the experience they will have. Leave scaring guests to fun houses at Halloween.

The one confusing issue in the case was the courts use of California law to decide a case that occurred in Hawaii. The federal courts are for situations like this when the parties are from different states. The plaintiff was from California, and the defendants were from Hawaii. However, without an agreement as to the law that should be applied to the case, Hawaiian law, I believe should be applied. Here the court used California law.

What do you think? Leave a comment.

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

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Ana Maria Andia, M.D., Full Service Travel, Celebrity Cruises, Inc., Arnott’s Lodge and Hike Adventures, Volcano, Lava, Lava Field, Hiking, Cruise, Cruise Ship, Excursion, Assumption of the Risk, Primary Assumption of the Risk,

 


Another trade associations confuses marketing and law: if you don’t understand the legal meaning of a word don’t use it like you do

ATTA article promotes goals for guides worldwide by calling them standards which in the US are the legally lowest possible acceptable level of acting.

The Adventure Travel Trade Association recently posted an article showing their research indicated that no standards existed for guides. Those standards were promoted by the association as needed to promote quality.

We view standards as critical to the future of the adventure travel industry’s success. As it is growing radically in participation numbers, it’s key that the operators expanding and joining the industry be of the best quality.

Their research is slightly flawed. Several states have laws regarding guiding, Colorado, West Virginia, Montana and California. Furthermore, the UIAA control and create guide standards in Europe, the International Climbing and Mountaineering Federation. In Europe, these guide standards are the law in some countries.

The person who promoted the idea for the ATTA gave reasons for the need for standards.

“Why do we need a more universal standard?” asked Moore, “Because the adventure travel sector is growing, because tour operators around the world are demanding it, and because destinations need it to legitimately promote adventure activities”

The idea is to create standards in a proposed group in five areas. Those areas include medical care and technical knowledge.

Based on the article clearly the ATTA is attempting to create qualifications for being a good guide. The unanswered question is, is this being done for safety reasons or for marketing reasons?

No matter the reason, the attempt will create legal problems. Legally, standards are the proof of the poorest quality not the best. A legal standard is the lowest acceptable level of care. If you fall below the legal standard, you have breached a duty of care you may owe to someone. Three examples of this are:

New Jersey Model Jury Instructions state:

5.10A            NEGLIGENCE AND ORDINARY CARE – GENERAL

To summarize, every person is required to exercise the foresight, prudence and caution which a reasonably prudent person would exercise under the same or similar circumstances.  Negligence then is a departure from that standard of care.

The Restatement of Torts is a compendium of the law.

Restatement Second of Torts, section 282, defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”

Colorado Jury Instructions, the law given to a jury when they go to the jury room to make their decisions about a case defines standard as:

CJI-Civ. 9:9 (CLE Ed. 2009)

Jury instructions define “standard of care” as “a duty to use that degree of care which a person of similar age, experience and intelligence would ordinarily use under the same or similar circumstances.”

If you fall below the standard of care and there is an injury you have breached a duty of care to a guest. You are on your way to helping the injured guest prove you are negligent.

Remember negligence is:

·         Duty

·         Breach of that Duty

·         Injury proximately caused by the Breach of Duty

·         Damages

In order to determine if there was a breach of a duty, the jury must determine the standard of care which the defendant fell below. If a trade association lists the requirements for the standard of care, puts them on the Internet or in a book, then the association has helped put its members in a courtroom. The plaintiff instead of struggling to establish the care was below the acceptable level need only to refer to the trade association as proof of the association member’s negligence.

Standards are Not Goals or Minimum Levels of Knowledge or Skill

It is obvious from the article that the association believes the standards will be goals to which its membership will strive for its guides to attain. You can probably post on your door or website that your guides meet the standards as established by your trade association. If that happens, then no matter how much the word safety is thrown out there for proof of the reasoning, the actual reasoning is a marketing program.

Either one will still sink a member.

In effect, you are handing the attorney for an injured guest the keys to open your bank account or insurance policy and take out money by creating or having an association create standards for your industry.

If you want actual examples of this look at the Climbing Wall Association or the Association of Experiential Education. The Climbing Wall Association changed their standards to best practices, and the AEE is about gone. Is the AEE having problems a result of their “standards?” I don’t know. I do know that both organizations were big in creating standards, and their members were sued a lot. See Payouts in Outdoor Recreation

If you don’t have the time or ability or your standards are beat to a pulp in a courtroom then you starting writing meaningless crap for standards. “You should have adequate guides for the number of guests in your group.” That statement has no value and thankfully brings nothing to the courtroom, so why kill a tree by creating it?

Besides can you create one set of standards that work worldwide let along across state lines?

A medical standard is the easiest to use as an example. A standard is created based on US or UK realities. Advanced professional first aid care (EMS) is available within roughly a four-hour window. Your guides are trained in first aid based on that four-hour window.

These standards are then applied to an area where there is no EMS. Transportation to a hospital may take days, and the hospital may not come close to the idea an American may visualize when they think of hospitals.

If a US guest is injured in that area of the world will the standard apply? Yes, you agreed to the standard or the association created the standard. If nothing else the jury will see the standard as what they should use to measure the care the injured guest received.

Are you going to argue to a jury that the standards not to apply because you took the US or EU client to a third-world country? Then the jury may look at you and determine either you should have done something to ensure the safety, which you did not, or you should not have gone there. Why, because you can’t meet the standard of care, your organization created.

Look at a simple cut. On a mountain in Nepal, you would immediately stop the bleeding and bandage the wound. In some jungles of South America or South-East Asia, you may want the wound to bleed a little to help clean the wound of any bacteria or other nasty’s that entered through the cut.

How do you write the standard for Kilimanjaro where the first two days are hiking through a jungle, and the next days are spent on the mountain?

The easiest example was the classic mistake of the AEE’s first set of standards. The standards stated you must pee 100 yards from any water. In the Southwest on river trips, this may get you fined by the federal agency managing the river you are rafting. There you pee in the river. What do you do if your standard violates state or federal law? What if your standard violates a religion?

Time and Upkeep

The biggest issue with standards is upkeep. It takes months, sometimes years to create standards, how do you keep them up to date? You have navigated your way through the difference requirements of different countries, trips and laws and then a law changes, a technique improves or better first aid care becomes available.

How do you go back and re-write the standard? When do you re-write the standard? How do you communicate the new standard? How do you convince your members to change to the new standard after they have spent time training their employees on the old standard and invested money in meeting it?

If you are using the old standard after a new standard comes out do you have a grace period? (No, this was a trick question.)

Just create great ideas. Educate members and guests on what to look for in a good guide. Provide education so guides can get better.

Don’t hang a noose around your member’s necks and call it marketing.

See ATTA Advances Conversation on Adventure Guide Qualification and Performance Standards

For more articles on this topic see:

If you mix up your language, you will be held to the wrong standard in court

Marketing is marketing and Risk Management is not marketing

Can a Standard Impeded Inventions?

If you mix up your language, you will be held to the wrong standard in court

If your organization says you do something and you are a member of the organization you better do it or be able to explain why you did not

Words: You cannot change a legal definition

For articles on Association Standards have been used to sue members see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release

Plaintiff uses standards of ACCT to cost defendant $4.7 million

So if you write standards, you can, then use them to make money when someone sues your competitors

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

What do you think? Leave a comment.

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

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

 

 

#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, ATTA, Standards, Adventure Travel Trade Association,

 

 

WordPress Tags: Another,ATTA,article,goals,Adventure,Travel,Trade,Association,industry,participation,operators,Several,laws,Colorado,West,Virginia,Montana,California,UIAA,Europe,International,Federation,person,sector,destinations,areas,knowledge,qualifications,Three,examples,Jersey,Model,Jury,Instructions,NEGLIGENCE,ORDINARY,CARE,GENERAL,prudence,departure,Restatement,Torts,compendium,Second,protection,room,decisions,degree,intelligence,injury,guest,Remember,Breach,Damages,defendant,requirements,Internet,plaintiff,member,Standards,Minimum,Levels,Skill,membership,door,Either,attorney,account,insurance,policy,money,Wall,Experiential,Education,Payouts,Outdoor,Recreation,guests,statement,tree,Besides,example,realities,hour,area,Transportation,hospital,American,hospitals,client,Look,mountain,Nepal,jungles,South,America,East,Asia,bacteria,Kilimanjaro,jungle,yards,Southwest,river,agency,religion,Time,Upkeep,difference,technique,employees,Just,Educate,Provide,noose,necks,Advances,Conversation,Guide,Qualification,Performance,topic,Risk,Management,Standard,Inventions,Words,definition,Expert,lawsuit,Camp,Report,ACCT,cost,million,competitors,Summer,Leave,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Facebook,Page,Blog,Mobile,Site,James,Moss,Authorrank,author,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,Tourism,AdventureTourism,RiskManagement,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,Camps,YouthCamps,SkiLaw,Outside,AttorneyatLaw,RecLaw,RecLawBlog,RecreationLawBlog,HumanPoweredRecreation,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Challenge,Course,Ropes,Line,Rock,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Samaritan,courtroom,four

 


Most references in case law to assumption of the risk are to this California decision. The basis for understanding Assumption of the Risk is this decision based on an injured finger during a pickup football game.

The definition of primary and secondary assumption of the risk was clearly set forth in this decision. This decision also related primary assumption of the risk with the inherent risk of an activity. The decision also eliminated the equally confusing reasonable implied assumption of risk, unreasonable implied assumption of risk theories.

Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870

Date of the Decision: 1992

Plaintiff: Kendra Knight

Defendant: Michael Jewett

Plaintiff Claims: negligence and assault and battery

Defendant Defenses: assumption of the risk

Holding: for the defendant

Most references to assumption of the risk when needed to clarify the definition in a decision come back to this seminal case: Knight v. Jewett.

The injury in this case occurred during a football game during half time of a super bowl game. The plaintiff and defendant were guests invited to watch the game. Each team had 4-5 players of both sexes. It was purely a pick-up football game. The plaintiff and defendant were on opposite teams.

The court never determined which set of facts were controlling in the case. Generally, the plaintiff and defendant ran into each other during a play. The plaintiff maintained she told the defendant not to play so hard. On the next play, the defendant stepped on the plaintiff’s hand while she was on the ground, injuring her finger.

The injury resulted in three operations and eventual amputation of the finger.

The plaintiff filed suit, which the trial court dismissed based upon the defendant’s motion for summary judgment where he argued assumption of the risk by the plaintiff prevented her recover. The court of appeals affirmed the trial court decision, and the case was appealed to the California Supreme Court which led to this discussion.

Summary of the case

The California Supreme Court wrote extensively about the history and nature of assumption of the risk. A little of that decision will be reviewed here.

The court ruled the basics of negligence claims. “As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if they’re careless conduct injures another person.” It then looked at this in comparison of sports and recreation.

In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. 

The court then examined the issue of inherent risk of a sport or activity. An inherent risk is one that without those risks, the sport would not exist. Another way of looking at it is you cannot participate in the sport without possibly experiencing the inherent risks of the sport.

Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.

As sports evolved, the actions of other parties in an activity might exceed or be considered careless, but still part of the sport. “In some situations, however, the careless conduct of others is treated as an “inherent risk” of a sport, thus barring recovery by the plaintiff.”

This then leads to the variations in how the courts interpreted the defense.

“The divergent results of the foregoing cases lead naturally to the question how courts are to determine when careless conduct of another properly should be considered an “inherent risk” of the sport that (as a matter of law) is assumed by the injured participant.

The issue of the careless coparticipant in a sport or recreational activity has generally been resolved in the US as a risk of the sport.

The overwhelming majority of the cases, both within and outside California, that have addressed the issue of coparticipant liability in such a sport, have concluded that it is improper to hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport–for example, example, for an injury resulting from a carelessly thrown ball or bat during a baseball game–and that liability properly may be imposed on a participant only when he or she intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport.

The court looked at the history of the defense and found that it has been used in several different ways and was a very confusing defense.

Indeed, almost a half-century ago, Justice Frankfurter described the term “assumption of risk” as a classic example of a felicitous phrase, “undiscriminatingly used to express different and sometimes contradictory ideas,” and whose uncritical use “bedevils the law.”

The defense had been applied in California to cases where spectators were injured at sporting events where it was determined that no duty was owed to the spectator. In other cases, it was used in sport and other activities where:

… it was clear that the defendant had breached a legal duty of care to the plaintiff, and the inquiry focused on whether the plaintiff knowingly and voluntarily had chosen to encounter the specific risk of harm posed by the defendant’s breach of duty.

The court then reviewed comparative fault or the doctrine of contributory negligence. Until the adoption of the doctrine, it did not matter what assumption of risk theory was used, both prevented recovery. However, after the adoption of the doctrine it became important to define which theory applied. One was merged with contributory negligence and the other either by exemption in a statute or by court decision was allowed to survive.

Contributory Negligence was the result of a change in how liability and consequently, damages were applied by a jury. Instead of determining who won or lost, completely, the jury was tasked with determining what percentage of fault applied to the parties in a case. If the plaintiff was less at fault than the defendant, the percentage of fault is different in each state, and then the defendant recovered that percentage of the damages.

However, that division of the fault left many in the sports and recreation field at a loss when the plaintiff did assume the risk of injuries which the court felt should bar a claim.

The court then started to define the new approach of assumption of the risk.

First, in “primary assumption of risk” cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable.

Second, in “secondary assumption of risk” cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.

The basic distinction results in a totally different result. The first prevents the plaintiff from recovering, and the second may affect the plaintiff’s recovery. By that I mean one is a complete bar to the plaintiff’s recovery and the second, because of comparative negligence may reduce or limit the plaintiff’s recovery.

This third classification is different. However, if you look at the injuries of different sports it makes sense; compare the risks of jump rope versus the risk of boxing.

Third and finally, the question, whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.

The court reached the following conclusions with respect to how the two different applications of the theory would be applied to the facts and the result.

In cases involving “primary assumption of risk”–where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.

Secondary assumption of risk was defined as:

In cases involving “secondary assumption of risk”–where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty–the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.

Coparticipants in sports were then defined to be protected from their careless acts because the injured participant assumed the risk.

Accordingly, we conclude that a participant in an active sport breaches a legal duty of care to other participants–i.e., engages in conduct that properly may subject him or her to financial liability–only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.

As such the defendant in this case was found not to be liable to the plaintiff because the defendant’s carelessness was a risk of the activity, and the plaintiff assumed the risk under the primary assumption of risk doctrine.

So Now What?

First, this court wrote a decision that is still referenced today and is used by the majority of states to define assumption of the risk; primary and secondary for a state.

The real issue, and the one that courts face every day, is to determine the inherent risks of an activity and what defines careless acts on the part of coparticipant. Leaving this decision to a judge or a jury that does not understand the activity could lead to confusion and losing decisions.

In that vein, when a statute is written such as equine or ski safety acts, then the statute defines the inherent risks of the activity. A long and comprehensive list such as that in the Colorado Ski Safety Act broadens the risks inherent in skiing.

In that vein, make sure you release does not limit the risks that are covered by your release. If your release just prevents suits for the inherent risks of the activity, those risks that in many states, the plaintiff must accept and assume any way you may be limiting the scope of your release.

Always educate your guests on all of the risks of the activity or as many as you possibly can. You want your guests to be informed of the risks, the more a guest knows and understands the better the experience. At the same time, the more the guest knows, the more the issue becomes primary assumption of the risk, a complete bar rather than secondary assumption of the risk.

What do you think? Leave a comment.

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

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,Kendra Knight, Michael Jewett, Assumption of the Risk, Acknowledgement of Risk, Primary Assumption of the Risk, Secondary Assumption of the Risk, Inherent Risk, reasonable implied assumption of risk, unreasonable implied assumption of risk, Knight, Jewett, Knight v. Jewett,

WordPress Tags: Most,references,assumption,California,decision,basis,Risk,football,definition,theories,Jewett,Rptr,LEXIS,Service,Journal,Date,Plaintiff,Kendra,Defendant,Michael,Claims,negligence,Defenses,injury,guests,team,players,sexes,teams,amputation,judgment,Supreme,Court,discussion,Summary,history,basics,person,comparison,recreation,Thus,moguls,configurations,resort,Another,Although,defendants,participant,situations,recovery,variations,example,ball,player,century,Justice,Frankfurter,spectators,events,spectator,doctrine,adoption,theory,exemption,statute,Contributory,jury,Instead,percentage,injuries,Second,instances,distinction,classification,Third,relationship,conclusions,virtue,Secondary,trier,fact,Coparticipants,participants,decisions,vein,Colorado,scope,guest,Leave,FaceBook,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,AdventureTourism,AdventureTravelLaw,AdventureTravelLawyer,AttorneyatLaw,BicyclingLaw,Camps,ChallengeCourse,ChallengeCourseLaw,ChallengeCourseLawyer,CyclingLaw,FitnessLaw,FitnessLawyer,HumanPoweredRecreation,JamesHMoss,JimMoss,OutdoorLaw,OutdoorRecreationLaw,OutsideLaw,OutsideLawyer,RecLaw,RecLawBlog,LawBlog,RecLawyer,RecreationalLawyer,RecreationLawBlog,RecreationLawcom,Lawcom,RiskManagement,RockClimbingLawyer,RopesCourse,RopesCourseLawyer,SkiAreas,SkiLaw,SummerCamp,Tourism,TravelLaw,YouthCamps,ZipLineLawyer,Acknowledgement,Primary,Inherent,coparticipant,whether


Follow

Get every new post delivered to your Inbox.

Join 3,430 other followers