Advertisements

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,


 

 

Advertisements

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


Skier assumes the risk on a run he had never skied before because his prior experience.

Assumption of the risk is a bar to claims of negligence in New York for injuries a skier receives at the ski area because of his experience as an expert skier.

Schorpp et al., Respondents, v Oak Mountain, LLC, et al., 143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

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

Plaintiff: Ron W. Schorpp and his wife

Defendant: Oak Mountain, LLC, et al.

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Defendant ski area

Year: 2016

The plaintiff was a self-described expert skier who had been skiing at the defendant resort weekly and had been skiing for decades. This was the plaintiff’s first time on the particular black diamond run however. The ski run had been recommended to the plaintiff ha by an employee of the defendant.

While skiing the recommended run the plaintiff skied into a depression causing him to flip over and out of his skis suffering injury.

The defendant filed a motion for summary judgment based on assumption of the risk, which the trial court denied. The defendant appealed that ruling resulting in this decision.

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

The appellate court reviewed the definition of assumption of the risk under New York law.

Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation

That assumption of the risk definition when applied to skiing had been defined by another court to include the risk “caused by ruts, bumps or variations in the conditions of the skiing terrain.” Further, assumption of risk is measured against the skill and experience of the particular plaintiff. In this case the plaintiff had decades of experience.

Although this was his first time on the particular black-diamond trail, Schorpp had “decades of skiing experience” and had skied at Oak Mountain on a weekly basis prior to his accident. Taking into account his experience and skill level, Schorpp was aware of the risk of injury that could be caused by the depression on the ski slope

As such the plaintiff assumed the risk of his injuries. The appellate court granted the defendant’s motion for summary judgment based on assumption of the risk.

So Now What?

Assumption of the risk is making a comeback. Once gone when it was merged into contributory negligence, courts are bringing it back to eliminate claims prior to trial. If you assume the risk of your injuries you should not have the opportunity to go to trial.

One argument that was not raised was negligent information or detrimental reliance on the statement or recommendation of the particular run by the ski area employee. The plaintiff did not argue he was injured because he followed the negligent advice of the employee of the defendant

What 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

Copyright 2017 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, Ski Area, Skiing, Black Diamond, Oak Mountain, Assumption of the Risk, trail, skiing,  summary judgment, depression, ski, risk of injury, black-diamond, downhill, skied, sport, skill, skis,

 


Schorpp et al., Respondents, v Oak Mountain, LLC, et al., 143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

Schorpp et al., Respondents, v Oak Mountain, LLC, et al., 143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

Ron W. Schorpp et al., Respondents, v Oak Mountain, LLC, et al., Appellants.

522405

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

October 20, 2016, Decided

October 20, 2016, Entered

COUNSEL:  [***1] Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for appellants.

Horigan, Horigan & Lombardo, PC, Amsterdam (Peter M. Califano of counsel), for respondents.

JUDGES: Before: Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ. Peters, P.J., McCarthy, Garry and Clark, JJ., concur.

OPINION BY: Aarons

OPINION

[*1136]  [**296]   Aarons, J.

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Sise, J.), entered November 5, 2015 in Fulton County, which denied defendants’ motion for summary judgment dismissing the complaint.

Plaintiff Ron W. Schorpp, a self-described “expert skier,” was  [*1137]  injured while skiing down a trail at defendant Oak Mountain Ski Center (hereinafter Oak Mountain), which is operated by defendant Oak Mountain, LLC in the Village of Speculator, Hamilton County. Schorpp testified that an Oak Mountain employee recommended  [**297]  a black-diamond trail to him. Schorpp and his daughter planned to ski down this trail and meet his wife and other children at a subsequent juncture of trails. Approximately three quarters of the way down the trail, Schorpp skied into a “depression” that was filled with snow. The skis got caught in the depression causing Schorpp to flip over and fall out of his skis. Schorpp, and [***2]  his wife derivatively, subsequently commenced this negligence action against defendants. Following joinder of issue and discovery, defendants moved for summary judgment. Supreme Court denied the motion and defendants now appeal. We reverse.

Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; see Martin v State of New York, 64 AD3d 62, 63-64, 878 N.Y.S.2d 823 [2009], lv denied 13 NY3d 706, 915 N.E.2d 1181, 887 N.Y.S.2d 3 [2009]; Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 958, 862 N.Y.S.2d 626 [2008]). Regarding downhill skiing, an individual “assumes the inherent risk of personal injury  caused by ruts, bumps or variations in the conditions of the skiing terrain” (Ruepp v West Experience, 272 AD2d 673, 674, 706 N.Y.S.2d 787 [2000]; see General Obligations Law § 18-101; Hyland v State of New York, 300 AD2d 794, 794-795, 752 N.Y.S.2d 113 [2002], lv denied 100 NY2d 504, 793 N.E.2d 411, 762 N.Y.S.2d 874 [2003]; Dicruttalo v Blaise Enters., 211 AD2d 858, 859, 621 N.Y.S.2d 199 [1995]). The application of the assumption of risk doctrine must be measured “against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]; see Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607, 762 N.Y.S.2d 703 [2003]).

We conclude that defendants satisfied their moving burden by demonstrating that Schorpp assumed the risk of injury associated with downhill skiing (see Jordan v Maple Ski Ridge, 229 AD2d 756, 757, 645 N.Y.S.2d 598 [1996]). Although this was his first time on the particular black-diamond trail, Schorpp had “decades of skiing experience” and had skied at Oak Mountain on a weekly basis prior to his accident. [***3]  Taking into account his experience and skill level, Schorpp was aware of the risk of injury that could be caused by the depression on the ski slope (see Painter v Peek’N Peak Recreation, 2 AD3d 1289, 1289-1290, 769 N.Y.S.2d 678 [2003]; Ruepp v West Experience, 272 AD2d at 674; Giordano v Shanty  [*1138]  Hollow Corp., 209 AD2d 760, 761, 617 N.Y.S.2d 984 [1994], lv denied 85 NY2d 802, 648 N.E.2d 792, 624 N.Y.S.2d 372 [1995]; Calabro v Plattekill Mt. Ski Ctr., 197 AD2d 558, 559, 602 N.Y.S.2d 655 [1993], lv denied 83 NY2d 754, 634 N.E.2d 979, 612 N.Y.S.2d 378 [1994]). In opposition, plaintiffs failed to raise an issue of fact as to whether defendants concealed or unreasonably increased the risks to which Schorpp was exposed (see Sontag v Holiday Val., Inc., 38 AD3d 1350, 1351, 832 N.Y.S.2d 705 [2007]; Ruepp v West Experience, 272 AD2d at 674). Accordingly, Supreme Court erred in denying defendants’ motion for summary judgment.

Peters, P.J., McCarthy, Garry and Clark, JJ., concur.

ORDERED that the order is reversed, on the law, with costs, and motion granted.

 


FIS establishes new regulations for ski racing helmets. Standards filter down to other ski races and eventually maybe the public.

Basis of the new test for ski helmets is the helmet must survive a drop test that is approximately three feet higher and at a speed approximately three mph faster.

The FIS, (International Ski Federation) has established new regulations for helmets that will be worn in FIS competitions. Those are the world cup level ski races held around the world.

After FIS adopted these new standards, the USSA (US Ski Association) adopted the same standards for many of their races this year and more the following years.

I’m not going to try to interpret the regulations here you are better off trying to figure it out on your won. Seriously, the regulations are the most convoluted work I’ve read and were made to make it impossible to understand. On top of that they make it impossible to copy the information from their website, even off PDF’s. (Why don’t they want this information to be known?)

1)   To show the new helmets meet the new standards they are going to have the CE Mark and conform to one of the following regulations.

a)   DIN EN 1077

b)   ASTM F2040

c)   SNELL S98 or RS 98

2)   If the helmet is designed for GS (Giant Slalom), SG (Super G) or DH (Downhill) racing it must have a conformity label affixed in a non-removable way, at the back of the helmet, in a position not be covered by the goggle strap. The conformity label must contain the text “Racing helmet to conform to FIS specifications 2013.”

Why?

If you want a better ski helmet look for one that meets the new requirements. It can take a bigger impact.

It is going to be a simple helmet, hard ear covers, no spoilers, etc. These helmets are going to be pretty dull, little venting and nothing except the stickers you put on them. However, if you want to protect your head….

What do you think? Leave a comment.

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

Copyright 2015 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, USSA, FIS, Skiing, Ski Helmet, GS, DH, SG, Downhill, Super G, Giant Slalom, International Ski Federation, US Ski Association,

 


NSGA stats say skiing is flat, numbers are right, why?

National Sporting Goods Association (NSGA) have numbers you can rely on.

NSGA numbers for Downhill (alpine) skiing participation show the following for the past 8 years.

2002

2004

2006

2008

2010

Total Skiers

7.4%

5.9%

6.4%

6.5%

7.4%

% of US Population

9.1%

10.0%

12.9%

6.7%

7.9%

Avg # of days

9.1%

10.0%

12.9%

6.7%

7.9%

Over the past ten years the number of people skiing has changed Zero Percent. The total fluctuation over ten years is 1.5%. Skiing is not growing, even though the US population is growing. As a percentage of population skiing has dropped 1.2% and fluctuated 2.1%.

clip_image002

Andrej Šporn at the 2010 Winter Olympic downhill.

Andrej Šporn at the 2010 Winter Olympic downhill. (Photo credit: Wikipedia)

As the population goes up, skiing is keeping up.

Even worse, the age group that the growth in in skiing should be coming from is dropping.

Here is a scary number

2002

2004

2006

2008

2010

Age 25 or Older

71.7%

60.6%

62.4%

53.2%

58.3%

clip_image004

72 percent of skiers used to be 25 or younger. Now that number is 13% and again, not in line with the current us population. Growth comes from the young, or at least growth that skiing needs and can count on for years to come.

Snowboarding is saving ski areas, but not by much.

2002

2004

2006

2008

2010

Snowboard Participation

5.9%

6.3%

5.2%

5.8%

6.1%

However that “growth” is only .2% over 10 years with a fluctuation of .4%. Smaller fluctuation occurs in snowboarding however there is some growth.

I’m speculating that snowboarders are not as finicky about snow conditions?

clip_image006

As you can see, over the past four years snowboarding is growing. Why?

Freestyle skiing jump

Freestyle skiing jump (Photo credit: Wikipedia)

Snowboarder participation growth is from those 24 and younger.

2002

2004

2006

2008

2010

Age 24 or Younger

56.2%

60.6%

49.4%

57.8%

68.3%

clip_image008

2002

2004

2006

2008

2010

Skier Visits

54.4%

57.1%

55.1%

57.1%

60.5%

Boarder Visits

11.5%

10.5%

9.8%

20.0%

24.5%

clip_image010

So

Skiing is not a growing sport. Thirty years ago it was the glamor sport. Twenty years ago it was thing to do. What has changed?

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,

WordPress Tags: NSGA,National,Goods,Association,Downhill,participation,Total,Skiers,Population,Over,Zero,Percent,fluctuation,percentage,growth,Here,Older,areas,Snowboard,Smaller,Snowboarder,Younger,Skier,Visits,Boarder,glamor,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,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

Enhanced by Zemanta

Whitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505

Whitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
Harrison Whitman et al., Appellants, v. Michael Zeidman, an Infant, by Sarit Zeidman, His Parent and Legal Guardian, et al., Respondents.
5616
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
March 15, 2005, Decided
March 15, 2005, Entered
CORE TERMS: lessons, snowboarding, risk of injury, summary judgment, failed to raise, issue of fact, reasonable care, risk-enhancing, supervising, instructing, interrupted, sponsored, arranging, downhill, reckless, canceled, skiing, novices, causal, skier, bunny, slope, sport, trip

COUNSEL: Law Offices of Renee Simon Lesser, P.C., New York (W. Matthew Sakkas of counsel), for appellants.
Acito, Klein & Candiloros, New York (Francesca A. Sabbatino of counsel), for Zeidman respondents.
Carol R. Finocchio, New York (Mary Ellen O’Brien of counsel), for National Council of Young Israel, respondent.
JUDGES: Concur–Buckley, P.J., Andrias, Friedman, Gonzalez, Sweeny, JJ.
OPINION
[*197] [**55] Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 9, 2004, which granted defendants’ motion and cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff Harrison Whitman was injured in a collision with defendant Michael Zeidman while snowboarding. By “engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” ( [***2] Morgan v State of New York, 90 NY2d 471, 484, 685 NE2d 202, 662 NYS.2d 421 [1997]). The risk of injury caused by another skier is inherent in downhill skiing (General Obligations Law § 18-101). Defendant submitted proof that he did not engage in instances of reckless, intentional or other risk-enhancing conduct not inherent in snowboarding that might have caused the accident, and plaintiff failed to raise an issue of fact (see Kaufman v Hunter Mtn. Ski Bowl, 240 AD2d 371, 657 NYS2d 773 [1997], lv denied 91 NY2d 805, 668 NYS2d 560, 691 NE2d 632 [1998]).
Although defendant National Council of Young Israel sponsored the trip, it exercised reasonable care in supervising the participants by arranging for lessons to be provided, and once the lessons were canceled, instructing those who were novices to stay on the “bunny” slope (see generally Fintzi v New Jersey YMHA-YWHA Camps, 97 NY2d 669, 765 NE2d 288, 739 NYS2d 85 [2001]). Furthermore, the actions of the participants interrupted the causal link between National Council’s alleged negligence and plaintiff’s injury (see [***3] Boltax v Joy Day Camp, 67 NY2d 617, 490 NE2d 527, 499 NYS2d 660 [1986]). Concur–Buckley, P.J., Andrias, Friedman, Gonzalez and Sweeny, JJ.