Hazen v. Woodloch Pines Resort, Civil Action 3:21-cv-00174 (M.D. Pa. Feb 16, 2024)

Posted: April 22, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Pennsylvania | Tags: Balance Beam, challenge course, Corporate Team Building, Low Challenge Course, Low Course, Ropes course, Team Building, Woodloch Pines Resort | Leave a comment

To Read an Analysis of this decision see: After this decision, I’m not sure you could prove assumption of the risk without a written document and a video or more.

ERIN HAZEN, Plaintiff,
v.
WOODLOCH PINES RESORT d/b/a WOODLOCH PINES, et al., Defendants.

Civil Action No. 3:21-cv-00174

United States District Court, M.D. Pennsylvania

February 16, 2024

MEMORANDUM

(SAPORITO, M. J.)

Woodloch Pines Resort (“Woodloch”) is an all-inclusive family resort located in Pike County, Pennsylvania. Since the 1990s, it has offered corporate team building activities on an outdoor low ropes challenge course. One of the elements of this challenge course was a “balance beam” or “teeter-totter” device made up of a fulcrum with a plank on top of it. The plank or “beam” is 10-feet long and 10%-inches wide. The fulcrum is 12%-inches high and, when at its highest point, the end of the plank or beam is 3%4eet above the surface below. The area below and around the balance beam device was covered with wooden mulch, presumably to, cushion the fall of any participants.

In June 2019, the plaintiff, Erin Hazen, was an assistant principal at KIPP TEAM Academy, a public charter school in Newark, New Jersey. She had been working there for about a year. On Saturday, June 22, 2019, Hazen and ten of her colleagues from the “leadership team” at KIPP TEAM Academy were on the third day of a leadership retreat at Woodloch. That morning, they participated in the outdoor challenge course activities as a team. After completing several other activities, they attempted the “balance beam” activity, where Hazen was injured.

The team was instructed by Eric Ranner, Woodloch’s corporate activities director, that the goal of the balance beam activity was to get the entire 11-person leadership team onto the plank without breaking either of two eggs that had been placed under each end of the plank.^[1] The parties dispute whether Ranner gave any additional verbal instructions or warnings to the participants. Ranner was the only Woodloch employee present at the time.

After two unsuccessful attempts to complete the activity, the team was able to get ten members on the plank at once during its third attempt. When the eleventh team member mounted the plank, it became unbalanced and Hazen fell off, along with other participants.^[2] At least one other participant landed on top of Hazen.

As a result of her fall, Hazen suffered a gruesome ankle injury, including left ankle dislocation, a displaced left ankle trimalleolar fracture with transverse medial malleolar fracture, a transverse distal one-third fibula shaft fracture, syndesmotic rupture, and a minimally displaced proximal fracture in the metaphysis. Her medical treatment included three surgeries and ongoing physical therapy. Due to her injuries, resultant physical limitations, and her course of treatment, Hazen was forced to resign from her job at KIPP TEAM Academy^[3]

Hazen brought this federal diversity action asserting state-law negligence claims against each of the defendants. The defendants have answered the complaint, and, following the completion of discovery, they have moved for summary judgment. In support of their motion for summary judgment, the defendants argue that Hazen is barred from all recovery by the doctrine of primary assumption of the risk.

Because this is a diversity action, we must apply Pennsylvania’s substantive law and federal procedural law. See Gasperini v. Cir. for Humans., Inc., 518 U.S. 415, 427 (1996). “Under Pennsylvania law, assumption of the risk is established by showing that the injured party fully appreciated the nature of the risk it faced and voluntarily assumed it. In addition, the injured party must not have had a meaningful and reasonable alternative path to avoid the risk.” Kirschbaum v WRGSB Assocs., 243 F.3d 145, 156-57 (3d Cir. 2001) (citation omitted); see also . Mucowski v Clark, 590 A.2d 348, 350 (Pa. Super. Ct. 1991) (“Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness – to accept it. A plaintiff has voluntarily assumed the risk where he fully understands it and Voluntarily chooses to encounter it.”) (citation omitted and emphasis added). “Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known arid obvious risk arid therefore is considered to have assumed liability for his own injuries.” Barrett v. FredavidBuilders, Inc., 685 A.2d 129,130 (Pa. Super. Ct. 1996); see also Carrender v. Fitterer, 469 A.2d 120, 125 (Pa. 1983) (holding that, when an invitee assumes the risk of injury from a dangerous condition, the landowner no longer owes the invitee a duty of care).

As the Carrender court explained:

A danger is deemed “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” For a danger to be “known,” it must “not only be known to exist, but. . . also be recognized that it is dangerous and the probability arid gravity of the threatened harm must be appreciated.”

Carrender, 469 A.2d at 123-24 (quoting Restatement (Second) of Torts § 343Acmt. b (Am. L. Inst. 1965)) (citations omitted, ellipsis in original).

“Whether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude and its unreasonable character, is a question of fact, usually to be determined by the jury under proper instructions from the court. The court may itself determine the issue only where reasonable men could not differ as to the conclusion.”. Staymates E ITT Holub Indus., 527 A.2d 140, 146 (Pa. Super. Ct. 1987) (quoting Restatement (Second) of Torts §496D cmt.e); see also Kaplan v. Exxon Corp., 126 F.3d 221, 225 (3d Cir. 1997); Mucowski,
_:590.A.2d at 350 (quoting Staymatesf Carrender, 469 A.2d at 124. As this court has previously explained:

Given that its application is a “drastic measure” barring a plaintiffs recovery, to grant summary judgment on assumption of the risk as a matter of law the court must-conclusively and beyond question- find that the plaintiff was subjectively aware of a specific risk, voluntarily accepted it and acted in spite of that risk, and suffered harm contemplated by that specific risk. The defendant’s burden to establish assumption of the risk is a tall order, because . assumption of the risk requires knowledge of a specific risk, “It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. Rather, the plaintiff must be aware of ‘the particular danger’ from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.”

Smerdon v. GEICO Cas. Co., 342 F.Supp.3d 582, 587 (M.D. Pa. 2018) (quoting Bullman v Giuntoli, 761 A.2d 566, 569 (Pa. Super. Ct. 2000), _:and Barillari v. Ski Sha wnee, Inc., 986 F.Supp.2d 555, 562-63 (M.D. Pa. 2013)) (footnotes omitted).

Here, it is undisputed that Hazen was generally aware of the risk that she might fall from the balance beam during this activity. But “awareness of a general risk does not amount to awareness of a specific risk.” Smerdon, 342 F.Supp.3d at 588 (citing Barillari, 986 F.Supp.2d at 562-63). Awareness of the specific risk presented by the balance beam activity here includes not just an appreciation of the general possibility that she might fall, but also an appreciation of the likelihood of a fall and the potential for serious injury such as the complex multiple ankle fractures and other injuries that our plaintiff in fact suffered.^[4]
See Kirschbaum, 243 F.3d at 157 (finding evidence sufficient to permit a reasonable jury to conclude that office building tenant, who was aware of a broken handrail and that it would not aid him if he were to trip while on the stairs, lacked the necessary appreciation of the likelihood that he could fall and need to rely on the handrail); Rice v. Skytop Lodge Corp., No. 00-2243, 2002 WL 775484, at *3 (M.D. Pa. Apr. 23, 2002) (finding evidence Sufficient to permit a reasonable jury to conclude that a sledder, who was aware of general risks of sledding and who had observed the placement of a plastic fence at the bottom of the sledding hill, did not understand the specific risk of serious injury that might be caused by colliding with the fence); Mucowski, 590 A.2d at 350 (finding evidence sufficient to permit a reasonable jury to conclude that a senior engineering student, who was familiar with a pool and the depth of the water therein, was not subjectively aware of the specific risk that he could Strike his head on the bottom of the pool when diving into 4 feet of water from a railing around the pool). Hazen’s failure to fully appreciate the specific risk of serious injury posed by the balance beam activity is further underscored by the fact that, between herself and all ten of her leadership team colleagues that day, none believed the balance beam activity was so unsafe that they should decline to participate. See Smerdon, 342 F.Supp.3d at 589. “Under Carrender, this issue goes to the jury unless reasonable minds could not disagree.” Kaplan, 126 F.3d at 225.

In addition, We note that, “[a]mong the circumstances to consider in evaluating the voluntariness of the plaintiff’s action is whether the plaintiff had a real ‘choice.'” Kaplan, 126 F.3d at 226 (quoting Howell E Clyde, 620 A.2d 1107 (Pa. 1993) (plurality opinion)). Here, the parties dispute whether Hazen’s participation in the balance beam activity was voluntary. In her affidavit, Hazen has stated that she felt her participation in this team building activity was required rather than voluntary, noting that she had just finished her first year as an assistant principal at the charter school, she was required in that role to lead by example and thus participate fully in team-building activities, and the purpose of this particular activity was to get the entire team of eleven onto the plank at one time. Hazen Aff., Doc. 36’7.^[5] Thus, this element of the defendants’ assumption of the risk defense is also subject to a genuine dispute of material fact.

Accordingly, based on the facts and evidence of record, viewed in the light most favorable to the non-moving plaintiff, we find that a reasonable jury could conclude that the plaintiff was not subjectively . aware of the specific risk of serious injury posed by her participation in the balance beam activity that resulted in her injuries, or that she did not voluntarily accept that risk. Accordingly, the motion for summary judgment will be denied.

An appropriate order follows.

———

Notes:

^[1] In addition to multiple Woodloch corporate entities, Ranner is a named defendant in this action, along with Robert Filarsky, an assistant social director at Woodloch and Ranner’s supervisor that day.

^[2] The evidence suggests that some of the participants may have jumped off the plank, but it is undisputed that Hazen fell.

^[3] After a period of unemployment, Hazen is currently employed in a lower-paying position as a teacher at a different charter school in Morristown, New Jersey.

^[4] We note that, while Hazen could have visually observed the particular dimensions of the balance beam device and ascertained that it was made of wood, she had no experience performing this or similar activities in the past, and she had no knowledge of the device’s particular construction, including its weight capacity or the fact that the plank was not itself secured to the fulcrum.

^[5] In addition to deposition testimony by the parties themselves, deposition testimony by various nonparty witnesses, documentary and photographic evidence, arid expert witness reports, the plaintiff has relied on her owri testimonial affidavit, which is offered as a supplement to her deposition testimony and the other evidence. In their reply brief, the defendants have objected to consideration of this affidavit, arguing that it should be disregarded by the court under the “sham affidavit” doctrine. See generally Daubert E NRA Grp., LLC, 861 F.3d 382, 391 (3d Cir. 2017) (“When a nonmovant’s affidavit contradicts earlier deposition testiiriony without a satisfactory or plausible explanation, a district court -iriay disregard it at summary judgment in deciding if a genuine, material factual dispute exists. This is the sham-affidavit doctrine. In applying it we adhere to a ‘flexible approach,’ giving due regard to the ‘surrounding circumstances.”‘) (citations omitted); Perma Res. & Dev’p Co. v. Singer Co., 410 F.2d 572, 577-78 (2d Cir. 1969) (seminal case on the sham affidavit doctrine). But “the principle does not apply if the deposition and the later sworn statement are not actually contradictory.” Palazzo ex rel. Deimage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000). “To be covered by the sham affidavit doctrine, the affidavit testimony must actually contradict previous deposition testimony, not merely differ from it or be in tension With it.” Ramirez v. Lora, No. 18-11230, 2022 WL 1539176, at *8 (D.N.J. May 16, 2022). Here, the defendants have characterized the plaintiff’s affidavit as “self-serving and boot strapping” and “incredulous,” but they have failed to identify any contradictory testimony whatsoever. See Defs.’ Reply Br. 5-8, Doc. 37. Thus, we decline to disregard the Hazen affidavit as evidence on summary judgment.

———

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Release upheld to stop claims for injuries sustained on a high rope’s course.

Posted: April 25, 2022 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Colorado, Release (pre-injury contract not to sue) | Tags: challenge course, Golden Bell Camp and Conference Center, Golden Bell Retreat, Release, Retreat, Ropes course, Waiver | 5 Comments

Plaintiff’s arguments failed because Colorado is supportive of releases.

Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

State: Colorado, US District Court for the District of Colorado

Plaintiff: Jodi Sheldon

Defendant: Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene, d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center, Cross Bearing Adventures, LLC, Kent Fielden Mcilhany, an individual, and John Doe Corporations 1-10, Defendants

Plaintiff Claims: Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany

Defendant Defenses: Release

Holding: For the Defendant

Year: 2020

Summary

The plaintiff signed a release to go to a Church retreat prior to attending the retreat. At the retreat, she was injured on a ropes or challenge course. She sued the retreat, the church and the builder of the course and lost because of the release she had signed.

Facts

The facts in this case are sparse.

On June 29, 2018, plaintiff Jodi Sheldon was seriously injured while participating in a high ropes course at the Golden Bell Ranch (“Golden Bell”).

Ms. Sheldon sued Golden Bell under Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. She also brought a claim of negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany

The defendants claim the plaintiff’s claims are barred by the release she signed.

Ms. Sheldon received the Waiver from her aunt3 after having been given a list of activities offered at Golden Bell and indicating her interest in participating in the high ropes course.

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

The court started its analysis of the case by reviewing case law on releases.

Exculpatory agreements “stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts,” Thus, although such agreements are generally disfavored, and cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” “Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence,”

The court then reviewed the four factors that affect the validity of a release under Colorado law.

If a release meets any of the four factors, then under Colorado law, the release is unenforceable. The first two factors can be ignored because the activities were recreational in nature. Colorado courts have long held that there is no public policy or necessity in recreational cases.

The same applies to the third test, because the services offered were recreational in nature, the third test does not apply.

Nor is there any argument or evidence to establish that the third factor – whether the contract was fairly entered into – is applicable here. Indeed, because recreational activities are not considered either essential services or practically necessary, “a person is not ‘at the mercy’ of a business’s negligence when entering an exculpatory agreement involving recreational activities.”

Consequently, under Colorado law only the fourth test can be used to show a release should be void in a recreational case. This test is a simple legal test, is the release written properly and does it convey to the possible plaintiff the intention of the document.

Thus, whether the Waiver is enforceable turns exclusively on the fourth factor, “whether the intention of the parties is expressed in clear and unambiguous language.” In analyzing this factor, the court focuses on whether the parties’ intent to “extinguish liability . . . was clearly and unambiguously expressed.”

The plaintiff argued the language of the release did not cover the risks of a high rope’s course. However, the court found the language did cover the risks; the language was broad enough in scope to cover the risks and injury the plaintiff incurred.

Ms. Sheldon insists the Waiver is ambiguous as to whether the high ropes course was within the scope of the activities covered. I am not persuaded. Here, the Waiver defined the term “Activities” as “recreational activities . . . including activities that may be hazardous or otherwise involve a risk of physical injury or death to participants.” (Emphasis added.) The use of the term “including” plainly signifies that some – but not all – of the Activities covered by the Waiver will be hazardous or involve a risk of physical injury. Thus, even accepting Ms. Sheldon’s suggestion that a high ropes course is not a hazardous activity, her argument fails.

Colorado is extremely lenient on the language allows to prevent a claim.

Nor does the Waiver’s failure to refer specifically to the high ropes course render it ambiguous with respect to the type of activities covered. Colorado law does not require “an exculpatory agreement describe in detail each specific risk that the signor might encounter.”

The language was interpreted to be broad enough to protect the builder of the course, also.

The plaintiff also argued the waiver lacked consideration because of the lapse in time between when she signed the release and when her injury occurred. The court did not agree.

The Waiver does not fail for lack of consideration. Contrary to Ms. Sheldon’s arguments, the mere lapse of time between her payment to participate in the activity and the date the waiver was delivered to Golden Bell is not fatal to its enforcement. Instead, the pertinent question is whether the release of liability was a contract modification or rather is part of the same transaction and thus enforceable without additional consideration.

Consideration is a benefit flowing from one party to the other. Every contract must have consideration. In 99% of the contracts, consideration is defined as money, an amount. The other side of the contract in consideration for money exchanges or provides services or products. In this case the exchange was a fee, money, paid by the plaintiff in exchange for a service, the ropes course, for the fee paid by the defendant.

The Plaintiff then argued the release should be void because of mutual mistake. That argument failed because the plaintiff could not show where there was any issue that was not clearly covered in the release. If a release is written with clarity and signed, their argument of mutual mistake is nearly impossible to prove.

The doctrine of mutual mistake permits a party to rescind a contract “if all parties labored under the same erroneous conception of the contract’s terms and conditions.”

The mutual mistake argument was then expanded by the plaintiff to say because the state had no licensed the high ropes course, then the release should be void by mutual mistake.

Mutual mistake in a contract means both parties to the contract made the same mistake in the contract unenforceable or such that neither party wants to enforce the contract. Normally in a mutual mistake claim, the court re-writes the contract to meet the terms needed to eliminate the mutual mistake.

The state of Colorado does not license ropes course.

The plaintiff claimed the mutual mistake was the ropes course was not licensed. There was a mistake that because the course was unlicensed, the contract was not correct, there was a mistake.

There could not be a mutual mistake because no term in the contract, the release, required that one party have the rope’s course licensed. Meaning, a mutual mistake is not a legal theory that brings in outside issues into the analysis of the contract. A mutual mistake is something that was not understood within the contract.

The plaintiff then argued there was a unilateral mistake that should void the release.

[A] unilateral mistake by one party to a contract can permit reformation if the evidence demonstrates that, at the time the contract was formed, the non-mistaken party was aware of the mistaken party’s mistake.” Thus, one party’s unilateral mistake may permit reformation where “the other engaged in fraud or inequitable conduct.

However, there was nothing in the contract, the release or the evidence that could be identified as one party engaging in fraud or inequitable conduct.

The release was upheld to prevent the claims brought against all three defendants.

So Now What?

Release law is written by poor releases. My releases never go to court because they are written to cover the issues like this. The Socratic method used in law school to learn still applies when practicing law, you learn from failure not success.

Here the release squeaked through, because of the breath of the case law in Colorado supporting releases. In other states, this release would fail.

Have your release written by an attorney who understands release law and understands what you do so you do not become a learning opportunity for the rest of your industry.

The remaining arguments made by the plaintiff were without any merit, and I write about them just as additional caution and to understand what those arguments really mean.

What do you think? Leave a comment.

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Jim Moss

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Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

Posted: April 25, 2022 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Colorado, Release (pre-injury contract not to sue) | Tags: challenge course, Golden Bell Camp and Conference Center, Golden Bell Retreat, Negligence, Release, Ropes Courses, The Colorado District Church of the Nazarene, Waiver | 1 Comment

Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

JODI SHELDON, Plaintiff,
v.
GOLDEN BELL RETREAT d/b/a THE COLORADO DISTRICT CHURCH OF THE NAZARENE,
d/b/a GOLDEN BELL RANCH and GOLDEN BELL CAMP and CONFERENCE CENTER,
CROSS BEARING ADVENTURES, LLC, KENT FIELDEN MCILHANY, an individual,
and JOHN DOE CORPORATIONS 1-10, Defendants.

Civil Action No. 19-cv-01371-REB-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

April 20, 2020

Judge Robert E. Blackburn

ORDER GRANTING SUMMARY JUDGMENT

Blackburn, J.

The matters before me are (1) the Motion for Summary Judgment on Plaintiff’s Personal Injury Claims Against Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center [#42],1 filed January 21, 2020; and (2) Defendants Cross Bearing Adventures, LLC’s and Kent Fielden McIlhany’s Motion for Summary Judgment [#55], filed March 9, 2020. I grant both motions and dismiss plaintiff’s remaining claims with prejudice as against the named defendants and without prejudice as against the Doe defendants.

I. JURISDICTION

I have jurisdiction over this matter under 28 U.S.C. §1332 (diversity of citizenship).

II. STANDARD OF REVIEW

Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10^th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.

A party who does not have the burden of proof at trial must show the absence of a genuine factual dispute. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10^th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10^th Cir.), cert. denied, 120 S.Ct. 53 (1999).

III. ANALYSIS

On June 29, 2018, plaintiff Jodi Sheldon was seriously injured while participating in a high ropes course at the Golden Bell Ranch (“Golden Bell”). Ms. Sheldon sued Golden Bell under Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. She also brought a claim of negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany.2

All three defendants claim Ms. Sheldon’s claims are barred by a Waiver, Release and Indemnification Agreement (the “Waiver”) which she signed on May 18, 2018, prior to participating in the high ropes course. The Waiver provided, in relevant part,

I wish to participate in recreational activities to be made available to participants at Golden Bell Camp including activities that may be hazardous or otherwise involve a risk of physical injury or death to the participants (the”Activities”).

I expressly assume any and all risks of injury or death arising from or relating to the Activities including horseback riding, agricultural recreation and waive and release any and all actions, claims, suits or demands of any kind or nature whatsoever against Golden Bell Camp, its corporate affiliates, contractors, vendors, officer, agents, sponsors, volunteers or representatives of any kind (collectively “Releases”) arising from or relating in any way to my voluntary participation in these activities. I understand that this Waiver, Release and Indemnification agreement means, among other things, that if I am injured or die as a result of my participation in these activities, I and/or my family or heirs cannot under any circumstances sue Releases or any of them for damages relating to or caused by my injuries or death.

. . .

I agree to indemnify Releases or any of them and their subrogees, if any, in the event of any loss, damage or claim arising from or relating in any way to my participation in any of the Activities.

. . . .

I have read this Waiver, Release and Indemnification Agreement, have asked and received answers to any questions I had concerning its meaning and execute it freely, without duress, and in full complete understanding of its legal effect, and of the fact that it may affect my legal rights.

(CBA Motion App., Exh. C, Attachment 2.) Ms. Sheldon received the Waiver from her aunt3 after having been given a list of activities offered at Golden Bell and indicating her interest in participating in the high ropes course. (Id., Exh. C, Attachment 1 at 25-26.)

To begin, Ms. Sheldon does not oppose Mr. McIlhany’s motion to dismiss her claims against him personally. The uncontested evidence supports Mr. McIlhany’s assertion that all actions taken by him of which Ms. Sheldon complains were done in his capacity as a member, manager, and operator of CBA and that he never performed any services for Golden Bell in his individual capacity. Ms. Sheldon’s claims against Mr. McIlhany therefore will be dismissed with prejudice.

As for Ms. Sheldon’s claims against Golden Bell and CBA, they are precluded by the Waiver.4 Because this case implicates the court’s diversity jurisdiction, I apply Colorado law. Wade v. EMASCO Insurance Co., 483 F.3d 657, 665-66 (10^th Cir. 2007). Exculpatory agreements “stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts,” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Thus, although such agreements are generally disfavored, see B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010), “Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence,” Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d 1150, 1152 (10^th Cir. 2016).

Colorado courts have identified four factors which inform the decision whether to enforce an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243, 1250 (10t Cir. 2018) (quoting Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981)) (internal quotation marks omitted).

The first two Jones factors focus on public policy questions – asking whether the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity. Meanwhile, the latter two factors focus on more party – and contract-specific questions – asking whether the release was fairly obtained and clearly and unambiguously expressed.

Patterson v. Powder Monarch, LLC, 926 F.3d 633, 639 (10^th Cir. 2019) (internal citations and quotation marks omitted). “[I]f an exculpatory agreement satisfies any of the four factors, it must be deemed unenforceable.” Brigance, 883 F.3d at 1250. The determination of this question is a matter of law for the court. Jones, 623 P.2d at 376. See also Johnson v. Gold’s Gym Rockies, LLC, 2019 WL 1112374 at *3 (D. Colo. March 11, 2019).

The first two factors are generally inapplicable to businesses engaged in recreational activities, Patterson, 926 F.3d at 639; Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004), and the parties do not argue otherwise. See also Brigance, 883 F.3d at 1250-51, 1252-53 (citing cases). Nor is there any argument or evidence to establish that the third factor – whether the contract was fairly entered into – is applicable here. Indeed, because recreational activities are not considered either essential services or practically necessary, “a person is not ‘at the mercy’ of a business’s negligence when entering an exculpatory agreement involving recreational activities.” Brigance, 883 F.3d at 1253 (quoting Hamill v. Cheley Colorado Camps, Inc., 262 P.3d 945, 949-50 (Colo. App. 2011)).

Thus, whether the Waiver is enforceable turns exclusively on the fourth factor, “whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. In analyzing this factor, the court focuses on whether the parties’ intent to “extinguish liability . . . was clearly and unambiguously expressed.” Heil Valley Ranch, 784 P.2d at 785.

To determine whether the intent of the parties is clearly and unambiguously expressed, [Colorado courts] have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions. [They] have even taken into account an injured party’s subsequent acknowledgment that he understood the meaning of the provision.

Chadwick, 100 P.3d at 467 (internal citations omitted).

Ms. Sheldon insists the Waiver is ambiguous as to whether the high ropes course was within the scope of the activities covered. I am not persuaded. Here, the Waiver defined the term “Activities” as “recreational activities . . . including activities that may be hazardous or otherwise involve a risk of physical injury or death to participants.” (Emphasis added.) The use of the term “including” plainly signifies that some – but not all – of the Activities covered by the Waiver will be hazardous or involve a risk of physical injury. Thus, even accepting Ms. Sheldon’s suggestion that a high ropes course is not a hazardous activity,⁵ her argument fails.

Nor does the Waiver’s failure to refer specifically to the high ropes course render it ambiguous with respect to the type of activities covered.⁶ Colorado law does not require “an exculpatory agreement describe in detail each specific risk that the signor might encounter.” Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867, 873 (10^th Cir. 2013). Read in context, and considering not only its structure and language but also its purpose, the Waiver clearly and unambiguously applies to activities such as the high ropes course. See Patterson, 926 F.3d at 642. In this regard, Ms. Sheldon testified that prior to signing up for the high ropes course, she reviewed a list of activities offered by Golden Bell which, in addition to the high ropes course, also included “horseback riding,” an activity specifically referenced in and covered by the Waiver. (CBA Motion App., Exh. C, Attachment 1 at 25.) Moreover, nothing in the record suggests Ms. Sheldon would have been asked to sign a Waiver had she not requested to participate in the high ropes course. Given those circumstances, it “strains logic,” Squires, 715 F.3d at 874, to suggest Ms. Sheldon was confused or misled as to the fact that she was being asked to waive potential claims of negligence associated with the high ropes course. See also Hamill, 262 P.3d at 952 (exculpatory waiver enforceable against parent who signed on behalf of minor child where parent knew activities that were offered at camp; “An agreement with such plain and unambiguous terms will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of that agreement . . . based on ambiguities not readily apparent within the four corners of the agreement.”).7

Relatedly, the Waiver also clearly bars Ms. Sheldon’s claims against CBA. “A person not a party to an express contract may bring an action on such contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a direct and not merely an incidental benefit of the contract.” E.B. Roberts Const. Co. v. Concrete Contractors, Inc., 704 P.2d 859, 865 (Colo. 1985). The Waiver specifically protects Golden Bell’s “contractors” and “vendors” from claims “arising from or relating in any way to [Ms. Sheldon’s] voluntary participation in these activities.” (CBA Motion App., Exh. C, Attachment 2.) Clearly, the Waiver was intended to cover parties like CBA in precisely the situation presented by this lawsuit. Moreover, the benefit thus conferred is directly related to its purpose – to absolve such parties from liability for claims of negligence.

Ms. Sheldon’s suggestion that the Wavier is ambiguous as to whether contractors and vendors are covered for all purposes or only when they are on site is meritless. The Waiver plainly is intended to have the broadest possible scope, applying to claims “arising from or relating in any way” to Ms. Sheldon’s participation in the covered activities. Clearly, the parties intended to absolve contractors from claims they were negligent in any way in relation to the subject activities, regardless whether that negligence happened on site at the time of the event. I thus find and conclude that the Waiver clearly and unambiguously bars Ms. Sheldon’s claims against CBA as well.

Ms. Sheldon’s remaining arguments attempting to avoid the effect of the Waiver are likewise unavailing. The Waiver does not fail for lack of consideration. Contrary to Ms. Sheldon’s arguments, the mere lapse of time between her payment to participate in the activity and the date the waiver was delivered to Golden Bell is not fatal to its enforcement. Instead, the pertinent question is whether the release of liability was a contract modification or rather is part of the same transaction and thus enforceable without additional consideration. See Patterson, 926 F.3d at 638 (“[E]ven aside from the question of timing, we are persuaded based on the nature and circumstances of the transaction that the payment and exculpatory agreement here . . . are better viewed as part of the same transaction, rather than as a subsequent contract modification.”) (citing Mincin, 308 F.3d at 1109).8

I am similarly unpersuaded by Ms. Sheldon’s suggestion that the Waiver fails due to either unilateral or mutual mistake. The doctrine of mutual mistake permits a party to rescind a contract “if all parties labored under the same erroneous conception of the contract’s terms and conditions.” In re Estate of Ramstetter, 411 P.3d 1043, 1051 (Colo. App. 2016) (citation and internal quotation marks omitted). Ms. Sheldon has failed to prove by clear and convincing evidence that such is the case here. Cabs, Inc. v. Hartford Insurance Group, 151 Fed. Appx. 604, 610 (10^th Cir. Aug. 31, 2005); Maryland Casualty Co. v. Buckeye Gas Products Co., 797 P.2d 11, 13 (Colo. 1990).

For one thing, it is not clear that Ms. Sheldon’s asserted mistake – that Golden Bell’s high ropes course had been licensed by the state of Colorado – was sufficiently similar to Golden Bell’s mistake – that it did not require such a license – to warrant application of the doctrine at all.⁹ Assuming arguendo that it does, however, the doctrine of mutual mistake permits reformation of the contract “where both parties’ understanding of their agreement is contrary to the terms of a written instrument due to a drafting error[.]” Tatonka Capital Corp. v. Connelly, 390 F.Supp.3d 1289, 1294 (D. Colo. 2019), as modified on reconsideration, 2019 WL 5535226 (D. Colo. Oct. 25, 2019), appeal filed, 2019 WL 5535226 (10^th Cir. Nov. 25, 2019) (No. 19-1450). See also Casey v. Colorado Higher Education Insurance Benefits Alliance Trust, 310 P.3d 196, 207 (Colo. App. 2012) (“A mutual mistake claim requires a showing that both parties were laboring under the same erroneous conception of the contract’s terms and conditions.”) See also Ranch O, LLC v. Colorado Cattlemen’s Agricultural Land Trust, 361 P.3d 1063, 1066-67 (Colo. App. 2015) (doctrine of mutual mistake applies only to mistakes going to a “basic assumption” underlying the contract).10

No term of the contract here addressed whether Golden Bell had, or was required to have, a state-issued license. Thus, any mistake as to that fact “did not create any ambiguity regarding the terms or substance of the [Waiver].” Shoels v. Klebold, 375 F.3d 1054, 1067 (10^th Cir. 2004), cert. denied, 125 S.Ct. 1302 (2005). The Colorado Supreme Court long ago warned that courts “should not sanction, under the guise of reformation, the insertion in [contracts] of a new term or provision which was never even in the minds of the parties, let alone assented to by them.” Segelke v. Kilmer, 360 P.2d 423, 427 (Colo. 1961). “To order reformation under these circumstances is to rewrite, not to reform, the instruments.” Id. Just so here. I thus find the Waiver is not infirm based on mutual mistake.

I likewise reject Ms. Sheldon’s suggestion that she may avoid the waiver’s effect under the doctrine of unilateral mistake. “[A] unilateral mistake by one party to a contract can permit reformation if the evidence demonstrates that, at the time the contract was formed, the non-mistaken party was aware of the mistaken party’s mistake.” Tatonka Capital Corp., 390 F.Supp.3d at 1299. Thus, one party’s unilateral mistake may permit reformation where “the other engaged in fraud or inequitable conduct.” Poly Trucking, Inc. v. Concentra Health Service., Inc., 93 P.3d 561, 563 (Colo. App. 2004). See also RESTATEMENT (SECOND) OF CONTRACTS § 153 (contract may be avoided based on unilateral mistake where “(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or (b) the other party had reason to know of the mistake or his fault caused the mistake”); Shoels, 375 F.3d at 1068 (quoting Powder Horn Constructors, Inc. v. City of Florence, 754 P.2d 356, 364 (Colo.1988) (“[E]quity will not allow a party to knowingly take advantage of a mistake of another.”)).

None of these circumstances pertains here. It cannot be unconscionable to enforce an exculpatory contract which, like this one, is enforceable under Colorado law. Moreover, there is no hint in the record that Golden Bell knew or had reason to know that Ms. Sheldon did not know its high ropes course was not licensed by the state. Nor is there evidence to suggest Golden Bell was required to make its licensing status known to participants or that it purposefully hid its licensing status from Ms. Sheldon. At best, the evidence suggests Golden Bell’s website made it appear the camp’s activities were open to the general public, which if true would have rendered them subject to inspection and licensing by the state.11 Yet there is neither argument nor evidence that Ms. Sheldon even consulted, much less relied on, Golden Bell’s website in deciding to participate in the high ropes course or sign the Waiver.12 I thus find and conclude that the Waiver is not voidable based on unilateral mistake either.

IV. CONCLUSION

For these reasons, the named defendants are entitled to summary judgment, and Ms. Sheldon’s remaining claims against them will be dismissed with prejudice. Although the caption of this case named a number of unknown John Doe defendant corporations who may have had “ownership and control of the subject obstacle activity (Complaint ¶ 10 at 3 [#1], filed May 13, 2019), with discovery now closed, Ms. Sheldon has not identified any such entities. These defendants therefore also should be dismissed, albeit without prejudice.13
See Culp v. Williams, 2011 WL 1597686 at *3 (D. Colo. April 27, 2011) (because Doe designation is not permitted where “plaintiff’s ignorance of the defendant’s true identity is the result of willful ignorance or lack of reasonable inquiry,” Doe defendants dismissed where case had been pending for more than a year and plaintiff failed to show “good reason as to why [it] ha[d] been unable to obtain the true identity of these unnamed Defendants”).

V. ORDERS

THEREFORE, IT IS ORDERED as follows:

1. That the Motion for Summary Judgment on Plaintiff’s Personal Injury Claims Against Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center [#42], filed January 21, 2020, is granted;

2. That Defendants Cross Bearing Adventures, LLC’s and Kent Fielden McIlhany’s Motion for Summary Judgment [#55], filed March 9, 2020, is granted;

3. That plaintiff’s remaining claims against defendants are dismissed as follows:

a. That the remaining claims of plaintiff against defendants, Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center; Cross Bearing Adventures, LLC; Kent Fielden McIlhany, an individual, are dismissed with prejudice; and

b. That the remaining claims of plaintiff against defendants, John Doe Corporations 1 through 10 are dismissed without prejudice;

4. That judgment shall enter as follows:

a. That judgment with prejudice shall enter on behalf of defendants, Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center; Cross Bearing Adventures, LLC; and Kent Fielden McIlhany, an individual, and against plaintiff, Jodi Sheldon, as to all remaining claims for relief and causes of action asserted herein;

b. That judgment without prejudice shall enter on behalf of defendants, John Doe Corporations 1 through 10, and against plaintiff, Jodi Sheldon, as to all remaining claims for relief and causes of action asserted herein;

5. That judgment shall enter further in accordance with my Order Adopting Recommendation of United States Magistrate Judge [#35], filed January 8, 2020;

6. That the combined Final Pretrial Conference and Trial Preparation Conference scheduled for June 11, 2020, at 10:00 a.m., is vacated;

7. That the trial scheduled to commence on June 29, 2020, is vacated;

8. That defendants are awarded their costs, to be taxed by the clerk in the time and manner required by Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and

9. That this case is closed.

Dated April 20, 2020, at Denver, Colorado.

BY THE COURT:

/s/_________
Robert E. Blackburn
United States District Judge

——–

Footnotes:

1. “[#42]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order.

2. Ms. Sheldon’s claims of negligence and fraudulent concealment against Golden Bell were dismissed previously as preempted by the PLA. (See Order Adopting Recommendation of the United States Magistrate Judge [#35], filed January 8, 2020.)

3. Ms. Sheldon, who is a resident of Illinois, attended Golden Bell as part of a large family reunion.

4. I reject Ms. Sheldon’s suggestion that I should defer ruling on this motion until after Golden Bell’s Rule 30(b)(6) deposition is completed. Pursuant to Rule 56(d), to warrant such action, Ms. Sheldon must “show[] by affidavit or declaration that, for specified reasons, [she] cannot present facts essential to justify [her] opposition.” FED. R. CIV. P. 56(d). No such affidavit or declaration has been submitted in support of Ms. Sheldon’s request. The request also violates D.C.COLO.LCivR 7.1(d), which provides that “[a] motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.” I therefore deny this request and consider the summary judgment motions as submitted.

5. Frankly, however, this argument strains credulity. I would be hard pressed to find that it is not inherently risky to be suspended many feet above the ground, regardless of safety measures taken to mitigate the risk. Moreover, Ms. Sheldon’s subjective belief that the ropes course was not inherently dangerous is irrelevant. See Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1275 n.1 (10t Cir. 1997) (“Plaintiffs’ subjective intent is inadmissible to overcome the parties overt manifestation of intent in the releases because the language in these agreements is clear and unambiguous.”) (citation and internal quotation marks omitted).

6. Ms. Sheldon’s reliance on the district court’s decision in Schlumbrecht-Muniz v. Steamboat Ski & Resort Corp., 132 F.Supp.3d 1310 (D. Colo. 2015), is misplaced. There, although the agreement at issue clearly and unambiguously released the defendant from claims related to the plaintiff’s participation in “the Event” (a ski race), it was not clear that it covered injuries the plaintiff sustained after she finished competing in that event. See id. at 1315. There is no such ambiguity here. Ms. Sheldon was injured while participating in the “activities” which were the subject of the Waiver.

7. I further reject Ms. Sheldon’s argument that her claim of gross negligence against Golden Bell cannot be waived. Assuming such is the case as a matter of law, as a matter of fact, Ms. Sheldon failed to plead such a claim.

8. In reaching its determination, the Mincin court relied on two state court decisions which reached similar conclusions. See Mincin, 308 F.3d at 1109 (citing Beehner v. Cragun Corp., 636 N.W.2d 821, 829 (Minn. Ct. App.2001) (“This court has held that an exculpatory agreement signed after a fee to participate in a recreational activity has been paid is part of the same transaction and is therefore enforceable without additional consideration other than permission to participate in the activity.”), and Hewitt v. Miller, 521 P.2d 244, 248 n.3 (Wash. App. 1974) (concluding that release signed by scuba diving student after payment of fee was an integrated part of the whole transaction and was thus supported by original consideration)).

9. At the time Ms. Sheldon participated in the high ropes course, the course was not licensed by the Colorado Division of Oil and Public Safety (“OPS”) because Golden Bell believed itself subject to a “private event” exception, as its activities were available only to persons staying at the camp or its associated RV park and not open to the general public. However, because Golden Bell charged a separate fee for participation in activities at the camp to groups making use of the RV park, OPS found Golden Bell was not entitled to the benefit of this exclusion. Golden Bell resolved the violation by changing the way in which it offers its activities to guests of the RV park. OPS waived the fine assessed and considered the matter resolved as of August 23, 2019. (See Pl. Resp. App. [#52], Exh. J, Golden Bell Motion App., Exhs. A & B.)

10. Even where the doctrine of mutual mistake is otherwise applicable, however, a party is not entitled to reformation where she was “‘aware, at the time the contract is made, that [she] ha[d] only limited knowledge with respect to the facts to which the mistake relates but treat[ed] [her] limited knowledge as sufficient.'” In re Estate of Ramstetter, 411 P.3d 1043, 1051 (Colo. App. 2016) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 154(b)). Such is arguably the case here as well.

11.
See supra, note 6.

12. These same reasons preclude Ms. Sheldon’s belated assertion that Golden Bell engaged in fraud which would invalidate the Waiver. Otherwise, this argument is so woefully undeveloped and unsupported by citation to any legal authority that I decline to consider it. See Bird v. Regents of New Mexico State University, 619 Fed. Appx. 733, 766 (10^th Cir. Aug. 6, 2015) (arguments which re “conclusory, unsupported, and undeveloped” “are insufficient to overcome summary judgment “); Center for Biological Diversity v. Pizarchik, 858 F.Supp.2d 1221, 1230 n.11 (D. Colo. 2012) (court does not consider “cursory, unsupported, or otherwise inadequately briefed arguments”). To the extent Ms. Sheldon believed she required further discovery to make this argument, she has forfeited any such argument. See supra, note 4.

13. Without knowledge as to how any such corporations may be related to or associated with Golden Bell, it is impossible to say whether they would be covered by the Waiver and thus entitled to dismissal with prejudice. Cf. Roper v. Grayson, 81 F.3d 124, 126 (10^th Cir. 1996); Bustamante v. Board of County Commissioners of San Miguel County, 2009 WL 10706928 at *5 n.7 (D.N.M. Oct. 2, 2009).

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G-YQ06K3L262

Just because you have a piece of paper saying you are an additional insured, it does not mean there is any coverage under any policy to protect you.

Posted: August 14, 2017 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Insurance, Minors, Youth, Children, Missouri, Summer Camp, Youth Camps, Zip Line | Tags: Additional Insured, Ambiguity, Ambiguous, Camper, certificate, Certificate of Insurance, challenge course, church, Church Camp, coverage, declarations, denial letter, dining hall, duty to defend, endorsement, Guest, Insurance policy, insured, latent ambiguity, Lawsuit, lease, leased, liability arising, liability coverage, Liability insurance, lodge, lodging, meal, named insured, ordinary person, owes, Ropes course, space, Summary judgment, tenant, Youth Camp, zip line | Leave a comment

Additional insured certificates are limited by two things, what the underlying policy provides coverage for and what the certificate of insurance says it will cover. Lacking coverage under the policy or lacking the necessary language in the additional insured certificate you are hanging in the wind without any insurance coverage.

For an additional insured certificate to be valid, you must put together three things. A contract which identifies the requirements or insurance you are looking for. An insurance policy that insures those requirements and a certificate of insurance that covers those requirements or better states as the requirements are set forth in the original contract. Lacking any, one of those and you are just wasting paper.

When you get a certificate of insurance, you must then read it to make sure you meet the requirements it may set out. If there is a limitation on the amount of time you have to file a claim or a specific way to notify the insured, make sure you follow those procedures.

Finally, whenever you file any claim with any insurance company for coverage, follow the procedures the policy requires then follow up with a letter providing notice the insurance company in writing.

Great American Alliance Insurance Company, v. Windermere Baptist Conference Center, Inc., et al., 2017 U.S. Dist. LEXIS 103148

State: Missouri, United States District Court for the Western District of Missouri, Central Division

Plaintiff: Great American Alliance Insurance Company

Defendant: Windermere Baptist Conference Center, Inc., et al.

Plaintiff Claims: Great American now moves for summary judgment on its requested declaratory judgment that: (1) no liability coverage exists under its policy issued to Student Life for any claims asserted in the underlying lawsuit against Windermere or Windermere’s employees, including Kendra Brown; (2) Great American owes no duty to defend Windermere, Kendra Brown, or any other Windermere employees in the underlying lawsuit; and
(3) no medical payments coverage exists for Karlee Richards.

Defendant Defenses: No coverage provided under the policy or certificate of insurance

Holding: Split decision, however the insurance company will not pay anything under the certificate of insurance

Year: 2017

This is a legally complicated case with simple facts. A church rented a camp from Student Life, which had contracted with a church camp called Windermere. The reservation form and simple agreement between the camp and the church required the issuance of a certificate of insurance.

A camper, part of the church group fell while riding the zip line. She sued. That lawsuit was still pending when this lawsuit was started to determine whose insurance was required to defend against the camper’s lawsuit.

In that case, damages are being sought against them for injuries sustained by Karlee Richards after she fell while zip-lining at The Edge, a ropes course at Windermere’s Conference Center. Kendra Brown was an employee of Windermere, working at the Edge at the time of the accident.

The injured camper Richards was with the Searcy Baptist Church. They rented the camp through Student Life. Student Life rented the camp from Windermere. The contract between Student Life and Windermere is the one at question here. Windermere required a certificate of insurance from Student Life.

June 2014, Karlee Richards and her Searcy Baptist Church youth group were attending a summer camp at Windermere’s Conference Center, which was sponsored by Lifeway Christian Resources of the Southern Baptist Conference, d.b.a. Student Life. Student Life contracted with Windermere to hold the church camp at Windermere’s facility in Missouri. Student Life had a liability policy with Great American, and Windermere was an additional insured on that policy. The additional insured endorsement provides that the additional insured, in this case Windermere, is only covered for “liability arising out of the ownership, maintenance or use of that portion of the premises leased to Great American contends that Windermere is not entitled to coverage for Kaylee Richards’s injuries because Windermere did not “lease” the Edge to Student Life because the Edge was not specifically mentioned in Student Life’s written agreement with Windermere.

The first issue the court skipped was the policy that Student Life had, was restrictive and had minimal coverage. It had a requirement that all claims had to be made in one year. This may not be bad, but if the statute of limitations for the type of injury is two years or three, you may not have coverage for a claim because you did not know you had one until after the time period had run.

Student Life is the named insured on a Commercial General Liability policy with Great American. The policy requires that all requests for medical payments be made within one year of the accident that gives rise to the insurance claim. Also, when there is other valid and collectible excess insurance coverage, the Great American policy provides that Great American will have no duty to defend its insured against a claim for damages.

On top of the claim limitation period, the coverage was solely excess coverage. Meaning the coverage did on top of any other coverage the insured had and had no duty to defend or pay for attorneys. It only had to pay for a claim after the
limits of the underlying policy were exhausted. No underlying policy was ever mentioned in the case so it is unknown if one existed.

If this is the only policy, Student Life purchased, they bought the wrong one!

Another issue was whether the student life policy would provide coverage for employees of Windermere that were sued based on the accident.

This suit was brought by the Student Life insurance company, Great American Alliance Insurance Company, asking the court to tell Student Life it was not going to pay or defend any of the claims brought by the injured camper against Windermere.

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

The court first looked at whether the additional insured certificate was ambiguous. If so, then the court had to interpret the ambiguity under Missouri’s law.

An ambiguity is an uncertainty in the meaning of the policy.

If an ambiguity exists, the policy language will be construed against the insurer. Mendota, “‘An ambiguity exists when there is
duplicity, indistinctness, or uncertainty in the meaning of the language of the policy.'” “‘To test whether the language used in the policy is ambiguous, the language is considered in the light in which it would normally be understood by the lay person who bought and paid for the policy.'” Whether an insurance policy is ambiguous is a question of law.”

The burden of proving there is coverage falls on the party seeking it, in this case, Windermere. An ambiguity exists if there are different interpretations of the language in the policy. There are two types of Ambiguities, Latent and patent.

A policy is ambiguous if it is “fairly open to different interpretations” because it contains “duplicity, indistinctness, or uncertainty of meaning.” Importantly, there are two types of ambiguities in the law: patent and latent. “A patent ambiguity is detected from the face of the document, whereas a latent ambiguity is found ‘when the particular words of a document apply equally well to two different objects or some external circumstances make their meaning uncertain.'”

Here the court found that a patent ambiguity existed.

For these reasons, a patent ambiguity exists. The disputed phrase not only should be interpreted in favor of the Defendants, but the Defendants’ interpretation is arguably the only one that would make sense to an ordinary person under these circumstances.

The court also found a latent ambiguity existed in the certificate of insurance.

A latent ambiguity exists when a contract “on its face appears clear and unambiguous, but some collateral matter makes the meaning
uncertain.” Id. In other words, an ambiguity is “latent if language, which is plain on its face, becomes uncertain upon application.”

If an ambiguity is found in an insurance policy, the ambiguity is construed against the insurance company. “In the
alternative, it is well-settled that an ambiguity within an insurance policy must be construed against the insurer.”

Consequently, the court ruled on this issue, that there was coverage for Windermere from the Student Life Policy. However, the court found against Student Life and Windermere on the other issues.

Windermere requested coverage for defending its employees, which the court denied.

Great American argues that no coverage exists for Brown or any other Windermere employee because the Additional Insured Endorsement does not provide additional insured status and/or coverage for an additional insured’s employees. Brown is not identified anywhere in Student Life’s Great American policy nor is she listed as an Additional Insured on a Certificate of Liability. Therefore, any coverage for Brown would necessarily derive from her status as Windermere’s employee, and employees are not covered as insureds by the Additional Insured Endorsement.

The court agreed with Great American that no coverage was described in the certificate of insurance.

The next issue was, whether or not there was a duty to defend. A duty to defend is to pay the cost of the lawsuit; attorney fees, expert witness fees, etc.

Under Missouri law, the duty to defend “arises whenever there is a potential or possible liability to pay based on the facts at the outset of the case and is not dependent on the probable liability to pay based on the facts ascertained through trial.”

Because there was no coverage for the Windermere employees, there was no duty to defend them either. A duty to defend must be specifically identified in the policy. In this case the policy specifically stated, there was no duty to defend.

The last issue was whether medical expenses of the injured camper were owed by Great American to Windermere. Again, since the policy specifically stated there was no coverage for medical expenses this was denied. The court also found the
requirement under the policy to make a claim for medical expenses had to be done within one year, and that time had lapsed; therefore, no medical expenses were owed by the Student Life Policy with Great American.

The decision was split, however, in reality; Windermere got nothing from the decision. If Windermere lost its suit or exhausted its own liability insurance policy protection, it could, then see money from the Student Life policy with Great American, but no other coverage was owed by Great American. However, that meant the camper was going to have to win millions probably to exhaust the Windermere policy and Windermere or its insurance company was going to foot the bill with no help from the policy under the certificate of insurance.

So Now What?

This is a classic case were not knowing or checking what happens when you receive an additional insured certificate ends up costing you more money than not having one.

The underlying policy by the group coming into the camp was crap. On top of that it had major restrictions on when it would pay. Add to those issues the certificate of insurance was badly written and the company receiving the additional insured certificate received a worthless piece of paper. On top of that it cost them a lot of money I’m guessing to sue to find out they were not going to get anything from the policy.

1. Issue a request for a Certificate of Insurance in a contract or the contract. Set forth in the contract everything you must have and the type of insurance policy that must be underlying the certificate of insurance.

2. Request a copy of the insurance policy be delivered with the certificate of insurance. Again, if the policy is crap, you are getting crap.

3. Make sure the insurance policy covers what the contract says it should cover.

4. Make sure the certificate of insurance covers what the contract says it must cover.

Just collecting certificates of insurance to put in a box or file cabinet are only killing trees. It is probably not providing you any protection as in this case.

What do you think? Leave a comment.

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Great American Alliance Insurance Company, Plaintiff, vs. Windermere Baptist Conference Center, Inc., et al., 2017 U.S. Dist. LEXIS 103148

Posted: August 13, 2017 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Insurance, Legal Case, Missouri, Zip Line | Tags: Ambiguity, Ambiguous, Camper, certificate, challenge course, church, Church Camp, coverage, declarations, denial letter, dining hall, duty to defend, endorsement, Guest, Insurance policy, insured, latent ambiguity, Lawsuit, lease, leased, liability arising, liability coverage, Liability insurance, lodge, lodging, meal, named insured, ordinary person, owes, Ropes course, space, Summary judgment, Summer Camp, tenant, zip line | Leave a comment

Great American Alliance Insurance Company, Plaintiff, vs. Windermere Baptist Conference Center, Inc., et al., 2017 U.S. Dist. LEXIS 103148

Great American Alliance Insurance Company, Plaintiff, vs. Windermere Baptist Conference Center, Inc., et al., Defendants.

No. 2:16-cv-04046-NKL

United States District Court for the Western District of Missouri, Central Division

2017 U.S. Dist. LEXIS 103148

July 5, 2017, Decided

July 5, 2017, Filed

PRIOR HISTORY: Great Am. Alliance Ins. Co. v. Windermere Baptist Conf. Ctr., Inc., 2016 U.S. Dist. LEXIS 92701 (W.D. Mo., July 18, 2016)

COUNSEL: [*1] For Great American Alliance Insurance Company, Plaintiff: John S. Sandberg, LEAD ATTORNEY, Kenneth R. Goleaner, Sandberg, Phoenix & von Gontard, PC-St. Louis, St. Louis, MO.

For Windermere Baptist Conference Center, Inc., Defendant: Amber Joy Simon, Lauren E. Tucker McCubbin, LEAD ATTORNEYS, Lisa A. Weixelman, Polsinelli PC – KCMO, Kansas City, MO.

For Kendra Brown, Defendant: Christopher P. Rackers, LEAD ATTORNEY, Kaci R Peterson, Schreimann, Rackers & Francka, LLC, Jefferson City, MO.

For Jeremy Richards, Karlee Richards, Defendants: Patrick M. Martucci, LEAD ATTORNEY, Johnson, Vorhees & Martucci – Joplin, Joplin, MO.

JUDGES: NANETTE K. LAUGHREY, United States District Judge.

OPINION BY: NANETTE K. LAUGHREY

OPINION

ORDER

This case principally concerns whether Defendants, Windermere Baptist Conference Center and Kendra Brown, have insurance coverage under a Great American policy for potential liability in a suit pending in Morgan County. In that case, damages are being sought against them for injuries sustained by Karlee Richards after she fell while zip-lining at The Edge, a ropes course at Windermere’s Conference Center. Kendra Brown was an employee of Windermere, working at the Edge at the time of the accident.

In [*2] June 2014, Karlee Richards and her Searcy Baptist Church youth group were attending a summer camp at Windermere’s Conference Center, which was sponsored by Lifeway Christian Resources of the Southern Baptist Conference, d.b.a. Student Life.¹ Student Life contracted with Windermere to hold the church camp at Windermere’s facility in Missouri. Student Life had a liability policy with Great American, and Windermere was an additional insured on that policy. The additional insured endorsement provides that the additional insured, in this case Windermere, is only covered for “liability arising out of the ownership, maintenance or use of that portion of the premises leased to [Student Life] [by Windemere].” [Doc. 35-17, p.1 (“Endorsement”)]. Great American contends that Windermere is not entitled to coverage for Kaylee Richards’s injuries because Windermere did not “lease” the Edge to Student Life because the Edge was not specifically mentioned in Student Life’s written agreement with Windermere.

1 Lifeway Christian Resources of the Southern Baptist Convention does business as Student Life. The Court refers to Lifeway and Student Life interchangeably throughout the remainder of this Order as simply, “Student Life.”

Pending before the Court is Great American’s Motion for Summary Judgment. [Doc. 34]. For the following reasons, the Motion is granted in part and denied in part.

I. Undisputed Facts²

2 Unless otherwise noted, the facts recited are those which are properly supported and undisputed.

A. The Student Life [*3] Camp at Windermere

Windermere Baptist Conference Center is a large Conference Center on the Lake of the Ozarks with over 300 acres and 126 buildings, including group lodging, a dining hall, conference space, cabins, a chapel, and a gift shop. Windermere also offers various recreational facilities and activities at its campus, including the Edge. Organizations like Student Life use Windermere’s facilities for summer church camps.

Student Life had been conducting camps at Windermere for about ten years prior to its June 2014 camp. In January 2014, Student Life and Windermere executed an Amended Conference Contract. The “Amended Conference Contract,” provides:

Amended Conference Contract

. . .

EVENT INFORMATION

Event Name: Student Life #1 ’14 (June 2-6, 2014)

Expected #: 1000

Arrive Date: Saturday, May 31, 2014

(Check in begins at 3:00 PM. Rooms may not be available until 6:00 PM. . .)

Depart Date: Saturday, June 7, 2014

Lodging Check out time is 11:00 AM. Keys must be turned in by this time. . .)

LODGING INFORMATION

Lodging Type	Start	End	Nights	Units	Cost	Total
Per Person (Student Life Extra)	5/31/14	6/2/14	2	25	$17.50	$825.00
Per Person (Student Life Extra)	6/1/14	6/2/14	1	15	$17.50	$262.50
Per Person (Student Life [*4] ’14)	6/2/14	6/5/14	4	1,000	$70.00	$70,000
						Minimum
Total for Lodging: $71,137.50	$56,910.00

You will need to provide Windermere a rooming list (names of individuals occupying each room) and a copy of your conference or retreat schedule at the time of check-in.

. . .

MEAL INFORMATION

…	Minimum
Total for Meals: $76,570.00	$61,733.00

. . .

All guests eating in the dining hall must have a meal ticket or wrist band to be

admitted into the Dining Hall.

. . .

CONFERENCE SPACE INFORMATION

Facility/Room	Start	End	Cost
…
Wilderness Creek Auditorium (1500)	6/1/14 8:00am	6/6/14 12:00pm
…
Deer Ridge Conf Rm 1 (30)	6/2/14 3:00pm	6/6/14 12:00pm
…
Total for Conference Space: $0.00

. . .

Use of conference space and facilities begins at the start time stated in the contract. Conference or facility space usage time ends at the time stated in the contract and must be empty of all guests and guest items.

. . .

ENTITY OBLIGATION

Estimated Total Payment	$147,707.50
Total Minimum Payment	$118,643.00
…
Property Damage/Abuse

The above named group will have financial responsibility for any damages and excessive wear and tear it incurs to the Windermere grounds, facilities or property to the extent that such damage or excessive wear and tear arises [*5] from the negligence or willful misconduct of the above named group. Cleanup of any facilities or grounds that are excessively dirty will be the financial responsibility of the group.

[Doc. 35-5 (“Amended Conference Contract”)].

The parties’ Amended Conference Contract does not identify every building or activity that was available to campers during Student Life’s camp at Windermere. For example, the chapel, which is made available to any group attending a camp at Windermere, is not listed. In addition, the dining hall is not specifically listed under the “Conference Space Information” heading, despite the Amended Conference Contract listing a price for meals Windermere is to provide.

In addition, it is undisputed that Windermere offered various free recreational activities to its guest campers, including those who attended the Student Life camp. Windermere also offered some special recreational activities that required an additional fee and reservations. The Edge was one such activity. The Edge, a ropes and zip-lining course, is not accessible to campers at Windermere without special scheduling, the purchase of tickets, and the execution of a “Recreational Release” form. Student Life [*6] advertised Windermere’s recreational facilities, including “The Edge,” as available for use to its campers, and it was Student Life’s expectation that these facilities would be available.

In addition to the Amended Conference Contract, Student Life also completed a Facilities Request Form, and Windermere completed a Fax Back Response Sheet. [Docs. 40-3 and 40-4]. The Fax Back Response Sheet provides:

Student Life Camp

Windermere Conference Center

Recreation:

. . .

What are some free-time options on your campus?

o Sand Volleyball, Outdoor Basketball, Tennis, Mini Golf, Disc Golf, Pool, Hiking, The Edge (low/high ropes course), Paintball, Waterfront Activities (Inflatable water park, kayak, canoe, paddle boats, fishing, etc) (See attached PDF on available Recreation Packages).

[Doc. 40-4, p. 3].

B. Great American Insurance Policy

Student Life is the named insured on a Commercial General Liability policy with Great American. The policy requires that all requests for medical payments be made within one year of the accident that gives rise to the insurance claim. [Doc. 42-2, p. 62 of 166]. Also, when there is other valid and collectible excess insurance coverage, the Great American policy provides [*7] that Great American will have no duty to defend its insured against a claim for damages. [Doc. 42-2, p. 67-68 of 166].

Because Student Life was contracting with Windermere for its event, Windermere was named as an additional insured on Student Life’s Great American policy. The Certificate of Liability Insurance was issued by Great American on May 8, 2014, and Windermere accepted. The Certificate referenced Great American’s policy issued to Student Life, Policy No.: GLP 0310189 and stated:

Event: Student Life Event Dates: May 31-June 7 and June 14-20, 2014 Windermere Conference Center is included as Additional Insured on the General Liability policy, as per endorsement #CG 82 24, ed. 12/01, and on the Automobile Liability policy, as per endorsement #CA 8518, ed. 6/09.

[Doc. 35-7 (“Certificate of Liability Insurance”)].

C. The Underlying Lawsuit

The Searcy Baptist Church youth group was one of the groups of campers that attended Student Life’s camp at Windermere in June of 2014. Karlee Richards and the rest of the Searcy youth group were scheduled to ride The Edge on June 4, 2014. They paid Windermere an additional fee for this activity. While zip-lining at The Edge that day, Richards fell [*8] and was injured. Kendra Brown, a Windermere employee, was working at the Edge at the time of the accident.

Following Karlee Richards’s accident at The Edge, her father, Jeremy Richards, both individually and as Next Friend, brought suit against Windermere and several of Windermere’s employees, including Kendra Brown. This lawsuit is currently pending in the Circuit Court of Morgan County, Missouri and seeks damages for Karlee Richards’s physical injuries sustained at The Edge.

On November 17, 2015, Windermere and Kendra Brown tendered claims to Great American for defense and indemnity of the underlying lawsuit, seeking coverage as additional insureds under Student Life’s Great American policy. [Doc. 35-15 (“Demand Letter”)]. The letter also demanded Medical Payments coverage for Karlee Richards’s medical expenses. The demand for Medical Payments coverage was made more than one year after Richards’s June 4, 2014 accident at The Edge. [Docs. 35-15 (“Demand Letter”) and 35-18 (“Feb. 4, 2016 Denial Letter”)].

Great American responded to the parties’ demand letter with a request for additional information, including information regarding Windermere’s coverage through Church Mutual Insurance [*9] Company. Windermere’s insurer, Church Mutual, was defending Windermere in the underlying lawsuit. [Doc. 35-14, p. 1 of 7 (“Dec. 17, 2015 Letter”)]. In subsequent correspondence with Great American, Windermere also stated, “Church Mutual, the insurer for ‘Windermere’ has tendered its full two million dollars in liability insurance.” [Doc. 35-14, p. 1 of 7 (“Dec. 17, 2015 Letter”)].

In its February 4, 2016 denial letter to Windermere and Brown, Great American concluded that Richards’s accident did not arise out of the ownership, maintenance, or use of the premises Windermere leased to Student Life and denied Windermere’s tender. Great American’s letter also provided that:

[E]ven if indemnity coverage did exist for Windermere and Kendra Brown under the Lifeway Policy, it is also clear that that [sic] Great American owes no defense obligation of the pending lawsuit. Your December 17, 2015 correspondence renewing the tender of defense on behalf of both Windermere and Kendra Brown makes clear that Windermere is being afforded a defense by Church Mutual and that Kendra Brown is being defended by both Church Mutual and Shelter. . . . [T]he Social Service Agency General Liability Broadening Endorsement [*10] makes clear that any coverage that did exist would be excess over all other insurance, including both the Church Mutual and Shelter policies. The “Other Insurance” provision of the Lifeway Policy makes clear that, where its coverage is excess and a defense is being provided by another carrier, Great American owes no duty to defend. Hence, Windermere’s and Kendra Brown’s tender of the defense of the pending lawsuit is denied for this additional reason.

[Doc. 35-18, p. 6 (“Feb. 4, 2016 Denial Letter”)]. Great American also denied Brown’s tender, stating that she was not an additional insured on the policy. Id.

II. Discussion

Windermere seeks coverage in the underlying Morgan County lawsuit as an additional insured under the Great American policy issued to Student Life. After denying Windermere’s tender, Great American filed suit before this Court seeking a declaratory judgment regarding its obligations under the policy. Great American now moves for summary judgment on its requested declaratory judgment that: (1) no liability coverage exists under its policy issued to Student Life for any claims asserted in the underlying lawsuit against Windermere or Windermere’s employees, including Kendra [*11] Brown; (2) Great American owes no duty to defend Windermere, Kendra Brown, or any other Windermere employees in the underlying lawsuit; and (3) no medical payments coverage exists for Karlee Richards.

A movant is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The rule requires summary judgment to be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

A federal court sitting in diversity applies the choice-of-law rules of the state where the court sits, in this case, Missouri. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); American Guarantee Liability Ins. Co. v. U.S. Fidelity & Guaranty Co., 668 F.3d 991, 996 (8th Cir.2012). But a court need not undertake a choice-of-law inquiry unless an actual conflict of law is demonstrated. Prudential Ins. Co. of Am. v. Kamrath, 475 F.3d 920, 924 (8th Cir.2007) (citation omitted). Because the parties do not raise any actual conflict and because they do not dispute that Missouri law applies, the Court applies Missouri law.³

3 Plaintiff Great American contends no choice of law analysis is necessary because the outcome is the same under the law of the three states that could potentially apply: Missouri, Tennessee, and Alabama. Because Defendants Windermere, Brown, and the Richards contend Missouri law should apply, the Court concludes that the parties agree to the application of Missouri law.

A. Interpretation of Insurance Policies in Missouri

The interpretation [*12] of an insurance policy is a question of law to be determined by the Court. Mendota Ins. Co. v. Lawson, 456 S.W.3d 898, 903 (Mo. Ct. App. 2015). The ultimate goal of contract interpretation is to determine the intent of the parties. Bolinger v. Clarks Mut. Ins. Co., 485 S.W.3d 803, 809 (Mo. Ct. App. 2016). To determine the intent of the parties, the language in the contract is to be read according to its plain and ordinary meaning. Mendota, 456 S.W.3d at 903.

In interpreting an insurance policy, “[t]he key is whether the contract language is ambiguous or unambiguous.” Todd v. Mo. United Sch. Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007). If an ambiguity exists, the policy language will be construed against the insurer. Mendota, 456 S.W.3d at 904. “‘An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language of the policy.'” Fanning v. Progressive Northwestern Ins. Co., 412 S.W.3d 360, 364 (Mo. Ct. App. 2013) (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007)). “‘To test whether the language used in the policy is ambiguous, the language is considered in the light in which it would normally be understood by the lay person who bought and paid for the policy.'” Blumer v. Automobile Club Inter–Ins, 340 S.W.3d 214, 219 (Mo. Ct. App. 2011) (quoting Heringer v. Am. Family Mut. Ins. Co., 140 S.W.3d 100, 102 (Mo. Ct. App. 2004)). “Whether an insurance policy is ambiguous is a question of law.” Todd, 223 S.W.3d at 160.

“[T]he parties seeking to establish coverage under the insurance policy have the burden of proving that the claim is within the coverage afforded by the policy . . . even though they are denominated as defendants in a declaratory judgment action.” State Farm Fire & Cas. Co. v. D.T.S., 867 S.W.2d 642 (Mo. Ct. App. 1993).

B. Liability Coverage [*13] for Windermere as Additional Insured

The Great American policy’s declarations page lists Student Life as the named insured. Windermere is listed as an additional Insured as follows:

5. AUTOMATIC ADDITIONAL INSURED(S)

a. Additional Insured — Manager or Lessor of Premises

(1) This policy is amended to include as an insured any person or organization (hereinafter called Additional Insured) from whom you lease or rent property and which requires you to add such person or organization as an Additional Insured

***

(2) With respect to the insurance afforded the Additional Insured identified in Paragraph A.(1) of this endorsement, the following additional provisions apply:

(a) This insurance applies only to liability arising out of the ownership, maintenance or use of that portion of the premises leased to [Student Life].

[Doc. 35-17, p. 1 (“Endorsement”)]

Great American contends that the reference in Section 5.a.(2)(a) to “premises leased to you” refers to the specific places identified in the Amended Conference Contract between Windermere and Student Life. According to Great American, because the Edge is not listed, Windermere’s potential liability for the accident at the Edge is not covered. In contrast, Windermere [*14] argues that “premises lease” includes all the places on its property that Student Life campers were authorized to access, including the Edge.

1. Interpretation of Section 5.a.(2)(a)⁴

4 Defendants Brown and the Richards argue that the limitation of liability in Section 5.a.(2)(a) does not apply to Windermere because that section refers to Paragraph A.(1), and Windermere is identified as an Additional Insured by Paragraph a.(1). In other words, these Defendants reason that the parties must be referring to something other than the preceding paragraph a.(1) because capital A.(1) rather than lower case a.(1) was used. Defendants further reason that the only “Paragraph A.(1)” in the endorsement is located in Section 7A.(1) which limits liability to $300,000 for personal property and building damage rented to an additional insured. The Court rejects this argument because the reference to “A” instead of “a” is clearly a minor typographical error, and the Defendants’ strained interpretation of Section 7 in this context makes no sense. In Mendota Insurance Company v. Ware, 348 S.W.3d 68 (Mo. Ct. App. 2011), the Missouri Court of Appeals rejected a similar argument based on a typographical error because the “policy’s intended meaning, would be apparent to an ordinary reader.” Id. at 73. In the context of the Great American policy, it would not be reasonable for an ordinary reader to think that the use of A.(1), immediately after a section labeled a.(1), would be referring to 7A.(1) when 7A.(1) has nothing to do with identifying an additional insured and is not located in close proximity to the paragraph that does deal with the additional insured.

Whether an insurance provision is ambiguous is a question of law for the Court. General Am. Life Ins. Co. v. Barrett, 847 S.W.2d 125, 131 (Mo. Ct. App. 1993). A policy is ambiguous if it is “fairly open to different interpretations” because it contains “duplicity, indistinctness, or uncertainty of meaning.” Id. Importantly, there are two types of ambiguities in the law: patent and latent. Cent. United Life Ins. Co. v. Huff, 358 S.W.3d 88, 95 (Mo. Ct. App. 2011). “A patent ambiguity is detected from the face of the document, whereas a latent ambiguity is found ‘when the particular words of a document apply equally well to two different objects or some external circumstances make their meaning uncertain.'” Id. (quoting Jake C. Byers, Inc. v. J.B.C. Invs., 834 S.W.2d 806, 816 (Mo. Ct. App. 1992)).

a. Patent Ambiguity

The key phrase that this Court must interpret and apply is “portion of the premises leased to [Student Life].” “The words of a policy must be given their plain and ordinary meaning consistent with the reasonable expectation and objectives of the parties, unless it is obvious that a technical meaning was intended.” Bolinger v. Clarks Mut. Ins. Co., 485 S.W.3d 803, 809 (Mo. Ct. App. 2016). (internal quotation marks removed). Counsel for Great American argues that the term “lease” is understood by everyone [*15] to be a premise over which one has exclusive or near exclusive control. [Oral Argument Transcript, p. 3]. Therefore, the word “lease” would only cover the property over which Student Life had exclusive control by the terms of the Amended Conference Contract. In contrast, Windermere effectively argues that all of the documents surrounding the formation of the insurance policy demonstrate that an ordinary person would not intend the technical meaning of the term “lease,” i.e. exclusive possession, but instead, would expect it to cover all of the Windermere property to which Student Life campers had authorized access.

Under Missouri law, a lease gives exclusive⁵ use of property for a determined period of time to the lessee. Chubb Group of Ins. Cos. v. C.F. Murphy & Associates, Inc., 656 S.W.2d 766, 777 (Mo. Ct. App. 1983). The term “lease” gives rise to a landlord-tenant relationship, whereby the tenant has “exclusive possession of the premises as against all the world,” including the landlord. Santa Fe Trail Neighborhood Redevelopment Corp. v. W.F. Coen & Co., 154 S.W.3d 432, 439 (Mo. Ct. App. 2005) (internal quotation marks and citations removed). In contrast, “[a] license is only a privilege to enter certain premises for a specific purpose. Kimack v. Adams, 930 S.W.2d 505, 507 (Mo. Ct. App. 1996). The difference between a lease and a license is technical and difficult to determine. Santa Fe, 154 S.W.3d at 439.

5 Great American did not cite to a case that says “near exclusive” possession is enough, and the Court has found no such statement in Missouri law.

When there is a conflict between the technical definition [*16] of a term in a policy and what a reasonable person would understand, the lay definition controls unless it is obvious that a technical definition was intended. Mansion Hills Condo. Ass’n v. Am. Fam. Mut. Ins. Co., 62 S.W.3d 633, 638 (Mo. Ct. App. 2001). “To determine the [lay definition] of a term, courts will consult standard English language dictionaries.” Id. Merriam Webster’s New College Dictionary defines “leased” as “property occupied or used under the terms of a lease.” Webster’s II New College Dictionary (1995). “Lease” is defined as “a contract granting occupation or use of property during a certain period in exchange for a specified rent.” Id. “Premises” is defined as “land and the buildings on it.” Id. Those definitions do not indicate possession is exclusive.

In this context, did the parties intend the phrase “premises leased to you” to have a technical meaning–i.e. the formation of a landlord-tenant relationship between Windermere and Student Life whereby Student Life would have exclusive control over the property listed in the Amended Conference Contract, even as to Windermere? The Certificate of Insurance⁶ suggests otherwise. [Doc. 35-7]. It states:

Event: Student Life Event Dates: May 31-June 7 and June 14-20, 2014 Windermere Conference Center is included as [*17] Additional Insured on the General Liability policy, as per endorsement #CG 82 24, ed. 12/01, and on the Automobile Liability policy, as per endorsement #CA 8518, ed. 6/09.

This language does not suggest that the parties intended a landlord-tenant relationship being created between Student Life and Windermere. Rather, it suggests that Great American knew it was providing liability insurance to Windermere for an event — the camp — being held by Student Life on the Windermere campus. At a minimum, there is a conflict between the technical meaning of the word lease and what an ordinary person would understand under these circumstances, taking into account the dictionary definitions. In those circumstances, the technical definition does not control. See Mansion Hills Condo. Ass’n v. Am. Fam. Mut. Ins. Co., 62 S.W.3d 633, 638 (Mo. Ct. App. 2001).

6 Because the Certificate of Liability was issued to Windermere for the purpose of adding Windermere as an additional insured, “as per endorsement #CG 82 24 ed. 12/01,” the Certificate arguably became a part of the insurance contract. See Corder v. Morgan Roofing Co., 355 Mo. 127, 195 S.W.2d 441 (Mo. 1946) (finding certificate of insurance that doubled liability coverage, added insurance for property damage, and certified complete coverage of all operations in connection with the insured’s construction contract was part of the insurance contract); see also, Section 1.5.a.(1) of this endorsement:

This policy is amended to include as an insured any person or organization (hereinafter called Additional Insured) from whom you lease or rent property and which requires you to add such person or organization as an Additional Insured on this policy.

Further, State ex rel. State Highway Commission v. Johnson, 592 S.W.2d 854, 857-8 (Mo. Ct. App. 1979), says that a court may consider the circumstances under which the contract was made. These circumstances, as discussed below in the section on latent ambiguity, also support [*18] a finding that an ordinary person would expect to be covered for camp activities, not just for dorm rooms and conference space.

b. Latent Ambiguity

Even if there were no patent ambiguity, the Court can look at extrinsic evidence to determine if there is a latent ambiguity.⁷ Royal Banks of Mo. v. Fridkin, 819 S.W.2d 359, 362 (Mo. banc 1991) (“A latent ambiguity . . . must be developed by extrinsic evidence.”).

7 Although Defendants do not use the term latent ambiguity, this appears to be the crux of Defendants’ argument: that even if the “premises leased” term is not ambiguous on its face, it is ambiguous when applied to the facts at hand.

A latent ambiguity exists when a contract “on its face appears clear and unambiguous, but some collateral matter makes the meaning uncertain.” Id. In other words, an ambiguity is “latent if language, which is plain on its face, becomes uncertain upon application.” Gen. Am. Life Ins. Co. v. Barrett, 847 S.W.2d 125, 131 (Mo. Ct. App. 1993). For example, “[a] latent ambiguity may be one in which the description of the property is clear upon the face of the instrument, but it turns out that there is more than one estate to which the description applies; or it may be one where the property is imperfectly or in some respects erroneously described, so as not to refer with precision [*19] to any particular object.” Muilenburg, Inc. v. Cherokee Rose Design & Build, LLC, 250 S.W.3d 848, 854-55 (Mo. Ct. App. 2008) (quoting Prestigiacamo v. Am. Equitable Assur. Co. of N.Y., 240 Mo. App. 839, 221 S.W.2d 217, 221 (1949) (internal quotation marks omitted)). The case of Royal Banks of Mo. v. Fridkin, 819 S.W.2d 359, 362 (Mo. banc 1991) provides another example. In Royal Banks, the Missouri Supreme Court found a latent ambiguity in an otherwise unambiguous contract where the contract described a $10,000.00 promissory note but where no $10,000.00 promissory note actually existed. Id. Looking to extrinsic evidence, the court concluded, “Evidence of a promissory note that fits the description in the guaranty in all respects except for principal amount, coupled with the fact that a $10,000.00 note did not exist, is a collateral matter that renders the meaning of the guaranty uncertain. Once it became apparent that there was no $10,000.00 note but instead only a $50,000.00 note, a latent ambiguity existed.” Id.

Although parol evidence may not ordinarily be considered to create an ambiguity, the Court may consider such evidence to demonstrate the existence of collateral matters that create a latent ambiguity. Royal Banks of Mo. v. Fridkin, 819 S.W.2d 359, 362 (Mo. banc. 1991) (“A latent ambiguity is not apparent on the face of the writing and therefore, must be developed by extrinsic evidence.”). Therefore, the Court may consider extrinsic evidence to determine if a latent ambiguity exists. In this case, [*20] in the absence of a definition of “premises leased,” the surrounding facts suggest a latent ambiguity about what was intended by this term.

The plain language of the Amended Conference Contract alludes to Student Life’s use of and access to many more properties than merely conference space and lodging units during its event. For example, the Contract’s plain language contemplates Student Life’s use of a dining hall⁸ because the meals they contracted for were to be served there. Yet, the Contract does not specifically list the dining hall. Likewise, the Contract does not mention the chapel, despite Windermere’s title as Windermere Baptist Conference Center and its practice of contracting with church groups to conduct summer church camps. At a minimum, a jury could find the parties intended that campers would have access to the chapel, even though it was not listed. Finally, the Contract, like the Certificate of Insurance, refers to an “Event,” and Great American’s interpretation of the Contract considers only part of what was going to occur at that event.

8 The Contract’s “Meal Information” section provides start and end times for specific meals and alludes to Student Life’s use of the Dining Hall, stating, “All guests eating in the dining hall must have a meal ticket or wrist band to be admitted into the Dining Hall.” [Doc. 35-5, p. 2].

The Court also considers the parties’ Fax Back Response Sheet. [Doc. 40-4]. This document confirms that the purpose of the parties’ [*21] agreement was to host an event, referred to by the Sheet as “Student Life Camp.” [Doc. 40-4]. In addition, the Sheet shows the parties’ understanding that Student Life’s campers would have access to not only conference and dorm space, but also a church for worship, recreational fields, a gymnasium, hiking trails, a body of water for “waterfront activities,” and as is relevant in this case, The Edge ropes course:

What are some free-time options on your campus?

o Sand Volleyball, Outdoor Basketball, Tennis, Mini Golf, Disc Golf, Pool, Hiking, The Edge (low/high ropes course), Paintball, Waterfront Activities (Inflatable water park, kayak, canoe, paddle boats, fishing, etc) . . .

See generally [Doc. 40-4 and p. 3 (emphasis added)]. Because Student Life was contracting with Windermere for an event–to host a camp complete with various camp activities and facilities–the Court cannot find that a reasonable insured would have intended the term, “premises leased,” to limit its coverage only to liability arising out of conference rooms and lodging units.

There is no dispute that Student Life camper, Karlee Richards, was authorized to access The Edge at the time of her accident. Based on the Fax [*22] Back Response Sheet, alone, which suggests that Student Life would expect to have access to The Edge during its event, a reasonable juror could conclude that The Edge was a “portion of the premises leased,” which would entitle Windermere to coverage as an additional insured for its liability to Richards. Therefore, summary judgment must be denied.⁹

9 Although Defendants did not file their own motions for summary judgment, Defendants ask the Court to grant summary judgment in their favor, citing Fed. R. Civ. P. 56(f)(1), which provides: “After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant.” [Doc. 53]. Granting summary judgment for the non-movants under this rule is discretionary. Due to the fact that the focus of this briefing has been on Great American’s request for summary judgment, the Court declines to exercise its discretion under this provision. However, the Court will permit Defendants to file their own motions for summary judgment within 20 days of the date of this Order, not inconsistent with this order as to the issues ruled against them.

In the alternative, it is well-settled that an ambiguity within an insurance policy must be construed against the insurer. Krombach v. Mayflower Ins. Co., Ltd., 827 S.W.2d 208, 210 (Mo. banc 1992). As already discussed, an ambiguity exists as to what the parties intended “premises leased” to refer to. Therefore, construing this ambiguous term against Great American requires the Court to apply the meaning “which would be attached by an ordinary person of average understanding if purchasing insurance.” Id. An ordinary insured could reasonably understand this phrase to refer to the areas to which Student Life had access during its event at Windermere. Therefore, Great American’s Motion for Summary Judgement must be denied on this issue.

Great American’s cited authorities do not require a different outcome. First, the coverage disputes in many of Great American’s authorities center on how to interpret “arising out of,” [*23] without any dispute as to what properties the parties understood to be the “leased premises” covered by the additional insured endorsement at issue. In contrast to the facts before this Court, each of these cases involved an undisputed lease contract between a landlord and tenant, rather than an event contract between two organizations, and there was no dispute or ambiguity surrounding what property was meant by the “premises leased” or a similar term. See, e.g., Belz Park Place v. P.F. Chang’s China Bistro, Inc., 2015 WL 11145058 (W.D. Tenn. Mar. 23, 2015) (within context of landlord-tenant relationship, involving a lease contract, and no dispute about the leased premises); Liberty Mut. Ins. Co. v. Michigan Mut. Ins. Co., 891 N.E.2d 99 (Ind. Ct. App. 2008) (same); Northbrook Ins. Co. v. American States Ins. Co., 495 N.W.2d 450 (Minn. Ct. App. 1993) (same); Hilton Hotels Corp v. Employers Ins. of Wausau, 629 So.2d 1064 (Fla. Dist. Ct. App. 1994) (same); SFH, Inc. v. Millard Refrigerated Svcs., Inc., 339 F.3d 738 (8th Cir. 2003) (same).

For example, in U.S. Fidelity & Guar. v. Drazic, 877 S.W.2d 140 (Mo. Ct. App. 1994). the Missouri Court of Appeals considered additional insured coverage within the context of a landlord-tenant relationship and an unambiguous lease contract. The Drazics leased a portion of their basement to the Brewers, and the Drazics were named as additional insureds under the Brewers’ liability insurance policy. Id. at 141. After the Brewers’ employee fell in a parking lot near the Drazics’ building and injured herself, she filed suit alleging that the Drazics negligently discharged steam from their dry cleaning business, which formed ice on the parking area [*24] causing her fall. Id. at 141-42. The policy’s additional insured endorsement provided coverage to the Drazics as additional insureds “but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises designated below leased to the named insured.” Id. at 142-43 (emphasis added). The court considered the parties’ lease contract, which identified the premises leased as a “designated portion of a commercial building known and numbered as 418 Manchester Road, Ballwin, Missouri 63011, plus the area adjacent to the entrance of Brewer’s Quilt Shop for installation of their office.” Id. at 142. The court reasoned that the endorsement’s “plain language contemplated coverage for the Drazics as additional insureds for liability arising out of incidents taking place in that part of the building leased to the Brewers pursuant to the lease contract” and that there was no coverage because the accident at issue “took place on a parking area outside the building.” Id. at 143.

In contrast to Drazic, the Great American policy does not limit coverage to the “premises designated below” accompanied by a lease that specifically identifies an address or description of the area unambiguously covered by this [*25] clause. Also unlike the facts before this Court, there is no dispute or uncertainty in Drazic about what is meant by the “premises [leased].”

In addition, the Court rejects Great American’s reliance on Drazic for the separate proposition that “the purpose of additional insured endorsements obtained in a landlord-tenant context is to provide landlords protection from vicarious liability due to a tenant‘s action which takes place on the premises that the tenant has leased.” [Doc. 35, p. 16 (quoting Drazic, 877 S.W.2d at 143)]. Despite articulating this theory, the Drazic court did not resolve the coverage question based on vicarious liability: “The injury to Leary occurred due to alleged negligence on the part of the landlords’ business . . . and it did not occur on the premises leased to the [tenants].” Drazic, 877 S.W.2d at 143 (emphasis added). Furthermore, to the extent Great American contends that additional insured coverage is limited to acts for which Windermere is vicariously liable, the Court disagrees. The case from which this theory originated involved an insurance contract materially different from the one at issue here because the policy language in that case specifically limited coverage for additional insureds “against [*26] vicarious liability for the acts of the named insured.” See Hormel Foods Corp. v. Northbrook Property and Cas. Ins. Co., 938 F. Supp. 555, 558-560 (D. Minn. 1996) (quoting Harbor Ins. Co. v. Lewis, 562 F. Supp. 800, 802 (E.D. Pa. 1983) and explaining the origins and inapplicability of this theory). In contrast, coverage under the Great American policy cannot be said to turn on “vicarious liability” because the policy provision does not use this language.

As for other cases cited by Great American, these cases are distinguishable because they involve starkly different contract language than the term, “premises leased,” which this Court has found to be ambiguous. See, e.g., Lancaster v. Ferrell Paving, Inc., 397 S.W.3d 606 (Tenn. Ct. App. 2012) (involving different endorsement language: “liability arising out of your ongoing operations performed for the [additional] insured”) (emphasis added). Finally, Great American’s reliance on contract cases outside of the insurance context is misplaced because these cases also interpret contract provisions that are unlike the policy language at issue here. See, e.g., Once Upon a Time, LLC v. Chappelle Properties, LLC, 209 So. 3d 1094, 2016 WL 3031347 (Ala. 2016) (applying Alabama law to an indemnity agreement that did not contain the language “arising out of” or “premises leased” and did not involve insurance policy); Union Realty Co., Ltd. v. Family Dollar Stores of Tennessee, Inc., 255 S.W.3d 586 (Tenn. Ct. App. 2008) (interpreting contract language regarding the landlord’s and tenant’s obligations to procure insurance but no interpretation of insurance policy language at [*27] issue); Pilla v. Tom-Boy, Inc., 756 S.W.2d 638 (Mo. Ct. App. 1988) (interpreting indemnity provision in a lease that did not contain the language “arising out of” outside of insurance context and no dispute surrounding what constituted the leased premises).

Finally, the Court rejects Great American’s separate argument that whether a tenant has “shared” versus “exclusive” use of an area controls whether that area is part of the “premises leased” covered by an insurance endorsement. For example, in Colony Ins. Co. v. Pinewoods Enterprises, Inc., 29 F. Supp. 2d 1079 (E.D. Mo. 1998), a district court found insurance coverage for liability arising out of an area shared between the additional insured and other parties. In Colony, Bledsoe and Pinewoods entered a leasing contract in which Bledsoe (the lessee) leased portions of Pinewood’s campgrounds for a concert. Id. at 1081. Pinewoods was named as an additional insured under Bledsoe’s general liability policy with Colony Insurance. Id. During the concert, a rain storm caused many of the concert goers to take shelter on and under a deck attached to a lodge at the campground. Id. The lodge’s deck collapsed, injuring numerous concertgoers. Id. At issue was whether Colony Insurance’s coverage of Pinewoods as an additional insured extended to this accident. Id.

The court considered both the insurance [*28] policy endorsement and the parties’ lease contract. The endorsement provided additional insured coverage “but only with respect to liability arising out of your [Bledsoe’s] operations or premises owned by or rented to you.” Id. at 1082. The leasing contract specifically provided that Bledsoe “shall have the exclusive use of the Pinewoods Park” for a specific time period with the exception of the Lodge area. Id. at 1081-82. The contract also provided:

(5) LESSEE [Bledsoe], its customers, guests and invitees will share the Lodge area and facilities, i.e. store, gift shop, bait and tackle area . . . with the fishermen and permanent guests and any campers reserved prior to June 10, 1995.

Id. at 1082. The court concluded that Bledsoe leased the lodge area because the contract “specifically (albeit not exclusively) lease[d] the lodge area to Bledsoe,” and the endorsement provided that coverage extended to “the premises owned by or rented to you.” Id. at 1083 (emphasis added). The court concluded that “Colony’s additional insured endorsement extend[ed] coverage to Pinewoods for any liability arising out of the collapse of the lodge’s deck because the lodge was part of the premises leased to Bledsoe.” Id. In contrast to Great American’s contention that exclusivity [*29] is required, the Colony court still found the lodge premises to be “rented to” Bledsoe for purposes of additional insured coverage, despite the fact that the parties’ lease agreement provided that Bledsoe would “share” the lodge area premises at issue “with the fishermen and permanent guests and any campers.” Id. (emphasis added).

C. Liability Coverage for Kendra Brown or Other Windermere Employees

Great American also moves for summary judgment on the issue of coverage for Kendra Brown, Windermere’s employee. Great American argues that no coverage exists for Brown or any other Windermere employee because the Additional Insured Endorsement does not provide additional insured status and/or coverage for an additional insured’s employees. Brown is not identified anywhere in Student Life’s Great American policy nor is she listed as an Additional Insured on a Certificate of Liability. Therefore, any coverage for Brown would necessarily derive from her status as Windermere’s employee, and employees are not covered as insureds by the Additional Insured Endorsement.

Brown does not dispute that the Additional Insured Endorsement fails to provide coverage for an additional insured’s employees. Instead, [*30] Brown argues that Windermere should be considered a “Named Insured,” which in turn, makes the provisions applicable to “Named Insureds” also applicable to Windermere, including the provision that expands coverage for “Named Insureds” to their employees. The Court rejects this argument as based on an unreasonable interpretation of the policy.

Brown contends that the policy does not define “Named Insured,” and thus, it must be given the meaning that would be attached by an ordinary person. Brown reasons that an ordinary person would define “Named Insured” as a person or entity that is actually named as an insured. In turn, Brown says, because the Certificate of Liability names Windermere as an additional insured, Windermere must be a “Named Insured.” Brown next points to the following provision:

Throughout this Policy the words “you” and “your” refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a named insured under this Policy.

The word “insured” means any person or organization qualifying as such under

SECTION II — WHO IS AN INSURED.

***

[Doc. 42-2, p. 65 of 166 (“CGL Policy”)]. Brown contends that because she has established that Windermere [*31] is a “Named Insured,” “you” and “your” throughout the policy must also refer to Windermere. Next, Brown points to Section II of the policy:

SECTION II — WHO IS AN INSURED

2. Each of the following is also an Insured:

a. Your . . . “employees,” . . . but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business.

[Doc. 42-2, p. 65 of 166 (“CGL Policy”)]. Brown argues that if the Court accepts her contention as true that Windermere is a “Named Insured,” then “your” refers to Windermere, which means that Brown “is also an Insured” as “[y]our [Windermere’s] ’employee,'” according to Section II.2.a.

Brown’s argument fails because it is based on an unreasonable interpretation that Windermere is somehow a “Named Insured,” a status unsupported by the policy’s clear language.¹⁰ First, the policy distinguishes between mere “insureds” and those insureds that are “Named Insureds.” Compare “The word ‘insured’ means any person or organization qualifying as such under SECTION II — WHO IS AN INSURED” with “Throughout this Policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations, and any other person or organization qualifying [*32] as a named insured under this Policy.” [Doc. 42-2, p. 65 of 166 (“CGL Policy”)]. The fact that the policy differentiates between the two statuses shows that they are different terms, despite Brown’s contention that all insureds named are “Named Insureds.”

10 Furthermore, even if the Court accepted Brown’s contention that Windermere, an Additional Insured, was in fact, a Named Insured, Brown still has not shown that she is entitled to coverage under the policy as a Windermere employee because she has not alleged any facts or argument that her liability to Richards arose from “acts within the scope of [her] employment . . . or while performing duties related to the conduct of [Windermere’s] business.” Section II.(2).a.; [Doc. 42-2, p. 65 of 166 (“CGL Policy”)].

Furthermore, the policy’s plain language identifies which insureds are “Named Insureds.” First, the top of the policy’s Declarations page states:

NAMED INSURED LIFEWAY CHRISTIAN RESOURCES OF THE SOUTHERN BAPTIST CONVENTION

[Doc. 42-2, p. 29 of 166]. Therefore, because Student Life is “shown in the Declarations,” it is a “Named Insured.” The policy also includes a Named Insured Endorsement, which amends the Declarations by providing, “It is agreed that the Named Insured shown in the Declarations is amended to read as follows.” [Doc. 42-2, p. 41 of 166]. This statement is followed by a list of various organizations’ names related to Lifeway, which the endorsement provides are also included as Named Insureds. Id. Accordingly, it is reasonable to conclude that these organizations constitute “any other . . . organization qualifying as a named insured under this Policy” and therefore are also “Named Insureds.” [Doc. 42-2, p. 65 of 166 (“CGL [*33] Policy”)]. Based on the policy’s plain language, an ordinary person would understand “Named Insured” to refer to those insureds identified on the Declarations Page next to “NAMED INSURED” and those insureds identified in the Named Insured Endorsement. To interpret the policy to mean that anyone named as an insured, including those named as Additional Insureds, were also entitled to the same expansive level of coverage as the “Named Insureds” would be unreasonable.

In contrast to those entities that are clearly designated as “Named Insureds,” Windermere is not listed as a Named Insured on either the Declarations page or on the endorsement adding Named Insureds to the Declarations page. Instead, the policy’s only reference to Windermere is located in the Certificate of Liability it was issued prior to Student Life’s 2014 camp, which included it as an “Additional Insured,” providing:

Windermere Conference Center is included as Additional Insured on the General Liability policy, as per endorsement #CG 82 24, ed. 12/01, and on the Automobile Liability policy, as per endorsement #CA 8518, ed. 6/09.

[Doc. 35-7 (“Certificate of Liability Insurance”) (emphasis added)]. The Additional Insured Endorsement [*34] provides that it “is added to SECTION II — WHO IS AN INSURED, 5. AUTOMATIC ADDITIONAL INSURED(S).” [Doc. 35-17, p.1 (“Endorsement”).] Had Great American intended to make Windermere a “Named Insured,” it could have identified it as a “Named Insured” within the Certificate of Liability, or it could have provided that Windermere be added to the Named Insured Endorsement, rather than merely “Section II — Who is an Insured.” It did neither. For these reasons, an ordinary person would understand Windermere to be an “insured,” not a “Named Insured,” and thus, the words “you” and “your” throughout the policy do not refer to Windermere. Accordingly, the provision that expands coverage for “Named Insureds” to cover their employees as insureds does not apply to Windermere. Because Brown is not an insured under the policy and therefore not entitled to coverage, summary judgment is granted in favor of Great American on this point.

D. Duty to Defend

Great American also contends that it owes no duty to defend Windermere or Brown and it should be granted summary judgment on this claim. Under Missouri law, the duty to defend “arises whenever there is a potential or possible liability to pay based on [*35] the facts at the outset of the case and is not dependent on the probable liability to pay based on the facts ascertained through trial.” Columbia Cas. Co. v. HIAR Holding, L.L.C., 411 S.W.3d 258, 265 n.10 (Mo. 2013) (internal quotation marks removed). Because the Court has already found that Brown and other Windermere employees are not insureds under Great American’s policy and thus, not entitled to coverage, it follows that Great American has no duty to defend Brown.¹¹

11 This rationale was also articulated in Great American’s denial letter, which provided:

First, as to Kendra Brown, she is not listed as an additional insured on the Certificate of Liability Insurance, nor is there any indication on the [Certificate] that additional insured status is to be afforded to employees of Windermere. Finally, there is nothing in the specific form referenced on the Certificate . . . nor anywhere else in the Lifeway Policy, that affords additional insured status to Kendra Brown or any other Windermere employee. . . . Kendra Brown is simply not an additional insured under the Lifeway Policy such that Great American is denying the tender made on behalf of Kendra Brown.

[Doc. 35-18, p. 5-6 of 12 (“Feb. 4, 2016 Denial Letter”)].

As to whether Great American owes a duty to defend Windermere, the Endorsement makes clear that any coverage for Windermere as an additional insured would be excess, and the policy does not afford [*36] a defense when (1) its coverage is excess and (2) when the insured is being provided a defense by another carrier.¹² Under Missouri law, “‘an insurer’s duty to defend is purely contractual.'” Markel Am. Ins. Co. v. Unnerstall, 2009 U.S. Dist. LEXIS 3430, 2009 WL 57451 at *4 (E.D. Mo. 2009) (quoting Crown Ctr. Redevelopment Corp. v. Occidental Fire, 716 S.W.2d 348 (Mo. Ct. App. 1986)). “If there is no contract to defend, there is no duty to defend.” Id. In relevant part, the Endorsement provides:

5. AUTOMATIC ADDITIONAL INSURED(S)

a. Additional Insured — Manager or Lessor of Premises

***

(2) With respect to the insurance afforded the Additional Insured identified in Paragraph A.(1) of this endorsement, the following additional provisions apply:

***

(d) Coverage provided herein is excess over any other valid and collectible insurance available to the Additional Insured whether the other insurance is primary, excess, contingent or on any other basis unless a written contractual arrangement specifically requires this insurance to be primary.

12 This rationale was also articulated in Great American’s denial letter, which provided:

[E]ven if indemnity coverage did exist for Windermere and Kendra Brown under the Lifeway Policy, it is also clear that that [sic] Great American owes no defense obligation of the pending lawsuit. Your December 17, 2015 correspondence renewing the tender of defense on behalf of both Windermere and Kendra Brown makes clear that Windermere is being [*37] afforded a defense by Church Mutual and that Kendra Brown is being defended by both Church Mutual and Shelter. . . . [T]he Social Service Agency General Liability Broadening Endorsement makes clear that any coverage that did exist would be excess over all other insurance, including both the Church Mutual and Shelter policies. The “Other Insurance” provision of the Lifeway Policy makes clear that, where its coverage is excess and a defense is being provided by another carrier, Great American owes no duty to defend. Hence, Windermere’s and Kendra Brown’s tender of the defense of the pending lawsuit is denied for this additional reason.

[Doc. 35-18, p. 6 (“Feb. 4, 2016 Denial Letter”)].

The Additional Insured Endorsement’s Section 5.a.(2)(d) is clear that any coverage afforded is “excess over any other valid and collectible insurance,” regardless of the priority of coverage of the insurance–be it “primary, excess, [or] contingent.” In this case, Church Mutual had already tendered, or attempted to tender its policy limits on Windermere’s behalf in the underlying lawsuit. Therefore, although Windermere is entitled to coverage under the Great American policy, this coverage is excess.

The Other Insurance provision then states that where coverage is excess [*38] and the insured is being provided a defense by another carrier, Great American has no defense obligation. [Doc. 42-2, p. 66-68 of 166 (“CGL Policy”)]. Specifically, this provision provides:

SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS

***

4. Other Insurance

***

(2) When this insurance is excess we will have no duty under Coverages A or B to defend the Insured against any “suit” if any other insurer has a duty to defend the Insured against the “suit.” . . .

Windermere is currently being defended by its own insurance carrier, Church Mutual. Because the policy is clear that there is no defense obligation where coverage is excess and a defense is being provided by another carrier, which is the case here, the Court rejects Windermere’s contention that it is entitled to a defense based on a potential for coverage. Therefore, summary judgment is granted for Great American on its duty to defend.

E. Medical Payments Coverage

Finally, Great American moves for summary judgment as to the Medical Payments coverage for Richards’s medical expenses. In its November 17, 2015 letter to Great American, Windermere demanded the Coverage C Medical Payments limits for Richards. The provision governing Medical [*39] Payments provides in relevant part:

COMMERCIAL GENERAL LIABILITY COVERAGE FORM

***

Coverage C — Medical Payments

1. Insuring Agreement

a. We will pay medical expenses as described below for “bodily injury” caused by an accident:

***

provided that:

***

(b) the expenses are incurred and reported to us within one year of the date of the accident; and

***

[Doc. 42-2, p. 62 of 166 (“CGL Policy”)].

Great American argues that it is entitled to summary judgment as to this coverage because medical expenses were not reported to Great American within the time limit provided in Paragraph 1.a.(b). This provision provides that Great American will pay medical expenses for bodily injury “provided that . . . (b) the expenses are incurred and reported to us within one year of the date of the accident.” Section 1.a.(b) (emphasis added).

Richards’s accident occurred on June 4, 2014. Neither she nor anyone on her behalf made claim for Medical Payments coverage until Windermere’s November 17, 2015 demand letter more than one year after the date of the accident. Therefore, Great American is entitled to summary judgment as to the Medical Payments coverage.

III. Conclusion

For the reasons set forth above, Plaintiff Great American Alliance [*40] Insurance Company’s motion for summary judgment is granted in part and denied in part. [Doc. 34]. Summary judgment is granted on Great American’s liability coverage for Kendra Brown, individually, as an additional insured; Great American’s duty to defend Kendra Brown and Windermere; and Great American’s Medical Payments coverage for Karlee Richards’s injuries. Summary judgment is denied on Great American’s coverage for Windermere as an additional insured. It is further ordered that on or before July 25, 2017, Defendants may file any motions for summary judgment not inconsistent with this order as to the issues ruled against them.

/s/ Nanette K. Laughrey

NANETTE K. LAUGHREY

United States District Judge

Dated: July 5, 2017

Jefferson City, Missouri

Defendant loses an interesting product liability case. Usually, the replacement of a component by the owner of the product after the sale is an intervening act which releases the manufacture from harm. In this case, the change was not enough to overcome the initial negligent design.

Posted: August 29, 2016 | Author: Recreation Law | Filed under: Challenge or Ropes Course, New York, Zip Line | Tags: challenge course, negligent design, Product liability, Project Adventure, Ropes course, zip line | Leave a comment

The Zip Line was designed with bungee cord that was used to break the ride. The owner of the zip line replaced the bungee cord with another bungee cord that was allegedly shorter than the initial cord in the design by the plaintiff.

Sanchez v. Project Adventure, Inc., 12 A.D.3d 208; 785 N.Y.S.2d 46; 2004 N.Y. App. Div. LEXIS 13184

State: New York, Supreme Court of New York, Appellate Division, First Department

Plaintiff: Benjamin Sanchez, Also Known as Gerard Sanchez

Defendant: Project Adventure, Inc., Appellant-Respondent and Third-Party Plain-tiff-Appellant. Bedford Central School District, Third-Party Defend-ant-Respondent, et al., Third-Party Defendant

Plaintiff Claims: Product Liability Claim

Defendant Defenses: Intervening change in the product

Holding: For the Defendant

Year: 2004

The facts are simple. The plaintiff, a 15-year-old, was on a school trip to a challenge course. A bungee cord was used on the “zip wire” as a braking system. The bungee failed, hitting the plaintiff in the eye blinding him.

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

The course was designed by the defendant Project Adventure. The design incorporated a bungee cord to break the zip line. The owner of the zip line replaced the original bungee cord with another bungee cord, which was shorter.

The defendant admitted liability for the accident. However, they argued the owner of the zip line who had replaced it was the party with principal liability for the injuries.

The “zip wire” had been designed and inspected by defendant, which conceded liability for the accident, but, citing evidence that the bungee cord used on the “zip wire” had been replaced before the accident by a Bedford employee, contended that Bedford was principally responsible for plaintiff’s harm.

Normally, an intervening, act, such as replacing the cord, in many types of negligence claims is enough to shift the liability of the defendant to a third party.

Here the appellate court agreed with the jury and found that the design was negligent, and the shortness of the replacement bungee was not the cause of the accident. The use of a bungee as a breaking device was the cause of the accident, no matter the length.

Defendant urges that this finding was contrary to the weight of the evidence. We disagree. The evidence fairly interpreted permitted the jury to conclude that while Bedford had been negligent in utilizing a replacement bungee cord that was too short, this negligence merely echoed a design defect for which defendant was responsible, and thus did not appreciably augment the injury-producing risk.

The appellate court agreed with the jury and held the designer of the course liability for the injuries of the plaintiff.

So Now What?

As stated above, this is an odd case because of the intervening act. However, a bad or negligent design, no matter what the intervening act, will not release the defendant from liability.

Product liability cases are hard to win if the design is found to be negligent.

Retailers need to be aware that any act that modifies or changes a product in any way, other than how it arrived from the manufacturer may place them in the same position as a manufacture.

Examples of this are bindings that are mounted on skis or scuba tanks that are filled. In both cases, the general liability policies of ski shops and scuba shops usually understand and have coverage for this. Make sure if you are modifying a product other than how the manufacturer suggested that you understand the risks and have the coverage you need.

What do you think? Leave a comment.

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Sanchez v. Project Adventure, Inc., 12 A.D.3d 208; 785 N.Y.S.2d 46; 2004 N.Y. App. Div. LEXIS 13184

Posted: August 27, 2016 | Author: Recreation Law | Filed under: Challenge or Ropes Course, New York, Zip Line | Tags: challenge course, Project Adventure, Ropes course, zip line | Leave a comment

Sanchez v. Project Adventure, Inc., 12 A.D.3d 208; 785 N.Y.S.2d 46; 2004 N.Y. App. Div. LEXIS 13184

Benjamin Sanchez, Also Known as Gerard Sanchez, Respondent-Appellant, v. Project Adventure, Inc., Appellant-Respondent and Third-Party Plaintiff-Appellant. Bedford Central School District, Third-Party Defendant-Respondent, et al., Third-Party Defendant.

4571

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

12 A.D.3d 208; 785 N.Y.S.2d 46; 2004 N.Y. App. Div. LEXIS 13184

November 9, 2004, Decided

November 9, 2004, Entered

PRIOR HISTORY: [***1]

Sanchez v. Project Adventure, Inc., 260 A.D.2d 151, 687 N.Y.S.2d 359, 1999 N.Y. App. Div. LEXIS 3258 (N.Y. App. Div. 1st Dep’t, 1999)

CORE TERMS: bungee, cord, wire, zip, school district, design defect, injury-producing, replacement, appreciably, augment, echoed

HEADNOTES

Contribution–Apportionment of Liability among Joint Tortfeasors.–Evidence permitted jury to conclude that while third-party defendant school district had been negligent in using replacement bungee cord that was too short, this negligence merely echoed design defect for which defendant was responsible, and thus did not appreciably augment injury-producing risk.

COUNSEL: Iona Preparatory School, Carol R. Finocchio, New York, for appellant-respondent/appellant.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent-appellant.

O’Connor, McGuinness, Conte, Doyle & Oleson, White Plains (Montgomery L. Effinger of counsel), for respondent.

JUDGES: Concur–Nardelli, J.P., Mazzarelli, Lerner, Friedman and Marlow, JJ.

OPINION

[*208] [**47] Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about February 6, 2004, which, upon a jury verdict, as reduced, awarded plaintiff damages, unanimously affirmed, without costs.

The then-15-year-old plaintiff, while on a school field trip to a challenge course located at a facility operated by third-party defendant Bedford Central School District (Bedford), was standing [*209] in line for an elevated “zip wire” ride, when the bungee cord used as a braking device on the “zip wire” snapped and hit his right eye. The injury produced by the impact of the bungee cord caused plaintiff to go blind in that eye. The “zip wire” had been designed and inspected by defendant, which conceded liability [***2] for the accident, but, citing evidence that the bungee cord used on the “zip wire” had been replaced before the accident by a Bedford employee, contended that Bedford was principally responsible for plaintiff’s harm. The jury, however, found that although Bedford had been negligent, its negligence was not a substantial cause of plaintiff’s harm. Defendant urges that this finding was contrary to the weight of the evidence. We disagree. The evidence fairly interpreted (see Kennedy v New York City Health & Hosps. Corp., 300 A.D.2d 146, 147, 751 N.Y.S.2d 728 [2002]) permitted the jury to conclude that while Bedford had been negligent in utilizing a replacement bungee cord that was too short, this negligence merely echoed a design defect for which defendant was responsible, and thus did not appreciably augment the injury-producing risk.

The damage award, as reduced, did not deviate materially from what is reasonable compensation (see CPLR 5501 [c]) under the circumstances.

Concur–Nardelli, J.P., Mazzarelli, Lerner, Friedman and Marlow, JJ.

Association for Challenge Course Technology (ACCT), a DE corporation is being sued in Oregon for “promulgating deficient safety standards.” Issue is where the trial should be held, in Oregon where the plaintiff lives and was injured or in DE or IL where ACCT is located and does business

Posted: August 22, 2016 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Jurisdiction and Venue (Forum Selection), Oregon | Tags: ACCT, Association of Challenge Course Technology, challenge course, Giant Swing, Jurisdiction, Jurisdiction and Venue (Forum Selection), Professional Vendor Member, PVM, Ropes course, Vendor | Leave a comment

This case is still ongoing so who knows where it will go and how it will end. However, the relevant Jurisdiction and Venue issues are pretty clear. If you sell yourself or services online and deliver product or services in a state, expecting your name to be used with the services, you are probably doing enough business to be sued in that state.

Almquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79261

State: Oregon

Plaintiff: Cassidy Almquist

Defendant: Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation; Association for Challenge Course Technology, a Delaware non-profit corporation

Plaintiff Claims: (1) in promulgating standards for its certified inspectors, that allow them to certify challenge courses as safe when the inspector knows that untrained challenge course workers will operate the course, and (2) by failing to include in the inspection standards a provision directing an inspector to recommend that a course be closed until workers receive proper training

Defendant Defenses: Jurisdiction and Venue

Holding: for the Plaintiff

Year: 2016

This is not a final decision. The basis of this analysis may change or be changed at a later time by the trial court or an appellate court. This analysis is based on the facts and appellate opinion of this intermediate motion. However, the analysis and issues are relevant and important no matter the outcome.

Remember, any case where the plaintiff is rendered a paraplegic or quadriplegic by the accident is probably going to involve litigation because of the medical bills and future medical care. On top of that, worker’s compensation insurance companies are directed both by subrogation clauses and state law sometimes to recoup money paid out for injuries. The plaintiff in this case was working at the time of her injury so the likelihood of a lawsuit was probably absolute.

The decision is based on a motion to dismiss filed by the defendant Association for Challenge Course Technology (ACCT). The motion is based on the ACCT being sued in a state where they have no business presence so it is requesting a dismissal because it is the wrong jurisdiction and venue to sue ACCT under the law.

The plaintiff was working at the Bar-M-Ranch in Oregon as a camp counselor. Who she was working for was not really identified, and the Bar-M-Ranch is not identified as a defendant. Guessing, that means she was working for the Bar-M-Ranch, and they were not sued because they had worker’s compensation insurance, which protects them; actually prohibits an injured employee from suing the employer.

The plaintiff was injured when she fell from a “giant swing” and was paralyzed.

The Calvary Church Tri-Cities constructed the adventure course at the Bar-M-Ranch in Richmond Oregon. The camp director asked the plaintiff to demonstrate the Giant Swing. A camp employee, who was not trained to operate the Giant Swing, improperly connected the plaintiff to the swing. She fell 50’ to the ground.

Synergo, a defendant was an ACCT member and professional vendor member, PVM.

Synergo is in the business of, among other things, inspecting challenge courses. Synergo is located in Tigard, Oregon, and is a dues-paying member of ACCT. Synergo is the only accredited Professional Vendor Member (“PVM”) of ACCT in Oregon. Synergo’s founder and manager, Erik Marter, served on the Board of Directors of ACCT, and is the only certified ACCT professional inspector in Oregon. http://www.teamsynergo.com/our-story/ ; and http://www.acctinfo.org/?PVMList%20 (lasted visited May 20, 2016). Synergo conducts inspections of challenge courses according to ACCT standards. (Am. Compl. ¶ 28.)

Synergo was hired by Calvary Church Tri-Cities to inspect the challenge course, described by the court as an adventure course. Approximately a month before the accident defendant Synergo had sent an employee to inspect the course and giant swing. During the inspection, Synergo had discovered the Church, and the Bar-M-Ranch employees had not been trained in how to operate the giant swing. Synergo did not act on this information.

Synergo did not direct or recommend that Calvary close the Giant Swing until the operators of the swing were trained. If recommended by Synergo, Calvary would have closed the Giant Swing.

The lawsuit was filed against Synergo and ACCT. ACCT filed a motion to dismiss based on improper jurisdiction. The District Court’s denial of that motion is analyzed below.

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

In a jurisdiction fight, the plaintiff has to prove the court where the plaintiff chose to file the case has the legal right to hear the case. The term personal jurisdiction is used because the courts look at the defendants, even though a corporation, as an individual in who they deal with the state where the case is filed.

Jurisdiction is also a constitutional issue and controlled by US Supreme Court decisions and the States Long Arm Statute. Meaning the state passes a law, the long-arm statute that defines what is necessary to be bringing an out of state defendant into a local court within the state. The federal law is then applied to see if the state long arm statute violates federal law and as in this case.

The entire discussion is based on the constitutional right to due process. “Due process requires that defendants ‘have certain minimum contacts’ with the forum state ‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'”

Oregon Federal Courts are part of the 9^th circuit. The ninth circuit employs a three-prong test to determine if the defendant has had the minimum contacts to be subject to the jurisdiction of the court at issue.

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable.

Plaintiff bears the burden of satisfying the first two prongs. The burden then shifts to the moving defendant to present “a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.”

For tort claims the court applies a purposeful direction test when looking at the evidence.

For claims sounding in tort, courts in this circuit “instead apply a ‘purposeful direction’ test and look to evidence that the defendant has directed his actions at the forum state, even if those actions took place elsewhere

To prove the purposeful direction test the plaintiff must show the defendant purposefully directed his conduct toward residents in the state at issue. In the past that has meant the defendant placed his products in the stream of commerce with the expectation they would be purchased in the state at issue. That was easier to determine when catalogs were sent out from a warehouse, and products were mailed from the business warehouse to the state.

Now with services that are delivered over the Internet or based on webpages the test is complicated.

ACCT argued it did not direct its activities to Oregon.

By Declaration, Todd Domeck, Vice Chairman of the Board of Directors with ACCT, informed the Court that ACCT is a Delaware non-profit corporation with its principal place of business in Illinois. ACCT has no office or registered agent in Oregon, and no employees who reside in Oregon. Domeck also states that “ACCT was not consulted during the construction of the ‘Giant Swing,'” nor did ACCT provide training for “any employees of the Bar-M-Ranch who were to be operators of the ‘Giant Swing.'”

Based on the ACCT affidavit, the test then looks at other actions of the ACCT.

In light of those facts, the jurisdictional analysis here turns on the extent to which ACCT, as a non-profit trade association, acted by way of its website and its certification of Synergo to create a presence in Oregon. In aid of the Court’s analysis of ACCT’s purposeful direction in Oregon, the Court relies on the uncontroverted allegations of the Amended Complaint, the Micah Henderson Declaration, and the Internet websites of ACCT and Synergo.

The court then examined the ACCT website. The analysis is based on a sliding scale” “…likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of the commercial activity that an entity conducts over the Internet.”

…that a state may assert jurisdiction over a nonresident defendant “when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable to the State’s courts”.

ACCT described itself, as any company would. However, that description the court found stated that ACCT intended to sell its services in Oregon.

On its website, ACCT describes itself as “the world’s leading and largest American National Standards Institute (ANSI) Accredited Standards Developer focused specifically and solely on the challenge course industry.” http://www.acctinfo.org (last visited May 20, 2016). Through its website, ACCT represents that it “develops, refines, and publishes standards for installing, maintaining, and managing challenge courses; provides forums for education and professional development; and advocates for the challenge course and adventure industry.” ACCT’s website is an interactive commercial website, and ACCT uses it to advertise and sell its services and merchandise. Specifically, individuals and businesses may purchase memberships and ACCT’s standards book, apply and register for inspector certification courses and exams, and access challenge course related employment listings.

The court also found that 5% of ACCT membership was located in Oregon and 2.4% of its inspectors are based in Oregon, and over the past ten months 3.5% of its standards had been sold to Oregon residents.

Although the business ACCT conducts in Oregon is not overwhelming, the Court concludes that the nature and quality of ACCT’s contacts with Oregon via its website are sufficient to satisfy the purposeful direction test.

The court summed up its analysis this way.

In any event, even if ACCT’s reach into Oregon via its website was not sufficient, standing alone, to confer personal jurisdiction, the Court finds that ACCT’s reach into Oregon went beyond mere solicitation of members and sales through its website.

The court then looked at the relationship between the two defendants Synergo and ACCT.

The Court finds that ACCT directly targeted Oregon through the following actions: ACCT’s certification of Oregon-based Synergo as a PVM, advertising Oregon-based Synergo as a PVM (including recommending that consumers hire Synergo), and setting standards for the inspection of challenge courses, to which ACCT required Synergo to adhere. Specifically, ACCT established and promoted PVM designations for companies, including Synergo, that successfully complete the application and accreditation process, which can take up to 18 months to complete, and includes a site visit of one-to-three days in duration. http://www.acctinfo.org/page/PVMApplication (last visited May 20, 2016). ACCT describes the process as “a stringent review which determines an applicant’s adherence to ACCT Accreditation Policies and Procedures and its good faith commitment to ACCT Standards.”

ACCT even had a link on its website to the Synergo website. Synergo, in turn prominently displayed its membership in the ACCT on its website. The court found this relationship and promotion of Synergo established purposeful direction into Oregon. Thus the first prong of the test was met.

The second prong, the Relating to the Forum test was scrutinized next. This test looks at “the specific personal jurisdiction test requires a plaintiff to demonstrate that the claims arise out of, or are related to, defendant’s forum-related activities.” The courts analyze this prong with a “butt for test.”

This was a simple analysis in this case.

Almquist has alleged that “but for” ACCT promulgating deficient safety standards, she would not have fallen and sustained injuries in Oregon. Thus, the contacts ACCT had with Oregon–i.e., certifying Synergo and allegedly setting inadequate course inspection standards to which Synergo was required to adhere–are also the conduct that give rise to Almquist’s claims. Accordingly, the second prong of the specific personal jurisdiction test is satisfied here.

Courts and many long-arm statures give deference to the state where the accident occurred in tort claims. Consequently, this test is superfluous if the accident occurred in the state.

The final prong is a reasonableness test. This is a simple test that balances the needs of both parties and the costs, both in terms of time and money, in having the trial in one location or another. One way of looking at this was argued by the ACCT, that other forums are just as reasonable as Oregon to conduct the trial.

The court looked at the burden of litigating in Oregon to the ACCT. This test is very difficult to overcome if the court has found that the defendant has a relationship with the forum state. “…unless the inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction.” Consequently, the modern conveniences that allow companies to sell to the forum state are also such that allow litigation in the forum state to be easier.

The major hurdle that the ACCT could not overcome is the accident occurred in Oregon, and the injured plaintiff lived in Oregon.

The court then looked at Oregon’s (the people of the state of Oregon) in litigating in Oregon.

To make this determination, the Court focuses on the location of the evidence and witnesses. Caruth,. The evidence and potential witnesses reside in Oregon, Washington, California, and Illinois. As such, one party must litigate in a foreign venue. While ACCT argues that its witnesses are located in “other states,” it does not contend that its burden is greater than Almquist’s were she forced to litigate elsewhere. In addition, this factor is “no longer weighed heavily given the modern advances in communication and transportation.”

The next analysis is the convenience of litigating in Oregon. The fact that the plaintiff was a paraplegic would sufficiently increase the burden and cost of litigating in a foreign state. The court also must look at whether or not an alternative forum exists that would have a fair trial. Both Delaware and Illinois would meet this requirement.

However, looking at all the tests, the stronger requirements to litigate were in Oregon and the greatest burden would be placed on the plaintiff if she were forced to litigate out of Oregon.

Applying the seven-factor test, the Court concludes that exercising personal jurisdiction over ACCT is reasonable, and comports with fair play and substantial justice. The first, fourth, fifth, and sixth factors weigh in favor of Almquist, although the sixth factor is given little weight. The second and seventh factors weigh in favor of ACCT. The third factor is neutral. Although some factors weigh in favor of ACCT, it did not present a “compelling case” that exercising jurisdiction in this Court is unreasonable.

The ACCT motion was denied.

So Now What?

This case is far from over. Discovery is just starting and many more motions will be filed, and may be appealed before a settlement or trial. When faced with a paraplegic as a plaintiff, settlement is usually the preferred result because a jury can give unlimited an almost unlimited amount of money. On top of that the settlement can be structured to provide the best benefits to the plaintiff.

However, this case is another example of the cost of creating standards rather than best practices or something other forms of help. The idea would have also been a lot easier if ACCT had not “qualified” people to inspect courses. No one is “qualified” by anyone to inspect highways, buildings, ball parks, except by state law.

State law means an Engineer, etc., licensed by the state to inspect. This is the second case in three years where an inspector has been sued for allegedly missing something during an inspection. See Bad luck or about time; however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry.

If you are inspecting, you better identify every issue and let the client know. You cannot say it’s not that important it because it will become important. After that it is up to the client to deal with your inspection. Which may the cost the client a lot. See Serious Disconnect: Why people sue.

This case was not an “if” case, but a when a case. You make standards not based upon a national organization such as ANSI or ASTM; you can expect to be sued for how you created the standards and what the standards say.

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Do not waste paper if you are not going to do it right. Use the magic words needed for a release.

Posted: July 20, 2015 | Author: Recreation Law | Filed under: Challenge or Ropes Course, New York, Release (pre-injury contract not to sue) | Tags: challenge course, General Obligations Law, Negligence, New York, Release, Ropes course | Leave a comment

Challenge course in New York loses lawsuit because their release was poorly written. Besides New York General Obligations Law § 5-326 did not apply to a non-profit treatment facility.

Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

State: New York, Supreme Court of New York, Appellate Division, Fourth Department

Plaintiff: Carol Barone

Defendant: St. Joseph’s Villa

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the plaintiff

Year: 1998

All we know in this three paragraph decision is the plaintiff was injured when she fell while “participating in a “challenge’” course” owned by the defendant.

The trial court dismissed the plaintiff’s complaint because of the release she signed. The plaintiff appealed arguing that New York General Obligations Law § 5-326 prevented the defendant from using a release and appealed.

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

In the second paragraph, the court looked at New York General Obligations Law § 5-326 and held that it did not apply in this case because “defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment”

New York General Obligations Law § 5-326 states:

§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

[emphasize added]

The defendant was a non-profit residence for needy adolescents and provided mental health and community services. The challenge course was part of its therapeutic purpose.

The release was not voided because of the New York statute. The court on its own and not as part of the appeal, looked at the wording of the release at issue.

The release was void because under New York law, a release had to have clear and explicit language. The release used the language “plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiff’s] use of the premises, operations, or facilities of [defendant]”.

The court stated the release did not mention the word negligence. “Thus, the release may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence.”

If you read the release, you can see how the court could interpret the release to mean you can’t sue if you fall down in the hallway. However, if you fall down in the hallway because we tripped you, then the release was void because that was a negligent act not covered by the release.

The appellate court reversed the lower court because the language of the release was insufficient to top a claim of negligence because it did not use the word negligence in the release.

So Now What?

Figure it took three years for the appeal to be heard from the date of the accident, conservatively. Figure legal fees are roughly $50,000 a year more or less to get to this point.

Figure the owners/managers/directors of the defendant spent 500 hours fighting the lawsuit by prepping for and attending depositions, answering discovery, spending time with the attorneys, and worrying at night.

Think it was worth using a badly written release or would they have been better off spending a couple of thousand dollars have a release written properly?

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

Posted: July 15, 2015 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: challenge course, General Obligations Law, Negligence, New York, Release, Ropes course | Leave a comment

To Read an Analysis of this decision see: Don’t waste paper if you are not going to do it right. Use the magic words needed for a release.

Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

Carol Barone, Appellant, v. St. Joseph’s Villa, Respondent.

(Appeal No. 2.)

1430.

Supreme Court of New York, Appellate Division, Fourth Department

255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

November 13, 1998, Decided

November 13, 1998, Filed

Prior History: [***1] (Appeal No. 2.) (Appeal from Order of Supreme Court, Monroe County, Bergin, J. – Reargument.)

Judges: Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.

Opinion: [*973] [**783] Order unanimously reversed on the law with costs, motion for summary judgment denied and complaint reinstated.

Plaintiff commenced this action to recover for personal injuries that she sustained in a fall while participating in a “challenge” course owned by defendant. Supreme Court granted defendant’s motion for summary judgment dismissing the complaint based on a release signed by plaintiff before she was injured and, upon reargument, adhered to its determination. On appeal, plaintiff contends that the release is unenforceable under General Obligations Law § 5-326 and cannot be construed to bar a claim alleging defendant’s negligence.

General Obligations Law § 5-326 does not apply to this case because defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment” (General Obligations Law § 5-326; see, Lago v Krollage, 78 NY2d 95, 101; Gross v Sweet, 49 NY2d 102, 107; [***2] [*974] Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758; Chieco v Paramarketing, Inc., 228 AD2d 462, 463; Perelman v Snowbird Ski Shop, 215 AD2d 809, 810). Defendant is a not-for-profit entity that operates a residence for needy adolescents and provides mental health and other community services; it maintains the “challenge” course for therapeutic purposes as part of its mission to deliver mental health and other support services. Because the statute does not apply to this case, the release is not void thereunder.

We conclude, however, that the release may not be construed to exculpate defendant for its own negligence absent clear and explicit language to that effect (see, Gross v Sweet, supra, at 107-110; see also, Lago v Krollage, supra, at 99-100; Ciofalo v Tanney Gyms, 10 NY2d 294, 297). The release recites that plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiff’s] use of the premises, operations, or facilities of [defendant].” Defendant’s negligence is not mentioned. Thus, the release [***3] may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence (see, Bennett v Genesee Marina, 237 AD2d 908, 908-909; Machowski v Gallant, 234 AD2d 933, 934). (Appeal from Order of Supreme Court, Monroe County, Bergin, J.—Reargument.)

Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.

Plaintiff in a ropes course injury (Nitro Swing) fails because she assumed the risk

Posted: April 20, 2015 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, New York | Tags: assumption of the risk, challenge course, Nitro Crossing, Nitro Swing, Ropes course, YMCA, YMCA of Greater New York | Leave a comment

It is wonderful when the court looks at the facts and says plainly, no way you are going to win a case because this is a stupid claim, and your expert is clueless.

Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

State: New York, Supreme Court of New York, Appellate Division, First Department

Plaintiff: Kathleen Sajkowski et al

Defendant: Young Men’s Christian Association of Greater New York

Plaintiff Claims: negligent in failing to place shock absorbing material such as wood chips below the Nitro Crossing

Defendant Defenses: Assumption of the Risk

Holding: For the defendant

Year: 2000

This case is written so clearly that most of this article will be quotes from the opinion.

The plaintiff participated in a Wellness for Life weekend put on by the defendant YMCA. One of the activities was a Nitro Swing. The court described the Nitro Swing as:

This event involved nothing more than swinging from a rope. The rope dangled just about 1 1/2 feet from the ground in the center of an imaginary pit that was actually flat, bare dirt. Those who chose to participate in the Nitro Crossing would start out by standing on a log that was lying at ground level. Then, holding on to the rope, they would swing approximately five to seven feet to another log that was also lying at ground level.

Don’t you just love the first sentence! “This event involved nothing more than swinging from a rope.” It distilled the essence of the lawsuit and removed the marketing and hyperbole that clouds life and litigation now days.

While waiting for her turn the plaintiff saw several other participants lose their grip on the rope and fall. When she tried the Nitro Swing she also lost her grip on the rope and fell injuring her ankle.

The plaintiff sued. The trial court dismissed her lawsuit based on assumption of the risk, and the plaintiff appealed the decision.

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

The court said the plaintiff assumed the risk.

…by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” This encompasses those risks that are associated with the construction of the playing field and any open and obvious defects on it. Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks. Furthermore, where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant

Then the court states in very plain English:

It is also incontrovertible that the risks involved were not concealed and that plaintiff fully comprehended them since she had seen several other participants fall just moments earlier. Moreover, to the extent that the Nitro Crossing failed to have shock absorbing material beneath it, this was nothing more than an open and obvious condition of the playing surface, which, as noted, is not actionable….

The plaintiff, then through the opinion of her expert witness tried to convince the court that the defendant should have padded the ground beneath the swing. The court did not really appreciate her expert’s opinion.

The reason was the expert used by the plaintiff dug up standards for gymnastics for children under 12.

In seeking to demonstrate such violations, plaintiff submitted expert evidence that analogized the Nitro Crossing to a gymnastics event and pointed to the requirements for construction of playgrounds built for children under 12 years of age.

Then the court sort of slams the case closed.

She was only swinging from a rope with her body suspended just barely off the ground. The instructions for such an activity are simple and straightforward–hold the rope and swing. Similarly incongruous was plaintiff’s reliance on standards for the proper construction of playgrounds built for children under 12 years of age. The Nitro Crossing, after all, was not part of a children’s playground.

As much as appellate courts are allowed to, the above paragraph is pretty much an “up yours” in legalese.

So Now What?

Sure, Always Use a Release, but in this case for this particular event, it did not matter.

This is a situation where no matter how stupid the claim or how valid the defenses; the plaintiff still gave rolled the dice hoping for a very sympathetic judge or an easy settlement. The defendant and their insurance company, thankfully, stood up to the stupid claims and fought them; probably to a greater cost than any settlement.

Even in outdoor recreation, you get bad lawsuits. Thankfully, this one was fought all the way rather than settled.

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Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

Posted: April 16, 2015 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Legal Case, New York | Tags: assumption of the risk, challenge course, Nitro Crossing, Nitro Swing, Ropes course, YMCA, YMCA of Greater New York | Leave a comment

Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

Kathleen Sajkowski et al., Appellants, v. Young Men’s Christian Association of Greater New York, Respondent.

2180

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

February 1, 2000, Decided

February 1, 2000, Entered

COUNSEL: [***1] For Plaintiffs-Appellants: Charles H. Dobkin.

For Defendant-Respondent: Laura Getreu.

JUDGES: Concur–Nardelli, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.

OPINION

[*105] [**66] Order, Supreme Court, New York County (Lorraine Miller, J.), entered July 20, 1998, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The Young Men’s Christian Association of Greater New York (YMCA) sponsored a “Wellness for Life” weekend program for adults who wished to engage in exercise and outdoor activities. Among the activities [**67] that were offered at the program was an obstacle course that included an event called the Nitro Crossing. This event involved nothing more than swinging from a rope. The rope dangled just about 1 1/2 feet from the ground in the center of an imaginary pit that was actually flat, bare dirt. Those who chose to participate in the Nitro Crossing would start out by standing on a log that was lying at ground level. Then, holding on to the rope, they would swing approximately five to seven feet to another log that was also lying at ground level.

Plaintiff, Kathleen Sajkowski, an attendee [***2] at the weekend program, stood in line with several other participants and waited for her turn to swing on the rope. While she was waiting, she observed that several participants lost their grip and fell while swinging. When her turn came, she grasped the rope and began to swing. Approximately at the midway point of the imaginary pit, plaintiff lost her grip and fell, injuring her ankle. Plaintiff, alleging, inter alia, that defendant YMCA was negligent in failing to place shock absorbing material such as wood chips below the Nitro Crossing, commenced this action. No claim was made that the rope broke or was otherwise defective. Thereafter, defendant moved for summary judgment dismissing the complaint, asserting that plaintiff assumed the risk of participating in this activity. We conclude that the assumption of risk doctrine is applicable to plaintiff’s injury.

In Morgan v State of New York (90 NY2d 471, 484), the Court of Appeals reaffirmed the principle that, [HN1] “by engaging in a [*106] sport or recreational activity, a participant consents to those commonly [***3] appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” This encompasses those risks that are associated with the construction of the playing field and any open and obvious defects on it ( Maddox v City of New York, 66 NY2d 270, 277). Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks ( Morgan v State of New York, supra; see also, Turcotte v Fell, 68 NY2d 432, 439). Furthermore, where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant ( Simoneau v State of New York, 248 AD2d 865).

In considering plaintiff’s injury, it is apparent that the risk of falling while swinging from a rope is inherent in participation in such an activity (cf., Hofflich v Mendell, 235 AD2d 784; compare, Roska v Town of Cheektowaga, 251 AD2d 984). It is also incontrovertible that the risks involved were not concealed and that plaintiff fully comprehended them since she had seen several [***4] other participants fall just moments earlier. Moreover, to the extent that the Nitro Crossing failed to have shock absorbing material beneath it, this was nothing more than an open and obvious condition of the playing surface, which, as noted, is not actionable ( Maddox v City of New York, supra; see also, Sheridan v City of New York, 261 AD2d 528; Paone v County of Suffolk, 251 AD2d 563; Brown v City of New York, 251 AD2d 361; compare, Warren v Town of Hempstead, 246 AD2d 536 [defect concealed]; Cronson v Town of N. Hempstead, 245 AD2d 331).

Plaintiff attempts to avoid the foregoing analysis by establishing that the Nitro Crossing was constructed or operated in violation of prevailing industry standards. Specifically, it is alleged that shock absorbing material beneath the Nitro Crossing was required, as well as proper training for plaintiff with regard to her participation in the activity. These violations, it is asserted, exposed plaintiff to unreasonably enhanced risks, which she cannot be deemed to have assumed (see, Morgan v State of New York, supra, at 485; [***5] [**68] see also, Greenburg v Peekskill City School Dist., 255 AD2d 487; Clark v State of New York, 245 AD2d 413; Stackwick v Young Men’s Christian Assn., 242 AD2d 878). In seeking to demonstrate such violations, plaintiff submitted expert evidence that analogized the Nitro Crossing to a gymnastics event and pointed to the requirements for construction of playgrounds built for children under 12 years of age.

[*107] What becomes apparent is that the comparison of the Nitro Crossing to a gymnastics event is incongruous. ^* Simply stated, plaintiff was not dismounting from uneven bars, or doing a tumbling routine during a floor exercise–activities completely different in degree, complexity, and danger from the activity at issue here. Nor was she engaged in an activity that required any specialized kind of training, instruction, or skill. She was only swinging from a rope with her body suspended just barely off the ground. The instructions for such an activity are simple and straightforward–hold the rope and swing. Similarly incongruous was plaintiff’s reliance on standards for the proper construction of playgrounds built [***6] for children under 12 years of age. The Nitro Crossing, after all, was not part of a children’s playground.

* For the same reasons plaintiff’s claim that defendant should have provided a spotter is without merit. Moreover, since plaintiff immediately fell to the ground when she lost her grip on the rope, the presence of a spotter would not have prevented this accident.

We also note that the balance of the expert evidence failed to demonstrate that defendant violated any prevailing standards in constructing the Nitro Crossing (see, Simoneau v State of New York, supra; cf., Greenburg v Peekskill City School Dist., supra; Clark v State of New York, supra; Stackwick v Young Men’s Christian Assn., supra).

In view of the foregoing, Supreme Court properly granted defendant’s motion and dismissed the complaint.

Concur–Nardelli, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.

Colorado making new rules for operating Zip Lines & Rope Courses. Meeting February 6 to find out

Posted: December 30, 2014 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Zip Line | Tags: challenge course, Colorado, Regulation, Ropes course, x, y, z, zip line | Leave a comment

OPS AMUSEMENT RIDES AND DEVICES PROGRAM

Stakeholder Meeting Notice

Proposed Regulation Updates

The Division of Oil and Public Safety (OPS) intends to begin a permanent rule change process for the Amusement Rides and Devices regulations with the purpose of:

Adding language for the regulation of trampoline parks;
Improving current language in regulations regarding zip line and challenge course operations;
Discussing the possibility of adding language for patron responsibility;
Clarifying language for reportable injuries; and
Updating and/or including applicable standards and definitions, namely:

Adopting new standards from American Society for Testing and Materials (ASTM) F2970-13 (Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts); and
Updating the regulations to reflect the adoption of current ASTM standards.

The draft of the proposed rule changes will be available to download from our website after December 30, 2014.

Stakeholder Meeting Invitation

OPS will begin holding stakeholder meetings to discuss these proposed changes on February 6, 2015, at 1:30 pm in Conference Room 5C at the CDLE offices (633 17th Street, Denver, Colorado 80202).

If you plan to attend the meeting:

Please RSVP by sending an email to mailto:cdle_amusements; include your organization’s name and your contact information in your email.
When you arrive for the meeting, please check in on the 2nd floor, and then you will be directed to the 5th floor conference room.

If you cannot attend the meeting, we encourage you to submit feedback to Scott Narreau at mailto:scott.narreau or 303-318-8495.

Failing to let go, “volunteer” teacher falls of zip line & recovers $1,650,000

Posted: October 27, 2014 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Minnesota, Zip Line | Tags: challenge course, Linda Timmer, Platform, Ropes course, Shamineau Adventures, zip line | 2 Comments

No defenses, no release, just a trail and an appeal which the plaintiff lost. Have EVERYONE sign a release, including staff and volunteers of your guests

Timmer, et al., v. Shamineau Adventures, 2005 Minn. App. Unpub. LEXIS 576

State: Minnesota

Plaintiff: Linda Timmer and her husband Jere Timmer

Defendant: Shamineau Adventures

Plaintiff Claims: Negligence

Defendant Defenses:

Holding: For the Plaintiff, final damages of $1,650,000

Year: 2005

There is not a lot of factual information to be learned in this case. There are several procedural issues that can be helpful in understanding the law as well as identification of a gaping hole in the risk management planning for this defendant. A risk-management weakness that cost the defendant $1,650,000.

The plaintiff was a teacher employed by the school district that was attending the ropes’ course. The case does not state whether this is a worker’s comp subrogation case or whether the plaintiff was working at the time and covered by worker’s compensation.

The ropes course director asked the plaintiff if she wanted to assist with the students at the zip line. The court went into a detailed explanation of the zip line and how it operated. Basically, the zip line was 300 feet long going from a tower to a platform across a valley. The zip line sagged in the middle so the riders slowed as the approached the platform going uphill.

The plaintiff was given a few minutes of instruction and was shown how to detach riders from the zip line on the platform. A student arrived at the platform, and the plaintiff grabbed her and attempted to disconnect her from the zip line. The student started to drift backwards still attached, and the plaintiff grabbed her. The student and plaintiff drifter backwards to the low point of the zip line which left the plaintiff holding on 25’ above the ground. The plaintiff let go and fell suffering injuries.

The plaintiff sued, and the defendant lost at trial. The jury awarded $4.5 million to the plaintiff and split the damages 60% of the liability to the defendant and 40% to the plaintiff. This resulted in an award for the plaintiff of $2,783,949.

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

The issues on appeal were whether the defense had time to deal with the new plaintiff’s expert witness, whether the jury apportioned the damages correctly, whether a motion for the new trial should have been granted and whether all of this should have allowed the defense to have a continuance. All of those issues are discretionary. That means the judge has discretion to make decisions and unless those decisions are so grossly out of line the appellate court will not over turn them.

One issue that is worth examining, and that is the remittitur. A remittitur is a reduction in the amount awarded by the jury by the judge. The jury awarded $2,783,949. The judge reduced the amount to $1,650,000 in an effort to resolve some of the issues in post-trial motions. Normally, this is done by the judge because the amount awarded by the jury exceeds the amount the plaintiff asks for. The alternative is the judge orders a new trial. This places the plaintiff in a quandary. Try again at trial to get more money or take what the judge has offered.

Here the defense was arguing the amount awarded was excessive, and the other issues enumerated above and the plaintiff had to accept less money than awarded or go through the entire process again.

The appellate court agreed with the trial court on all of its decisions. None of the arguments presented on appeal by the defendant concerned defenses so it is difficult to determine what was a defense at trial.

So Now What?

The hole that is evident in this mess is the plaintiff did not sign a release. A release might have barred a claim by the plaintiff and by any insurance company or worker’s compensation insurance company under its subrogation rights. A release might have stopped this lawsuit. Minnesota has strict requirements on how a release should be written, and a badly written release would have not been effective.

Many times “staff” of the group coming to the event are skipped in the paperwork process. No one should be allowed on the property without signing a release. The staff could have signed up on line or when they arrived. Their releases could have been part that was handed back in when the parents signed releases for their kids. A release for a minor would not have worked in Minnesota if it went that far, but even so, releases may stop someone from suing who is unsure of the legal value of a release.

Always have a well-written release signed by everyone coming to your business, program or activity. That one release might have been worth $1,650,000, interest, costs and the legal fees to defend the case.

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Timmer, et al., v. Shamineau Adventures, 2005 Minn. App. Unpub. LEXIS 576

Posted: October 23, 2014 | Author: Recreation Law | Filed under: Legal Case, Minnesota, Zip Line | Tags: Appeal, Camp Shamineau, challenge course, Linda Timmer, Minneapolis, Minnesota, Minnesota Court of Appeals, Minnesota Supreme Court, Platform, Ropes course, Shamineau Adventures, Trial court, zip line | Leave a comment

Timmer, et al., v. Shamineau Adventures, 2005 Minn. App. Unpub. LEXIS 576

Linda Timmer, et al., Respondents, vs. Shamineau Adventures, Appellant.

A04-2458

COURT OF APPEALS OF MINNESOTA

2005 Minn. App. Unpub. LEXIS 576

December 13, 2005, Filed

NOTICE: [*1] THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.

SUBSEQUENT HISTORY: Review denied by Timmer v. Shamineau Adventures, 2006 Minn. LEXIS 73 (2006)

Subsequent appeal at, Remanded by Timmer v. Shamineau Adventures, 2007 Minn. App. Unpub. LEXIS 351 (2007)

PRIOR HISTORY: Morrison County District Court. File No. CX-03-261. Hon. John H. Scherer.

DISPOSITION: Affirmed.

COUNSEL: For Appellant: Robert G. Haugen, Jason M. Hill, Johnson & Lindberg, P.A., Minneapolis, MN.

For Respondent: Luke M. Seifert, Michael, T. Milligan, Heidi N. Thoennes, Quinlivan & Hughes, P.A., St. Cloud, MN.

JUDGES: Considered and decided by Willis, Presiding Judge, Randall, Judge, and Huspeni, Judge. ¹

1 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

OPINION BY: RANDALL

OPINION

UNPUBLISHED OPINION

RANDALL, Judge

This is an appeal from the district court order denying a motion for JNOV but granting a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering. After respondents accepted the conditional remittitur, appellant brought this appeal contending: (a) it is entitled to a Schwartz hearing based on a juror’s allegations of misconduct in reaching the verdict; (b) it is entitled to an unconditional new trial because of juror misconduct on the face of the special [*2] verdict form; (c) it is entitled to a new trial on liability due to the erroneous admission into evidence of an unqualified expert’s opinions; and (d) the court erred in allowing respondent’s expert to testify to opinions undisclosed prior to trial and denying appellant’s request for a continuance. Respondents filed a notice of review arguing that the conditional remittitur was unsupported by the evidence. We affirm on all issues.

FACTS

This appeal stems from a tort action brought by respondents Linda Timmer and her husband Jere Timmer (collectively “respondents”) against appellant Shamineau Adventures. Appellant is one of five subdivisions that are collectively referred to as “Shamineau Ministries.” Appellant’s subdivision consists of a ropes course that includes various elements and obstacle courses. One of the elements of the ropes course is a zip line that consists of a 300-foot cable that is secured to a tower structure on a hill, traverses a valley, and ends at a tree located at a lower point on the opposite side. The cable drapes across the valley, and gradually rises as it nears the landing area in front of the tree to which it is attached. The cable is threaded through [*3] a pulley system and a lanyard rope is attached to the pulley. At the end of the lanyard is a carabiner that has a hinged gate on one side that is spring loaded. A zip line rider is specially body-harnessed by camp personnel, and connected to another carabiner clip attached to the harness. Both carabiners are equipped with screw-lock devices and spring tension hinges that prevent them from opening accidentally.

To ride the zip line, the rider’s harness carabiner is attached to the zip line carabiner. The rider then steps from the higher end platform, gliding down the cable across the valley. The rider slows as the calibrated slack in the cable and the resulting incline brings the rider to a slow landing on the gradual upslope of the lower end hill. The harness carabiner is then disconnected from the zip line by an assistant stationed at the lower end of the hill, and the pulley and lanyard assembly is walked back up to the higher end platform by the rider using a tow-rope attached to the lanyard.

In October 2001, a group of students and teachers from the Little Falls School District went to Camp Shamineau. Included in the group was Timmer, a special education teacher in the Little [*4] Falls School District. On October 11, while “roving” the ropes course and generally supervising her students, Timmer was approached by Troy Zakariasen, the ropes course director. Zakariasen asked Timmer if she would be willing to help uncouple students at the receiving end of the zip line while he briefly attended to other duties. Timmer agreed, and Matthew Stanghelle, a Shamineau staff member, showed Timmer how to unhook the zip line riders. Stanghelle spent approximately five minutes with Timmer, showing her the procedure by demonstrating on incoming zip line riders. Stanghelle then left the landing area to assist other students, teachers, and staff. Although Timmer had been to Camp Shamineau three or four times prior to October 11, she had never attended any training relative to the ropes course, which typically includes two to three weeks of training riders.

After Stanghelle left, the next rider on the zip line was 14-year old Tracie Boser. When Boser arrived at the landing area, Timmer grabbed Boser and tried to unhook her from the harness. As Timmer tried to unscrew the safety harness, Boser began drifting backwards. Timmer instinctively grabbed onto Boser to prevent her from [*5] coasting back to the sender, but Timmer was unable to maintain her footing. Boser then glided back toward the middle of the zip line with Timmer hanging onto Boser’s harness. When they reached the mid-point, approximately 25 feet above the valley, Timmer was unable to maintain her grip on the harness, and she fell to the ground, sustaining serious injuries. Timmer brought this tort action alleging negligence on the part of Shamineau Adventures. Jere Timmer filed a claim for loss of consortium.

Four days prior to the commencement of trial, respondents served upon appellant a memorandum issued by Richard Gauger, an engineer retained by respondents to serve as an expert witness. Gauger’s memorandum concluded that, in his opinion, the landing area of the zip line was unsafe, and that the landing area should involve one or more trained persons working together to assist the rider in arriving safely. Appellants moved for an order excluding Gauger’s new opinions, or, in the alternative, for a continuance due to the untimely disclosure of the new evidence. The district court denied the motion, holding that the issue of the landing area could reasonably have been anticipated in light of the [*6] nature of the case.

A jury trial was held from June 21, 2004, through June 29, 2004. At trial, Gauger testified that he has a bachelor’s degree in industrial engineering, and that he is a consulting engineer licensed as a professional engineer. Gauger also testified that his work history included assisting with design and development of construction projects, and some investigative work with regard to recreational activities. Appellant objected to Gauger’s testimony on the basis that he was unqualified as an expert witness. The district court overruled the objection, and Gauger testified in accordance with his June 17 memorandum, that the zip line was dangerous because the slope exceeded the American with Disabilities Act (ADA) standards for ramps and other standards typically used on construction projects.

The jury heard extensive testimony concerning Timmer’s injuries and her present physical condition. Dr. Joseph Nessler testified that as a result of her accident, Timmer suffered “multiple injuries, including pelvic fractures, sacral or tailbone fractures, spinal fracture, left femur fracture, left tibia fracture, and right calcaneus fracture.” Dr. Nessler, Dr. Jeffrey Gerdes, [*7] and Dr. Gregory Schlosser all testified that Timmer suffers from various permanent disabilities as a result of the accident, and all agreed she will have problems lifting, bending, stooping, twisting, and standing. Timmer testified that she is medically disabled and was forced to retire from teaching as a result of the fall.

On the verdict form, the jury determined that appellant was 60% at fault and Timmer was 40% at fault. The jury awarded appellant damages in excess of $ 4.5 million, and after applying the mathematical formula called for by the jury allocation of fault, the net verdict to respondents was $ 2,783,949. Shortly thereafter, James Albrecht, a juror in the case, sent a letter to the district court and the attorneys for both parties. Albrecht stated that the jury had made a mistake in selecting the damages. According to Albrecht, the jury had selected the damages believing that respondents would recover 20% of the damages awarded; deriving this figure by taking appellant’s 60% fault and subtracting respondent’s 40% fault. Appellant subsequently moved the district court for a Schwartz ² hearing based on Albrecht’s letter. The district court first ruled the letter [*8] inadmissible, and then denied the motion for a Schwartz hearing.

2 See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960).

Following the district court’s order denying the request for a Schwartz hearing, appellant moved for a new trial and JNOV. The district court denied the motion for JNOV, but granted a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering, reducing the amount of the recoverable verdict from $ 3,000,000 to $ 1,650,000. Respondents accepted the conditional remittitur. Shamineau appealed. Respondents then served and filed their own notice of review objecting to the remittitur.

DECISION

Appellant argues that it is entitled to a Schwartz hearing based on Albrecht’s letter stating that the jury had made a mistake in selecting the damages. [HN1] “The standard of review for denial of a Schwartz hearing is abuse of discretion.” State v. Church, 577 N.W.2d 715, 721 (Minn. 1998). [*9]

In Schwartz, the supreme court established a method for inquiring into allegations of juror misconduct. 258 Minn. at 328, 104 N.W.2d at 303. A Schwartz hearing may also be conducted to correct a clerical error in a jury verdict. Erickson by Erickson v. Hammermeister, 458 N.W.2d 172, 175 (1990), review denied (Minn. Sept. 20, 1990).

[HN2] Although trial courts are urged to be fairly lenient in the granting of Schwartz hearings, their purpose is to determine juror misconduct, such as outside influence improperly brought to bear on jurors. The purpose of a Schwartz hearing does not include the correction of a miscomprehension by a juror or jurors. The assertion that the jury was confused and did not understand the effect of the verdict has been rejected as a basis for a Schwartz hearing. Jurors may not impeach their verdict on the basis that they did not understand the legal effect of that verdict.

Senf v. Bolluyt, 419 N.W.2d 645, 647 (Minn. App. 1988) (quoting Frank v. Frank, 409 N.W.2d 70, 72-73 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987)), review denied (Minn. Apr. 15, 1988).

[*10] Here, the district court reviewed the letter for purposes of the Schwartz hearing motion, and concluded that:

There has been no evidence of juror misconduct in this matter. The evidence received did not relate to actions outside of the deliberations that would constitute misconduct. On the contrary, the evidence reveals that during deliberations the jury may have misunderstood or misapplied the law as presented in the jury instructions. However, under Minnesota cases, this does not constitute juror misconduct such that a Schwartz hearing must be held.

The record supports the district court’s conclusion that there were no clerical errors and no evidence of jury misconduct. Albrecht’s letter fails to demonstrate evidence of juror misconduct, but, instead, indicates that the jury may have misapplied the law. The district court properly denied appellant’s request for a Schwartz hearing. See Senf, 419 N.W.2d at 648.

For purposes of the motion, appellant concedes that even if Albrecht is correct and that the jury misunderstood the instructions regarding comparative fault, that “misunderstanding” is not grounds for a new trial. Instead, appellant [*11] argues that the letter is evidence of a “compromise verdict,” and that a compromise verdict is grounds for a new trial. Appellant argues that because a compromise verdict constitutes juror misconduct, it is entitled to a Schwartz hearing.

[HN3] A “compromise” verdict occurs when the jury awards an amount that reflects a compromise between liability and proven damages. See Schore v. Mueller, 290 Minn. 186, 190, 186 N.W.2d 699, 702 (1971). When there is an indication that inadequate damages were awarded because the jury compromised between the right of recovery and the amount of damages, a new trial on damages is appropriate. Seim v. Garavalia, 306 N.W.2d 806, 813 (Minn. 1981).

We agree with the district court that [HN4] just a claim that the jury misapplied jury instructions in apportioning damages does not equate to a compromised verdict. Case law uniformly revolves around allegations by plaintiffs that damages were compromised too low based on proven liability. See, e.g., Vermes v. American Dist. Tele. Co., 312 Minn. 33, 44, 251 N.W.2d 101, 106-07 (Minn. 1977) (holding that because the jury simply misunderstood proof of damages and gave [*12] an inadequate award, it was not a compromise verdict);Schore, 290 Minn. at 190, 186 N.W.2d at 702 (remanding for a new trial because the jury’s award of damages was not supported by the evidence in light of the plaintiff’s proven damages and represented a compromise verdict); Kloos v. Soo Line R.R., 286 Minn. 172, 177-78, 176 N.W.2d 274, 278 (1970) (ordering a new trial on the basis that the jury’s award of inadequate damages constituted a compromise verdict). This case is novel. Appellant does not argue that the damages were inadequate, but rather argues that the damages awarded were in excess of the jury’s intent. We conclude that even if the jury did not fully grasp the mathematics of comparative negligence (an unfortunate but true syndrome that goes back decades to the origins of comparative negligence), plaintiffs and defendants have understood for all those years that if even after careful argument by attorneys in their closing arguments, juries do not exactly “get” comparative negligence. It is not “misconduct” and does not call for a Schwartz hearing.

Appellant next argues that in light of Albrecht’s letter indicating that the jury made [*13] a mistake in apportioning damages, its due process rights to a fair trial were violated. Appellant argues that except for purposes of the Schwartz hearing motion, the district court held that under Minn. R. Evid. 606(b), ³ the letter was inadmissible for purposes relative to other post-trial motions, such as a motion for a new trial, remittitur, or JNOV. Appellant argues that it cannot be granted a new trial for juror misconduct without the excluded evidence, and a Schwartz hearing is only available when admissible evidence of juror misconduct is already in the record to justify the proceeding. Thus, appellant contends that the district court’s ruling of inadmissibility under Rule 606(b) denied it the opportunity to prove jury misconduct through a Schwartz hearing, thereby depriving appellant of the opportunity to develop a record supporting its right to a new trial.

3 Minn. R. Evid. 606(b) states:

[HN5] Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or to dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

[*14] [HN6] The Minnesota Supreme Court set forth the rationale for the exclusion of juror testimony about a verdict or the deliberation process. See State v. Pederson, 614 N.W.2d 724, 731 (Minn. 2000). In Pederson, the supreme court explained: “The rationale for the exclusion of juror testimony about a verdict or the deliberation process is to protect juror deliberations and thought processes from governmental and public scrutiny and to ensure the finality and certainty of verdicts.” Id. The court further explained the rationale of rule 606(b) by noting the concern that jurors be protected from harassment by counsel after the verdict. Id. These are legitimate public policy concerns that support Minn. R. Evid. 606(b). The accepted fact that from time to time juries make mathematical mistakes in rendering their verdict does not rise to the constitutional level of a due process violation of a party’s right to a fair trial. In essence, this second argument of appellant is a remake of the first argument that there was a compromise verdict. Since we conclude there was not a compromise verdict, the judge properly did not order a Schwartz hearing based on either theory.

[*15] II.

Appellant argues that it is entitled to an unconditional new trial due to evidence of juror misconduct on the face of the special verdict form. Appellant argues that the special verdict form is evidence of misconduct because, appellant claims, certain listed damages are irreconcilable. Specifically, appellant points out that: (1) the jury awarded Linda Timmer $ 3,000,000 in future pain and suffering, but only $ 150,000 in past pain and suffering; and (2) Linda Timmer’s award of $ 150,000 for past pain and suffering is the same as Jere Timmer’s past loss of consortium. Appellant asserts that the only logical explanation for the jury’s irrational damages awards is that the jury carefully attempted to engineer respondents’ net recovery, which constitutes misconduct.

[HN7] Anew trial may be granted when, among other things, the verdict is not supported by the evidence, errors of law occurred at the trial, or the damages awarded are excessive. Minn. R. Civ. P. 59.01. The district court has the discretion to grant a new trial and this court will not disturb its decision absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). [*16] An appellate court will uphold the denial of a motion for a new trial unless the verdict “is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.” ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

The district court did take note of the difference between future and past pain and granted appellant’s motion for a new trial on the issue of future pain and suffering if respondents declined the court’s remittitur reducing that portion of the verdict from $ 3,000,000 to $ 1,650,000. However, respondents accepted the court’s remittitur, and that benefited appellants in the amount of $ 1,350,000. As an appellate court on review, we cannot now conclude that the remaining verdict is too high as a matter of law. Appellant is not entitled to a new trial based on its allegation that jury misconduct in calculating damages denied it of its right to a fair trial.

III.

Appellant argues that under the Frye-Mack, Daubert, and Kumho standards for expert testimony, it is entitled to a new trial because the district court erroneously admitted Gauger’s expert [*17] testimony. ⁴ [HN8] The decision to admit expert opinion testimony is within the broad discretion of the district court. Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977). To obtain a new trial based on evidentiary error, a claimant must show not only that the ruling was erroneous, but also that it resulted in prejudice. Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).

4 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Mack, 292 N.W.2d 764 (Minn. 1980); Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).

[HN9] Recently, the Minnesota Supreme Court reaffirmed its adherence to the Frye-Mack standard. See Goeb v. Tharaldson, 615 N.W.2d 800, 813-14 (Minn. 2000). ⁵ Under the Frye-Mack standard, a novel scientific theory may be admitted if two requirements are satisfied. [*18] Id. at 814. But if the expert’s opinions do not relate to “novel scientific methods,” a Frye-Mack analysis is not necessary. See State v. DeShay, 645 N.W.2d 185, 191 (Minn. App. 2002) (holding that a Frye/Mack analysis was not necessary where expert testimony based on the ten-point gang-identification criteria did not constitute novel scientific evidence), aff’d 669 N.W.2d 878 (Minn. 2003).

5 The court in Goeb also refused to adopt the principals of Daubert and its progeny, and, therefore, appellant’s reliance on the Daubert is misguided. 615 N.W.2d at 814-15.

Based on the scope of Gauger’s testimony, his opinions related to the safety of the zip line landing site, not the actual zip line itself, as claimed by appellant. An expert opinion as to whether the zip line landing area was unsafe, and whether there is something in the condition of the work site that is inherently dangerous does not involve a novel scientific theory. [*19] Gauger’s expert opinion testimony did not constitute “novel scientific testimony” and a complete Frye/Mack analysis was not necessary.

Although a Frye/Mack analysis was not necessary to be admissible, Gauger’s testimony must at least meet the requirements of Minn. R. Evid. 702. This rule provides [HN10] “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Minn. R. Evid. 702.

Appellant contends that the district court abused its discretion by admitting Gauger’s testimony, claiming Gauger was not qualified to be an expert witness. We affirm the district court. The district court found that: (1) Gauger is a professional engineer and has completed investigative work involving recreational facilities; (2) Gauger has reviewed hundreds of sites for safety purposes; and (3) Gauger has a background and familiarity with work sites and recreational facilities such as playgrounds and the Camp Snoopy amusement park at the Mall of America. The record [*20] reflects that Gauger visited the accident site on more than one occasion and viewed the zip line and landing area in use. The record reflects that Gauger reviewed a manual from the camp and criteria developed by the Association of Challenge Course Technology. Gauger testified extensively as to his opinion that the landing area was unsafe, and explained his reasoning. We find there was proper foundation for Gauger’s expert opinions, and the district court properly admitted his testimony.

IV.

Appellant argues that it is entitled to a new trial because the district court failed to grant appellant’s motion for a continuance after respondents’ late disclosure of Gauger’s opinion testimony. [HN11] When a district court denies a continuance at trial, this court reviews the ruling for a clear abuse of discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977). Denial of a continuance shall be reversed only if the decision prejudiced the outcome of the trial. Chahla v. City of St. Paul, 507 N.W.2d 29, 31-32 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993).

The record shows that, four days prior to the commencement of trial, respondents served [*21] upon appellant a memorandum issued by Gauger stating his opinions that the landing area was unsafe. In denying appellant’s motion for a new trial on the basis of the district court’s refusal to grant a continuance, the district court stated that “the late or new disclosures regarding Mr. Gauger’s testimony were really nothing more that a re-disclosure of what had previously been disclosed.” The court further noted that:

Previous disclosures indicated that Mr. Gauger felt that the workplace or landing site was unsafe because Linda Timmer was required to stand on a slope. This opinion did not change. The only disclosure that appeared to be at all new and different was a reference to the ADA slope percentage recommendations, and that Mr. Gauger adopted this slope percentage as a reasonable standard.

In addressing appellant’s claim that it could not respond to the new information because of the fact that its expert had already been deposed and the testimony was established, the court stated:

the fact of the matter is that [appellant’s] expert simply expressed the opinion that the zip line was safe and reasonable, and that the design of the landing area was necessary for [*22] the zip line to function properly. He did not offer any opinion as to what would have been a safe grade for the landing area of the zip line. If there had been a disagreement as to the actual percentage of slope or the standard to be applied, then there may be some basis for the argument. However, that is clearly not the situation at hand. Additionally, [appellant] was aware that the slope grade of the landing area was a basis for the negligence claim prior to the deposition of its expert witness, Bart Broderson. [Appellant] had the opportunity to ask Mr. Broderson his opinion relative to the degree or percentage slope of the landing area. No inquiry was made. [Appellant] cannot later claim prejudice when the subsequent disclosure differed little from the prior disclosure.

The record supports the district court’s decision. We conclude the district court properly denied appellant’s motion for a continuance.

As is their right, even though respondents agreed to the conditional remittitur, once appellant challenged the verdict, respondents cross-reviewed on the issue of the remittitur. Respondents argue that the district court abused its discretion by granting a conditional [*23] remittitur of the damages awarded for future pain and suffering. The district court did reduce the amount of recoverable damages by approximately $ 1,350,000. Respondents argue that reduction was uncalled for in light of the medical testimony.

[HN12] Generally, a district court has broad discretion in determining if damages are excessive and whether the cure is a remittitur. Hanson v. Chicago, Rock Island & Pac. R. Co., 345 N.W.2d 736, 739 (Minn. 1984). When a district court has examined the jury’s verdict and outlined the reasons for its decision on a motion for remittitur, an appellate court is unlikely to tamper with that decision absent an abuse of discretion. Sorenson v. Kruse, 293 N.W.2d 56, 62-63 (Minn. 1980).

In ordering the conditional remittitur, the district court explained that:

The jury awarded $ 150,000 for past pain and suffering. Approximately 2.7 years had transpired from the date of the injury to the date of trial. Therefore, the $ 150,000 award equates to $ 55,555.56 per year for her past pain and suffering. On the other hand, the jury was advised that Linda Timmer had a 29-year life expectancy. The award of $ 3,000,000 for future [*24] pain and suffering, divided among those 29 years, would result in an annual award of damages for future pain and suffering in the amount of $ 103,448.28.

The district court addressed all the of the doctors’ expert testimony on future pain and suffering, and concluded that “although the medical testimony spoke of the need for future care or treatment, and the possibility of some degeneration, there was no specific testimony regarding future pain and suffering associated with any future surgery, care, or degeneration. Thus, the district court concluded that the drastic difference between the annual damages for past pain and suffering and future pain and suffering were not supported by the record.

In support of their claim that the remittitur was an abuse of discretion, respondents cited an exhaustive list of problems or potential problems and potential problems that Timmer will experience as a direct result of the accident. Respondents present a good argument. The record does not jump out on appellate review, as a record where a lack of a remittitur would be a miscarriage of justice. But, as noted, the decision to grant or deny a conditional remittitur is a highly discretionary [*25] decision within the purview of the district judge’s examination and weighing of the evidence. We conclude the district court’s conditional remittitur was reasoned and supported by the record.

Affirmed.

Great photo essay of a Ropes course showing everyone with helmets designed to protect only from above.

Posted: June 12, 2014 | Author: Recreation Law | Filed under: Challenge or Ropes Course | Tags: challenge course, Climb, Climbing Helmet, Granville, helmet, Ohio, Recreation, Rock climbing, Ropes course, Tree | 3 Comments

Climbing helmets only protect from drops. What falls from the sky?

A photographer did a great job of showing a group of people having a great time on a rope’s course in Granville, Ohio. The course and setting are beautiful. Everyone is wearing helmets. All the helmets in the photographs are climbing helmets.

Climbing helmets were designed for rock climbing. They were designed to protect you from a rock falling on your head. They are also tested to make sure if you fall and wedge your head in a crack because of your helmet the helmet will come off.

The only things I can see in the photographs that might fall on the people’s heads are trees. If a whole tree falls on you, there is not much you can do. Dependent upon the size of the tree limb, the helmet may or may not help you much.

But why? Why do you wear a helmet on a rope’s course?

Based on this, shouldn’t all groups hiking in the woods wear helmets?

See Common Ground Canopy Tours take you into the treetops near Oberlin, with zip-lines, sky bridges and more (photo gallery)

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ANSI, ASTM, PRCA, ACCT & NSAA a mess of acronyms that are fighting each other, taking your industry down and wasting money.

Posted: June 11, 2014 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Zip Line | Tags: ACCT, American National Standards Institute, American Society of Testing and Materials, ANSI, Association for Challenge Course Technology, ASTM, ASTM International, challenge course, Industry Standards, National Ski Area Association, NSAA, PRCA, Professional Ropes Course Association, Ropes course, Standards, Trade association | Leave a comment

How much money could have been put into promoting the industry,educating the members and creating great opportunities? Millions I bet.

The PRCA, (Professional Ropes Course Association) recently announced that they had received approval from ANSI (American National Standards Institute) for its ropes or challenge course standards. The ACCT (Association for Challenge Course Technology) has appealed the issuance of the approval. (See ANSI/PRCA American National Standard).Wasting more time and money, in my opinion.

In the meantime, the NSAA (National Ski Area Association) received ASTM (American Society of Testing and Materials) approval for their standards. See ASTM Committee Approves Standard For Aerial Adventure Courses

I have no horses in this race; I have nothing to gain and more to lose with these comments. However, someone has to put it out there again, because the amount of money being wasted is ridiculous. So here goes…..again. (For a prior commentary about this feud see Stop Feuding, I doubt, move forward anyway; I think you can.)

What’s it all mean?

First the “standards” granting organizations.

ANSI “allows” organizations that meet its requirements to become standards granting organizations. One such organization is the ASTM. However, just because ASTM is granted the “opportunity” to create standards under the ANSI banner it does not mean that ANSI standards are better, more important or more controlling than ASTM.

ACCT was started 19 years ago to write standards. However, in my opinion, it was more of a good buddy club and the creation of the standards did not follow any known or legally acceptable way of creating them. PRCA was started in 2003 because ACCT would not let them be the “whatever name” to do something with ropes courses or something. Honestly, I’m not 100% clear on this, and I don’t really care.

NSAA is 52 years old and has been working with ANSI and ASTM for decades. The standards for operating ski lifts are ANSI standards and the standards for the rest of the ski industry such as skis, bindings, etc., are ASTM standards. NSAA has one employee who knows more about ANSI and ASTM than I would ever want to know, and consequently, they are fast efficient and done right.

I am a member of the ASTM and on the standards committee for ropes courses, but not active and have not voted for any of the NSAA ASTM, standards.

Still with me or have all the acronyms done you in.

Current Status

Right now, there are two organizations that have created standards for the ropes’ course industry, PRCA and NSAAthat follow the procedures and practice’s generally accepted in court for proof of standards by an organization. NSAA has opted to write its standards through the ASTM and the PRCA through ANSI.

ACCT is left out of the mix right now, so that organization is fighting PRCA’s ANSI standards. However, what I find comical, and indicative of the reasons for much of the wasted money in the industry, the ACCT has ignored the NSAA. (PRCA also for that matter.)

Speculation here, but don’t you think that if ACCT seriously thought only its standards were acceptable they would be appealing the NSAA’s standards created under the ASTM.

This leads me to believe that the appeal of the PRCA’s ANSI standards has nothing to do with the standards, just with the PRCA. (This is the third appeal of the PRCA’s ANSI standards; the ACCT lost the first two.)

By that I mean there is more bad blood here than in a blood bank with no power for a month.

So Legally what does that Mean?

Standards are the lowest acceptable level of doing something, which is presented in court to prove someone either met the standard or did not meet the standard of care. The standard of care is the measurement against which the jury determines whether you had a duty and then breached that duty to someone.

If you own a ropes course and someone is injured on the ropes course, the plaintiff now has several different ways to prove that you were negligent (breached the standard of care). Meaning your ropes course was not built correctly, or you operated the course incorrectly.)

First, there are the ACCT standards; however, those can easily be ignored at this point because they have not been approved by either the ANSI or the ASTM. The ACCT standards are getting better, I’ve been told, but basically, they were created in a way that creates credibility issues. That does not mean that they can’t be a way to prove you are negligent.

So now the plaintiff can argue that you failed to meet the PRCA or NSAA standards. If there is a conflict between the two, then the plaintiff has found the stick to beat more money out of you and your insurance company. (And the last thing this industry needs is a way to give more money away. (See: Payouts in Outdoor Recreation.)

Legal Advice (worth what you pay for it)

If you came to me and asked for advice about this situation this is what I recommend.

1. Today, get a copy of the PRCA and NSAA (ANSI and ASTM) standards and make sure you meet those standards. Yes, both sets. If there is a conflict between the two, justify why you have adopted one over the other in writing now, prior to a problem.

2. Every year have someone new come see your course. They don’t have to have some designation on their wall, unless it says architect or engineer (see below!). They should have experience to look at your course and your operation and make sure you are not making mistakes. Maybe trade off. You go to their course, and they come to your course.

a. Don’t have them give you a report, which is just proof you are negligent.

b. Don’t tell them why you do something, unless they ask.

c. Listen, listen to everything they suggest, ask questions and then see what you need to do.

3. Every couple of years have an engineer, architect, or contractor came out and look at your course. These are the people who know how courses should be built and have the education and experience to make sure it was built correctly and is still holding together.

a. Someone with 12 years in the industry may be able to tell you the testing strength of a bolt and whether the bolt and whatever it is attached to are working still. However, that knowledge is defeated with a degree from a college that says engineer or architect.

Pay attention, (If nothing else for the laughs.) and make sure you know what is going on because you as a ropes course owner or manager are the person that is going to take the beatings and suffer the most when the organizations created to support you spend your money fighting each other.

Good luck.

If nothing else I should get a plug for explaining all the acronyms in the industry!

For more articles on Ropes Courses see:

$400,000 challenge course settlement for shattered ankle http://rec-law.us/1lk77Q7

Architects, Engineers and Recreation, we need the first two, to be successful in the second http://rec-law.us/1gOSNeT

Assumption of the risk is used to defeat a claim for injuries on a ropes course http://rec-law.us/SDZlBt

Based on the article yes there was going to be a lawsuit http://rec-law.us/16JD0p3

Plaintiff raised argument in work/team building situation that they were forced to sign release http://rec-law.us/XiKRug

Plaintiff uses standards of ACCT to cost defendant $4.7 million http://rec-law.us/11UdbEn

Sad, Arizona school insurance no longer covering ropes courses. http://rec-law.us/1m5AhAN

The standard of care for a ropes or challenge course changes based on who is running it and who is using it (30) http://rec-law.us/L2tupe

When did journalism turn from telling a good factual story to trying to place blame for an accident? http://rec-law.us/1cNrxMv

What do you think? Leave a comment.

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

Call or Email me if you need legal services around these issues.

Email: Rec-law@recreation-law.com

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Facebook Page: Outdoor Recreation & Adventure Travel Law

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

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#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, PRCA, ANSI, ACCT, ASTM, ACCT, NSAA, Ropes Course, Challenge Course, Standards, Industry Standards, Trade Association, Professional Ropes Course Association, American National Standards Institute, Association for Challenge Course Technology, National Ski Area Association, American Society of Testing and Materials,

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Sad, Arizona school insurance no longer covering ropes courses.

Posted: May 14, 2014 | Author: Recreation Law | Filed under: Arizona, Challenge or Ropes Course | Tags: Arizona, Arizona Public Schools, challenge course, Payson Unified School District, PUSD, Ropes course | Leave a comment

Ropes courses are being torn down across the state because they can’t be insured

You can say bad attorneys, lousy program, bad instructors, freak accident. But the ropes course or challenge course industry is heading into the history books in Arizona. A lawsuit in Arizona against a public school will force all ropes courses in Arizona Public Schools to be removed.

Because of an accident in Tucson that forced the Arizona schools’ insurance company to pay out millions in a settlement, all ropes courses in Arizona must be removed from school property. Payson installed the ropes course with a federal grant.

In the past ten years I’ve found the following payouts due to ropes courses.

2008	$400,000	Sutter County California School District	Improperly tied into the course
2009	$4,700000	Alpine Towers International	Improper equipment and failure to train

$5.1 million in what we know about. Who knows how much has not been made public or settled.

And what really sucks about all this is ropes courses are not dangerous.

SeeRopes Course To Come Down

For more info on Ropes Courses & Litigation see:

Payouts in Outdoor Recreation http://rec-law.us/121q2k2

Architects, Engineers and Recreation, we need the first two, to be successful in the second http://rec-law.us/1gOSNeT

Assumption of the risk is used to defeat a claim for injuries on a ropes course http://rec-law.us/SDZlBt

Based on the article yes there was going to be a lawsuit http://rec-law.us/16JD0p3

Plaintiff raised argument in work/team building situation that they were forced to sign release http://rec-law.us/XiKRug

Plaintiff uses standards of ACCT to cost defendant $4.7 million http://rec-law.us/11UdbEn

The standard of care for a ropes or challenge course changes based on who is running it and who is using it (30) http://rec-law.us/L2tupe

$400,000 challenge course settlement for shattered ankle http://rec-law.us/1lk77Q7

When did journalism turn from telling a good factual story to trying to place blame for an accident? http://rec-law.us/1cNrxMv

What do you think? Leave a comment.

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A climbing wall or a rope’s course are structures. The components already have ASTM standards the sole issue is whether or not they were put together properly.

Posted: April 15, 2014 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Climbing Wall, Zip Line | Tags: ASTM, ASTM International, Building, challenge course, Climbing, Climbing Wall, Contractor, Engineer, Inspections, Recreation, Ropes course | Leave a comment

Operations need special reviews, but the structure is nothing that different from the building it is in or close too.

I’m always asked to recommend a person to check out a ropes course or a climbing wall. These people are looking for someone who may be self-appointed, maybe knowledgeable, (or maybe not) a person who makes a living check these.

I rarely refer them to someone with that title in the industry. I first ask them if a local contractor or engineer as ever looked at their course.

The structures have a different purpose than the carpenter or engineers are used to, but the construction should not be.

We keep forgetting that climbing walls and rope’s courses are just structures no different from a building. Each of the components has an ASTM standard. An Engineer or contractor can check to see if it was constructed properly and what needs to be done to get it up to speed.

We forget that the foundation of any building or anything attacked to the building is engineering.

By whom and how often should you have your course inspected?

Any time you feel insecure about your course or wall or your insurance company requires it.

Who should inspect your course or wall?

An engineer or contract should inspect your course at least every couple of years or as the engineer or contractor tells you. You can bring in someone with the industry credentials in the other years or with them. You can have someone come in and look at your operation anytime.

I tell my clients to find another operator and trade days. Go check out their course on one day and have them check out your course on another day. That will spot issues you may have, and you probably will learn some new ideas. No use having “inspectors” only who knows new ways of doing things.

I would suspect that if you are part of a larger organization, a college, university or camp that the company or college engineer will tell you when and how often they want the structure inspected.

A bolt is a bolt, whether it holds up a wall or a climbing wall.

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ANSI/PRCA American National Standard

Posted: March 22, 2014 | Author: Recreation Law | Filed under: Challenge or Ropes Course | Tags: American National Standards Institute, ANSI, Canopy Tour, challenge course, Mike Barker, PRCA, Professional Ropes Course Association, Ropes course, Steve Gustafson, zip line, Zipline | Leave a comment

Ziplines, Canopy Tours, Ropes Courses and Aerial Adventure Parks;

Now governed by a NEW ANSI National Standard

Popular Adventure Activities Are Governed by a New StandardThe Professional Ropes Course Association Announces ANSI Approved American National Standards for Ziplines, Rope Challenge Courses, Canopy Tours and Aerial Adventure Parks.

Professional Ropes Course Association (PRCA)

Rockford, Illinois

Contacts: Steven Gustafson, President of the PRCA, (815) 637-2969(815) 637-2969
Michael Barker, Vice President of the PRCA, (203) 464-9784(203) 464-9784

March 17, 2014

FOR IMMEDIATE RELEASE:

Popular Adventures: Ziplines, Canopy Tours, Ropes Courses and Aerial Adventure Parks are Now governed by a new ANSI National Standard

THE AMERICAN NATIONAL STANDARDS INSTITUTE (ANSI) APPROVES AMERICAN NATIONAL STANDARDS FOR ZIPLINES, CANOPY TOURS, AERIAL ADVENTURE PARKS AND ROPE CHALLENGE COURSES DEVELOPED AND MANAGED BY THE PROFESSIONAL ROPES COURSE ASSOCIATION (PRCA)

ANSI APPROVED National Standards Provide much needed Safety Guidance for the Largely Self-Regulated Industry

The standard Enables course owners and managers to conduct in-house training and Certify their own staff

On March 7, 2014 the American National Standards Institute (ANSI) announced (pg 17) their approval of the first consensus-based American National Standard for construction, inspection, maintenance and employee training/certification governing the Zipline, Canopy Tour, Ropes Challenge Course and Aerial Adventure Parks industry. The Professional Ropes Course Association (PRCA), the ANSI Accredited Standards Developer, will manage the new ANSI-PRCA Standards as Secretariat.

Says Mike Barker, Vice President of the PRCA Board of Directors: “This new ANSI Standard provides a consistent reference and much needed safety guidance for State Regulators, Inspectors, Insurers and Industry Professionals.” He adds, “Moreover, this standard enables course and tour owners/managers to conduct their own in-house training, certify their own staff and designate qualified persons to conduct course inspections – expensive services that previously required performance by a limited national vendor pool that couldn’t adequately service the entire industry.”

Steve Gustafson, President of the PRCA adds: “ANSI standards are subjected to an extensive vetting process, including consensus involvement by materially affected parties in the standards development process.” He adds, “The Professional Ropes Course Association (PRCA) is the Accredited Standards Developer and Secretariat of the ANSI approved Standards. Having worked for the past nine years to develop the standard, I’m proud of this accomplishment. The positive contributions that this standard brings to benefit safety for the public and for our industry are huge!”

The PRCA became the first ANSI Accredited Standards Developer (pg 17) for Ropes Courses, Ziplines, Canopy Tours and Aerial Adventure Parks in 2005. This accreditation ensures that the PRCA’s process for the development of the new standard was in compliance with ANSI Essential Requirements (E.R.) which include openness, lack of dominance, balance of industry representation, coordination and harmonization, transparency, public input, and avoid conflict or duplication of other previously announced candidate or published ANS.

Based on ANSI findings that no other candidate standards or ANS had been published to date for the industry, the PRCA Project Initiation Notification (PINS) was accepted and published by ANSI (pg 14). Since that time, the PRCA Candidate ANS underwent one informal and three (including the changes review) formal public review periods. Hundreds of volunteers presented over one thousand comments for consideration and review. During this process, the PRCA Consensus Body harmonized the Candidate ANS with European Standards, Australia/NZ Standards, ASTM, and other standards and regulations as needed. To further foster harmonization and balance, the PRCA offered the Association for Challenge Course Technology (ACCT) the opportunity to join with the PRCA and publish a joint standard, with fifty/fifty shared roles and profit sharing splits in addition to three voting positions on the PRCA Consensus Body, and one voting position on the continuous Standards Management Committee. On repeated occasions ACCT refused all offers of participation in the process.

It is the PRCA’s understanding that ACCT has chosen to file an appeal with ANSI per the appeal process afforded to all persons who have completed a standard developer’s appeal process. ACCT must show proof that ANSI did not follow their own procedures when approving the American National Standard. Further, ACCT states that they filed a successful appeal last July with the PRCA. This is partly true, yet disingenuous. While the ACCT appeal was granted on one out of three issues, this only meant that the PRCA had to clarify the fee structure for the PRCA appeal process, allowing interested parties an opportunity to file their appeals for a second time. This was conducted and no appeals were filed. In two previously filed appeals, both independent appeals panels found in favor of the PRCA stating that the procedures had been followed. This then cleared the way for the PRCA to submit the candidate standard for consideration this year, which was ultimately approved by ANSI as the American National Standard for the industry.

While the ACCT and others have the right to appeal and make accusations of an inability to participate, facts point to numerous invitations and public notices placed on industry listservs, the PRCA website, emails to the ACCT’s leadership and all of the ACCT PVM’s, emails to other materially affected Associations (BSA, ACA, GSA, etc), and published in the ANSI Standards Action Newsletter, to review and comment on the candidate standard, participate on the Consensus Body, and serve on the Standards management Committee or even participate in a joint standard. These facts go directly to an October 2006 decision by ANSI, whereas ANSI instructed the PRCA to view the ACCT as a materially affected Association and for both associations to make good faith efforts to harmonize with the ACCT in cooperative standard development. The PRCA did honor and respect ANSI’s decision by offering to share in a joint standard and serve on the PRCA Consensus Body, the ultimate gesture of goodwill and harmonization. Now, the ACCT must explain to ANSI why it has barred the PRCA from their process and other of their actions; and perhaps they will have to address their industry controlling actions of years past.

Meanwhile, the ANSI/ PRCA 1.0-.3 – 2014 stands as the ANSI approved American National Standards while any ACCT ANSI level appeal is conducted. This is now between ACCT and ANSI.

If you want more information on the American National Standard, what it is, the processes involved, how it applies, how it relates to the old PRCA and ACCT standards and how it saves you money go to www.prcainfo.org and click on Frequently Asked Questions on the

American National Standard ANSI/PRCA 1.0-.03 – 2014

If your materially affected association would like to serve on the PRCA Standards management Committee or if you just want more information, please contact us at info

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The standard of care for a ropes or challenge course changes based on who is running it and who is using it

Posted: June 4, 2012 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, New York | Tags: #AR, assumption of the risk, challenge course, Expert Witness, New York, Project Adventure, School, School district | Leave a comment

Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U

A school owes a higher degree of care to students then a non-school.

This decision was based on a motion for summary judgment filed by the defendants in this matter. The court denied the motion for summary judgment because there were numerous facts at issue. If there are facts that cannot be resolved or are at dispute a motion for summary judgment cannot be granted. The basis for denial was the motion filed by the defendants was deficient on several grounds.

The plaintiff was a student of the defendant. She was participating in a rope’s course described by the court as a challenge by choice event. She was injured when she fell off a low element wall, a wall, attempting to help another student over the wall. Her complaint alleged the defendants had actual and constructive notice of the dangerous conditions which lead to her injury.

The defendant argued the plaintiff assumed the risk of the activity, that it was not negligent in its supervision, and that it did not fail to provide a safe place.

So?

Because the defendant was a school, the court reviewed the standard of care that a school owed to a student.

Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The school’s standard of duty to a student is what a reasonable prudent parent would have done under the same circumstances. “The standard for determining whether a school was negligent in executing its supervisory responsibility is, whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision”

Schools are under a duty to adequately supervise its students and can be held liable for foreseeable injuries proximately caused by the failure of supervision. The standard of care for a school is higher than the standard of care for a commercial challenge course, meaning the school owes a higher degree of review and supervision to prevent injuries of students.

The plaintiff must show that the school had sufficient specific knowledge or notice of the dangerous condition or conduct and the breach of the duty to supervise was the cause of the injury.

In order to support its motion the defendants presented attorney affidavits, pleadings and a report from its expert witness. The report from the expert witness went through all the issues and said the school met the standard of care for each of those issues. However, the expert witness failed to attach or explain the standards, failed to identify any support or identify any support for his opinions, and the judge ignored the report.

The expert witness just can’t state a fact; the fact or opinion in the report must be substantiated by research, experience or other information in the field. Worse the expert kept referring to the work of a builder in the industry and then never produced any proof from the builder.

Neither the expert or either party has submitted a copy of the industry standards for Project Adventure, the number and positioning of spotters for the specific activity, the student to adult ratio, the instructions given to spotters, or the instructions to be provided to students participating in the event pursuant to the industry standard.

The next issue that the court quickly dismissed was the extension of the assumption of the risk defense labeled challenge by choice. A witness for the defense testified that the plaintiff was informed the event was a challenge by choice activity and what that meant. Meaning the plaintiff did not have to participate in any or all the activities.

However, the plaintiff came back and testified that during the activity she was told she had to undertake the wall. “However, when it came time for the wall activity, she and her friends were told they had to do it; they were not told that there would be repercussions if they did not do it.” This is enough to create a factual issue that defeats a motion for summary judgment.

This is another problem in this type of activity. The challenge by choice theory is usually repudiated by the defendant during the activity.

The court then listed all the issues the plaintiff had introduced that were still at issue.

Additional factual issues exist as to whether the supervision and spotting was adequate, whether the spotters were properly trained and instructed, and whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would have provided greater supervision to the students, including adequate placement and training of the appropriate number of spotters.

The defendant’s expert witness had covered all of these issues; however, he had failed to support his opinion in his report with the standards he constantly referred to:

Although Mr. Demas averred that the use of helmets, matting, or the belay system is not consistent with industry standards, he does not state what the industry standard is, and whether the failure to provide such safety equipment is inconsistent with industry standards.

The defendant’s motion for summary judgment was denied.

So Now What?

A school can rarely use a release to stop lawsuits. In New York, it may or not have worked anyway because of New York laws on releases. See States that do not Support the Use of a Release and New York Law Restricting the Use of Releases.

However, the assumption of risk defense could have been stronger if pre-activity work had been done to support the defense.

Assumption of the risk usually means the person assuming the risk knows about, understands and assumes those risks. See Assumption of the Risk. Those risks can be explained in a way that can be reproduced for the court such as a video. For a great example of how this can be done see the OARS Whitewater Orientation Video Series. These videos cover 90% of the risks of whitewater. A plaintiff would be hard-pressed to argue they did not know and understand the risks if they saw the videos.

To prove the client saw the videos, you can have the client prove it in writing. A written (express) assumption of the risk document is a great way to prove the plaintiff assumed the risk. The document can list the major risks and the ones that occur frequently. A jurisdiction and venue clause can be included as well as a statement saying the client has seen and understood the videos.

Plaintiffs will always argue that they were told incorrectly, did not understand, or as in this case, were told conflicting, things that lead to their injury. If your only defense is assumption of the risk, you must be prepared to prove that your version of what happened as well as well, the plaintiff knew and assumed is the only version.

You also need to make sure your expert witness report will meet the scrutiny of the court.

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Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U

Posted: June 4, 2012 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Legal Case, New York | Tags: assumption of the risk, challenge course, Mount Sinai, New York, New York City, Plaintiff, Ropes course, Sachem School District | Leave a comment

Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U

[**1] Rebecca Linthwaite, Plaintiff, – against – Mount Sinai Union Free School District and Sachem School District, Defendants. Index No. 09-26360

09-26360

SUPREME COURT OF NEW YORK, SUFFOLK COUNTY

2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U

December 28, 2011, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: summary judgment, supervision, industry standards, school district, spotters, adventure, spotting, teacher, rope, certified transcript, entitlement, notice, supporting papers, factual issues, issues of fact, extracurricular activity, citations omitted, participating, supervising, proximately, positioning, photograph, opposing, platform, matter of law, notice of claim, cross claims, issue of liability, claims asserted, prima facie

COUNSEL: [*1] For Plaintiff: GLYNN MERCEP & PURCELL LLP, Stony Brook, New York.

For Mount Sinai UFSD, Defendant: CONGDON, FLAHERTY, O’CALLAGHAN, et al., Uniondale, New York.

For Sachem SD, Defendant: DONAHUE, MCGAHAN, CATALANO, et al., Jericho, New York.

JUDGES: PRESENT: Hon. W. GERARD ASHER, Justice of the Supreme Court.

OPINION BY: W. GERARD ASHER

OPINION

Upon the following papers numbered 1 to 46 read on these motions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers (001) 1-14; Notice of Cross Motion and supporting papers (002) 15-34; Answering Affidavits and supporting papers 35-39; Replying Affidavits and supporting papers 40-41; 42-44; Other 45-46, (~~and after hearing counsel in support and opposed to the motion~~) it is,

ORDERED that motion (001) by the defendant, Mount Sinai Union Free School District, pursuant to CPLR 3212 for summary judgment dismissing the complaint on the issue of liability is denied; and it is further

ORDERED that motion (002) by the defendant, Sachem Central School, pursuant to CPLR 3212 for summary judgment dismissing the complaint and cross claims asserted against it on the issue of liability is denied.

In this action, the plaintiff asserts that the defendants, Sachem [*2] School District (“Sachem”) and Mount Sinai Union Free School District (“Mount Sinai”), were negligent in failing to provide proper instruction and safety equipment, and in supervising the plaintiff while she was taking part in a Mount [**2] plaintiff, after having climbed to the top of a ten foot climbing wall in a “challenge by choice” event, tried to help another student over the wail, lost her balance, and fell backwards. The plaintiff asserts that the defendants had actual and constructive notice of the dangerous conditions which caused her to sustain injury.

In motion (001), the defendant, Mount Sinai, seeks summary judgment dismissing the complaint on the basis that it was not negligent in supervising the plaintiff or in failing to provide a safe and padded area and to warn students not to help others over the wall. It further asserts that the plaintiff assumed the risk of the extracurricular activity, that it exercised reasonable care, that the plaintiff’s injuries were not the result of any breach of duty owed to the plaintiff, that the climbing wall was not located on the grounds of Mount Sinai, and that Mount Sinai did not maintain the wall.

In motion (002), Sachem seeks summary [*3] judgment dismissing the complaint and cross claims against it on the basis that it did not breach any duty to the plaintiff, and that its alleged negligence did not proximately cause the injuries claimed by the plaintiff.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 390 N.E.2d 298, 416 NYS2d 790 [1979]; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 144 N.E.2d 387, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N.Y.U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form…and must “show [*4] facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981]).

In support of motion (001), Mount Sinai has submitted, inter alia, an attorney’s affirmation; copies of the notice of claim dated July 2, 2008, summons and complaint, its answer with a cross claim asserted against Sachem, discovery demands, and plaintiff’s verified bill of particulars; a photograph of the wall; copy of the unsigned but certified transcript of the General Municipal Law 50-h hearing of Rebecca Linthwaite dated January 8, 2009; copies of the signed and certified transcript of the examination before trial of Rebecca Linthwaite dated September 21, 2010; the unsigned but certified transcript of Margaret Tuttie on behalf of Sachem dated November 29, 2010; the signed transcript of Karen Blumenthal on behalf of Mount Sinai dated November 29, 2010; and the affidavit of Kenneth R. Demas dated March 15, [*5] 2011, with attendant curriculum vitae.

In support of motion (002), Sachem has submitted, inter alia, two attorney’s affirmations; copies of the notices of claim dated July 2, 2008 with a copy of a photograph of a wall; a copy of the summons and complaint, defendants’ respective answers with cross claims, Mount Sinai’s answer to the cross [**3] claim, plaintiff’s verified bills of particulars: photographs of the wall; a copy of the signed General Municipal Law 50-h transcript of Rebecca Linthwaite dated January 8, 2009; copies of the signed transcript of the examination before trial of Rebecca Linthwaite dated September 21, 2010; Mission Statement by Sachem; the signed and certified transcript of Margaret Tuttle on behalf of Sachem dated November 29, 2010; another copy of the Mission Statement of Sachem with annexed letter from Karen Blumenthal, undated, and a copy of the student accident report signed by Karen Blumenthal; the signed transcript of the examination before trial of Karen Blumenthal on behalf of Mount Sinai dated November 29, 2010; the affidavit of Kenneth R. Demas dated March 15, 2011 with attendant curriculum vitae; and a demand and response to the demand for discovery and [*6] inspection.

Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (Mirand v City of New York, 84 NY2d 44, 637 N.E.2d 263, 614 NYS2d 372 [1994]). The school’s standard of duty to a student is what a reasonable prudent parent would have done under the same circumstances (NY PJI 2:227). “The standard for determining whether a school was negligent in executing its supervisory responsibility is, [w]hether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision” (Mirand v City of New York, 190 AD2d 282, 598 NYS2d 464, aff’d 84 NY2d 44, 637 N.E.2d 263, 614 NYS2d 372 [1994]; see, In the Matter of the Claim of Jane Doe v Board of Education of Penfield School District, et al, 2006 NY Slip Op 51615U, 12 Misc3d 1197A, 824 NYS2d 768 [Sup. Ct. of New York, Monroe County 2006]).

As set forth in Bowles v The Board of Education of the City of New York and the City of New York, 15 Misc. 3d 1110[A], 839 N.Y.S.2d 431, 2007 NY Slip op 50573[U] [Supreme Court of New York, Kings County 2007], “Schools are under a duty to adequately supervise the students [*7] in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision…. To find that a school district has breached its duty to provide adequate supervision, a plaintiff must show that the district had sufficient specific knowledge or notice of the dangerous conduct and that the alleged breach was the proximate cause of the injuries sustained…. Moreover, when an accident occurs in so short a span of time that even the most intense supervision could not have prevented it any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted.” citing, Ronan v School District of the City of New Rochelle, citations omitted, quoting Mirand v City of New York, citations omitted, Nocilla v Middle Country School Dist., citations omitted.

Based upon the evidentiary submissions, it is determined that neither Sachem nor Mount Sinai have established prima facie entitlement to summary judgement dismissing the complaint due to the existence of factual issues in the moving papers which preclude summary judgment.

Kenneth Demas set forth in his affidavit that he has been [*8] in the adventure education field since 1982 and has been certified as a national trainer for Project Adventure for 23 years. He set forth the transcripts and materials reviewed and states that the level of supervision was appropriate and in keeping with the nature of the activity. He stated that the Sachem teacher. Margaret Tuttle, was in a position which enabled her to move to either direction in front of or behind the wall, and permitted her to move to an appropriate position in the event that additional spotting was required. He states that both teachers were placed appropriately. He continues that both teachers responded to the loss of balance of Rebecca [**4] in addition to other spotters being present. He continues that the instructions given by Ms. Tuttle was appropriate and in keeping with the accepted model for instruction on this activity. While explaining the challenge to the group, Ms. Tuttle walked the group to the front and rear of the wall and explained the responsibilities associated with each side. She was clear that students were spotters from beginning to end. Demas continues that instruction in any Adventure Education program never explains how to do a particular challenge, [*9] as students, while working together, are to utilize previously learned concepts and experiences to solve the problem. He continues that the wall is considered a low element, and that spotting is the accepted safety procedure for the activity. The use of helmets, matting, and the belay systems is not consistent with industry standards, Demas continues that level 2 certification, which both Karen Blumenthal of Mount Sinai and Tuttle have, involves both a written test and hands on application of skills, such as quality and clarity of instructions, as well as spotting technique, positioning, and practice.

The affidavit of Mr. Demas is not supported by admissible evidence. Expert testimony is limited to facts in evidence (see Allen v Uh, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 2011]; Hornbrook v Peak Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002]; Marzuillo v Isom, 277 AD2d 362, 716 NYS2d 98 [2d Dept 2000]; Stringile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 1988]; O’Shea v Sarro, 106 AD2d 435, 482 NYS2d 529 [2d Dept 1984]), which evidence has not been provided herein. Neither the expert or either party has submitted a copy of the industry standards for Project [*10] Adventure, [*11] the number and positioning of spotters for the specific activity, the student to adult ratio, the instructions given to spotters, or the instructions to be provided to students participating in the event pursuant to the industry standard. Although Demas avers that teacher training involves spotting technique, positioning and practice, he does not set forth the standards for the same or aver that such was utilized during the event in which the plaintiff sustained injury. The exact number of students participating has not been established, as Ms. Blumenthal stated she had about fifty students in her two classes and was unsure how many students attended the field trip, but thought it was about 40 students. There was only one teacher supervising the students until Ms. Blumenthal arrived at that particular event, immediately prior to the plaintiff’s fall. Although the defendants claim that Project Adventure is an extracurricular activity and that the plaintiff assumed the risk of the activity, the plaintiff testified that this class was taken in place of the usual physical education class. Thus whether the class was for credit or was an extracurricular activity has not been established.

There [*12] was testimony by Ms. Blumenthal that the event in which the plaintiff was injured was “challenge by choice”, meaning each student did not have to participate in the event. However, the plaintiff testified that her understanding of “challenge by choice” was that she could do the activity by her own free will and that no one was to be forced into an activity. However, when it came time for the wall activity, she and her friends were told they had to do it; they were not told that there would be repercussions if they did not do it. Thus, there are factual issues concerning the definition of “challenge by choice”, if the students had a choice as to participating in the event, or whether there was pressure exerted on them to participate.

There are further factual issues concerning whether the students were properly instructed with regard to the presence and the use of the ropes on the back of the wall, and whether the ropes were suitable to stabilize the student and prevent the student from falling off the narrow platform. The [**5] plaintiff testified that on the date of the incident, there were no mats or other safety precautions. The rope that was on the back wall was used for walking down [*13] the wall and was not there to stabilize when up on the platform. She never noticed loops on the ropes. Ms. Tuttle testified that she tells students there are ropes to put a hand in, if needed, and that there will be spoilers to help them walk down. Additional factual issues exist as to whether the supervision and spotting was adequate, whether the spotters were properly trained and instructed, and whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would have provided greater supervision to the students including adequate placement and training of the appropriate number of spotters. Although Mr. Demas averred that the use of helmets, matting, or the belay system is not consistent with industry standards, he does not state what the industry standard is, and whether the failure to provide such safety equipment is inconsistent with industry standards. A further question exists as to whether the platform was constructed pursuant to industry standards.

Since defendants failed to establish their entitlement to judgment as a matter of law, the burden has not shifted to the plaintiff to raise a triable issue of tact (see, Krayn v Torella, 40 A.D.3d 588, 833 NYS2d 406, NY Slip Op 03885 [2d Dept 2007] [*14] ; Walker v Village of Ossining, 18 AD3d 867, 796 NYS2d 658 [2d Dept 2005]).

Accordingly, motions (001) and (002) by Sachem and Mount Sinai for summary judgment dismissing the complaint are denied.

Date: Dec. 28, 2011

/s/ W. Gerard Asher

J.S.C.

Stop Feuding, I doubt, move forward anyway, I think you can.

Posted: May 16, 2012 | Author: Recreation Law | Filed under: Uncategorized | Tags: ACCT, American National Standards Institute, ASTM, ASTM International, challenge course, National Ski Area Association, NSAA, Outdoor recreation, PRCA, Ropes course, Standards, summer camp | Leave a comment

The Challenge/Ropes Course Industry is still fighting after all these years……it is a very sad song.

The challenge course, or as it was known in its beginning, the ropes’ course industry, is still setting itself up to be sued, successfully sued. My calculations show they have had judgments and settlements in excess of $5.1 million. See Payouts in Outdoor Recreation. Not included in those calculations are another $3.1 million that I learned of that was a settlement this past summer (2011). In 10 years, the industry has had $8.2 million in pay outs based upon my research. Who knows how much more has been paid that is confidential settlements or judgments I can’t find.

In my opinion, a major part of the problem is standards. Which is probably why they are losing these suits and why the industry is a mess?

There are two separate groups writing standards for the industry. Neither of those groups is part of the ASTM, both are trying to become ANSI standard setting organizations.

Standards for things; bolts, screws, wood, concrete are already done by the ASTM. Those are great standards, created correctly and are needed by this industry. Those standards are always going to trump anything the ropes’ course industry does. Consequently, ignoring that is a joke. For things (anything without a personality) refer to and adopt the ASTM standards.

Any standard that recreates or redoes the standards established by the ASTM is 1) a waste of time and 2) only a way to create litigation. The ASTM standard is going to be controlling. If the standard created by an industry association is lower than the ASTM standard or even different, the standard will be violated because the ASTM will be controlling.

For any cables/wire, the European standards for ski lifts control. Those standards on wire have been around for almost 100 years and are great. Again, this is a monster waste of time and energy to create something that does not matter.

For people, get rid of those standards. People make mistakes, not concrete. If it can make a mistake, dump the standard attached to it. For more on this issue see Trade Association Standards sink a Summer Camp when a plaintiff uses them to prove Camp was negligent, Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp, and ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Here is what the National Ski Area Association says about standards: See NSAA and standards. Understand that the lifts have standards but the ski areas do not. The NSAA is like 99% of the rest of the trade associations in the world; they know that writing standards is a legal nightmare.

What you should do.

If you are part of the ropes’ course industry, you need to protect yourself from the problems created by these dual standards. Get both sets of standards and create reasons why you are not following specific ones. That way in advance, you protect yourself. Be specific, not just it does not apply and do not use the word money or cost unless you can show a better way that may be cheaper.

Resolution of the issues for the Standards

There are several options on how to resolve the problem.

1. One group can get to the ANSI, finish up and have “standards.” However, this will only work if the other group, then drops its standards. One group has indicated they will not. Can you think of this getting any worse that would occur?

2. Eliminate both sets of “standards” and start gain from scratch. Go to the ASTM and set up a committee to set up standards and adopt all the ASTM ones that are done. What is left can be written at that point. I suspect that will be a short piece of paper.

I believe this alternative has the best legal benefits.

3. Find six people who are not vested in winning. It is too small of a job for anything less, and I don’t think you can find eight impartial people with respect to the groups. They should go through each standard and write down the best one and move on. I would give them standards that are not identified as to who created which ones. All they are working with is words on paper, not logos or IDs.

If you want to see where standards can go too far read this article: Playgrounds will be flat soon. No city can meet the playground standards with the current budgets they have to work with.

Do Something

If you are part of this industry, good luck. There are a lot of great people in the industry; however, a lot of them have drunk the cool-aid from one group or another and cannot see past their respective “turf.”

Until the standards for operations are gone and there is only one set of standards for the industry, it will be a plaintiff’s playground.

What do you think? Leave a comment.

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Architects, Engineers and Recreation, we need the first two, to be successful in the second

Posted: May 9, 2012 | Author: Recreation Law | Filed under: Uncategorized | Tags: Adventure travel, challenge course, Climbing Wall, Contractor, Insurance, Law, license, permit, Rock climbing, Ropes course, zip line | Leave a comment

No, not to tear down the wilderness, I’m talking about what we build.

In the recreation industry, we build a lot of things that our customers use: Ropes courses, zip lines, climbing walls, raft frames, etc. I see a lot of these being built by owners or by contractors who are not the correctly licensed people for the jobs. If you have clients interacting with something, you built; you better have an engineer/architect approve the plans and the construction. You also may need to have the plans approved the structure approved by the appropriate city, county, or state licensing authority.

Additionally, you may be violating city, county or state laws if the work is not approved in advance by an architect or engineer and or built by a “licensed” person/contractor.

This is hard to write because the laws are usually local in nature, so there is no uniform way to look at the issues. In the general, I’ll use the term state to mean any government entity, city, county, municipal, tax district, state or federal agency.

It does not matter what letters or made-up name is behind a person’s name when they tell you they can build your wall/course/building. Each state law requires the person who approves it be licensed by the state to plan and make sure the works is done correctly. The actual builder can be anyone in most cases, although this varies by state law. But somewhere in the process a city, county or state requires the plans be created or approved by a licensed engineer or architect.

You may also have to make sure that the city; county or state code is met and approved as well as fire code.

Why pay the extra money? Because if something goes wrong, only that license can prove you are not intentional injuring people. Here is why.

· The architect or engineer is going to be local; you can find him to have him or her testify on your behalf. You won’t be calling a number that is not being answered in another state.

· The license is going to give you the first defense, rather than a liability.

· If the licensed person did screw up, they have insurance to cover you rather than a general liability policy which has holes the insurance company can use to exit the lawsuit with its money in its pocket.

· There is probably a law or regulation that requires it. If you violate this law and do not have the plans or construction approved by the appropriate people you are negligent per se. As such, you may not have a defense to the claim, including the release you use.

· The licensed local person is going to know the laws and regulations you must meet. You should not have a government inspector show up later and close you down.

It might be a problem if you are first climbing wall/gym/ropes course the licensing bureau has ever seen. You may need to bring photographs, videos and other examples to show what you are doing.

You may also have to do the same if you are hiring a licensed contractor to explain to them what you are trying to accomplish.

Either way, in the long run, it is the only legal way to go.

It is better than jail time, by the way. Yes, if you have not correctly licensed your structure, you could be facing zoning issues and violation of other laws, which could result in fines. In this example, the owner of this tree house ended up in court. See Golden takes aim at elaborate treehouse or Fight over Golden tree house set to go to court.

What do you think? Leave a comment.

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Allison v. Charter Rivers Hospital, Inc, 334 S.C. 611; 514 S.E.2d 601; 1999 S.C. App. LEXIS 43

Posted: April 4, 2011 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, South Carolina | Tags: assumption of the risk, challenge course, Elements, Hospital, Ropes course | Leave a comment

To Read an Analysis of this case see Assumption of the risk is used to defeat a claim for injuries on a ropes course.

Allison v. Charter Rivers Hospital, Inc, 334 S.C. 611; 514 S.E.2d 601; 1999 S.C. App. LEXIS 43
Margaret H. Allison, Appellant, v. Charter Rivers Hospital, Inc., Respondent.
Opinion No. 2965
Court of Appeals of South Carolina
334 S.C. 611; 514 S.E.2d 601; 1999 S.C. App. LEXIS 43
February 9, 1999, Submitted
March 15, 1999, Filed
Prior History: [***1] Appeal From Lexington County. William P. Keesley, Circuit Court Judge.
Disposition: Affirmed.
Counsel: Robert J. Thomas and Robert P. Wood, both of Rogers, Townsend & Thomas, of Columbia, for appellant.
Monteith P. Todd, of Sowell, Todd, Laffitte, Beard & Watson, of Columbia, for respondent.
Judges: Hearn, J. Huff and Stilwell, JJ., concur.
Opinion By: Hearn
Opinion: [*612] [**602]
Hearn, J: Margaret Allison brought this action against Charter Rivers Hospital, Inc. for injuries she allegedly sustained while participating in a ropes course n1 as part of her treatment at Charter. The trial court denied Allison’s motion to strike Charter’s defense of assumption of risk as a total bar to her recovery and presented the issue to the jury. The jury returned a [*613] general verdict in favor of Charter. Allison appeals. We affirm. n2
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n1 A “ropes course” is an activity used to build trust and self-confidence. In the activity involved in this case, the participants walked across a rope strung between trees while holding onto an overhead wire. While one participant crosses the rope, four others follow on the ground, acting as spotters to catch the participant if he or she falls. [***2]
n2 We decide this case without oral argument pursuant to Rule 215, SCACR.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
Facts
Allison entered Charter in April of 1992 for treatment of her addiction to prescriptive medication. During the years preceding her admission, she had led a very inactive lifestyle.Five days after she entered Charter, she learned she was scheduled to participate in a ropes course. Allison inquired about the ropes course from Katherine McCall, who was in charge of the activity. Katherine explained the course involved walking on a rope between three trees and that the activity would help Allison to build trust. Allison expressed to Katherine her reservations about doing anything physical because of her [**603] lack of past physical activity. Allison also asked several patients about the ropes course. A woman in her seventies and a younger girl with back problems told Allison that they chose not to participate in the course. After collecting this information, Allison decided to participate in the course.

At the beginning of the activity, Allison and the other participants circled around Katherine. Katherine asked them [***3] to raise their hands and pledge to at least attempt the activity. The group warmed up with a game similar to tag. As soon as she started to run, Allison fell on her left knee. She immediately told Katherine about her injury. Katherine instructed her to sit out the remainder of the tag game, which lasted around three or four minutes. The group then proceeded to the ropes course. While walking to the course, Allison again expressed her reservations about participating in the activity. Katherine asked her to at least try and assured her that if she fell, the group would catch her.

According to Allison, the purpose of the ropes course was to build trust and self-confidence. The object of the exercise was for the group to catch the participant as she fell, thereby building the participant’s trust in the group.

Allison explained that a participant was to walk backwards on a rope strung [*614] between trees while holding onto a wire from above. The bottom rope was approximately two and a half feet from the ground at the base trees but sagged and swayed in the middle. She stated the participants were instructed to let go of the wire from above if they fell. Four members of the group, acting as spotters, [***4] were to follow Allison to catch her if she fell.
Allison watched all the other participants and waited until last to try the tension traverse herself. She saw a male patient fall and scrape his shin. When it was her turn, the group lifted her up onto the rope, and she caught hold of the top wire. She testified she was about four feet from the tree when she fell.
The group was not able to break her fall, and she landed on her right knee.

Katherine and some of the participants tried to life her, but Allison passed out from the pain. She was taken by ambulance to the emergency room at Lexington Medical Center.

Allison filed a complaint against Charter in October of 1993. Charter asserted as defenses a general denial of negligence, assumption of risk, and contributory negligence. At the close of the evidence, Allison moved to strike the defense of assumption of risk. She argued that because of the South Carolina Supreme Court’s decision abolishing contributory negligence as a complete bar to recovery, n3 the doctrine of assumption of risk was narrowly limited and did not apply to her case. In the alternative, she argued that if the doctrine of assumption of risk applied, there was no [***5] evidence in the record to support the defense. The trial court denied the motion. The jury returned a general verdict in favor of Charter.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n3 The South Carolina Supreme Court abrogated the doctrine of contributory negligence in favor of comparative negligence for all causes of action arising on or after July 1, 1991. Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991). This cause of action arose in 1992. In response to Allison’s motion to strike, Charter withdrew the defense of contributory negligence at the trial.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
DISCUSSION

Allison argues the defense of assumption of risk was not available to Charter as a complete defense to her action. [*615] She relies on this court’s decision in Davenport v. Cotton Hope Plantation Horizontal Property Regime, 325 S.C. 507, 482 S.E.2d 569 (Ct. App. 1997), aff’d as modified, 333 S.C. 71, 508 S.E.2d 565 (1998). In Davenport, we held “assumption of risk is no longer a complete defense to an injured person’s negligence claim. Assumption of risk is [***6] to be treated as another facet of comparative negligence rather than as an absolute bar to recovery.” Davenport, 325 S.C. at 516, 482 S.E.2d at 574. The South Carolina Supreme Court recently affirmed this holding and abolished assumption of risk as a bar to absolute recovery. Davenport, 333 S.C. 71, 508 S.E.2d 565 (1998). The court held “that a plaintiff is not barred from recovery by the doctrine of assumption of risk unless the degree of fault arising therefrom is greater than the negligence [**604] of the defendant.” 333 S.C. at 87, 508 S.E.2d at 573-4.
The supreme court, however, limited its ruling to apply only to Davenport and to all causes of action arising or accruing after November 8, 1998, the date of the supreme court’s opinion. The court held: “Thus, except for this case, if a cause of action arose or accrued prior to our decision today, it will be governed by the common law form of assumption of risk, if applicable, as it existed under South Carolina case law before this opinion.” Davenport, 333 S.C. at 87-88, 508 S.E.2d at 574. In view of the supreme court’s decision to limit the application of its holding in Davenport, we hold the trial judge [***7] did not err in refusing to strike the defense of assumption of risk as a complete bar to Allison’s action.
Allison next asserts there was no evidence in the record to support the defense of assumption of risk. We disagree.
The defense of assumption of risk is generally a question of fact for the jury. Baxley v. Rosenblum, 303 S.C. 340, 347, 400 S.E.2d 502, 507 (Ct. App. 1991). Allison’s motion to strike the defense of assumption of risk was essentially a motion for a directed verdict on the issue. When ruling on a motion for a directed verdict, the trial judge must view the evidence in the light most favorable to the party opposing the motion. Moore v. Levitre, 294 S.C. 453, 454-5, 365 S.E.2d 730, 730 (1988); Baxley, 303 S.C. at 346, 400. N.E.2d at 506. If the evidence supports more than one reasonable inference with [*616] respect to a claim or defense, the judge must deny the motion and submit the case to the jury. Moore, 294 S.C. at 455, 365 S.E.2d at 730; Baxley, 303 S.C. at 346, 400. N.E.2d at 506. This court may only reverse the denial of a motion for directed verdict when there is no evidence to support the ruling below. Creech v. South Carolina Wildlife & Marine [***8] Resources Dep’t, 328 S.C. 24, 28-9, 491 S.E.2d 571, 573 (1997).
Under prior case law, the defense of assumption of risk required four elements: “(1) the plaintiff must have knowledge of the facts constituting a dangerous condition; (2) the plaintiff must know the condition is dangerous; (3) the plaintiff must appreciate the nature and extent of the danger; and (4) the plaintiff must voluntarily expose himself to the danger.” Davenport, 333 S.C. at 78-79, 508 S.E.2d at 569; see also Senn v. Sun Printing Co., 295 S.C. 169, 173, 367 S.E.2d 456, 458 (Ct. App. 1988).
The ropes course instructor and several patients explained the ropes course to Allison. Allison was aware that two patients had elected not to participate in the course because of their physical condition. She was also aware the object of the activity was for the participants to be caught by their fellow participants as they fell. Furthermore, before attempting the tension traverse, Allison observed the other participants’ attempts, including that of a man who skinned his shin and required medical attention.
We find the record contains sufficient evidence of the elements of assumption of risk to create [***9] a jury issue.
Affirmed.
Huff and Stilwell, JJ., concur.

It's not what I write, It's what you Learn

To Read an Analysis of this decision see: After this decision, I’m not sure you could prove assumption of the risk without a written document and a video or more.

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To Read an Analysis of this decision see: Don’t waste paper if you are not going to do it right. Use the magic words needed for a release.

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OPS AMUSEMENT RIDES AND DEVICES PROGRAM

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A school owes a higher degree of care to students then a non-school.

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No, not to tear down the wilderness, I’m talking about what we build.

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To Read an Analysis of this case see Assumption of the risk is used to defeat a claim for injuries on a ropes course.

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