Advertisements

What the term “strictly construed” actually means when used to describe how a release will be viewed by the court.

The decision involves several legal issues, the one that concerns us is the issue of a release for a product. In Kansas, releases are strictly construed. In this case that meant that the language of the release did not meet the requirements of state law for a release. However, the court stretched incredibly far to come to that conclusion.

Fee v. Steve Snyder Enterprises, Inc.; Et. Al., 1986 U.S. Dist. LEXIS 28158

State: Kansas, United States District Court for the District of Kansas

Plaintiff: Patricia Fee

Defendant: Steve Snyder Enterprises, Inc.; Russell Young; SSE, Incorporated; Greene County Sport Parachute Center of Wellsville, Kansas, Inc.; and John Doe Corporation

Plaintiff Claims: Wrongful death and survival claims based on negligence, product liability and breach of warranty

Defendant Defenses: Statute of Limitations ran,

Holding: for the plaintiff

Year: 1986

Summary

The lawsuit was brought over the failure of an automatic opener, which did not during a sky dive. The widow sued the manufacture of the device and the sky-diving center who sold the device to the deceased. The deceased signed a release and indemnity agreement, two separate documents when purchasing the automatic opener.

In Kansas, releases are allowed but strictly construed. Here strict construction is used, improperly, to interpret the release in an extremely narrow way to allow the lawsuit to proceed.

Facts

The deceased died when he was sky diving, and his automatic opening device failed to open. The automatic opening device was manufactured by the defendant.

The plaintiff spent eight years attempting to serve the defendant, starting in 1977 and finally serving the defendant in 1985. This lead to a discussion about when the lawsuit actually started, which takes the first half of the decision. Because the defendant had avoided service of process, because he knew about it and made attempts not to get sued, the date of the lawsuit started was the date he was served. However, due to the defendant’s actions, the statute of limitations did not run.

The widow purchased the automatic opener for the deceased, although the dates in the decision must be incorrect. The decision states the device was purchased a year after the deceased died. The device failed the first time it was used by the decedent.

The deceased signed a release for the parachute center. The defendant manufacturer raised the release as a defense to the claims of the plaintiff against the manufacture as well as those claims against the dive center.

The release was on one side of the paper and on the reverse was an assumption of risk language. The deceased also signed a separate indemnify agreement. The decedent signed both agreements.

This decision is that of the Federal District Court in Kansas.

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

The court first looked at release law in Kansas. If not against public policy, then Kansas recognizes exculpatory agreements, releases. However, like many state’s releases, the courts in Kansas use the language that releases “are not favored by the law and are strictly construed against the party relying on them.” Strictly construed does not require the specific term negligence but must clearly appear to express the intent to release from liability the defendant.

It is not necessary; however, that the agreement contained specific or express language covering in so many words the party’s negligence, if the intention to exculpate the party from liability clearly ap-pears from the contract, the surrounding circumstances and the purposes and objects of the parties.

The court in reading the release found it did not stop the plaintiff’s claims.

The court first in looking at the language found the language covered use of the product but did not cover liability for “sale” of the product.

First, a review of the agreement itself shows that, although it specifically releases the Parachute Center from liability for injuries or death arising out of the “ownership, operation, use, maintenance or control” of many devices,” the agreement fails to mention any release of liability revolving around the sale of any product to the parachuter.

The court admitted the deceased understood that parachuting was dangerous, that was not enough. By making the determination that the product was defective when sold, the court found the release would not stand because you cannot release liability for selling a defective product.

Strictly construing the agreement; however, we do not believe that this should be interpreted to exempt the Parachute Center from a failure to use due care in furnishing safe equipment, or should allow it to sell a product in a defective condition unreasonably dangerous to the parachuter. To do so would impermissibly extend the terms of the agreement to situations not plainly within its language.

The court then determined the release would also not work to stop the plaintiff’s claims for breach of either express or implied warranty. The court found attempting to release the defendant parachute center from liability was unconscionable. Under Kansas law, a release could be used to stop warranty claims, unless that was found to be unconscionable.

We, therefore, hold that plaintiff’s action is not barred by the release, covenant not to sue and indemnity clause signed by the plaintiff’s decedent. Summary judgment in favor of the defendants Parachute Center and Russell Young is therefore, inappropriate.

The indemnification agreement seemed to be ignored in reaching this determination by the court.

So Now What?

Strict construction is a term that gives leeway to a court to review the language of the release to make sure it conforms to the language required under state law. However, that term was created and applied to release’s decades ago and rarely used now except in rare situations like this. When the judge wants the defendant to pay.

Probably the term was created when courts were first asked to apply releases to a plaintiff’s claims and wanted a way to soften the blow. Now days, in most states it is quoted in the decision at the beginning and never heard of again. Eventually if the courts review enough releases, the term is not even quoted.

Few states allow a release to be used to stop product liability claims. However, several states do and several states allow assumption of risk to stop product liability claims. A well-written release that incorporates assumption of risk language is still effective in many product liability cases.

Here, however, the court reached as far as it could to find that the release was barred from stopping the claims. Part of that desire to allow the suit to proceed was probably because of the actions of the manufacturer who spend eight years avoiding service of the lawsuit.

The rest, however, was simply a stretch to allow the lawsuit to proceed.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

 

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

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

Advertisements

Fee v. Steve Snyder Enterprises, Inc.; et. Al., 1986 U.S. Dist. LEXIS 28158

Fee v. Steve Snyder Enterprises, Inc.; et. Al., 1986 U.S. Dist. LEXIS 28158

Patricia Fee, Plaintiff, v. Steve Snyder Enterprises, Inc.; Russell Young; SSE, Incorporated; Greene County Sport Parachute Center of Wellsville, Kansas, Inc.; and John Doe Corporation, Defendants

CIVIL ACTION No. 84-2323

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

1986 U.S. Dist. LEXIS 28158

March 14, 1986

CASE SUMMARY:

CORE TERMS: parachute, sport, summary judgment, decedent, personally, covenant, implied warranties, statute of limitations, service of process, mail service, notice, mail, parachuting, personal injury, personal service, parachuter, consumer, assigns, wrongful death, strict liability, territorial limits, unconscionable, consequential, predecessor, disclaimer, diversity, automatic, warranty, opening, saving

COUNSEL: [*1] John E. McKay, LAW OFFICES OF BENSON & McKAY, 911 Main Street, Suite 1430, Kansas City, Missouri 64105, (816) 842-7604; Mark R. Singer/Micheline Z. Burger ROMAIN, BURGER & SINGER, CHTD., The College View Building, 4500 College Blvd., Suite 103, Overland Park, Kansas 66221, (913)649-5224; Paul v. Herbers, James E. Cooling, Cooling, Herbers & Sears, P.C., P.O. Box 26770, Kansas City, MO 64196, (816) 474-0770; Russell C. Leffel, 7315 Frontage Road, Suite 111, Shawnee Mission, KS 66204, 913-362-9727, Neal E. Millert, Larry J. Tyrl, James, Millert, Houdek, Tyrl & Sommers, 804 Bryant Building, 1102 Grand, Kansas City, Missouri 64106, Randolph G. Austin, Speer, Austin, Holliday, & Ruddick, 261 N. Cherry, P.O. Box 1000, Olathe, Kansas 66061.

OPINION BY: O’CONNOR

OPINION

MEMORANDUM AND ORDER

EARL E. O’CONNOR, CHIEF JUDGE.

This matter is before the court on defendants’ motions for summary judgment and plaintiff’s motion for costs. This is a diversity action for wrongful death and survivorship based on claims of negligence, strict liability and breach of express and implied warranties.

I. Motion for Summary Judgment by Defendant SSE, Incorporated.

Defendant SSE, Incorporated, moves for [*2] summary judgment on the ground that plaintiff’s action is barred by the two-year statute of limitations found at K.S.A. 60-513(a). For the following reasons, defendant’s motion must be denied.

[HN1] Summary judgment is appropriate when the matters considered by the court disclose 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.” Federal Rule of Civil Procedure 56(c). The court must look at the record in the light most favorable to the party opposing the motion. Prochaska v. Marcoux, 632 F.2d 848, 850 (10th Cir. 1980), cert. denied, 451 U.S. 984 (1981). Before summary judgment may be granted, the moving party must establish that it is entitled to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985).

The uncontroverted facts relevant to this motion are as follows:

1. The plaintiff’s decedent died while skydiving on December 11, 1982, when his parachute failed to open. Decedent’s parachute was equipped with an automatic opening device, which was manufactured by the defendant SSE, Incorporated.

2. Plaintiff filed this lawsuit on August 13, [*3] 1984, consisting of wrongful death and survival claims based on negligence, product liability and breach of warranty. Plaintiff named Steve Snyder Enterprises, Inc., as a defendant, claiming that it was a Pennsylvania corporation that designed, manufactured and sold the defective device.

3. On August 14, 1984, the complaint was mailed to Steve Snyder Enterprises, Inc., at a New Jersey address.

4. Steve Snyder Enterprises, Inc., had changed its name to “SSE, Incorporated,” in November of 1977. Its corporate headquarters, however, remained at the same location.

5. SSE, Incorporated, received the complaint at the New Jersey address.

6. ln a telephone conversation with plaintiff’s counsel, the attorney for SSE, Incorporated, advised plaintiff’s counsel that neither SSE nor its predecessor corporation, Steve Snyder Enterprises, Inc., would accept service by mail.

7. On November 1, 1984, counsel for SSE, Incorporated, rated, wrote to plaintiff’s counsel, again informing him that SSE intended not to acknowledge the mail service.

8. On November 14, 1984, the complaint was again mailed to Steve Snyder Enterprises, Inc. SEE, Incorporated, received the complaint, but refused to sign or [*4] return an acknowledgement.

9. On December 7, 1984, plaintiff filed her first amended complaint, adding SSE, Incorporated, as a defendant.

10. From January 1985 to August 28, 1985, plaintiff’s process servers made thirty-three attempts to personally serve SSE, Incorporated.

11. On August 29, 1985, plaintiff successfully served Steve Snyder, the registered agent and president of SSE, Incorporated.

Defendant SSE, Incorporated, argues that summary judgment is appropriate on all of plaintiff’s claims because they are barred by the two-year statute of limitations for wrongful death actions set forth at K.S.A. 60-513(a)(5). The court notes, however, that not all of plaintiff’s claims are for wrongful death — Counts VI through VIII are survival actions based on negligence, strict liability and breach of express and implied warranties. Nevertheless, a similar two-year statute of limitations (see K.S.A. 60-13(a)(4)) applies to the negligence, strict liability and breach of warranty claims. See Grey v. Bradford-White Corp., 581 F.Supp. 725 (D. Kan. 1984). The court will therefore treat defendant’s motion as seeking summary judgment on all of plaintiff’s claims and not merely plaintiff’s [*5] wrongful death claims.

To decide whether plaintiff’s claims are barred by the two-year statute of limitations, we must first determine when plaintiff’s suit was commenced. [HN2] In a diversity action, the court must apply the state law prescribing when an action commences for statute of limitations purposes rather than Rule 3 of the Federal Rules of Civil Procedure. Walker v. Armco Steel Corp., 446 U.S. 740 (1980); Ragan v. Merchants Transfer & Warehouse Company, 337 U.S. 530 (1949). [HN3] Kansas law provides that an action is commenced at the time a petition is filed if service of process is obtained within ninety days. See K.S.A. 60-203(a)(1). If service is not obtained during the 90-day period, then the action is commenced at the time of service. Id.

Defendant argues that plaintiff’s action did not com- mence until August 29, 1985, when plaintiff personally served the agent of SSE, Incorporated, Steve Snyder. Accordingly, since plaintiff’s cause of action arose on December 11, 1982, her claims are barred by the two-year statute of limitations. We are not persuaded by defendant’s argument.

We conclude that plaintiff’s action was timely commenced under the saving provisions [*6] of K.S.A. 60-203(b). That section provides:

[HN4] If service of process or first publication purports to have been made within the time specified by subsection (a)(1) but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced by the original filing of the petition if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.

Id.

Applying this statute to the facts in this case, we find that plaintiff purported to serve process by mail on August 14, 1984, only one day after the suit was filed. Service by mail is proper under a recent amendment to the Kansas Code of Civil Procedure. 1
See K.S.A. 60-314 (Supp. 1985). We find, however, that plaintiff’s service was invalid due to the defendant’s failure to complete and return the enclosed notice. Under the saving provision of section 60-203(b), we may nevertheless deem plaintiff’s action to have been commenced on the date plaintiff’s complaint was filed, [*7] so long as plaintiff makes personal service on the defendant within ninety days of this order.

1 We must look to the Kansas law prescribing the method of service. This is a diversity action in which plaintiff asserts jurisdiction over the defendant pursuant to the Kansas long-arm statute, K.S.A. 60-308. Fed. R. Civ. P. 4(f) provides that “process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held, and when authorized by a statute of the United States or by these rules, beyond the territorial limits of that state.” There is no applicable federal statute that would allow service of process outside the state in this case. Thus, in order to obtain service beyond the territorial limits of the court, there must be authorization in “these rules.” Rule 4(e) provides for service of process on defendants who are not inhabitants of or found within the state. In pertinent part it states:

Whenever a statute or rule of court of the state in which the district is held provides (1) for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the state, . . . service may . . . be made under the circumstances and in the manner prescribed in the [state] statute or rule.

Clearly, service by mail is a “manner” of service provided by the Kansas statute in this situation. See K.S.A. 60-314 (Supp. 1985).

[*8] Defendant also argues that because plaintiff’s mail service was directed to Steve Snyder Enterprises, Inc., rather than to SSE, Incorporated, it was totally ineffective. We find defendant’s argument meritless for two reasons. First, under the saving provision discussed above, plaintiff’s mistake in naming defendant’s predecessor corporation qualifies as a defect in the service that may be remedied by plaintiff reserving the defendant under its proper name within ninety days of this order. Second, [HN5] both the federal rules (Rule 15(c)) and Kansas law (K.S.A. 60-215(c)) allow for relation back of an amendment changing a party. Under these provisions, [HN6] a change in party relates back so long as the claim asserted arose out of the events set forth in the original complaint and

within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Federal Rule [*9] of Civil Procedure 15(c); K.S.A. 60-215(c).

In this case, an amendment changing defendant’s name from Steve Snyder Enterprises, Inc., to SSE, Incorporated, would clearly relate back. First, the claims asserted would be identical to those originally filed. Second, SSE, Incorporated, admits it had notice of this action within the statutory period. Counsel for SSE, Incorporated, informed plaintiff’s counsel in August and November of 1984 that SSE had received the mail service but chose not to acknowledge it. Third, SSE, Incorporated, knew that but for plaintiff’s confusion over the name of its predecessor corporation, the action would have been brought against it.

We therefore hold that plaintiff shall have ninety (90) days from the date of this order to personally serve the defendant SSE, Incorporated. Upon such service, plaintiff’s action will be deemed to have commenced on August 13, 1984, when the case was filed. Plaintiff’s claims will therefore be timely. If, however, plaintiff fails to serve SSE, Incorporated, within the 90-day time period, plaintiff’s action against this defendant will be deemed time-barred. Defendant’s motion for summary judgment will therefore be held in abeyance [*10] for ninety days from the date of this order to allow plaintiff to properly serve the defendant.

II. Plaintiff’s Motion for Costs.

Plaintiff moves for payment of the costs incurred in plaintiff’s previous attempts to personally serve defendant. [HN7] Costs are available pursuant to both Federal Rule of Civil Procedure 4(c)(2)(D) and K.S.A. 60-314:

Unless good cause is shown for not doing so the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing, the notice and acknowledgment of receipt of summons.

Defendant in this case has shown no reason why costs should not be assessed against it. Defendant deliberately refused to acknowledge mail service and even went so far as to inform plaintiff that it was electing to assert its “right to service of process in the customary manner and not by mail.” Defendant’s Exhibit 4. Not only did defendant refuse mail service, but it also made every attempt to thwart personal service. Plaintiff was thus forced to attempt service at least thirty-three times against defendant. We therefore hold that plaintiff is entitled to recover costs in [*11] the amount of $1,628.47 as requested in her motion. Furthermore, plaintiff will be entitled to recover costs incurred in serving the defendant again, as discussed in part I above, upon plaintiff’s submission of proof of expenses.

III. Motion for Summary Judgment by Defendants Russell Young and Greene County Sport Parachute Center.

Defendant Russell Young moves for summary judgment on the ground that plaintiff’s decedent signed a release and covenant not to sue in favor of Greene County Sport Parachute Center of Wellsville, Kansas, Inc. (hereinafter the Parachute Center), and its employees and agents. The Parachute Center joins in said motion.

The material uncontroverted facts are as follows:

1. On May 8, 1982, plaintiff’s decedent signed a “Release and Covenant Not To Sue,” which read in pertinent part:

[I] do hereby fully and forever release and discharge the said Greene County Sport Parachute Center of Wellsville, Kansas, Inc. and their employees, servants, stockholders, agents, successors, assigns, and all other persons whomsoever directly or indirectly liable, from any and all other claims and demands, actions and cause of action, damages, costs, loss of services, [*12] expenses and any and all other claims of damages whatsoever, resulting from PERSONAL INJURIES, DEATH OR PROPERTY DAMAGES SUSTAINED BY ME, arising out of AIRCRAFT FLIGHTS, PARACHUTE JUMPS, or any other means of lift, ascent or descent from an aircraft of any nature, or arising out of the ownership, operation, use, maintenance or control of any vehicle, whether motor vehicle, aircraft, or otherwise, or any device, or mooring, while on the ground or in flight, and meaning and intending to include herein all such PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE resulting from or in any way connected with or arising out of instructions, training, and ground or air operations incidental thereto.

This release and covenant not to sue is made and entered in consideration of the permission extended to me by Greene County Sport Parachute Center of Wellsville, Kansas, Inc. to participate in a course of parachuting instructions, parachuting training flying activities, ground or air operations incidental to parachuting and flying.

I further acknowledge that I will not rely on any oral or written representation of Greene County Sports Parachute Center of Wellsville, Kansas, Inc. or any agent thereof. [*13] I fully understand that there are dangerous risks in the sport of parachute jumping, and I assume said risks. . . .

I HAVE READ AND FULLY UNDERSTAND that Release and Covenant Not to Sue and sign the same as my own free act.

2. Plaintiff’s decedent also signed an “Indemnity Clause,” which read:

I acknowledge that Greene County Sport Parachute Center of Wellsville, Ks., Inc., is not an insurer of me. I do, for myself, my heirs, executors, administrators and assigns, hereby expressly stipulate, covenant and agree to indemnify and hold forever harmless the said Greene County Sport Parachute Center of Wellsville, Ks., Inc., and its employees, servants, stockholders, agents, successors, and assigns, and all other persons whomsoever against and from any and all actions, causes of action, claims and demands for damages, judgments, executions, costs, loss of services, expenses, compensation, including reimbursement of all legal costs and reasonable counsel fees incurred or paid by the said indemnified parties or any of them, for the investigation, prosecution or defense of any such action, cause of action or claim or demand for damages, and any and all other claims for damages, whatsoever, [*14] which may hereafter arise, or be instituted or recovered against said Greene County Sport Parachute Center of Wellsville, Ks., Inc., and its servants, employees, stockholders, agents, successors, assigns or any other person or persons whomsoever, by me or by any other person whomsoever, whether for the purpose of making or enforcing a claim for damages, on account of PERSONAL INJURIES, DEATH, OR PROPERTY DAMAGE sustained by me, or whether for the purpose of enforcing a claim for damages of any nature by any person whomsoever, on account of, or in any way resulting therefrom.

3. The decedent signed both the clause and release and certified that he had read them. His signature was witnessed by defendant Russell Young, President of the Parachute Center.

4. On the reverse side of the release, the decedent also signed and certified the following statements:

(9) I understand there are potential dangers and risks involved in this sport and acknowledge that the training I have received is intended to minimize such but is no guarantee or representation that there are none.

(10) I understand that parachuting is a potentially dangerous sport and that the proper functions of these parachutes [*15] or any parachute cannot be and is not guaranteed.

5. The decedent ordered and promised to pay for an automatic parachute opening device from the defendants Parachute Center and Russell Young. Young delivered the device to the decedent in December 1982.

6. The decedent used the device for the first time while skydiving on December 11, 1982. His parachute failed to open, he fell to the ground and was fatally injured.

7. The decedent’s widow paid the Parachute Center $254.60 for the device on January 27, 1983.

[HN8] Kansas courts have long recognized the validity of exculpatory agreements relieving a party from liability unless it would be against the settled public policy to do so. See, e.g., Belger Cartage Service, Inc. v. Holland Construction Co., 224 Kan. 320, 329, 582 P.2d 1111, 1118 (1978); Hunter v. American Rentals, 189 Kan. 615, 617, 371 P.2d 131, 133 (1962). Exculpatory contracts, however, “are not favored by the law and are strictly construed against the party relying on them.” Cason v. Geis Irrigation Co., 211 Kan. 406, 411, 507 P.2d 295, 299 (1973). Accord. Belger, 224 Kan. at 329, 582 P.2d at 1119. The terms of the agreement are not to be extended to [*16] situations not plainly within the language employed. Baker v. City of Topeka, 231 Kan. 328, 334, 644 P.2d 441, 446 (1982); Missouri Pacific Railroad Co. v. City of Topeka, 213 Kan. 658, 664, 518 P.2d 372, 377 (1973). It is not necessary, however, that the agreement contain specific or express language covering in so many words the party’s negligence, if the intention to exculpate the party from liability clearly appears from the contract, the surrounding circumstances and the purposes and objects of the parties. Bartlett v. Davis Corp., 219 Kan. 148, 159, 547 P.2d 800, 806 (1976).

After reviewing the language of the contract and the totality of the circumstances to determine the intent of these parties, we conclude that the release and indemnity clause do not preclude plaintiff’s action. First, a review of the agreement itself shows that, although it specifically releases the Parachute Center from liability for injuries or death arising out of the “ownership, operation, use, maintenance or control” of many device,” the agreement fails to mention any release of liability revolving around the sale of any product to the parachuter. Granted, there is a paragraph in [*17] which the parachuter states that he understands that parachuting is a potentially dangerous sport and that the proper function of the parachute cannot be guaranteed. Strictly construing the agreement, however, we do not believe that this should be interpreted to exempt the Parachute Center from a failure to use due care in furnishing safe equipment, or should allow it to sell a product in a defective condition unreasonably dangerous to the parachuter. To do so would impermissibly extend the terms of the agreement to situations not plainly within its language.

Other courts have held that similar releases exempt parachute centers and trainers only from injuries that ordinarily occur without any fault of the defendant. See Diedrich v. Wright, 550 F.Supp. 805 (N.D. Ill. 1982); Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 65, 400 N.E.2d 306 (Ct.App. 1979). We agree with these courts that the language alerting the parachuter to the dangers in parachute jumping is used to drive home to the individual that he must enter into this sport with an apprehension of the risks inherent in the nature of the sport. See 550 F.Supp. at 808; 49 N.Y.2d at
, 424 N.Y.S.2d at 369, 400 [*18] N.E.2d at It does not, however, follow that he must accept enhanced exposure to injury or death based on the carelessness of the defendants in selling him a defective product or failing to warn him about its use.

Furthermore, we hold that the release was ineffective under Kansas law to limit liability for a breach of either an express or implied warranty. [HN9] With respect to disclaimer of express warranties, K.S.A. 84-2-719(3) provides:

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

In this case, the automatic opening device qualifies as a consumer good under K.S.A. 84-9-109. Under section 84-2-719(3), the defendants’ attempt to exclude consequential damages for personal injury was unconscionable and therefore unenforceable.

Furthermore, with respect to disclaimer of implied warranties of merchantability, [HN10] the Kansas Consumer Protection Act flatly prohibits in consumer cases the use of any limitation on remedies or liability for implied [*19] warranties, and declares that any such disclaimers are void. K.S.A. 50-639(a) and (e). See also id. at 84-2-719 (Kansas Comment).

We therefore hold that plaintiff’s action is not barred by the release, covenant not to sue and indemnity clause signed by plaintiff’s decedent. Summary judgment in favor of the defendants Parachute Center and Russell Young is therefore inappropriate.

IT IS THEREFORE ORDERED that defendants’ motion for summary judgment by Russell Young and Greene County Sport Parachute Center of Wellsville, Kansas, Inc., is denied.

IT IS FURTHER ORDERED that defendant’s motion for summary judgment by SSE, Incorporated, shall be held in abeyance until plaintiff obtains personal service upon SSE, Incorporated. Plaintiff shall have ninety (90) days from the date of this order to personally serve SSE, Incorporated. If plaintiff fails to so serve the defendant, defendant’s motion for summary judgment will be granted.

IT IS FURTHER ORDERED that plaintiff’s motion for costs to personally serve the defendant SSE, Incorporated, in the amount of $1,628.47, is granted.

Dated this 14th May of March, 1986, at Kansas City, Kansas.


Any angry injured guest or a creative attorney will try about anything to win. In this case, the New Jersey Consumer Fraud Act was used to bring a Pennsylvania Ski Area to court in New Jersey

The lawsuit failed, this time. However, the failure was due to  Pennsylvania law more than New Jersey law. The plaintiff argued it was a violation of the act to advertise to New Jersey residents to come skiing in Pennsylvania and now warn of the difficulty of suing for injury’s skiing.

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Gyl Cole, Ronald Cole, her husband

Defendant: Camelback Mountain Ski Resort

Plaintiff Claims: Violation of the New Jersey Consumer Fraud Act

Defendant Defenses: The statute did not apply

Holding: For the defendant 

Year: 2017 

Summary

In this case the plaintiff sued arguing, the New Jersey consumer Fraud Act was violated by the defendant ski area because it did not put a notice in its ad that was seen in New Jersey, that suing a Pennsylvania ski area was difficult, if not impossible, because of the Pennsylvania Skier’s Responsibility Act

However, there was nothing in the act that applied to advertising nor was there anything in the law requiring a defendant to inform the consumer about the law that might apply to any relationship between the guest and the ski area. 

Facts 

The plaintiff and her husband lived in Waretown New Jersey. They went skiing at defendant Camelback Mountain Ski Resort, which is located in Pennsylvania. Although not stated, allegedly they went skiing after reading an advertisement by Camelback.

While skiing on a black diamond run the plaintiff slammed into a six-inch metal pipe and sustained severe injuries.

The plaintiff sued, first in New Jersey state court. The case was transferred to the Federal District Court in New Jersey. How the case was transferred to the Pennsylvania Federal court that issued this opinion is not clear. 

The Pennsylvania Federal District Court dismissed the plaintiff’s complaint with the above captioned opinion.

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

The basis of the plaintiff’s complaint was that a ski area advertising in New Jersey needed to inform New Jersey residents that it was impossible to sue and win a lawsuit against a Pennsylvania ski area. Because the ads of the defendant ski area did not mention that fact, the plaintiffs claimed that the defendant had violated the New Jersey New Jersey Consumer Fraud Act.

All states have a Consumer Fraud Act. Each states act is different from any other state, but generally they were enacted to prevent scam artists from ripping people off. The New Jersey Act awards treble damages and attorney’s fees if a consumer could prove there was “(1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss.…

Most state consumer fraud statutes include greater than simple damages as a penalty to keep fraudulent acts from happening. Many also include attorney fees and costs to encourage attorneys to take up these cases to defend the  consumer put fraudulent practices or business on notice or out of business.

Under the act, an unlawful practice was defined as: 

[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .

An unlawful practice was defined as falling into one of three categories: “affirmative acts, knowing omissions, and regulation violations.” 

A failure to inform, the argument being made by the plaintiff, was an omission. You could sue based upon the omission if you could prove the defendant “(1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.” 

The underlying duty on the part of the defendant was a duty to disclose. If there was no duty to disclose, then there was no omission. The plaintiffs argued, the Pennsylvania Skier’s Responsibility Act prevented lawsuits against ski areas, or as the
plaintiff’s argued, indemnified ski areas from lawsuits. That information the plaintiff argued needed to be included in the ad, or it violated the New Jersey Act. 

The court then looked at Pennsylvania Supreme Courts interpretations of the Pennsylvania Skier’s Responsibility
Act
. Those decisions stated the act did not create new law, but kept in place long standing principles of the common law. Meaning that the act reinforced the common law assumption of the risk defense that preceded the Pennsylvania Skier’s Responsibility Act
.

The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.

Since the act did not create new law, only codified the law, there was little if any requirement of a duty to inform anyone of the law.

Going back to the New Jersey New Jersey Consumer Fraud Act, nothing in the act nor had any court decision interpreting the act held a requirement to inform any consumer of any law. In fact, the law is based on the fact that all people know and understand the law. (A tenet of the law that I personally find confusing. You must know the law; however, to give legal advice you must go to law school. After law school, I know I don’t know all the laws!)

Consequently, there can be no duty to tell a consumer what the law states because they already know law. “…a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.”

There are exceptions to this rule, when a statute specifically requires some type of notice be given to the consumer, but that was not the case here. 

Finally, the court held that to find in favor of the plaintiffs would create a never-ending liability on businesses. In that part of the US, an ad could be seen by someone living in Pennsylvania, New Jersey and New York. No ad could fully inform consumers in all three states about the possible laws that might be in play in that particular ad. “Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.”

The case was dismissed. 

So Now What?

I don’t think you can simply think that this case has no value. You need to take a look, or have your attorney look, at your own state consumer fraud statute. Placing disclaimers in ads would not be logical, but making sure you don’t cross the line and violate your state consumer fraud law can keep you from being sued for violation of the statute in your own state. And damages can skyrocket in many cases once they are trebled and attorney fees, costs and interest are added.

 Remember, Marketing makes Promises Risk Management has to pay for©

What do you think? Leave a comment. 

Copyright 2017 Recreation Law (720) 334 8529

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

clip_image002 clip_image004 clip_image006 clip_image008 clip_image010

 If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law 

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

 Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw,
#AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps,
#ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw,
#FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation,
#IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence,
#OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw,
#Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer,
#RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom,
#Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer,
#RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding,
#SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw,
#OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Assumption of the Risk, Legal Case,
New Jersey, Pennsylvania, Ski Area, Ski Area Statutes, Skiing / Snow Boarding,
actionable, advertised, advertisement, ascertainable loss, Assumption of risk,
assumption of the risk, business practice, Camelback Mountain Ski Resort,
Cammelback, Cause of action, cognizable, common law, concealment, Consumer,
consumer fraud, Downhill, factual allegations, Immunity, material fact,
merchandise, misleading, New Jersey, New Jersey Consumer Fraud Act, NJCFA,
omission, presumed to know, quotation marks omitted, reasonable inference,
residents, Ski Resort, Skier’s Responsibility Act, skiing, Snow, Sport, tort
liability, unlawful practice,


 

 


Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

Gyl Cole, et al., Plaintiffs, v. Camelback Mountain Ski Resort, et al., Defendants.

3:16-CV-1959

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2017 U.S. Dist. LEXIS 100183

June 28, 2017, Decided

June 28, 2017, Filed

CORE TERMS: skiing, advertisement, omission, ski resort, consumer, immunity, consumer fraud, presumed to know, residents, quotation marks omitted, downhill, common law, cause of action, factual allegations, assumption of risk, unlawful practice, sport, business practice, ascertainable loss, material fact, merchandise, concealment, advertised, cognizable, actionable, misleading, snow, Skier’s Responsibility Act, tort liability, reasonable inference

COUNSEL: [*1] For GYL COLE, RONALD COLE, her husband, Plaintiffs: EDWARD F. BEZDECKI, LEAD ATTORNEY, TOMS RIVER, NJ.

For CAMELBACK MOUNTAIN SKI RESORT, Defendant: Samuel J. McNulty, LEAD ATTORNEY, Hueston, McNulty, PC, Florham Park, NJ.

JUDGES: Robert D. Mariani, United States District Judge.

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

This matter presents the following question to the Court: Does a plaintiff state a cause of action for violation of the New Jersey Consumer Fraud Act when he or she alleges that a Pennsylvania ski resort advertised its business in New Jersey but failed to include any information in its advertisements regarding the protections from tort liability the business enjoyed under Pennsylvania law? For the reasons that follow, the Court finds that such a claim is not cognizable under the New Jersey Consumer Fraud Act.

I. Introduction and Procedural History

The above captioned matter was first removed from the Superior Court of New Jersey, (Doc. 1), and then transferred by the District Court for the District of New Jersey to this Court, (Docs. 10). Plaintiffs, Gyl and Ronald Cole, represented by counsel, bring a two count Complaint against Camelback Mountain Ski Resort (“Camelback”), and two John [*2] Doe maintenance companies, (Doc. 1-1), concerning injuries that Gyl Cole sustained while skiing at Defendant Camelback’s skiing facility. Plaintiffs, both residents of New Jersey, allege that Defendants are liable both for negligence (Count I), and for violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2, (Count II). Defendant Camelback now moves to dismiss Count II of Plaintiffs’ Complaint. (Doc. 20).

II. Factual Allegations

Plaintiffs’ Complaint alleges the following facts:

Plaintiffs, Gyl and Ronald Cole, are husband and wife and reside in Waretown, New Jersey. (Doc. 1-1). Camelback is a snow skiing resort facility located in Pennsylvania. (Id. at 14). According to Plaintiffs’ Complaint, Camelback advertises its business heavily in New Jersey through a variety of forms of media. (Id.). Camelback’s advertisements, however, contain no information that, under Pennsylvania law, skiing facilities enjoy “immunity” from liability for the injuries patrons sustain while skiing. (Id.). On March 15, 2014, presumably after viewing one of Camelback’s advertisements, Gyl and Ronald Cole went skiing at Camelback’s skiing facility. (Id. at ¶¶ 1 , 3-4). While skiing on one of the black diamond slopes, Gyl Cole [*3] slammed into a six inch metal pipe and sustained severe injuries. (Id. at ¶ 3).

III. Standard of Review

A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 555 (internal citations and alterations omitted). In other words, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. A court “take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).

Twombly and Iqbal [*4] require [a court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (internal citations and quotation marks omitted). This “plausibility” determination will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

IV. Analysis

Count II of Plaintiffs’ Complaint alleges a violation of the New Jersey Consumer Fraud Act (“NJCFA”). (Doc. 1-1 at ¶¶ 13-22). The NJCFA was enacted to address “sharp practices and dealings in the marketing of merchandise1 and real estate whereby the consumer could be victimized by being lured [*5] into a purchase through fraudulent, deceptive or other similar kind of selling or advertising practices.” Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 390 A.2d 566, 569 (N.J. 1978). “The Act creates a private cause of action, but only for victims of consumer fraud who have suffered an ascertainable loss.” Weinberg v. Sprint Corp., 173 N.J. 233, 801 A.2d 281, 291 (N.J. 2002).

1 Under the NJCFA, the term “merchandise” is broadly defined to “include any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale.” N.J. Stat. Ann. § 56:8-1

“A consumer who can prove (1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss, is entitled to legal and/or equitable relief, treble damages, and reasonable attorneys’ fees.” Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 25 A.3d 1103, 1115 (N.J. 2011) (quotation marks omitted).

Unlawful practices include

[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .

N.J. Stat. Ann. § 56:8-2. The New Jersey Supreme Court has specified that “[u]nlawful practices fall into three general categories: affirmative acts, knowing omissions, and regulation violations.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454, 462 (N.J. 1994).

In the case at hand, Plaintiffs assert that the unlawful practice that Defendant Camelback allegedly engaged [*6] in was a failure to inform, i.e., an omission. (Doc. 1-1 at ¶ 14; Doc. 29 at 4). Under the NJCFA, an omission is actionable “where the defendant (1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.” Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 297 (D.N.J. 2009). “Implicit in the showing of an omission is the underlying duty on the part of the defendant to disclose what he concealed to induce the purchase.” Id.

Plaintiffs’ Complaint alleges that Defendant Camelback failed to include any information in its advertisements with respect to the protections from tort liability it enjoyed under Pennsylvania law. Specifically, Plaintiffs’ Complaint alleges the following:

Camelback knew that their [sic] advertising heavily in New Jersey induced New Jersey residents to attend Camelbacks [sic] site in Pennsylvania. Camelback knew that it had immunity granted to it through the legislation passed by the Pennsylvania Legislature but at no time did Camelback ever tell New Jersey residences [sic] that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback. Knowing full well that they [sic] had this immunity, Camelback elected not to notify any of [*7] the invitees to their [sic] site about the immunity.

(Doc. 1-1 at ¶ 14).2 Defendant Camelback argues that this is insufficient to state a claim under NJCFA. (Doc. 22 at 7). Plaintiffs respond that they have adequately pleaded that “Camelback knew and should have advised the skiing public [through its advertisements] . . . that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback by the Pennsylvania Legislature.” (Doc. 29 at 4).

2 Additionally, and somewhat confusingly, the Complaint also alleges that “Camelback misrepresented to the New Jersey residents at large through its media blitz that the New Jersey residences [sic] can use Camelback facilities for snow skiing.” (Doc. 1-1 at ¶ 17). This singular statement is in stark contrast with the rest of the Complaint which alleges that Plaintiffs, both residents of New Jersey, did in fact engage in snow skiing at Camelback.

The inaptly described “immunity clause” Plaintiffs refer to is no doubt the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S. § 7102(c). The Act states:

(c) Downhill skiing.–

(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth, It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.

(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by [42 Pa. C.S. § 7102(a)-(a.1)]

42 Pa. C.S. § 7102, The Pennsylvania Supreme Court has made clear that “the Act did [*8] not create a new or special defense for the exclusive use of ski resorts, but instead kept in place longstanding principles of common law.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (Pa. 2010). The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Id. In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Id.

Thus, the Court arrives at the question of whether Plaintiffs’ state a claim under the NJCFA when they allege that Defendant Camelback advertised its Pennsylvania skiing facility to New Jersey residents but failed to include a disclaimer with respect to the Pennsylvania Skier’s Responsibility Act or the common law doctrine of voluntary assumption of risk. As this is a question of New Jersey state law, this Court must turn to the decisions of that state’s courts for an answer. U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir. 1996). The parties have not directed the Court to any [*9] New Jersey case–and the Court’s own research did not uncover any–that squarely addresses this issue. Nor have New Jersey courts apparently addressed the analogous issue of whether, under the NJCFA, advertisers are ever obliged to educate the public on the law applicable to their product absent other specific authority requiring such disclosures. Accordingly, it falls to this Court to predict how the highest tribunal in New Jersey would rule on the matter. Id. For the following reasons, this Court predicts that the New Jersey Supreme Court would find that such a claim is not cognizable under the NJCFA.

First, this is simply not the type of omission contemplated by the NJCFA. The Court is cognizant of the fact the NJCFA “is intended to be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud, and therefore to be liberally construed in favor of the consumer.” Gonzalez, 25 A.3d at 1115 (internal citations and quotation marks omitted). Additionally, the Court is aware that “[t]he statutory and regulatory scheme is . . . designed to promote the disclosure of relevant information to enable the consumer to make intelligent decisions in the selection of products and services.” Div. of Consumer Affairs v. Gen. Elec. Co., 244 N.J. Super. 349, 582 A.2d 831, 833 (N.J. Super. Ct. App. Div. 1990). [*10] Nevertheless, the NJCFA has limits. To qualify as an unlawful practice under the NJCFA, “[t]he practice must be misleading and outside the norm of a reasonable business practice.” Hughes v. TD Bank, N.A., 856 F. Supp. 2d 673, 680 (D.N.J. 2012); see also Miller v. Bank of Am. Home Loan Servicing, L.P., 439 N.J. Super. 540, 110 A.3d 137, 144 (N.J. Super. Ct. App. Div. 2015). Indeed, the “advertisement must have ‘the capacity to mislead the average consumer in order for it to be actionable. Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp. 2d 496, 501 (D.N.J. 2006) (quoting Union Ink Co., Inc. v. AT&T Corp., 352 N.J. Super. 617, 801 A.2d 361, 379 (N.J. Super. Ct. App. Div. 2002)). Finally, the omission must concern a material fact. Arcand, 673 F. Supp. 2d at 297. The alleged omission in this case, however, is not one of fact, is not misleading, and does not fall outside the norm of reasonable business practices.

Plaintiffs’ allege that Defendant Camelback failed to provide information in its advertisements concerning the Pennsylvania Skier’s Responsibility Act and the common law doctrine of voluntary assumption of risk. Initially, as omissions of law, these allegations fall outside of the statutory language of the NJCFA. Additionally, the type or nature of legal defenses to liability which a business may assert in the event of a lawsuit is not information normally included in an advertisement, as both parties have equal access to that information. Consequently, Defendant Camelback’s alleged failure to include such information does not imply its nonexistence and is therefore not [*11] misleading nor outside of the norm of a reasonable business practice. As such, omissions of this type are not actionable under the NJCFA.

Second, a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.” Atkins v. Parker, 472 U.S. 115, 130, 105 S. Ct. 2520, 86 L. Ed. 2d 81 (1985); see also Gilmore v. Taylor, 508 U.S. 333, 360, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) (“[A] citizen . . . is presumed to know the law . . . .”); Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986) (“Private citizens are presumed to know the law . . . .”); State v. Moran, 202 N.J. 311, 997 A.2d 210, 216 (N.J. 2010) (“Every person is presumed to know the law.”); Maeker v. Ross, 219 N.J. 565, 99 A.3d 795, 802 (N.J. 2014) (“[E]veryone is presumed to know the law . . . .”); Widmer v. Mahwah Twp., 151 N.J. Super. 79, 376 A.2d 567, 569 (N.J. Super. Ct. App. Div. 1977) (“[T]he principle is well established that every person is conclusively presumed to know the law, statutory and otherwise.”); cf. Commonwealth v. McBryde, 2006 PA Super 289, 909 A.2d 835, 838 (Pa. Super. Ct. 2006) (“[E]veryone is presumed to know the law; an out-of-state driver is not absolved from following the laws of this Commonwealth or any other state in which he or she chooses to drive.”). Thus, as a matter of law, Defendant Camelback’s advertisement did not have the capacity to mislead because the law presumes that Plaintiffs–and everyone else for that matter–already knew the information Defendant Camelback allegedly omitted. Stated otherwise, the law should not obligate Defendant Camelback to inform its prospective customers of what they [*12] already know.3

3 The Court, however, may have come to a different conclusion had Plaintiffs alleged that Defendant Camelback made an affirmative misrepresentation of the law in its advertisements. Nevertheless, such a situation is not presently before this Court.

Finally, if this Court were to come to the opposite conclusion, businesses would have almost unending liability. For example, a Pennsylvania retailor may be liable under the NJCFA if it advertised its clothing outlet to New Jersey residents but failed to include a disclaimer stating that a customer injured at the store by an employee’s negligence may have his or her recovery reduced if the shopper was also negligent. See 42 Pa. C.S. § 7102(a) (“[A]ny damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.”). Or a marketer of a curling iron may be liable under the NJCFA for failing to disclose to consumers that, even if they are injured due to a design flaw in the product, the users may not be able to recover for their injuries if “there was no reasonable alternative design” for the curling iron at the time of manufacturing. See Cavanaugh v. Skil Corp., 164 N.J. 1, 751 A.2d 518, 520 (N.J. 2000) (quotation marks omitted); see also N.J. Stat. Ann. § 2A:58C-3(a)(1). Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.

V. Conclusion

For the reasons outlined above, this Court will grant Defendant Camelback Mountain [*13] Ski Resort’s Motion to Dismiss Plaintiffs’ claim for violation of the New Jersey Consumer Fraud Act, (Doc. 20). A separate Order follows.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

AND NOW. THIS 29th DAY OF JUNE, 2017, upon consideration of Defendant Camelback Mountain Ski Resort’s partial Motion to Dismiss, (Doc.20), IT IS HEREBY ORDERED THAT the Motion is GRANTED. Count II of Plaintiffs’ Complaint, (Doc. 1-1), is DISMISSED WITH PREJUDICE.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Court Judge


Hassel Map: identifies ways to get consumers to buy, but also ways guests sued.

If you remove the hassles before the problem arises, do you eliminate the lawsuit possibilities?

I’ve always argued that lawsuits are a product of a series of events either prior to the injury or probably post injury that leads a guest or consumer to a lawyer and litigation.

Picture of consultant AJ Slywotzki

Picture of consultant AJ Slywotzki

Adrian Slywotzky is a consultant and author that developed the Hassel Map. It is a look at all the problems a consumer faces to make a purchase. The consumer is going to buy from the seller with the least amount of hassles. He uses examples such as Blockbuster and Netflix. It was a hassle to drive to the store, guess at what the family wanted to watch, rent extra movies in case you guess wrong, drive home, watch the movie then pay more money when you take it back late. Netflix eliminated the hassle.

I think this same argument can be made to look at how consumers or guests end up litigating. A lot of times you hear threats of litigation right after the accident happened. The injured guest has had a horrible day, and the day is capped with an injury. An example I use in the ski industry is:

·         Boots still wet

·         Long Underwear not totally dry

·         Breakfast was overpriced for what the family got.

·         Lift line was forever because the lift operator could not get lift functioning.

clip_image002

So by the time the skier is on a run he feels ripped off, cold, wet, already tired and like his morning has been wasted. A fall and injury at this point just lead to more anger. This accumulating anger, hassle, leads to threats of and maybe real litigation.

However post-accident hassle is probably an even bigger course that leads to lawsuits.

After in injury the skier deals with:

·         The ER is busy, so he waits for 20 minutes in pain.

·         He is transported to a distant city and can’t figure out how he is going to get back to his family.

·         He left his cell phone in the room and has no way to contact his family.

·         He is listening to a physician explains things that sound scary, but that he really does not understand much of what is being said.

·         All he really understands is wheel chair and crutches.

·         He has a $2500 deductible on his health insurance.

clip_image004

How can you eliminate or at least cut the hassle for this skier? Or maybe better stated how you can head off the lawsuit before it gets started?

Do Something

You don’t want to come up with money, but you can find ways to make a customer or a guest’s life better, before and after an injury. Sticking your head in the sand is not a solution.

Relying on your insurance company or your attorney may eliminate your hassle. However, it has just escalated the hassle factor or your former customer or guest.

In the above scenario, one easy step was giving all ERs that guests were sent to an 800 number, so they could call the resort. When a call came in from a hospital, it was assigned to a team to track down the family and make arrangements to get them together. Either transport them to the ER or transport the injured skier back to the resort.

Sure a bit of hassle and cost on the part of the resort, but look at the elimination of problems for the guest and the opportunity for the resort to look good in the eyes of the hassled guest.

How can you eliminate the hassle for your consumers and guests?

See Adrian Slywotzky Interview: What Is a Hassle Map?

What do you think? Leave a comment.

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

Copyright 2013 Recreation Law (720) Edit Law

Email: blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Adrian Slywotzky, Hassle Map,

WordPress Tags: Hassel,consumers,guests,lawsuit,possibilities,lawsuits,product,series,events,injury,guest,consumer,lawyer,litigation,Adrian,Slywotzky,consultant,author,seller,examples,Blockbuster,Netflix,movies,movie,money,argument,threats,accident,example,industry,Boots,Long,Underwear,Breakfast,Lift,operator,cell,room,physician,crutches,health,insurance,customer,life,solution,attorney,factor,scenario,resort,hospital,team,Either,Sure,cost,elimination,Interview,Hassle,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,skier


Maryland cycling product liability case shows why a good defense may wear down the plaintiff

 Alexander v. The Sports Authority, Inc., et al., 2007 U.S. Dist. LEXIS 43317

Pre-printed release allows most claims to proceed

Basically, a release you buy as a form or from a print shop is not valid and will not get you out of a lawsuit. Releases must be written by an attorney for your business as this bicycle retailer learns in with this decision.

The plaintiff was a 77-year-old man who purchased a bicycle from the retailer, the Sports Authority (TSA). The bicycle was made by Pacific Cycle, Inc., and Dorel Industries, Inc. The brakes on the bicycle were center pull brakes and after riding the bike a half-dozen times the plaintiff used the brakes and fell. He claimed center pull brakes were only for experts, and he was not an expert cyclist. The plaintiff claimed:

Count I that Defendants were negligent, careless, and reckless because TSA failed to provide proper training in the use of high-performance brakes at the point of sale and Pacific Cycle installed brakes designed for experienced riders on a bicycle meant for the general public’s use. In Count II, Plaintiff alleges that Defendants are strictly liable for his injuries because the bicycle was placed in the stream of commerce and sold in a defective and unreasonably dangerous condition.

At the time, the plaintiff bought the bike; he completed a “sales/repair ticket” which included release language and language that stated the plaintiff had been educated in the use of the bike and the brakes. “I have been shown the proper way to operate the shifting, braking and release mechanisms of this bicycle.” The sales/repair ticket was a form used by man bike shops.

The defendant retailer The Sports Authority filed a motion for summary judgment, which led to this appeal. The basis of the appeal was:

(1) the release agreement Plaintiff signed expressly releases TSA from liability, (2) TSA had no duty to train Plaintiff, (3) Maryland law provides a statutory defense to sellers in defective design cases such as this, and (4) Plaintiff’s disregard for the written warnings is an intervening cause of his injury and provides a defense to strict liability.

Summary of the case

Release written poorly

The first argument the court looked at was the issue of the release that was part of the Sales/Repair Ticket. The release only released the retailer and did not release the manufacturers. This allowed the plaintiff to argue the release should not allow the defendant retailer out of the case because their issues were no different from the two other defendants not protected by the release. The court agreed. Although there was nothing wrong with the release, because it did not protect all the defendants, it could not be used for just one defendant.

Arguments to void release under Maryland law

Under Maryland law, a court looks at a release or contract to determine the effect of the release based on the intentions of the parties. This requires a release to be written properly under Maryland law. Here the court did not find the release was written in a way to cover the interpretation the retailer was arguing. The major issue was the language did not protect the other defendants so those claims that were joint against the other defendants and TSA, kept TSA in the lawsuit. If the plaintiff had not named the other defendants, the release would have protected TSA.  Simply put the language of the release did not cover the claims of the plaintiff.

The court also looked at what it took to void a release under Maryland law.

(1) when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence; (2) when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; and (3) when the transaction involves the public interest.

The issues that void a release are basically the same under Maryland law as in other states. The first one is the acts of the defendant intentionally harmed the plaintiff. No contract protects against intentional acts, and no insurance policy covers intentional acts. If you do something intentionally that injures someone you are going to write a check.  The next two issues are similar to public policy arguments. The first is the plaintiff has no choice but to contract with the defendant and no choice but to take the contract on the terms offered by the defendant. The second is a purer public policy argument where the item offered by the defendant is public interest such as utilities, food or public transportation. Under Maryland law, a public interest that cannot use a release is:

…the performance of a public service obligation, e.g., public utilities, common carriers, innkeepers, and public warehousemen. It also includes those transactions, not readily susceptible to definition or broad categorization, that-are so important to the public good that an exculpatory clause would be “patently offensive,” such that “the common sense of the entire community would . . . pronounce it” invalid.

The court found that the sale of a bicycle did not fall within any of the categories in this case that would void the release.

Failure to name defendants specifically

The next argument is one that has been made several times in releases and bicycle shops. Many bicycle shops purchase pre-printed forms from bicycle companies that include a release. The forms cover rentals, repair checklists, inventory issues, etc. The release does not name the defendant, but just refers to the “bicycle shop.” This argument has been made several times in other cases and someday may succeed. Here it did not, because the court found it was clear enough to the parties that the term bicycle shop referred to TSA in the release. However, as stated above, the release kept the lawsuit going because it only referred to the bicycle shop, not the manufacturers.

Release stated the plaintiff had been educated in how to use the bicycle

The next argument the court reviewed was the statement in the release that said the plaintiff has been shown the “the proper way to operate the shifting, braking and release mechanisms of this bicycle….” The court quickly dismissed the argument that the plaintiff should not be held to this defense because the plaintiff signed the agreement, so he had been instructed.

The court then looked at the plaintiff’s argument that the bicycle shop had failed to train the plaintiff in how to ride the bike and operate the equipment. The court held that there can be no negligence where there is no duty. Bicycle shops have no requirement to train people in how to ride a bike. Remember negligence has for things that must be proven to win a lawsuit. The first is there must be a duty between the plaintiff and the defendant. Here, the shop had no duty to train a buyer in how to ride a bicycle.

Expert Witness not qualified

One interesting issue the court looked at was the plaintiff’s attempt to establish a duty on the part of the retailer to train a buyer using an expert witness. The expert witness testified that there was a duty to train a buyer on how to use and ride a bike. However, the court found the expert witness’s credentials did not show any retail experience that would allow the expert to give that opinion retailer issues. An expert can only provide an opinion on those things he has training, knowledge, education or experience in. Because the expert witness’s resume or CV did not show any retail experience, the court questioned his ability opining about those issues. The court did give the plaintiff two weeks to come back with an additional statement showing that expert did have retail experience.

Maryland “sealed container” defense

The next issue was an argument raised by the defendant retailer, TSA, based on a Maryland statute. The statute is called the “sealed container” defense. The statute says a retailer cannot be held liable under a product’s liability claim for a product that has not been changed by the retailer. The defense is effective if the product is sold in a sealed container not changed or altered by the retailer. Here, however, the court found the bike had been sold out of the box. For the statute to provide a defense the bike would have to have been sold by the store in the original box the bike came to the store in.

The defense also failed because the defendant retailer hired a third party to build the bike.

The basis for the theory behind the statute is a retailer could not have found any defect in the product if they never opened the box the product came in. Courts in product liability claims hold that any person in the chain of sale from the manufacturer to the final seller is liable for a product liability claim because anyone of them could have discovered the defect in the product and prevented the injury to the consumer.

The court withheld its ruling on this issue until a later time because TSA hired the third party to build the bikes as stated above which further confused the defense.

Strict Liability Claim

Strict liability is a claim in product’s liability cases that argues the manufacturer and others in the chain of commerce are liable for placing a dangerous product into the hands of a consumer. Strict liability claims have very few defenses other than the item was not defective and unreasonably dangerous. Under Maryland law, a product is defectively dangerous if:

…if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it with the ordinary knowledge common to the community as to the product’s characteristics….

A strict liability claim can be beaten if the manufacturer can prove that the consumer was warned of the risks. Here the court looked at the owner’s manual about the brakes and found the plaintiff’s strict liability argument did not apply. The manual informed the plaintiff of the risks.

It cannot be said enough, written about enough or argued enough, owner’s manuals are critical and must notify people of the issues, warn consumers of all risks of a product.

Here because the plaintiff failed to adhere to the warnings in the owner’s manual, the strict liability claim was dismissed.

So Now What?

This case was not over after the decision, and it had no other appeals to determine what happened with the case. Probably, the case settled sometime after this appeal was written. However, the case is very informative on the issues of Maryland law and product’s liability issues in general.

Specifically

1.      If you are going to use a release, have a release written that works in your state, for your business, for your legal issues. Make sure your release protects you and everyone else that should be protected. Here the release was written badly. The release escaped the claim of the defendant retailer not being identified but failed to protect the other people in the chain of sale, which allowed the case to continue. Ultimately, the release did not protect the retailer.

You, your suppliers, distributors, manufacturers, bike builders, other riders, and everyone else reasonable connected to the release, sale or event should be protected.

2.    Sell the right product to the right person. This case never would have happened if the plaintiff had purchased a bicycle he understood and knew how to use.

This does not mean you cannot upsell someone or move them into  better products. However moving someone who has not ridden a bike in a while from a coaster brake to hand brakes, requires a little more thinking. If you don’t have the right bike, is it worth the money you are going to make on the sale to make a customer this unhappy.

3.    If you are a manufacturer make sure if you are selling in the US (or North America, for that matter) that your release is written in English and contains are the necessary warnings. Written in English does not mean translated from a foreign language into English, but translated and written in English.

Warning labels have to cover everything. You may not consider them warnings; they may just be educational issues. However, the court will look at that education as a warning label.

Any warning label on the bike or product should also be repeated in the manual.

I strongly suggest that all owners’ manuals be available on your website also. Also in the owner’s manual make sure that the manual instructs the purchaser to refer to the website for changes, updates or new warnings.

4.    Always make sure that every manual, hangtag, sticker, or warning that comes in the box from the manufacturer goes out the door with the product when the bike is sold. The strict liability defense would have failed if the warning label had been left on the shop floor, and the sole issue of the case would have been how much, not if.

5.     If you are a manufacturer, tell your retailers to protect you or better, develop a program where retailers, and you work together from the beginning to beat lawsuits. Make sure the retailer has a good release that protects all parties. Make sure the retailer knows to tell purchases to read the owner’s manual and to go to your website to learn more about the product.

6.    If you are a manufacturer make your website more than just a sales site. It is a place where people can learn how to use your product. (And having a “community” site where other consumers using the product improperly tell your new customers how to use it improperly is not an answer.) Education and information are an effective way to keep customers happy and stop lawsuits.

This lawsuit would have ended if the release had been written properly. Buying a release from a form’s seller or a printing shop is buying trouble, not a defense. Nor is a release a stroke of luck. A well-written  release in 43 states stops lawsuits. (See States that do not Support the Use of a Releasefor the states that do not support a release.)

For more product liability articles see:

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

How not to respond to a product liability claim or How to turn a mess into a legal disaster.

How to fight a Bicycle Product Liability case in New York. One step at a time.

Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court.

PR Disaster should not be turned into bigger disasters

Sometimes your editorials come true: Even more so when they occurred in the past, and you found it later.

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For additional articles on cycling legal issues see:

Connecticut court works hard to void a release for a cycling event

Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.

PA court upholds release in bicycle race.

Release for training ride at Triathlon training camp stops lawsuit

What do you think? Leave a comment.

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

Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, TSA, The Sports Authority, Pacific Cycles, Bicycle, Cycling, Center Pull Brakes, Product Liability, Strict Liability, Owner’s Manual, Release, Maryland, MD,

WordPress Tags: Maryland,product,plaintiff,Alexander,Sports,Dist,LEXIS,TITLE,lawsuit,Releases,attorney,bicycle,retailer,decision,Pacific,Cycle,Dorel,Industries,bike,experts,Count,Defendants,performance,sale,riders,injuries,commerce,sales,ticket,mechanisms,defendant,judgment,basis,agreement,sellers,warnings,injury,Summary,Release,argument,Repair,manufacturers,Although,Arguments,Under,intentions,Here,interpretation,clause,negligence,mercy,transaction,insurance,policy,item,utilities,food,transportation,obligation,carriers,innkeepers,transactions,definition,categorization,categories,Failure,Many,rentals,checklists,inventory,statement,equipment,requirement,Remember,buyer,Expert,credentials,opinion,knowledge,education,statute,theory,Courts,person,manufacturer,seller,consumer,bikes,Strict,Claim,extent,characteristics,owner,manuals,consumers,Make,suppliers,distributors,builders,event,Sell,products,coaster,worth,money,customer,North,America,English,Written,owners,Also,purchaser,sticker,door,retailers,lawsuits,customers,information,luck,States,Support,Combination,Report,disaster,York,Jurisdiction,Massachusetts,Salomon,France,disasters,Sometimes,editorials,Connecticut,Michigan,renter,doctrine,Primary,Assumption,Risk,Triathlon,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Cycles,Center,Pull,Brakes,Manual,third,website