N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 116 A.3d 1060, 2015 N.H. LEXIS 34

Posted: July 19, 2021 | Author: Recreation Law | Filed under: Legal Case, New Hampshire, Search and Rescue (SAR) | Tags: act negligently, argues, award damages, Costs, Damages, dislocated, Hike, Hiking, hip, ledge, memorandum, Mountains, Negligence, negligent act, Prior Injury, reasonable cost, Rescue, rock, SAR, Search and Rescue, Standard of Care, Trail, Trial court, winds | Leave a comment

N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 116 A.3d 1060, 2015 N.H. LEXIS 34

Supreme Court of New Hampshire

January 15, 2015, Argued; April 30, 2015, Opinion Issued

No. 2014-158

New Hampshire Fish and Game Department v. Edward Bacon

Prior History: [***1] 6th Circuit Court — Concord District Division.

NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

NH1.[] 1.

Negligence > Standard of Care > Ordinary and Reasonable Care

The search and rescue response statute plainly is intended to create a statutory cause of action in favor of the New Hampshire Fish and Game Department to recover the costs it incurs in conducting a search and rescue operation for a person whose negligent conduct required such an operation. Whether or not a common law duty exists, a plaintiff may maintain an action directly under a statute if a statutory cause of action is either expressed or implied by the legislature. Also plain is that the statute imposes as the duty of care the common law standard of negligence, which has been defined as how a reasonable person would be expected to act under the same circumstances. Thus, in order to avoid liability for search and rescue costs, the defendant must have acted in a manner that was reasonable under all of the circumstances. Accordingly, the trial court did not err in using the common law standard of negligence to evaluate defendant’s conduct under the statute. RSA 206:26-bb.

NH2.[] 2.

Appeal and Error > Standards of Review > Generally

The court will uphold the trial court’s findings and rulings unless they lack evidentiary support or are legally erroneous. It is within the province of the trial court to accept or reject, in whole or in part, whatever evidence was presented, including that of the expert witnesses. The standard of review is not whether the court would rule differently than the trial court, but whether a reasonable person could have reached the same decision as the trial court based upon the same evidence. Thus, the court defers to the trial court’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence.

NH3.[] 3.

Negligence > Proceedings > Generally

In determining that a hiker was liable under the search and rescue response statute for his rescue costs, the trial court properly found that he was negligent when he had undergone multiple hip surgeries, had an artificial hip that had dislocated five times, had trained in a city park that did not remotely resemble the challenging mountain terrain he [*592] would experience, had continued his hike despite the fact that bad weather had been forecast days in advance and when he encountered high winds and rain early on, and chose to jump backward over a rock ledge he was unable to pass. RSA 206:26-bb.

NH4.[] 4.

Negligence > Proximate Cause > Tests and Standards

To establish proximate cause a plaintiff must show that the defendant’s conduct caused or contributed to cause the harm.

NH5.[] 5.

Damages > Practice and Procedure > Generally

In reviewing damage awards, the court will consider the evidence in the light most favorable to the prevailing party. Furthermore, the court will not disturb the decision of the fact-finder unless it is clearly erroneous. The law does not require absolute certainty for recovery of damages. The court does, however, require an indication that the award of damages was reasonable.

NH6.[] 6.

Negligence > Damages > Particular Cases

The damage award of $9,186.38 against a rescued hiker who was found to have been negligent under the search and rescue response statute was reasonable when it represented the costs for the 15 people who participated in the rescue, including overtime, mileage, and benefits. The hiker’s argument that the Fish and Game Department employees were on duty and would have been paid regardless of their participation in the rescue failed to take into account the overtime paid, and also ignored the fact that by being diverted to the rescue operation, the employees were unable to perform their other assigned duties. RSA 206:26-bb.

NH7.[] 7.

Environment and Natural Resources > Game and Fish > Particular Matters

The search and rescue response statute specifically states that the New Hampshire Fish and Game Department is to receive the reasonable costs associated with a rescue. Nothing in the statute otherwise limits the Department’s recovery, and the court will not add limiting language to the statute that the legislature did not include. RSA 206:26-bb.

NH8.[] 8.

Statutes > Generally > Legislative History or Intent

A court interprets legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.

Counsel: Joseph A. Foster, attorney general (Philip B. Bradley, assistant attorney general, on the brief and orally), for the State.
Seufert, Davis & Hunt, PLLC, of Franklin (Brad C. Davis on the brief and orally), for the defendant.

Judges: LYNN, J. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

Opinion by: LYNN

Opinion

[**1062] Lynn, J. The defendant, Edward Bacon, appeals an order of the Circuit Court (Boyle, J.), following a bench trial, finding that he violated RSA 206:26-bb (2011) (amended 2014) by acting negligently while hiking, so as to require a search and rescue effort by the plaintiff, the New Hampshire Fish and Game Department (Department), and that he, thus, was responsible to the Department for the reasonable costs associated with the search and rescue. We affirm.

The following facts are established by the record. On September 16, 2012, the defendant began a five-day solo hiking trip in the White [*593] Mountains, during which he planned to hike several mountains with summits over 5,000 feet. At the time of the hike, the defendant was fifty-nine years old, had undergone four hip surgeries since 2005, and had an artificial hip that had dislocated on five occasions, twice [***2] during the prior year. The defendant also had a “bad back” and was taking a variety of medications for multiple ailments. In preparation for his hike, the defendant trained in a city park in Michigan, which had 250-foot hills and some “gravelly” spots. The conditions on the Franconia Ridge Trail between Liberty and Little Haystack Mountains, on which the rescuers eventually located the defendant, are rocky and steep in various locations.

[**1063] On September 18, the defendant left the Liberty Springs campsite to begin a planned hike to the summits of Liberty, Little Haystack, Lincoln, and Lafayette Mountains; he planned to end at the Greenleaf Hut, which provides overnight accommodations to hikers. Days in advance, stormy weather had been forecast for the morning the defendant began the hike, and rain began a few hours after he departed the campsite. A bit later, the defendant’s pack cover “on its own accord came off and flew away in the wind.” Sergeant Brad Morse, a Conservation Officer with the Department who helped rescue the defendant, testified that the winds were among the worst he had ever experienced in that part of the Franconia Ridge Trail and had repeatedly blown him to the ground. [***3] Sometime that morning, the defendant slipped on loose gravel, slid down the trail, hit his pack on a rock, and lost his tent which fell down a ravine. At noon time, the defendant took a photograph of two other hikers he encountered on the trail, both of whom were wearing full rain gear with their hoods over their heads.

At around 1:00 p.m., the defendant encountered a waist-high rock ledge that he needed to traverse in order to continue on the trail. He attempted to jump backward up onto the ledge and, in the process, fell and dislocated his hip. Approximately one hour later, Morse received an alert that a hiker had dislocated his hip and needed assistance. He responded immediately and eventually located the defendant on the trail between Little Haystack and Lincoln Mountains. Morse testified that when he found the defendant his left leg was flexed and internally rotated, the very position that the defendant’s orthopedic surgeon had warned him to avoid due to his hip replacement.

Approximately fifteen Department personnel and thirty-five volunteers participated in the defendant’s rescue during the afternoon and evening of September 18 and into the early morning hours of September 19. [***4] When Lieutenant James Kneeland visited the defendant in the hospital after his rescue, the defendant explained that he had misread the weather report: he thought the forecast called for 30-40 mph winds with gusts up to 70 mph and heavy rain, instead of the actual forecast of 30-40 mph winds increasing [*594] to 70 mph and heavy rain. The defendant also told Kneeland that he had caught his left leg while attempting to jump backward up onto a rock ledge and dislocated his artificial hip when he fell.

The defendant testified to a different version of events at trial. For instance, he testified that he was unaware of the weather conditions on the day of the hike because he did not have his reading glasses with him, and that he did not encounter any significant rain or wind. Additionally, he testified that when he dislocated his hip he had not fallen, as he told Kneeland, but instead had jumped backward over a rock ledge and swung his legs up while perfectly maintaining his left leg to avoid flexion and internal rotation.

At the close of the trial, the court accepted closing memoranda from both parties. Thereafter, the court found for the Department “for all of the reasons cited in the plaintiff’s [***5] closing memorandum,” and awarded the Department $9,334.86 in damages. The defendant filed a motion to reconsider, to which the Department objected. The court denied the defendant’s motion, stating that “[t]he actions of the defendant were a gross deviation from those of a reasonable person that surpasses the [negligence] standard required.” This appeal followed.

The defendant raises three arguments on appeal. First, he argues that the trial [**1064] court erred by judging his conduct under an ordinary negligence standard which, he asserts, is not the standard mandated by RSA 206:26-bb. Second, he argues that there was insufficient evidence to support the court’s finding that his actions while hiking were negligent, thus necessitating his rescue by the Department. Third, he argues that the court’s damages award was improper under RSA 206:26-bb because the award included recovery for expenses that the Department would have incurred regardless of its effort to rescue him. We address each argument in turn.

The defendant first argues that the court erred by applying the ordinary negligence standard to determine his liability under RSA 206:26-bb. He characterizes this standard as “incorrect,” and asserts that the court should instead have [***6] applied “the full and complete” civil standard of negligence, although he fails to articulate how this standard differs from the standard of “ordinary negligence.”

To resolve this issue we must engage in statutory interpretation. HN1[] “Statutory interpretation is a question of law, which we review de novo.” [*595]
Appeal of Local Gov’t Ctr., 165 N.H. 790, 804, 85 A.3d 388 (2014). “In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.” Id. “We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning.” Id. “We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. “We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Id.

NH[1][] [1] We have not previously had occasion to construe the search and rescue response statute. It provides, in pertinent part:

HN2[] I. [A]ny person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department [***7] for the reasonable cost of the department’s expenses for such search and rescue response. The executive director shall bill the responsible person for such costs. Payment shall be made to the department within 30 days after the receipt of the bill, or by some other date determined by the executive director. If any person shall fail or refuse to pay the costs … the department may pursue payment by legal action … .

RSA 206:26-bb. HN3[] This statute plainly is intended to create a statutory cause of action in favor of the Department to recover the costs it incurs in conducting a search and rescue operation for a person whose negligent conduct required such an operation. See Marquay v. Eno , 139 N.H. 708, 714, 662 A.2d 272 (1995) (“Whether or not a common law duty exists, … a plaintiff may maintain an action directly under [a] statute if a statutory cause of action is either expressed or implied by the legislature.”). Also plain is that the statute imposes as the duty of care the common law standard of negligence, which we have defined as how a reasonable person would be expected to act under the same circumstances. See Gelinas v. Metropolitan Prop. & Liability Ins. Co., 131 N.H. 154, 161, 551 A.2d 962 (1988). Thus, in order to avoid liability for search and rescue costs, the defendant must have hiked in a manner that was reasonable under [***8] all of the circumstances. Accordingly, we hold that the trial court did not err in using the common law standard of negligence to [**1065] evaluate the defendant’s conduct under RSA 206:26-bb.

The defendant next argues that there was insufficient evidence upon which to find that he acted negligently, resulting in his need for rescue by [*596] the Department. In particular, the defendant takes issue with the fact that the trial court’s order stated that it found for the Department “for all of the reasons cited in the plaintiff’s closing memorandum.” He asserts that, in so doing, the court improperly adopted as its findings the facts recited in the Department’s memorandum — which facts, he claims, are not supported by the evidence. We disagree.

NH[2][] [2] HN4[] We will uphold the trial court’s findings and rulings unless they lack evidentiary support or are legally erroneous. Cook v. Sullivan, 149 N.H. 774, 780, 829 A.2d 1059 (2003). “It is within the province of the trial court to accept or reject, in whole or in part, whatever evidence was presented, including that of the expert witnesses.” Id. “Our standard of review is not whether we would rule differently than the trial court, but whether a reasonable person could have reached the same decision as the trial court based upon the same [***9] evidence.” Id. “Thus, we defer to the trial court’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence.” Id.

We first consider the defendant’s argument that the trial court’s findings are not supported by the evidence because the court adopted the Department’s closing memorandum, which he claims relied upon findings that were also not supported by the evidence. Having reviewed both the evidence presented at trial and the Department’s closing memorandum, we reject the defendant’s argument that the Department’s closing memorandum was not supported by the evidence.

NH[3][] [3] We next consider whether there was sufficient evidence to support the trial court’s determination that the defendant acted negligently. As previously stated, a person violates RSA 206:26-bb by not acting as a reasonable person would have acted under the same circumstances. The defendant argues that he did not act negligently because he was prepared for the conditions, physically capable, had proper equipment, and had adequately planned his hike. The trial court concluded to the contrary when it found that the defendant did not act as a reasonably [***10] prudent hiker would have acted under the same circumstances. The following facts, recited by the Department in its memorandum and based upon the evidence, support the trial court’s conclusion: the defendant had undergone multiple hip surgeries; he had an artificial hip that had dislocated five times, twice within the year prior to his hike; he had trained in a city park that did not remotely resemble the challenging terrain he would experience in the White Mountains; he had continued his hike despite the fact that bad weather had been forecast days in advance and that he encountered high winds and rain early into his hike; and he chose to jump backward over a rock ledge he was unable to pass, despite his artificial hip and experience with hip dislocation.

[*597] NH[4][] [4] To the extent that the defendant argues that his injury was not foreseeable, we agree with the trial court’s conclusions that the defendant’s injury was foreseeable and directly caused his need to be rescued by the Department. See Estate of Joshua T. v. State , 150 N.H. 405, 408, 840 A.2d 768 (2003) (stating that HN5[] to establish proximate cause a plaintiff must show “that the defendant’s conduct caused or contributed to cause the harm”). For the foregoing reasons [**1066] we conclude that the trial court’s determination [***11] that the defendant acted negligently does not lack evidentiary support and is not legally erroneous. See Cook , 149 N.H. at 780. Accordingly, we uphold the trial court’s ruling.

Finally, the defendant argues that the court’s damages award was improper because it included wages and mileage for on-duty Department officers who would have been paid regardless of their participation in the rescue operation. In essence, he claims that the damages provide a windfall to the Department. We disagree.

NH[5][] [5] HN6[] “In reviewing damage awards, we will consider the evidence in the light most favorable to the prevailing party.” Gallentine v. Geis, 145 N.H. 701, 703, 765 A.2d 696 (2001) (quotation and brackets omitted). “Furthermore, we will not disturb the decision of the fact-finder unless it is clearly erroneous.” Id. (quotation omitted). “The law does not require ‘absolute certainty’ for recovery of damages.” Id. (quotation omitted). “We do, however, require an indication that the award of damages was reasonable.” Id.
RSA 206:26-bb states that “any person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department for the reasonable cost of the department’s expenses for such search and rescue response.” (Emphasis [***12] added.)

NH[6][] [6] The trial court awarded $9,186.38 in damages to the Department, plus costs and interest. At trial, Kneeland testified that this amount represented the Department’s costs for the fifteen personnel who participated in the rescue, and included overtime, mileage, and benefits. These figures were contained in a document entitled “Search and Rescue Mission Report,” which was admitted by stipulation as a full exhibit. This detailed, itemized report, when viewed in the light most favorable to the Department, indicates that the trial court’s damages award represented the “reasonable costs” associated with the rescue, as required by RSA 206:26-bb.

NH[7,8][] [7, 8] We reject the defendant’s argument that this sum provides a windfall to the Department because certain officers were on duty and thus would have been paid regardless of their participation in his rescue. Not only does this argument fail to take into account the overtime paid to [*598] Department employees who would not have worked in the absence of the rescue, but it also ignores the fact that, by being diverted to the rescue operation, Department employees were unable to perform their other assigned duties. HN7[] The statute specifically states that the Department is [***13] to receive the “reasonable costs” associated with the rescue. RSA 206:26-bb. Nothing in the statute otherwise limits the Department’s recovery, and we will not add limiting language to the statute that the legislature did not include. See Appeal of Local Gov’t Ctr., 165 N.H. at 804 (HN8[] “We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.”). Because the trial court’s damages award of $9,186.38, plus costs and interest, is reasonable, and thus is not clearly erroneous, we uphold it.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, and Bassett, JJ., concurred.

Even hikers sue for their injuries.

Posted: October 21, 2019 | Author: Recreation Law | Filed under: Adventure Travel, Assumption of the Risk, California | Tags: #Tour, Acknowledgement of Risk, Adventure travel, assumption of the risk, Exploratin, Hiking, Machu Pichu, Open and Obvious, Peru, Raining, Steps, stone steps, Uneven Terrain | Leave a comment

Although I would guess this is a subrogation claim because the plaintiff is now a quadriplegic.

Citation: Kalter, et al., v. Grand Circle Travel, et al., 631 F.Supp.2d 1253 (C.D.Cal. 2009)

State: California, United States District Court, C.D. California

Plaintiff: Jill and Scott Kalter

Defendant: Grand Circle Travel

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: for the defendant

Year: 2009

Summary

The plaintiff fell trying to climb wet stone steps in Machu Pichu. She sued the travel agency she hired to take her there and lost. Climbing wet stones is an open and obvious risk and the doctrine of assumption of the risk prevented the plaintiff’s recovery.

Facts

Grand Circle is a tour operator that arranges vacation packages to destinations around the world. Jill Kalter (” Kalter” ) purchased a Grand Circle ” Amazon River Cruise & Rain Forest” tour, along with an optional post-trip extension to visit the Inca ruins at Machu Picchu. Prior to departing on her trip, Kalter received from Grand Circle an itinerary of the Machu Picchu trip extension (the ” Itinerary” ), which stated that her group would visit Machu Picchu on two consecutive days, and that on the second day she would have the option of remaining with a guide or exploring the ruins on her own. The Itinerary also stated: ” [t]hese Inca sites are not like ancient squares in Europe; they are spread out over steep hillsides with large stone steps and uneven surfaces…. In the ruins, there are no handrails some places where you might like one.” Kalter received and read the itinerary prior to departing on her trip. In addition, the tour guide, Jesus Cardenas, distributed a map of Machu Picchu to the tour participants prior to entering the park. The map includes a section entitled ” Visit Regulations,” which states, among other things, ” Do not climb the walls,” and ” Follow only designated routes according to arrows.”

It was raining on both days Kalter was at Machu Picchu. The first day, she remained with Cardenas and walked on the stone paths The second day, she opted to explore on her own, and ventured off the established paths. states that he gave verbal warnings to the group to use caution due to wet and slippery conditions. Kalter states that she did not hear Cardenas give these warnings, but that she ” has no reason to doubt” that he did so. Kalter went to an area known as the ” terraces,” filled with vertical rock walls that contain small stone protrusions called ” floating steps.” Some of these terraces are along paths color-coded by length, and no paths at Machu Picchu require traversing floating steps. Approximately one hour after venturing out on her own, Kalter became lost and disoriented, and was concerned about connecting with her group so that she would not miss the train. In an effort to get a better view of where she was, Kalter stepped up onto the bottom two floating steps of a vertical wall. Kalter did not think this was a dangerous act. As a result, Kalter fell and suffered serious injuries, and is now a quadriplegic.

The defendant moved for summary judgment, which was granted.

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

The defense raised by the plaintiff’s was assumption of the risk.

The doctrine of primary assumption of the risk applies where ” the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” To determine if primary assumption of the risk applies, courts look to the nature of the activity, and the parties’ relationship to that activity. The question turns on whether the plaintiff’s injury is within the ” inherent” risk of the activity. A risk is inherent to an activity if its elimination would chill vigorous participation in the activity and thereby alter the fundamental nature of the activity. Accordingly, ” the doctrine of primary assumption of risk applies where ‘ conditions or conduct that otherwise might be viewed as dangerous often are an integral part’ of the activity itself.” When primary assumption of the risk applies, a defendant is only liable for a plaintiff’s injuries ” if the defendant ‘ engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity’ or increases the inherent risk involved in the activity.”

However…

The court found that inherent in the activity of hiking on uneven terrain among ancient ruins is the risk of falling and becoming injured.

The court then looked at the information the plaintiff received prior to going to Machu Picchu.

The Itinerary Kalter received prior to the tour informed her that the Inca sites at Machu Picchu ” are spread out over steep hillsides with large stone steps and uneven surfaces.” (Itinerary 65.) Eliminating tour participants’ access to these large stone steps and uneven surfaces in an attempt to protect against the risk of falling would eliminate the ability to view the Inca sites, and thus ” alter the fundamental nature of the activity.”

…Kalter did not fall while engaging in the activities condoned by Defendants-she chose to leave the established stone pathway, and further endangered herself by stepping onto the floating steps. Accordingly, the Court finds that primary assumption of the risk applies to Kalter’s injuries from falling while hiking at Machu Picchu.

The defendant would be liable for the plaintiff’s injuries only if the defendant’s conduct was so reckless as to be totally outside the range of the ordinary activity involved in hiking among ancient ruins or uneven terrain.

The plaintiff argued that the defendant was liable for encouraging the plaintiff to roam the ruins on her own.

…Grand Circle’s act of allowing Kalter to explore on her own areas she had not been to with Cardenas was not ” so reckless as to be totally outside the range of ordinary activity” involved in the excursion, nor did it increase the inherent risk of falling and sustaining injury involved in hiking in this region.

The next issue was whether or not the defendant had a duty to warn the plaintiff of the dangers equally obvious to both the plaintiff and others. The plaintiff admitted it was raining and admitted the steps were wet. The map she received told her not to climb the walls.

The court found the risks of the floating steps the plaintiff climbed leading to her fall were open and obvious, and she assumed the risk when climbing on them. “Moreover, numerous courts have held that tour companies and guides have no duty to warn of obvious dangers their customer’s encounter on trips.” Consequently, the defendant had no duty to warn the plaintiff of the dangers of climbing on the steps that lead to her fall.

The court held for the defendant.

So Now What?

The plaintiff was a quadriplegic, so I suspect here health or disability insurance carrier started the lawsuit to recover the paid on behalf of the plaintiff. Alternatively, the plaintiff could have started the litigation because so much money was involved if they won that it might have been a lottery.

However the simple fact the plaintiff fell while on her own exploring, a ruin in Peru does not give rise to liability in this case.

What keeps coming to the surface in cases over the past couple of years is the defense of assumption of the risk. Looking at this from a different perspective. The more you educate your client, the less likely you will be sued and the less likely you will lose that lawsuit.

I’ve been saying that for more than thirty years, and it seems to come back with greater defenses and benefits for both the guests and the outfitters.

What do you think? Leave a comment.

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Kalter, et al., v. Grand Circle Travel, et al., 631 F.Supp.2d 1253 (C.D.Cal. 2009)

Posted: October 9, 2019 | Author: Recreation Law | Filed under: Adventure Travel, Assumption of the Risk, California | Tags: assumption of the risk, Climbing, Hiking, Machu Picchu, Open and Obvious, Peru, stone steps, tour operator, Walking | Leave a comment

Kalter, et al., v. Grand Circle Travel, et al., 631 F.Supp.2d 1253 (C.D.Cal. 2009)

631 F.Supp.2d 1253 (C.D.Cal. 2009)

Jill Kalter, et al., Plaintiffs,

Grand Circle Travel, et al., Defendants.

No. CV 08-02252 SJO (AGRx).

United States District Court, C.D. California.

June 24, 2009

David B. Leichenger, Jon Matthew Steiner, Levitt Leichenger and Aberle, Beverly Hills, CA, for Plaintiffs.

John S. Murray, Mary Agnes Watson, Walsworth Franklin Bevins & McCall LLP, Orange, CA, Robert Mueller, Rodney E. Gould, Rubin Hay and Gould PC, Framingham, MA, for Defendants.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

[Docket No. 57]

S. JAMES OTERO, District Judge.

This matter is before the Court on Defendants Grand Circle, LLC (erroneously sued as Grand Circle Travel, Overseas Adventure Travel and Overseas Adventure Travel Partners, Inc.) and Grand Circle Corporation’s (collectively, ” Grand Circle” ) Motion for Summary Judgment, filed May 13, 2009. Plaintiffs Jill and Scott Kalter (collectively, ” Plaintiffs” ) filed an Opposition, to which Grand Circle replied. The Court found this matter suitable for disposition without oral argument and vacated the hearing set for June 1, 2009. See Fed.R.Civ.P. 78(b). For the following reasons, Grand Circle’s Motion is GRANTED.

I. BACKGROUND

Grand Circle is a tour operator that arranges vacation packages to destinations around the world. (Olson Decl., filed as Gould Decl. Ex D, ¶ ¶ 2, 8; Pls.’ Separate Statement of Undisputed and Disputed Material Fact (” Statement” ) ¶ 1.) Jill Kalter (” Kalter” ) purchased a Grand Circle ” Amazon River Cruise & Rain Forest” tour, along with an optional post-trip extension to visit the Inca ruins at Machu Picchu. (Olson Decl. ¶ 13; Pls.’ Statement ¶ 2.) Prior to departing on her trip, Kalter received from Grand Circle an itinerary of the Machu Picchu trip extension (the ” Itinerary” ), which stated that her group would visit Machu Picchu on two consecutive days, and that on the second day she would have the option of remaining with a guide or exploring the ruins on her own. (Kalter Dep., filed as Gould Decl. Ex. A, 35:5-35:7, 36:15-20; 44:19-45:22; Itinerary, filed as Leichenger Decl. ” Kalter Dep. Ex. 20″ ; Pls.’ Statement ¶ ¶ 3-4.) The Itinerary also stated: ” [t]hese Inca sites are not like ancient squares in Europe; they are spread out over steep hillsides with large stone steps and uneven surfaces…. In the ruins, there are no handrails some places where you might like one.” (Itinerary at 65.) Kalter received and read the itinerary prior to departing on her trip. (Kalter Dep. 36: 15-20.) In addition, the tour guide, Jesus Cardenas, distributed a map of Machu Picchu to the tour participants prior to entering the park.[1] (Cardenas Decl. ¶ 20; Kalter Dep. 59:18-20.) The map includes a section entitled ” Visit Regulations,” which states, among other things, ” Do not climb the walls,” and ” Follow only designated routes according to arrows.” (Map, filed as Cardenas Decl. Ex. C.)

It was raining on both days Kalter was at Machu Picchu. (Kalter Dep. 54:12-16, 71:8-11.) The first day, she remained with Cardenas and walked on the stone paths. Id. 52:22-25, 64:11-16. The second day, she opted to explore on her own, and ventured off the established paths. Id. 67:24-68:1, 126:4-6; Supplemental Cardenas Decl. ¶ 11-12. Cardenas states that he gave verbal warnings to the group to use caution due to wet and slippery conditions. (Cardenas Decl. ¶ 13.) Kalter states that she did not hear Cardenas give these warnings, but that she ” has no reason to doubt” that he did so. (Kalter Decl. ¶ 7; Kalter Dep. 54:24-55:2.) Kalter went to an area known as the ” terraces,” filled with vertical rock walls that contain small stone protrusions called ” floating steps.” (Kalter Dep. 8:5-14; Pls.’ Statement ¶ 10; see Supplemental Cardenas Decl. ¶ 12, Ex. C (photographs of only set of floating steps above the location where Kalter was found after the fall).[2]) Some of these terraces are along paths color-coded by length, and no paths at Machu Picchu require traversing floating steps. (Cardenas Decl. ¶ 5.) Approximately one hour after venturing out on her own, Kalter became lost and disoriented, and was concerned about connecting with her group so that she would not miss the train. (Kalter Decl. ¶ 10; Kalter Dep. 85:11-13, 101:20-21.) In an effort to get a better view of where she was, Kalter stepped up onto the bottom two floating steps of a vertical wall. (Kalter Decl. ¶ ¶ 10-11; Kalter Dep. 8:16-20; Supplemental Cardenas Decl. Ex. C.) Kalter did not think this was a dangerous act. (Kalter Decl. ¶ 11.) As a result, Kalter fell and suffered serious injuries, and is now a quadriplegic.[3] (Pl.’s Opp’n 3.)

Grand Circle now moves for summary judgment on the grounds that: (1) Plaintiffs’ claims are barred under the doctrine of primary assumption of the risk; (2) Grand Circle had no duty to warn Kalter of the dangerous nature of the floating steps because it was open and obvious; and (3) Grand Circle is not liable for the actions of Cardenas because he is an independent contractor.

II. DISCUSSION

Summary judgment is proper only if ” the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A ” material” fact is one that could affect the outcome of the case, and an issue of material fact is ” genuine” if ” the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, courts view the evidence in the light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. 2505.

A. Primary Assumption of the Risk Bars Plaintiffs’ Claims.

” The question of the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.” Knight v. Jewett, 3 Cal.4th 296, 313, 11 Cal.Rptr.2d 2, 834 P.2d 696 (1992). The doctrine of primary assumption of the risk applies where ” the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” Id. at 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696. To determine if primary assumption of the risk applies, courts look to the nature of the activity, and the parties’ relationship to that activity. Branco v. Kearny Moto Park, Inc., 37 Cal.App.4th 184, 190, 43 Cal.Rptr.2d 392 (1995). The question turns on whether the plaintiff’s injury is within the ” inherent” risk of the activity. Neinstein v. Los Angeles Dodgers, Inc., 185 Cal.App.3d 176, 182, 229 Cal.Rptr. 612 (1986). A risk is inherent to an activity if its elimination would chill vigorous participation in the activity and thereby alter the fundamental nature of the activity. Knight, 3 Cal.4th at 318, 11 Cal.Rptr.2d 2, 834 P.2d 696. Accordingly, ” the doctrine of primary assumption of risk applies where ‘ conditions or conduct that otherwise might be viewed as dangerous often are an integral part’ of the activity itself.” Andia v. Full Serv. Travel, No. 06-437, 2007 WL 4258634, at *4, 2007 U.S. Dist. LEXIS 88247, at *13 (S.D.Cal. Nov. 29, 2007) (citing Knight, 3 Cal.4th at 315, 11 Cal.Rptr.2d 2, 834 P.2d 696). When primary assumption of the risk applies, a defendant is only liable for a plaintiff’s injuries ” if the defendant ‘ engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity’ or increases the inherent risk involved in the activity.” Id. (citing Saville v. Sierra College, 133 Cal.App.4th 857, 866, 36 Cal.Rptr.3d 515 (Cal.Ct.App.2005)).

If, on the other hand, ” the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty,” the doctrine of secondary assumption of the risk applies, which is analyzed under comparative fault principles. Knight, 3 Cal.4th at 315, 11 Cal.Rptr.2d 2, 834 P.2d 696. In such a case, ” the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” Id.

Here, Kalter was engaged in the activity of hiking on uneven terrain amongst ancient ruins. Inherent in this activity is the risk that one will fall and become injured. ( SeeAndia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *15) (holding that ” falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain” ). The Itinerary Kalter received prior to the tour informed her that the Inca sites at Machu Picchu ” are spread out over steep hillsides with large stone steps and uneven surfaces.” (Itinerary 65.) Eliminating tour participants’ access to these large stone steps and uneven surfaces in an attempt to protect against the risk of falling would eliminate the ability to view the Inca sites, and thus ” alter the fundamental nature of the activity.” SeeKnight, 3 Cal.4th at 318, 11 Cal.Rptr.2d 2, 834 P.2d 696. In other words, ” hiking across uneven and challenging natural terrain is an inherent risk of hiking to [the ancient ruins at Machu Picchu], without which the general public would be substantially deprived of viewing the … phenomenon.” Seeid. Moreover, as discussed further below, Kalter did not fall while engaging in the activities condoned by Defendants-she chose to leave the established stone pathway, and further endangered herself by stepping onto the floating steps. Accordingly, the Court finds that primary assumption of the risk applies to Kalter’s injuries from falling while hiking at Machu Picchu. Therefore, Grand Circle is only liable for only liable for Kalter’s injuries ” if [it] engage[d] in conduct so reckless as to be totally outside the range of the ordinary activity involved in [hiking amongst ancient ruins on uneven terrain] or increase[d] the inherent risk involved in the activity.” SeeSaville, 133 Cal.App.4th at 866, 36 Cal.Rptr.3d 515.

Plaintiffs argue that Grand Circle breached its duty to Kalter by ” encouraging and permitting her to roam the ruins of Machu Picchu on her own, then directing her to an area unknown, i.e. which was not explored with her Trip Leader the prior day, and given the conditions of that day, was dangerous and confusing.” (Pls.’ Opp’n 10.) Kalter was an experienced hiker, and prior to electing to explore the ruins on her own instead of remaining with Cardenas, she had read Grand Circle’s Itinerary informing her that she would encounter steep hillsides, large stone steps, and uneven surfaces. (Itinerary 65; Kalter Dep. 36: 15-20, 48:9-14.) She also received the map from Cardenas which stated ” Do not climb the walls” and ” Follow only designated routes according to arrows.” (Kalter Dep. 59:18-20; Cardenas Decl. Ex. C.) Moreover, Plaintiffs do not dispute that visitors to Machu Picchu often wander the ruins on their own, and that park regulations do not prohibit them from doing so. ( See Cardenas Decl. ¶ 15; Pls.’ Statement ¶ 26.) In addition, Plaintiffs provide no evidence that Cardenas or Grand Circle knew Kalter would attempt to climb the floating steps, and do not dispute Cardenas’ statement that Kalter ” never asked me if she could climb down from or up to any terraces. At no time did I tell Ms. Kalter that she should climb down or up the series of terraces, and at no time did I tell Ms. Kalter that it would be okay for her to climb up or down the stone terrace walls or on the ‘ floating steps.’ ” (Cardenas Decl. ¶ 16.)

Given these undisputed facts, Grand Circle’s act of allowing Kalter to explore on her own areas she had not been to with Cardenas was not ” so reckless as to be totally outside the range of ordinary activity” involved in the excursion, nor did it increase the inherent risk of falling and sustaining injury involved in hiking in this region. SeeSaville, 133 Cal.App.4th at 866, 36 Cal.Rptr.3d 515. The Court also notes that other participants in the tour stated that Cardenas was ” outstanding and the accident was not at all [his] fault. And of course, [Kalter] fell on a day of totally independent activities.” ( See Dobbins Dep. 13-25; see also Garvey Dep. 121:21- 25.) Moreover, even if Grand Circle or Cardenas erred in estimating Kalter’s ability to hike on her own across the uneven terrain at Machu Picchu in rainy weather, ” an instructor’s assessment errors-either in making the necessarily subjective judgment of skill level or the equally subjective judgment about the difficulty of conditions-are in no way ‘ outside the range of the ordinary activity involved in the sport.’ ” Kane v. Nat’l Ski Patrol, 88 Cal.App.4th 204, 214, 105 Cal.Rptr.2d 600 (Cal.Ct.App.2001); see alsoAndia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *16 (holding that tour guide’s ” decision to allow Plaintiff to return to the Rangers station alone [during a guided hike to a lava flow] … at most constituted ‘ assessment errors,’ but these ‘ subjective judgments about the difficulty of the conditions were ‘ in no way so reckless as to be totally outside the range of the ordinary activity involved’ in the activity of lava hiking” ).

Plaintiffs have submitted a declaration by Alexander Anolik, a travel and tourism attorney, stating that Cardenas ” failed to insist, explain the need for or put together a ‘ buddy system’ whereby Ms. Kalter would not have to be in this strange and dangerous area by herself,” and contending that his conduct of allowing Kalter to explore on her own fell below the standard of care in the travel industry. (Anolik Decl. ¶ 4.) Anolik submits no case law or any other information to suggest that such conduct falls below a standard of care, or that any other tour companies or guides employ such practices. ( See Supplemental Cardenas Decl. ¶ 3, stating that he is unaware of any other tour guide at Machu Picchu that requires a buddy system.) Further, as explained above, allowing tour participants to hike on their own, even off trail on uneven terrain, is not so reckless as to be totally outside the range of the ordinary activity involved in hiking. SeeAndia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *16. As such, the Court finds Anolik’s bare assertions insufficient to create a triable issue of fact regarding whether Defendants’ conduct was so reckless as to be totally outside the range of the ordinary activity or otherwise increased the inherent risk involved in the activity of hiking amongst ancient ruins in an undeveloped area. Accordingly, Grand Circle is not liable for Kalter’s injuries under the doctrine of primary assumption of the risk.

B. Grand Circle Had No Duty to Warn Kalter of the Open and Obvious Danger Posed by the Wet Floating Steps.

” It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” Andia, 2007 WL 4258634, at *6, 2007 U.S. Dist. 88247, at *18 (citing Marshall v. United Airlines, 35 Cal.App.3d 84, 90, 110 Cal.Rptr. 416 (1973)). Here, it was obvious to both Kalter and Cardenas that it was raining, and Kalter admitted at her deposition that she ” knew [the stones] were slippery and wet.” (Kalter Dep. 64:19-65:3, 71:14-15.) Moreover, the danger of slipping and falling from stepping on a small wet stone step protruding from a vertical wall is undoubtedly an obvious danger.

Plaintiffs conclusorily state that ” there are genuine issues of material fact regarding whether the conditions that caused Ms. Kalter’s injuries were open and obvious,” but offer no evidence to support this claim. (Pls.’ Opp’n 13.) Indeed, Kalter admits that it was ” raining on and off,” that she ” knew the rocks could be slippery” , and that before she started climbing she could see the third step was missing. (Kalter Dep. 71:8-15, 101:12-18.) Kalter offers no evidence to suggest that she believed climbing the floating steps was allowed or common, or that she saw anyone else climbing them. Further, it appears that the danger of climbing the steps was obvious to other members of Kalter’s tour; when asked whether he saw anyone climbing the steps, one member responded, ” Good Lord. Someone, probably the guide, said that the Indians might have used them.” (Dobbins Dep. 24:23-25.) In addition, the map Kalter received prior to entering the park instructed her not to climb the walls. (Cardenas Decl. Ex. C.) Kalter also testified at her deposition that she ” thought there would be some risk in climbing up the floating steps.” (Kalter Dep. 110:12-22.) Further, Plaintiffs offer no evidence that the risk of slipping on the wet floating steps was any less obvious to Kalter than to Cardenas, especially in light of the fact that Kalter had walked on stone with Cardenas the previous day and noted that the stone was ” slippery at times.” (Kalter Dep. 64:15-18.)

Plaintiffs also cite case law holding that ” although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g. when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability.” (Pls.’ Opp’n 12), citing Martinez v. Chippewa Entrps., Inc., 121 Cal.App.4th 1179, 1184, 18 Cal.Rptr.3d 152 (Cal.Ct.App.2004) (emphasis in original) (holding that trial court erred in granting summary judgment based on obvious danger where plaintiff slipped on water covering defendant landowner’s driveway.) While a landowner may be required to remedy a dangerous but obvious condition on his property, the situation differs with regards to a tour guide and tour company, where, as here, the dangerous condition is neither on the guide or company’s property nor within their control. Further, in Martinez, the plaintiff slipped on water in a defendant’s driveway that she had to cross to get by; in contrast, ” necessity” did not ” require [Kalter] to encounter” the floating steps. SeeMartinez, 121 Cal.App.4th at 1184, 18 Cal.Rptr.3d 152.

Moreover, numerous courts have held that tour companies and guides have no duty to warn of obvious dangers their customers encounter on trips. See, e.g.,Tei Yan Sun v. Governmental Auths. of Taiwain, 2001 U.S. Dist. 1160, at *31-32 (finding no liability for failure to disclose dangers of ” severe undertow, high waives, and strong surf” at beach, and noting that travel agents have no duty to disclose obvious dangers to travelers) (citing McCollum v. Friendly Hills Travel Ctr., 172 Cal.App.3d 83, 95, 217 Cal.Rptr. 919 (Cal.Ct.App.1985)); Passero v. DHC Hotels & Resorts, 981 F.Supp. 742, 744 (D.Conn.1996)(” A tour operator may be obligated, under some circumstances, to warn a traveler of a dangerous condition unknown to the traveler but known to it…. This doctrine applies to situations where a tour operator is aware of a dangerous condition not readily discoverable by the plaintiff. It simply does not apply to an obvious dangerous condition equally observable by plaintiff.” ); Stafford v. Intrav, Inc., 841 F.Supp. 284, 287 (E.D.Mo.1993) (noting that travel agents owe no duty to disclose information that is obvious and apparent to the traveler). Plaintiffs cite no cases in which courts have found tour companies or guides liable for failing to warn of or remedy open and obvious dangers.

Accordingly, the Court finds that Grand Circle had no duty to warn Kalter that the floating steps might be slippery and dangerous in the rain, as this danger was readily observable.

C. Since Neither Grand Circle Nor Cardenas Are Liable for Kalter’s Injuries, the Court Need Not Reach the Issue of Whether Cardenas Is an Employee or Independent Contractor.

As explained above, neither Grand Circle nor Cardenas are liable for Kalter’s injuries because the doctrine of primary assumption of the risk applies, and because neither had a duty to warn her of the open and obvious danger of falling while climbing wet stone steps protruding from a vertical wall. Further, Plaintiffs do not argue that Cardenas’ actions after Kalter fell caused or contributed to her injury. As such, whether Cardenas is Grand Circle’s employee or an independent contractor does not affect Grand Circle’s liability, and the Court need not reach the issue.

III. RULING

For the foregoing reasons, the Court GRANTS Grand Circle’s Motion for Summary Judgment.

IT IS SO ORDERED.

———

Notes:

[1] The map is produced by the Peru National Institute of Culture, not Grand Circle.

[2] Plaintiffs object to these photographs on the grounds that they ” lack proper foundation, are misleading in that the angles from which most are taken (particularly the closeups) and the two-dimensional nature of them cannot fairly (and accurately) depict how Ms. Kalter viewed the conditions at the time that she stepped on the two lowest steps.” (Pls.’ Objections to Evidence 2.) However, Cardenas states in his declaration that he took all of the photographs, and that they fairly and accurately reflect the conditions and terrain at Machu Picchu. (Supplemental Cardenas Decl. ¶ 8.) The Court finds these photographs to fairly and accurately represent the floating steps.

[3] It is unclear exactly how Kalter fell, as she does not remember and there were apparently no witnesses. (Kalter Dep. 12:22-13:5.)

Act Now & Stop this Minnesota bill

Posted: February 13, 2019 | Author: Recreation Law | Filed under: Minnesota, Release (pre-injury contract not to sue) | Tags: #AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #BicyclingLaw, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #OutsideLawyer, #Rec-Law, #RecLaw, #RecLawBlog, #RecLawyer, #Recreation-Lawcom, #RecreationalLawyer, #RecreationLawBlog, #RecreationLawcom, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #SkiLaw, #SummerCamp, #Tourism, #YouthCamps, #ZipLineLawyer, Backpacking, Camps, Hiking, JimMoss, Law, legislation, Minnesota, MN, Mountaineering, Negligence, OutdoorLaw, OutdoorRecreationLaw, OutsideLaw, Rec-LawBlog, Recreation-Law.com, RecreationLaw, releases, skiing, snowboarding, TravelLaw, waivers | Leave a comment

Minnesota Legislation is considering a bill that would eliminate releases (waivers) in Minnesota for recreational activities.

What the legislature does not understand is this bill will eliminate recreational activities in Minnesota.

Again, the Minnesota Senate and the House have introduced bills to ban releases in MN for recreational activities. Here is a copy of the Senate bill.

A bill for an act relating to civil actions; voiding a waiver of liability for ordinary negligence involving a consumer service; amending Minnesota Statutes 2018, section 604.055, subdivision 1.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2018, section 604.055, subdivision 1, is amended to read:

Subdivision 1.

Certain agreements are void and unenforceable.

An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit, or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes new text begin ordinary negligence or new text end greater than ordinary negligence is against public policy and void and unenforceable.

The agreement, or portion thereof, is severable from a release, limitation, or waiver of liability for damage, injuries, or death resulting from deleted text begin conduct that constitutes ordinary negligence or for deleted text end risks that are inherent in a particular activity.

EFFECTIVE DATE.

This section is effective August 1, 2019, and applies to agreements first signed or accepted on or after that date.

Without the defenses supplied by releases in Minnesota:

Insurance costs will skyrocket. After OR outlawed releases some premiums jumped 2.5 times.
Insurance for many activities will be impossible to find.
Either because of the costs or the lack of premium recreation business will close.
The first group of recreation businesses to go will be those serving kids. They get hurt easy, and their parents sue easy.
Minnesota courts will back log because the only defense available will be assumption of the risk. Assumption of the risk is determined in the vast majority of cases by the jury. Consequently, it will take years to get to trial and prove the injured plaintiff assumed the risk.

Do Something

Contact your Senator and Representative and tell them you are opposed to this bill. Do it by telephone and in writing.

Find other organizations, trade associations and the like and join with them to give them more power because they have more people they represent.

Explain the bill to your friends and neighbors, so they can voice their opinion. Encourage them to do so.

Become politically aware so you know what is going on with the legislature and how to fight bills like this.

What do you think? Leave a comment.

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

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

Interesting decision only real defense was the Wyoming’s Recreation Safety Act, which provides little if any real defense.

Posted: January 22, 2019 | Author: Recreation Law | Filed under: Assumption of the Risk, Paddlesports, Rivers and Waterways, Wyoming | Tags: #AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #BicyclingLaw, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #OutsideLawyer, #Rec-Law, #RecLaw, #RecLawBlog, #RecLawyer, #Recreation-Lawcom, #RecreationalLawyer, #RecreationLawBlog, #RecreationLawcom, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #SkiLaw, #SummerCamp, #Tourism, #YouthCamps, #ZipLineLawyer, Backpacking, Camps, channel, Choice of Law, Common Carrier, Federal Law, Float, floating, genuine, Guest, Hiking, horseback riding, Inherent Risk, Issue of Material Fact, jam, JimMoss, joint venture, Law, lodge, log, matter of law, Mountaineering, Negligence, OutdoorLaw, OutdoorRecreationLaw, OutsideLaw, preempt, provider, Punitive damages, Raft, Rafting, Rec-LawBlog, Recreation, Recreation-Law.com, recreational, recreational opportunity, RecreationLaw, River, Saddle, skiing, snowboarding, Sport, Summary judgment, tour operator, TravelLaw, trip | Leave a comment

Defendants are the company that booked the trip (Vail through Grand Teton Lodge Company) and the travel agent who booked the trip.

Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788

State: Wyoming

Plaintiff: Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Per-sonal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs

Defendant: Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc.

Plaintiff Claims: Negligence, Punitive damages

Defendant Defenses: Wyoming’s Recreation Safety Act

Holding: Mixed, mostly for the plaintiff

Year: 2009

Summary

Decision looks at the liability of the travel agency and the hotel that booked a rafting float trip where three people died. The only defenses of available were the Wyoming’s Recreation Safety Act which helped keep the lawsuit in Wyoming applying Wyoming law, but was ineffective in assisting in the defense of the lawsuit.

The rafting company is not part of this decision so probably the raft company settled with the defendants before the case was filed or this motion was heard.

Facts

Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. GTLC is organized under the laws of Wyoming and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.”

On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. They traveled via several vans to the rafting launch site at Deadman’s Bar. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria Urrutia. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years.

During the float trip, Raft No. 2 struck a log jam. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result.

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

The first issue was a choice of laws (jurisdiction and venue) provision in the agreement with the travel agency Tauck, which stated venue was to be in Connecticut. The plaintiff was arguing that the case should be moved to Connecticut, which is odd, because the plaintiff’s filed the case to start in Wyoming. However, since they sued in Wyoming, the plaintiff is still arguing that Connecticut law should apply.

Tauck argued the choice of law provisions was for its benefit, and it had the right to waive that provision in the agreement. The court found that Tauck had the right to waive a provision in the agreement that was there for its benefit.

In Wyoming, a contract must be construed according to the law of the place where it was made. There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.”

The court held that the provision was for Tauck’s benefit because the living plaintiffs were residents of Georgia and Louisiana.

The court also stated, even it had not found for Tauck on this issue this way; it would have still used Wyoming law because of Wyoming’s strong public policy of recreational immunity.

Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of. The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.

Choice of law provisions are usually upheld by the courts; however, there are ways to get around them as this court explained.

The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.

The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation providers in Wyoming:

Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.

The court then reviewed the Wyoming’s Recreation Safety Act. The plaintiff’s argued the Wyoming’s Recreation Safety Act did not apply for three reasons.

First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants.

Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act.

Third, they assert that federal law preempts the Act.

The court found the first argument was already resolved in its analysis of jurisdiction above.

The second argument was the Wyoming’s Recreation Safety Act did not apply to the defendant Tauck, because it was a travel agent in Connecticut and not a “provider” as defined under the act. The court found that Tauck was a provider under the act because as part of its package. Provider is defined as “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.”

The final issue was the argument that the state law was pre-empted by federal law. The argument was based on the concessionaire agreement the defendant had with the NPS. Although the concession agreement with the NPS provided for visitor safety, there was nothing in the agreement showing intent to pre-empt the Wyoming’s Recreation Safety Act.

The court then looked to see if the Wyoming’s Recreation Safety Act provided a defense in this case. The court first defined Inherent Risk under Wyoming law.

‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.”

[As you can see, the definition of inherent risk is not a broad definition it narrowly defines the risks to those intrinsic or integral to the activity. That leaves out thousands of risks created by man such as steering the raft, water releases, choosing the run, etc. which are probably not protected by the act.]

Outside of the inherent risks, to thwart the act, the plaintiff only needs to argue the risk was not inherent and the case would proceed to trial because the Wyoming’s Recreation Safety Act does not provide a defense to any risk not inherent in the sport. Because the court could not determine what risks were inherent what were not, it held the Wyoming’s Recreation Safety Act did not apply in this case.

In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park, and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. Complex braiding obscures the main channel, and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.

The court moved on to Tauck’s motion for summary judgment because as a tour agency is was not liable for the negligent acts of third parties, it dealt with. The law supports that argument. “As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control.”

However, that general rules does not apply if a contract with the travel agency or marketing state the travel agency will undertake a duty. (Always remember Marketing makes Promises Risk Management has to Pay for.)

Here the court found the promotional materials were marketing and did not rise to the level to be promises to be kept.

The plaintiff also argued Tauck took on a greater duty to the guests when it undertook the duty to have the guests sign the defendant GTLC’s acknowledgment of risk forms. That duty included duty to inform the guests of the risk associated with river rafting. However, the court could find nothing in Tauck’s action indicating it was accepting a greater duty when it handed out the assumption of the risk forms.

The plaintiff’s created a fraud argument. Under Montana’s law:

To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation

The plaintiff’s argued that the defendants made all sorts of statements and advertising that the float trip was a leisurely scenic trip. The channel the raft guide took was not leisurely but was a dangerous channel by some authorities. However, the issue was, did the defendants intentionally made the statements about the river to induce the plaintiffs to the trip.

The defendants wanted the plaintiff’s claim for punitive damages dismissed. In Wyoming, punitive damages appear to be a claim much like negligence. The punitive damages claim was based on the same allegations that the fraud claim was made, that the defendants misrepresented the nature of the float trip.

Punitive damages in Wyoming are:

We have approved punitive damages in circumstances involving outrageous conduct, such as intention-al torts, torts involving malice and torts involving willful and wanton misconduct.” Willful and wanton misconduct is the intentional doing, or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.”

Failing to advise the plaintiffs that the river was running higher than normal because of the spring run off did not rise to a level to be reckless and willful misconduct. The one channel of several the one guide went down was a negligent decision, not a willful one.

So Now What?

Fairly simple, use a release. It would have stopped this lawsuit sooner. If the outfitter would have used a release, it could have protected the lodge and the travel agent. I’m sure the lodge is going to use one now, which will probably just muddy the water because of multiple releases and defendants.

There are very few statutes that provide any real protection in the outdoor recreation industry. Most, in fact, make it easier for the plaintiffs to win. The exception to the rule is a few of the Ski Area Safety Statutes.

Be prepared and do more than rely on a week statute.

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

The title says it all! Wrongful death suit filed by parent of man who drowned on Kings Canyon National Forest trip

Posted: October 12, 2018 | Author: Recreation Law | Filed under: Camping | Tags: Hiker, Hiking, Hiking Lawsuit | Leave a comment

The sub-title will be hikers only go out alone after this lawsuit, too afraid of being sued by companions. Search and Rescues sky rocket.

Here is the article.

Wrongful death suit filed by parent of man who drowned on Kings Canyon National Forest trip

https://norcalrecord.com/stories/511528521-wrongful-death-suit-filed-by-parent-of-man-who-drowned-on-kings-canyon-national-forest-trip

The parent of a man who drowned while on an expedition in Kings Canyon National Forest has filed a wrongful death suit against one of man’s companions.

Dante Chiarabini, as personal representative of the estate of Luca Chiarabini, filed a complaint on July 27 in the Fresno County Superior Court against Richard Ianniello and Does 1-10 alleging wrongful death.

According to the complaint, on Aug. 3, 2017, Luca Chiarabini was on a wilderness canyoneering expedition with Ianniello and another companion, William Hunt.

The suit states as the decedent attempted to cross the Kings River in the Kings Canyon National Forest, he explicitly instructed defendant Ianniello to properly anchor the rope so that he did not drift into the rapids, which were located downstream. The suit states Ianniello failed to execute this, causing the decedent to be swept downstream.

The plaintiff holds Ianniello and Does 1-10 responsible because the defendants allegedly allowed the rope to extend past the knot connected the ropes against instruction, failed to properly anchor the rope and failed to keep Chiarabini in sight.

The plaintiff requests a trial by jury and seeks judgment against defendants for general and special damages, interest, funeral and burial expenses, costs of suit, and further relief as the court deems just. The plaintiff is represented by Grant G. Teeple, Frederick M. Reich and Christine T. Levu of Teeple Hall LLP in San Diego.

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

Texas appellate court upholds release for claims of gross negligence in trampoline accident that left plaintiff a paraplegic.

Posted: October 8, 2018 | Author: Recreation Law | Filed under: Assumption of the Risk, Indoor Recreation Center, Release (pre-injury contract not to sue), Texas | Tags: #AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #BicyclingLaw, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #OutsideLawyer, #Rec-Law, #RecLaw, #RecLawBlog, #RecLawyer, #Recreation-Lawcom, #RecreationalLawyer, #RecreationLawBlog, #RecreationLawcom, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #SkiLaw, #SummerCamp, #Tourism, #YouthCamps, #ZipLineLawyer, Backpacking, by-stander, Camps, Cause of action, consortium, conspicuousness, cross-motion, derivative, distinguishable, enforceable, entity, Gross negligence, Hiking, Issue of Material Fact, JimMoss, Jumpstreet, Law, lettering, matter of law, mental anguish, Mountaineering, Negligence, negligence claims, Notice, notice requirements, OutdoorLaw, OutdoorRecreationLaw, OutsideLaw, parental, partial, pre-injury, Public Policy, Rec-LawBlog, Recreation-Law.com, RecreationLaw, signature line, signing, skiing, snowboarding, specifically named, Summary judgment, Texas, Trampoline, Trampoline Park, TravelLaw, unenforceable, Void, waive, waiving | Leave a comment

However, the decision is not reasoned and supported in Texas by other decisions or the Texas Supreme Court.

Quiroz et. al. v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

State: Texas, Court of Appeals of Texas, Fifth District, Dallas

Plaintiff: Graciela Quiroz, Individually, a/n/f of Xxxx (“John Doe 1”) and Xxxx (“John Doe 2”), Minors, and Robert Sullivan, Individually, a/n/f of Xxxx (“John Doe 3”)

Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.

Plaintiff Claims: negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish.

Defendant Defenses: Release

Holding: for the Defendant

Year: 2018

Summary

Adult paralyzed in a trampoline facility sues for her injuries. The release she signed before entering stopped all of her claims, including her claim for gross negligence.

However, the reasoning behind the support for the release to stop the gross negligence claim was not in the decision, so this is a tenuous decision at best.

Facts

The plaintiff and her sixteen-year-old son went to the defendant’s business. Before entering she signed a release. While on a trampoline, the plaintiff attempted to do a back flip, landed on her head and was rendered a paraplegic from the waist down.

The plaintiff sued on her behalf and on behalf of her minor. Her claim was a simple tort claim for negligence. Her children’s claims were based on the loss of parental consortium and under Texas law bystander claims for seeing the accident or seeing their mother suffer. The plaintiff’s husband also joined in the lawsuit later for his loss of consortium claims.

The defendant filed a motion for summary judgment which the trial court granted and the plaintiff appealed.

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

The original entity named on the release was a corporation that was no longer in existence. Several successor entities now owned and controlled the defendant. The plaintiff argued the release did not protect them because the release only spoke to the one defendant.

The court did not agree, finding language in the release that stated the release applied to all “jumpstreet entities that engaged in the trampoline business.”

…it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of Jumpstreet.”

The next argument was whether the release met the requirements on Texas law for a release. The court pointed out bold and capital letters were used to point out important parts of the release. An assumption of the risk section was separate and distance from the release of liability section, and the release warned people to read the document carefully before signing.

Texas also has an express negligence rule, the requirements of which were also met by the way the release was written.

Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.

Next the plaintiff argued that the release covered her and her sixteen-year-old minor son. As such the release should be void because it attempted to cover a minor and releases in Texas do not work for minors.

The court ignored this argument stating it was not the minor who was hurt and suing; it was the plaintiff who was an adult. The court then also added that the other plaintiffs were also covered under the release because all of their claims, loss of parental consortium and loss of consortium are derivative claims. Meaning they only succeed if the plaintiff s claim succeeds.

The final argument was the plaintiff plead negligence and gross negligence in her complaint. A release in Texas, like most other states, was argued by the plaintiff to not be valid.

The appellate court did not see that argument as clearly. First, the Texas Supreme Court had not reviewed that issue. Other appellate courts have held that there is no difference in Texas between a claim for negligence and a claim for gross negligence.

The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury. Some appellate courts have held that negligence, and gross negligence are not separable claims and a release of liability for negligence also releases a party from liability for gross negligence.

(For other arguments like this see In Nebraska a release can defeat claims for gross negligence for health club injury.)

The court looked at the release which identified negligence and gross negligence as claims that the release would stop.

Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.

Although not specifically writing in the opinion why the release stopped the gross negligence claims, the court upheld the release for all the plaintiff claims.

…Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.

The court affirmed the trial court’s dismissal of the plaintiff’s claims.

So Now What?

First this case is a great example of believing that once you have a release you don’t have to do anything else. If the defendant’s release would have been checked every year, someone should have noticed that the named entity to be protected no longer existed.

In this case that fact did not become a major issue, however, in other states the language might not have been broad enough to protect everyone.

Second, this case is also proof that being specific with possible risks of the activities and have an assumption of risk section pays off.

Finally, would I go out and pronounce that Texas allows a release to stop claims for gross negligence. No. Finger’s crossed until the Texas Supreme Court rules on the issue or another appellate court in Texas provides reasoning for its argument, this is thin support for that statement.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

Summer 2015 Commercial Fatalities

Posted: December 2, 2015 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Cycling, Whitewater Rafting, Zip Line | Tags: Cycling, Fatalities, fatality, Hiking, Ropes course, Whitewater Rafting, zip line | Leave a comment

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

If this information is incorrect or incomplete please let me know. This is up to date as of November 30, 2015. Thanks.

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

Red is a probable death due to medical issues unrelated to the activity

Dark blue is a death of an employee while working

Date	Activity	State	Location	What	Age	Sex	Location 2	Reference
3/2	Backcountry Skiing	AK	Chugach Mountains	Calving Glacier	28	M		http://rec-law.us/1CpcDtI
5/22	Whitewater Rafting	CO	Clear Creek	Raft Flipped	47	F	M258.5	rec-law.us/1I3HWx7
5/31	Whitewater Rafting	MT	Gallatin River	Raft Flipped	43	M	House Rock	rec-law.us/1GhQpwm
6/5	Whitewater Rafting	UT	Colorado River, Westwater	Raft Flipped	50	M	Funnel Falls	rec-law.us/1HduOnS
6/10	Whitewater Rafting	CO	Arkansas River, Brown’s Canyon,	Raft high sided	11	M	Big Drop	rec-law.us/1GwG51X
6/11	Zip Line	NC	Camp Cheerio		12	F		rec-law.us/1FdpyKX
	Whitewater Rafting	CO	Arkansas River		52	M	Salt Lick	rec-law.us/1KRwN2b
	Whitewater Rafting	CO	Animas			M
6/13	Whitewater Rafting	CO	Roaring Fork River		44	F		rec-law.us/1OgnuIj
6/22	Hiking on Whitewater Rafting Trip	AZ	Colorado River	Missing after hike	22	M	Pumpkin Springs, Swamper on trip	rec-law.us/1efzCNB
6/23	Wakeboarding	GA	Carters Lake		23	M		rec-law.us/1e3wdBF
	Whitewater Rafting	NM	Rio Grande		52	M		rec-law.us/1LDliwP
7/4	Whitewater Rafting	CO	Clear Creek		20	M		rec-law.us/1LWmk7l
7/6	Whitewater Rafting	CO	Poudre River	Medical	76	M		rec-law.us/1NPBLeT
7/13	Ropes Course	SC	Freebird		16	F		rec-law.us/1OdEFep
7/14	Zip Line	UT	Zip line	Fell off platform	54	M	Grabbed guest who pulled him off	rec-law.us/1CE8fIS
7/18	Whitewater Rafting	CO	Dizzy Lizzy	Fell out of raft	35	M		rec-law.us/1LkODwd
9/25/15	Zip Line	MI	Huron County	Fell from zip line	85	M		rec-law.us/1R93WYF
9/27	Cycling Time Trial	CA	Yolo County	Hit by car	57	M	County Road 19, west of Interstate 505 near Esparto	rec-law.us/1L1om4S

If you are unable to read the chart, email me at jim@rec-law.us and I’ll send it to you as a PDF.

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

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Summer, 2015, Whitewater Rafting, Glacier, Calving, Flipped, Chugach Powder Guides, All American Adventures, Geyser Whitewater Expedition, Colorado River, Westwater Canyon, Funnel Falls, Bay Shore Camp

Clean Trails: An Organization YOU should know about

Posted: November 27, 2015 | Author: Recreation Law | Filed under: Uncategorized | Tags: Clean Trails, Hiking, Liter | Leave a comment

Trail Talk

Clean Trails is on the Move!

We hope you enjoy this month’s newsletter. Along with a bit about what we’ve been up to, we’ve selected some of the more popular stories we’ve shared on our social media channels.

www.cleantrails.org

5 Hiking Etiquette Tips You Need to Know.

By Sara Palmer – Phoenix New Times

“Society is full of rules. As grownups, we all know not to talk with our mouths full and to always face forward in a crowded elevator. But there was a time when we were young and inexperienced and maybe a little unsure of how to behave. Let’s face it, we’ve all either been that kid (or shared space with that kid) who sneezed without covering his mouth or stared at someone for way too long. Somewhere along the way, someone shed some light on our less than welcome behavior – and we are all the better for it. If the thought of hiking etiquette makes you feel like that uninformed kid, here are five simple things to keep in mind the next time you hit the trails.”

Read the Article

Best of Luck Lindsay!

Our Colorado Coordinator accepts a fulfilling position in Miami.

We’d like to wish our Colorado Coordinator, Lindsay Walton the best of luck. She has accepted her dream job in Miami doing the work she loves, environmental law. While we will certainly miss her energy, passion, and charm, we’re happy she’s going to make a positive difference in protecting our environment. Perhaps once the dust settles, she’ll be inclined to get something going for us in Florida.

“Lindsay was one of the first people to help me here in Colorado. She is a great organizer and was instrumental in helping us get established with Open Space and other agencies. She helped nurture me through some of the difficult ups and downs of our startup period; I’ll miss her advice, her support, and cheerful can-do attitude.” Richard L. P. Solosky, Interim Executive Director, Clean Trails.

Clean Trails is an all-volunteer organization working to build community through action. There are dozens of ways you can get involved too. If enough people can each do just a little, we can move mountains of litter and end the growing cycle of abuse.

Mountain Lion Rescued from Butte Fire Comes to Central Coast

Courtesy of KSBY News

“From the ashes of the Butte Fire, a tale of survival. A badly burned mountain lion cub has been brought to Paso Robles to recover and live the rest of its life.

In mid-September, firefighters found Tahmahlah, estimated to be 2 to 4 months old, inside the Butte Fire on top of a tree stump surrounded by flames.”

Watch the Story

Postcard From the Trail

Life Lessons on the Appalachian Trail, by Simone Olive

“There are two mistakes one can make along the road to truth…
not going all the way and not starting.” – Gautama Buddha“The truth is, that after this latest trip to the Appalachian Trail, I learned a lot about myself while walking through the woods. Two girlfriends that I met while on my last guided trip to the AT, accompanied me on this trip in October. We started in Pearisburg, VA and we got off the trail only about 26 miles north of Pearisburg.”Postcards From the Trail is a recurring blog post from our volunteers and other contributors. If you have a story from the trail you would like to tell, please send it our way.Read Simone’s Story

Hiker in Norway Finds Ancient Viking Sword

Via Backpacker Magazine

A Norwegian hiker who was following an ancient route between west and east Norway stumbled across a 1,200-year-old Viking sword.

The wrought-iron sword is 30 inches long and dates back to around 750 A.D. during the Viking Age, which lasted for more than 300 years, between 700 A.D. and the late 11th century.

Read the Story

Clean Trails is a charitable 501 (c) 3 nonprofit organization that promotes harmony with the land by encouraging stewardship and by providing mechanisms to keep the trail systems that lead to our wild spaces litter-free.

Thanks for Joining Us!

Donate

No written signature on the release so there is no release, even though the plaintiff acknowledged she would have signed one.

Posted: August 31, 2015 | Author: Recreation Law | Filed under: Colorado, Release (pre-injury contract not to sue) | Tags: All Terrain Vehicle, ATV, Hiking, Jeep Tours, Meeting of the Minds, Mtn. Bike, Nova Guides, Release | Leave a comment

A contract requires a meeting of the minds and the agreement to contract. Even though the defendant proved the plaintiff had the intent, the defendant could not prove their own intent.

Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438

State: Colorado

Plaintiff: Megan Soucy

Defendant: Nova Guides, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 2015

Warning, this case is probably not over so any decision, here can be altered, changed or appealed. However, the decision is so interesting it was worth the review.

The case involves an All-Terrain Vehicle (ATV) accident. Normally, engines are outside the scope of these articles. However, the facts surrounding the incident are not at issue or even discussed. The main issue is the defense of release raised by the plaintiff.

The plaintiff, her mother and sister were visiting Colorado. While there the party contracted with the defendant for a jeep tour. During that tour, all three signed a release. Two days later, the parties came back and contracted for an ATV tour. The mother and sister signed the release, but the plaintiff did not.

The release for both activities was identical, in fact, it covered, Jeep Tours, ATV, Mtn. Bike, and Hiking in one document. Dependent upon what activity the person signed up for the appropriate box was checked. For the first tour, the box Jeep Tour was checked. The mother and sisters ATV box was checked for the second tour.

The release in the language even spoke the risks of ATV tours but all in the same sentence as the other tours.

I/We have asked to participate in the sports of mountain biking, all terrain vehicle riding, hiking, and jeep touring and related activities with Nova Guides, Inc. I understand mountain biking, all terrain vehicle use, hiking and jeep touring also include the risk of falling from said vehicles.

However, because the box for the only release the plaintiff signed was for a jeep tour, the court did not by the argument it also applied to the ATV tour.

The interrogatory answers of the plaintiff and her testimony in deposition indicated she knew releases were required, understood them, had signed them in the past and would have signed one if asked for the ATV tour.

Moreover, with respect to the tours with Nova in July 2012, Soucy testified that, had a waiver of liability been presented to her on July 11, 2012, she would have signed it. In fact, Soucy attested that she believed the waiver of liability she executed on July 9, 2012 for the Jeep tour carried over for her participation in the July 11, 2012 ATV tour.

This decision is based on a Motion for Summary judgment filed by the defendant based on “release” which was denied by the court.

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

Under Colorado law contracts can be formed orally and based on the party’s intent.

Under Colorado law, contractual conditions may be express or implied. When interpreting a contract, courts consider “the facts and circumstances attending its execution, so as to learn the intentions of the parties.

A release is an agreement that follows the rules of interpretation and construction of contracts.

By her acts of paying for and taking the ATV tour after admitting she would have signed a release the court found the necessary intent on the part of the plaintiff.

Accordingly, the Court concludes it is not disputed that Soucy paid for a commercial service, willingly received that service, and believed the waiver she signed on July 9, 2012 — in which she “assume[d] the risk of personal injury, death, and property damage … which may result from [her] participation … in … all terrain vehicle riding” and waived “any claims based on negligence or breach of warranty [she] might assert on [her] own behalf … against Nova Guides, Inc.” — was valid and necessary for her participation in the ATV tour on July 11, 2012.

However, the reason why the court dismissed the defendant’s motion for summary judgment was the court could not find the same intent on the part of the defendant.

A contract implied in fact arises from the parties’ conduct that evidences a mutual intention to enter into a contract, and such a contract has the same legal effect as an express contract. … [thus, t]o be enforceable, a contract requires mutual assent to an exchange for legal consideration.” (emphasis added). Nova has proffered no evidence of its intention that Soucy be bound by an agreement to waive liability for the ATV tour on July 11, 2012; that is, nothing in the record demonstrates that either Hilley or any Nova personnel asked Soucy to execute or otherwise agree to a waiver for that tour, either by verbally asking her or by presenting her with a written agreement. Nor has Nova provided any affidavit evidencing, or even an argument by Nova concerning, its intent for this verbal agreement.

Because the defendant could not and did not offer any evidence that it had the same intent as the plaintiff, there was no proof of the intent to contract by the defendant, and the motion was denied.

However, for an oral agreement to be enforceable, there must be mutual assent from both parties. The evidence proffered by the parties does not show that Nova intended to be bound by an agreement with Soucy to waive liability for the ATV tour on July 11, 2012. Because an issue as to this material fact exists, the Defendant’s Motion for Summary Judgment is denied.

Again, this is not a final decision. The issue can be reargued before or at trial with the defendant showing the intent to contract.

So Now What?

There are several major flaws in this case by the defendant besides not being able to prove the intent to contract. This is a classic case of making your release complicated thinking it will save your butt, and the complications created a nightmare.

The first is the defendant is using a release with check boxes. If the wrong box is checked or not checked, then the release has no value. The same thing could have been accomplished, and the case ended if the boxes were eliminated.

The second is no system to make sure the release is signed by all adults and by adults for all children before the trip starts. The classic example was a rafting company that required participants to hand in their release to receive their PFD. No release, no PFD. No PFD you could not board the bus to go to the put in.

While working for one whitewater rafting company the shop manager realized one person had not signed a release. She ran and caught the bus before it pulled out and asked who had not signed the release. No one said anything. She said OK, everyone off the bus; you can get back on when I call your name. She had every release with her, and the bus was not leaving until everyone had signed.

The non-signer, not pretty sheepish, raised his hand and was handed a release to sign.

Normally, I write releases around activities. You can cover the risks of most paddlesports in one release for kayaking, rafting, stand up paddleboards, etc. Oceans pose different threats than lakes and streams so ocean activities are on a different release.

Here, however, the release combined the risks of human powered and motorized activities. Jeep tours and ATV tours probably run similar risks. However, they also have different state laws applicable to them. Mountain biking has different risks than hiking. Dependent upon the area where the mountain biking occurs and the hiking you might be able to cover the risks in one document.

However, to be on the safe side, I think three different releases should be used. Jeep and ATV tours on one, mountain biking on the second and hiking on the third. It would be easy to track them, having each one printed on a separate color of paper. You know based upon the color of the paper on the release what the customers are expecting and where they should be going.

Don’t make your release complicated in an attempt to make it work, or make it cover too much. This is one instance where killing a few more trees to write the release may save a hundred trees in defending a lawsuit.

What do you think? Leave a comment.

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

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Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438

Posted: August 30, 2015 | Author: Recreation Law | Filed under: Colorado, Legal Case, Release (pre-injury contract not to sue) | Tags: All Terrain Vehicle, ATV, Hiking, Jeep Tours, Meeting of the Minds, Mtn. Bike, Nova Guides, Release | Leave a comment

Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438

Megan Soucy, Plaintiff, v. Nova Guides, Inc., Defendant.

Civil Action No. 14-cv-01766-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

2015 U.S. Dist. LEXIS 95438

July 20, 2015, Decided

July 20, 2015, Filed

COUNSEL: [*1] For Megan Soucy, Plaintiff: Gregory A. Gold, Sommer D. Luther, LEAD ATTORNEYS, Gold Law Firm, L.L.C, The, Greenwood Village, CO; Joel Stuart Rosen, Cohen Placitella & Roth, Philadelphia, PA.

For Nova Guides, Inc., Defendant: David James Nowak, Tracy Lynn Zuckett , White & Steele, P.C., Denver, CO.

JUDGES: Michael E. Hegarty, United States Magistrate Judge.

OPINION BY: Michael E. Hegarty

OPINION

ORDER ON MOTION FOR SUMMARY JUDGMENT

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendant’s Motion for Summary Judgment [filed May 28, 2015; docket #18]. The motion is fully briefed, and the Court finds that oral argument will not assist in its adjudication of the motion. Based on the record herein and for the reasons that follow, the Court denies the Defendant’s motion.¹

1 On September 8, 2014, the parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c).

BACKGROUND

I. Procedural History

Plaintiff Megan Soucy (“Soucy”) initiated this action on June 24, 2014, alleging essentially that Defendant Nova Guides, Inc. (“Nova”) was negligent in causing her injuries when the all-terrain vehicle (“ATV”) she was driving overturned during a trail ride. Complaint, docket #1. In response to the Complaint, Nova filed [*2] an Answer asserting 13 affirmative defenses, including “Plaintiff’s claims may be barred or limited by contracts entered into by the parties.” Answer, docket #7.

Thereafter, the Court held a Scheduling Conference on September 22, 2014 at which the Court set deadlines for discovery and the filing of dispositive motions. Dockets ## 12, 13. Discovery progressed and, well before the deadline, Nova filed the present motion for summary judgment arguing no triable issues exist as to whether Soucy contractually waived her claims in this action. See docket #18. Specifically, Nova contends that its Waiver of Liability is valid pursuant to Colorado law and the waiver is enforceable despite lacking Plaintiff’s signature. Id.

Soucy counters that she was never presented with nor signed a Waiver of Liability before the July 11, 2012 tour during which she was injured. She argues that the July 9, 2012 waiver she signed before a Jeep tour did not apply to the July 11 ATV tour, since only the Jeep tour was referenced in the July 9 waiver. She further asserts that any release that may be construed as signed on her behalf by her mother is unenforceable. Finally, Soucy contends that any evidence of her intent [*3] is factually and legally irrelevant.

Nova replies arguing that Soucy’s own testimony demonstrates she intended to be bound by the Waiver of Liability, despite its lack of her signature.

II. Findings of Fact

The Court makes the following findings of fact viewed in the light most favorable to Soucy, who is the non-moving party in this matter.

1. While vacationing in Vail, Colorado in July 2012, Soucy, her mother, and her sisters participated in a jeep tour on July 9, 2012 and an ATV tour on July 11, 2012, both guided by Ben Hilley of Nova Guides, Inc. Deposition of Megan Soucy, April 6, 2015 (“Soucy Depo”), 97: 20-25; 129: 12 – 130: 16, docket #19-1.

2. Soucy was 20 years old in July 2012. Id., 136: 23 – 137: 4.

3. Based on her past experience, Soucy understood she must typically execute a waiver of liability before engaging in activities such as “ATVing” and the “safari trip” (also referred to as the “Jeep tour”). Id., 143: 13-20; 145: 16-20.

4. Prior to participating in the Jeep tour on July 9, 2012, Soucy signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to “Jeep tour” as the type of tour selected (the other options are “ATV,” “Mtn. Bike,” and “Hiking”). Id., 144: [*4] 4-145: 7; see also Nova Guides Lease Agreement and Waiver of Liability, July 9, 2012, docket #19-2.

5. Nova’s Waiver of Liability includes the following language:

PARTICIPANT’S AGREEMENT TO ASSUME THE RISKS OF PERSONAL INJURY AND PROPERTY DAMAGE ASSOCIATED WITH MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HIKING, AND JEEP TOURS AND TO RELEASE NOVA GUIDES, INC., ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, THE U.S. FOREST SERVICE, AND THE U.S. GOVERNMENT FROM ANY AND ALL LIABILITY IN CONNECTION WITH MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HUMMER AND JEEP TOURING ACTIVITIES.

*THIS IS A RELEASE OF LIABILITY. PLEASE READ BEFORE SIGNING. DO NOT SIGN OR INITIAL THE RELEASE IF YOU DO NOT UNDERSTAND OR DO NOT AGREE WITH ITS TERMS.

1. I/We have asked to participate in the sports of mountain biking, all terrain vehicle riding, hiking, and jeep touring and related activities with Nova Guides, Inc. … I understand mountain biking, all terrain vehicle use, hiking and jeep touring also include the risk of falling from said vehicles. I understand that accidents or illness can occur in remote places without medical facilities. … I understand that route or activity, chosen as a part of our outdoor [*5] adventure may not be the safest, but has been chosen for its interest. I UNDERSTAND THAT THE ACTIVITIES OF MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HIKING, JEEP TOURING, like all outdoor activities involve the risk of contact with wild animals, falls, equipment failure, collisions and/or contact with manmade or natural objects and other riders and drivers which can result in personal injury, property damage and death.

2. I expressly assume all risk of personal injury, death, and property damage set forth in paragraph 1 above which may result from my participation and my minor children’s participation in mountain biking, all terrain vehicle riding, hiking, and jeep touring and waive any claims based on negligence or breach of warranty I might assert on my own behalf or on behalf of my minor children against Nova Guides, Inc., its officers, directors, agents and employees, the U.S. Forest Service, and the U.S. Government for personal injuries, death, and/or property damage sustained while participating in mountain biking activities, all terrain vehicle riding, hummer and jeep touring with Nova Guides, Inc.

Nova Guides Lease Agreement and Waiver of Liability, docket #19-2.

6. Soucy recognized [*6] that operating an ATV involves a risk of injury. Id.; see also Soucy Depo, 154: 8-13.

7. Prior to Soucy’s and her family’s participation in the ATV tour on July 11, 2012, Soucy’s mother, Susan Pesot, completed and signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to “ATV” as the type of tour selected. Deposition of Susan Pesot, April 7, 2015 (“Pesot Depo”), 92: 2 – 93: 7; see also Nova Guides Lease Agreement and Waiver of Liability, July 11, 2012, docket #19-3.

8. Soucy did not sign the July 11, 2012 Waiver of Liability. Id.

9. Pesot signed the waiver only on behalf of herself and her two minor children (Soucy’s sisters). Pesot Depo, 92: 12-17. She listed Soucy and Soucy’s other sister as participants on the ATV tour “because Ben told [her] to write down all the people who will be driving the vehicles.” Id., 93: 2-13.

10. Pesot did not sign the waiver on behalf of Soucy, who was not a minor, nor asked Soucy to sign the waiver because “that was not [her] responsibility to have [Soucy] sign it.” Id., 92: 12-25, 93: 1.

11. Also, Hilley did not ask Soucy to sign the waiver; however, Soucy would have signed the Waiver of Liability completed by Pesot on July 11, [*7] 2012, had it been presented to her by Hilley or Pesot and she were asked specifically to sign it. Soucy Depo, 215: 4-8 and 217: 7-15.

12. Soucy thought the Waiver of Liability she signed on July 9, 2012 “carried over” for the ATV tour in which she participated on July 11, 2012. Id., 144: 4 – 145:14.

13. Soucy participated in the ATV tour on July 11, 2012. Id., 171: 17-21.

LEGAL STANDARDS

A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The moving party bears the initial responsibility of providing to the Court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party’s claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence [*8] may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).

The non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, if the movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (“[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”) (emphasis in original) (citation omitted); see also Hysten v. Burlington Northern & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” [*9] Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).

ANALYSIS

Here, it is undisputed that Soucy did not sign a form waiver of liability for the ATV tour guided by Nova on July 11, 2012. According to Soucy, that is the end of the story. However, Nova argues the lack of a signature on a written agreement “is not always necessary to create a binding agreement.” Motion, docket #18 at 10. Nova contends that Colorado law allows consideration of the parties’ intent in the formation of a contract. Id. Soucy counters that extrinsic evidence, such as the parties’ intent, “is not admissible in a case where the court properly determines as a matter of law that an agreement is unambiguous.” Response, docket #19 at 17. Soucy argues alternatively that, “whether the parties have entered a contract is a question of fact.” Id. at 18.

The Court finds that, because Soucy does not challenge the validity and enforceability of Nova’s waiver of liability, the question is not whether terms of a formal contract are ambiguous (since no formal contract exists between Soucy and Nova from July 11, 2012), but whether an agreement between Soucy and Nova was formed on July 11, 2012 before Soucy was injured on the tour.

Under Colorado law, contractual conditions may be express [*10] or implied. Lane v. Urgitus, 145 P.3d 672, 679 (Colo. 2006) (determining whether an agreement to arbitrate existed between the parties) (citing Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 414 (Colo. 2004)). When interpreting a contract, courts consider “the facts and circumstances attending its execution, so as to learn the intentions of the parties.” Id. (quoting Eisenhart v. Denver, 27 Colo. App. 470, 478, 150 P. 729, (1915), aff’d, 64 Colo. 141, 170 P. 1179 (1918)). “In contractual settings, [courts] can look to the circumstances surrounding the contract’s formation in construing the contract, in order to carry out the intent of the contracting parties.” Id. (citing Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235 (Colo. 1998)); see also James H. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 372 (Colo. App. 1994) (“Generally, whether a contract exists is a question of fact to be determined by all of the surrounding circumstances.”).

Whether the parties to an oral agreement become bound prior to the drafting and execution of a contemplated formal writing is a question largely of intent on their part. Mohler v. Park Cnty. Sch. Dist. RE-2, 32 Colo. App. 388, 515 P.2d 112, 114 (Colo. App. 1973). “That intent can be inferred from their actions and may be determined by their conduct prior to the time the controversy arose.” Id. (citing Coulter v. Anderson, 144 Colo. 402, 357 P.2d 76 (Colo. 1960)); see also Moore, 892 P.2d at 372.

“A release [of liability] is an agreement to which the general rules of interpretation and construction apply.” Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 878 (10th Cir. 2013). In Squires, the court analyzed extrinsic evidence including a letter and the plaintiff’s statements of belief to determine whether a waiver of liability was [*11] procured through fraudulent inducement. Id. at 878-79.

Here, in response to questions by Nova’s counsel, Soucy testified during her deposition that:

o Based on her past experience, she understood she must typically execute a waiver of liability before engaging in activities such as “ATVing” and the “Jeep tour”;

o Prior to participating in the Jeep tour on July 9, 2012, she signed a Nova Guides Lease Agreement and Waiver of Liability;

o She recognized that operating an ATV involves a risk of injury;

o She did not sign an identical form Waiver of Liability prior to participating in the ATV tour on July 11, 2012;

o She would have signed the Waiver of Liability completed by her mother on July 11, 2012, had it been presented to her by Hilley or her mother and she were asked specifically to sign it; and

o She thought the Waiver of Liability she signed on July 9, 2012 “carried over” for the ATV tour in which she participated on July 11, 2012.

While Soucy’s counsel asked her questions during the deposition, his questions did not concern any waiver of liability. Soucy Depo, 254: 9 – 255: 17. In addition, Soucy did not provide an affidavit or other testimony in response to the present motion. Nova argues that [*12] “the clear, undisputed evidence from plaintiff’s own testimony is that she intended to assent and be bound by Nova Guide’s Waiver of Liability when she participated in the July 11, 2012 ATV tour.” Reply, docket #22 at 5. The Court must agree.

At her deposition, Soucy confirmed not only that she understood the concept of a waiver of liability, but also that she was familiar with such a document, as she had executed waivers in the past.

Q. Are you familiar with the concept of a waiver of liability?

A. Yes.

Q. Have you executed those type of documents in certain situations where you wanted to do an activity and it required a waiver?

A. Yes, yes.

Soucy Depo, 125: 1-7. Moreover, with respect to the tours with Nova in July 2012, Soucy testified that, had a waiver of liability been presented to her on July 11, 2012, she would have signed it. Id., 215: 4-8 and 217: 7-15. In fact, Soucy attested that she believed the waiver of liability she executed on July 9, 2012 for the Jeep tour carried over for her participation in the July 11, 2012 ATV tour.

Q. — did you understand before engaging in an activity such as ATV’ing, that you would typically execute a waiver of liability?

…

THE WITNESS: Yes.

Q. So that’s [*13] something you were familiar with. Did you at the time think that that was the document that he gave your mother?

…

A. I think, actually, the day before, when we got on that thing, Melissa and I filled something out.

Q. So you think that when you kind of took the safari trip —

A. Right.

Q. — where you were in a vehicle, that you actually filled something out?

A. We may have, yeah.

Q. You, yourself, as opposed to your mother?

A. Yes.

Q. Did you read it?

A. I don’t remember.

Q. Do you remember what it was or what it said?

A. No.

Q. And when you say “we,” do you mean you and all your sisters?

A. Melissa and I, separate from my mom.

Q. Did your mother also execute a document on the safari trip?

A. I believe so.

Q. And did Mr. Hilley, on the safari trip, explain what you were executing?

A. I don’t remember.

Q. Did you at the time think it was a waiver of liability?

A. Yeah. I think– and that’s why when we were in the car the next day, I just thought that kind of carried over or something.

Q. So when you were in the bus, going to do the ATV tour, you thought that what you had signed the day before carried over?

…

THE WITNESS: Right.

…

Q. But you generally understood that with respect to these type of activities, [*14] you did need to execute a waiver of liability?

…

THE WITNESS: Yes.

Soucy Depo, 143: 16 – 145: 20. Importantly, Soucy then participated in the ATV tour on July 11, 2012, which presumes that Soucy paid the required fee and Nova performed the requested service of guiding the tour. Soucy’s testimony does not appear to be vague. She assents to the proposition that she believed a waiver of liability she actually signed relating to one activity applied to another activity as well. She does not attempt to contradict that sworn testimony, so it was uncontroverted.

However, an agreement requires intent to be bound by all parties. “A contract implied in [*15] fact arises from the parties’ conduct that evidences a mutual intention to enter into a contract, and such a contract has the same legal effect as an express contract. … [thus, t]o be enforceable, a contract requires mutual assent to an exchange for legal consideration.” Winter v. Indus. Claim Appeals Office, 321 P.3d 609, 614, 2013 COA 126 (Colo. App. 2013) (citations omitted) (emphasis added). Nova has proffered no evidence of its intention that Soucy be bound by an agreement to waive liability for the ATV tour on July 11, 2012; that is, nothing in the record demonstrates that either Hilley or any Nova personnel asked Soucy to execute or otherwise agree to a waiver for that tour, either by verbally asking her or by presenting her with a written agreement. Nor has Nova provided any affidavit evidencing, or even an argument by Nova concerning, its intent for this verbal agreement. Under the circumstances presented here, the Court will not infer such intention. See Celotex Corp., 477 U.S. at 323 (the moving party bears the initial responsibility of providing to the court the factual basis for its motion).

Accordingly, a genuine issue of material fact exists as to whether an agreement was formed by both parties on July 11, 2012 before Soucy participated in the ATV tour and, thus, summary judgment is [*16] improper.

CONCLUSION

Soucy’s deposition testimony reflects her conduct, beliefs and intent regarding whether she agreed to waive Nova’s liability for any negligence claims resulting from the ATV tour on July 11, 2012. No genuine issues of material fact arise from this testimony or any other evidence provided by Soucy as to whether her assent to such agreement existed. The Court must conclude, then, that the evidence demonstrates Soucy’s agreement to waive Nova’s liability for the injuries she suffered on July 11, 2012.

Entered and dated at Denver, Colorado, this 20th day of July, 2015.

BY THE COURT:

/s/ Michael E. Hegarty

Michael E. Hegarty

United States Magistrate Judge

Update: Clean Trails, you should join

Posted: March 12, 2015 | Author: Recreation Law | Filed under: Uncategorized | Tags: Backpacking, Clean Trails, Clean Up, Hiking, Litter, x, y, z | Leave a comment

March
2015

ISSUE
No. 9

Clean Trails News

Trail Talk

We’re growing by leaps and bounds! Our volunteer drive is proving to be more than fruitful; in the last month we have added 9 new positions to our roster and we would like to recognize and thank these individuals for offering their expertise in fulfilling the Clean Trails mission.

Lara McLaughlin, San Francisco – Webmaster
Gina Zanutto, Denver – Facebook Channel Manager
Megan Young, San Diego – Pinterest Channel Manager
Nate Hawkes, Salt Lake – Utah State Coordinator
Ku Mei Kern, Salt Lake – Salt Lake Trails Manager
Colby Corso, San Diego – San Diego Trails Manager
Chris Iorio, Los Angeles – L.A. Trails Manager
Michael Panter, Las Vegas – Las Vegas Trails Manager
Mido Assran, Saskatoon – Web Applications Developer

Thanks to ALL our volunteers; YOU ROCK!

Join us in keeping our nations’ trails litter free: We know you identify with our mission; if you are looking for a rewarding volunteer experience building a nation-wide network of volunteers, email our Interim Executive Director your resume and we’ll find you a great organizational opportunity. rsolosky

Volunteer Spotlight – Brandon Reidhaar

Congratulations to Brandon Reidhaar our Idaho State Coordinator! He’s been busting collaborative moves all over Boise lately. His latest effort was in coordination with the Boise Trail Heads, Idaho Hiking Club, and the Milestone Hiking and Recreation Club presenting at their event “Everything You Wanted To Know About Hiking But Were Afraid to Ask.” His presentation was well received garnering several new Clean Trails supporters while focusing on litter reduction while backpacking. Nice job Brandon! You can learn a bit more about Brandon and others on our management team here.

Latest Blog Post – Spring Training

Many of us have not stopped moving despite the polar vortex and for others the winter thaw is still months ahead. Our Web/Blog Editor Tim Brown provides his thoughts on how to knock off some of the dust and start moving again.

“Now is the time of year when we end our Winter hibernations. We begin our thaw for the year that lies ahead (sorry, Boston). We knock the dust off of ourselves and start moving again. For some, this time of year is a rebirth; for others, it signals metamorphosis or change. For all of us, it means more sunshine and increased outdoor activity. Forget what Punxsutawney Phil said, Winter is on its way out; Spring is on its way in! (Again, sorry, Boston.)” Read More Here…

We’re really interested in your stories, send them to info

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The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win

Posted: October 20, 2014 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Hawaii | Tags: #Cruise, Ana Maria Andia, Arnott's Lodge and Hike Adventures, assumption of the risk, California, Celebrity Cruises, Cruise ship, Excursion, Full Service Travel, Hawaii, Hiking, Inc., Lava, Lava Field, M.D., Primary Assumption of the Risk, Volcano | 2 Comments

Plaintiff signed up on a cruise ship to hike on a lava field. She was fully informed of the risks and admitted to knowing the risks in advance which is defined as assumption of the risk.

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

State: California and Hawaii, the accident occurred in Hawaii but the lawsuit was filed in California

Plaintiff: Ana Maria Andia, M.D.

Defendant: Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures

Plaintiff Claims: (1) negligence, on grounds that Defendant breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Defendant failed to warn Plaintiff of the known dangers and risks associated with the lava hike. & (1) negligence, on grounds that defendant cruise breached its duty of care to Plaintiff by failing to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that defendant cruise failed to warn Plaintiff of the dangers and risks associated with the lava hike.

Defendant Defenses: assumption of the risk

Holding: for the defendant

Year: 2007

Simple case, however, the facts are long because the defendants provided the plaintiff with a ton of information about the risks of the activity which the court reviewed.

The plaintiff signed up for a hike in the lava fields in Hawaii while on a cruise ship. The information about the hike stated the distance of the hike was always changing because of the lava flow. The hikers could return at any time; however, if they did they would return the way they came by themselves.

This information was provided to the plaintiff in a description of the hike provided by the defendant cruise line, in a brochure that plaintiff was given, in a release the plaintiff signed, and during a talk before the hike began.

Plaintiff in her deposition also admitted that she was an experienced hiker, that falling was always a possibility when hiking.

During a point in the hike, the plaintiff decided to turn around. While hiking back to the ranger station she fell breaking her foot. She sued for her injuries.

The lawsuit was started in the Federal District Court of Southern California. The defendant travel company was dismissed earlier in the case. The defendant hiking company cruise line filed motions for summit judgment.

Summary of the case

The court first looked at the claims against the defendant hiking business. (The type of entity or whether it was an entity was never identified, and the court was not sure what the hiking company was also.)

The basis of the motion from the hiking company was that the risk of “…slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking.”

The duty of care owed by the defendant hiking company in this situation is:

…a duty to use due care and avoid injury to others, and may be held liable if they’re careless conduct injures another person. The doctrine of primary assumption of the risk is an exception to this general rule. The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity; the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.”

The court then found the doctrine of primary assumption of the risk applied because:

…conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.”

Summing up its own analyses of primary assumption of risk the court stated:

The plaintiff argued that the hiking company, Arnott’s, was guilty of gross negligence because:

Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day of her cruise vacation.

However, the plaintiff’s arguments were not backed up with any facts. Arguing a point with facts that do not support your argument fails.

The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

Nor did the actions of the defendant hiking company increase the risk of injury to the plaintiff.

The plaintiff knew the risks of hiking prior to the hike in question and admitted that in her deposition. The plaintiff was given information about the hike and had the risks of the hike explained to her four different ways prior to the hike. The plaintiff assumed the risk of here injuries, and the risk that plaintiff suffered causing her injury were visible to anyone hiking in the lava field.

The next issue the court reviewed with regard to the defendant hiking company was the duty to warn. “It is established law, at least in the exercise of ordinary care, that one is under no duty to warn an-other of a danger equally obvious to both.”

The court found for the hiking company on this issue based on the facts and found the plaintiff assumed the risk of her injuries because she could see the risk and continued on anyway. If you can see the risk, you cannot complain about not knowing about the risk.

The plaintiff’s claims against the cruise ship were then reviewed. A cruise ship has a different duty of care owed to its passengers. “The duty of care of the owner of an excursion ship is a matter of federal maritime law. That duty is to exercise reasonable care under the circumstances.”

Here the plaintiff presented no evidence that the defendant cruise line did not exercise reasonable care to the plaintiff. The same facts when applied to the case also showed the defendant cruise ship had not breached its duty to warn to the plaintiff. The information and brochure were provided by the cruise ship to the plaintiff when she signed up for the hike.

[I]t is generally accepted that where a carrier. . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.”

So Now What?

The case was won on two issues. The first was the risks of the activity were pointed out over and over again by the hiking company to the plaintiff. Information, brochures, safety talks all stated the risks of the activity which the plaintiff accepted when she turned around.

The second issue was the plaintiff in her deposition admitted to hiking experience. Possibly one or the other could have been enough to prove a defense for the defendants in this case; however, since both were so clear, the defense was easily proven.

Many times on hikes, we point out risk, as well as birds and beauty, to others with us. If you are guiding a hike, this requirement should concentrate your attention to these issues and your actions in pointing out risks. You can cover many of the risks of an activity such as hiking with a general talk at the beginning. “We are going to be walking on uneven surfaces. There will be many rocks and roots to trip on. Pay attention to where you are putting your feet and make sure you are on a solid surface when walking.”

As much as releases are an important defense and source of information for your guests, assumption of the risk is making a comeback in the outdoor recreation industry. If your release fails for any reason, assumption of the risk is the best and maybe the only other defense you have available.

Besides the more your gusts know and understand the risks of the activity the less likely the will be to be injured and the better the experience they will have. Leave scaring guests to fun houses at Halloween.

The one confusing issue in the case was the courts use of California law to decide a case that occurred in Hawaii. The federal courts are for situations like this when the parties are from different states. The plaintiff was from California, and the defendants were from Hawaii. However, without an agreement as to the law that should be applied to the case, Hawaiian law, I believe should be applied. Here the court used California law.

What do you think? Leave a comment.

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Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Posted: October 7, 2014 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Hawaii, Legal Case | Tags: #Cruise, Ana Maria Andia, Arnott's Lodge and Hike Adventures, assumption of the risk, Celebrity Cruises, Cruise ship, Excursion, Full Service Travel, Hiking, Inc., Lava, Lava Field, M.D., Matthew Marsh, Nature's Classroom, Ohio, Primary Assumption of the Risk, San Diego, Summary judgment, Volcano, Volcanoes National Park | Leave a comment

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Ana Maria Andia, M.D., Plaintiff, vs. Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures, a Hawaiian business of unknown structure, Defendants.

CASE NO. 06cv0437 WQH (JMA)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

2007 U.S. Dist. LEXIS 88247

November 29, 2007, Decided

November 29, 2007, Filed

CORE TERMS: hike, lava, station, terrain, falling, rock, summary judgment, hiking, slipping, uneven, duty of care, assumption of risk, cruise, inherent risk, trail, ship, warn, surface, viewing, passenger, excursion, admits, hiker, duty to warn, failure to warn, negating, minutes, causes of action, totally outside, gross negligence

COUNSEL: [*1] For Ana Maria Andia, an individual, Plaintiff: Harold M Hewell, LEAD ATTORNEY, Hewell Law Firm APC, San Diego, CA; Howard M Rubinstein, LEAD ATTORNEY, Law Offices of Howard Rubinstein, Aspen, CO.

For Celebrity Cruises Inc, a foreign corporation, Arnotts Lodge and Hike Adventures, a Hawaiian business of unknown structure Defendants: Gregory Dean Hagen, Tammara N Tukloff, LEAD ATTORNEYS, Drath Clifford Murphy and Hagen, San Diego, CA.

JUDGES: WILLIAM Q. HAYES, United States District Judge.

OPINION BY: WILLIAM Q. HAYES

OPINION

ORDER

HAYES, Judge:

The matter before the Court is Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures. (Doc. # 40).

Background

Defendant Celebrity Cruises, Inc. (“Celebrity”) is engaged in the business of providing passenger cruises to various destinations. ¹ UMF 1. Arnott’s Lodge and Hike Adventures (“Arnott’s”) guides transport cruise ship passengers to Volcanoes National Park (“the Park”), and provide knowledge about where the lava flow is each day. UMF 3. In order to view the active lava flow, individuals must hike over cooled lava. This terrain is rugged and natural, consisting of uneven surfaces. Id. at 4; DMF 4. The Hawaii Volcanoes [*2] National Park Rangers (“Rangers”) place reflective markers and cones on the lava to be used by hikers as reference points. UMF 7.

1 The parties each submitted a statement of facts with their submissions in support of and in opposition to the Motion for Summary Judgment. The Court relies upon the facts from Defendants’ Alleged Undisputed Material Facts (“UMF”), which are undisputed by Plaintiff and supported by the cited evidence, and the facts from Plaintiff s Disputed Material Facts (“DMF”), which are undisputed by Defendants and supported by the cited evidence.

In November, 2005, Plaintiff Ana Maria Andia, M.D. was a passenger on Defendant Celebrity Cruises, Inc.’s (“Celebrity”) passenger cruise ship. Plaintiff is an experienced hiker. Andia Depo, 35: 23-25. On November 27, 2005, Plaintiff signed up to participate in a shore expedition known as the HL 15, the Kilauea Lava Viewing Hike, guided by Arnott’s. UMF 8. On November 27, 2005, there was total visibility for many miles in every direction. Id. at 5.

Prior to beginning the hike, Plaintiff read the description of the hike that states: “This tour involves approximately two to six miles of hiking over very sharp and uneven surfaces.” [*3] Id. at 10. Plaintiff also read, understood and executed the “Lava Hike Participant, Release and Acknowledgment of Risk” (“Agreement”), which provides, in relevant part:

I agree not to hold Arnott’s liable for any accident or injury beyond its control. The hike to the Lava is conducted at a brisk pace and requires physically fit participants in good health who can readily hike on varied surfaces and elevation changes for extended periods. I, as a participant, acknowledge that I am taking this activity of my own free will and that I will not hold Arnott’s responsible for any injury incurred while . . . I am hiking on the paved or natural surfaces of the National Park. . . . I understand by reading this waiver that Arnott’s guides will provide only broad direction and safety guidelines and that I remain responsible for the actual path hiked and whether I choose to take the risks with possibly still hot Lava Flows.

Id. at 11. Plaintiff also received and read a document entitled “Arnotts Adventures proudly presents: The Kilauea Lava Hike Adventure” (“Brochure”), which informed Plaintiff that she may need to turn around and head back to the Rangers station alone, and that she did not need [*4] a trail to return safely. Id. at 14.

Prior to beginning the hike, Arnott’s informed Plaintiff that the lava flow had changed and that the hike was going to be longer than anticipated for that day. Id. at 13. Arnott’s also informed all participants in the hike, including Plaintiff, that they had the option of staying at the Rangers station and not going on the hike, and that there would be four decision points during the hike at which hikers could turn around and head back to the Rangers station. Id. at 13, 18.

Prior to beginning the hike, Plaintiff understood that the marked trail was merely a preferred route, and that the trail was not necessary to safely return to the Rangers station. UMF 15; Andia Depo, 63:1-15. Plaintiff also understood that guides would not stay with her during the hike and that she might be returning to the Rangers station unaccompanied. UMF 15, 16; Andia Depo, 63: 1-15, 64:22-24. Plaintiff understood that the hike would be difficult and strenuous. Andia Depo, 52: 17-19

For the first 30 minutes of the hike, and through the first two decision points, the hike proceeded on paved surfaces. UMF 20. During this period, Plaintiff recalls seeing reflective tabs on the [*5] paved surface. Id. Plaintiff’s companion recalls seeing reflective tabs stuck to the rocks for 10-15 minutes of the hike after leaving the paved road. Plaintiff does not recall whether or not the reflective tabs were stuck to the rocks. Id. at 21. Approximately 45 minutes into the hike, and after approximately 15 minutes of walking on unpaved terrain, Plaintiff decided to return, unaccompanied by a guide, to the Rangers station. Id. at 22. About 15 minutes into her return, Plaintiff slipped on one of the rocks. When Plaintiff slipped, she twisted her ankle. Plaintiff then lifted her foot up, and hit the top of her foot on the lava rock. As a result of these events, Plaintiff fractured her foot. Id. at 23. Plaintiff testified that she then proceeded back to the Rangers station. Andia Depo, 86:22-87:14. The fall itself could have caused the fracture to become displaced and surgery may have been required regardless of whether Plaintiff attempted to walk out of the lava fields. UMF 25. Plaintiff was given the option of going to the ship’s doctor or the Hilo emergency room for treatment, and Plaintiff elected to receive treatment with the ship’s doctor. Id. at 24; Andia Depo, 89:15-25; [*6] 90:1-10. Plaintiff testified that, as a result of the fracture, she was confined to a wheel chair for a period of months, had to take time off of work, and suffers impaired balance. Id. 15:13-14.

On February 24, 2006, Plaintiff filed the First Amendment Complaint (“FAC”) against Defendants Full Service Travel, ² Celebrity and Arnott’s. (Doc. # 3). The FAC alleges causes of action against Arnott’s for (1) negligence, on grounds that Arnott’s breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Arnott’s failed to warn Plaintiff of the known dangers and risks associated with the lava hike. The FAC alleges causes of action against Celebrity for (1) negligence, on grounds that Celebrity breached its duty of care to Plaintiff by failing to to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that Celebrity failed to warn Plaintiff of the dangers and risks associated with the lava hike.

2 On October 5, 2006, Defendant Full Service Travel was dismissed from the case, with prejudice.

On August 18, 2007, Defendants filed the Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. [*7] Defendants claim they are entitled to judgment as a matter of law because (1) Arnott’s owed Plaintiff no duty to protect Plaintiff against the assumed risk of slipping and falling on the lava rock, (2) Arnott’s owed Plaintiff no duty to warn Plaintiff of the obvious risk of injury of slipping and falling on the lava rock, (3) Celebrity did not owe Plaintiff a duty to warn of the obvious risk of slipping and falling on lava rock, (4) the alleged negligence of Defendants did not cause Plaintiff’s injuries, and (5) the claim for punitive damages against Arnott’s is not warranted. After receiving evidence and briefing from the parties, the Court heard oral argument on November 9, 2007.

Standard of Review

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute over a material [*8] fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If the moving party satisfies its initial burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)).

In ruling on a motion for summary judgment, the Court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). “Credibility determinations [and] the weighing of evidence . . . are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255.

Choice of Law

The Court has jurisdiction over this action through diversity of citizenship, 28 U.S.C. section 1331. Federal courts exercising diversity jurisdiction must [*9] apply the substantive law of the state in which they are located, except on matters governed by the United States Constitution or federal statutes, or on procedural issues. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). The Complaint alleges causes of action in negligence for breach of due care and for failure to warn. The elements of the tort of negligence are essentially identical under California and Hawaii law. See White v. Sabatino, 415 F. Supp. 2d 1163, 1173 (USDC Haw. 2006); Ladd v. County of San Mateo, 12 Cal. 4th 913, 917, 50 Cal. Rptr. 2d 309, 911 P.2d 496 (1996). Furthermore, the doctrine of primary assumption of risk is a measure of a defendant’s duty of care, and is essentially identical under both Hawaii and California law. Yoneda v. Andrew Tom, 110 Haw. 367, 379, 133 P.3d 796 (2006); Knight v. Jewett, 3 Cal. 4th 296, 314-15, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992).

Discussion

I. Plaintiff’s Claims Against Arnott’s

Arnott’s contends that the risk of slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking. Arnott’s contends that without this risk, the means of viewing this natural phenomenon would be severely limited to the general public. Arnott’s also contends that the evidence is uncontroverted that [*10] Arnott’s provided Plaintiff with written disclosures concerning the condition of the terrain, that guides would only give broad direction on the actual hike, that Plaintiff may need to turn around and head to the Rangers station alone, and that Plaintiff did not need a trail to return safely. Arnott’s contends that there is no triable issue of fact as to whether Arnott’s is liable for breach of its duty of care because the doctrine of primary assumption of risk applies, negating any duty of Arnott’s to protect Plaintiff against the inherent risk of slipping and falling while lava hiking. Arnott’s contends that Plaintiff has failed to assert facts or introduce any evidence that demonstrates that the conduct of Arnott’s was totally outside the range of ordinary activity or that the conduct of Arnott’s increased Plaintiff’s risk of slipping and falling on the lava rock. Arnott’s also contends that there is no triable issue of fact as to whether Arnott’s is liable to Plaintiff for breach of the duty of Arnott’s to warn because the risk of slipping and falling on the natural terrain was equally obvious to Plaintiff and Arnott’s.

Plaintiff responds that the conduct of Arnott’s constituted [*11] gross negligence for the following reasons: Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn Plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure Plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring Plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided Plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day [*12] of her cruise vacation. ³

3 Plaintiff does not dispute that the doctrine of primary assumption of risk applies, negating Arnott’s’ duty to prevent Plaintiff from slipping and falling on lava rock. Instead, Plaintiff relies solely on her contention that the Agreement itself is either an unenforceable exculpatory agreement or an unenforceable contract of adhesion. Defendants, however, do “not contend, nor have they even asserted, that the [Agreement] relieves them from liability for any alleged negligence, nor gross negligence.” Reply, p. 1-2.

A. Duty of Care

As a general rule, persons have a duty to use due care and avoid injury to others, and may be held liable if their careless conduct injures another person. Cal. Civ. Code § 1714. The doctrine of primary assumption of the risk is an exception to this general rule. Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992). The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” Id. at 315. Whether the doctrine of assumption of risk applies, thereby negating a duty of care, turns on [*13] the “nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” Id. at 309. In reviewing the nature of the activity, the doctrine of primary assumption of risk applies where “conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. Id. at 315. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.” Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 253, 38 Cal. Rptr. 2d 65 (1995).

If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity. Saville v. Sierra College, 133 Cal. App. 4th 857, 866, 36 Cal. Rptr. 3d 515 (4th Dist. 2005); Kane v. National Ski Patrol, 88 Cal. App. 4th 204, 209, 105 Cal. Rptr. 2d 600 (4th Dist. 2001). The relationship between an instructor and student is instructive [*14] on the issue of whether the Arnott’s guides engaged in reckless conduct or increased the inherent risk involved in lava hiking. Kane, for example, involved candidates for a voluntary ski patrol who participated in a skills clinic instructed by Larry Stone, a National Ski Patrol System (“NSPS”) instructor. 88 Cal. App. 4th at 207. Stone led the clinic participants to the most difficult terrain at the resort. When the participants were reluctant to proceed through a portion of the trail, which was icy and spotted with trees, rocks and stumps, Stone asked the clinic participants what they would do “if there was a skier over the side?” Id. at 208. Although both plaintiffs felt uncomfortable with continuing down the terrain, they carried on, following Stone’s direction. Id. One plaintiff ultimately caught an “edge” with his ski, causing him to fall to his death, and the other plaintiff fell and suffered a broken leg. Id. The court granted summary judgment in favor of the defendant, holding that the doctrine of primary assumption of risk applied, negating the defendant’s duty of care. The court reasoned that “an instructor’s assessment errors – either in making the necessarily subjective [*15] judgment of skill level or the equally subjective judgment about the difficulty of the conditions – are in no way ‘outside the range of the ordinary activity involved in the sport.” Id. at 214.

Plaintiff admits that she is an experienced hiker. Andia Depo, 35:23-25. Plaintiff admits that falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain. Id. at 153:8-14. Plaintiff admits that prior to starting the hike she was aware that she would be hiking over “very sharp and uneven surfaces.” Id. at 51:8-13. Plaintiff does not introduce any evidence to refute that hiking across uneven and challenging natural terrain is an inherent risk of hiking to active lava flow, without which the general public would be substantially deprived of viewing this natural phenomenon. The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent Plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

Plaintiff admits that, prior to the hike, Arnott’s provided the following written disclosures, which she understood: that the natural terrain was uneven and challenging; that [*16] during the hike she would be responsible for the path she traveled; that the guides would give only broad direction; that she may have to return to the Rangers station alone; and that the trail was merely a preferred route, and not necessary to safely get back to the Rangers station. Despite these disclosures, Plaintiff asserts that the decision to allow Plaintiff to return to the Rangers station alone and subsequent conduct on the part of the Arnott’s guides constituted gross negligence. The Court finds that the decision to allow Plaintiff to return alone and subsequent conduct on the part of Arnott’s guides at most constituted “assessment errors,” but these “subjective judgment[s] about the difficulty of the condition[s],” were “in no way so reckless as to be totally outside the range of the ordinary activity involved” in the activity of lava hiking. See Kane, 88 Cal. App. 4th at 214. Plaintiff emphasizes that Arnott’s’ conduct, such as permitting her to participate in the hike wearing sneakers instead of hiking boots, was grossly negligent. However, the Court finds that there is no evidence in the record to support Plaintiff’s conclusion that Arnott’s conduct, including permitting [*17] Plaintiff to wear improper footwear, hike over thin lava crust, return to the Rangers station alone and without sufficient water, or return to the ship instead of going to the Hilo emergency room, increased the risk of Plaintiff’s injury. The Court concludes that there is no triable issue of fact as to whether Arnott’s conduct was so reckless as to be totally outside the range of the ordinary activity or otherwise increased the inherent risk involved in the activity of lava hiking.

The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for breach of duty of care.

B. Duty to Warn

“It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” Marshall v. United Airlines, 35 Cal. App. 3d 84, 90, 110 Cal. Rptr. 416 (1973).

Plaintiff admits she is an experienced hiker, that she was aware that falling is always a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover during the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the possibility that Plaintiff would [*18] have to return to the Rangers station alone and nature of the terrain. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to offer any evidence to demonstrate that the risk of slipping and falling on lava rock was any less obvious to Plaintiff than it was to Arnott’s. The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for failure to warn.

II. Plaintiff’s Claims Against Celebrity

Celebrity contends that although Plaintiff alleges separate causes of action in negligence for breach of due care and for failure to warn, both of these claims allege only failure to warn. Celebrity contends that it had no duty to warn Plaintiff of the risk of slipping and falling on lava rock during a hike through a lava field because the risk was patently obvious and equally apparent to Plaintiff and Celebrity.

Plaintiff’s Response in Opposition to the Motion for Summary Judgment on all of Plaintiff’s claims against Celebrity states in full:

[P]laintiff relied on Celebrity to provide her with reasonably safe shore excursions. The dangers of the lava hike with Arnott’s were not readily apparent to her or anyone else who had not [*19] taken the hike. Celebrity’s reliance on Deroche is misplaced.

This was not a scooter ride, which a reasonable person knows poses obvious dangers. It was a hike to a uniquely dangerous place. [Plaintiff] reasonably relied on Celebrity to exercise due care in providing her with a safe guide service, and in offering a potentially life-threatening venture. Celebrity had a duty to ensure that Arnott’ s was a reasonable safe and reliable service. Celebrity is liable for breach of that duty.

Opposition, p. 19-20.

A. Duty of Care

The duty of care of the owner of an excursion ship is a matter of federal maritime law. DeRoche v. Commodore Cruise Line, Ltd., 31 Cal. App. 4th 802, 807, 46 Cal. Rptr. 2d 468 (1994). “That duty is to exercise reasonable care under the circumstances.” Id. at 807-8.

Plaintiff fails to introduce any evidence to support her claim that Celebrity did not exercise due care when it enrolled Plaintiff in “excursion HL 15, the Kilauea Lava Viewing Hike, an unreasonably dangerous and poorly run and operated excursion.” See FAC, P 35-36. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed introduce any evidence demonstrating Celebrity breached its duty [*20] of due care to Plaintiff. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for breach of duty of care.

B. Duty to Warn

“[I]t is generally accepted that where a carrier . . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” DeRoche, 31 Cal. App. 4th at 809. However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.” Id. at 810.

As previously discussed, Plaintiff admits she is an experienced hiker, that she was aware that falling is a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover for the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the challenging nature of the terrain and the possibility that Plaintiff would have to return to the Rangers station alone. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed offer any evidence that demonstrates the risk of falling [*21] on lava rock was any less obvious to her than it was to Celebrity. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for failure to warn.

Conclusion

Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures (Doc. # 40) is GRANTED. The Court directs the Clerk of the Court to enter JUDGMENT for Defendants and against Plaintiff.

DATED: November 29, 2007

/s/ William Q. Hayes

WILLIAM Q. HAYES

United States District Judge

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Posted: September 19, 2014 | Author: Recreation Law | Filed under: Youth Camps, Zip Line | Tags: Arches National Park, Colorado River, Hiking, Moab, Rafting, Utah | Leave a comment

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Dates don’t fit your schedule? Call CFI today 800-860-5262 and create an extraordinary custom canyon country vacation for just your family or group! Our calendar fills quickly so plan ahead with 14 days advance notice for day trips, and 60 days for multi-day trips.

Join us this fall for a trip or seminar on the Colorado Plateau. It’s a great time of year to visit Southeast Utah. Reserve your space for a unique trip, seminar, or tour today!

Wildlife of Canyonlands National Park 1-Day Seminar for the Park’s 50th Anniversary

September 20, 2014.It’s Canyonlands National Park’s 50th anniversary month! Get to know the wildlife that inhabit the Park’s grand landscape.

The Wildlife of Canyonlands National Park day-seminar will be led by Dr. Tim Graham, a biologist formerly with the US Geological Survey staff in Moab. Explore a variety of habitats in and near the Needles District of Canyonlands National Park. Celebrate and examine the diversity of small animals living in these semi-arid environments.

Call: 800-860-5262 – 435-259-7750.

Click for more information.

Email: cfimoab.org

Book Cliffs/Three Canyon ArchaeologySeptember 27-28, 2014. Lead by CFI with Dr. Carol Patterson and John Weisheit. This is a rare opportunity to explore the lesser visited area of the Bookcliffs near the Colorado border and to see incredible native rock art spanning 8000 years and historic trapper inscriptions. Learn about ranching families, cattle and sheep “wars”, about geologic formations and how the current area is earmarked for development. Bed and breakfast stay at rustic Three Canyons Ranch is included. Call 800-860-5262 or 435-259-7750. Click for more information. Email:

cfimoab.org

Lost World of Range Creek – Sold out!Call 800-860-5262 or 435-259-7750 about 2015 dates.Click for more information.

Cedar Mesa/Comb Ridge Archaeology Trip -Sold out! Call 800-860-5262 or 435-259-7750 about 2015 dates. Click for more information.

Half-day tours every weekend through October

Moab’s Ancient Past Rock Art TourFridays, Saturdays and Sundays 8:30 a.m. to 12:30 p.m. Call 800-860-5262 or 435-259-7750. Click for more information.

Sunset Tour of Arches National Park Fridays, Saturdays and Sundays 4:00 to 8:00 p.m. Call 800-860-5262 or 435-259-7750. Click for more information.

Need different dates? Plan a private, custom trip!We can help you plan a private, custom trip for a unique adult or family adventure.info, or call us at 800-860-5262 or 435-259-7750.

Has the National Park Service or the Grand Canyon National Park created a new “group” between commercial and private: noncommercial, organized group

Posted: September 5, 2014 | Author: Recreation Law | Filed under: Uncategorized | Tags: Colorado, Grand Canyon, Grand Canyon National Park, Hiking, National Park Service, Non-commercial organized group, Northern Arizona, NPS, permit, Rim to Rim | Leave a comment

What has been casually used to define car groups has moved into the area of activities?

The National Park Service, Grand Canyon National Park issued new regulations concerning running or hiking rim to rim or a rim to rim to rim. Rim to rim hike or run starts at either the North or South Rim, the person follows the trail to the floor of the canyon and then ascends back up to the other rim. A rim to rim to rim you start at one rim runs down and back up to the other rim and then turns around and run back. A rim to rim hike or run is 21 miles and has 4000 drop and gain in altitude.

In Northern Arizona no matter what time of the year, this is a tough hike or run for one day.

Of course, once something gets public attention everyone has to do it. (See Everest if you don’t believe this.) Now people are undertaking the feat without enough training, skill or knowledge putting stress on the already overburdened NPS staff and resources.

It is for that reason that groups of people doing this now require a permit. The Permit information page is here if you are interested in taking a group of seven or more on one of these adventures.

What caught my attention was the term used to describe these groups. “Noncommercial organized groups.” In the recent past the NPS has used this term to reduce or raise fees on groups visiting the park, mostly by car. This term was applied to church groups, school groups, etc. The term seems to be defined as “Groups and organizations that are non-commercial, and do not qualify for an educational fee waiver (churches, school clubs, scout groups, and other organizations)….” However, this is the first time I have seen it applied to anything other than entering the park.

By this, I mean the NPS charges a different rate to groups as they come through the front gate. Consequently, the group is identified, fills out a permit and pays the fee as a group.

Here the term has been applied to an activity in the park. Normally, activities are defined as private or commercial. Private are a group of people where no one makes money on the trip or is paid to be there. Commercial is somewhat defined where someone is making money (not necessarily a profit) or is being paid to go on the trip.

Is this a new type of permit? Where is this going? Are we going to see it in the future (yes)?

To Read the Grand Canyon NP article see: Grand Canyon Announces Interim Permits for Organized Groups Conducting Rim-to-Rim and Extended Day Hiking and Running

To read an article on the issue see: R2R Permits Required at Grand Canyon

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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Keen Communitcations (aka Wilderness Press) is workign to get people outdoors with several new books.

Posted: March 9, 2013 | Author: Recreation Law | Filed under: Uncategorized | Tags: Baltimore, Books, Colorado, Hiking, Keen Communications, Menasha Ridge Press, Outdoors, Raliegh, Wilderness Press | 1 Comment

New books from Wilderness Press, Menasha Ridge Press, and Clerisy PressTo order books or for more information about any of our titles, please contact your PGW Representative, Mike Jones (mike or (503) 344-4683), or Kara Pelicano (kara or (859) 815-7205).***A complete PDF of our 2013 catalog can be viewed HERE***

February 2013 releases

Walking Baltimore: An Insider’s Guide to 33 Historic Neighborhoods, Waterfront Districts, and Hidden Treasures in Charm City

by Evan Balkan

ISBN: 978-0899977010

Retail: $18.95

Longtime resident Evan Balkan leads you on 33 self-guided tours from Fells Point to the Inner Harbor, Mount Vernon to Mount Washington, and all the diverse neighborhoods in between. This book will show locals and visitors alike how and why Baltimore was an essential player in the country’s early history and continues to be influential today. With history, culture, architectural trivia, and tips on where to dine and shop, readers will soak up all Charm City has to offer.

January 2013 releases

Five-Star Trails Louisville & Southern Indiana: Your Guide to the Area’s Most Beautiful Hikes

by Valerie Askren

ISBN: 978-0897326254

Retail: $15.95

This detailed guide covers 37 of the region’s best trails, from easy strolls along Louisville’s many paved trails to treks through serene woods and longer hikes traversing densely wooded hills, all providing a broad spectrum of the varied landscape of Kentucky and Southern Indiana. Included are GPS-based trail maps and elevation profiles, detailed directions to trailheads, and ratings for scenery, difficulty, trail condition, solitude, and accessibility for children.

Five-Star Trails Raleigh & Durham: Your Guide to the Area’s Most Beautiful Hikes

by Joshua Kinser

ISBN: 978-0897329538

Retail: $15.95

This detailed guide covers 31 of the region’s best trails, from urban strolls to educational forest treks to longer adventures near lakes, creeks, and mountains, providing a broad spectrum of the varied landscape of central North Carolina and its plentiful wildlife. Included are GPS-based trail maps and elevation profiles, detailed directions to trailheads, and ratings for scenery, difficulty, trail condition, solitude, and accessibility for children.

November 2012 releases

Best Tent Camping: Colorado, 5th Edition

by Kim Lipker and Johnny Molloy

ISBN: 978-0897329903

Retail: $15.95

In this new 5th edition, Lipker and Molloy have updated 50 campgrounds in five distinct Colorado regions. Included are detailed maps, driving directions and GPS coordinates, ratings for beauty, privacy, spaciousness, quiet, safety and security, and cleanliness, and key information such as fees, restrictions, dates of operation, and facilities. This guidebook is handy even after readers arrive at your perfect campsite.

Hiking Kentucky’s Red River Gorge: Your Definitive Guide to the Jewel of the Southeast

by Sean Patrick Hill

ISBN: 978-0897329613

Retail: $15.95

This is the only definitive guide to trails in one of the Southeast’s most famous regions. Including the Red River Gorge Geological Area, Natural Bridge State Resort Park, and Clifty Wilderness, this book showcases 25 of the best hikes in the area. Without this book, readers might miss the hidden hiking treasures offered in the Gorge. This guide includes GPS-based trail maps and elevation profiles, detailed directions to trailheads, and ratings for scenery, difficulty, trail condition, solitude, and accessibility for children.

Wild Cincinnati: Animals, reptiles, insects, and plants to watch out for at home, at the park,

and in the woods

by F. Lynne Bachleda

ISBN: 978-1578605170

Retail: $15.95

This definitive reference book will help keep readers and their families safe from the creatures that bite, sting, attack, or just plain irritate, in and around Cincinnati and Northern Kentucky. It will also help readers identify the local flora and fauna and help them understand how these potentially dangerous critters breed, where they live, and how they defend themselves. With a blend of humor and serious advice, author Bachleda dispels fears of these critters and plants. Knowledge, not fear, is the best line of defense. Armed with this guide, readers will feel confident and safe, whether they’re camping, visiting a local park, or enjoying time together at home.

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

Guiding Opportunity at Grand Canyon National Park

Posted: February 3, 2012 | Author: Recreation Law | Filed under: Arizona | Tags: Arizona, Grand Canyon National Park, Grand Canyon National Park, Hiking, NationalParkService, Park, South Rim | Leave a comment

Arizona Outback Adventures will be conducting a series of day hikes on various trails at the South Rim of Grand Canyon National Park on May 19th 2012.

We are recruiting guides to join our existing staff for three days of work on a contract basis.

Pay is $100.00-$120.00 per day dependent upon experience and qualifications

Guaranteed gratuity plus additional tips possible

All meals, park entrance and camping fees included

Applicants are required to have:

· Current WFR certification (or higher)

· Current CPR certification

· Good general knowledge of Grand Canyon’s history, geology, flora and fauna

· Experience hiking the main trails from the South Rim

· The ability to handle a group of seven diverse hikers on your own

· The ability to follow specific instructions and procedures

· A day pack, comprehensive first aid kit, trowel and all appropriate clothing and footwear for changing weather conditions

· Be physically fit

· Have a pleasant, friendly and engaging personality

· Have a presentable appearance

· Be available from 5:00am 5/17 through 9:00pm 5/19

· Experienced Grand Canyon hiking and rafting guides preferred

To apply email tim@aoa-adventures.com with a brief outline of your experience and qualifications, list all trails that you have hiked from the Main South Rim area (Hermit to Grandview) and the approximate number of times on each trail. Attach a current photo and a single sheet with a color scan of your Driver’s License, WFR Card and CPR card (if separate) with expiration dates clearly showing.

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Guiding Job in the Grand Canyon

Posted: February 3, 2012 | Author: Recreation Law | Filed under: Arizona | Tags: Angel’s Gate Tours, Arizona, Colorado River, Grand Canyon National Park, Grand Canyon National Park, Guide, Hiking, National Parks and Monuments, Park, Travel and Tourism | Leave a comment

Angel’s Gate Tours is looking for experienced Grand Canyon guides to lead sightseeing tours, day hikes and the occasional backpacking trip in Grand Canyon. We are specifically recruiting experienced Grand Canyon boatman and other Grand Canyon backcountry professionals. Please contact us if you meet the following requirements:

Minimum WFR certified, with CPR. (More advanced med certs are also acceptable).
Good driving record. (1 minor ticket is usually OK)
Must be able to pass Arizona DOT physical (this is pretty simple, basically it verifies that you can see, hear and move well enough to drive a vehicle).
Outstanding Grand Canyon knowledge. (You know your schist from Shi-nola, and can present complex material in an entertaining manner).
Hiking experience on all South Rim trails.

This is an excellent opportunity for Grand Canyon backcountry professionals that need to spend more time in town due to family, children, dog issues or other constraints. The majority of our tours and hikes depart from and return to Flagstaff daily. Please visit our website at www.SeeGrandCanyon.com and call (928) 814-2277 to schedule an interview. Angel’s Gate Tours is an EOE.

Recreation Law

It's not what I write, It's what you Learn

N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 116 A.3d 1060, 2015 N.H. LEXIS 34

Even hikers sue for their injuries.

Kalter, et al., v. Grand Circle Travel, et al., 631 F.Supp.2d 1253 (C.D.Cal. 2009)

Act Now & Stop this Minnesota bill

Interesting decision only real defense was the Wyoming’s Recreation Safety Act, which provides little if any real defense.

The title says it all! Wrongful death suit filed by parent of man who drowned on Kings Canyon National Forest trip

Wrongful death suit filed by parent of man who drowned on Kings Canyon National Forest trip

Texas appellate court upholds release for claims of gross negligence in trampoline accident that left plaintiff a paraplegic.

Summer 2015 Commercial Fatalities

Clean Trails: An Organization YOU should know about

Trail Talk

www.cleantrails.org

5 Hiking Etiquette Tips You Need to Know.

No written signature on the release so there is no release, even though the plaintiff acknowledged she would have signed one.

Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438

Update: Clean Trails, you should join

The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Want to Get Out, Have Fun, Meet Great People and Get Educated?

Has the National Park Service or the Grand Canyon National Park created a new “group” between commercial and private: noncommercial, organized group

Keen Communitcations (aka Wilderness Press) is workign to get people outdoors with several new books.

Guiding Opportunity at Grand Canyon National Park

Guiding Job in the Grand Canyon

35 Years of Outdoor Retailer

Recognized as the Go to Lawyer by the Outdoor Recreation Industry

If you want to book an appointment?

Outdoor Recreation Risk Management, Insurance & Law

My New Book: Boating the Grand Canyon: A “How To” for Private Boaters

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James H. Moss, J.D.

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It's not what I write, It's what you Learn

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Wrongful death suit filed by parent of man who drowned on Kings Canyon National Forest trip

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Trail Talk

5 Hiking Etiquette Tips You Need to Know.

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35 Years of Outdoor Retailer

Recognized as the Go to Lawyer by the Outdoor Recreation Industry

If you want to book an appointment?

Outdoor Recreation Risk Management, Insurance & Law

My New Book: Boating the Grand Canyon: A “How To” for Private Boaters

Enter your email address to follow this blog and receive notifications of new posts by email.

James H. Moss, J.D.

Pages

Follow Blog via Email

Follow on Twitter

Categories: by Activity, State & Legal Issue

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