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Roy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88

Roy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88

Dawn K. Roy, in her capacity as the administratrix of the estate of Brett A. Roy, et al.1 v. The State of Rhode Island et al.

1 The original plaintiff, Brett A. Roy, passed away while the instant appeal was pending. An order substituting “Dawn K. Roy, the  administratrix of the estate of Brett A. Roy” as a party in this case entered on April 15, 2016. See Rule 25(a) of the Superior Court Rules of Civil Procedure.

No. 2013-213-Appeal. No. 2014-39-Appeal.

SUPREME COURT OF RHODE ISLAND

139 A.3d 480; 2016 R.I. LEXIS 88

June 23, 2016, Filed

PRIOR HISTORY: [**1] Providence County Superior Court. (PC 09-2874). Associate Justice Susan E. McGuirl.

Roy v. State, 2013 R.I. Super. LEXIS 54 (2013)

CASE SUMMARY:

COUNSEL: For Plaintiffs: Patrick C. Barry, Esq., Douglas E. Chabot, Esq.

For State: Rebecca T. Partington, Department of the Attorney General; Adam J. Sholes, Department of the Attorney General.

JUDGES: Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION BY: Paul A. Suttell

OPINION

[*482] Chief Justice Suttell, for the Court. A wise jurist once wrote:

“This is a hard case–hard not in the sense that it is legally difficult or tough to crack, but in the sense that it requires us * * * to deny relief to a plaintiff for whom we have considerable sympathy. We do what we must, for ‘it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.'” Burnham v. Guardian Life Insurance Co. of America, 873 F.2d 486, 487 (1st Cir. 1989) (Selya, J.) (quoting United States v. Clark, 96 U.S. 37, 49, 24 L. Ed. 696, 13 Ct. Cl. 560 (1877) (Harlan, J., dissenting)).

This is indeed such a hard case. Tragically, on July 10, 2008, twenty-nine-year-old Brett A. Roy broke his neck when diving into the pond at World War II Veterans Memorial Park in Woonsocket, resulting in his paralysis from the neck down. Roy’s injuries were vast and undeniable. Roy and his wife, Dawn K. Roy (plaintiffs), individually and as the parents of their two children, [**2] filed this action against the state, the Rhode Island Department of Environmental Management (DEM), and two individuals in their official capacities as DEM employees (collectively, the state), alleging several counts of negligence and premises liability. After a multi-week trial and lengthy deliberations, a jury returned a verdict for the state, finding that the state had not “fail[ed] to guard or warn against a dangerous condition, use, structure or activity” or against a “non-obvious, latent dangerous condition” at the pond. Subsequently, both parties filed renewed motions for judgment as a matter of law, which the trial justice denied. However, the plaintiffs also filed a motion for a new trial, which was granted. Thereafter, the state brought the instant appeal arguing that the trial justice erred in granting the plaintiffs’ motion for a new trial, and that, as a matter of law, the state owed no duty to Roy. The plaintiffs filed a cross-appeal arguing that their motion for judgment as a matter of law should have been granted and that the trial justice erred in denying their motion for additur or alternatively their motion for a new trial on damages only. For the reasons set forth herein, [**3] we vacate the judgment of the Superior Court.

I

Facts and Travel

A

World War II Veterans Memorial Park and Pond

In July 2008, the pond at World War II Veterans Memorial Park in Woonsocket [*483] was one of several bodies of water operated by the state as a recreational facility. At trial several state workers testified to the condition and maintenance of the park and pond.

The director of DEM at the time of the incident, W. Michael Sullivan, testified that the man-made pond was “filled mechanically” and “treated much like a swimming pool.” Sullivan testified that, in June 2008, he made the decision to fill the pond, and he appeared at a press conference where he announced his decision.2 Sullivan stated that, in July 2008, there were “no swimming” signs posted, but DEM “expected that there would be people * * * using the park.” Sullivan explained that facilities such as the bathhouses were open, but he stated that he “did not ever consider the beach to be open.” Sullivan agreed that it was prohibited under DEM rules to operate the pond on a “swim-at-your-own-risk” basis, and he explained that, “if there were not lifeguards present at a swimming facility, that the swimming facility was closed.” Sullivan [**4] explained that, in July 2008, staff on-site at the park had been directed “to tell people that the beach — that the water was closed to swimming, to point to signage and refer them to that, but it was not expected that they would stand there and order people out [of the water] * * *.”

2 Sullivan had explained that, in February 2008, World War II Veterans Memorial Park had been “slated for closure” in the budget presented to the Legislature that year. However, at the end of June, after local officials expressed concern, he made the decision as the Director of DEM to fill the pond.

The Associate Director of Natural Resources for DEM, Larry Mouradjian, also testified at trial. He described the pond, explaining that there was a designated lap pool, a swim area, and a diving platform. He testified that he had seen the pond with and without water, and, based on his opinion, diving near the wall into the lap pool would be dangerous because it was too shallow. Mouradjian testified that the pond was typically not filled “until such time as we were able to fully staff the * * * swim area and invite the public to swim at the pond * * *.” Mouradjian stated that he thought the decision to fill the [**5] pond was untimely “[b]ecause the things normally done to prepare the pond to be open to the public had not been done * * *.” He testified that he had spoken to Sullivan and recommended that the pond be drained or left empty until DEM “beg[a]n to acquire the resources necessary.”

The DEM Chief of the Rhode Island Division of Parks and Recreation, Robert Paquette, and the Deputy Chief, John Faltus, also testified at trial. Paquette confirmed that Mouradjian was hesitant to open the pond and that Mouradjian told him that “we should really look into this.” However, Paquette testified that “[Sullivan] was ordering [him] to open up the facility.” Paquette also testified that he had never been told that “there was ever a problem with shallow water [along the wall of the pond].” Faltus testified that he was never “officially informed” that people were diving at the pond, but he had “heard hearsay that there’s possible diving activity after hours.” Faltus stated that generally they did not “allow diving at any [state] swimming areas.” However, he also admitted that “[p]eople [were] allowed to possibly do some shallow entry dives,” explaining that whether diving was allowed “[d]epends on how you define ‘dive.'”

William Mitchell [**6] Jr., the Regional Park Manager for DEM in 2008, testified that there was no “system that was in place to warn people of the depth of the water.” However, he stated that “if a patron * * * [*484] ask[ed] an employee * * * they would advise them as to the depth of the water, [and] if they asked about diving, [they] would tell them the rules and regulations * * *.” Mitchell agreed that Roy’s injury was “[g]enerally” the type of thing that he could foresee and he was concerned that it was the kind of injury that would happen when he was told to fill the pond before lifeguards had been hired.

Peter Lambert, a DEM caretaker supervisor who was employed at World War II Veterans Memorial Park from 1990 to 2008, testified at trial extensively about the physical characteristics and operation of the park and pond. He explained that, as the caretaker supervisor, he was the “acting park manager,” testifying that he “handled pretty much everything that had to do with the park itself: scheduling the staff, supervising the lifeguards, interviewing park rangers, interviewing seasonal people, assigning various work to people.” Essentially he either directly worked on or helped supervise everything that needed to be done at the [**7] park.

Lambert described the park as “16 acres * * * in the center of * * * Woonsocket [with] a man made [sic] pond, * * * two tennis courts, a playground area, horseshoe pits, * * * [an] Olympic pool area, * * * and the beach area * * *.” Lambert described the water depth near the wall where the Olympic pool met the beach area as being “pretty consistent over the years.” He testified that, when the pond was drained, he would try to “smooth the bottom” of it. Lambert explained that the pond “wouldn’t be perfectly level like a pool,” but testified that he “would try to eliminate any erosion, any heels, any high spots.” He testified that he was unable to do “any preparatory work to the bottom” of the pond in 2008 because he had been “informed that the park was closing and the beach wouldn’t be opened that year, and [his] job was being eliminated.” However, Lambert also explained that he did not rake the pond every year because “there were years when there was very little shifting on the bottom.” Subsequently, Lambert testified about the diving policies at the pond. He stated that diving had “never [been] allowed.” However, he admitted to seeing “people periodically dive * * * off of [the] [**8] wall on the pool area, [but] not during hours that [the pond was] in operation.”

B

The Events of July 10, 2008

Kenneth Henderson, a seasonal laborer for DEM who worked as a groundskeeper at the park in 2008, testified at trial that he was working on July 10, 2008. Henderson stated that he saw “about half a dozen” people swimming in the pond that day but did not tell them that swimming was prohibited because, in his words, “[he] had no authority.”

Laura Oliver and Carol Gear had also been at the park on July 10, 2008, and testified at trial. Oliver testified that on July 10 there were no lifeguards, lifeguard chairs, or buoy lines in the pond, and the fountain was off. Oliver said that she allowed her children to go swimming despite the “no swimming” signs “because there [had been] a write-up in the paper, and nobody told [them] different[ly].” She added that there were often “no swimming” signs in place, even when lifeguards were present and watching the swimmers. However, Oliver testified that a DEM employee, who she later learned was a groundskeeper, had told her children not to jump in the water. Oliver explained that she saw people jumping and “do[ing] all kinds of stuff” off the diving platform on July [**9] 10. However, she knew from experience that diving was not allowed in the pond because in previous years if someone [*485] dove into the water, then “lifeguards would be on top of it. If they kept doing it, [the lifeguards] would tell them they had to leave.” She added that she never saw anyone get hurt while diving prior to July 10. Oliver described Roy’s dive as “a belly flop kind of dive; not a complete dive.”

Gear testified that she had been to the pond to swim “[t]hree times” before July 10, 2008, and had seen people dive, but had never seen anyone injured from diving before Roy suffered his injury. Gear described Roy’s actions that she witnessed on July 10, stating: “He threw something on the ground, and [ran], like you run when you bowl, and then he just dove in.” She labeled Roy’s dive as a “[r]egular kind of dive.” She clarified that she would call it “a shallow dive.” She explained that “[i]t was more like he * * * just * * * put his head down and kind of went in. It wasn’t like a real dive like on a diving board.”

Hope Braybon, who accompanied Roy to the pond on July 10, also testified to the events of the day. Braybon stated that she watched Roy “jog” from the car in the parking lot and “d[i]ve in.” She testified [**10] that, as Roy was diving, she “was telling him not to dive over there * * * because it was shallow water.”

Roy was unable to testify at trial but his deposition was read into the record. Roy was six feet tall and twenty-nine years old at the time of the incident. Roy testified that on July 10 he had dropped Braybon, her daughter, and his children at the park and “they * * * walked towards the beach.” He recalled seeing “20 to 30 people, small children, adults, adolescent children in the middle of the pond” swimming, which indicated to him that the park was open. He testified that he “never saw a sign that said ‘[n]o [s]wimming.'” Roy further testified that, when he arrived at the park, he “walked over towards the corner [of the pond], * * * [a]nd * * * wasn’t going to jump in,” but, he described the day as “hot, * * * very hot. So, [he] figured * * * [he would] jump in.” He stated that he looked at the water and “[i]t looked deep enough.” He described the water as “murky” and said that he “definitely couldn’t see the bottom.” He explained that “if the water was too shallow, [he would] be able to see it.” Before jumping in, Roy returned to his car to put his things away and then he “walked down to the end[,] [**11] * * * dove in the water[,] and [he] broke [his] neck.” Roy described his dive as a “shallow dive, just like a normal, flat dive,” meaning, “the only parts that [he] would want to hit the water would be the * * * tops of [his] hand and [his] belly.” Roy testified that around July 2007 he dove in the same spot, and “[n]othing was ever said to [him].” Roy admitted that he knew there was soil erosion in the pond, and, consequently, that soil had been added to the pond in the past. Roy stated that “the way that [he] check[ed] the depth of the water * * * was probably irresponsible * * *.”

C

The Jury Verdict and Posttrial Motions

After the close of evidence, both parties filed motions for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, and the trial justice denied both motions. Subsequently, the jury was charged on May 25, 2011. During the course of deliberations, the jury exchanged over fifty notes with the trial justice. On the morning of the third day of deliberations, the trial justice addressed the jury and asked the jurors to keep deliberating because she was “really confident that the eight [jurors were] going to be able to * * * reach a decision that is fair and just for everyone.”

[*486] On the fourth day of deliberations, [**12] the jury asked the court to “clarify if [six] jurors are for one party and [two] jurors are for another[,] [d]o the questions have to be answered in favor of the way the six jurors feel and the [other two jurors would] not be able to express their own feelings[?]” The trial justice responded that she was “not exactly sure what [they] [were] asking but the jury’s verdict must be unanimous with all [eight] [jurors] agreeing.” Later that day, the trial justice held a chambers conference at which she suggested to counsel that, in light of the jury’s note, the jury might be split six to two.

During the fifth day of deliberations, the jury asked the trial justice to reinstruct them that they needed to follow the instructions of law and not their emotions. After a series of conferences with juror No. 109 and the jury foreperson, individually, the trial justice excused juror No. 109. At approximately 3:50 p.m. that day, the jury sent a note to the trial justice that it could not come to a unanimous agreement. Approximately ten minutes later the trial justice responded: “Is there anything we can do to assist you?” The jury responded that “nothing else will make a difference” and indicated a six-to-one [**13] split. Thereafter, the trial justice released the jurors for the day and asked counsel to think of options and to determine from their respective clients whether they would accept a split verdict.

The following day–day six of deliberations–both parties agreed to accept a six-to-one split decision if the jury was unable to reach a unanimous verdict. The parties expressed that they “understood at the time that the jury would be sent to deliberate” and that if the jury “inform[ed] the [c]ourt that it could not reach a unanimous verdict, [the trial justice] would then disclose [to the jury] that the parties [had] agreed to accept a [six] to [one] split decision * * *.” Subsequently, the jury exchanged additional notes with the trial justice and returned for additional instructions on the Recreational Use Statute and the issue of liability, included as questions 1 and 2 on the verdict form. Thereafter, the jury indicated that it had reached a verdict.

The jury reached a unanimous verdict and found that the state had not “willfully or maliciously failed to guard or warn against a dangerous condition, use, structure or activity at the pond * * *” and therefore was not liable under question 1. However, the jury [**14] found that the state was liable under question 2 for “willfully or maliciously fail[ing] to guard against a non-obvious, latent dangerous condition, knowing that there existed a strong likelihood that a user of the swimming pond would suffer serious injury or death[.]” The jury rejected the assumption-of-the-risk defense and found that both parties were negligent and assigned a 50/50 split with “zero” damages. The trial justice then called counsel to sidebar where plaintiffs argued that the jurors were not following the instructions because they found in favor of them but awarded no damages; the state disagreed. The trial justice instructed the jury that they were required to award damages. At that time, the state moved for a mistrial “based on the inconsistencies of the answers to the questions on the verdict sheet”; plaintiffs objected, and the trial justice denied the motion. The jury then sent a note explaining that they had “reached a unanimous verdict [because] no money was awarded.” They explained that if they had to award damages, “part of [the] jury [would] have one answer [and] part [would] have another. In other words, [they would] have to begin again.” The trial justice clarified [**15] with the jury that they were “referring to the [six-to-one] split/vote” and then released the jury for the day.

[*487] After the jury was sent home, the trial justice held a chambers conference with counsel. The parties discussed four potential options to consider: (1) a mistrial; (2) accept a six-to-one verdict; (3) accept half of the verdict; or (4) allow the verdict to stand. On the seventh day of deliberations, plaintiffs made a motion for additur or, in the alternative, for a new trial on the issue of damages. The trial justice denied plaintiffs’ motion and offered the parties a choice of accepting a split verdict or a mistrial. Both parties agreed to accept a six-to-one split verdict. The trial justice notified the jury that the parties would accept a six-to-one verdict. The jury returned the verdict and answered “no” to questions 1 and 2–finding no liability on behalf of the state, and judgment entered.

Following the jury verdict, both parties made renewed motions for judgment as a matter of law. In support of its motion, the state argued that plaintiffs failed to establish the state’s liability under the Recreational Use Statute and that, as a matter of law, Roy’s conduct was so “highly [**16] dangerous” that “no duty was owed to him.” The plaintiffs argued that the state’s witnesses admitted sufficient facts at trial to establish the state’s liability as a matter of law under the Recreational Use Statute. Additionally, plaintiffs moved for a new trial on damages, or, in the alternative, a new trial on all the issues. The trial justice issued a written decision on March 26, 2013, denying both parties’ motions for judgment as a matter of law, and granting plaintiffs’ motion for a new trial on all the issues. The state timely appealed this decision, and plaintiffs filed a cross-appeal.

II

Parties’ Arguments on Appeal

On appeal, the state argues that the trial justice erred in refusing to apply the decisions in Banks v. Bowen’s Landing Corp., 522 A.2d 1222 (R.I. 1987) and Bucki v. Hawkins, 914 A.2d 491 (R.I. 2007), which, the state contends, “stand for the proposition that the [s]tate owed no duty to Roy to protect him from an open and obvious natural condition * * *.” The state maintains that, “under the proper application of the Recreational Use Statute, the evidence fails to establish that the state willfully and/or maliciously failed to warn against a dangerous condition.” The state also argues that “Roy assumed the risk of injury by diving into murky water without first checking [**17] its depth” and that plaintiffs failed to prove the element of causation. Furthermore, the state contends that it is shielded from liability under the theory of discretionary immunity. The state also asserts that “the trial justice misconstrued material evidence and committed significant errors of law in granting plaintiffs’ motion for a new trial.” However, the state adds, if the matter is remanded for a new trial, “the statutory cap on damages should apply.”

In response, plaintiffs argue that the trial justice properly granted their motion for a new trial. The plaintiffs aver that they proved liability under the Recreational Use Statute and that the “open and obvious danger” rule articulated in Bucki, 914 A.2d at 496, is inapplicable here due to distinguishable facts. The plaintiffs maintain that Roy could not have “assumed the risk” under these facts as a matter of law and that plaintiffs proved proximate causation. Furthermore, plaintiffs contend that the trial justice and two motion justices properly applied the law and limited the state’s defenses with respect to governmental immunity and the damages cap. On cross-appeal, plaintiffs argue that the trial justice incorrectly denied their motions for additur, [**18] a new trial on the issue [*488] of damages only, and judgment as a matter of law. Additionally, plaintiffs argue that a new trial was warranted based on other legal errors made by the trial justice and that the second jury verdict was “the result of bias, prejudice, or passion.”

Because we conclude that the state owed no duty to Roy, we shall address only the state’s renewed motion for judgment as a matter of law.

III

Judgment as a Matter of Law

A

Standard of Review

[HN1] “In reviewing a trial justice’s decision on a motion for judgment as a matter of law, this Court is bound to follow the same rules and legal standards as govern the trial justice.” Hough v. McKiernan, 108 A.3d 1030, 1035 (R.I. 2015) (quoting Perry v. Alessi, 890 A.2d 463, 467 (R.I. 2006)). “The trial justice, and consequently this Court, must examine ‘the evidence in the light most favorable to the nonmoving party, without weighing the evidence or evaluating the credibility of witnesses, and draw[] from the record all reasonable inferences that support the position of the nonmoving party.'” Id. (quoting Perry, 890 A.2d at 467). Thus, a trial justice should enter judgment as a matter of law “when the evidence permits only one legitimate conclusion in regard to the outcome.” Id. (quoting Long v. Atlantic PBS, Inc., 681 A.2d 249, 252 (R.I. 1996)).

B

Discussion

[HN2] The Rhode Island Recreational Use Statute, G.L. 1956 [**19] chapter 6 of title 32, limits the liability of landowners, declaring that one

“who either directly or indirectly invites or permits without charge any person to use that property for recreational purposes does not thereby:

“(1) Extend any assurance that the premises are safe for any purpose;

“(2) Confer upon that person the legal status of an invitee or licensee to whom a duty of care is owed; nor

“(3) Assume responsibility for or incur liability for any injury to any person or property caused by an act of omission of that person.” Section 32-6-3.

[HN3] The purpose of this statute “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability to persons entering thereon for those purposes.” Section 32-6-1. In order to achieve this, “the [Recreational Use Statute] modifies the common law by treating users of public and private recreational properties as trespassers, thus greatly reducing the duty of care that owners owe to recreational users.” Symonds v. City of Pawtucket, 126 A.3d 421, 424 (R.I. 2015). As we have noted, “it is clear from the unambiguous language of the 1996 amendment [to the Recreational Use Statute] that the [L]egislature intended to include the state and municipalities among owners entitled to immunity [**20] under the statute.” Id. (quoting Pereira v. Fitzgerald, 21 A.3d 369, 373 (R.I. 2011)).3

3 In 1996, the General Assembly amended the definition of “owner” in G.L. 1956 § 32-6-2(3) to include the state and municipalities. P.L. 1996, ch. 234, § 1.

[HN4] Although the Recreational Use Statute limits liability, this limitation is not absolute. Section 32-6-5 provides, in relevant part: “(a) Nothing in this chapter limits in any way any liability which, but for this chapter, otherwise exists: (1) [f]or the willful or malicious failure to guard or [*489] warn against a dangerous condition, use, structure, or activity after discovering the user’s peril * * *.” “Thus, the Legislature declared that all people who use this state’s public recreational resources are classified as trespassers to whom no duty of care is owed, save to refrain from willful or malicious conduct as defined in the [Recreational Use Statute].” Berman v. Sitrin, 991 A.2d 1038, 1044 (R.I. 2010).

On appeal, the state argues that the evidence presented at trial did not establish that the state willfully and/or maliciously failed to warn against a dangerous condition. Specifically, the state argues that “there was no evidence of a substantial number of injuries flowing from a known dangerous condition”; that “the state did not fail to guard or warn against a dangerous condition, use, [**21] structure, or activity”; and that “no witness made testimonial admissions sufficient to extinguish protection under the Recreational Use Statute.” Conversely, plaintiffs argue that they proved liability under the Recreational Use Statute because the evidence supported a finding that the state “breached the duty to refrain from willful and malicious failures to guard and warn against known latent conditions.” In support of this argument, plaintiffs rely on Berman.

In Berman, 991 A.2d at 1042, the plaintiff was walking on the Newport Cliff Walk when the ground “gave way,” causing the plaintiff to suffer injuries that rendered him a quadriplegic. This Court specifically noted that this was “not * * * a case in which a visitor came too close to the edge of a cliff and fell off, as tragic as that would be.” Id. at 1049. Rather, “the events leading to [the plaintiff’s] tragic injury were caused by latent defects in the structure of the Cliff Walk that [were] not obvious to the occasional visitor.” Id. This Court explained that “the record before [it was] replete with evidence demonstrating that * * * the city knew that the forces of natural erosion were taking a toll on the Cliff Walk.” Id. at 1050. Thus, this Court concluded that “because [**22] of the multiple incidents of death and grievous injury * * * the city [could] not successfully defend [the plaintiff’s] claim based on an assertion that it had no specific knowledge of [the plaintiff] or any peril confronting him.” Id. at 1051. Consequently, this Court held that “the immunity provided by the [Recreational Use Statute] [was] not available to defendant City of Newport, in the context of the Cliff Walk” because a “fact-finder reasonably could find that * * * the city voluntarily and intentionally failed to guard against the dangerous condition, knowing that there existed a strong likelihood that a visitor to the Cliff Walk would suffer serious injury or death.” Id. at 1052, 1053.

The plaintiffs argue that this case is comparable to Berman because the “record is replete with evidence of DEM’s admitted knowledge of numerous unique dangerous conditions, including shallow water in areas where users had been known to dive from the park’s structures, and the historic presence of the sandbar in the same (normally deeper) area.” The plaintiffs maintain that the “shallow water and dangers of diving at this particular facility were not obvious to users * * * yet were in fact known to DEM.”

In the case at bar, [**23] although the state admitted knowledge of the unique features of the pond, Roy also admitted that he was aware of the danger of making a dive into shallow water and that “the way that [he] check[ed] the depth of the water * * * was probably irresponsible * * *.” He confirmed that he knew the soil in the pond was eroding and, consequently, that soil was added to the pond. We would note that, examining the evidence in the light most favorable to the plaintiffs as we [*490] must, the actions of the defendants are a far cry from the egregious conduct attributed to the City of Newport in Berman. There, we held that “[i]t is because of the multiple incidents of death and grievous injury that we conclude that the city may not successfully defend this claim based on an assertion that it had no specific knowledge of [the plaintiff] or any peril confronting him.” Berman, 991 A.2d at 1051. Here, there is only one indication in the record of a relatively minor injury reported several days before Roy’s catastrophic injuries. Therefore, we are of the opinion that, under these circumstances, this case is distinguishable from Berman. There is no evidence to support a finding that the state “willful[ly] or malicious[ly] fail[ed] to guard or warn against a dangerous condition, [**24] use, structure, or activity after discovering [a] user’s peril * * *.” See § 32-6-5(a)(1). Thus, the state’s motion for judgment as a matter of law should have been granted.

Moreover, even if the Recreational Use Statute did not apply, this Court has held that [HN5] the danger of diving in and of itself is an “open and obvious” danger, Bucki, 914 A.2d at 496, one of “common knowledge,” Banks, 522 A.2d at 1225, such that a landowner does not owe a duty of care to warn individuals who enter the premises. In Banks, 522 A.2d at 1224, the plaintiff filed a negligence claim for injuries he suffered after diving off a railing on the defendant’s property into the Newport Harbor. This Court held that the defendants had not owed any duty of care to the plaintiff in that case in part because “requiring citizens to place warnings against[–]and barriers preventing persons from[–]diving into shallow water would provide little disincentive to individuals * * *. As a practical matter, the danger of diving into shallow water is one of common knowledge, and one [the plaintiff] admit he was aware of.” Id. at 1225. Similarly, in Bucki, 914 A.2d at 493, the plaintiff filed a negligence claim for injuries he sustained after diving into a lake while he was a guest at one defendant’s waterfront property. This Court concluded that [**25] the plaintiff’s harm was foreseeable but again held that the defendants did not have a duty to warn of the dangers of diving. Id. at 496-97. This Court stated that:

“It is only reasonable for a diver, who cannot ascertain the water’s depth by looking, to further inspect the area before diving into dark water. The danger of diving into shallow water was open and obvious to a twenty-four-year-old man, regardless of whether a sign was erected alerting him to the danger.” Id. at 496.

Thus, this Court held that “as a matter of law, [the] plaintiff must be held to have had knowledge and an appreciation of this risk [because][,] [u]ltimately, it was [the] plaintiff’s own behavior that caused his injuries.” Id.

We also note that other courts have reached similar conclusions. For example, the Maryland Court of Appeals commented that:

“Bodies of water like the stream involved in this case have historically and consistently been afforded distinctive treatment in the law relating to landowners’ liability. The necessity, or at least desirability, of maintaining such bodies of water, coupled with known inherent dangers and the difficulty of effectively protecting against those dangers, have led courts across the country to pronounce [**26] water an ‘open and obvious danger,’ for which no warning or special precaution is ordinarily needed.” Casper v. Charles F. Smith & Son, Inc., 316 Md. 573, 560 A.2d 1130, 1134-35 (Md. 1989).

[*491] In a case affirming the grant of summary judgment in favor of the Chicago Park District against swimmers who were injured when they dove into Lake Michigan from concrete seawalls, Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 665 N.E.2d 826, 827, 828, 839, 216 Ill. Dec. 568 (Ill. 1996), the Illinois Supreme Court pronounced:

“In cases involving obvious and common conditions, such as fire, height, and bodies of water, the law generally assumes that persons who encounter these conditions will take care to avoid any danger inherent in such condition. The open and obvious nature of the condition itself gives caution and therefore the risk of harm is considered slight; people are expected to appreciate and avoid obvious risks.” Id. at 832.

The Illinois Supreme Court further reasoned that “bodies of water are ordinarily considered to be open and obvious conditions and thereby carry their own warning of possible danger.” Id. at 835. This is clearly the position adopted by this Court in Bucki, 914 A.2d at 497, where this Court stated that “[w]e are of the opinion that in this case [the] defendant did not owe [the] plaintiff a duty of care, but, rather, that [the] plaintiff voluntarily exposed himself to the perils of an open and obvious danger.” [**27] Because it is our considered opinion that the state bore no liability for Roy’s injuries–either because diving is an open and obvious danger or because it was protected under the Recreational Use Statute–we conclude that the trial justice erroneously denied its motion for judgment as a matter of law.

IV

Conclusion

For the reasons stated herein, we vacate the judgment of the Superior Court and remand the case with instructions to enter judgment in favor of the state. The record shall be returned to the Superior Court.

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An outfitter must follow industry norms when dealing with guests. If the rest of the industry gives guests a safety talk, then you better give guests a safety talk. The problem arises when your guest cannot understand what you are saying.

Grotheer v. Escape Adventures, Inc., et al., 14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

State: California, Court of Appeal of California, Fourth Appellate District, Division Two 

Plaintiff: Erika Grotheer 

Defendant: Escape Adventures, Inc., the pilot and Escape’s agent, Peter Gallagher, and Wilson Creek Vineyards, Inc.,

Plaintiff Claims: negligently or recklessly operated the balloon by (1) failing to properly slow its descent during landing and (2) failing to give the passengers safe landing instructions before the launch. Grotheer alleged the hot air  balloon company is a common carrier, and as such, owed its passengers a heightened duty of care 

Defendant Defenses: Plaintiff could not satisfy the elements of a negligence claim and, even if she could, she had waived the right to assert such a claim by signing Escape’s liability waiver.

Holding: For the Defendant 

Year: 2017 

Summary

Being labeled a common carrier means you owe a higher degree of care to your guests than normal. However, a hot-air balloon ride is not classified as a common carrier because the analysis used under California law, whether the operator has control over the activity, is not met in ballooning. A balloon pilot can only control the ascent and descent of the balloon, all else is left to Mother Nature.

Assumption of risk under California law eliminates a duty that might be owed by the outfitter or in this case the balloon operator. However, not giving a safety talk before the ride is not an inherent risk assumed by the plaintiff. Since the industry, the ballooning industry, gives safety talks, then there is a duty on a balloon operator to give a safety talk to its guests.

However, if no safety talk was given, that still does not mean the outfitter is liable if the injury the plaintiff received was not proximately caused by the failure to give a safety talk.

Facts

The plaintiff is German and does not speak English. Her son signed her up for a balloon flight in the California wine country. The ride crash landed, as most balloon flights do and the plaintiff suffered a broken leg.

The three defendants were the balloon company, the balloon pilot and the winery where the launch and crash occurred. 

The plaintiff sued alleging negligence and because the defendant was a common carrier, the defendant owed the plaintiff a higher duty of care. 

A common carrier in most states is a business operating moving people from one place to another for a fee. The transportation company owes a higher degree of care to its passengers because the passenger has no control over the way the transportation is provided or how the transportation is maintained. 

A good example of this is a commercial airline. You have no idea if the plane is maintained, and you cannot fly the plane. Consequently, your life is totally in the hands of a commercial airline.

The other component of a common carrier is usually the movement is from point A to point B and the main reason is the passenger needs to get from point A to point B. In California the movement is not as important as it is in the other states.  In California, the decided factor is the control factor. California’s definition of a common carrier is much broader and  encompasses many more types of transportation, including transportation for recreation or thrills, not necessarily for getting from one place to the next. 

However, in California the analysis is not who has control but who has what control. 

For additional articles about common carriers see Zip line accused of being a common carrier who makes releases unenforceable. Issue still not decided, however, in all states common carriers cannot use a release as a defense and California case examines the relationship between a common carrier and public policy when applied to a ski area chair lift

The plaintiff based her claim on failing to instruct her in the risks of ballooning and what to do if the balloon were to crash. The balloonists met at the winery and then drove to the launch site. All but the plaintiff rode with the balloon company where the defendants claim they gave a safety speech. The plaintiff rode with her son to the launch site and did not hear the speech. 

More importantly, the plaintiff did not speak or understand English so even if she would have heard the safety talk, whether or not she could have understood it would be a question. 

The trial court dismissed the plaintiff’s claims find the plaintiff could not prove the element of duty; One of the four requirements to prove negligence. The trial court also found the plaintiff had assumed the risk and as such the defendants did not owe her any duty of care. The plaintiff appealed. 

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

The court started with the Common Carrier analysis.  

California law imposes a heightened duty of care on operators of transportation who qualify as “common carriers” to be as diligent as possible to protect the safety of their passengers. A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.

The court defined common carrier by statute as “A common carrier of persons is anyone “who offers to the public to carry persons.” This higher degree of care only applies to carriers who hold themselves out to the public for hire.

A carrier of persons without reward must use ordinary care and diligence for their safe carriage.” (Civ. Code, § 2096.) But “[c]arriers of persons for reward have long been subject to a heightened duty of care.” Such carriers “must use the utmost care and diligence for [passengers’] safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. 

The level of care is not absolute; common carriers are not insurers of the safety of their passengers. However, they are required to do all that “human care, vigilance, and foresight reasonably can do under the circumstances.” This heightened duty originated in England, prior to the US becoming a country and was based on: 

This duty originated in English common law and is “based on a recognition that the privilege of serving the public as a common carrier necessarily entails great responsibility, requiring common carriers to exercise a high duty of care towards their customers. 

In California, the common carrier status started with stage coaches. Since then the application of the term and the heightened duty has evolved and broadened to include recreational transportation, “scenic airplane and railway tours, ski lifts, and roller coasters “have all been deemed common carriers under California law.”

In California, the degree of care is defined more by the control the passenger has over the transportation. Roller Coasters are common carriers because the passenger has no control over the speed of the coaster or the maintenance on the coaster. At the same time, bumper cars are not common carriers because the passenger is able to steer and control the speed and direction of the bumper car. 

In California, the “inquiry in the common carrier analysis is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury.”

The court found the hot-air balloon was not a common carrier. Although the passenger has little if any control over the flight of the balloon, neither does the pilot of the balloon. The only control the pilot has is changing the altitude of the balloon. 

…balloon pilots do not maintain direct and precise control over the speed and direction of the balloon. A pilot directly controls only the balloon’s altitude, by monitoring the amount of heat added to the balloon’s envelope. A pilot has no direct control over the balloon’s latitude, which is determined by the wind’s speed and direction. A balloon’s lack of power and steering poses risks of midair collisions and crash landings, making ballooning a risky activity.

The analysis the court applied then turned on how much control the operator of the transportation had, not how little the passenger had. 

But there is a significant difference between the dangers of riding those conveyances and the dangers involved in ballooning. The former can be virtually eliminated through engineering design and operator skill, whereas the latter cannot be mitigated without altering the fundamental nature of a balloon. 

Thus a balloon pilot does not owe his or her customer a heightened duty of care. 

Assumption of the risk was the next defense the court examined. Under California law if the plaintiff assumes the risk, then the defendant does not owe the plaintiff any duty of care. 

Under California law, a balloon operator does not owe his or her passengers a duty of care for the inherent risks of the activity. “The doctrine applies to any activity “done for enjoyment or thrill … [that] involves a challenge containing a potential risk of injury.”

Because the pilot of a hot-air balloon can only control the ascent and descent of the balloon and no other control of the balloon, the passenger must assume the risk of all things ballooning. 

We therefore hold the doctrine applies to crash landings caused by the failure to safely steer a hot air balloon. We further hold Grotheer’s claim of pilot error falls under the primary assumption of risk doctrine because the claim goes to the core of what makes balloon landings inherently risky–the challenge of adjusting the balloon’s vertical movement to compensate for the unexpected changes in horizontal movement. As a result, Escape had no legal duty to protect Grotheer from crash landings caused by its pilot’s failure to safely manage the balloon’s descent. 

Consequently, the pilot and the balloon company owed no duty to the plaintiff. The inherent risks of ballooning include crashing. 

The court then looked at the issue of whether or not the plaintiff received any safety instructions prior to the flight. A guide, outfitter or operator of a balloon which is an inherently dangerous activity still owes a duty to take reasonable steps to minimize the inherent risks. However, those steps must not fundamentality alter the activity. “The primary assumption of risk doctrine is limited to those steps or safety measures that would have a deleterious effect on recreational activities that are, by nature, inherently dangerous.” 

What the primary assumption of risk doctrine does not do, however, is absolve operators of any obligation to protect the safety of their customers. As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity  without also altering the nature of the activity, the operator is required to do so. 

The issue then becomes whether or not the balloon operator owes a duty to provide safety instructions. 

Courts consider several factors in determining the existence and scope of a duty of care, including the foreseeability of harm to the plaintiff, the policy of preventing future harm, and the burden to the defendant and consequences to the community of imposing the duty.

Foreseeability is a primary factor in determining whether a duty exists. In this case, the court concluded that providing a safety briefing was custom in the industry. Nor would giving a safety lecture be overly burdensome to the balloon operator or pilot.

The duty we recognize here does not compel anything so lengthy or complex as commercial airlines’ preflight instructions. It requires
only that a commercial balloon operator provide a brief set of safe landing procedures, which Escape’s pilot said is already his custom. Safety instructions are a common practice among operators of recreational activities, and we do not believe requiring balloon operators to set aside a few moments before launch to advise passengers how to position themselves in the basket and what to do in the event of a rough landing will have a negative impact on the ballooning industry. 

So the balloon operator did owe the plaintiff a duty to provide her with a safety instruction. However, that was not the end of the analysis. To prove negligence you must prove a duty, a breach of the duty an injury that was proximately caused by the breach of the duty and damages. In this case, the failure to provide a safety breeching was not the reason why the plaintiff broke her leg, or at least, the plaintiff could not prove the proximate causation. 

Examined another way, for the injury of the plaintiff to be proximately caused by the breach of duty of the defendant, the acts of the defendant must be a substantial factor in that injury. 

To be considered a proximate cause of an injury, the acts of the defendant must have been a “substantial factor” in contributing to the injury. Generally, a defendant’s conduct is a substantial factor if the injury would not have occurred but for the defendant’s conduct. If the injury “‘would have happened anyway, whether the defendant was negligent or not, then his or her negligence was not a cause in fact, and of course cannot be the legal or responsible cause.”

The balloon landing was called a jarring and violent crash by all witnesses. The plaintiff was on the bottom of the pile of people when the basket stopped moving, lying on its side. Any safety talk probably would not have helped the plaintiff prevent her leg from breaking in such a landing. “The accounts of the crash satisfied defendants’ burden of demonstrating the violence of the crash, not any lack of instructions, was the proximate cause of Grotheer’s injury.” 

Consequently, although the balloon operator breached his duty of care to the plaintiff, the injury that occurred to the plaintiff was due to the crash of the balloon which was a violent event rather than the plaintiff being able to deal with a normal landing properly.

So Now What? 

The safety instruction duty is troublesome. How is an outfitter supposed to provide a safety instruction if the customer  cannot comprehend what is being said. In this case, there might have been a way around it if the son could translate for  the plaintiff. However, in many cases a family from a foreign country with little or no English shows up for a recreational  activity with little or no understanding of the activity or the risks. The outfitter has no way of making sure the customer  understands the safety briefing if the outfitter does not speak the customer’s language. 

In California, if you have a customer who does not understand what you are saying, you must probably turn them away.

 What do you think? Leave a comment. 

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Grotheer v. Escape Adventures, Inc., et al., 14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

Grotheer v. Escape Adventures, Inc., et al., 14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

Erika Grotheer, Plaintiff and Appellant, v. Escape Adventures, Inc., et al., Defendants and Respondents.

E063449

Court of Appeal of California, Fourth Appellate District, Division Two

14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

August 31, 2017, Opinion Filed

PRIOR HISTORY: [**1] APPEAL from the Superior Court of Riverside County, No. RIC1216581, John W. Vineyard, Judge.

DISPOSITION: Affirmed.

COUNSEL: The Law Office of Robert J. Pecora and Robert J. Pecora for Plaintiff and Appellant.

Agajanian, McFall, Weiss, Tetreault & Crist and Paul L. Tetreault for Defendants and Respondents.

JUDGES: Opinion by Slough, J., with Ramirez, P. J., and Codrington, J., concurring.

OPINION BY: Slough, J.

OPINION

SLOUGH, J.–Plaintiff and appellant Erika Grotheer is a non-English speaking German citizen who took a hot air balloon ride in the Temecula [*1288] wine country and suffered a fractured leg when the basket carrying her and seven or eight others crash-landed into a fence. Grotheer sued three defendants for her injuries: the balloon tour company, Escape Adventures, Inc. (Escape), the pilot and Escape’s agent, Peter Gallagher (Gallagher), and Wilson Creek Vineyards, Inc. (Wilson Creek) (collectively, defendants or respondents). Grotheer alleged Escape and Gallagher negligently or recklessly operated the balloon by (1) failing to properly slow its descent during landing and (2) failing to give the passengers safe landing instructions before the launch. Grotheer alleged the hot air balloon company is a common carrier, and as such, owed [**2] its passengers a heightened duty of care. (Civ. Code, § 2100.) Grotheer also alleged Wilson Creek was vicariously liable for Escape and Gallagher’s conduct because the vineyard shared a special relationship with the balloon company.

Defendants moved for summary judgment, arguing Grotheer could not satisfy the elements of a negligence claim and, even if she could, she had waived the right to assert such a claim by signing Escape’s liability waiver before the flight. The trial court agreed Grotheer could not establish the element of duty, finding Grotheer had assumed the risk of her injury under the primary assumption of risk doctrine and, as a result, Escape and Gallagher owed her no duty of care whatsoever. (Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight).) The trial court entered judgment in favor of defendants, and Grotheer appealed.

Grotheer contends the trial court erred in concluding her claim was barred by primary assumption of risk and reasserts on appeal that Escape is a common carrier. We affirm the judgment, but on a different ground than relied on by the trial court. We hold: (1) a balloon tour company like Escape is not a common carrier subject to a heightened duty of care; (2) the primary assumption of risk doctrine bars [**3] Grotheer’s claim that Gallagher negligently failed to slow the balloon’s descent to avoid a crash landing; and (3) Escape does have a duty to provide safe landing instructions to its passengers, but the undisputed evidence regarding the crash demonstrates that any failure on Escape’s part to provide such instructions was not the cause of Grotheer’s injury.

I

FACTUAL BACKGROUND

A. Preflight

Grotheer’s son, Thorsten, purchased his mother a ticket for a hot air balloon tour with Escape during her visit to California, as a present for her [*1289] 78th birthday. On the morning of the tour, Grotheer and Thorsten met with the Escape crew and the other passengers in the parking lot of the vineyard owned by Wilson Creek, near the field where Escape launched its balloons. Thorsten later testified at his deposition that when they arrived to check in, he tried to explain his mother’s language barrier to the flight crew so Escape could ensure she understood any safety instructions. Thorsten said Gallagher, the pilot, responded by waving him away and saying, “Everything is going to be fine.” Thorsten tried telling two more Escape employees his mother could not understand English, but they appeared to be in [**4] a rush and told him he could not be in the immediate launch vicinity if he had not purchased a ticket. At some point during this check-in activity, Grotheer signed Escape’s liability waiver, which purported to release the company and its agents from claims based on “ordinary negligence.”

Gallagher then drove the passengers to the nearby launchsite. Grotheer drove over separately, with Thorsten. In his declaration, Gallagher said he gave the passengers safety instructions during the drive, as is his custom. He said the instructions covered what to do during landing: “I described to my passengers what to expect in terms of lifting off … and landing … I told them to bend their knees and hold on upon landing, and not to exit the basket until told to do so.”

According to passengers Boyd and Kristi Roberts, however, neither Escape nor Gallagher provided safety instructions. Boyd declared he sat in the front passenger seat next to Gallagher during the drive, which lasted a little over a minute and during which Gallagher described his credentials and years of experience. Boyd remembered receiving “a very general informational talk … about what to expect on [the] flight,” but said [**5] “[t]here was no mention of safety issues or proper techniques for take-off and landing.” Boyd’s wife, Kristi, also rode to the launchsite with Gallagher and said she never heard him give instructions, “other than to hold on as we took off.”

B. The Crash

The tour proceeded without incident until the landing. According to the four accounts in the record, as the balloon descended at a high rate of speed, the basket crashed into a fence then crashed into the ground and bounced and skidded for about 40 yards before finally coming to a stop, on its side. By all accounts, the event was forceful and caused the passengers to be tossed about the basket.

Boyd Roberts described the crash landing as follows: “The balloon was being pushed at a good clip by the wind and we were travelling in a horizontal direction as we were also descending. We were going sideways, [*1290] and … [b]efore we landed, we actually crashed into and took out several sections of [a] 3 rail fence.” After the basket collided with the fence, it hit the ground “with a hard bump and a bounce.” The passengers were “taken for a wild ride as [the basket] was getting dragged downwind [by the balloon].” The basket “became more and more horizontal” as [**6] it was being dragged. “We easily skipped 30 or 40 yards, with a couple of hard impacts along the way.” When the basket finally came to rest, it was “on its side, not its bottom,” with Grotheer’s section on the bottom and Boyd’s on top. He recalled that Grotheer was below him “lying on what was the side of the [basket] which was now the floor.”

Kristi Roberts’s account of the crash landing matches Boyd’s. She said, “we were going pretty fast towards the ground and it looked like we might hit the fence. We did hit the fence, as the [basket] crashed in the top of the three rails, and knocked it right apart.” After that, the basket “hit the ground hard.” Kristi recalled, “I was holding on as tight as I could to the [b]asket, but we were all standing up and it was hard to keep from falling over when we crashed into the ground.”

Gallagher described the landing similarly, though not in as much detail. He said the balloon had been “descending more quickly than anticipated” and the “passenger compartment of the balloon made a hard landing, first on a fence, then on the ground.” He believed the balloon’s descent had been hastened by a “false lift,” which he described as a condition where the wind travels [**7] faster over the top of the balloon than the rest of the balloon. The faster wind creates lift, but when the wind slows the aircraft can quickly lose altitude unless the pilot adds more heat to the balloon’s envelope. In his declaration, Gallagher said he “applied as much heat as possible to the envelope to add buoyancy,” but the additional heat was not sufficient to arrest the descent before the balloon hit the fence.

In her deposition, Grotheer said the balloon basket experienced two forceful impacts, first with the fence, then with the ground. She recalled she had been holding on to the metal rod in the basket when it hit the fence, but despite holding on, she was “still sliding.” She believed her leg broke upon the second impact–when the balloon hit the ground after the collision with the fence. She described her injury as follows: “The people in the balloon, they were all holding. It was hard. It hit the ground hard. And one woman just came like this (indicating).” Grotheer added, “[a]nd the lady is innocent because even her, she was pushed. She was pushed around by the other people in the basket.” Grotheer did not think anyone collided with her after that initial impact with the ground. [**8] She explained, “I just got myself real quick together. [The injury] was just at the beginning.” [*1291]

James Kitchel, Grotheer’s expert who has piloted balloons for over 25 years, concluded the cause of the crash landing was Gallagher’s “failure to maintain safe control over the ‘delta’ temperature[,] anticipate changing pressure differentials[,] and counterbalance the effects on the rate of descent.” He disagreed with Gallagher’s false lift theory, opining instead the balloon had likely simply experienced a wind shear. He believed all Gallagher had to do “to avoid this crash entirely” was add “sufficient heat” to the envelope “before the Balloon was already about to crash.”

Kitchel explained that many people perceive ballooning as a gentle, peaceful experience, but in reality, balloon rides “can be violent, high speed events with tragic results.” What makes a balloon a risky conveyance is the pilot’s inability to directly control the balloon’s movement. A pilot can directly control only the balloon’s altitude, which is done by managing the amount of heat added to the balloon’s envelope. The direction and speed of the wind determines lateral movement. Kitchel stated, “There is no way of steering [**9] a Balloon, such as by having a rudder. … [A] Balloon pilot never truly knows where the Balloon is going to land. He is at the mercy of the wind speed and direction.”

Kitchel also opined that the industry standard of care requires a commercial balloon operator to give “at the very least, one detailed safety presentation.” According to Kitchel, the Federal Aviation Administration’s Balloon Flying Handbook (FAA Handbook) suggests the following safety instructions to prepare passengers for a “firm impact” upon landing: (1) “Stand in the appropriate area of the basket”; (2) “Face the direction of travel”; (3) “Place feet and knees together, with knees bent”; (4) “‘Hold on tight’ in two places”; and (5) “Stay in the basket.” Kitchel did not believe any one particular set of instructions was required and he described the FAA Handbook’s safe landing procedures as a “good minimum standard.”

C. The Complaint

Grotheer’s complaint against defendants alleged she was injured when the balloon “crash land[ed] into a fence located on WILSON CREEK property.” She alleged her injury was a result of negligent piloting and failure to provide safety instructions. She also alleged Escape is a common carrier and [**10] has a duty to ensure the safety of its passengers.

D. The Summary Judgment Motion

Defendants filed a motion for summary judgment, arguing Grotheer’s negligence claim failed as a matter of law because she had assumed the risk of her injury under the primary assumption of risk doctrine. Defendants also [*1292] sought summary judgment on their liability waiver affirmative defense, claiming Grotheer had expressly waived her right to assert a negligence claim. In opposition, Grotheer argued: (1) the primary assumption of risk doctrine does not apply to common carriers like Escape; (2) the doctrine did not relieve Escape and Gallagher of a duty to avoid the crash landing and to provide safety instructions; and (3) the liability waiver was invalid because Escape knew she did not speak English and could not understand it. Grotheer also argued Wilson Creek was vicariously liable for Escape’s breach because the two companies were in a “symbiotic business relationship.”

After a hearing, the court concluded it was undisputed hot air ballooning is a risky activity that can involve crash landings, Grotheer assumed the risk of injury from a crash landing by voluntarily riding in the balloon, and defendants [**11] owed no duty whatsoever to protect her from her injury. The court also concluded Wilson Creek was not vicariously liable for Escape and Gallagher’s conduct. However, the court denied the motion for summary judgment on the liability waiver defense, stating, “there is at least an arguable duress in being separated from her son who was her translator at the time and not understanding the circumstances based on the language. I think that’s a triable issue of fact.” Based on its finding of no duty, the court concluded Grotheer’s negligence claim failed as a matter of law, and it entered judgment in favor of defendants.

II

DISCUSSION

A. Standard of Review

[HN1] A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [107 Cal. Rptr. 2d 841, 24 P.3d 493] (Aguilar).)

[HN2] A defendant who moves for summary judgment bears the initial burden to show the action has no merit–that is, “one or more elements of the [**12] cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to [that] cause of action.” (Code Civ. Proc., § 437c, subds. (a), (p)(2).) Once the defendant meets this initial burden of production, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of [*1293] material fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) “From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law.” (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1268-1269 [97 Cal. Rptr. 3d 241].) [HN3] We review the trial court’s ruling on a summary judgment motion de novo, liberally construing the evidence in favor of the party opposing the motion and resolving all doubts about the evidence in favor of the opponent. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460 [30 Cal. Rptr. 3d 797, 115 P.3d 77].) We consider all of the evidence the parties offered in connection with the motion, except that which the court properly excluded.1 (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 [110 Cal. Rptr. 2d 370, 28 P.3d 116].)

1 Without supporting argument, Grotheer claims the trial court abused its discretion in refusing to consider her objections to defendants’ evidence, and her responses to defendants’ objections to her evidence, on the ground they were untimely filed on the day of the hearing. We will not consider this claim, however, because Grotheer has not explained why any of her objections or responses had merit, or how she was prejudiced by the court’s failure to consider them. (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [149 Cal. Rptr. 3d 491] [“we may disregard conclusory arguments that … fail to disclose [appellant’s] reasoning”].)

B. Escape Is Not a Common Carrier and Did Not Owe Grotheer a Heightened Duty To Ensure Her Safe Carriage

Grotheer claims Escape is a common carrier and therefore owed its passengers a heightened duty of care to ensure their safe carriage during the balloon tour. We conclude a hot air balloon operator like Escape is not a common [**13] carrier as a matter of law.

[HN4] (1) In general, every person owes a duty to exercise “reasonable care for the safety of others,” however, California law imposes a heightened duty of care on operators of transportation who qualify as “common carriers” to be as diligent as possible to protect the safety of their passengers. (See Civ. Code, §§ 1714, subd. (a), 2100, 2168.) “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100.) Contrary to Escape’s contention, it is necessary to resolve whether Escape is a common carrier because the heightened duty of care in Civil Code section 2100 precludes the application of the primary assumption of risk doctrine. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1161 [150 Cal. Rptr. 3d 551, 290 P.3d 1158] (Nalwa).) [*1294]

Whether a hot air balloon operator is a common carrier is an issue of first impression in California.2 It is also a question of law, as the material facts regarding Escape’s operations are not in dispute.3 (Huang v. The Bicycle Casino, Inc. (2016) 4 Cal.App.5th 329, 339 [208 Cal. Rptr. 3d 591] (Huang).)

2 The only published case addressing the issue is Balloons Over the Rainbow, Inc. v. Director of Revenue (Mo. 2014) 427 S.W.3d 815, where a hot air balloon operator argued it was a common carrier under Missouri law for tax purposes. The Supreme Court of Missouri upheld the administrative hearing commissioner’s determination the operator was not a common carrier because it exercised discretion regarding which passengers to fly and therefore did not “carry all people indifferently,” as the statutory definition required. (Id. at pp. 825-827.)

3 Escape claims it stipulated to being a common carrier in its motion for summary judgment. Actually, Escape stated was it was not “controvert[ing] at [that] time the assertion that it is a common carrier.” But even if it had so stipulated, [HN5] we are not bound by agreements that amount to conclusions of law. (E.g., People v. Singh (1932) 121 Cal.App. 107, 111 [8 P.2d 898].)

[HN6] (2) A common carrier of persons is anyone “who offers to the public to carry persons.” (Civ. Code, § 2168.) The Civil Code treats common carriers differently depending on whether they act gratuitously or for reward. (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1130 [29 Cal. Rptr. 3d 352, 113 P.3d 41] (Gomez).) “A carrier of persons without [**14] reward must use ordinary care and diligence for their safe carriage.” (Civ. Code, § 2096.) But “[c]arriers of persons for reward have long been subject to a heightened duty of care.” (Gomez, at p. 1128.) Such carriers “must use the utmost care and diligence for [passengers’] safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100; accord, Gomez, at p. 1130.) While common carriers are not insurers of their passengers’ safety, they are required “‘to do all that human care, vigilance, and foresight reasonably can do under the circumstances.'” (Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1507 [3 Cal. Rptr. 2d 897].) This duty originated in English common law and is “based on a recognition that the privilege of serving the public as a common carrier necessarily entails great responsibility, requiring common carriers to exercise a high duty of care towards their customers.” (Ibid.)

Common carrier status emerged in California in the mid-19th century as a narrow concept involving stagecoaches hired purely for transportation. (Gomez, supra, 35 Cal.4th at p. 1131.) Over time, however, the concept expanded to include a wide array of recreational transport like scenic airplane and railway tours, ski lifts, and roller coasters. (Id. at pp. 1131-1136.) This expansion reflects the policy determination [**15] that a passenger’s purpose, be it recreation, thrill-seeking, or simply conveyance from point A to B, should not control whether the operator should bear a higher duty to protect the passenger. (Id. at p. 1136.)

In Gomez, the California Supreme Court concluded roller coasters are common carriers, despite their purely recreational purpose, because they are [*1295] “‘operated in the expectation that thousands of patrons, many of them children, will occupy their seats'” and are “held out to the public to be safe.” (Gomez, supra, 35 Cal.4th at p. 1136.) As with other recreational transportation like ski lifts, airplanes, and trains, “‘the lives and safety of large numbers of human beings'” are entrusted to the roller coaster operator’s “‘diligence and fidelity.'” (Ibid., quoting Treadwell v. Whittier (1889) 80 Cal. 574, 591 [22 P. 266].)

Despite the consistent trend toward broadening the common carrier definition to include recreational vehicles, almost a decade after Gomez the California Supreme Court refused to apply the heightened duty of care to operators of bumper cars, finding them “dissimilar to roller coasters in ways that disqualify their operators as common carriers.” (Nalwa, supra, 55 Cal.4th at p. 1161.) Crucial to the analysis in Nalwa was that bumper car riders “‘exercise independent control over the steering and acceleration,'” [**16] whereas roller coaster riders “‘ha[ve] no control over the elements of thrill of the ride; the amusement park predetermines any ascents, drops, accelerations, decelerations, turns or twists of the ride.'” (Ibid.) This difference in control convinced the court that “[t]he rationale for holding the operator of a roller coaster to the duties of a common carrier for reward–that riders, having delivered themselves into the control of the operator, are owed the highest degree of care for their safety–simply does not apply to bumper car riders’ safety from the risks inherent in bumping.” (Ibid., italics added.)

(3) This precedent teaches that [HN7] the key inquiry in the common carrier analysis is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury. (Gomez, supra, 35 Cal.4th at p. 1136; Nalwa, supra, 55 Cal.4th at p. 1161.) While a bumper car rider maintains a large degree of control over the car’s speed and direction, a roller coaster rider recognizes the thrills and unpredictability of the ride are manufactured for his amusement by an operator who in reality maintains direct control over the coaster’s speed and direction at all times. (Gomez, at p. 1136.) As our high court explained, the roller coaster rider “expects [**17] to be surprised and perhaps even frightened, but not hurt.” (Ibid.)

It is in this critical regard we find a hot air balloon differs from those recreational vehicles held to a common carrier’s heightened duty of care. Unlike operators of roller coasters, ski lifts, airplanes, and trains, balloon pilots do not maintain direct and precise control over the speed and direction of the balloon. A pilot directly controls only the balloon’s altitude, by monitoring the amount of heat added to the balloon’s envelope. A pilot has no direct control over the balloon’s latitude, which is determined by the wind’s speed and direction. A balloon’s lack of power and steering poses risks of midair collisions and crash landings, making ballooning a risky activity. (See [*1296] Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 345-346 [214 Cal. Rptr. 194] [hot air ballooning “involve[s] a risk of harm to persons or property” because pilots cannot “direct their paths of travel … [or] land in small, targeted areas”]; Note, Negligence in the [Thin] Air: Understanding the Legal Relationship Between Outfitters and Participants in High Risk Expeditions Through Analysis of the 1996 Mount Everest Tragedy (2008) 40 Conn. L.Rev. 769, 772 [“hot air ballooning” is a “high-risk activity”].) As Kitchel, Grotheer’s expert, [**18] put it, a balloon pilot “is at the mercy of the wind speed and direction.” (See Note, On a Wind and a Prayer (1997) 83 A.B.A. J. 94, 95 [“winds … can transform a wondrous journey into a life-or-death struggle”].)

[HN8] (4) The mere existence of risk is not sufficient to disqualify a vehicle as a common carrier, however. Roller coasters, ski lifts, airplanes, and trains all pose “‘inherent dangers owing to speed or mechanical complexities.'” (Gomez, supra, 35 Cal.4th at p. 1136.) But there is a significant difference between the dangers of riding those conveyances and the dangers involved in ballooning. The former can be virtually eliminated through engineering design and operator skill, whereas the latter cannot be mitigated without altering the fundamental nature of a balloon.

Operators of roller coasters, ski lifts, airplanes, and trains can take steps to make their conveyances safer for passengers without significantly altering the transportation experience. For example, roller coaster operators can invest in state-of-the-art construction materials and control devices or task engineers with designing a ride that provides optimal thrills without sacrificing passenger safety. With a balloon, on the other hand, safety measures and pilot training [**19] go only so far toward mitigating the risk of midair collisions and crash landings. The only way to truly eliminate those risks is by adding power and steering to the balloon, thereby rendering vestigial the very aspect of the aircraft that makes it unique and desirable to passengers.

(5) Because no amount of pilot skill can completely counterbalance a hot air balloon’s limited steerability, ratcheting up the degree of care a tour company must exercise to keep its passengers safe would require significant changes to the aircraft and have a severe negative impact on the ballooning industry. For that reason, we conclude [HN9] Escape is not a common carrier as a matter of law.

C. The Trial Court Incorrectly Determined Escape Owed Grotheer No Duty of Care

Having concluded a hot air balloon company does not owe its passengers a heightened duty of care, we must decide whether Escape owed Grotheer any [*1297] duty of care to protect her from her injury. Grotheer claims Escape and Gallagher had a duty to safely pilot the balloon and to provide safety instructions. Escape contends it owed neither duty under the primary assumption of risk doctrine. We analyze each separately.

1. Balloon piloting and primary assumption [**20] of risk

Grotheer alleges her injury was caused in part by Gallagher’s subpar piloting. Her expert opined the cause of the crash was Gallagher’s failure to control the speed and direction of the balloon’s descent by anticipating changing pressure differentials and maintaining the proper amount of heat in the balloon’s envelope. According to Kitchel, Gallagher could have avoided the crash entirely by “adding sufficient heat … in a timely manner.”

[HN10] (6) “‘Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others … , some activities … are inherently dangerous,'” such that “‘[i]mposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.'” (Nalwa, supra, 55 Cal.4th at p. 1154, citation omitted.) Primary assumption of risk is a doctrine of limited duty “developed to avoid such a chilling effect.” (Ibid.) If it applies, the operator is not obligated to protect its customers from the “inherent risks” of the activity. (Id. at p. 1162.)

“‘Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty [**21] which might chill vigorous participation in the sport and thereby alter its fundamental nature.'” (Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal. Rptr. 3d 536].) “Although the doctrine is often applied as between sports coparticipants, it defines the duty owed as between persons engaged in any activity involving inherent risks.” (Ibid.) The doctrine applies to any activity “done for enjoyment or thrill … [that] involves a challenge containing a potential risk of injury.” (Record v. Reason (1999) 73 Cal.App.4th 472, 482 [86 Cal. Rptr. 2d 547]; see Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658 [96 Cal. Rptr. 3d 105] [by attending Burning Man festival plaintiff assumed risk of being burned during ritual burning of eponymous effigy].)

The test is whether the activity “‘involv[es] an inherent risk of injury to voluntary participants … where the risk cannot be eliminated without altering the fundamental nature of the activity.'” (Nalwa, supra, 55 Cal.4th at p. 1156.) As we concluded above in the section on common carriers, a balloon’s limited steerability creates risks of midair collisions and crash landings. Moreover, those risks cannot be mitigated except by adding power [*1298] and steering, which would fundamentally alter the free-floating nature of a balloon, turning it into a dirigible.4 “‘[T]he excitement of [ballooning] is that you never know exactly where you’re going to land. [¶] … [¶] … It’s taking something that is unsteerable [**22] and trying to steer it. That’s the challenge.'” (Note, On a Wind and a Prayer, supra, 83 A.B.A. J. at pp. 95, 94; cf. Nalwa, supra, 55 Cal.4th at pp. 1157-1158 [refusing to impose liability on bumper car operators for injuries caused in collisions as doing so would have the effect of “‘decreasing the speed'”–and ultimately the fun–of the ride].)

4 The term “dirigible” literally means “steerable.” It comes from the Latin verb dirigere, meaning “to direct,” and refers to lighter-than-air aircraft capable of being steered, like blimps and zeppelins. (Webster’s 3d New Internat. Dict. (1993) p. 642.)

(7) We therefore hold [HN11] the doctrine applies to crash landings caused by the failure to safely steer a hot air balloon. We further hold Grotheer’s claim of pilot error falls under the primary assumption of risk doctrine because the claim goes to the core of what makes balloon landings inherently risky–the challenge of adjusting the balloon’s vertical movement to compensate for the unexpected changes in horizontal movement. As a result, Escape had no legal duty to protect Grotheer from crash landings caused by its pilot’s failure to safely manage the balloon’s descent.

(8) To avoid this outcome, Grotheer alleged Gallagher’s piloting was not only negligent, but grossly negligent, thereby increasing the inherent risk of crash landing. Grotheer is correct [HN12] the primary assumption of risk does not eliminate an operator’s duty to refrain from engaging in reckless conduct that “unreasonably increase[s] the risks of injury beyond those inherent in the activity.” ( [**23] Nalwa, supra, 55 Cal.4th at p. 1162.) However, she has provided no evidence Gallagher’s piloting fell so outside the range of ordinary it unreasonably increased the inherent risk of crash landing.

Gross negligence is a want of even scant care or an extreme departure from the ordinary standard of conduct. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754 [62 Cal. Rptr. 3d 527, 161 P.3d 1095].) In this context, such extreme conduct might be, for example, launching without sufficient fuel, in bad weather, or near electrical towers; using unsafe or broken equipment; or overloading the passenger basket. In the absence of evidence of such conduct, we hold the primary assumption of risk doctrine bars Grotheer’s piloting claim.

Grotheer compares Gallagher’s piloting to the conduct of the skier defendant in Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367 [38 Cal. Rptr. 3d 422] (Mammoth Mountain), but the analogy is inapt. In Mammoth Mountain, a snowboarding instructor was injured when he collided with a skier who had stopped midslope to throw snowballs at his brother. The [*1299] court reversed summary judgment granted on the basis of primary assumption of risk, concluding there was a factual issue as to whether the skier’s behavior was so “outside the range of ordinary activity involved in the sport of snowboarding” that it increased the inherent risk of colliding with others on the slope. [**24] (Id. at pp. 1373-1374.) Gallagher’s alleged failure to control the balloon’s descent is nothing like the skier’s conduct in Mammoth Mountain. Skiing does not entail throwing snowballs, whereas managing speed and direction in the face of changing wind conditions is the principal challenge in ballooning. As a result, the failure to surmount that challenge falls squarely within the range of ordinary activity for ballooning.

2. Safety instructions and the duty to take reasonable steps to minimize inherent risks

(9) Grotheer also claims her injury was caused, at least in part, by Escape’s failure to give safety instructions. The trial court rejected this theory of liability when it concluded ballooning was an inherently risky activity and, as a result, Escape owed Grotheer no duty at all to protect her from injury. We conclude that ruling was too broad. Under Knight, [HN13] even an operator of an inherently risky activity owes a duty to take reasonable steps to minimize those inherent risks, if doing so would not fundamentally alter the activity. (Knight, supra, 3 Cal.4th at p. 317.) As we explain, instructing passengers on safe landing procedures takes little time and effort, and can minimize the risk of passenger injury in the event of a rough landing. [**25]

The primary assumption of risk doctrine is limited to those steps or safety measures that would have a deleterious effect on recreational activities that are, by nature, inherently dangerous. (Record v. Reason, supra, 73 Cal.App.4th at pp. 484-485; Nalwa, supra, 55 Cal.4th at p. 1162 [“The primary assumption of risk doctrine helps ensure that the threat of litigation and liability does not cause such recreational activities to be abandoned or fundamentally altered in an effort to eliminate or minimize inherent risks of injury”].) For example, an obligation to reduce a bumper car’s speed or the rider’s steering autonomy would impede the most appealing aspect of the ride–the ability to collide with others. (Id. at pp. 1157-1158.) “‘Indeed, who would want to ride a tapper car at an amusement park?'” (Id. at p. 1158.) Similarly, in the context of white water rafting, an obligation to design the rafts to minimize the “risk of striking objects both inside and outside the raft,” would transform the activity into “a trip down the giant slide at Waterworld.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 256 [38 Cal. Rptr. 2d 65].) Safety is important, but so is the freedom to engage in recreation and challenge one’s limits. The primary assumption of risk doctrine balances these competing concerns by absolving operators of activities with inherent risks from an obligation to protect [**26] their customers from those risks. [*1300]

(10) What the primary assumption of risk doctrine does not do, however, is absolve operators of any obligation to protect the safety of their customers. (Knight, supra, 3 Cal.4th at pp. 317-318.) As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so. As the court explained in Knight, “in the sports setting, as elsewhere, the nature of the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue in a given case.” (Knight, at p. 318.) [HN14] When the defendant is the operator of an inherently risky sport or activity (as opposed to a coparticipant), there are “steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport [or activity].” (Id. at p. 317.)

Even before Knight, tort law imposed on operators a duty to take reasonable steps to minimize the inherent risks of their activity. (See Knight, supra, 3 Cal.4th at p. 317, citing Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 728-729 [46 P.2d 144]; Shurman v. Fresno Ice Rink (1949) 91 Cal.App.2d 469, 474-477 [205 P.2d 77].) Within our own appellate district we find precedent for imposing on hot air balloon operators and their pilots a duty of care to instruct passengers [**27] on how to position themselves for landing.

In Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 [40 Cal. Rptr. 2d 249] (Morgan), Division One of our appellate district held a golf course owner had a duty to design its course to minimize the risk of being hit by a golf ball, despite the fact such a risk is inherent to golfing, because doing so was possible “‘without altering the nature of [golf].'” (Id. at p. 134.) Our colleagues explained this duty stemmed from the fact the defendant was the golf course owner. If, on the other hand, the plaintiff had sued the golfer who had hit the errant ball, the action would have been barred by the primary assumption of risk doctrine. (Id. at pp. 133-134.)

Nearly a decade after Morgan, the same court held a race organizer had a duty to minimize the risks of dehydration and hyponatremia5–risks inherent to marathons–by “providing adequate water and electrolyte fluids along the 26-mile course” because “[s]uch steps are reasonable and do not alter the nature of the sport [of marathon running].” (Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 179 [119 Cal. Rptr. 2d 497].) Faced with a similar situation in Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072 [122 Cal. Rptr. 3d 22], this court held an owner of a motocross track had a duty to provide a system for signaling when riders have fallen in order to minimize the risk of collisions. (Id. at p. 1084.) Track owners could satisfy this duty by employing “caution flaggers,” [**28] or some similar device, which [*1301] would be relatively easy to implement and would not alter the nature of motocross. (Ibid.) As these cases demonstrate, the primary assumption of risk doctrine has never relieved an operator of its duty to take reasonable steps to minimize inherent risks without altering the nature of the activity.

5 A condition which occurs as a result of decreased sodium concentration in the blood.

(11) Having determined the primary assumption of risk doctrine does not absolve Escape of a duty to exercise reasonable care in all aspects of its operations, we turn to the existence and scope of the duty at issue here–safety instructions. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 [63 Cal. Rptr. 3d 99, 162 P.3d 610] [HN15] [the existence and scope of a duty of care are questions of law for the trial court to determine in the first instance and the appellate court to independently review].) [HN16] Courts consider several factors in determining the existence and scope of a duty of care, including the foreseeability of harm to the plaintiff, the policy of preventing future harm, and the burden to the defendant and consequences to the community of imposing the duty. (See, e.g., Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn. 5 [25 Cal. Rptr. 2d 137, 863 P.2d 207].)

[HN17] (12) Foreseeability is the primary factor in the duty analysis. (Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359, 366 [163 Cal. Rptr. 3d 55].) Our task in evaluating foreseeability “‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable [**29] in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.'” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772 [122 Cal. Rptr. 3d 313, 248 P.3d 1170].) The existence and scope of a duty of care “is to be made on a more general basis suitable to the formulation of a legal rule” to be applied in a broad category of cases. (Id. at p. 773; see Huang, supra, 4 Cal.App.5th at pp. 342-343.)

In this case, the evidence is undisputed that giving passengers a brief presentation on safe landing procedures (such as the instructions Grotheer’s expert cites from the FAA Handbook) is a customary and standard practice in the ballooning industry. To paraphrase Grotheer’s expert, these safe landing procedures are: (1) stand in the appropriate area of the basket; (2) face toward or away from the direction of travel, but not sideways (to minimize the risk of a side-impact injury to the hips or knees); (3) place the feet and knees together, and bend the knees; (4) hold on tightly to the rope, handles, or other stabilizing device, and (5) stay inside the basket. Gallagher himself agreed safety instructions are crucial. He said he always explains what passengers can [**30] expect during launch and landing. In preparation for landing, he tells them to hold on to the handles, bend their knees, and not to exit the basket until told to do so. [*1302]

As to foreseeability, undisputed evidence in the record tells us that rough landings are a risk of ballooning and instructing passengers on proper landing positioning can reduce, though not eliminate, the likelihood of injury in the event the landing does not go smoothly. Additionally, we see no public policy reason why balloon operators should not be required to give safe landing instructions. (Huang, supra, 4 Cal.App.5th at p. 342.) As Kitchel, an experienced balloon pilot, owner, and operator, explained, “[a] detailed safety briefing takes no more than 5 minutes and is time well spent.” While “[m]any balloon landings are gentle, stand-up landings … the pilot should always prepare passengers for the possibility of a firm impact,” as rough landings can result in severe injuries.

(13) Escape contends the duty to provide safe landing instructions will be overly burdensome to balloon operators, citing the complexity of the preflight instructions operators of passenger-carrying airplanes are required to give under federal regulation. (See 14 C.F.R. § 121.571 (2017).) We find the concern misplaced. [**31] [HN18] The duty we recognize here does not compel anything so lengthy or complex as commercial airlines’ preflight instructions. It requires only that a commercial balloon operator provide a brief set of safe landing procedures, which Escape’s pilot said is already his custom. Safety instructions are a common practice among operators of recreational activities, and we do not believe requiring balloon operators to set aside a few moments before launch to advise passengers how to position themselves in the basket and what to do in the event of a rough landing will have a negative impact on the ballooning industry. (Cf. Nalwa, supra, 55 Cal.4th at p. 1161 [noting bumper car operator “enforce[d] various riding instructions and safety rules” before giving control of the car’s speed and steering to riders]; Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th at p. 251 [operator of white water rafting tour gave plaintiff “safety instructions,” such as “where to sit, that it was necessary to hold onto the raft while navigating rapids and where to hold on, and how to react if thrown out of the raft into the water”].) Because the evidence supports Grotheer’s allegation Escape failed to give safety instructions of any kind to any of its passengers, we need not go into precisely what warnings are required, [**32] including whether a commercial balloon operator must ensure passengers with known language barriers understand the safety instructions.

We therefore conclude the court incorrectly applied the primary assumption of risk doctrine to absolve Escape of a duty to provide safe landing procedures. However, this conclusion does not end our analysis. We must also consider whether Grotheer’s negligence claim fails as a matter of law because she has not demonstrated the existence of a triable issue of fact on causation. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336 [113 Cal. Rptr. 3d 279, 235 P.3d 947] [“‘[i]t is axiomatic that [HN19] we review the trial court’s rulings and not its reasoning'” and [*1303] “[t]hus, a reviewing court may affirm a trial court’s decision granting summary judgment for an erroneous reason”].)

D. Any Lack of Safety Instructions Was Not a Substantial Factor in Causing Grotheer’s Injury

[HN20] (14) “The elements of actionable negligence, in addition to a duty to use due care, [are] breach of that duty and a proximate or legal causal connection between the breach and plaintiff’s injuries.” (Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 394 [268 Cal. Rptr. 96] (Onciano).) [HN21] (15) To be considered a proximate cause of an injury, the acts of the defendant must have been a “substantial factor” in contributing to the injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969 [67 Cal. Rptr. 2d 16, 941 P.2d 1203].) Generally, a defendant’s conduct is a substantial [**33] factor if the injury would not have occurred but for the defendant’s conduct. (Ibid.) If the injury “‘would have happened anyway, whether the defendant was negligent or not, then his or her negligence was not a cause in fact, and of course cannot be the legal or responsible cause.'” (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 370 [199 Cal. Rptr. 3d 522], quoting 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1185, p. 552.) As our high court has explained, “‘a force which plays only an “infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a substantial factor.'” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 [86 Cal. Rptr. 2d 846, 980 P.2d 398].)

[HN22] While proximate cause ordinarily is a question of fact, it may be decided as a question of law if “‘”‘under the undisputed facts, there is no room for a reasonable difference of opinion.'”‘” (Onciano, supra, 219 Cal.App.3d at p. 395.) As noted, once a defendant claiming the plaintiff cannot satisfy an element of his or her claim meets the initial burden of production, the burden shifts to the plaintiff to demonstrate a triable issue of fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) When the evidence supports only one reasonable inference as to the cause of the plaintiff’s injury, courts should not engage in “unreasonable speculation that other contradictory evidence exists but was not adduced in the summary judgment proceedings.” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211 [223 Cal. Rptr. 645] [dismissal [**34] of negligence claim was proper because no reasonable fact finder could find a causal nexus between defendant store owner’s improper lighting and the assault on plaintiff based on the evidence presented during the summary judgment proceedings].)

As explained in the previous part, the purpose of the safety instructions is to reduce injury in the event of rough landings. Here, however, the undisputed descriptions of the landing establish it was not merely rough, but rather [*1304] was a forceful and violent event–a crash. According to Boyd and Kristi Roberts, whose uncontested descriptions are the most detailed, the basket was descending “pretty fast” when it hit the fence with such force it “knocked it right apart,” taking out several fence sections. The basket then hit the ground “hard” and skidded for about 40 yards, becoming more and more horizontal as it was dragged, before coming to a stop on its side with Grotheer’s section on the bottom. Gallagher, the pilot, said the balloon had been descending more quickly than he had anticipated when the basket made a “hard landing, first on the fence and then on the ground.” Grotheer too described both impacts as “hard.” Both Grotheer and Kristi [**35] said they had been holding on to the handles (Kristi as tightly as she could) but were unable to keep from slipping or falling.

From these descriptions, we gather the crash landing was a jarring and violent experience, a “wild ride” so forceful that several passengers fell–even one who had tried desperately not to fall by gripping the basket handles as tightly as possible. (See Endicott v. Nissan Motor Corp. (1977) 73 Cal.App.3d 917, 926 [141 Cal. Rptr. 95] [“If the violence of a crash is the effective efficient cause of plaintiff’s injuries to the extent that it supersedes other factors … and makes them immaterial, plaintiff cannot recover”].) The accounts of the crash satisfied defendants’ burden of demonstrating the violence of the crash, not any lack of instructions, was the proximate cause of Grotheer’s injury. The burden then shifted to Grotheer to explain how things may have played out differently had everyone been instructed on proper body positioning during landing. She produced no such evidence. Instead, she said at her deposition she believed everyone had in fact been holding on to the basket handles during the descent. While one could speculate that Kristi had been the only passenger holding the handles correctly and the woman who fell into Grotheer [**36] had employed an improper grip (say, using only one hand or not holding “tight,” as the FAA Handbook instructs), Grotheer presented no evidence to support such a theory. As a result, she did not meet her burden of demonstrating an evidentiary dispute about whether the provision of instructions would have produced a different outcome.

(16) We conclude any failure to instruct on Escape’s part was not a proximate cause of Grotheer’s injury, and we affirm the grant of summary judgment on that ground. Given our holding that defendants are not liable for negligence, it is unnecessary to review the trial court’s ruling on Wilson Creek’s vicarious liability or its ruling on defendants’ liability waiver defense.6

6 Defendants asked us to review the ruling on their affirmative defense in the event we reversed the trial court’s grant of summary judgment, citing Code of Civil Procedure section 906, which allows a respondent, without appealing from a judgment, to seek appellate review (at the court’s discretion) of any ruling that “substantially affects the rights of a party,” for “the purpose of determining whether or not the appellant was prejudiced by the error … upon which he relies for reversal.” Because we do not reverse the grant of summary judgment, we need not reach the issue of defendants’ affirmative defense.

[*1305]

III

DISPOSITION

We affirm the judgment. The parties shall bear their costs on appeal.

Ramirez, P. J., and Codrington, J., concurred.


Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998)

Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998)
Eric Bayer, Plaintiff-Appellant, v. Crested Butte
Mountain Resort, Inc., Defendant-Appellee.
No. 97SA145
Supreme Court
May 18, 1998
Petition for Rehearing DENIED. EN BANC. June 22, 1998
Certification of Questions of Law from the United States Court of
Appeals for the Tenth Circuit Pursuant to C.A.R. 21.1
CERTIFIED QUESTIONS ANSWERED

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, Purvis, Gray, Schuetze & Gordon, Robert A. Schuetze, Glen F. Gordon, Boulder, Colorado, Attorneys for Plaintiff-Appellant.

White & Steele, P.C., Glendon L. Laird, John M. Lebsack, Peter W. Rietz, Denver, Colorado, Attorneys for Defendant-Appellee.

EN BANC
JUSTICE KOURLIS dissents, and CHIEF JUSTICE VOLLACK joins in the dissent.
JUSTICE HOBBS delivered the Opinion of the Court.

[1] Pursuant to C.A.R. 21.1, we agreed to answer the following questions certified to us by the United States Court of Appeals for the Tenth Circuit

What standard of care governs the duty owed by ski lift operators in Colorado to users of those lifts in the winter season?

Separately, and more particularly, does the Colorado Passenger Tramway Safety Act and/or the Colorado Ski Safety and Liability Act preempt or otherwise supersede the pre-existing Colorado common law standard of care governing the duty owed by ski lift operators to users of those lifts in the winter season?

[2] These questions arise in connection with Eric Bayer’s negligence suit against Crested Butte Mountain Resort, Inc. (Crested Butte) involving serious injuries he sustained after falling approximately 30 feet from a ski lift at the Crested Butte ski area.

[3] The federal district court concluded that the Colorado Passenger Tramway Safety Act (Tramway Act) and the Colorado Ski Safety and Liability Act (Ski Safety Act) have substituted a lesser degree of care for ski lift operators than the highest degree of care, thus superseding our holding in Summit County Development v. Bagnoli, 166 Colo. 27, 40, 441 P.2d 658, 664 (1968). Based on its ruling that a standard of ordinary care applies, the district court granted summary judgment and dismissed the case.

[4] In answering the certified questions, we reaffirm our holding in Bagnoli. A ski lift operator must exercise the highest degree of care commensurate with the lift’s practical operation, regardless of the season.

I.

[5] Eric Bayer, a 19-year-old college student and resident of Florida, was skiing at the Crested Butte ski area on December 31, 1992. He boarded the Paradise Lift, a double-chair, center pole lift, with a person whom he did not know. This lift was not equipped with restraining devices on the chairs. Bayer rode the Paradise Lift for about 100 yards, lost consciousness, slumped in his chair, and slid feet first to the ground below. He suffered serious and permanent head injuries from the fall. The cause of his unconsciousness remains unknown.

[6] The Passenger Tramway Safety Board (Board), which regulates ski lifts in Colorado, requires the use of restraining devices during summer lift operation but has no companion requirement for winter operation. Bayer does not dispute that Crested Butte complied with applicable Board regulations.

[7] The existence and scope of a legal duty of care is a question of law. See United Blood Servs. v. Quintana, 827 P.2d 509, 519 (Colo. 1992). In Bagnoli, we determined that a ski lift operator must exercise the highest degree of care commensurate with practical operation of a lift. Bagnoli, 166 Colo. at 40, 441 P.2d at 664. In answering the certified questions, we must determine whether the Tramway Act or the Ski Safety Act, or the two in combination, have modified or preempted our holding in Bagnoli.[fn1]

II.

[8] We hold that the Tramway Act and the Ski Safety Act, alone or in combination, have not preempted or superseded the common law standard requiring a ski lift operator to exercise the highest degree of care commensurate with the practical operation of the ski lift. The General Assembly did not intend by either act to substitute a standard of care lesser than the highest degree.

[9] Under the Tramway Act, the primary responsibility for the design and operation of ski lifts, consistent with our holding in Bagnoli, rests with the operators; the board is to adopt reasonable standards for the industry, but these are not intended to preclude common law negligence actions or the duty to exercise the highest degree of care. The Ski Safety Act establishes the relative duties of skiers and ski area operators on the ski slopes, limits damage awards, and precludes liability claims resulting from the inherent dangers and risks of skiing, while expressly excluding ski lift accidents from these limitations.

A.

[10] The Highest Degree of Care

[11] A basic proposition of tort law is that the amount of care demanded by the standard of reasonable conduct must be in proportion to the risk; the greater the danger, the higher is the degree of caution which the person owing the duty must exercise. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 34, at 208-09 (5th ed. 1984). As we said in Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 587 (Colo. 1984), “It is axiomatic in the law of negligence that the greater the risk, the greater the amount of care required to avoid injury to others.”

[12] Our holding in Bagnoli squarely placed on lift operators the duty to exercise the highest degree of care consistent with the practical operation of the ski lift because (1) passengers give up their freedom of action and movement, surrendering themselves to the care and custody of the ski lift operator, (2) there is usually nothing passengers can do to cause or prevent the accident, and (3) the operator has exclusive possession and control of the ski lift. See Bagnoli, 166 Colo. at 40, 441 P.2d at 664. We derived these factors directly from our prior decision in Lewis v. Buckskin Joe’s, Inc., 156 Colo. 46, 56, 396 P.2d 933, 938-39 (1964), wherein we held that amusement ride operators must “exercise the highest degree of care commensurate with the practical operation” of the ride.[fn2]

[13] Underlying our adoption in Bagnoli of the Lewis factors is that ski lifts are operated at considerable height from the ground over rough, elevated, often precipitous Colorado terrain. A fall from the lift can be calamitous. Passengers entrust their safety to the lift operators. Operation of a ski lift thus entails both greater danger and greater responsibility than circumstances involving ordinary care.

[14] In addressing the federal district court’s conclusion that the Tramway Act and the Ski Safety Act supersede Bagnoli, we first discuss the legislative design and purposes of the two acts.

B.

[15] The Tramway Act And The Ski Safety Act [16] The statutory canons of construction require us to give effect to the plain meaning of statutory enactments; we must employ rules of grammar and common usage and accord to technical terms and legislative definitions their particular meaning. See 2-4-101, 1 C.R.S. (1997).

[17] The Colorado General Assembly initially addressed ski safety in Colorado through the 1965 Tramway Act. The act’s purpose is to assist in safeguarding life, health, property, and the welfare of the state in the operation of passenger tramways.[fn3] See 25-5-701, 8 C.R.S. (1997). The act establishes a Board “to prevent unnecessary mechanical hazards” and to “assure that reasonable design and construction are used for, that accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of, passenger tramways.” 25-5-701, 8 C.R.S. (1997). The General Assembly has confirmed that, notwithstanding the powers and duties of the Tramway Board, “[t]he primary responsibility for design, construction, maintenance, operation, and inspection rests with the area operators” of passenger tramway devices. 25-5-705, 8 C.R.S. (1997) (emphasis added).

[18] The legislature has empowered the Board[fn4] with rulemaking and enforcement authority to carry out its functions. The Board is authorized, but not required, to utilize the standards adopted by the American National Standards Institute (ANSI), see 25-5-704, 8 C.R.S. (1997), and has authority to conduct investigations and inspections, to discipline ski area operators, to issue licenses, to order emergency shut downs, and to engage in other functions related to the purpose of the Tramway Act, see 25-5-704 to -716, 8 C.R.S. (1997).[fn5] The Board by regulation has adopted the ANSI 1992 standards, with some additions, revisions, and deletions. See Rule 0.1, 3 C.C.R. 718-1 at 1.

[19] Building on the construct of the Tramway Act, the General Assembly followed with the Ski Safety Act in 1979. This act supplements the Tramway Act’s focus on ski lifts, but its principal function is to define the duties of ski areas and skiers with regard to activities and features on the ski slopes. See 33-44-102, 9 C.R.S. (1997). In 1990 amendments to the Ski Safety Act, the legislature limited the liability of ski area operators for accidents on the slopes involving the “inherent dangers and risks of skiing.” See ch. 256, sec. 7, 33-44-112, 1990 Colo. Sess. Laws, 1543; see also ch. 256, sec. 1, Legislative Declaration, 1990 Colo. Sess. Laws, 1540; Graven v. Vail Assocs., 909 P.2d 514, 517-18 (Colo. 1995).

[20] Included within the inherent risks of skiing are dangers or conditions that are an “integral part of the sport of skiing,” such as weather, snow conditions, collisions with natural and man-made objects, and terrain variations. See 33-44-103(3.5), 9 C.R.S. (1997). The skier must know the range of his or her ability, ski in control, maintain a proper lookout while skiing, avoid collisions with other skiers, and not use a ski slope or trail or passenger tramway while impaired by alcohol or other controlled substances. See 33-44-109, 9 C.R.S. (1997). The statute provides that “no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” 33-44-112, 9 C.R.S. (1997). See also Graven, 909 P.2d at 518-21.

[21] For their part, ski area operators must maintain a sign system, including signs indicating the level of difficulty of the area’s slopes and trails, notices that warn of danger areas, closed trails, and ski area boundaries, and the marking of man-made structures that are not readily visible to skiers. See 33-44-107, 9 C.R.S. (1997). They must undertake safety precautions related to the operation of equipment such as snowmobiles and motorized snow-grooming vehicles on slopes and trails within ski area boundaries. See 33-44-108, 9 C.R.S. (1997).

[22] The Ski Safety Act also addresses aspects of ski lift operation through several provisions which regulate passenger conduct. Passengers must have sufficient physical dexterity to use a lift safely and are required to observe certain conduct when embarking, riding, and disembarking a ski lift. See 33-44-105, 9 C.R.S. (1997). They may not move outside designated areas, throw objects from the tramway, engage in conduct that could cause injury to others, or disobey instructions from the ski area operator. See id. On the other hand, ski area operators must maintain a sign system including specific instructions such as “Keep Ski Tips Up,” and “Unload Here.” See 33-44-106, 9 C.R.S. (1997).

[23] Any violation of the statute’s provisions applicable to skiers constitutes negligence on their part; in tandem, any violations by a ski area operator of the Ski Safety Act or the Tramway Act constitute negligence as to them. See 33-44-104, 9 C.R.S. (1997). The effect of these statutory provisions is to make violations of the Ski Safety Act and/or Tramway Act negligence per se.

C.

[24] Effect Of The Tramway Act And The Ski Safety Act On The Degree Of Care Applicable To Ski Lift Operators

[25] Of controlling significance in answering the certified questions of law is that we infer no abrogation of a common law right of action absent clear legislative intent. See Vaughan v. McMinn, 945 P.2d 404, 408 (Colo. 1997); Farmers Group, Inc. v. Williams, 805 P.2d 419, 423 (Colo. 1991). If the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest its intent “expressly or by clear implication.” McMinn, 945 P.2d at 408.

[26] Crested Butte contends, and the federal district court determined, that the legislature has replaced the high standard we announced in Bagnoli with a standard of ordinary care. In arguing for a duty of care lesser than the highest degree, Crested Butte relies on the 1965 provision in the Tramway Act exempting ski lifts from laws of the state applicable to “common carriers.” It also argues, in the alternative, that the “legislature’s enactment of a comprehensive statutory and regulatory scheme for safety requirements at ski areas manifests the intent to preempt the field of common law liability, especially where the claim is that a particular safety device was not installed on a lift.”

[27] To the contrary, we conclude that the Tramway Act and the Ski Safety Act, together with the Bagnoli standard of care, provide a comprehensive Colorado framework which preserves ski lift common law negligence actions, while at the same time limiting skier suits for inherent dangers on the slopes and defining per se negligence for violation of statutory and regulatory requirements.

1.

[28] The Common Carrier Provision Of The Tramway Act [29] The Tramway Act states that Provisions in lieu of others. The provisions for regulation, registration, and licensing of passenger tramways and the area operators thereof under this part 7 shall be in lieu of all other regulations or registration, or licensing requirements, and passenger tramways shall not be construed to be common carriers within the meaning of the laws of this state.

[30] 25-5-717, 8 C.R.S. (1997) (emphasis added.)[fn6]

[31] We must read and interpret statutory language in its context. See 2-4-101, 1 C.R.S. (1997) (“Words and phrases shall be read in context.”). The phrase concerning common carriers in section 25-5-717 is an integral part of a provision dealing with regulation, registration, and licensing of passenger tramways. Its evident purpose in the context of the “meaning of the laws of this state” is to prohibit any board or agency, other than the Tramway Board, from registering, regulating, or licensing ski lifts. For example, ski lifts are not to be considered common carriers subject to Public Utilities Commission (PUC) jurisdiction. Without this provision, ski lifts arguably would have been under the very broad statutory definition of “common carriers” for regulatory purposes. See 40-1-102(3)(a)(I), 11 C.R.S. (1997).[fn7]

[32] We did not rely in Bagnoli on the notion that ski lift operators are common carriers when enunciating the applicable standard of care. Rather, we applied the Lewis factors to ski lift operators because of the degree of control they exercise over passengers, the relative powerlessness of a passenger to secure his or her own safety under the circumstances, and the consequent state of dependence and trust which a passenger must place in the lift operators. In Lewis, we said It is not important whether defendants were serving as a carrier or engaged in activities for amusement. The important factors are, the plaintiffs had surrendered themselves to the care and custody of the defendants; they had given up their freedom of movement and actions; there was nothing they could do to cause or prevent the accident. Under the circumstances of this case, the defendants had exclusive possession and control of the facilities used in the conduct of their business and they should be held to the highest degree of care.

[33] Lewis, 156 Colo. at 57, 396 P.2d at 939 (emphasis added). One of the justices vigorously dissented as to the degree of care expected, on the basis that “this is not a `carrier case.'” Id. at 72, 396 P.2d at 947 (McWilliams, C.J., dissenting).

[34] In Bagnoli, we nevertheless adhered to the basic proposition that enunciating the degree of care to be exercised depends on the danger and degree of responsibility involved. We emphasized that the duty in negligence actions “remains one of exercising due care, and due care depends upon the attendant circumstances.” 166 Colo. at 38-39, 441 P.2d at 664 (emphasis added). We held that the attendant circumstances of ski lift operation, like amusement rides, demand the highest degree of care. We pointed out that other jurisdictions had imposed on ski lift operators a common carrier status in requiring the higher duty of care, but that, in Colorado, common carrier status made no difference in this regard in light of the Lewis factors. See Bagnoli, 166 Colo. at 39-40, 441 P.2d at 664.[fn8] Thus, in Bagnoli, we held that a Colorado jury instruction need not designate a ski lift operator as a common carrier. Because of the existence of the above described rule of Lewis, supra, and the nature and purpose of our statutes pertaining to common carriers at the time of this accident, there was no need to designate the ski lift operator as a common carrier in Instruction No. 15.

[35] Id. We said that the inclusion of the “common carrier” description in the actual instruction delivered to the jury in Bagnoli was of no consequence, since the paramount purpose of Instruction No. 15 was to convey to the jury the rule of law that a chair ski lift operator must exercise the highest degree of care commensurate with the practical operation of the ski lift.

[36] Id., 441 P.2d at 664-65 (emphasis added).

[37] Thus, while common carriers may be required to exercise the highest degree of care towards their passengers, it does not follow that transport device operators who are not classified as common carriers are dispensed from exercising the highest degree of care when the attendant circumstances warrant such caution.

2.

[38] Legislative Action Subsequent To Bagnoli

[39] The legislature has carefully chosen how to let stand, supplement, or limit application of the common law in the arena of ski safety; it has chosen not to alter the standard of care applicable to ski lift safety. In 1990, the General Assembly limited the liability of ski area operators for claims involving the inherent dangers and risks of skiing. However, the amendments expressly prevent ski lift operators from claiming that the limitation on a ski area’s liability applies to causes of action arising from ski lift accidents. See 33-44-103(3.5), 33-44-112, 9 C.R.S. (1997).[fn9] As further confirmation of the intent to exclude ski lift accidents from the liability limitations, the bill’s chief sponsor, Representative Scott McInnis, testified that the 1990 amendments to the Ski Safety Act would not affect common law tort liability as it related to ski lifts: “This bill does not exclude a ski area from negligence and the liability it faces with ski lifts.” House floor debate on S.B. 80, Mar. 21, 1990.

[40] Another example of the General Assembly’s careful distinctions between ski slope and ski lift accident liability is found in section 33-44-113. This provision limits the amount of damages recoverable from a ski lift operator for accidents that occur while skiing but specifically excludes damages “associated with an injury occurring to a passenger while riding on a passenger tramway.” 33-44-113, 9 C.R.S. (1997).[fn10] Thus, in both a limitation of liability provision and in a limitation of damages provision related to skiing, the General Assembly chose to write an exception preserving the liability and damages law applicable to ski lift accidents.

[41] The legislature has amended the Tramway Act eleven times since the Bagnoli decision: in 1973, 1976, 1977, 1979, 1983, 1985, 1986, 1987, 1988, 1991 and 1993.[fn11] None of those amendments altered the ski lift operator liability rules or shifted to the Tramway Board the operator’s “primary responsibility for design, construction, maintenance, operation, and inspection.” 25-5-705, 8 C.R.S. (1997). The Ski Safety Act was passed in 1979[fn12] and substantively amended in 1990,[fn13] with cross references being made to the Tramway Act. The General Assembly did not choose to overrule Bagnoli on either of these occasions.

3.

[42] Statutory Preemption Of Common Law Causes Of Action And Standards Of Care

[43] Crested Butte further suggests that the Tramway Act and the Ski Safety Act together manifest the legislature’s intent to preempt the field of ski lift safety and, thus, abrogate common law negligence actions and/or the applicable standard of care. Crested Butte insists that the following provisions, which make violations of the Tramway Act and the Ski Safety Act negligence per se, replace common law liability except as provided therein

Negligence — civil actions. . . .

(2) A violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.

[44] 33-44-104(2), 9 C.R.S. (1997) (emphasis added), and, Inconsistent law or statute. Insofar as any provision of law or statute is inconsistent with the provisions of this article, this article controls.

[45] 33-44-114, 9 C.R.S. (1997).

[46] We disagree with Crested Butte’s proposed construction of these provisions. In section 33-44-104(2),[fn14] the legislature determined that any violation of the Tramway Act, or Board regulations, would constitute negligence for purposes of a tort suit based on an alleged violation. A statutory provision which defines violation of a statute or rule as negligence per se is not necessarily inconsistent with maintenance of a common law negligence action, and the creation of a statutory remedy does not bar preexisting common law rights of action, in the absence of clear legislative intent to negate the common law right. See McMinn, 945 P.2d at 408; see also Trigg v. City & County of Denver, 784 F.2d 1058, 1059-60 (10th Cir. 1986) (in ski lift accident case, both common law negligence and negligence per se Colorado jury instructions may be required, if justified by sufficient evidence). We conclude that section 33-44-104(2) demonstrates no indication that the legislature wished to bar, rather than supplement, common law actions in ski lift cases.

[47] Crested Butte contends that the Tramway Act’s provisions (1) establishing a Board to “assure that . . . accepted safety devices . . . are provided for,” see 25-5-701, 8 C.R.S. (1997), and (2) empowering the Board to “establish reasonable standards of design and operational practices,” see 25-5-709, 8 C.R.S. (1997), necessarily imply that the General Assembly intended to preempt the field of common law liability in ski lift cases. See Lunsford v. Western States Life Ins., 908 P.2d 79, 87 (Colo. 1995) (stating that “resort to common law principles is preempted regarding issues to which the . . . statute expressly applies or where there are other pertinent statutory provisions. However, if the . . . statute is inapplicable and no other applicable statutes exist, we will rely on the common law”).

[48] The primary responsibility for design and operation of a ski lift rests with the operator. The standards adopted by the Board are intended to be reasonable regulatory standards, not to comprise the operator’s sole duty in regard to passenger safety. Compliance with these standards is evidence of due care but not conclusive evidence.

[49] In our electricity cases, for example, we have explained that regulatory standards for the safe operation of a dangerous instrumentality do not preclude a finding of negligence under the common law. For example, in City of Fountain v. Gast, 904 P.2d 478, 480 (Colo. 1995), and Yampa Valley Electric v. Telecky, 862 P.2d 252, 257-58 (Colo. 1993), we held that, despite the existence of comprehensive National Electric Safety Code standards for the industry, a person may maintain a negligence action against a utility for breach of a common law duty of care. In this state, electric utilities must exercise the highest degree of care to protect the public. See Gast, 904 P.2d at 480.

[50] Evidence of a defendant’s compliance with industry standards, while relevant and admissible for determining whether the defendant breached its duty of care, is not conclusive evidence of due care. See Telecky, 862 P.2d at 257 (compliance with NESC standards is only a part of the determination that the jury was required to make); see also Gast, 904 P.2d at 480 (compliance with NESC standards does not conclusively establish that the highest degree of care was exercised, but is merely one factor to be considered in determining the highest degree of skill and care); Blueflame Gas v. Van Hoose, 679 P.2d 579, 591 (Colo. 1984) (compliance with an administrative safety regulation by propane supplier does not conclusively establish that the highest degree of care was exercised, but is merely one circumstance to be considered).[fn15]

[51] Although the Restatement (Second) of Torts does not have the force of law, we may look to it as a summary of guiding legal principles. The Restatement (Second) of Torts 288C (1965), supports our conclusion that additional tort remedies remain available despite statutory regulation of an industry “Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions.” In the comment to this section, the Restatement explains that, “Where a statute, ordinance or regulation is found to define a standard of conduct . . . the standard defined is normally a minimum standard, applicable to the ordinary situations contemplated by the legislation. This legislative or administrative minimum does not prevent a finding that a reasonable man would have taken additional precautions where the situation is such as to call for them.” Id. 288C, cmt. a.

[52] We reject Crested Butte’s argument that section 285 rather than section 288C of the Restatement should assist our reasoning in this case. Section 285 states that the determination of the standard of conduct of a reasonable person applicable to a given case may be: (a) established by a legislative enactment or administrative regulation which so provides; or (b) adopted by the court from a legislative enactment or administrative regulation which does not so provide; or (c) established by judicial decision; or (d) applied to the facts of the case by the trial judge or the jury if there is no such enactment, regulation, or decision. See Restatement (Second) of Torts 285 (1965).

[53] Crested Butte’s analysis fails to account for the logic of section 288C, which states that a standard of conduct defined by statute, ordinance, or regulation as described in section 285 is normally a “minimum standard,” and does not prevent a finding that a reasonable person would have taken additional precautions when the situation requires. Id. 288C.

[54] If Crested Butte could point to some part of the Tramway Board’s statutes or regulations which prohibits it from taking additional safety precautions, or a patent conflict preventing utilization of a particular safety device under the circumstances, its argument that Board standards preempt common law negligence actions might have merit. For example, in Jefferson County School District R-1 v. Gilbert, 725 P.2d 774, 778-79 (Colo. 1986), we held that a city met its duty of care to make streets safe because it met engineering standards prescribed by statute; the statute specifically prohibited the city from installing a traffic signal unless an intersection met certain criteria. Thus, we held that the city did not have a duty to install traffic devices where the statute specifically prohibited the city from installing them except under certain conditions. Here, although the Board required restraining devices during summer operation and not winter, its regulations did not prohibit operation with restraining devices during winter operation.

[55] Crested Butte also asserts that the Bagnoli standard, if it still applies, should be limited to ski lift negligence actions based on operational errors or defects in equipment and not to design of the lift. Although the facts in Bagnoli related to operation of the lift in the loading procedure and not the design of the lift, section 25-5-705 of the Tramway Act affirms the ski lift operator’s primary responsibility for “design, construction, maintenance, operation, and inspection,” without restriction to the season of operation. The General Assembly has not stated in this regard that the operator’s duty is limited to exercising ordinary care. The Lewis and Bagnoli factors are applicable to each of these components of ski lift safety, and we hold that the ski lift operator must exercise the highest degree of care in regard to each.

[56] A differential standard between operation and design could discourage lift operators from adopting safer designs. Operators would be held to Bagnoli’s higher standard when operating with new safety devices, but a lower standard when choosing to stay with existing equipment. Adoption of Crested Butte’s argument that the Tramway Act and Ski Safety Act preempt common law liability would entail no responsibility on the part of ski operators to ensure safe design, other than to comply with the Board’s regulations. This notion is contrary to the legislature’s intent in assigning the primary responsibility for design to the operators, as well as contrary to a fundamental precept of tort law — that conduct adverse to evolving safety norms should not be rewarded. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 33, at 194-95 (5th ed. 1984).

III.

[57] Answers To Certified Questions

[58] The Tramway Act and the Ski Safety Act do not contain express language or a clear implication to preempt common law actions or the standard of care for ski lift accident cases; rather, they evidence the opposite implication. The legislature’s intent in the Tramway Act is to “assist in safeguarding life, health, property, and the welfare of this state.” See 25-5-701, 8 C.R.S. (1997) (emphasis added). “The primary responsibility for design, construction, maintenance, operation, and inspection rests with the area operators of passenger tramway devices.” 25-5-705, 8 C.R.S. (1997). In the context of common law actions, our role has been to enunciate the degree of care which ski lift operators must exercise. Ordinary care is not applicable; the factors of passenger safety and operator control attendant to operation of a ski lift require the operator to exercise the highest degree of care. The legislature, despite numerous occasions in the adoption and amendment of the two acts, has not altered the applicability of the Bagnoli standard.

[59] We therefore answer the certified questions as follows: we hold that the standard of care applicable to ski lift operators in Colorado for the design, construction, maintenance, operation, and inspection of a ski lift, is the highest degree of care commensurate with the practical operation of the lift. Neither the Tramway Act nor the Ski Safety Act preempt or otherwise supersede this standard of care, whatever the season of operation.

[60] JUSTICE KOURLIS dissents, and CHIEF JUSTICE VOLLACK joins in the dissent.

[fn1] Of course, we do not determine whether Crested Butte breached its duty of care or any other issue remaining in the federal court litigation.

[fn2] Decided after passage of the Tramway Act based on an accident occurring before its passage, Bagnoli has been the law of Colorado for the last 30 years. The Colorado Jury Instructions include the following summary of its holding

12:13 AMUSEMENT DEVICES AND SKI LIFTS DUTY OF CARE WHERE USER LACKS FREEDOM OF MOVEMENT It is the duty of the (owner)(operator) of an (amusement device)(ski lift) to exercise the highest degree of care a reasonably careful person could exercise under the same or similar circumstances, in keeping with the practical operation of such a device, for the safety of any person using the device with the (owner’s)(operator’s) express or implied permission.

The failure to exercise such care is negligence. CJI-Civ 3d

12:13 at 98. This instruction is used in ski lift and amusement ride cases and for “those kinds of devices which, to use, the user is required to give up his or her freedom of movement and control of the situation and submit him or herself to the control of the operator.” Id. at 99. The Instruction’s “Notes on Use” state that neither the Passenger Tramway Safety Act nor the Ski Safety and Liability Act changed the applicability of the instruction to ski lifts, except that a negligence per se instruction will be used in cases involving a violation of the Ski Safety Act or regulations of the Board. See id. Although the content of a Colorado Jury Instruction is not legally definitive, its long and common usage is persuasive on the matter of being a correct summary of the law. See Wade v. Olinger Life Ins. Co., 192 Colo. 401, 409 n. 7, 560 P.2d 446, 452 n. 7 (1977). [fn3] A passenger tramway is “a device used to transport passengers uphill on skis, or in cars on tracks, or suspended in the air by the use of steel cables, chains, or belts, or by ropes, and usually supported by trestles or towers with one or more spans.” 25-5-702(4), 8 C.R.S. (1997).

[fn4] The Board is comprised of one member representing the U.S. Forest Service and six members appointed by the governor, two representing the ski industry, two representing the public at large, and two members with experience in the tramway industry, to regulate passenger tramway devices. See 25-5-703, 8 C.R.S. (1997).

[fn5] The power and duties of the tramway board were specifically enumerated and reorganized into separate sections in the 1993 amendments to the tramway act. See ch. 267, secs. 7-8, 25-5-704 to -719, 1993 Colo. Sess. Laws, 1536-44.

[fn6] Section 25-5-718 was repealed and recodified as section 25-5-717 by the 1993 amendments to the Tramway Act. See ch. 267, sec. 8, 1993 Colo. Sess. Laws, 1538 & 1543. The provisions are nearly identical, and we refer to the most recent codification.

[fn7] “Common carrier” is defined in the public utilities statute as: “Every person directly or indirectly affording a means of transportation, or any service or facility in connection therewith, within this state by motor vehicle, aircraft, or other vehicle whatever by indiscriminately accepting and carrying for compensation passengers between fixed points or over established routes or otherwise . . . .” 40-1-102(3)(a)(I), 11 C.R.S. (1997).

[fn8] Courts in other jurisdictions have addressed the issue of the duty of care owed by ski lift operators, with widely varying results. Some jurisdictions have stated that ski lifts constitute common carriers for purposes of tort liability. See Squaw Valley Ski Corp. v. Superior Court, 3 Cal.Rptr.2d 897, 900 (Cal.App. 1992) (ski lift is a common carrier for tort purposes); D’Amico v. Great American Recreation, Inc. 627 A.2d 1164, 1166 (N.J. Super. Law Div. 1992) (ski area operators are common carriers in the operation of ski lifts). But see McDaniel v. Dowell, 26 Cal. Rptr. 140 (Cal.App. 1962) (rope tow not a common carrier for tort liability purposes).

Whether or not they considered ski lifts to be common carriers, courts have differed as to the degree of care ski lift operators must exercise. Some states require the highest degree of care commensurate with a ski lift’s practical operation, see Hunt v. Sun Valley Co., 561 F.2d 744, 746 (9th Cir. 1977) (applying Idaho law); Fisher v. Mt. Mansfield Co., 283 F.2d 533, 534 (2d Cir. 1960) (applying Vermont law); D’Amico, 627 A.2d at 1166-67; Squaw Valley, 3 Cal.Rptr.2d at 899-900, and other states require only ordinary care, see Pessl v. Bridger Bowl, 524 P.2d 1101, 1107 (Mont. 1974); Bolduc v. Herbert Schneider Corp., 374 A.2d 1187 (N.H. 1977); Friedman v. State, 282 N.Y.S.2d 858, 860 (Ct. Cl. 1967).

The question of the degree of care owed by ski lift operators to passengers is grounded in the common law and statutes particular to each state. We look to Colorado law as the basis for our determination that the highest degree of care applies to ski lift operators in this state.

[fn9] Section 33-44-103(3.5) provides in pertinent part:

Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

[fn10] Section 33-44-113 provides:

The total amount of damages which may be recovered from a ski area operator by a skier who uses a ski area for the purpose of skiing or for the purpose of sliding downhill on snow or ice on skis, a toboggan, a sled, a tube, a ski-bob, a snowboard, or any other device and who is injured, excluding those associated with an injury occurring to a passenger while riding on a passenger tramway, shall not exceed one million dollars, present value, including any derivative claim by any other claimant, which shall not exceed two hundred fifty thousand dollars, present value, and including any claim attributable to noneconomic loss or injury, as defined in sections 13-21-102.5(2) C.R.S., whether past damages, future damages, or a combination of both, which shall not exceed two hundred fifty thousand dollars.

(Emphasis added.)

[fn11] See ch. 395, sec. 29, 66-25-9, 1973 Colo. Sess. Laws 1373; ch. 126, secs. 1-10, 1976 Colo. Sess. Laws 660-63; ch. 354, secs. 1-16, 1977 Colo. Sess. Laws 1288-92; ch. 433, secs. 120-122, 25-5-708 to -710, 1979 Colo. Sess. Laws 1661; ch. 315, secs. 1-7, 1983 Colo. Sess. Laws 1071-73; ch. 101, sec. 23, 25-5-717, 1985 Colo. Sess. Laws 411; ch. 193, secs. 1-10, 1986 Colo. Sess. Laws 974-78; ch. 172, sec. 83, 25-5-710, 1987 Colo. Sess. Laws 971; ch. 36, sec. 11, 25-5-710, 1988 Colo. Sess. Laws 317; ch. 301, sec. 40, 25-5-710, 1991 Colo. Sess. Laws 1917-18; ch. 267, secs. 1-11, 1993 Colo. Sess. Laws 1532-44.

[fn12] See ch. 323, secs. 1-3, 1979 Colo. Sess. Laws 1237-44.

[fn13] See ch. 256, secs. 1-11, 1990 Colo. Sess. Laws 1540-44.

[fn14] Section 33-44-104(2) was amended in 1994 to refer to section 25-5-704(1)(a) of the Tramway Act instead of section 25-5-710(1)(a) because of the 1993 amendments to the Tramway Act. See ch. 276, sec. 74, 33-44-104, 1994 Colo. Sess. Laws, 1644. Because the substance of the section is the same, we refer to the most recent codification.

[fn15] In Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671, 683 (Colo. 1985), before the 1990 amendments to the Ski Safety Act, we noted that the risks associated with skiing do not rise to the level of those associated with supplying electricity, operating amusement devices, and selling propane gas. However, in that case we were speaking to the dangers associated with skiing — such as variations in terrain, which skiers can guard against — and not the dangers related to the operation of ski lifts. See id. Rather, we stated in Bagnoli that the risks associated with operating ski lifts are much like those associated with operating amusement rides and based our conclusion regarding the applicable degree of care on the same factors we discussed in Lewis. See Bagnoli, 166 Colo. at 40, 441 P.2d at 664.

[61] JUSTICE KOURLIS dissenting

[62] Because I do not believe that the common carrier standard of care enunciated in Summit County Development Corp. v. Bagnoli, 166 Colo. 27, 33, 441 P.2d 658, 661 (1968), survives the General Assembly’s express pronouncements in the Colorado Passenger Tramway Safety Act (Tramway Act) and the Colorado Ski Safety and Liability Act (Ski Safety Act), I respectfully dissent.

I.

[63] The issues certified to this court by the United States Court of Appeals for the Tenth Circuit are: (1) what standard of care governs the duty owed by ski lift operators in Colorado to winter season lift users; and (2) does the Tramway Act and/or the Ski [Safety] Act preempt or otherwise supersede the preexisting Colorado common law standard of care governing the duty owed by ski lift operators to users of those lifts in the winter season? I would answer the second question affirmatively, and clarify that the standard of care applicable to ski lift operators is one of ordinary negligence, as provided in the two Acts.

II.

[64] The plaintiff in this case, Eric Bayer, asks Crested Butte to insure him from injury while riding a ski lift, whether or not such injury was occasioned by negligence through mechanical, design or operational failure of the ski lift. Eric Bayer became unconscious and fell from the lift he was riding at Crested Butte ski area incurring severe injury. Bayer claims that Crested Butte had a duty to exercise “the highest degree of care,” and that such level of care would have required the installation of a restraining device on the lift from which he fell. He asserts no other wrongful action or omission by Crested Butte. Bayer concedes that the majority of ski lifts in Colorado do not have restraining devices and are certified for operation without them by the Colorado Passenger Tramway Safety Board (Safety Board). He also concedes that no statute, rule or regulation requires lifts to be equipped with such devices for winter operation. The federal district court granted summary judgment to Crested Butte, ruling that the applicable standard of care was reasonable care and that Crested Butte had exercised such reasonable care in the installation of the lift. On appeal, Bayer continues to argue that under Bagnoli, Crested Butte should be held to a higher standard of care than ordinary negligence. In my view, Bagnoli has no continuing life in light of intervening legislation; and the appropriate standard of care is ordinary and reasonable care.

III.

[65] In Bagnoli, this court determined that a lift operator was a “common carrier” with respect to the plaintiff and therefore owed the plaintiff “the highest degree of care commensurate with the practical operation of the chairlift.” Id. at 33, 441 P.2d at 661.

[66] The higher standard of care imposed in Bagnoli has traditionally been reserved for inherently dangerous activities. See Federal Ins. Co. v. Public Serv. Co., 194 Colo. 107, 111-12, 570 P.2d 239, 241-42 (1977). Ultra-hazardous or abnormally dangerous activities warrant a rule of strict liability. See Western Stock Ctr., Inc. v. Sevit, Inc., 195 Colo. 372, 379, 578 P.2d 1045, 1050 (1978).

[67] The law has held common carriers to the higher standard of care, even though their activities are not necessarily inherently dangerous. The rationale for that higher standard arose out of their acceptance of an unusual responsibility to the public. See William L. Prosser, The Law of Torts 184 (3d ed. 1964). Additionally, burden of proof considerations played a role in the analysis, based upon the fact that a passenger on a mode of transport for hire is not familiar with the instrumentalities and appliances used for transportation and would be disadvantaged if required to prove the specific cause of the accident. See Denver & R.G.R. Co. v. Fotheringham, 17 Colo. App. 410, 68 P. 978 (1902).

[68] The common carrier standard of care was initially rejected by this court in Hook v. Lakeside Park Co., 142 Colo. 277, 351 P.2d 261 (1960), as applied to amusement park devices on the theory that the “presumptions or inferences available to a passenger in an action against a carrier are not available” in an amusement park setting. Hook, 142 Colo. 283, 351 P.2d at 265.

[69] The court revisited the issue in Lewis v. Buckskin Joe’s Inc., 156 Colo. 46, 396 P.2d 933 (1964), and concluded that amusement park devices should be treated as common carriers[fn1] because “the plaintiffs had surrendered themselves to the care and custody of the defendants; they had given up their freedom of movement and actions; there was nothing they could do to cause or prevent the accident. Under the circumstances of the case, the defendants had exclusive possession and control of the facilities used in the conduct of their business.” Id. at 56-57, 396 P.2d at 939. Three members of the Lewis court dissented on that point, distinguishing common carriers from recreational providers.

[70] If, indeed, a higher standard of care evolves primarily out of either an inherently dangerous activity or out of a common carrier status, clearly the court in Lewis was

relying upon the common carrier analysis, not a conclusion that amusement park devices are inherently dangerous.

[71] And thus, the court came to Bagnoli. In Bagnoli, the court noted that not all of the factors present in Lewis similarly applied to Bagnoli, but concluded nonetheless that Summit County Development Corporation was a common carrier and, as such, owed the plaintiff the highest degree of care. The court cited various other states that had similarly imposed a common carrier status on ski lift operators.

[72] The Bagnoli rationale turned on the common carrier status of the defendant. The court declared that a “ski lift facility, like other transportation facilities, and like the stagecoach amusement ride in Lewis, requires the operator to exercise the highest degree of care commensurate with its practical operation.” Bagnoli, 166 Colo. at 40, 441 P.2d at 664.

[73] However, after we decided Bagnoli, the legislative landscape changed around the nation, including in Colorado. The chronology reflects that courts initially defined ski lifts as common carriers, and thereby activated a higher standard of care. Many legislatures, like Colorado’s General Assembly, then chose to act and declared that passenger tramways are not common carriers. Following legislative pronouncements that ski lifts were not to be treated as common carriers, other states have retreated from a determination that a higher standard of care applies.

[74] For example, in Pessl v. Bridger Bowl, 524 P.2d 1101 (Mont. 1974), the Montana Supreme Court concluded that the duty of care owed by ski lift operators in Montana was one of reasonable and ordinary care because of the enactment of Montana’s Passenger Tramway Act which, in pertinent part, parallels the Tramway Act before us today.[fn2] See Pessl, 524 P.2d at 1107. See also Bolduc v. Herbert Schneider Corp., 374 A.2d 1187 (N.H. 1977)(holding same as Pessl, and recognizing that states adopting such statutes typically did so in response to court decisions which imposed a higher degree of care); D’Amico v. Great American Recreation, Inc., 627 A.2d 1164 (N.J. 1992)(applying highest degree of care because New Jersey’s ski safety act did not include language exempting operators from common carrier status); Albert v. State, 362 N.Y.S.2d 341 (N.Y. Ct. Cl. 1974)(finding that chairlift operators are not common carriers under similarly worded N.Y. statute); Friedman v. State, 282 N.Y.S.2d 858 (N.Y. Ct. Cl. 1967)(same as Albert); Donald M. Zupanec, Annotation, Liability for Injury or Death from Ski Lift, Ski Tow, or Similar Device, 95 A.L.R.3d 203 (1979). The New Hampshire Supreme Court specifically recognized in Bolduc that the legislative decision to remove passenger tramways from common carrier status was in response to court cases like Bagnoli. See Bolduc, 374 A.2d at 1189.

[75] Hence, other courts around the nation have specifically deferred to the legislative determination that passenger tramways may no longer be treated as common carriers. Bagnoli explicitly concludes that lift operators should be treated as common carriers, and such a conclusion is no longer valid. Additionally, the Lewis factors relied upon in Bagnoli cannot stand as an independent basis for the imposition of a higher standard of care unrelated to common carrier status, because they are merely an articulation of the reasons why common carriers are held to a different standard. Those factors cannot stand alone.[fn3] Hence, in my view, the legislature has removed the cornerstone of the foundation upon which Bagnoli rested. As the California Court of Appeal stated in McDaniel v. Dowell, 26 Cal.Rptr. 140, 143 (Dist. Ct. App. 1962), absent classification of a ski lift operation as a common carrier, “[t]here is no other basis for the imposition upon the defendant [] of a duty to exercise the utmost care and diligence for the safety of the plaintiff.”[fn4] IV.

[76] The accident in Bagnoli occurred on April 21, 1962, three years prior to the effective date of the Tramway Act. The court in Bagnoli thus did not apply the Tramway Act even though the actual decision was handed down in 1968, after the Act’s passage.

[77] On July 1, 1965, the following provision of the Tramway Act went into effect The provisions for regulations, registration and licensing of passenger tramways and the operators thereof under this Part 7 shall be in lieu of all other regulations or registration, or licensing requirements, and passenger tramways[fn5] shall not be construed to be common carriers within the meaning of the laws of this state.

[78] 25-5-717, 11A C.R.S. (1989)(emphasis supplied).

[79] In answering the questions before us today, the Majority observes that we infer no abrogation of a common law right of action absent clear legislative intent. Maj. op. at 12. I find just such clear legislative intent apparent in the unambiguous language of the Tramway Act. Crested Butte operates ski lifts. Ski lifts are passenger tramways, and under the Tramway Act passenger tramways “shall not be construed to be common carriers.” 25-5-717, 11A C.R.S. (1989).

[80] The legislature expressly decided that ski lifts were not to be treated as common carriers in Colorado. In addition, the legislature implicitly occupied the field by enacting pervasive and comprehensive legislation for safety requirements regarding ski lifts. See Lunsford v. Western States Life Ins., 908 P.2d 79, 87 (Colo. 1995)(noting that statutory preemption of areas of the common law may arise expressly or by clear implication).

[81] The Tramway Act is comprehensive in its scope of regulation of Colorado ski lifts In order to assist in safeguarding life, health, property and the welfare of this state, it is the policy of the State of Colorado to establish a board empowered to prevent unnecessary mechanical hazards in the operation of ski tows, lifts and tramways and to assure that reasonable design and construction are used for, that accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operations of ski tows, ski lifts and passenger tramways.

[82] 25-5-701, 11A C.R.S. (1989).[fn6]

[83] The Tramway Act further authorizes the Safety Board to “adopt reasonable rules and regulations relating to public safety in the design standards, construction, operation and maintenance of passenger tramways.” 25-5-710(a), 11A C.R.S. (1989). The Tramway Act directs the Safety Board to use general guidelines and standards adopted by the American Standards Association, Inc., see id.; and the Act makes the Safety Board responsible for establishing “reasonable standards of design and operational practices.” 25-5-710.1, 11A C.R.S. (1989).

[84] In 1979, the legislature expanded the scope of its pronouncements when it enacted the Ski Safety Act.[fn7] The express purpose of that Act was “to establish reasonable safety standards for the operation of ski areas and for skiers using them.” 33-44-102, 14 C.R.S. (1995).

[85] For purposes of the issue before the court, the Ski Safety Act achieves four results. First, it supplements the Tramway Act and further defines the relative rights and responsibilities of ski area operators and skiers. See 33-44-102. Second, it clarifies that negligent operation of a ski lift is not an “inherent risk of skiing.” Id. Third, it provides that a violation by a ski area operator of any portion of the Ski Safety Act or of any rule or regulation promulgated by the Safety Board shall constitute negligence. See 33-44-104(2). Lastly, it includes preemptive language as follows: “Insofar as any provision of law or statute is inconsistent with the provisions of this article, this article controls.” 33-44-114 (emphasis added).

[86] The cumulative effect of those provisions leaves no doubt as to the legislative intent to set forth the governing law concerning ski area liability: both with respect to operation of ski slopes and ski lifts. The Tramway Act removes ski lifts from common carrier status. The Ski Safety Act incorporates the requirements of the Tramway Act and the Safety Board’s regulations and further mandates that inconsistent provisions of the common law are abrogated.

[87] Since the Tramway Act eliminates the elevated common carrier status of ski lift operators as a basis for a higher standard of care, the applicable standard reverts to that of ordinary care. The Tramway Act delegates to the Safety Board the task of establishing reasonable standards of design for ski lifts. The Ski Safety Act warns that failure to comply with any rule or regulation promulgated by the Safety Board shall constitute negligence on the part of the operator. The standard of care owed by ski lift operators to users of those lifts in the winter season is, therefore, ordinary and reasonable care consistent with the rules and regulations of the Safety Board.[fn8] [88] Indeed, not only should this court accede to legislative mandate, but additionally the fixing of an elevated standard of care is without basis in fact or law once the common carrier status rationale is eliminated.

V.

[89] In the absence of statutory edict, the courts must develop the common law. However, the General Assembly retains the authority to repeal common law rights or duties. See 2-4-211, 1 C.R.S (1997). In determining whether a legislative enactment serves to supplement the common law, or to repeal it, the courts have rightfully proceeded with caution. However, the principle of statutory construction that statutes in derogation of the common law must be narrowly construed should never be invoked to defeat the plain and clear intent of the legislature. See Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237, 251-52 (Colo. 1992). Legislative intent that is clearly expressed must be given effect. See Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo. 1992)(finding a clear intent by the General Assembly to change the common law rule and require damages to be set off by certain non-exempt collateral source contributions); Pigford v. People, 197 Colo. 358, 360, 593 P.2d 354, 356 (1979)(noting a clear statement of legislative intent to change the common law in order to permit admissibility of certain prior offenses in criminal prosecutions for unlawful sexual behavior).

[90] When the legislature overrules a court decision that does not involve a constitutional issue, the court must comply with the legislative direction. “It is not within the purview of this court to question the legislature’s choice of policy.” City of Montrose v. Public Utils. Comm’n, 732 P.2d 1181, 1193 (Colo. 1987)(recognizing that legislature effectively overruled City of Montrose v. Public Utils. Comm’n, 197 Colo. 119, 590 P.2d 502 (1979), with respect to the means by which a utility was permitted to surcharge municipal fees).

[91] It is my view that the Majority is, indeed, declining to recognize the appropriate exercise of legislative authority and policy-making in defining the standard of care applicable to ski lift operators. Hence, I respectfully dissent.

[92] I am authorized to state that CHIEF JUSTICE VOLLACK joins in this dissent.

[fn1] At pages 15-16, the Majority includes a reference from Bagnoli, citing Lewis, to the effect that the actual common carrier status was not important. In fact, the Lewis language was merely clarifying that it was not important to distinguish between a stagecoach “prepared and maintained by the defendant for the carriage or amusement of those who pay the required fee.” Lewis, 156 Colo. at 56, 396 P.2d at 939 (emphasis in original).

[fn2] The Montana court also noted that Montana cases had rejected the analogy between a passenger of a common carrier for hire and a patron of an amusement place. See Pessl, 524 P.2d at 1106.

[fn3] There is an inference in some of the cases, including Hook, that amusement park devices are inherently dangerous and, thus, possibly deserving of a higher standard of care on that basis. This court has expressly rejected this rationale for ski area operators. See Pizza v. Wolf Creek, 711 P.2d 671, 683 (Colo. 1985)(expressly rejecting analogy comparing operating a ski area to inherently dangerous activities).

[fn4] The California court was concerned with whether a rope tow should be classified as a common carrier, and concluded that it should not. The court was not addressing the import of a statute, because at that time, California had no passenger tramway act.

[fn5] A “passenger tramway” is defined as “a device used to transport passengers uphill on skis or in cars on tracks, or suspended in the air by the use of steel cables, chains, or belts, or by ropes, and usually supported by trestles or towers with one or more spans.” 25-5-702(4), 11A C.R.S. (1989).

[fn6] I also note that emergency shutdown of a passenger tramway is justified only if the lift is shown to be an “unreasonable” hazard, 25-5-716, 11A C.R.S. (1989), lending further credence to the conclusion that the Tramway Act supplants any elevated standard of care and reestablishes an ordinary standard of reasonable care.

[fn7] In 1990, the legislature amended the Ski Safety Act to clarify the law regarding the duties and responsibilities of skiers and ski area operators and to provide additional protection for ski area operators. See Graven v. Vail Assocs., 909 P.2d 514, 517, 517 n. 3, 524 n. 4 (Colo. 1995). None of the 1990 amendments impact upon the question before us today, although they do further display the legislative intent to limit the causes of action available to skiers against ski areas.

[fn8] I do not believe that the “highest standard of care” is applicable to ski lift operators in the wake of the Tramway Act and the Ski Safety Act. Therefore, I do not reach the question of the interrelationship between compliance with the statutory and regulatory standards and that elevated standard of care. (Maj. op at 24-28). Further, I do not believe the question is before us as to whether evidence in addition to compliance with applicable standards and regulations should be adduced on the issue of negligence. In answering certified questions, the court should be brief and confine itself to the precise questions propounded. See In re Interrogatories of the U.S. District Court, 642 P.2d 496, 497 (Colo. 1982).


Tobogganing is added to the NJ Skier Safety Act, yet in this case, it allows the ski area to be sued.

However, the courts in this case seemed to want the plaintiff’s to win no matter what.

Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

State: New Jersey, Superior Court of New Jersey, Appellate Division

Plaintiff: Patrick Brett and Elisa Ramundo

Defendant: Great American Recreation, Inc. et al.

Plaintiff Claims: Negligence

Defendant Defenses: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute.

Holding: For the plaintiff’s

Year: 1995

This is an old decision; however, it explains how a statute created to and passed to protect an activity, can be used to hold the operators of the activity liable.

There are numerous claims, cross claims, third party claims and claimants. Several parties were dismissed prior to trial. Basically, everyone who was brought into the lawsuit also made claims against the people bringing them in and anyone else that could have any liability.

Thirteen college friends intended to spend the weekend in a condo owned by the uncle of one of the thirteen. The condo was sitting next to the Great Gorge North ski area. Between the ski area and the condos was a vacant strip of land. The land is owned by two condo associations, including one of the plaintiffs were staying in.

During the day, the vacant strip of land is used by the ski area as a bunny hill. When the ski hill is closed the lights are turned off.  However, the lights are turned back on later in the night for the groomers to operate.

One of the party of 13 found in the condo a toboggan. After the lights were turned back on, several of the thirteen went tobogganing on the bunny hill. They were not alone tobogganing; other people were tobogganing, sledding and using the hill after it had closed but with the lights on.

Different people in the group used the toboggan at different times; taking turns because the toboggan could only hold six at a time. On the third run, the toboggan was launched higher up the hill.

The toboggan went down the bunny hill across a fifty to sixty foot flat section of land, over a flattened snow fence then over the edge of a 20’ embankment landing in the parking lot below. One of the six was able to fall off the toboggan before it went over the embankment. The five remaining riders were seriously injured landing in the parking lot and hitting a light pole.

Security guards were employed by the defendant condo association. Part of their duties included keeping people off the bunny hill. However, this night the security guards were shorthanded, and hill was not checked. The plaintiff’s even argued that the defendants were negligent because they failed to eject people on the bunny hill.

Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant’s attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers.

The case proceeded to trial, and the plaintiffs were awarded $2,475,000 among the five of them. The damages were apportioned under comparative negligence as: plaintiffs 22%, defendant 54% and Stonehill 24% (one of the condo associations).

The defendants appealed.

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

The court first pointed out that even if the plaintiffs were found to be trespassers that did not mean, under New Jersey law that no duty was owed to the trespassers. If the land contained a dangerous instrumentality, then a duty is owed to a trespasser to warn them of the danger.

Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious.” The Court held, however, that even traditionally there was a higher standard of care due a trespasser “when the property owned by the landowner can be classified as a dangerous instrumentality.” Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous.

In this case, the court concluded that next to a bunny hill, an embankment is a dangerous instrumentality. The court’s opinion of the situation is pretty clear in the next discussion when the embankment is called a fatal trap.

Here, on one side of that relationship are young people attracted to a condominium because of its proximity to snow trails and who, not unexpectedly, used defendant’s adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, was a near-fatal trap to those using the trail to toboggan.

New Jersey has a Skier Safety Act. The court found that the New Jersey Skier Safety Act applied to this case.

To determine whether it applies to the exclusion of common-law principles, one must look at two sections of the Statute: N.J.S.A. 5:13-4, which lists the duties of skiers, 1 and N.J.S.A. 5:13-5, which describes the risks that a skier is deemed to have assumed. If a factfinder finds that a skier was injured because he or she had violated one or more of those statutory duties or is deemed by the Statute to have assumed one or more of the stated risks of skiing, the Statute applies.

Once it is determined the act applies, the court, or jury, determines if the injuries of the plaintiff were caused by the ski operators violation of the act. If so the plaintiff recovers.

If the factfinder finds that the injuries were not proximately caused by the ski operator’s violation of any of its statutory responsibilities, the Statute bars the injured skier from recovering compensation from the operator. If the factfinder finds that the injuries were proximately caused by the ski operator’s violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence.

The court also found the plaintiff’s violated one statute of the New Jersey Skier Safety Act. The plaintiff’s failed to maintain control of their toboggan and did not know their abilities.

Here it is obvious that plaintiffs violated at least one of the statutory duties and therefore the Statute applies.  [HN7] N.J.S.A. 5:13-4d provides:

A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise traverse any trail, slope or other area which is beyond the skier’s ability to negotiate.

The court also found the plaintiff’s assumed the risk because they still went down the slope. However, this assumption of the risk, the court found was not a complete bar, but only proved the plaintiffs contributed to their injuries. Which is contrary to how the assumption of risk provision reads and is somewhat contrary to earlier statements in the case?

It is important to note that these statutory violations and risk assumptions do not affect the percentage of a skier’s comparative negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.

This interpretation of the statute effectively render’s the inherent risk section of the statute void. An inherent risk is a risk that is part of the activity. In inherent risk is something that cannot be removed from the activity without rendering the activity moot. You cannot sue for an injury you receive from an inherent risk of the activity, allegedly. Skier Safety Acts are written to broaden the risks that are inherent and to make them, if assumed an absolute bar to a claim, in most states.

However, in New Jersey, this is not the case.

It is important to note that these statutory violations and risk assumptions do not affect the percentage of a skier’s comparative negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.

The case took a somewhat amusing turn. The court reviewed the plaintiff’s claim that a stronger fence should have been built and that the defendants were liable because they had not built a fence strong enough to keep the plaintiff’s from going over the embankment. Aren’t the injuries going to be different when a toboggan going fast enough to over an embankment hits a fence, but still severe?

The argument then went back to the New Jersey Skier Safety Act. The act differentiates between manmade hazards and natural ones. The statute defines a ski area as real property “…”utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.”

However, the court simply stated, “Being borne off an embankment after reaching the bottom of a trail is not an inherent risk of tobogganing.”

Then the court looked at the hazard and determined the act required removal of a hazard. If the hazard could not be removed, then the plaintiff’s had to be warned of the hazard.

Where physical removal of a hazard is not possible, reasonable warnings of the hazard may constitute its practicable removal. The Statute impliedly contemplates that an operator at least has a duty to post suitable warnings of danger. It will be recalled that N.J.S.A. 5:13-5 expressly charges skiers with the reciprocal duty “to heed all posted warnings.”

The decision then went back to the duty owed to trespassers. The defendants argued the New Jersey Skier Safety Act does not apply to trespassers. However, the court stated that even if the plaintiffs were trespassers a high duty was owed with or without the New Jersey Skier Safety Act.

We already suggested that even at common law, defendant may owe plaintiffs a duty of reasonable care because their presence on the lighted trail was reasonably foreseeable, the risk of grave injury was great and the duty of care was not delegable.

The court then summed out the analysis it was making to allow a recovery by the plaintiffs.

Plaintiffs were not merely “in” the ski area; they were “utilizing the ski area for recreational purposes such as . . . operating toboggans.” They were therefore skiers entitled to recover under principles of comparative negligence if defendant violated any of its limited statutory responsibilities.

The statutory responsibility was the failure to remove the embankment or post a warning about it.

A major issue at trial was whether defendant violated any of its statutory responsibilities. The focus was on the meaning of  [HN10] N.J.S.A. 5:13-3, which provides in relevant part:

a. It shall be the responsibility of the operator to the extent practicable, to:

* * * *

(3) Remove as soon as practicable obvious, man-made hazards.

The appellate court upheld the jury’s decision and award at trial.

So Now What?

In New Jersey, you must make your property safe for all users of the property, even if they are doing so without our permission. If you cannot remove the hazard, you must post a warning of the hazard, if the hazard is considered ultra-hazardous.

Simply put, risk management is not controlling what people are expected to do at your program or business. Risk Management is looking at all aspects of the operation and finding ways that people can be hurt doing things other than what they came for.

The Zip Line may be perfect but is someone can mistake an anchor for a zip line you will be sued. See Federal court voids release in Vermont based on Vermont’s unique view of release law. Someone uses the equipment incorrectly, and the court is going to hold you to the fire. See Sometimes you get screwed; here Petzl was shafted by the court.

However, a person can use a piece of equipment, try a ride, climb up or down; they will do it wrong, be hurt and sue.

Risk Management is looking at things from every point of view, for every age group, for every activity, if you don’t think those people, those age groups or that activity can be done.

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Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

Patrick Brett and Elisa Ramundo, Plaintiffs-Respondents, v. Great American Recreation, Inc., Defendant-Appellant, and Stonehill Property Owners Association, Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Defendant/Third-Party-Plaintiff/Respondent, v. Denise Mcdade, Nancy Morgan, Third-Party-Defendants. Karen Furman, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stonehill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, v. Rudolph Maurizzi, Third-Party-Defendant/Respondent. Donald Pisarcik, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants, and Rudolph Maurizzi, Defendant-Respondent. Megan Russell, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Lisa Carmelitano, Third-Party-Defendants/Respondents, and Karen Furman, Third-Party-Defendant.

A-4010-92T3

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

November 29, 1994, Argued

February 8, 1995, Decided

SUBSEQUENT HISTORY: [***1] Approved for Publication February 8, 1995. As Amended.

Certification granted Brett v. Great Am. Recreation, 141 N.J. 97, 660 A.2d 1196, 1995 N.J. LEXIS 379 (1995)

Affirmed by Brett v. Great Am. Rec., 144 N.J. 479, 677 A.2d 705, 1996 N.J. LEXIS 787 (1996)

PRIOR HISTORY: On appeal from Superior Court of New Jersey, Law Division, Union County.

COUNSEL: Samuel A. DeGonge argued the cause for appellant Great American Recreation, Inc. (Samuel J. McNulty, on the brief).

Philip G. Auerbach argued the cause for respondents Patrick Brett, Elisa Ramundo, Karen Furman and Donald Pisarcik (Auerbach & Cox, attorneys; Mr. Auerbach, on the brief).

John P. Doran argued the cause for respondent Megan Russell.

Anthony P. Pasquarelli argued the cause for respondent Rudolph Maurizzi (Methfessel & Werbel, attorneys; Jared E. Stolz, of counsel and on the brief).

Kevin J. Decoursey argued the cause for respondent Lisa Carmelitano (O’Toole & Couch, attorneys; Michael Della Rovere, on the brief).

JUDGES: Before Judges BRODY, LONG and ARNOLD M. STEIN. The opinion of the Court was delivered by BRODY, P.J.A.D.

OPINION BY: Warren Brody

OPINION

[*310] [**776] The opinion of the Court was delivered by

BRODY, P.J.A.D.

Plaintiffs in this consolidated personal injury action are five of thirteen college friends, then twenty and twenty-one years old, who had planned to be together for a winter weekend at a condominium in Vernon Township. The owner of the condominium, third-party defendant Rudolph Maurizzi, is the uncle of third-party defendant [***2] Lisa Carmelitano, one of the group. He allowed the group to use his condominium, which is one of many such buildings built along the slope of Great Gorge North on either side of a vacant strip of land. During the winter, the vacant strip, which is about a thousand feet long, is the Bunny Buster ski trail. Defendants Stonehill Property Owners Association, Inc. and Hotel [*311] Section Condominium Council, Inc. (Stonehill) own the land that contains the condominiums and the Bunny Buster trail. Defendant Great American Recreation, Inc. (defendant) operates the trail as a business under the terms of an easement from Stonehill.

Members of the group arrived on Friday at different times. Early arrivals spent part of the day skiing along various trails in the area. When they finished skiing, some of those returning to the condominium used or crossed the Bunny Buster trail even though defendant had turned off the lights on the trail because by then it had closed for the day. Between ten and eleven o’clock that night, after everyone in the group had arrived at the condominium, defendant turned on the Bunny Buster trail lights to enable its employees to groom the trail for the next day. Grooming [***3] is accomplished by using motor vehicles to pull heavy rollers over the trail to tamp down the snow.

Earlier that day, one member of the group discovered a toboggan that Maurizzi had stored in his condominium with other snow equipment. After the lights were turned on, the group decided to slide down part of the trail on the toboggan. There was evidence that other people at the time were using the trail for sledding and tobogganing. The toboggan could hold no more than six people so members of the group took turns riding it. The first two runs were uneventful.

[**777] The third run, with six on board, was a disaster. Starting from a point a bit higher than where the first two runs had begun, the toboggan slid down the trail, across a fifty- to sixty-foot flat expanse of snow at the base of the trail, over a flattened snow fence, and then over the edge of a twenty-foot dirt embankment to a parking lot below. One of the six fell off the toboggan before it dropped over the edge, thereby escaping injury. The other five, the plaintiffs, were seriously injured as their bodies hit the embankment, the parking lot and a parking-lot light pole. There was evidence that, at the time of the rescue operation, [***4] other people, not associated with plaintiffs’ group, who were tobogganing [*312] escaped injury by tumbling off their toboggan just before it dropped over the edge.

Claims against all third-party defendants were dismissed on their motions for partial summary judgment. Plaintiffs settled with Stonehill before trial. The jury found that under the New Jersey Ski Statute (Statute), N.J.S.A. 5:13-1 et seq., plaintiffs as a group, defendant and Stonehill were all negligent. The jury apportioned the negligence as follows: plaintiffs 22%, defendant 54% and Stonehill 24%. The jury found that fair and adequate total compensation to all plaintiffs would be $ 2,475,000.

Defendant’s main arguments are: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute. Defendant raised these issues when it moved, unsuccessfully, for involuntary dismissal upon the conclusion of plaintiffs’ presentation of evidence, R. 4:37-2(b), and for judgment at the close [***5] of all evidence, R. 4:40-1. For reasons that follow, we conclude that defendant is liable under the Statute and that the Statute does not bar the claims of trespassers.

Before discussing those issues, we note that, contrary to defendant’s contention, although plaintiffs were trespassers at the time of the accident their claims would not necessarily be barred at common law. ” [HN1] Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious.” Renz v. Penn Cent. Corp., 87 N.J. 437, 461, 435 A.2d 540 (1981). The Court held, however, that even traditionally there was a higher standard of care due a trespasser “when the property owned by the landowner can be classified as a dangerous instrumentality.” Id. at 462, 435 A.2d 540. Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous. As this accident demonstrated, tobogganers who reached the bottom of the trail would be carried by momentum over the edge of a twenty-foot embankment resulting in serious injury.

[*313] The Court in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), [***6] signaled its movement away from the rigid common-law distinctions among the standards of care due trespassers, licensees and invitees. There the Court held that a real estate broker owed a duty of reasonable care to a prospective home buyer who was injured when she failed to notice a step and fell while viewing the premises. She was there to attend an “open house” conducted by the broker. In imposing a duty of care on the broker, thereby departing from the common-law requirement that only the property owner had such a duty, the Court said:

The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but . . . whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition on the broker of a general duty to exercise reasonable care in preventing foreseeable harm to its open-house customers is fair and just. That approach is itself rooted in the philosophy of the common law.

[Id. at 438, 625 A.2d 1110]

Here, on one side of that relationship are young people attracted to a condominium because of its proximity [***7] to snow trails and who, not unexpectedly, used defendant’s adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, [**778] was a near-fatal trap to those using the trail to toboggan. Without having to decide the question, we suggest that even if the Ski Statute did not apply, the operator would have a common-law duty to take reasonable measures to warn such trespassers of that latent danger.

Indeed, such an obligation was recognized by defendant in its cross-claim against Stonehill. Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant’s attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers. We add that [HN2] the duty of an owner or occupier of land to warn of such a serious [*314] danger may not be delegable. Hopkins, supra, at 441, 625 A.2d 1110 (citing Sanna v. National Sponge Co., 209 N.J.Super. 60, 506 A.2d 1258 (App.Div.1986)). [***8]

The Legislature enacted the Ski Statute in 1979 in response to a decision by the Vermont Supreme Court that deprived operators of ski areas of the absolute defense of assumption of risk. Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978), held that in adopting comparative negligence by statute the legislature of that state intended to replace the absolute defense of assumption of risk with the defense of plaintiff’s comparative negligence. Our Legislature was thus moved to consider whether its adoption of the doctrine of comparative negligence in 1973 left ski area operators unfairly vulnerable to personal injury actions caused by accidents that are an inherent risk of skiing and related sports such as toboganning. See generally Reisman v. Great Am. Recreation, 266 N.J.Super. 87, 92-95, 628 A.2d 801 (App.Div.), certif. denied, 134 N.J. 560, 636 A.2d 519 (1993).

[HN3] Actions against a ski operator for personal injuries sustained by a skier on its ski slope are governed by common-law negligence principles unless the Ski Statute applies. Reisman, supra,266 N.J. Super. at 97, 628 A.2d 801. [***9] The Statute, however, has wide application.

To determine whether it applies to the exclusion of common-law principles, one must look at two sections of the Statute: N.J.S.A. 5:13-4, which lists the duties of skiers, 1 and N.J.S.A. 5:13-5, which describes the risks that a skier is deemed to have assumed. If a factfinder finds that a skier was injured because he or she had violated one or more of those statutory duties or is deemed by the Statute to have assumed one or more of the stated risks of skiing, the Statute applies. The common law, and not the Statute, was applied in Reisman because there the skier’s injury [*315] was the result of neither the violation of a statutory duty nor the assumption of a statutory risk. He was injured while properly proceeding slowly down a beginner’s slope when a drunken skier knocked him to the ground.

1 [HN4] N.J.S.A. 5:13-2c defines “skier” to include “a person utilizing the ski area for recreational purposes such as . . . operating toboggans.”

[HN5] Once it is determined that the [***10] Statute applies, one must look at N.J.S.A. 5:13-3, which lists the responsibilities of the ski operator. 2 If the factfinder finds that the injuries were not proximately caused by the ski operator’s violation of any of its statutory responsibilities, the Statute bars the injured skier from recovering compensation from the operator. If the factfinder finds that the injuries were proximately caused by the ski operator’s violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence. N.J.S.A. 5:13-6.

2 [HN6] N.J.S.A. 5:13-2a defines “operator” to include “a person . . . who . . . manages . . . the operation of an area where individuals come to . . . operate . . . toboggans.”

Here it is obvious that plaintiffs violated at least one of the statutory duties and therefore the Statute applies. [HN7] N.J.S.A. 5:13-4d provides:

A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise [***11] traverse any trail, slope or other [**779] area which is beyond the skier’s ability to negotiate.

Plaintiffs were not able to negotiate the Bunny Buster trail. It is also obvious that plaintiffs are deemed to have assumed at least one statutory risk. [HN8] N.J.S.A. 5:13-5 provides in part:

Each skier is assumed to know the range of his ability, and it shall be the duty of each skier to conduct himself within the limits of such ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of himself or others.

Given that assumption, plaintiffs acted in a manner that contributed to their own injury.

It is important to note that these [HN9] statutory violations and risk assumptions do not affect the percentage of a skier’s comparative [*316] negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.

A major issue at trial was whether [***12] defendant violated any of its statutory responsibilities. The focus was on the meaning of [HN10] N.J.S.A. 5:13-3, which provides in relevant part:

a. It shall be the responsibility of the operator to the extent practicable, to:

* * * *

(3) Remove as soon as practicable obvious, man-made hazards.

Much of the confusion in arguing the liability issue at trial was caused by the next subsection of the Statute, which expressly excuses an operator from certain specific responsibilities to skiers. In that regard, [HN11] N.J.S.A. 5:13-3 provides in relevant part:

b. No operator shall be responsible to any skier or other person because of its failure to comply with any provisions of subsection 3.a. if such failure was caused by:

* * * *

(3) Subject to the provisions of subsection 3.a.(3), the location of man-made facilities and equipment necessary for the ordinary operation of the ski area, such as . . . fencing of any type. . . .

Plaintiffs argued that the man-made hazard for which defendant was responsible was fencing. At first they seemed to suggest that the snow fence was a direct cause of the accident because it constituted a ramp that “launched” the toboggan down the embankment. Defendant [***13] responded by claiming the benefit of subsection -3b(3), which relieved it of any responsibility for the “location” of “fencing” “necessary for the ordinary operation of the ski area.”

As plaintiffs developed their case with expert testimony, however, it became apparent that they were not claiming that the flimsy snow fence was a cause of the accident, but rather that a cause of the accident was defendant’s failure to erect a more resistant fence that would restrain a toboggan and its passengers from [*317] going over the edge of the embankment. Aside from whether such a fence would effectively reduce injury or be “practicable” (a requirement of section -3a), defendant argued that the absence of a stronger fence was still related to the location of fencing and therefore not actionable because of subsection -3b(3).

The trial judge rejected defendant’s argument when he denied its motions. He interpreted “man-made hazards” comprehensively to include the design of the trail, which directed toboggans, known to be difficult if not impossible to control, over the edge of the twenty-foot embankment and down to the parking lot and light pole. As he understood the Legislature’s intent, the requirement [***14] that operators “remove . . . man-made hazards” was broad enough to include warning people not to use the trail for tobogganing. The judge instructed the jury that “remove” not only means “to . . . uproot” but also means “to eliminate or reduce or obviate.” This left the jury free to decide whether the hazard of falling over the edge of the embankment could be removed by warnings. We agree with the trial judge.

[**780] [HN12] An obvious man-made hazard, as contemplated in N.J.S.A. 5:13-3a(3), is a man-made danger, obvious to an operator, that is not an inherent risk of using a “ski area.” A ski area is defined in part by N.J.S.A. 5:13-2b as real property “utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.” Being borne off an embankment after reaching the bottom of a trail is not an inherent risk of tobogganing.

Where physical removal of a hazard is not possible, reasonable warnings of the hazard may constitute its practicable removal. The Statute impliedly contemplates that an operator at least has a duty to post suitable warnings of danger. It will be recalled that N.J.S.A. 5:13-5 expressly charges skiers with the reciprocal duty “to heed [***15] all posted warnings.”

Defendant argues alternatively that even if plaintiffs may recover under the Ski Statute, the Statute does not apply to trespassers. We already suggested that even at common law, [*318] defendant may owe plaintiffs a duty of reasonable care because their presence on the lighted trail was reasonably foreseeable, the risk of grave injury was great and the duty of care was not delegable. We find nothing in the statute that suggests that the Legislature meant to supplant the common law in that respect. The Statute does not exempt trespassers from the definition of skiers to whom operators have a limited responsibility. We quote the [HN13] N.J.S.A. 5:13-2c definition in full:

“Skier” means a person utilizing the ski area for recreational purposes such as skiing or operating toboggans, sleds or similar vehicles, and including anyone accompanying the person. Skier also includes any person in such ski area who is an invitee, whether or not said person pays consideration.

[Emphasis added.]

Plaintiffs were not merely “in” the ski area; they were “utilizing the ski area for recreational purposes such as . . . operating toboggans.” They were therefore skiers entitled to recover [***16] under principles of comparative negligence if defendant violated any of its limited statutory responsibilities.

Our understanding of the Legislature’s intent is fortified by a change in the Assembly bill before it became the Statute. The bill originally contained a section that read:

No operator shall be liable to any person who is a trespasser, which shall include, but not be limited to, persons using the facilities who fail, when required to do so, to pay lift fees or other fees required in connection with the use of these facilities. The operator shall be liable to skiers and others only as specified in this section.

[A. 1650, 198th Leg., 1st Sess. § 3(c) (1978).]

That provision was deleted before the Statute was adopted. The Statement accompanying the final version of the bill stated in part, “The complete removal of liability on the part of a ski area operator to trespassers would be eliminated.” Assembly Judiciary, Law, Public Safety and Defense Committee Statement to Assembly No. 1650 (November 20, 1978).

The two remaining arguments that we will briefly address are that the motion judge erroneously granted partial summary judgments to Maurizzi and to Carmelitano. [***17] The motions were properly granted.

[*319] There was no evidence presented in opposition to Maurizzi’s motion that he authorized plaintiffs to use his toboggan, which he had stored in his home. There was no evidence that a toboggan is so inherently dangerous that Maurizzi should have secured it from use by adults. There was no evidence that Maurizzi knew that using the toboggan on the Bunny Buster trail would be especially dangerous.

As to Carmelitano, although there was evidence, presented in opposition to her motion, that some members of the group drank beer at the condominium before the accident, there was no evidence that Carmelitano served the beer, much less that she served it to anyone who was visibly intoxicated. Indeed, there was no evidence that beer-drinking was a cause of the accident. See Gustavson v. Gaynor, 206 N.J.Super. 540, 503 A.2d 340 (App.Div.1985), certif. denied, 103 N.J. 476, 511 A.2d 655 (1986).

[**781] We are satisfied from a careful reading of this record that the remaining issues that defendant has raised in its brief are clearly without merit and therefore require no discussion. R. 2:11-3(e)(1)(E).

[***18] Affirmed.


Another trade associations confuses marketing and law: if you don’t understand the legal meaning of a word don’t use it like you do

ATTA article promotes goals for guides worldwide by calling them standards which in the US are the legally lowest possible acceptable level of acting.

The Adventure Travel Trade Association recently posted an article showing their research indicated that no standards existed for guides. Those standards were promoted by the association as needed to promote quality.

We view standards as critical to the future of the adventure travel industry’s success. As it is growing radically in participation numbers, it’s key that the operators expanding and joining the industry be of the best quality.

Their research is slightly flawed. Several states have laws regarding guiding, Colorado, West Virginia, Montana and California. Furthermore, the UIAA control and create guide standards in Europe, the International Climbing and Mountaineering Federation. In Europe, these guide standards are the law in some countries.

The person who promoted the idea for the ATTA gave reasons for the need for standards.

“Why do we need a more universal standard?” asked Moore, “Because the adventure travel sector is growing, because tour operators around the world are demanding it, and because destinations need it to legitimately promote adventure activities”

The idea is to create standards in a proposed group in five areas. Those areas include medical care and technical knowledge.

Based on the article clearly the ATTA is attempting to create qualifications for being a good guide. The unanswered question is, is this being done for safety reasons or for marketing reasons?

No matter the reason, the attempt will create legal problems. Legally, standards are the proof of the poorest quality not the best. A legal standard is the lowest acceptable level of care. If you fall below the legal standard, you have breached a duty of care you may owe to someone. Three examples of this are:

New Jersey Model Jury Instructions state:

5.10A            NEGLIGENCE AND ORDINARY CARE – GENERAL

To summarize, every person is required to exercise the foresight, prudence and caution which a reasonably prudent person would exercise under the same or similar circumstances.  Negligence then is a departure from that standard of care.

The Restatement of Torts is a compendium of the law.

Restatement Second of Torts, section 282, defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”

Colorado Jury Instructions, the law given to a jury when they go to the jury room to make their decisions about a case defines standard as:

CJI-Civ. 9:9 (CLE Ed. 2009)

Jury instructions define “standard of care” as “a duty to use that degree of care which a person of similar age, experience and intelligence would ordinarily use under the same or similar circumstances.”

If you fall below the standard of care and there is an injury you have breached a duty of care to a guest. You are on your way to helping the injured guest prove you are negligent.

Remember negligence is:

·         Duty

·         Breach of that Duty

·         Injury proximately caused by the Breach of Duty

·         Damages

In order to determine if there was a breach of a duty, the jury must determine the standard of care which the defendant fell below. If a trade association lists the requirements for the standard of care, puts them on the Internet or in a book, then the association has helped put its members in a courtroom. The plaintiff instead of struggling to establish the care was below the acceptable level need only to refer to the trade association as proof of the association member’s negligence.

Standards are Not Goals or Minimum Levels of Knowledge or Skill

It is obvious from the article that the association believes the standards will be goals to which its membership will strive for its guides to attain. You can probably post on your door or website that your guides meet the standards as established by your trade association. If that happens, then no matter how much the word safety is thrown out there for proof of the reasoning, the actual reasoning is a marketing program.

Either one will still sink a member.

In effect, you are handing the attorney for an injured guest the keys to open your bank account or insurance policy and take out money by creating or having an association create standards for your industry.

If you want actual examples of this look at the Climbing Wall Association or the Association of Experiential Education. The Climbing Wall Association changed their standards to best practices, and the AEE is about gone. Is the AEE having problems a result of their “standards?” I don’t know. I do know that both organizations were big in creating standards, and their members were sued a lot. See Payouts in Outdoor Recreation

If you don’t have the time or ability or your standards are beat to a pulp in a courtroom then you starting writing meaningless crap for standards. “You should have adequate guides for the number of guests in your group.” That statement has no value and thankfully brings nothing to the courtroom, so why kill a tree by creating it?

Besides can you create one set of standards that work worldwide let along across state lines?

A medical standard is the easiest to use as an example. A standard is created based on US or UK realities. Advanced professional first aid care (EMS) is available within roughly a four-hour window. Your guides are trained in first aid based on that four-hour window.

These standards are then applied to an area where there is no EMS. Transportation to a hospital may take days, and the hospital may not come close to the idea an American may visualize when they think of hospitals.

If a US guest is injured in that area of the world will the standard apply? Yes, you agreed to the standard or the association created the standard. If nothing else the jury will see the standard as what they should use to measure the care the injured guest received.

Are you going to argue to a jury that the standards not to apply because you took the US or EU client to a third-world country? Then the jury may look at you and determine either you should have done something to ensure the safety, which you did not, or you should not have gone there. Why, because you can’t meet the standard of care, your organization created.

Look at a simple cut. On a mountain in Nepal, you would immediately stop the bleeding and bandage the wound. In some jungles of South America or South-East Asia, you may want the wound to bleed a little to help clean the wound of any bacteria or other nasty’s that entered through the cut.

How do you write the standard for Kilimanjaro where the first two days are hiking through a jungle, and the next days are spent on the mountain?

The easiest example was the classic mistake of the AEE’s first set of standards. The standards stated you must pee 100 yards from any water. In the Southwest on river trips, this may get you fined by the federal agency managing the river you are rafting. There you pee in the river. What do you do if your standard violates state or federal law? What if your standard violates a religion?

Time and Upkeep

The biggest issue with standards is upkeep. It takes months, sometimes years to create standards, how do you keep them up to date? You have navigated your way through the difference requirements of different countries, trips and laws and then a law changes, a technique improves or better first aid care becomes available.

How do you go back and re-write the standard? When do you re-write the standard? How do you communicate the new standard? How do you convince your members to change to the new standard after they have spent time training their employees on the old standard and invested money in meeting it?

If you are using the old standard after a new standard comes out do you have a grace period? (No, this was a trick question.)

Just create great ideas. Educate members and guests on what to look for in a good guide. Provide education so guides can get better.

Don’t hang a noose around your member’s necks and call it marketing.

See ATTA Advances Conversation on Adventure Guide Qualification and Performance Standards

For more articles on this topic see:

If you mix up your language, you will be held to the wrong standard in court

Marketing is marketing and Risk Management is not marketing

Can a Standard Impeded Inventions?

If you mix up your language, you will be held to the wrong standard in court

If your organization says you do something and you are a member of the organization you better do it or be able to explain why you did not

Words: You cannot change a legal definition

For articles on Association Standards have been used to sue members see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release

Plaintiff uses standards of ACCT to cost defendant $4.7 million

So if you write standards, you can, then use them to make money when someone sues your competitors

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

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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