Forum non conveniens is a legal term meaning the place where the litigation is occurring is not the right place for the lawsuit to occur.

In this case a mountain bike manufacturer sued in California by a Canadian plaintiff for an accident in Canada used the rule to move the case to Canada.

It did not hurt the manufacturer that the plaintiff was playing games with the court and the plaintiff’s attorneys stretched the law in directions the appellate court did not find appropriate.

Fox Factory, Inc v. The Superior Court of Santa Clara County, 11 Cal.App.5th 197, 217 Cal.Rptr.3d 366

State: California, California Court of Appeals, Sixth District

Plaintiff At the Appeal: Fox Factory, Inc., doing business as Fox Racing Shox

Defendant at the Appeal: The Superior Court of Santa Clara County

Plaintiff in the base case: Peter Isherwood

Defendant in the base case: Fox Factory, Inc., doing business as Fox Racing Shox

Plaintiff Claims: negligence, strict products liability, breach of the implied warranty of merchantability, and breach of the implied warranty for a particular purpose

Defendant Defenses: forum non conveniens (the lawsuit is in the wrong place)

Holding: Sent back to the lower court for further evaluation (defendant Fox won)

Year: 2017

Summary

There are rules about where lawsuits can be brought and there are equitable rules on where lawsuits can be brought. The plaintiff wants to sue in the place where he or she has the greatest chance of winning and getting the most money. The defendant wants to be sued where they have the greatest chance of winning or paying the least amount of money. The court wants the lawsuit to be in a place that has the most fairness to both parties to the litigation.

Here the case was moved from California to Canada for equitable reasons, the best place for this lawsuit was Canada.

Facts

Plaintiff Isherwood is a Canadian citizen and resident of British Columbia. Fox, a California corporation, manufactures bicycle parts, including front fork racing shocks. On April 24, 2011, plaintiff was mountain biking downhill in British Columbia on a full-suspension mountain bike purchased from Oak Bay Bikes, a retail bicycle shop in British Columbia. The mountain bike was assembled with specialized component parts selected by plaintiff from various manufacturers, including a frame manufactured by Specialized Bicycle Components, Inc. (Specialized), a California corporation; an adapter made by Full Speed Ahead, Inc., a Washington corporation; a headset made by King Cycle Group, Inc. (King), an Oregon corporation; and Fox Vanilla 36 RC forks which ” a lot of professionals rode.” According to plaintiff’s first amended complaint, the steerer tube used in the Fox racing shocks broke as plaintiff landed a jump. Plaintiff was thrown forward, resulting in a spinal cord injury.

Plaintiff filed this action on April 22, 2013, alleging negligence, strict products liability, breach of the implied warranty of merchantability, and breach of the implied warranty for a particular purpose. Tamara Jayne Bickerton, who later became plaintiff’s wife,[2] also alleged loss of consortium, but she subsequently obtained dismissal of her claim with prejudice. In addition to Fox, plaintiff named Specialized, King, and Full Speed Ahead.

The following day, April 23, 2013, plaintiff filed another court action in Vancouver, British Columbia, naming as defendants SNC Cycles Ltd. (SNC Cycles) and three Doe corporations, as well as three individuals as John Doe defendants. In this pleading plaintiff alleged that the identities of the corporate and individual Doe defendants were unknown to him, even though the allegations were the same as those in the California action filed one day earlier. He also alleged that SNC Cycles was the owner and operator of Oak Bay Bicycles. As in the California action, plaintiff claimed that the negligence of these defendants was responsible for the April 24, 2011 accident that had caused his injuries.

The caption of the British Columbia pleading named ” Peter Dilwyn Iserwood” as plaintiff. According to Fox, the misspelling of plaintiff’s name, together with the intentional withholding of the defendants’ true names, precluded discovery of this lawsuit despite ” multiple searches” of the dockets of the Vancouver courts. In addition, plaintiff had testified in his October 2014 deposition that he had never been a plaintiff ” in a lawsuit other than this one.” He also answered ” no” to an interrogatory question about whether, in the past 10 years, he had ” filed an action or made a written claim or demand for compensation for [his] personal injuries.”

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

Forum non conveniens is an argument on where the litigation should be based. In this case, California or British Columbia, Canada. All other defendants that were California based or US based had been dismissed from the case so it was the Canadian plaintiff arguing that a US defendant should be sued in California.

Normally lawsuits are determined one of two ways. Where the accident happened or where the defendant resides. Usually, having the lawsuit in California because the defendant was based there would be enough. However, the way the plaintiff played the courts was a major issue in whether this litigation would be moved to Canada.

Forum non conveniens is an equitable relief available to the court. Equitable means it is the right thing to do. The court can bring the motion on its own or a party to the lawsuit can bring the argument saying that this lawsuit is not in the right place because.

California has a two-step process to determine if a case should be moved for equitable reasons.

Our Supreme Court in Stangvik set forth a two-step analysis for a court considering a forum non conveniens motion. ” A case-by-case examination of the parties, their dispute and the relationship of each to the state of California is the heart of the required analysis.” The court ” must first determine whether the alternate forum is a ‘suitable’ place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses.

The first step is very broad in its meaning. Suitable place for trial means will the trial be fair, is the court system similar to the US system, will both parties get a fair shot at presenting their case. There is also a look at how moving the case will affect the courts and people of California.

The private interests are those of the litigants in the trial. What will the cost be to the parties to move the trial, will any judgment that is received be able to be executed. Meaning If the trial is moved to Canada, can a Canadian judgment be enforced in the US. The major issue is where is the best place to find the evidence and witnesses to help a jury make a decision.

The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.” Also of potential concern is ” the interest in trying the case in a forum familiar with the applicable law, and the interest in avoiding unnecessary conflicts of laws.”

After reviewing the legal and equitable issues involved in making a decision to move the trial, the court looked at the plaintiff’s arguments to not move the case and the plaintiff’s arguments in general. Basically, the court slapped the plaintiff around for trying to stretch the law beyond reason and playing games with the court.

In this part of the opinion the court brought forth several statements about the plaintiff.

We will ignore plaintiff’s inappropriate, two-paragraph discussion of the court’s analysis in that case

The court then went on and told the plaintiff every reason why their legal arguments were not only incorrect, but just plain wrong.

The court had already reviewed the games the plaintiff played in filing two lawsuits in different locations and doing so in a way that made the second lawsuit difficult to find. Then the plaintiff lied under oath about the second lawsuit.

The court found the reasons for having the case in Canada were compelling.

Fox argued that British Columbia, where the Canadian case was ongoing, was a suitable forum because plaintiff was a British Columbia resident, the accident took place in British Columbia, and all relevant evidence, medical personnel, and percipient witnesses were located there. Fox believed it was at an unfair disadvantage because it had ” no way to compel the appearance at trial of any of the crucial Canadian witnesses,” whereas plaintiff would be able to obtain the cooperation of his most favorable witnesses.

The court did not order the case moved to Canada, but sent the case back to the trial court to review the motions of the defendant under the proper legal standard. That means the lower court had to review the issues again and move the case to Canada.

So Now What?

The first rule of winning a lawsuit is represent the honest person in the courtroom. The underlying tone of this entire decision was the court had caught the plaintiff lying to the defendants and playing games with the legal system. That never flies. Judges hate it and juries see through it.

Here the witnesses, evidence, physicians and other health care providers to the plaintiff could easily be brought into court by both sides and for a lot less money.

Also, the standards required to win a case like this in Canada are better for the defendant and the damages if the defendant loses will be much lower in Canada.

What do you think? Leave a comment.

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Alberta’s mountain guide service is being sued because two clients were drugged and robbed on Kilimanjaro. After drugging, client still summited the mountain.

 

Plaintiff claims they are suing because statements made by the

 English: January 15, 1938. Mt. Kilimanjaro: Th...outfitter angered them and because outfitter never called to apologize. Robbed client’s parent is a California attorney.

 So according to the news report three people, one the attorney, her daughter and a male friend booked a trip with Berg Adventures International to climb Mt. Kilimanjaro. The mother booked the trip with Berg because of its “its reputation for providing comfortable, full-service travel experiences.”

 The mother/plaintiff’s attorney was not present that night; she turned back because of altitude problems. After being drugged and robbed, the two ascended to the summit: “two did continue to the summit, but she claims that was the fastest way off the mountain

 I don’t know what is the fastest way off the summit, however, going up is rarely faster than going down, even if going down requires you to go down and around.

 Why did they sue?

 Lewis said she decided to sue Berg Adventures International after the company failed to contact her or apologize for what the travellers went through.

 She said she was also angered the company posted dispatches from the trip on its website, congratulating her daughter and her friend for their rapid descent of the mountain, without acknowledging that the reason was to seek medical treatment.

 I read, and you can read the posted dispatches here: March 6, 2014 – The Team Summits

Ascend past Rebmann Glacier Mt. Kilimanjaro

Ascend past Rebmann Glacier Mt. Kilimanjaro (Photo credit: Wikipedia)

Kilimanjaro. They do not say why the couple decided to summit and then descend so quickly, but they are not negative. At that point in time, I would guess that on one really knew what had happened anyway.

 Is this an overreaction, an attempt to get a refund or can you find something that Berg Adventures International did that was negligent?

 Reputation comes from third parties, so I’m not sure how that could indicate a negligent act. Besides even if it were advertising the law allows a lot of leeway for puffing or statements made to close a sale.

 There is also an issue of jurisdiction. Hopefully, Berg Adventures International used a release, and it had a jurisdiction and venue clause requiring the suit to be in Alberta Canada.

 I’m not sure I would have advised my client to apologize, but some contact would have helped. To understand why people may sue based on emotional issues see:

 It’s Not Money                                                                                               http://rec-law.us/zxmmqy

 Her life is permanently changed, but she really wants an apology    http://rec-law.us/yHjVn0

 Make sure you understand what the other side is saying                    http://rec-law.us/1b5m1mt

 Money is important in some lawsuits, but the emotions that starts a lawsuit.           http://rec-law.us/xbSs4M

 Serious Disconnect: Why people sue.                                        http://rec-law.us/wm2cBn

 Why do people sue? Not for the money.                                     http://rec-law.us/A0866T

 $700,000 in damages after summiting Kilimanjaro seems a little difficult to prove also. The agreement was to try to assist you in summiting…..seems like they did?

 See Alberta tour operator faces lawsuit over African misadventure

 Dispatches that created the anger can be located here: March 6, 2014 – The Team Summits Kilimanjaro..

 What do you think? Leave a comment.

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Canadian judge holds “ski buddy” not liable for death of skier. Buddies assigned by guide in Helicopter on way out does not create a contract

The court found there was no contract between ski buddies, and the defendant skier met his duties to the deceased skier. A tree well is a risk of skiing, and no other skier could have done more than alert the guides when a skier was missing.

The deceased died in a tree well on a helicopter ski trip in Canada. His widow sued his ski buddy for his death claiming he was a“… contractually obligated to stay close to her husband, keep him in sight, and assist or alert guides and other skiers if he observed his buddy in need of assistance.”

The entire concept of a ski buddy is fraught with spatial issues.  Rarely do people ski side by side. If you are skiing side by side, both skiers can only occasionally glance downhill. Here, the facts and allegations of the plaintiff argue that the defendant should have skied behind the deceased to keep an eye on him. Would that have not placed the deceased in the same liability position with the defendant?

How do you ski through deep powder and trees and keep an eye on someone’s 100% of the time. Even if you do, how do two people do this for each other? It is physically impossible.

The next issue is normally one guide skis in front of the group and the second guide skis at the rear. No matter what, the time it would take to notify any guide either by waiting and hoping the second guide finds you or by skiing to the bottom guide, which did occur, is lengthy. The heli-ski operator told skiers to stop and yell if they got into trouble?

The most telling part of this article is the deceased was a successful personal injury attorney.

You can find the judge’s ruling dismissing the case here. The facts of the case as set out in the judge’s ruling led to the idea that there was no requirement to ski with a buddy at the time of the fatality. The buddy requirement ended when the group exited from the forest into a logged area. Everyone descended together at that point, and generally, no one tracks anyone else.

This is a Canadian legal decision and the decision, although well written was confusing because Canadian law is different from US law. My analysis may be incorrect in all aspects of the court’s decision. As an example, here is the court’s definition of standard of care in negligence.

Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances.

Rarely, in US law, is the phrase unreasonable risk of harm used to define negligence.

The court’s statement of the facts also shows a surprisingly quick search and location of the deceased. It took only 4 minutes, based on the radio log between when the search started and when the deceased was found.

The plaintiff argued that the defendant ski buddy owed a duty of care to the deceased by voluntarily taking on the responsibility to look out for the deceased. In order for a claim to be made under Canadian law, the person agreeing to accept the volunteer liability must have some control over the risks. Here the defendant had no control over the risks. Nor was there any evidence that the acceptance of the voluntary role of ski buddy was relied upon by the deceased.

The relationship created between ski buddies did not create a relationship where the volunteer assumed the responsibility over the deceased. Instead, the relationship between the parties was defined by the guides who created the relationship. That meant they ski buddies were to keep each other in visual and vocal contact in the forest and as outlined in a video everyone watched before skiing. The issue of the location of the responsibility, the forest was important. The parties had exited the forest into a logged area where it was generally understood the ski buddy relationship ended.

The ski buddies never spoke to each other so there was no understanding of their roles so no greater requirements were created between the ski buddies. The term ski buddy, as defined by the judge did not create a duty; in fact, the court found a ski buddy is to respect the autonomy of the other ski buddy. Meaning a ski buddy relationship does not mean you give up your skiing to watch the other, you still should enjoy your runs.

Besides the judge’s decision that the timeframe between when the deceased was discovered to not be with the group and when the guides were notified of the fact to not be negligent, the sole issue was contract.

The judge’s conclusions were as followed.

If there was a duty of care between the plaintiff and defendant as a ski buddy, then the defendant met it with his actions.

There was no contract between the parties. There was no contract or contract intention. Even if there was a contract, it ended once the parties exited the forest into the logged area where the accident occurred.

So?

The decision is not as definitive as one would have liked. The decision can also be appealed. However, it is still a great decision for skiers.

The saddest part is the heli-ski guide service created liability, which resulted in this lawsuit against one of its clients. By writing its release so that it not only protected the heli-ski operations but everyone else this would have been avoided.

Here are the articles I based this article on: ‘Ski buddy’ not liable for heli-ski death, court rules and Judge rules “ski buddy” not liable for death. The article describing the suit before the judge’s ruling is ‘Ski buddy’ sued in heli-ski death

What do you think? Leave a comment.

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2012/2013 edition of the Illuminare: A Student Journal in Recreation, Parks, and Leisure Studies is available

We are excited to announce that the 2012/2013 edition of the Illuminare: A Student Journal in Recreation, Parks, and Leisure Studies is available from the following link: http://www.scholarworks.iu.edu/journals/index.php/illuminare/index.

Almenas2

We would like to thank all of those involved in the success of this year’s issue. Illuminare reviewers represented 18 universities throughout the U.S., Canada, Ireland, Belgium, Cyprus, Australia, and the Netherlands, including the following: Arizona State University; Auckland University of Technology; Clemson University; Edwin Cowan University; Girne American University; Limerick Institute of Technology Ireland; North Carolina State University; Oklahoma State University; Old Dominion University; Temple University; Pennsylvania State University; Universite Libre de Bruxelles; University of Florida; University of Georgia; University of Waterloo; and University of Wisconsin – La Crosse.

If you would like a full PDF version of Vol. 11, please email Lauren Duffy at lnduffy.

Thanks for your continued support!

Illuminare Editorial Board

Lauren Duffy

Jill Sturts

Ye Zhang


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Law requires helmets, injuries down fatalities up?

However the article eventually does explain some great ideas about helmets.

An article Injuries have dropped since mandatory rule came in, but fatalities remain the same was written to look at the effects of a mandatory helmet law in British Columbia, Canada. The law was enacted in 1996. Riding a bike without a helmet can get you a $40 ticket.

One part of the article says that fatalities are down. The article also states:

Statistics compiled by the Bicycle Helmet Research Foundation show that injuries from cyclists involved in collisions did decrease from 35% of all police attended collisions in 1995 to 31% of those collisions by 1999.

However, a Canadian ministry says that bicycle fatalities have not decreased. “However in 2010, the Superintendent of Motor Vehicles admitted that fatalities had not decreased since the introduction of the helmet law.”

The article then states:

Bicycle helmet proponents are the subject of a great number of myths and exaggerations, some of which feature prominently in the promotion of helmets, according to the foundation.

These proponents claim that helmets prevent 85% of head injuries and 88% of brain injuries. But the foundation claims that where helmet use has become significant, there has been no detectable reduction in head injuries relative to cycle use.

Another myth, according to the foundation, is that bicycle helmets prevent 90% of fatalities.

“This prediction comes from a single source and is not reflected by real-world experience. Fatality trends in countries where helmet use has become significant give no reason to believe that helmets have saved even a single life,” the foundation states at http://www.cyclehelmets.org.

The article is full of confusing facts. However at least the article tackles the issues concerning helmets and dispels a few myths.

I suspect that injuries are down; however attributing that to helmets is difficult. Why injuries are up, could just be a factor of more people riding bikes, bikes that enable riders to go a lot faster or more cars on the road, as well as any number of different reasons.

Bicycle helmets may prevent a minor head injury, however most people do not believe that helmet may save your life.

What do you think? Leave a comment.

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New study suggests that North American Avalanche survival time is half what was previously thought

Ten minute survival in western wet snow is shown by the study.

Dr. Pascal Haegeli, a researcher from Vancouver BC has recently published a study in the Canadian Medical Association Journal titled “Comparison of avalanche survival patterns in Canada and Switzerland.” There are several notable things to take away from this study.

1.     The survival time for a victim in an avalanche has been 18 minutes based on a study done in Switzerland in 1998. (Falk M, Brugger H, Adler-Kastner L. Avalanche survival chances. Nature 1994;368:21.) This 1998 study is not being dismissed. Differences between the types of snow, terrain, etc. are the cause for the discrepancies between the two studies.

This study says that avalanche survival time is probably only Ten (10) minutes.

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The Swiss study developed the avalanche survival curve based on the amount of time a person was buried.

The probability of survival remains above 91% during the first 18 minutes of burial (“survival phase”). This phase is followed by a precipitous drop to 34% between 19 and 35 minutes be – cause of asphyxiation of most people (“asphyxia phase”). Between 35 and 90 minutes, the survival curve levels out (“latent phase”) because of the survival of people with patent airways. Thereafter, survival drops again as those buried eventually succumb to lethal hypothermia complicated by progressive hypoxia and hypercapnia.

2.     There was no statistical difference between the overall survival rate of the Canadian study (Haegeli) and the Swiss study (Brugger).

…the Canadian survival curve showed lower chances of survival at all burial durations compared with the Swiss survival model, with a quicker drop in survival in the first 35 minutes and poorer survival associated with prolonged burials.

3.     Most Swiss avalanches occur above tree line. Most North American avalanches occur below the tree line. Trauma fatalities are significantly greater in North America.

In the Canadian sample, trauma accounted for more than half of the deaths among people extricated in the first 10 minutes (Figure 1), which highlights the strong influence of trauma on the early phases of the survival curve. The probability of survival at the end of the first 10 minutes was 77% in the overall survival curve for Canada, as compared with 86% in the asphyxia-only survival curve.

4.     There were statistically different survival chances between different climates in North America. Western (maritime) snow climates had shorter overall survival times. Western snow climates are characterized by wetter, heavier snow.

The survival curves for the transitional and maritime snow climates were characterized by a considerably earlier drop in survival compared with the curve for the continental snow climate.

The study also offered speculation that heavier denser snow prevented chest movement preventing the victim from breathing if buried.

Snow density is defined as the overall mass of snow per unit volume (kilograms per meter cubed). Typical densities of seasonal snow vary from 30 kg/m in dry, newly fallen snow to 600 kg/m in wet spring snow.

These results highlight the importance of prompt extrication by companions, especially in areas with a more maritime snow climate. Although the “survival phase” has commonly been described to be about 18 minutes long, our analysis shows that the first 10 minutes might be a more appropriate general guideline for Canada and other areas with a maritime snow climate.

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5. The study recommended that Airbags and Transceivers be used as they offered the best options to speed up rescue.

The use of avalanche airbags to prevent burial and avalanche transceivers to speed up the locations of buried avalanche victims are recommended. Both of these safety devices have been shown to reduce mortality significantly.

The study had numerous interesting facts about avalanche burials.

The two longest burials among survivors in the Canadian sample (120 and 300 minutes) both occurred in urban settings, whereas the maximum burial time among survivors in a remote setting was 55 minutes.

So?

When teaching at Colorado Mountain College in the Ski Area Operations program I tell my students the one thing we know about avalanches to an absolute certainty: Avalanches are made of snow.

For other articles on Avalanches see:

Mountain Magazine should apologize to the families who will soon lose loved ones because of its latest magazine.

Research shows beacons have issues with multivictim searches

Colorado Avalanche Information Center

It’s time to sign up to get the CAIC Avalanche Forecasts

Well written article about the risks of Avalanches and survival with the latest gear.

See this article by Earn Your Turns: Canadian Study reduces Avalanche Survival Time, http://www.earnyourturns.com/9079/avalanche-survival-time-reduced/

What do you think? Leave a comment.

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Headlines about Canada ski injuries is very misleading.

Actual report does not take into account participants and uses skiing just to get press, not because it is the worst sport.

This study, when you read the headline implies one idea: Skiing is dangerous. When you read the article, you get a completely reverse opinion of what the study reports. More importantly, the study is being used for an agenda rather than a way to either reduce or study injuries.

The study looked at winter sports injuries in Canada. It is a simple study showing how many hospital visits occurred each winter based on various activities. From the study, the headlines looked at these two groups of numbers.

        Slopes-Related Injuries                                 2,300

        Hockey Players                                           1,114

The headline then stated that slope injuries were twice as dangerous as hockey. Right off the bat, though you see an issue. This is just a total number of hospital visits. It means nothing, unless you know how many people participated in the sport or how many hour’s participants spent on the sport. Unless, and it very well may be possible, the number of people skiing and boarding in Canada equaled the number of people playing hockey, then the numbers really don’t point to anything. The numbers definitely do not point out that skiing and boarding is twice as dangerous as hockey.

After some more reading, more numbers pop to the surface.

        Snowmobiling                                             1,126

        Ice Skating                                                 889

        Tobogganing                                               171

Snowmobiling creates more hospital stays than hockey. However, hockey is the measurement that the criteria are compared to. Is this because everyone in Canada understands the real risks of hockey? Or is hockey perceived as a dangerous sport.

If the cause for the headline is the latter, then the headline was just made to get your attention. Snowmobiling is half as dangerous as skiing and riding so why was snowmobiling not used as the comparison.

Then the bomb shell drops.  All of these sports combined do not make up 10% of the other winter sports injuries.

However, the hospitalization numbers pale in comparison to people who were simply injured by winter activities.

In Ontario alone, the report says, there were more than 45,000 emergency department visits — 285 a day — due to winter activities in 2010-2011.

And that’s just the tip of the iceberg, Fortin says, given that many of the hurt would have visited family doctors, walk-in clinics or just suffered through their injuries.

If you dig through the article, you gather these stats.

Slopes-Related Injuries (Skiing/Boarding)

2,300

Snowmobiling

1,126

Hockey Players

1,114

Ice Skating

889

Tobogganing

171

Total

5,600

5600 injuries in five sports nationwide are nothing compared to 45000 in just one city alone. Twenty days in Ontario and those injuries exceed the ones the false headline was blaring about.

There were some relevant points that could be pulled from the report.

1.   Injuries remained relatively constant over the five years of the report for all five sports.

a.   However, this number still has more value if compared to the overall number of participants. If participating went up or down that changes the fact the injuries were constant.

2.   The age group with the largest number of injuries was young males between the ages of 10 and 19.

3.   33% of the head injuries in all five sports came from skiing and snowboarding.

a.   There were 759 head injuries over the past five years on the slopes showing a decrease in head injuries…. Maybe.

So? Think

You cannot take headlines at face value. EVEN MINE! Headlines get you to read the article, and that is their sole purposes. You have to understand what the article is trying to say, where the information that makes up the article comes from and maybe, what is the writer trying to accomplish.

See Skiing injuries lead to twice as many hospital stays as hockey, new data shows

What do you think? Leave a comment.

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Canadian government suing Blackcomb Mountain for the health care costs of an injured snowboarder

Never forget the subrogation clause in any insurance policy. It will allow the insurance company to sue whoever caused your injury to recoup their payouts.

The injured snowboarder caught an edge and fell over Crystal Road run, down a steep embankment and over a climb. She suffered a:

….dislocation of the vertebrae with associated spinal-cord injury and several fractures of the vertebrae. She also suffered a mild traumatic brain injury, dislocated her ribs and had a left femur and femoral fracture.

The lawsuit claims the accident was caused by the “negligence and breach of duty of the defendant,” The complaint further sates the defendant created a “hazardous condition and failed to erect adequate warning signs. The suit also alleges the company failed to erect a barrier.”

The defendant is Blackcomb Skiing Enterprises Limited Partnership, which is the owners and operators of Blackcomb Mountain and Whistler Mountain. The defendants have not filed an answer at the time of the article.

Subrogation is the name of a clause in an insurance policy that allows the insurance company to collect any money that may be owed you for your injuries. If you injured due to the negligence of someone else, your health insurance company can sue that third party to recover the money they paid out on your behalf for your medical bills.

This must be the first time it has occurred in Canada. When I worked as a risk manager at a ski resort I received a subrogation claim letter every week. I received one every time a member or the military or a federal employee was injured.

The ski area does not have to pay out if they ski area was not negligent or if the ski area as a defense to the claim. So any defense the ski area may have against a suit by the injured skier or boarder is effective against the subrogation claims. In my case, the Colorado Ski Safety Act, Assumption of the Risk and in many cases a release stopped the subrogation claim.

See B.C. sues ski resort for care costs of injured boarder

What do you think? Leave a comment.

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© 2010 James H. Moss

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I got money; therefore I should do what I want on public lands.

A Boise man has appealed the denial of his application to land his helicopter in the Fairfield Ranger District, USFS Idaho for 30 days of heli-skiing each year.

Another one of those “aw shucks” moments.

See Boise man appeals heli-skiing denial.

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Another Litigation versus Criminal example

I’ve all ready commented about this issue length in Litigation v. Jail Time; however this article caught my eye. At the very bottom it

English: Jet skis at Downhill. A bit of action...

Image via Wikipedia

mentions another boating accident. The owner of the jet skis who rented the jet skis was fined £450 for renting the jet skis.

Again another example of how in the US we sue, in Europe they charge criminally. Although in this case a £450 fine is probably much easier to deal with than protracted litigation, it still is a criminal charge that will be on someone’s record for life.

However the basic issue is who is going to take responsibility for dealing with problems. In Europe the government deals with the liability between two people. In the US, most of the time the victim is in charge of his life and any money someone may owe him.

See: Brit held after death of Cypriot diver

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Vancouver BC, Canada passes helmet law for cyclists and skaters

The Columbian is reporting that the Vancouver City Council will soon require juvenile and adult cyclists and skaters to wear a helmet. All bicycles, skateboards, roller skates, roller blades, scooters and unicycles on public streets, sidewalks and trails will be required to wear a helmet.

The article Vancouver city council enacts helmet law states that Vancouver has a cyclist fatality rate is five times the Canadian national average. The law also provided for $5000 dollars for education and helmets for low income children. The law will be enforced by the Vancouver Police Department.

Sound like the money could be also spent on a driver education program. Five times the Canadian national fatality rate!

 

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Another lawsuit asking for change, but only going to receive money.

The Free Republic is reporting in a story Lawsuit in sledding Tragedy that a family from City of Gatineau, Canada is suing the City of Gatineau over the death of their son in a sledding accident. The family is suing because the sledding hill was unsafe.

The Free Republic is reporting that the family is suing in the hopes that the hill will be closed or changed so that no one else has to live through what have. The father stated “”We’re not doing it for the money, we’re doing it for our son,….”

This is another situation such as discussed in the article It’s Not Money. The plaintiff’s are suing want to make a change, however the only thing the courts can provide is cash.

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