Arista v. Cnty. of Riverside (Cal. App. 2021)

Arista v. Cnty. of Riverside (Cal. App. 2021)

CHRISTYNA ARISTA, Individually and as Successor in Interest, etc. et al., Plaintiffs and Appellants,
v.
COUNTY OF RIVERSIDE, Defendant and Respondent.

E074815

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

April 14, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. RIC1502475)

OPINION

APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge. Reversed.

Tiedt & Hurd, John E. Tiedt and Marc S. Hurd for Plaintiffs and Appellants.

Disenhouse Law, Bruce E. Disenhouse; Arias & Lockwood and Christopher D. Lockwood for Defendant and Respondent.

In a third amended complaint plaintiff and appellant Christyna Arista and her children (collectively, the Family) sued defendant and respondent County of Riverside (the County) for wrongful death, negligence, and negligent infliction of emotional distress.1 The trial court granted summary judgment in favor of the County. The Family contends the trial court erred by granting summary judgment. We reverse the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. THIRD AMENDED COMPLAINT

The facts in this subsection are taken from the third amended complaint (TAC). Christyna Arista (Wife) was married to Andres Marin (Marin), and he is the father of her children. On March 1, 2014, at approximately 6:30 a.m., Marin left home, in Corona, for a bicycle ride to Santiago Peak in the Cleveland National Forest (the CNF). The ride would be approximately 55 miles, and Marin was expected to return home by 2:00 p.m. On March 1, the temperature in Corona was 50 to 60 degrees with periodic light drizzle. For the bicycle ride, Marin was wearing knee-length bicycle shorts, a bicycle jersey, calf-length socks, bicycle gloves, shoes, and a helmet. Marin carried $10, water, snacks, and his cell phone.

On March 1, at 3:00 p.m., when Marin failed to return home, Wife called and texted Marin’s cell phone every 15 minutes but received no answer until 5:14 p.m. when Marin answered Wife’s call. Marin said he had fallen from his bicycle and suffered an injury. Marin seemed confused and disoriented but said that, prior to the fall, he had reached Santiago Peak and was on his way home. At 5:32 p.m., Wife began calling various agencies, e.g., a ranger station, but was unable to reach anyone. At 5:36 p.m., Wife called 911 and the operator advised her to wait at home. At 6:30 p.m., Corona Police arrived at Wife’s home, and Wife explained that Marin was injured, on his way down from Santiago Peak, and lightly dressed.

At 8:00 p.m., Riverside County Sheriff’s Deputy Zaborowski2 arrived at the Family’s home. At that point, deputies had already checked trailheads in the CNF, traveled along access roads looking for Marin, pinged Marin’s cell phone, and contacted civilian volunteers to tell them “to be ‘on alert’ for a potential call to assist.” Wife provided Zaborowski with the same information she provided the Corona Police. Zaborowski told Wife that the ping of Marin’s phone showed he was in the area of Santiago Peak. Zaborowski also said Verizon service employees were in the area of Santiago Peak and had been asked to “be vigilant for Marin’s location.”

Lieutenant Hall (Hall) was the Sheriff’s Department’s Incident Commander for the search for Marin. Hall stayed at his home during the search. He was not trained in search and rescue. Hall did not consider the risks that Marin faced from the weather. Hall did not know Santiago Peak has an elevation of 5,689 feet. Hall was unaware that the trail Marin had planned to use has an elevation of 3,000 to 4,000 feet. Hall did not know what, if any, equipment Marin had with him for cold weather.

At 10:00 p.m., Detective Holder arrived at the Family’s home. While at the residence, Holder spoke to Zaborowski. Holder said “he [(Holder)] was ‘not sure what we’re doing here,’ that Marin was ‘probably just running around on his wife’ and was ‘just covering his tracks,’ suggesting that Marin was not missing, but instead involved in some adulterous affair.” Holder informed Wife that the Sheriff’s Department was suspending its search for the night and would resume searching in the morning. Wife asked Holder, ” ‘[W]hat are the chances he [Marin] dies of hypothermia?’ ” because the temperatures at Santiago Peak were expected to be in the mid-30s to mid-40s. “Holder replied that Marin was ‘a grown man’ and that ‘he can survive the night.’ ” Holder further said “that ‘if it was a child, [he] would send a helicopter out there right now.’ “

After being told that the search was suspended for the night, Wife organized relatives to perform their own search. Unidentified County personnel asked Wife not to initiate her own search because the County would conduct the search. Nevertheless, Wife and six relatives began searching for Marin, on foot, at 3:45 a.m. Pat Killiam who is a mountain biker and search and rescue volunteer “had heard about the ‘missing biker,’ ” and began his own search for Marin using a motorcycle on the access roads. Killiam found Marin’s body on a maintained fire access road. The precise time that Killiam found Marin is not alleged in the TAC. Marin died of hypothermia due to being exposed to cold environmental temperatures.

The County’s Sheriff’s Department has an Off-Highway Vehicle Enforcement unit (ROVE) that is equipped with all-terrain vehicles that have lights. The vehicles can operate in the mud at night. ROVE was not dispatched to search for Marin. Because Marin was on a maintained fire access road, he could have been rescued by people using all-terrain vehicles.

In the Family’s wrongful death cause of action, it alleged the following: The Sheriff’s Department assumed the responsibility of searching for Marin by starting the search and telling Wife not to conduct her own search. The Family alleged that it relied upon the County to rescue Marin after the County assumed control of the search and rescue. In taking responsibility for the search, the Sheriff’s Department owed a duty to conduct the search with reasonable care.

The County should not have assigned Hall to be the incident commander for the search because Hall lacked search and rescue training. Hall acted with reckless disregard for life by managing the search from his living room. The County’s employees acted with bad faith and gross negligence by (1) failing to contact people who had knowledge of the trails and service roads in the CNF; (2) failing to deploy the ROVE team on the night of March 1; and (3) failing to consult a medical professional with knowledge of hypothermia regarding Marin’s possible injuries and the risk of hypothermia. The Family’s causes of action for negligence and negligent infliction of emotional distress are based on the same conduct/omissions as the wrongful death cause of action.

B. SUMMARY JUDGMENT

The County moved for summary judgment. In its presentation of the facts, the County asserted that, on the evening of March 1, 2014, “it was raining and there was a thick cloud cover and fog in the [CNF].” The County asserted the weather “made it too dangerous to fly” a helicopter to search for Marin. The County also asserted the weather conditions and risks of landslides made it too dangerous for rescuers to search on the ground.

The County asserted that the Family did not cite a statute to support direct liability on the part of the County, which meant the Family was relying on respondeat superior liability. The County asserted that its employees’ decision to suspend the search for the night was objectively reasonable and fell within the standard of reasonable care.

Next, the County asserted three separate immunities applied. First, the County cited Government Code section 8453, which provides public employees are not liable for the failure to provide sufficient police protection. The County asserted section 845 made it immune from the allegation that it “should have provided more or different training.”

Second, the County cited section 820.2, which provides that public employees are not liable for injuries that result from acts or omissions stemming from discretionary decisions. The County argued, “The undisputed evidence shows that a discretionary decision was made, based on all of the available evidence, and after considering the risks to [Marin], the weather and the trail conditions, the conflicting cell phone location information, and all the other information . . . , not to risk rescue personnel by a further nighttime search, but to wait until morning.”

Third, the County cited Health and Safety Code section 1799.107, subdivision (b), which provides that emergency rescue personnel are not liable for injuries caused by actions taken within the scope of their employment, unless the actions were done in bad faith or with gross negligence. The County asserted, “The undisputed evidence . . . shows no gross negligence and no bad faith in deciding to wait until morning to do additional searches of the forest. Rather, the undisputed evidence shows an objectively reasonable decision, based on all of the available evidence, not to expose searchers to the high risks of a night time [sic] search under those weather conditions when decedent’s location was only vaguely known.”

C. OPPOSITION

The Family opposed the County’s motion for summary judgment. The Family asserted there is a triable issue of material fact regarding whether the Sheriff’s Department’s employees’ conduct/omissions constituted an extreme departure from the ordinary standard of conduct. The Family asserted the following constituted gross negligence: failing to set up a command post in the CNF; failing to establish a search area; not having a deputy trained in search and rescue evaluate the trail and road conditions; not contacting the ROVE team in a timely manner; having Hall command the search from his living room; and failing to consult with a medical professional regarding Marin’s injuries and risk of hypothermia.

The Family asserted the immunity for failing to provide sufficient police protection (§ 845) is meant to protect budgetary and policy decisions, not negligence by a particular law enforcement officer. As to the immunity for discretionary decisions (§ 820.2), the Family asserted (1) the County was liable for the negligent way in which it handled the search prior to deciding to suspend the search for the night; and (2) immunity for discretionary decisions applies to operational and policy decisions not to decisions such as Hall’s decision to suspend the search.

In regard to immunity for rescue personnel (Health & Saf. Code, § 1799.107, subd. (b)), the Family asserted there were triable issues of fact regarding whether County personnel acted in bad faith or in a grossly negligent manner. As to bad faith, the Family pointed to Holder’s comments that Marin was likely having an affair. In regard to gross negligence, the Family pointed to a declaration by Richard B. Goodman, who was the Search and Rescue Resource Officer for the New Mexico State Police from 1994 to 2002, reflecting that the Sheriff’s Department’s actions were “an extreme departure from what a reasonable . . . law enforcement [officer] assuming search and rescue activities would do in the same or similar circumstances.”

D. HEARING

The trial court found there were triable issues of fact regarding “whether the County breached the duty to rescue that it undertook.” The court determined that the County was immune from liability because Hall exercised discretion when deciding to suspend the search for the night (§ 820.2). The trial court said it was familiar with the trails leading up to Santiago Peak, and that “deputies have an incredibly difficult job. They have to consider so many factors.” The trial court said to the Family’s counsel, “I’d invite you to go on a ride-along, if you never have, just to find out what a deputy’s job is like.” The trial court granted the County’s motion for summary judgment.

DISCUSSION

A. STANDARD OF REVIEW

“A motion for summary judgment should be granted if the submitted papers show that ‘there is no triable issue as to any material fact,’ and that the moving party is entitled to judgment as a matter of law. [Citation.] A defendant meets his burden of showing that a cause of action has no merit if he shows that one or more of the elements of the cause of action cannot be established, or that there is a complete defense. [Citation.] Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists.” (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 229.)

“In reviewing a trial court’s ruling on a motion for summary judgment, the reviewing court makes ‘ “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]” ‘ [Citation.] [¶] ‘On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court.’ ” (Bains v. Moores (2009) 172 Cal.App.4th 445, 454-455.)

B. HARMLESS ERROR4

In the trial court, the County made 55 objections to the Family’s evidence. At the hearing, the trial court said, “The Court is overruling all evidentiary objections by both plaintiffs and defendants in this matter.” In its respondent’s brief, the County contends the trial court erred by overruling its objections to the declarations of Richard B. Goodman, who was the Search and Rescue Resource Officer for the New Mexico State Police from 1994 to 2002, and to Ken Zafren, M.D., who is an emergency physician with expertise in hypothermia.

Our understanding of the County’s argument is as follows: If the Family is correct that the trial court erred in its analysis of the summary judgment motion, then those errors are harmless. (See Code Civ. Proc., § 906 [respondents can argue error within a prejudice analysis].) The errors are harmless because if the trial court had sustained the County’s objections to Goodman’s and Zafren’s declarations then it is probable summary judgment would have been granted because there would not be a triable issue of material fact. (See Code Civ. Proc., § 475 [“a different result would have been probable if such error . . . had not occurred”].) The County’s argument is not persuasive because we do not need to consider the Family’s evidence due to the County failing to meet its burden to show the causes of action have no merit.

In a motion for summary judgment, the moving party, in this case the County, bears the burden of demonstrating the causes of action lack merit. (Code Civ. Proc., § 437c, subd. (p)(2).) In the County’s motion for summary judgment, it asserted the Family’s causes of action had no merit because the County’s employees’ decision to suspend the search was objectively reasonable. The County’s argument fails to specifically address the other allegations in the Family’s TAC, such as Hall’s alleged negligence in conducting the search from his living room. In the TAC, within the wrongful death cause of action, the Family alleged, “It is a reckless disregard for life for Lt. Hall to manage a wilderness search from a home living room.” Other allegations in the Family’s TAC were that the County acted with gross negligence by (1) not involving personnel who knew the CNF, (2) not deploying the ROVE team on the night of March 1, and (3) not consulting a medical professional regarding hypothermia and Marin’s possible injuries.

The County focused only on the decision to suspend the search for the night, but the Family is also suing due to the manner in which the search was conducted prior to the search being suspended. In the motion for summary judgment, the County failed to address all of the Family’s allegations of gross negligence. Thus, the County did not meet its burden of demonstrating the causes of action lack merit. (Code Civ. Proc., § 437c, subd. (p)(2) [defendant bears the burden of establishing the “cause of action has no merit”].)

Because the County did not meet its burden to establish that the causes of action lack merit, the burden did not shift to the Family to demonstrate a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) Therefore, any error related to rulings on the County’s evidentiary objections is irrelevant in that the Family’s evidence need not be considered. Accordingly, we are not persuaded by the County’s assertion that any error alleged by the Family can be found harmless.

Next, on appeal, the County renews its objections to Goodman’s and Zafren’s declarations. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534 [renewed objections on appeal when the trial court failed to rule on the objections]; Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1089 [same].) The County asserts that the Family relies almost exclusively on Goodman’s and Zafren’s declarations in the Family’s appellants’ opening brief, so if the declarations are inadmissible then the Family’s appellate argument fails. It is unnecessary to rule upon the County’s renewed objections because Goodman’s and Zafren’s declarations are not relevant to resolving the alleged errors relating to the immunity defenses. Accordingly, we will not rule upon the County’s renewed objections.

C. IMMUNITY FOR RESCUE PERSONNEL

The Family contends the immunity for rescue personnel (Health & Saf. Code, § 1799.107, subd. (b)) does not support a grant of summary judgment.

Health and Safety Code section 1799.107, subdivision (b), provides, “[N]either a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner.”

In the wrongful death cause of action, the Family alleged, “Further, the [County] knew that the injured Marin was going to be left in predicted cold temperatures that could expose him to hypothermic conditions and jeopardize his life, but through gross negligence, the [County] let Marin die on [its] watch.” As explained ante, the County did not establish that the Family’s cause of action lacks merit. Therefore, at this stage of the proceedings, there is merit to the Family’s gross negligence allegations.

If we assume, without deciding, that Health and Safety Code section 1799.107, subdivision (b), applies in this case, it would not support a grant of summary judgment because, at this stage, it does not provide a complete defense given the gross negligence allegations. (See Mallard Creek Industries v. Morgan (1997) 56 Cal.App.4th 426, 438 [it is error to grant summary judgment unless the defense is “a complete defense to the entire action”].) Accordingly, summary judgment could not be granted on the basis of the immunity afforded rescue personnel (Health & Saf. Code, § 1799.107, subd. (b)).

D. IMMUNITY FOR FAILING TO PROVIDE SUFFICIENT POLICE PROTECTION

The Family contends the immunity for failing to provide sufficient police protection does not apply in this case.

Section 845 provides, in relevant part, “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” Section 845 “was designed to prevent political decisions of policy-making officials of government from being second-guessed by judges and juries in personal injury litigation. [Citation.] In other words, essentially budgetary decisions of these officials were not to be subject to judicial review in tort litigation.” (Mann v. State of California (1977) 70 Cal.App.3d 773, 778-779, fn. omitted.) “Thus, section 845 was not intended to provide immunity against a particular police officer’s negligence in the performance of his duty in a particular situation.” (Wallace v. City of Los Angeles (1993) 12 Cal.App.4th 1385, 1402.)

The Family is not suing the County for budgetary or political decisions. The Family is suing due to the alleged negligence of particular County employees. The County asserts the Family’s lawsuit is partially based upon a failure to provide adequate search and rescue training to its Sheriff’s Department personnel. However, the County cites to the Family’s appellants’ opening brief, not the TAC or the Family’s opposition to the summary judgment motion, to support its argument. In the TAC, the Family alleges the County had the ROVE team and if it had been utilized, then it “would have located Marin on the Evening of March 1, 2014.” The Family specifically alleges, “The COUNTY failed to deploy trained personal [sic] to manage . . . critical decisions concerning Mr. Marin.” In our reading of the TAC, the Family is not asserting that the County failed to train its personnel, but rather that the County was negligent in failing to deploy the trained personnel it had.

The County asserts that the failure to deploy the ROVE team is protected under section 845. In support of that argument, the County cites Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6. In that case, the victim called the police and said her estranged husband was coming to her residence to kill her. The police told the victim to call them back when her husband was at the house. Forty-five minutes later, the victim’s husband stabbed her to death. The police arrived after the victim died. The appellate court explained that the wrongful death cause of action failed because the police had immunity under section 845. (Hartzler, at p. 8.) The appellate court explained that the exception to section 845 is when there is a “voluntary assumption by the public entity . . . . Even though there is initially no liability on the part of the government for its acts or omissions, once it undertakes action on behalf of a member of the public, and thereby induces that individual’s reliance, it is then held to the same standard of care as a private person or organization.” (Hartzler, at p. 9.) The appellate court concluded that the plaintiff failed to plead facts supporting a special relationship between the victim and the police. (Id. at p. 10.)

In other words, Hartzler established that section 845 provides immunity when the complaint concerns a general failure of policing, i.e., the police should have come to my aid but they did not come, but section 845 does not provide immunity when the complaint concerns the manner in which police executed a particular undertaking after a special relationship has developed. (See Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 317 (dis. opn. of P.J. Kline) [” ‘where there exists a special relationship . . . liability may be imposed irrespective of the immunity granted by . . . section 845’ “], citing Hartzler v. City of San Jose, supra, 46 Cal.App.3d 6.) In the instant case, the Family is complaining that the County had a special relationship with Marin and that the County was negligent in searching for Marin. Therefore, the County’s reliance on Hartzler is misplaced.

E. IMMUNITY FOR DISCRETIONARY DECISIONS

The Family contends the trial court erred in granting summary judgment based upon the immunity afforded to governmental discretionary decisions (§ 820.2).

Section 820.2 provides, “[A] public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” “Discretion” is not to be read literally because nearly every act involves some discretionary choice ” ‘ “even if it involve[s] only the driving of a nail.” ‘ ” (Johnson v. State (1968) 69 Cal.2d 782, 787-790.) In eschewing a literal approach to the term “discretion,” concentration has been placed on policy, in particular, “whether the agency in a particular case should have immunity.” (Id. at pp. 789-790.)

Policy decisions made by the legislative and executive branches are subject to immunity because review of those decisions “would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government.” (Johnson v. State, supra, 69 Cal.2d at p. 793.) As an example, judicial immunity applies to the California Division of Juvenile Justice’s “determination of whether to place a youth on parole” because that decision involves “the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reexamination.” (Id at p. 795, fn. omitted.) By contrast, judicial immunity does not apply to the “determination as to whether to warn the foster parents [of a juvenile parolee] of latent dangers facing them” because “to the extent that a parole officer consciously considers pros and cons in deciding what information, if any, should be given, he makes such a determination at the lowest, ministerial rung of official action. Judicial abstinence from ruling upon whether negligence contributed to this decision would therefore be unjustified; coupled with the administrative laxness that caused the loss in the first instance, it would only result in the failure of governmental institutions to serve the injured individual.” (Id. at pp. 795-796.)

In the County’s points and authorities in support of its motion for summary judgment, it asserted Hall made a discretionary decision in deciding to suspend the search for the night. The County did not cite specific evidence to support its assertion that a discretionary decision was made; rather, the County wrote that the evidence was “addressed above.” We infer the County was referring to the “facts” section of its points and authorities.

In the “facts” section, the County wrote, “[Hall] discussed and evaluated all the available information and weighed the risks and benefits of a night time [sic] search. [Citations.] Lt. Hall was aware of the risks of [Marin] freezing to death [citation] but Lt. Hall and his supervisor Chief Deputy Alm made a discretionary risk/benefit decision that the risks to search personnel of a further night search outweighed the potential of locating [Marin] in the dark and they make a discretionary decision not to conduct additional searches in the [CNF] until morning. [Citation.] The factors they considered included: [¶] 1. The rain and thick fog . . . [¶] 2. [Marin’s] location was only vaguely known . . . [¶] 3. Visibility was extremely limited . . . [¶] 4. The rain and fog made the trail dangerous . . . [¶] 5. County employees were not familiar with the area . . . .”

The County’s argument in the points and authorities is focused on the decision to suspend the search, but the Family’s lawsuit is not solely focused on the decision to suspend the search. The Family is also suing due to manner in which the search was conducted prior to the search being suspended. For example, the Family complains of not involving personnel who knew the CNF and not deploying the ROVE team on the night of March 1.

In the County’s brief to this court, the County takes the position that every decision involved in the search was a discretionary decision and that all of those discretionary decisions deserve immunity. The County does not direct this court to evidence indicating what decisions Hall made during the search, or to evidence that Hall weighed and balanced particular factors in making those decisions. Additionally, the County fails to explain why every decision Hall made during the search process is deserving of immunity under section 820.2. (See Johnson v. State, supra, 69 Cal.2d at pp. 789-790 [“discretionary decision” is not meant literally; whether immunity applies is a policy question].)

If the County seeks to have every material search decision Hall made protected under section 820.2 then it needs to provide evidence of what material decisions were made, provide evidence of the discretion exercised in making those decisions, and provide argument as to why each of those decisions is deserving of immunity under section 820.2. Without that information, it was not proper to grant summary judgment pursuant to the discretionary decision immunity (§ 820.2) because the County only addressed a portion of the Family’s allegations. (See Mallard Creek Industries v. Morgan, supra, 56 Cal.App.4th at p. 438 [it is error to grant summary judgment unless the defense is “a complete defense to the entire action”].)

F. CONCLUSION

In sum, it has not been shown that the causes of action lack merit and the County failed to demonstrate that it has a complete defense to the entire TAC. Therefore, we conclude the trial court erred and the grant of summary judgment must be reversed.

DISPOSITION

The judgment is reversed. The trial court is directed to vacate its order granting summary judgment. Appellants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

McKINSTER
Acting P. J.

FIELDS
J.

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Footnotes:

1. This court previously issued an opinion in this case reversing the trial court’s sustaining of the County’s demurrer to the Family’s second amended complaint. (Arista v. County of Riverside (2018) 29 Cal.App.5th 1051.)

2. In the TAC, the deputy’s last name is spelled Zaborowski. In the motion for summary judgment, the deputy’s last name is spelled Zabrowski. In a declaration by Lieutenant Hall, the deputy’s name is spelled different ways including Zaborwski. We use the Zaborowski spelling because that is the spelling used in Deputy Zaborowski’s declaration.

3. All subsequent statutory references will be to the Government Code unless otherwise indicated.

4. A harmless error analysis typically follows a finding of error. In this case, we begin with the County’s assertion that the trial court’s error is harmless because the triable issue of material fact matter discussed as part the harmless error analysis will simplify our discussion post of the Health and Safety Code section 1799.107, subdivision (b), immunity.

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Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21

Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21

James Massengill and Kaylea Massengill, Appellants (Plaintiffs), v. S.M.A.R.T. Sports Medicine Clinic, P.C., Appellee (Defendant).

No. 98-150

SUPREME COURT OF WYOMING

996 P.2d 1132; 2000 Wyo. LEXIS 21

February 14, 2000, Decided

PRIOR HISTORY: [**1] Appeal from the District Court of Laramie County. The Honorable Nicholas G. Kalokathis, Judge.

DISPOSITION: Affirmed.

COUNSEL: Representing Appellants: Robert A. Hampe, Cheyenne, Wyoming (Withdrew pursuant to an Order of Suspension Upon Consent entered in the Wyoming Supreme Court on June 18, 1999.)

Representing Appellee: John I. Henley of Vlastos, Brooks, Henley & Drell, P.C., Casper, Wyoming.

JUDGES: Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR, * JJ.

* Retired November 2, 1998.

OPINION BY: THOMAS

OPINION

[*1132] THOMAS, Justice.

The only issue in this case is whether a waiver of liability in a contract between S.M.A.R.T. Sports Medicine Clinic, P.C. (S.M.A.R.T.) and James Massengill (Massengill) is enforceable under the standards adopted in Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) and followed in later cases. Massengill was using a lat-pull-down machine at S.M.A.R.T. when a pin used to secure the weights fell out. Apparently the pin did not fit properly in the machine, and when the pin fell out, Massengill fell over backwards injuring his wrist. In various statements of the [*1133] issues, Massengill attacks the validity of the waiver of liability on the grounds [**2] that it violated public policy; the business of S.M.A.R.T. is suitable for public regulation; the use of the premises at the time of injury by Massengill is not material; the question of duty is one that must be determined by a trier of fact; and S.M.A.R.T. owed a statutory duty to Massengill which invalidates the waiver. Our review of the record and legal precedent in Wyoming persuades us that the district court ruled correctly that there is no genuine issue of material fact in this case, and S.M.A.R.T. is entitled to judgment as a matter of law. The Order Granting Defendant’s Motion for Summary Judgment is affirmed.

In the Appellants’ Supreme Court Brief, filed on behalf of James Massengill and Kaylea Massengill (collectively the Massengills), these issues are stated:

Issue I

Did the district court error [sic] in validating the “waiver of liability” in the “sports specific training and advanced rehab agreement and release[“] due to the fact that:

(A) The release violated public policy,

(B) The business operated by appellee is suitable for public regulation, and

(C) Plaintiff J. Massengill was engaged in non therapeutic activities on the premises of [**3] the medical clinic has no bearing on whether the release should be validated or not?

Issue II

Is the duty issue in this case purely a question of law where the basic facts are undisputed or is the duty issue one which can only be determined by the trier of fact?

Issue III

Did appellee owe a statutory duty of care to appellant which would invalidate the waiver incorporated in the sports specific training and advanced rehabilitation agreement & release?

In the Brief of Appellee S.M.A.R.T. Sports Medicine Clinic, P.C., the issues are stated in this way:

Was the waiver of liability executed by the Appellants valid[?]

(i) Was the Appellee’s waiver language inclusive and unambiguous as required by prior Wyoming Supreme Court case law; [or]

(ii) Is the waiver language of the Appellee contrary to public policy[?]

One evening James Massengill engaged in a conversation at a Cheyenne drugstore with the equity owner of S.M.A.R.T., a physician in Cheyenne. Massengill knew that S.M.A.R.T. had a weight room, and had seen recent advertisements to the effect that the facility offered personal trainers to assist members. In the course of a brief [**4] conversation, Massengill mentioned his interest in S.M.A.R.T.’s facilities, and the physician suggested he come over and try it out. A month or two following the conversation, Massengill went to S.M.A.R.T. and toured the facilities. The purpose of his initial visit was to assure himself that the equipment met his need, which was to get in better condition.

After he had been shown the facilities and the equipment, Massengill was given a Sports Specific Training and Advanced Rehabilitation Agreement and Release (Agreement and Release) to take home and review. Three days later, both Massengill and his wife executed the Agreement and Release, and they began using the facilities. Massengill was present at S.M.A.R.T. almost every day, and he had been using the lat-pull-down machine for nearly a month prior to his injury. He had not asked any questions about using the machine because he had used one previously. On March 13, 1996, Massengill was warming up on the machine, and he noticed that the pin holding the weights was shaped like a “T” rather than the longer “I” usually used. When Massengill pulled the bar down, the pin holding the weights popped out, and he fell over backwards, hitting [**5] his left hand and injuring his wrist.

On May 29, 1997, the Massengills filed their Complaint for Negligence and Damages. The first count of the Complaint for Negligence and Damages was couched in terms of alleged negligence causing injury to James Massengill, and the second count was couched in terms of recovery by Kaylea Massengill [*1134] for loss of consortium based upon her husband’s injuries. Various procedural steps, including discovery, followed the Answer by S.M.A.R.T., which included the affirmative defense of waiver and the affirmative defense that Kaylea Massengill’s claims were derivative of James Massengill’s claim. On October 3, 1997, there was filed by facsimile a Defendant’s Motion for Summary Judgment accompanied by a Memorandum in Support of Defendant’s Motion for Summary Judgment. Additional procedural steps ensued, and on February 2, 1998, the district court entered an Order Granting Defendant’s Motion for Summary Judgment.

The district court ruled that the exculpatory clause, including the release and waiver, was not ambiguous and was enforceable. Since the premise for the grant of the summary judgment by the district court was the language contained in the Agreement [**6] and Release, the district court ruled implicitly that any other issues of fact, genuine or not, were not material. The Massengills have appealed from the Order Granting Defendant’s Motion for Summary Judgment.

In Mercado v. Trujillo, 980 P.2d 824, 825-26 (Wyo. 1999), we summarized our rules with respect to review of summary judgments:

“‘When [HN1] a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court’s dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.'” Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). [**7] See also, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334, 336 (1983).

“A [HN2] summary judgment should only be granted where it is clear that there are no issues of material facts involved and that an inquiry into the facts is unnecessary to clarify the application of law. Johnson v. Soulis, Wyo., 542 P.2d 867 (1975). A material fact is one which has legal significance. Johnson v. Soulis, supra. It is a fact which would establish a defense. Wood v. Trenchard, Wyo.[,] 550 P.2d 490 (1976). [HN3] After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact, Gennings v. First Nat’l Bank of Thermopolis, Wyo., 654 P.2d 154 (1982), or come forward with competent evidence of specific facts countering the facts presented by the movant. Matter of the Estate of Brosius, Wyo., 683 P.2d 663 (1984). The burden is then on the nonmoving party to show specific facts as opposed to general allegations. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2727, p. 538. The material presented must be admissible evidence [**8] at trial. Conclusory statements are not admissible. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). We give the party defending the motion the benefit of any reasonable doubt.” Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93, 95 (1984).

Nowotny v. L & B Contract Industries, 933 P.2d 452, 455 (Wyo.1997) (quoting Thomas by Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1304 (Wyo.1985)).

More specifically and succinctly, with respect to this case, when review is sought of a summary judgment this Court must determine that there is no genuine issue of a material fact and the party prevailing in the district court is entitled to judgment as a matter of law. Utilization of summary judgment serves the purpose of eliminating formal trials where only questions of law are involved. [HN4] In accomplishing the review of a summary judgment resting upon a question [*1135] of law, our review is de novo and affords no deference to the district court’s ruling on that question. E.g., Roberts v. Klinkosh, 986 P.2d 153, 156 (Wyo. 1999); Gray v. Norwest Bank Wyoming, N.A., 984 P.2d 1088, 1091 (Wyo. 1999); [**9] Ahrenholtz v. Time Ins. Co., 968 P.2d 946, 949 (Wyo. 1998).

Our reading of the Agreement and Release convinces us that the intention of S.M.A.R.T. and the Massengills is expressed in clear and unequivocal language. The language clearly assigns the risk to members who agree to be liable for any and all risks. The Agreement and Release continues with an unequivocal statement that S.M.A.R.T. shall not be liable for any injuries or damages to any member or the member’s property, including those caused by the negligence of S.M.A.R.T. It continues with this language:

1. Any member using S.M.A.R.T. SPORTS facility shall undertake any and all risks. The member shall also be liable for any and all risks. S.M.A.R.T. SPORTS shall not be liable for any injuries or damage to any member, or the property of the member, or be subject to any claim, demand, injury or damages whatsoever, including, without limitation, those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents. The member, for himself/herself and on behalf of his/her executors, administrators, heirs, assigns, and assignees and successors, does hereby expressly forever [**10] waive, release and discharge S.M.A.R.T. SPORTS, its owners, officers, employees, agents, assigners and successors from all such claims, demands, injuries, damages, actions or causes of action.

The language of the Agreement and Release is broad, and specifically releases S.M.A.R.T. from claims and actions for negligence. Indeed, the Massengills do not assert that the agreement does not apply to this action; instead, their contention is that the agreement is not enforceable. In the absence of any genuine issue of a material fact with respect to the language of the Agreement and Release, the issue is a pure question of law with respect to whether the district court invoked and correctly applied the pertinent rules of law.

In Shepard v. Top Hat Land & Cattle Co., 560 P.2d 730, 732 (Wyo. 1977), the applicable rule was summarized:

[HN5] If the language of the contract is plain and unequivocal that language is controlling and the interpretation of the contractual provisions is for the court to make as a matter of law. The meaning of the instrument is to be deduced only from its language if the terms are plain and unambiguous. Mauch v. Ballou, Wyo., 499 P.2d 591 (1972); [**11] Craig v. Gudim, Wyo., 488 P.2d 316 (1971); Chandler-Simpson, Inc. v. Gorrell, Wyo., 464 P.2d 849 (1970); Flora Construction Company v. Bridger Valley Electric Association, Inc., Wyo., 355 P.2d 884 (1960); Barlow v. Makeeff, 74 Wyo. 171, 284 P.2d 1093 (1955).

This rule first was alluded to by this Court in Horvath v. Sheridan-Wyoming Coal Co., 58 Wyo. 211, 230, 131 P.2d 315, 321 (1942), and it has been consistently applied over the years, appearing most recently in Saulcy Land Co. v. Jones, 983 P.2d 1200, 1202 (Wyo. 1999).

[HN6] Exculpatory clauses or releases are contractual in nature, and we interpret them using traditional contract principles and considering the meaning of the document as a whole. Milligan v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 712 (Wyo. 1987); Schutkowski, 725 P.2d at 1059; Kelliher v. Herman, 701 P.2d 1157, 1159 (Wyo. 1985). The language of the Agreement and Release is clear in manifesting an intention to release S.M.A. [**12] R.T. and those involved with the facility from liability; it specifically states that S.M.A.R.T. will not be held liable for “those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents.” And, just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the entire membership application evidences no other rational purpose for which it could have been intended.”

The Massengills endeavor to avoid the release and waiver articulated in the Agreement and Release by arguing that it is not valid as a matter of public policy because the business of S.M.A.R.T. is appropriate for [*1136] public regulation, and the nature of the use of the equipment by Massengill is not material to the public policy or public regulation determination. We said in Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 956 (Wyo. 1999):

[HN7] In Wyoming, a contract limiting liability for negligence may be enforced only if it does not contravene public policy. Schutkowski v. Carey, 725 P.2d 1057, 1059-60 (Wyo.1986); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987); Brittain v. Booth, 601 P.2d 532, 535 (Wyo.1979). [**13]

In Schutkowski, 725 P.2d at 1060, this Court adopted from Colorado a four-part test for evaluating a negligence exculpatory clause. [HN8] The factors the court considers are: “(1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” A comparison of Massengill’s claim with these factors leads to the ineluctable conclusion that the district court’s decision was correct as a matter of law.

We said in Milligan, 754 P.2d at 1066, “[ [HN9] a] duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service.” We then adopted from California [HN10] a definition of a release agreement affecting the public interest, giving rise to a public duty, which is that it

“concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for [**14] some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it * * *. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.” (Emphasis added and footnotes omitted.) Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46, 6 A.L.R.3d 693 (1963).

Milligan, 754 P.2d at 1066. We also adopted a [HN11] list of examples of services which are typically subject to public regulation and which demand a public duty or are considered essential. The list includes common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities. Milligan, 754 P.2d at 1066.

Schutkowski was a case involving a sky diving injury, and we held that [HN12] a private recreational business does not qualify as one that owes a special duty to the public nor are its services of a special, highly [**15] necessary nature. Schutkowski, 725 P.2d at 1060. The services offered by S.M.A.R.T. to its members were those of a private recreational business which did not qualify as suitable for public regulation because they did not affect the public interest nor could they be considered as necessary or essential, and there was no greater duty to the public than existed in Schutkowski, Boehm or Milligan. The district court in its Order Granting Defendant’s Motion for Summary Judgment cites and relies upon decisions from other jurisdictions which have held that [HN13] exculpatory clauses in health club contracts do not violate public policy. Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 926 (Minn. 1982); Shields v. Sta-Fit, Inc., 79 Wn. App. 584, 903 P.2d 525, 528 (1995). We are persuaded that the approach of the courts in Minnesota and Washington is the correct rule.

Massengill further maintains that he joined S.M.A.R.T. pursuant to a doctor’s order, and as such was receiving an essential service; therefore, S.M.A.R.T. owed him a public duty that is subject to regulation. A casual conversation, at a drugstore one evening, with the doctor/equity [**16] owner of the S.M.A.R.T. facility hardly qualifies as a prescription. The doctor was not Massengill’s treating physician nor was he acting in that capacity; he engaged in the conversation as the owner of the facility and not a physician. Moreover, the record is devoid of evidence showing that on the day he was injured, Massengill was engaging in a rehabilitation program. He admitted joining S.M.A.R.T. to [*1137] get into better physical condition. That was the purpose of his membership at S.M.A.R.T., and it qualifies as a recreational activity and not a practical necessity. Based on Massengill’s own testimony, his membership was purely recreational and not pursuant to a doctor’s order. There is no genuine issue of material fact as to the purpose or nature of Massengill’s use of the S.M.A.R.T. facility that needs to be resolved.

The third factor in the Schutkowski test is whether the contract was fairly entered into. Since membership in a private recreational facility such as S.M.A.R.T. is purely optional and does not qualify as an essential service, no decisive bargaining advantage exists. “A disparity of bargaining power will be found when a contracting party with little or no bargaining [**17] strength has no reasonable alternative to entering the contract at the mercy of the other’s negligence.” Milligan, 754 P.2d at 1066. Similar to the releases in Milligan, which involved an optional ski race, and Schutkowski, which involved sky diving, no evidence suggests that Massengill was unfairly pressured into signing the agreement or was deprived of the opportunity to understand its implications. In fact, after Massengill initially toured the facilities, he was given the Agreement and Release to take with him, which he filled out at home and returned three days later.

In determining that the Order Granting Defendant’s Motion for Summary Judgment should be considered under principles of contract law, we held that the last factor of the Schutkowski test is satisfied in this case. The intent of the parties was clearly expressed in clear and unambiguous language. [HN14] We interpret exculpatory clauses or releases using traditional contract principles, and consider the meaning of the document as a whole. Milligan, 754 P.2d at 1067. Just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the [**18] entire membership application evidences no other rational purpose for which it could have been intended.”

In a further effort to avoid the Agreement and Release, the Massengills present an argument that the Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123 (Lexis 1999), creates a statutory duty on the part of providers of a sport or recreational opportunity because it preserves actions based upon negligence if damage or injury is not the result of an inherent risk of the sport or recreational opportunity. The Massengills rely upon Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995), and the distinction drawn in that case between primary assumption of risk and secondary assumption of risk. The thrust of this rather convoluted argument is that, if the conduct of the defendant comes within the category of secondary assumption of risk, a statutory duty is created by the language that preserves actions based on negligence. The Massengills then contend that the Agreement and Release cannot be enforced because it is contrary to the statutory duty. No authority is cited for that precise proposition, and we are satisfied that [HN15] the Recreation Safety Act does not foreclose [**19] the invocation of a contractual release or waiver for negligent conduct that is not released by the assignment of the inherent risk to the person participating in the sport or recreational opportunity under the statute. Indeed, the limited reach of the statute would suggest that a contractual release in addition to the statute would be prudent.

With respect to the claim of Kaylea Massengill for loss of consortium, her cause of action was included in the Order Granting Defendant’s Motion for Summary Judgment. She executed the same Agreement and Release that James Massengill signed. Furthermore, her claim for loss of consortium was derivative of James Massengill’s claim for injuries, and it fails when his claim fails. Verschoor v. Mountain West Farm Bureau Mut. Ins. Co., 907 P.2d 1293, 1301 (Wyo. 1995); Boehm, 748 P.2d at 708.

The only pertinent issue in this case was whether the exculpatory clause should be held to violate public policy and not enforced for that reason. The record reflects that Massengill’s participation was purely recreational and S.M.A.R.T. did not owe him a public duty. S.M.A.R.T. is not engaged in a type of business generally [**20] thought suitable for public regulation, and Massengill was engaged in a recreational activity not an activity pursuant to a physician’s order. The case [*1138] is correctly resolved as a matter of law under principles relating to contract, and the contractual language being clear and unambiguous, there are no genuine issues of material fact. The case is controlled by Schutkowski and the later cases that followed it. We affirm the district court’s Order Granting Defendant’s Motion for Summary Judgment.


Looking for a Tourism/Hospitality conference a little far afield?

Taylor’s University will host the 12th Asia Pacific CHRIE (ApacCHRIE) Conference in Kuala Lumpur from 21 – 24 May 2014. We welcome submission of papers on the following themes, and look forward to welcoming you to Kuala Lumpur next May.

 

12TH ASIA PACIFIC CHRIE (APacCHRIE) CONFERENCE 2014

Kuala Lumpur, MALAYSIA

Breaking Barriers Shifting Gears

Date: 21-24 May 2014

Venue: Sunway Resort Hotel, Bandar Sunway, Selangor, Malaysia

FIRST ANNOUNCEMENT & CALL FOR PAPERS

………………………………………………………………………………………………………

We are pleased to announce the “12th Asia Pacific CHRIE (APacCHRIE) Conference 2014” to be organized by Taylor’s University, Kuala Lumpur, Malaysia and welcome all delegates to this beautiful country.

Call For Papers

The conference will focus on a broad range of topics related to tourism and hospitality. The conference organizers invite papers, abstracts and presentations relevant to the theme of the conference “Breaking Barriers Shifting Gears”. Papers are also invited in the sub themes of:

  • Innovations of hospitality/tourism and sustainability
  • Marketing channels, issues and transformations/new trends of marketing channel in hospitality/tourism
  • Transformation of distribution channels and contemporary issues
  • Destination branding and promotion
  • Competition and cooperation
  • Tourist experience and human interactions
  • Consumer behaviour in hospitality/tourism
  • Public-private partnerships
  • Innovation in government and the economy
  • Innovation systems and the geography of innovation (national, subnational, international, others)
  • Social innovation and sustainability
  • Knowledge economies, knowledge management
  • Strategic organization and management
  • ICT and social networks
  • Language, culture, and globalization
  • Social work and social development
  • Community resilience and social capital
  • Sustainable tourism
  • Rural tourism and green tourism
  • Ethics, leadership, and corporate social responsibility
  • Other papers related to the theme of the Conference.

Who Should Attend?

  • Academics and educators in tourism/hospitality fields
  • Managers of hotels/restaurants/tourism businesses
  • Trainers in tourism/hospitality/restaurant fields
  • Tourism/hospitality researchers and industry consultants
  • Interregional organisations with interest in tourism/hospitality industry
  • Administrators of tourism/hospitality management educational programs
  • Tourism/hospitality/ restaurant industry executives and representatives of multinational firms
  • Financial institutions and tourism industry investors
  • Tourism policy makers and national tourism organisation directors
  • Students in tourism/ hospitality management

Abstracts Submission

  • Abstracts (three (3) pages extended abstract, typed, single-spaced and maximum 1,500 words) should be submitted for review and selection.
  • The abstractsshould summarize the key points of the paper and with a maximum of 6 keywords that define the subject matter.
  • The paper is reviewed based on the quality of the abstract. Thus, ensure a complete abstract is submitted.
  • Authors should write their name and indicate their affiliation (e.g. university name, country) only below the title of the paper.
  • Abstracts must be submitted using the Easychair system https://www.easychair.org/conferences/?conf=apacchrie2014
  • All the abstracts will be reviewed by the Scientific Paper Review Committee and authors of accepted abstracts will be invited to submit full papers through the above link.

Deadlines for Submission

Abstracts (3 page extended abstract) Submission: 31 January 2014

Full Paper Submission: 21 April, 2014

  • Once the abstract is accepted, at least one of the authors must register and present the paper at the Conference.
  • Camera ready versions of the accepted papers will be distributed to all the conference delegates via CD-ROM (with ISBN) or USB drive.
  • Best papers will be competitively selected and authors will be acknowledged with a plaque and certificate.
  • Selected papers will be considered for publication in Sponsor Journals of the Conference.

Full Papers Submission

  1. Manuscripts submitted to 12th APacCHRIE Conference 2014 should be original contribution and should not have been previously published nor under consideration for publication elsewhere. Individual and multiple authors are welcome to contribute.
  2. Manuscripts must be written in English.
  3. The abstract should summarize the key points of the paper with a maximum of 6 keywords that define the subject matter.
  4. Manuscripts should normally not exceed 5,000 words.
  5. All contributions should follow the format and style described in the Publication Manual of the American Psychological Association (APA, 6th edition).
  6. All manuscripts should be typed in MS WORD format, single-spaced with one-inch margins and using 12-point Times New Roman font (exception of tables 10-point Times New Roman).
  7. Manuscripts should include the following major sections & sequence: title, affiliation of the authors (e.g. university name, country), abstract (not more than 500 words), keywords (3-6 words only), main body (Introduction, Literature Review, Methodology, Findings, Conclusion) and references.
  8. The main body or text should be divided into headings and subheadings. Main headings should be centred on the page and subheadings placed at the left margin.
  9. Tables and figures (300dpi) should be clearly labelled, in the format and style described in APA (6th edition) and suitable for direct reproduction.
  10. References should follow the format and style described in APA (6th edition).

Preliminary Programme

Date Time Programme
21 MAY 2014 (WED) 9.00am – 12.00pm APacCHRIE Board Meeting
12.00pm – 2.00pm APacCHRIE Board Meeting Lunch
2.00pm – 7.00pm Pre-Conference Registration
2.00pm – 7.00pm Pre-Conference Tour:
Kuala Lumpur City Tour
(inclusive of Conference package for registered delegates)
7.00pm – 9.00pm Opening Cocktail Reception
22 MAY 2014 (THU) 8.30am-6.00pm Conference Registration
9.00am –9.30am Opening Ceremony
9.30am – 10.15am Opening Address and Keynote Speech 1
10.15am – 10.45am Refreshment Break & Press Conference
10.45am– 11.30am Keynote Speech 2
11.30am – 12.15pm Keynote Speech 3
12.15pm – 2.00pm Lunch
2.00pm – 3.30pm Concurrent Session 1
3.30pm – 4.00pm Refreshment Break & Poster Session 1
4.00pm – 5.30pm Concurrent Session 2
7.00pm – 13.00pm Conference Dinner
23 MAY 2014 (FRI) 8.30am-6.00pm Conference Registration
9.00am –10.30am Panel Session 1 (3 panellists)
10.30am – 11.00am Refreshment Break & Poster Session 2
11.00am – 12.30pm Concurrent Session 3
12.30pm – 2.00pm Lunch
2.00pm – 3.30pm Concurrent Session 4
3.30pm – 4.00pm Refreshment Break
4.00pm – 5.30pm Panel Session 2 (3 panellists)
7.00pm – 10.30pm Gala Dinner & Cultural Show
24 MAY 2014 (SAT) 9.00am –10.30am Panel Session 3 (3 panellists)
10.30am – 11.00am Refreshment Break
11.00am – 12.30pm APacCHRIE General Meeting
Closing Ceremony
Best Paper Award
2015 APacCHRIE Conference Announcement
12.30pm – 2.00pm Closing Lunch
2.00pm – 8.00pm Post-Conference Tour 1: Putrajaya – A Heritage of the Future(cost to be announced later)
25 MAY 2014 (SUN) 9.00am –8.00pm Post-Conference Tour 2: Malacca – A Historical & Heritage Trail(cost to be announced later)
25-28 MAY 2014 Optional Tours(would be arranged by appointed Tour Companies)3D/2N Langkawi, Kedah

3D/2N Redang Island, Trengganu

4D/3N Mulu National Park, Sarawak

4D/3N Kinabalu National Park, Sabah

(cost to be announced later)

Registration

All presenters and participants are invited to register for the conference. The conference registration fee includes participation in all conference sessions, participation in all scheduled meals, functions (including the opening cocktail), and refreshment breaks, and a copy of the conference proceedings and programme will be available via CDROM/USB drive at the conference. Registration fees are shown below:

Type Rates
Early Registration
(On or before 21 April 2014)
· Member: USD 320 (RM 960)· Non-Member: USD 360 (RM 1,080)

· Spouse: USD 180 (RM 540)

Regular Registration · Member: USD 360 (RM 1,080)· Non-Member: USD 440 (RM 1,420)

· Spouse: USD 200 (RM 600)

Postgraduate Students
(Registered in Overseas Universities)
· USD 240 (RM 720) (before 21 April 2014)· USD 300 (RM 900) (after 21 April 2014)
Postgraduate Students
(Registered in Malaysian Universities)Tourism Educators Association of Malaysia (TEAM) Active Members
· USD 200 (RM 600) (before 21 April 2014)· USD 250 (RM 750) (after 21 April 2014)

Note:

  • Registration Forms will be sent via email and/or are downloadable from the conference website.
  • Full-time students are required to produce a letter or certificate of full-time status at the time of registration.
  • Direct Deposit via Interbank or Interbranch – Bank : OCBC Bank (Malaysia) Berhad – Account Type: Current A/C – Account Name: Taylor’s University Sdn Bhd – Account No: 701-130855-6
  • Telegraphic Transfer (TT) Bank : OCBC Bank (Malaysia) Berhad – Account No: 701-130855-6 – Bank Address: Ground Floor, KL Main Branch, Jalan Tun Perak, 50050 Kuala Lumpur, Malaysia – Swift Code: OCBCMYKLXXX
  • Local Bank Cheque make payable to : Taylor’s University Sdn Bhd
  • PayPal
  • A photocopy of the remittance slip must be emailed with the registration form to the Secretariat. All payment for the conference registration must be made in USD for International delegates and RM for Malaysian delegates.
  • Cancellation policy: If cancelled before 21 April 2014, a refund will be made less USD 100 (RM 300) administrative charge. Notice of cancellation must be received in written form. No refund after 21 April 2014.
  • Registration will only be confirmed upon receipt of full payment.

Publication Opportunities

Asia-Pacific Journal of Innovation in Hospitality and Tourismhttp://www.taylors.edu.my/apjiht

ISSN: 2289-1471

European Journal of Tourism Researchhttp://ejtr.vumk.eu/

ISSN: 1314 – 0817

International Journal of Contemporary Hospitality Managementhttp://www.emeraldinsight.com/journals.htm?issn=0959-6119

ISSN: 0959-6119

International Journal of Culture, Tourism and Hospitality Researchhttp://www.emeraldinsight.com/products/journals/journals.htm?id=ijcthr

ISSN: 1750-6182

Journal of Hospitality Marketing and Managementhttp://www.informaworld.com/smpp/title~content=t792306863~db=all

ISSN: 1936-8631

Journal of Travel Researchhttp://jtr.sagepub.com/

ISSN: 0047-2875

Managing Service Qualityhttp://www.emeraldinsight.com/products/journals/journals.htm?id=msq

ISSN: 0960-4529

Tourism Review http://www.emeraldinsight.com/products/journals/journals.htm?id=tr

ISSN: 1660-5373

Worldwide Hospitality and Tourism Themeshttp://www.emeraldinsight.com/products/journals/journals.htm?id=whatt

ISSN: 1755-4217

TEAM Journal of Hospitality & Tourismhttp://teamjournalht.wordpress.com

ISSN: 1823-4003

Journal of Vacation Marketinghttp://www.uk.sagepub.com/journals/Journal201732

ISSN: 1356-7667

Venue

Sunway Resort Hotel & Spa,

Persiaran Lagoon, Bandar Sunway

46150 Petaling Jaya, Selangor Darul Ehsan, Malaysia

Tel +603-7492 8000 Fax +603-7492 8001

enquirysrhs

www.kualalumpur.sunwayhotels.com

Contact

Dr. Chong Li Choo, Conference Secretariat

School of Hospitality, Tourism and Culinary Arts,

Taylor’s University, Lakeside Campus,

No. 1, Jalan Taylor’s, 47500 Subang Jaya, Selangor, Malaysia

Tel: +603-56295000; Fax: +603-56295001

apac-chrie

www.taylors.edu.my/tchtevents2014/apacchrie

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Government Regulation of our Industry and how it Starts

All of a sudden a government agency decides you need to be regulated.

The cause of government regulation is not statistical. Government regulation starts when the press is notified and picks up the cause, probably because of a slow news week or someone has a contact in the government. Very little statistical data is collected by any government agency. Hospitals collect data (for various medical and government groups) on catastrophic injuries. Catastrophic injuries are life changing injuries. Those are things like major facial injuries, concussions of a certain degree, major broken bones, etc.

An example is broken wrists which are not catastrophic or life changing. Snowboarding broken wrists have not surfaced yet as an issue to be followed. There are estimated to be about 1 broken wrist per 1000 skier days so that is 1 per 300 snowboarders. That is a fairly high number injuries for any sport, yet because broken wrists fall under the radar no one does much about it.

The other exception is studies either government or educational that collect data in some area. Those are usually limited by economics to a smaller geographic area or a limited number of hospitals. Many times there is a review of the information the government all ready collected.

How do things come to the attention of an agency in the government? In most cases angry family members or victims keep pushing either the press or a contact they have in government to “do something.” A lot of times this occurs because there is no other relief available, such as compensation or no one has dealt with the injury/fatality. Momentum is created and some agency is tasked with “doing something.”

Once an agency is tasked it is very difficult to stop or slow its momentum, especially if it must report to the press or a legislator. Two effective ways are time and the law. Some agencies can grind down to a stop if they are too unfamiliar and reach too much opposition to their investigation. However this is not guaranteed and very risky.

A better way is to show the agency does not have jurisdiction over the issue. By this you argue that the language that authorizes the agency does not allow the agency to move into this area. Another way is to argue the acts of the agency are illegal because it violates some other law.

Either way, if an injury or death meets public outcry, you need to get involved or face governmental review forever.

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