75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense.

Tennessee’s duty to protect its citizens more than its duty to safety to invitees to its state parks is refreshing.

Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

State: Tennessee Court of Appeals

Plaintiff: Evelean Morgan

Defendant: State of Tennessee

Plaintiff Claims: negligently creating or maintaining a dangerous condition at Colditz Cove State Natural Area

Defendant Defenses: (1) Tennessee recreational use statute Tenn. Code Ann. § 70-7-102 (1995), (2) lack of actual or constructive notice of a dangerous condition, and (3) assertion that the decedent’s fault exceeded its own

Holding: For the Defendant State of Tennessee

Year: 2004

After the local bars closed the deceased and several friends went to a local state park to continue talking and drinking. The park was created because of the rock formations and the 75’ Northrup Falls. After taking and drinking in the parking lot, several members of the group decided to walk to the falls. The trail was primitive with no lights. One member of the group of five had a flashlight.

At a Y in the trail, two members of the group sat down to talk. The remaining three continued to walk. At one point, one person went into the bushes to pee and fell over the cliff on his way back. One member of the group sitting at the Y came down to assist. Later that same person decided to go for help, taking the flashlight with him.

The two remaining parties tried to start a fire to no avail. Eventually, the deceased, the daughter of the plaintiff in this lawsuit, also fell over the cliff. Approximately, an hour later rescue workers found the deceased floating in the water at the base of the falls. The deceased, the subject to this lawsuit had a blood-alcohol content of .18%

The mother of the deceased, the plaintiff, sued the State of Tennessee because the falls were a state park. In Tennessee this means filing a claim with the Tennessee Claims Commission. The claims commission commissioner reviewed the motions and granted the State of Tennessee’s motion for summary judgment. The plaintiff appealed. The commissioner’s decision was not based on the Tennessee Recreational Use Act but was based on the state’s defense of “(2) its lack of actual or constructive notice of a dangerous condition, and (3) its assertion that the decedent’s fault exceeded its own

Several states employ a separate state agency to handle claims against the state. The commissioner or judge hearing the claims is usually an attorney, called an administrative law judge. These judges operate with a separate set of rules of civil procedure and sometimes rules of evidence. The entire procedure is controlled by the statute that outlines how the state may be sued.

Summary of the case

The appellate court first looked at the Tennessee Recreation Use Act to see if it applied to this case. For the plaintiff to defeat the recreational use act, she must:

(1) prove that the defendant is not a “landowner,” (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner’s conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104.

The court quickly determined that Tennessee was a landowner and that hiking and/or sightseeing (at night) was a recreational activity. The third issue was whether an exception to the act applied to the case. The sole exception argued by the plaintiff was the actions of the state were gross negligence.

Under Tennessee’s law, gross negligence is defined as:

… negligent conduct reflecting a reckless disregard for the safety of others. It does not require a particular state of mind as long as it creates an extremely unjustified risk to others. It differs from ordinary negligence only in degree, not in kind. Thus, gross negligence is a negligent act or failure to act that reflects more than lack of ordinary care (simple negligence) but less than intentional misconduct.

Ordinarily, the determination of whether a defendant’s actions were gross negligence is a factual determination, which can only be done by the trier of fact or a jury. However, if the facts are not in dispute and conclusions reasonable drawn from the facts would only lead to one conclusion; a court can determine if the acts rose to the level of gross negligence.

We find no evidence in this record upon which a reasonable person would conclude that the State was grossly negligent with regard to the construction or maintenance of the Colditz Cove State Natural Area.

The court then made a statement that places Tennessee in the minority, that the protection of the natural area in this case takes precedence over the safety issues.

The State had a statutory obligation to maintain this area in a pristine, natural condition. Erecting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary for a natural area such as Colditz Cove.

The court held that the recreational use act applied, and the plaintiff had not raised any defenses to its application.

The court then looked at the second issue, whether the state met the ordinary reasonable person standard of care for a landowner.

The State is not the insurer of the safety of persons on its property. It is, however, liable to these persons to the same extent that private owners and occupiers of land are liable, because Tenn. Code Ann. § 9-8-307(a)(1)(C) has imposed this common-law duty on the State. Tenn. Code Ann. § 9-8-307(a)(1)(C) provides that the State may be held monetarily liable for negligently created or maintained dangerous conditions on state controlled real property.

The state, as a landowner, has a duty to exercise reasonable care to prevent foreseeable injuries to persons on the premises. To prevail, the plaintiff must prove the actions leading to the fatality were a reasonably foreseeable probability. The court found this had not been proven.

The record contains no factual, legal, or policy basis for concluding that the State should have foreseen that intoxicated persons that were unfamiliar with the Colditz Cove State Natural Area would hike down the trail to Northrup Falls in the middle of the night without adequate illumination.

The final argument made by the plaintiff was the state’s gross negligence was greater than the negligence of the deceased. Having found the state was not grossly negligent, this argument also failed.

Ms. Zegilla’s [deceased] voluntary intoxication on the evening of July 26, 1997 does not relieve her from the responsibility of her own negligence. She was required to use reasonable care under the circumstances, and her conduct must be measured against the conduct of an ordinary, reasonable person rather than an ordinary and reasonable intoxicated person. Accordingly, if her conduct while intoxicated was a proximate cause of her death, it may be compared with the fault of the other parties whose fault was also a proximate cause.

It cannot be reasonably disputed that Ms. Zegilla was intoxicated when she arrived at Colditz Cove State Natural Area after midnight on July 26, 1997. Even though she had never visited the natural area before, she decided to venture into a wooded area down an unfamiliar, rough foot path in the dark. After one of her companions fell to his death, she continued to walk around in the darkness even though she must have known that danger was close at hand. As tragic as her death is, the only conclusion that reasonable persons can draw from these facts is that her fault far exceeded any fault that may reasonably be attributed to the State.

The plaintiff failed to make any arguments that the state could be held liable for the death of her daughter.

So Now What?

State statutes that outline the procedures for a claim against a state are so varied; it is difficult to rely on any decision on this issue. Similar arguments can be made when reviewing a state’s Recreational Use Statute.

However, here, the State of Tennessee did nothing to cause injury to the deceased. More importantly for future generations, the state does not have to destroy its natural areas to prevent drunks walking around parks at night from getting hurt.

What do you think? Leave a comment.

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

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

 


Summer 2013 Commercial Fatalities 8/26/13

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of August 14, 2013. Thanks.

Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues.

Dark blue is a death of an employee while working.

Date Activity State Location What Age Sex Home Ref
5/27 Whitewater Rafting AK

Kenai Peninsula’s Six Mile Creek, Zig Zag Rapid

washed out of a boat filled with clients and a guide as they entered rapid

47 M Cambridge, UK

http://rec-law.us/12iqD0n

6/8 Whitewater Rafting TN Chattooga River boat flipped 58 M Nashville, TN

http://rec-law.us/11GgUSN & http://rec-law.us/14qmZ7N

6/20 Mountaineering WY Lower Saddle of the Grand Teton slipped on snowfield and slid 55 M Colorado Springs, CO

http://rec-law.us/11wr9wp

7/3 Summer Camp CA Camp Tawonga Tree fell 21 F Santa Cruz, CA http://rec-law.us/16RpK3K & http://rec-law.us/124h7TI
7/6 Whitewater Rafting PA Youghiogheny River, Ohiopyle State Park Foot entanglement with rope 22 M Lancaster, PA http://rec-law.us/12dNcIz & http://rec-law.us/1btCuRC
7/9 Summer Camp UT Mt. Dell Scout Ranch, UT Run over by flat bed truck 14 M Cedar Hills, UT http://rec-law.us/159p1tz
8/14 Whitewater Rafting WV New River, WV washed out of boat into “meat grinder” area 16 M Germany http://rec-law.us/1dfgQl8
8/24 Whitewater Rafting TN Ocoee River, TN fell out in Grumpy’s rapid 52 F Rex, GA http://rec-law.us/17fRPnc & http://rec-law.us/1dJZYTU
8/25 Whitewater Rafting TN Ocoee River, TN fell out in Grumpy’s rapid 36 F Smyrna, TN http://rec-law.us/17fRPnc & http://rec-law.us/12FJFmh

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

Overall it has been a low fatality year! 

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

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

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Regulations, checklist for having fun!

Tell me what I can’t do so I know what to do?

Charlie Wallbridge and I were at a water park along dozens of other paddlesports people. Charlie, if you don’t know him, is the guru, the expert, the man, on paddlesports safety. As a group of us climbed the stairs to a ride, there was a long list of things you could not do. Each time we climbed we checked off the list so that by the last time we had done everything we weren’t supposed to do.

I remember the time well. At the bottom in the pool after another disastrous and fantastic time I yelled “help someone save me; I’m drowning”. Charlie, I think yelled back “save yourself; I’m drowning too!” Things got worse because I was laughing so hard, with my head underwater and people, floats and who knows what else pushing me down again.

As soon as I got to the surface and got out, we all went back up and did it again.

The regulations were great; they insured we almost died and had a great time. Several of the things on the list I would have never thought of doing but with the help of a risk manager we had a new way of getting hurt!

This memory flashed back after I read this article and watched a video. See ‘Zorbing’ Death Brings Call For

Zorb 14

Zorb 14 (Photo credit: Wikipedia)

Safety Rules; Fatal Ride Captured On Video. Two Russians were at a ski area. They climbed into a Zorb and rolled down the hill. One man died by the end of the ride.

A Zorb is a great big plastic ball that you climb into. It rolls on snow or water or whatever, and you bounce around on the inside.

The article stated that because of the one death, there was a new call for a “global code of safe operations to try to stamp out cowboy operators.”

Those regulations will just become a “to do” list.

Think

1.   Why is it your job to tell me how to have fun? Warn me that having fun or doing stupid things will hurt me (tobacco and beer) but be real. Tobacco leads to impotency, yet people start to smoke to look cool and get laid. Go figure?

2.   Create a list of what not to do, and you have a list of things to do. Be smart when you create a list. Think about who actually reads them. (Teenagers looking for rules to break and risk managers.) Why write something and post it if no one is going to read it anyway. Purely for the liability protection?

3.   If rules worked traffic tickets would be in a museum rather than a source of income all cities in the US.

4.   No amount of writing, rules, regulations or laws are going to overcome a lack of common sense (from some perspectives) or a desire to have a good time (from other perspectives.)

Besides, I believe Darwin was right, and maybe we can learn something from every death……

What do you think? Leave a comment.

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Will the ski industry ignore itself into litigation nightmares or will it decided to make skiers assume the risk

Angland v. Mountain Creek Resort, Inc., 2011 N.J. Super. Unpub. LEXIS 2542

The issue as identified in this case is ongoing throughout the US, is the standard of care reckless skiing, the standard of care in most of life or just failing to ski perfectly.

This is another case that cannot be relied upon for any major legal principle because it is still facing months or years of litigation. However, it identifies an issue in the ski industry, and probably other industries in the future on the standard of care a skier owes another skier. (In this case I use the term skier to mean anyone on the mountain, skier, boarder, telemark skier, snow bike, etc.)

Is the standard of care that of someone acting recklessly or is the standard of care violating the “skier’s responsibility code?”

This case

The case is simple with drastic consequences. A snowboarder and a skier were on the same slope. Allegedly, another person cut the snowboarder off, and he quickly turned to his left colliding with Angland, the deceased. Angland fell and slid a distance into a wall where he died. Here is the court’s interpretation of what happened.

In order to avoid the unidentified skier, Brownlee turned quickly to his left. In doing so, Brownlee’s snowboard and the decedent’s skis became entangled. The two men collided, fell, and slid downhill. Decedent ultimately impacted a concrete bridge headfirst. He died as a result. Brownlee stopped sliding. He stood up and went to Angland’s assistance.

The family/estate of the deceased sued the ski area, Mountain Creek and the snowboarder. Mountain Creek and the snowboarder filed motions for summary judgment. Mountain Creek was dismissed from the suit based on the New Jersey Ski Statute. The court held that there was enough factual issue in the arguments of the parties that had to be decided by a jury so therefore the snowboarder was not dismissed from the case.

The main issue appears to be did the snowboarder violate the standard of care as set forth in the New Jersey Ski Statute. The relevant part of the statute is:

N.J.S.A. § 5:13-4. Duties of skiers  

(4)        Knowingly engage in any act or activity by his skiing or frolicking, which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.

The expert witness for the plaintiff testified that the snowboarder did violate the statute and consequently, the standard of care when he deviated “… from the statutory standard occurred when Brownlee failed to keep a proper lookout, made a panic stop, and turned to his left in front of decedent.”

If you are turning to avoid a collision, you are maintaining a proper lookout. If you are a goofy footed snowboarder you have limited vision to your left. Again, if you are avoiding a collision or a problem, you turn in skiing and boarding.

The court did not dismiss the complaint of the snowboarder because the court believed the snowboarder may have violated the statute. The statute is not aligned with the other states in how it describes the standard of care leaving a large whole in understanding what level of care is owed by one skier to another.

Do any of those issues rise to the level that they are reckless?

In the past, the standard to determine if a skier was skiing in a negligent manner was whether the skier was skiing recklessly. Reckless skiing is defined as:

….intentionally injure or engage in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport. Mastro v. Petrick, 93 Cal. App. 4th 83; 112 Cal. Rptr. 2d 185; 2001 Cal. App. LEXIS 2725; 2001 Cal. Daily Op. Service 9124 (California)

Carelessness and recklessness,’ though more than ordinary negligence, is less than willfulness or wantonness.” Strawbridge vs. Sugar Mountain Resort, 320 F. Supp. 2d 425; 2004 U.S. Dist. LEXIS 14561 (North Carolina)

A defendant, however, may not be held liable for negligent, or even reckless or intentional injurious conduct that is not outside the range of ordinary activity involved in the sport. Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27 (Rhode Island)

done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff. Stamp, v. The Vail Corporation, 172 P.3d 437; 2007 Colo. LEXIS 1082 (Colorado)

…recklessness is “a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent, Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 2005 Conn. LEXIS 500

Recklessness is not intentional acts; it is just short of that. The expert in this case looked at the issues and identified three things that the defendant snowboarder did that violated the New Jersey Ski Statute:

·        failed to keep a proper lookout

·        made a panic stop

·        turned to his left in front of decedent

In my opinion, none of the actions of the defendant in this case violated the standard of care. Looking at this from the standard of care of all other states with ski areas the defendant snowboarder was not reckless. However, if the plaintiff’s bar has its way, the actions of the defendant snowboarder may have violated the skier responsibility code.

The heart of the argument is the plaintiffs are attempting to change the standard of care from reckless to a much lower level. Usually, that level is aligned with the public-safety program developed by the National Ski Patrol called the Skier Responsibility Code. A few caveats about the code.

          1. It is not set in stone; in fact, an internet search for the code will identify dozens of different codes. The version on the National Ski Patrol website and the National Ski Area Association website are even different.

          2. It was created as a guideline, not a standard of care.

          3. Only Montana has incorporated the code in its statute.

So Now What?

My issue with the entire issue is no one seems to want to take a stand and say this is going to be a disaster if we don’t do something about it. Allowing the definition of a breach of the standard of care between skiers/boarders on the slope is going to cost ski areas a lot of money, more so if they are not named in the suit.

Every lawsuit based ski area land; the ski area is going to have to do things that cost money.

1.      Copies of reports, maps, and ski patrol information must be identified and provided to opposing parties.

2.    Employees will be deposed and attend trial; the resort is going to have to pay them to attend.

3.    When employees are being deposed, and possibly attend trial, attorneys are going to have to be hired to represent the employees.

These are just three quick instances. This does not include such things as closing the slope for a site inspection. If only two employees are subpoenaed think of the cost of preparing for deposition, being deposed, preparing for trial and attending a trial to a ski area.

This is very expensive and if the ski area is not named in the suit, there is no insurance to cover these costs.

From the perspective of this case, there is a lot left to argue. We can only wait and see what the outcome is, if we ever learn.

From the perspective of the ski industry, the industry needs to realize that this is only going to get worse.

The industry needs to:

·        Inform people that collisions, unless reckless or intentional are assumed and part of the risk of skiing. California has done this.

·        Change statutes to say that collisions in skiing, like in football, basketball, soccer, baseball are part of the risk of skiing, and a participant assumes the risk.

·        Define the Skier Responsibility Code as help, not the standard of care.

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Good Idea, Bad Approach and it Didn’t Work Anyway: Berkshire Ski Area wins lawsuit

A ski area recently one a lawsuit filed by the parents of a teenage who died skiing at the Berkshire East Ski Resort. Elizabeth Ann Loughman was skiing with her high school when she fell hitting a snowmaking hydrant. The jury deliberated for two hours before finding that the ski area and its employees were not liable for the death of the young women.

David Loughman the father of the deceased teenage stated he wanted to force the ski industry to install more safety equipment and hire more safety personnel.

This is a sad story in two ways. One, a young woman died skiing and two, a father felt the legal system was the best way to create a change in to keep other people safe. Another example where the law was felt by the parents to be the best way to accomplish their goals, but not an effective way.

For more information see:

Greenfield, Massachusetts Recorder.com: Jury: Ski resort not at fault in teen death

MassLive.com: Ski area wins lawsuit in death of local teen

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