New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.

Release probably not written by an attorney and never had specific language that stated that the plaintiff’s claims for negligence would be barred by signing the agreement.

Gillette v. All Pro Sports, LLC., 2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573

State: Florida, Court of Appeal of Florida, Fifth District

Plaintiff: Carol Ann Gillette

Defendant: All Pro Sports, LLC., D/B/A Family Fun Town

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 2013

This is a very short decision by the Florida appellate court about a release used in a Go Kart case.

The plaintiff crashed into the barrier suffering injuries. She claimed, “Appellee’s employee negligently increased the Go-Kart speed during a race, causing her to lose control of the Go-Kart and crash into the railing.”

Prior to riding the Go-Karts the plaintiff signed a release. The trial court dismissed the plaintiff’s claims because of the release. The plaintiff appealed, and the appellate court reversed finding the release did not meet the necessary requirements under Florida’s law.

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

The court put the entire release in its opinion and said under Florida, as in all other states, a contract is construed against the person who wrote it, or a release is construed against the person the release is supposed to protect. “Clauses that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability.”

That means that the author bears the burden and the loss if the contract is written poorly. That applies to all contracts and releases. What that means, unless the parties agree in advance in the document, any mistakes in the document are held against the person who wrote the document.

Under Florida’s law, a release, a release must clearly state that the person signing it is giving up their legal right to sue. “To be effective, the wording of such clauses must be so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away.”

There was no language in the alleged release that specifically states the plaintiff is giving up their legal rights.

Here, the release does not expressly state that it includes Appellee’s negligence and, when the document is considered in its totality, it is not clear that negligence of the sort here was intended to be within the scope of the release.

There is language pointing out to the plaintiff that she cannot sue if she is injured due to the negligence of the defendant.

So Now What?

This was a simple case. The release was not a release. It did not have the necessary language to provide notice to people signing it that they were giving up their legal right to sue.

At the trial court, the defendant might still be able to win by using the failed release as an assumption of risk document. The assumption of risk document will be effective if the injury the plaintiff complains of is identified in the assumption of risk document as a risk the plaintiff agreed to assume.

clip_image002What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

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

 


Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.

Release lacked one clause and consequently, failed to protect the defendant sending the case to trial.

Weinrich v. Lehigh Valley Grand Prix Inc, 2015 Pa. Dist. & Cnty. Dec. LEXIS 79

State: Pennsylvania: Common Pleas Court of Lehigh County, Pennsylvania, Civil Division

Plaintiff: Nicholas Weinrich

Defendant: Lehigh Valley Grand Prix Inc, incorrectly Identified As Lehigh Valley Grand Prix LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release & Premises Liability

Holding: For the Plaintiff

Year: 2015

This is an interesting case. The activity is outside the normal area of the law covered by this site; however, the legal issues are very important to everyone reading these posts.

The plaintiff was injured driving a go-kart around the defendant’s go-kart track. This was the second time the plaintiff had been at the go-kart track; the first time was about six months prior.

While driving around the track a piece of plastic from the guard rail was sticking into the track. The plaintiff drove past it and it hit is leg giving him a two-inch laceration.

The plaintiff had signed a release the first time he attended the go-kart track which was six months prior to the date of his injury. He did not sign one the second time when he was injured. The defendant stated that people who have already signed a release are not asked to sign one again.

The defendant filed a motion for summary judgment based on the release the Pennsylvania Premises Liability Act. The act stated that a defendant’s business did not owe a duty to the business invitee for open and obvious hazards.

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

First, the court reviewed the requirements for a release to be valid in Pennsylvania.

First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly; each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.

The next issue was whether a release for recreational issues violates public policy in Pennsylvania. Again, releases for recreational activities do not violate Pennsylvania public policy concerns. Participants are free to go to any recreational facility or none at all.

In the context of recreational activities, releases generally function as a bar to liability because the party executing the release is free to choose whether or not he or she wants to participate in the activity. Such releases do not contravene public policy. However, where the injury was caused by recklessness or gross negligence, enforcement of the release would contravene public policy and the releases are thereby rendered void under those circumstances.

The court then got into the real issue. The plaintiff argued the release was not valid because he had signed the release six months prior to the date of his injury. The issue then resolved around when a contract terminates. Normally, a contract terminates based on a date or time frame which is based on language within the contract itself. This release had no language as to how long the release was supposed to last. “The salient issue in evaluating the instant waiver is that the language on the form neither limits the time for its applicability nor specifies the event or occasion to which it applies.”

Generally, time frames are to be determined by the parties to the agreement. If not by the parties, then the language of the release is to be examined for an indication of time. Failing language in the release terminating the agreement, the court can infer from the parties intended performance, which must be within a reasonable amount of time.

Since the release had no language on termination, then the court determined the release terminated within a reasonable amount of time. Since this was not defined, then a term, phrase or clause was missing from the release.

If an essential term is left out of a contract, the court can infer the term. (An essential term is always the one that the issue resolves around in court.)

In this case, the release Plaintiff executed is silent as to duration. Based on the foregoing case law, the Court determines that this is an essential term which is left out of the agreement. Therefore, a reasonable term is to be imposed instead of invalidating the release as a whole. Id. Because contract principles further dictate that contractual duration is presumed to be for a reasonable amount of time in the absence of a specified time for performance, the parties’ release must therefore be deemed to apply for a reasonable period of time.

However, since the reasonable period of time is not set forth by the industry, parties, the release or the law, that time period must be determined by the factfinder. The fact finder when a case has been set for a jury trial is the jury. “What constitutes a reasonable time, however, is generally a question of fact to be resolved by the factfinder.”

Consequently, Defendant’s argument in support of summary judgment based on the existence of a release must be denied. Summary judgment is only appropriate where there is no genuine issue of material fact. Whether six months following the execution of a release for a recreational activity constitutes a reasonable amount of time is a question more appropriately posed to a finder of fact. The reasonableness of the duration in question is therefore, a genuine issue of material fact and summary judgment is inappropriate.

The simple phrase stating the release is valid for a year or more sent this case back to the jury for trial.

The other issue argued by the defendant was the definition of a business invitee which as defined did not create liability on the part of the defendant. A landowner does not owe a duty for open and obvious conditions on the land. In this case, the open and obvious condition would be the piece of plastic sticking out into the track.

As a general rule, possessors of land are not liable to invitees for physical harm caused to them by activities or conditions on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness.

The issue of open and obvious then was reviewed as it is defined in Pennsylvania.

A danger is deemed to be “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 and gravity of the threatened harm must be appreciated.”

Generally in Pennsylvania, a landowner has no duty to protect business invitees from open and obvious dangers. “In the context of amusement facilities, Pennsylvania courts have held that there is no duty to protect participants against the typical risks attendant to those activities.”

However, here again whether something is open and obvious in this case, a plastic part peeling off a guard rail is something that must be determined by the factfinder.

Nonetheless, the question of whether conditions on land were, in fact, open and obvious is generally a question of fact for a jury to decide. Id. It may be decided by a court where reasonable minds could not differ as to the conclusion.

Because in both cases, the release and the definition of the law required completion by the fact finder, the case was sent back for trial.

Summary judgment would not be appropriate on these grounds because there are factual issues regarding constructive notice and whether there were appropriate steps undertaken by Defendant. Testimony before a factfinder is necessary to assess whether and to what extent the employees were aware in advance of the existence of the dangerous condition. These are all factual questions to be resolved by a factfinder.

So Now What?

Here again, the release failed either because of a lazy program, an ineffective system or with both those failing a release that is missing components.

Either every time someone comes to your facility, event or business, they sign a release, or you have a system that tracks when people have signed the release and not and a release that covers that period of time.

At a minimum, you should have someone sign your release yearly. Season’s change, activities change and you might change your business, program, activities, anything and everything. That change may need to be placed in your release and at least follows up on.

This change in your program or start of the new year or season is the perfect opportunity to have an attorney review your release. Inform your attorney of any changes in your operation. Have your release checked to make sure it will do the job you and your insurance company expect it to do.

clip_image002What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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Weinrich v. Lehigh Valley Grand Prix Inc, 2015 Pa. Dist. & Cnty. Dec. LEXIS 79

Weinrich v. Lehigh Valley Grand Prix Inc, 2015 Pa. Dist. & Cnty. Dec. LEXIS 79

Nicholas Weinrich, Plaintiff -VS- Lehigh Valley Grand Prix Inc, incorrectly Identified As Lehigh Valley Grand Prix LLC, Defendant

File No. 2014-C-0226

COMMON PLEAS COURT OF LEHIGH COUNTY, PENNSYLVANIA, CIVIL DIVISION

2015 Pa. Dist. & Cnty. Dec. LEXIS 79

August 14, 2015, Decided

CORE TERMS: summary judgment, track, plastic, depositions, public policy, citations omitted, duration, genuine, issue of material fact, question of fact, reasonable amount, contravene, factfinder, covering, invitee, silent, rink, dangerous condition, constructive notice, protruding, inspection, customer, go-kart’s, execute, notice, repeat, snap, general rule, moving party’s, liability theory

COUNSEL: [*1] Robert G. Bauer, Esq. for Plaintiff.

Ian T. Baxter, Esq. for Defendant.

JUDGES: Douglas G. Reichley, J.

OPINION BY: Douglas G. Reichley

OPINION

ORDER

AND NOW, this 14 day of August, 2015, upon consideration of Defendant’s Motion for Summary Judgment, filed May 19, 2015, and after argument conducted August 12, 2015,

IT IS ORDERED Defendant’s Motion is DENIED for the reasons set forth in the accompanying Memorandum Opinion.

By the Court:

Douglas G. Reichley, J.

Memorandum Opinion

Lehigh Valley Grand Prix, Inc., Defendant, owns and operates a go-kart track located at 649 South 10th Street, Allentown, Lehigh County, Pennsylvania. Nicholas Weinrich, Plaintiff, filed the instant action alleging he was injured while patronizing the facility. On May 19, 2015, Defendant filed a Motion for Summary Judgment. For the reasons set forth herein, Defendant’s motion is denied.

Factual and Procedural History

According to the Complaint, on June 4, 2012 at approximately 8:15 p.m, Plaintiff was operating a go-kart on Defendant’s track during which time a piece of the plastic covering the guardrail broke and was sticking out toward the track. As Plaintiff drove around the track, the plastic caught his go-kart’s bumper causing it to snap into his [*2] left leg. Plaintiff sustained a laceration on his leg less than two inches wide.

During depositions, Plaintiff testified that six months prior to the incident, he patronized Defendant’s facility without issue. On the date in question, Plaintiff completed two laps and did not notice the plastic covering jutting out. On his third lap, Plaintiff came around the adjacent turn and maintained momentum. He was near the wall, and the piece of the plastic guard was hanging out, bent toward him. He heard a loud snap, and subsequently felt pain in his calf.

Deposition testimony from Defendant’s staff indicated that the protrusion onto the track was common enough that employees were trained on how to repair it. Defendant’s owner conceded that it was possible for the plastic piece on the wall to snap and protrude onto the track.

Six months before the incident in question, on December 4, 2011, Plaintiff patronized Defendant’s establishment. At that time he was required to execute a waiver in order to participate in the race. When he returned in June of 2012, he was not presented with his original waiver, nor was he asked to execute a second one. Testimony from Michael Achey, the manager of Defendant’s [*3] establishment, indicated that repeat customers are not asked to re-execute the waiver. (N.T. Deposition of Michael P. Achey, February 25, 2015, at 45.) Mr. Achey acknowledged that while he has indicated to some repeat customers that they did not need to execute another waiver because one was already on file, he did not say that to every repeat customer. (Id. at 45-46.)

Plaintiff filed his Complaint on April 4, 2014. Defendant filed its Answer on April 29, 2014. On May 19, 2015, Defendant filed the instant Motion for Summary Judgment. Plaintiff filed his response on June 19, 2015. Defendant filed a sur-reply brief on August 6, 2015. The Court heard oral argument on August 12, 2015, after which time the matter was taken under advisement.

This Opinion follows.

Discussion

The standard of review for a motion seeking summary judgment is as follows:

A trial court properly enters summary judgment if “there is no genuine issue of any material fact as to a necessary clement of the cause of action.” Pa.R.C.P. 1035.2(1). The moving party’s right to summary judgment has to be clear and free from doubt after examination of the record in a light most favorable to the non-moving party and resolution of all doubts as to the existence [*4] of a genuine issue of material fact against the moving party

Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652, 657 (Pa. Super. 2009).

Defendant seeks summary judgment on two grounds. First, Defendant argues that Plaintiff executed a voluntary waiver which bars his recovery. Second, Defendant argues that even if the release were not binding and valid, as a landowner, Defendant cannot be held liable under these circumstances under a premises liability theory.

In Pennsylvania, exculpatory agreements must be strictly construed. Employers Liability Assurance Corp. v. Greenville Business Men’s Assoc., 423 Pa. 288, 224 A.2d 620, 623 (1966). Releases from liability are disfavored as a matter of public policy, but are nonetheless “valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (quoting Topp Copy Products, Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993)).

The courts of Pennsylvania have traditionally determined the effect of a release using the ordinary meaning of its language and interpreted the release as covering only such matters as can fairly be said to have been within the contemplation of the parties when the release was given. Moreover, releases [*5] are strictly construed so as not to bar the enforcement of a claim that had not accrued at the date of the execution of the release.

Fortney v. Callenberger, 2002 PA Super 182, 801 A.2d 594, 597 (Pa. Super. 2002) (citations and internal quotation marks omitted).

In the context of recreational activities, releases generally function as a bar to liability because the party executing the release is free to choose whether or not he or she wants to participate in the activity. Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190, 1197 (Pa. 2012). Such releases do not contravene public policy. Id. However, where the injury was caused by recklessness or gross negligence, enforcement of the release would contravene public policy and the releases are thereby rendered void under those circumstances. Id.

The relevant language of the release in question provides:

IN CONSIDERATION of being permitted to compete, officiate, observe, work, or participate in the EVENT(s), use the equipment, premises, facilities and/or services of Lehigh Valley Grand Prix, LLC., [the undersigned agrees to the release terms] …

Plaintiff argues that the waiver was no longer valid on the date in question because he executed it six months prior to the date of the accident. In support of this argument, Plaintiff does not cite any case law from Pennsylvania or any federal [*6] authority interpreting Pennsylvania law on this matter. The sole case upon which Plaintiff relics is a Florida case, Cain v. Banka, 932 So.2d 575 (Fla. 5th DCA 2006), which held a release unenforceable because the release contained no express language advising the plaintiff that it covered every future visit to a motocross track.

There are not any Pennsylvania cases reflecting the Florida court’s holding. Federal cases interpreting Pennsylvania law merely look at the language of the release to gauge its degree of applicability. See Savarese v. Camelback Ski Corp., 417 F.Supp.2d 663, 667 (M.D. Pa. 2005) (applying Pennsylvania law, language on the back of a ski lift ticket constituted a valid exculpatory agreement once the plaintiff purchased the ticket).

The salient issue in evaluating the instant waiver is that the language on the form neither limits the time for its applicability nor specifies the event or occasion to which it applies. When asked about the release’s duration during oral argument, Defendant’s counsel maintained that the waiver would be effective forever without limitation.

“As a general rule, releases encompass only such matters as may fairly be said to have been within the contemplation of the parties when the release was given.” Farrell v. Lechmanik, Inc., 417 Pa. Super. 172, 611 A.2d 1322, 1323 (Pa. Super. 1992). “[I]t is axiomatic that releases are construed in accordance [*7] with traditional principles of contract law, fundamental to which is the directive that the effect of a release must be determined from the ordinary meaning of its language.” Maloney v. Valley Med. Facilities, Inc., 2008 PA Super 32, 946 A.2d 702, 706 (Pa. Super. 2008) (internal quotation marks and citations omitted). Under contract principles, where a contract is silent as to the time for performance, courts must infer that the parties intended that performance occur within a reasonable amount of time. Cashdollar v. Mercy Hosp. of Pittsburgh, 406 Pa. Super. 606, 595 A.2d 70, 76 (Pa. Super. 1991) (“When the exact period for which the parties intended to contract cannot be ascertained, the agreement is not vitiated; rather, an agreement for a ‘reasonable time’ will be inferred.”).

In construing a contract, courts must adopt “an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” Metzger v. Clifford Realty Corp., 327 Pa. Super. 377, 476 A.2d 1, 5 (Pa. Super. 1984) (citation omitted). “If an essential term is left out of the agreement, the law will not invalidate the contract but will include a reasonable term.” Stephan v. Waldron Elec. Heating & Cooling LLC, 2014 PA Super 205, 100 A.3d 660, 668 (Pa. Super. 2014) (quoting RegScan, Inc. v. Con-Way Transp. Services, Inc., 2005 PA Super 176, 875 A.2d 332 (Pa. Super. 2005)).

In this case, the release Plaintiff executed is silent as to duration. Based on the foregoing case law, the Court determines that this is an essential term which is left out of the agreement. Therefore, a reasonable [*8] term is to be imposed instead of invalidating the release as a whole. Id. Because contract principles further dictate that contractual duration is presumed to be for a reasonable amount of time in the absence of a specified time for performance, Metzger, 476 A.2d at 5, the parties’ release must therefore be deemed to apply for a reasonable period of time. What constitutes a reasonable time, however, is generally a question of fact to be resolved by the factfinder. See, e.g., Yates v. Clifford Motors, Inc., 283 Pa. Super. 293, 423 A.2d 1262, 1268 (Pa. Super. 1980) (in the Uniform Commercial Code context, whether goods were rejected within a reasonable amount of time where contract was silent as to time for rejection was question of fact for jury).

Consequently, Defendant’s argument in support of summary judgment based on the existence of a release must be denied. Summary judgment is only appropriate where there is no genuine issue of material fact. Whether six months following the execution of a release for a recreational activity constitutes a reasonable amount of time is a question more appropriately posed to a finder of fact. The reasonableness of the duration in question is therefore a genuine issue of material fact and summary judgment is inappropriate.

Defendant also argued in its motion [*9] that even if the release was not binding and valid, as a landowner, Defendant cannot be held liable under these circumstances under a premises liability theory. Plaintiff in this case was an invitee for premises liability purposes. An invitee is someone who is “invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” Restatement (Second) of Torts §332 (1965).

As a general rule, possessors of land are not liable to invitees for physical harm caused to them by activities or conditions on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts, § 343A. A danger is deemed to be “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.” Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 123-24 (Pa. 1983) (citation omitted). “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 and gravity of the threatened harm must be appreciated.” Id. at 124.

Nonetheless, the question of whether conditions on land were in fact open and obvious is generally [*10] a question of fact for a jury to decide. Id. It may be decided by a court where reasonable minds could not differ as to the conclusion. Id.; see also Long v. Manzo, 452 Pa. Super. 451, 682 A.2d 370, 373 (Pa. Super. 19%) (citation omitted) (issues of plaintiff’s knowledge of condition creating unreasonable risk of harm usually for jury to decide, but may be decided by court where reasonable minds could not differ).

In the context of amusement facilities, Pennsylvania courts have held that there is no duty to protect participants against the typical risks attendant to those activities. See Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525 (Pa. Super. 1983) (roller rink has no obligation to protect patrons from falling down or being bumped by other skaters). A duty arises only where the risks at play are atypical. See id. (liability found where accident attributable to a condition unique to defendant skating rink, i.e. a 60-foot wide opening in the rink and a 6″ drop-off on its side).

With respect to the requirement for notice, Plaintiff argued that Defendant’s employees’ depositions demonstrate an acute awareness that the sort of dangerous condition at issue–the broken plastic piece protruding into the racetrack–was something for which they were trained. While the record is devoid of evidence supporting [*11] actual notice, Plaintiff argued Defendant had constructive notice.

Neither the witnesses who were deposed nor Plaintiff testified that the plastic was protruding into the track for an extended period of time. The testimony at the depositions indicated that there are three scheduled inspections of the racetrack per day: morning, noon, and night. None of those inspections revealed the dangerous condition. There is also a visual inspection of the track in between each race according to the testimony offered by Michael McCreary, Defendant’s owner. Defendant’s employees, Michael Achey (manager) and Corey Dewalt (track marshal) conceded that it was possible that the protruding plastic could have been missed.

Summary judgment would not be appropriate on these grounds because there are factual issues regarding constructive notice and whether there were appropriate steps undertaken by Defendant. Testimony before a factfinder is necessary to assess whether and to what extent the employees were aware in advance of the existence of the dangerous condition. These are all factual questions to be resolved by a factfinder.

Conclusion

Because there is an outstanding factual issue concerning whether six [*12] months after execution of the subject release is a reasonable period of time for the release to remain in effect, Defendant’s Motion for Summary Judgment on the ground of the release must fail. Further, there are outstanding factual questions concerning constructive notice which render summary judgment inappropriate on that basis. Accordingly, Defendant’s Motion for Summary Judgment is denied.

By the Court:

Douglas G. Reichley, J.

8/14/15