SW, a minor v. Towers Boat Club, Inc., 2012 COA 77; 2012 Colo. App. LEXIS 642
Posted: May 21, 2012 Filed under: Colorado, Legal Case | Tags: Appeal, Colorado, Law, Negligence, Plaintiffs-Appellants, Summary judgment Leave a commentSW, a minor v. Towers Boat Club, Inc., 2012 COA 77; 2012 Colo. App. LEXIS 642
SW, a minor by and through his parents and next friends, David and Rhonda Wacker; David Wacker; and Rhonda Wacker, Plaintiffs-Appellants, v. Towers Boat Club, Inc., Defendant-Appellee.
Court of Appeals No. 11CA0935
COURT OF APPEALS OF COLORADO, DIVISION THREE
2012 COA 77; 2012 Colo. App. LEXIS 642
April 26, 2012, Decided
NOTICE:
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
PRIOR HISTORY: [**1]
Jefferson County District Court No. 10CV1507. Honorable Jane A. Tidball, Judge.
DISPOSITION: JUDGMENT AFFIRMED.
COUNSEL: Purvis Gray, LLP, John Purvis, Boulder, Colorado, for Plaintiffs-Appellants.
Senter Goldfarb & Rice, L.L.C., Arthur Kutzer, Joel Palmer, Denver, Colorado, for Defendant-Appellee.
JUDGES: Opinion by JUDGE TERRY. Roy, J., concurs. Gabriel, J., specially concurs.
OPINION BY: TERRY
OPINION
[*P1] As an issue of first impression, we address whether, under the premises liability statute, section 13-21-115, C.R.S. 2011, a child licensee may assert a claim based on the attractive nuisance doctrine. We conclude that a child licensee may not maintain such a claim.
[*P2] Plaintiffs, SW, David Wacker, and Rhonda Wacker, appeal the trial court’s summary judgment in favor of defendant, Towers Boat Club, Inc. (landowner). We affirm.
I. Background
[*P3] On August 2, 2008, SW, then eleven years old, attended a social gathering at Poudre Reservoir Number 6. While he was playing on an inflatable structure rented by landowner for the gathering, wind lifted the structure into the air and SW fell to the ground, sustaining severe injuries. Plaintiffs eventually settled the claims that they asserted against other defendants.
[*P4] Plaintiffs asserted two claims against [**2] landowner, one for negligence and the other under Colorado’s premises liability statute, section 13-21-115. Landowner moved for summary judgment. The trial court granted the motion as to plaintiffs’ negligence and premises liability claims. However, the court construed the complaint to include a claim for attractive nuisance, and denied summary judgment as to that claim.
[*P5] Landowner moved for reconsideration, arguing that the attractive nuisance doctrine was inapplicable to SW. The court agreed and dismissed plaintiffs’ attractive nuisance claim. Plaintiffs appeal only the trial court’s dismissal of the attractive nuisance claim.
II. Standard of Review
[*P6] [HN1] We review de novo an order granting a motion for summary judgment. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218 (Colo. 2002). [HN2] Summary judgment is appropriate only where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. The nonmoving party is entitled to the benefit of all favorable inferences reasonably drawn from the undisputed facts, and all doubts are resolved against the moving party. A.C. Excavating v. Yacht Club II Homeowners Ass’n, 114 P.3d 862, 865 (Colo. 2005).
[*P7]
III. [**3] Discussion
[*P8] We are not persuaded by plaintiffs’ contention that the trial court erred in granting landowner’s motion for summary judgment.
[*P9] [HN3] Section 13-21-115(3), C.R.S. 2011, classifies entrants upon the land of another as trespassers, licensees, or invitees. As relevant here, that subsection outlines the respective duties that a landowner owes to each class, as follows:
[HN4] (3)(a) A trespasser may recover only for damages willfully or deliberately caused by the landowner.
(b) A licensee may recover only for damages caused:
(I) By the landowner’s unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew; or
(II) By the landowner’s unreasonable failure to warn of dangers not created by the landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew.
(c)(I). . . [A]n invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.
§ 13-21-115(3).
[*P10] The trial court ruled that SW was a licensee, and plaintiffs do not contest that ruling on appeal. Instead, [**4] they argue that the trial court erred in ruling that, because SW was not a trespassing child who was enticed onto the property by an attractive nuisance, he could not assert a claim for attractive nuisance. Plaintiffs contend this ruling contravenes the supreme court’s holding in Gallegos v. Phipps, 779 P.2d 856, 859 (Colo. 1989). We disagree.
A. Attractive Nuisance Doctrine
[*P11] Plaintiffs argue that no Colorado appellate decision expressly holds that the attractive nuisance doctrine is limited to trespassing children. They contend that the Colorado decisions addressing attractive nuisance all involve factual scenarios in which a child was trespassing, and thus the issue of whether the doctrine can apply to licensees such as SW has not previously been decided. They further contend that, although SW has been determined to be a licensee, he should be able to invoke the attractive nuisance doctrine.
[*P12] We disagree that existing Colorado decisions, when construed together with the premises liability statute, leave any doubt about the application of the attractive nuisance doctrine, and conclude [HN5] the doctrine unequivocally applies only to children enticed by an attractive nuisance to trespass on [**5] another’s property. Thus, the doctrine cannot be applied to SW.
1. History of Attractive Nuisance Doctrine in Colorado
[*P13] The attractive nuisance doctrine developed to provide legal relief to certain trespassing children who otherwise would be barred from recovery because of Colorado’s rule that a landowner owes no duty to make or keep premises safe for a trespasser. See Hayko v. Colorado & Utah Coal Co., 77 Colo. 143, 147, 235 P. 373, 374 (1925), overruled in part by Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), superseded by § 13-21-115 as noted in Gallegos, 779 P.2d at 861; see also John W. Grund & J. Kent Miller, 7 Colo. Prac., Personal Injury Practice — Torts and Insurance § 19.5, at 314-15 (2d ed. 2000).
[*P14] The doctrine has since been modified, both by ensuing case law and by statute. Because the history of attractive nuisance doctrine is tied to the general history of premises liability law in Colorado, we briefly summarize the unique history of Colorado premises liability law.
[*P15] The supreme court described some of that history in Gallegos, as follows:
Until 1971, the law in Colorado governing landowner[s’] liability followed the common law’s emphasis on whether [**6] the injured party was an invitee, licensee, or trespasser. See [Mile High Fence, 175 Colo. at 541, 489 P.2d at 311]; Husser v. School Dist. No. 11, 159 Colo. 590, 593, 413 P.2d 906, 908 (1966). Under the common law, the landowner’s liability depended exclusively upon the injured party’s status. For example, a landowner had no duty to make or keep his premises safe for a trespasser. Staley v. Security Athletic Ass’n, 152 Colo. 19, 21, 380 P.2d 53, 54 (1963). If, however, the person was a licensee, the owner had a duty not to willfully or wantonly injure the person. Gotch v. K & B Packing & Provision Co., 93 Colo. 276, 278, 25 P.2d 719, 720 (1933), overruled [by Mile High Fence, 175 Colo. 537, 489 P.2d 308]. An even higher standard was owed if the person was an invitee; where an invitee was upon the owner’s land, the owner had a duty to have the land in a reasonably safe condition and to warn of concealed defects that might have been discovered in the exercise of reasonable care. Id. at 278, 25 P.2d at 720.
In 1971, Colorado’s common-law scheme governing landowner’s liability was abolished by [Mile High Fence], 175 Colo. 537, 489 P.2d 308. In [that case], the court held that the classification [**7] of one who is upon the property of another as invitee, licensee, or trespasser was no longer dispositive of the landowner’s liability or the degree of care owed by the landowner. 175 Colo. at 548, 489 P.2d at 314. Rather, the relevant inquiry was whether the landowner, in the management of the property, acted as a reasonable person in view of the probability or foreseeability of injuries to others. Id. A person’s status as an invitee, licensee, or trespasser might have some bearing on the issue of liability, but it was only one factor among many to be considered in making the determination. 175 Colo. at 548, 489 P.2d at 314-15.
Mile High Fence remained in effect until May 16, 1986, when the General Assembly enacted [the first version of] section 13-21-115 . . ., for the explicit purpose of resurrecting the common-law classification scheme laid to rest by [Mile High Fence]. Under the statute, categories analogous to trespasser, licensee, and invitee were established . . . . According to the legislators who sponsored House Bill 1205, which later became section 13-21-115, the common-law categories were reestablished because the reasonable person standard created by Mile High Fence led [**8] to unpredictable and inequitable results. Of particular concern to legislators was the perception that under Mile High Fence, the responsibility for a trespasser’s injuries was unfairly shifted from the trespasser to the landowner. Section 13-21-115 was, as one legislator put it, designed so that “responsibility falls upon the trespasser.”
Gallegos, 779 P.2d at 860-61 (footnotes omitted).
[*P16] In Gallegos, the supreme court concluded that the then-current version of section 13-21-115 was unconstitutional because it created an “inverted hierarchy” of duties, with a higher duty owed to licensees than to invitees. Applying the rational basis test for constitutional scrutiny, the court concluded that this statutory scheme was contrary to well-established common law principles, lacked a rational basis, and was unconstitutional. Id. at 862-63.
[*P17] After Gallegos was announced, the General Assembly amended section 13-21-115. As pertinent to our historical analysis, that amended section states:
[HN6] (1.5) The general assembly hereby finds and declares:
(a) That the provisions of this section were enacted in 1986 to promote a state policy of responsibility by both landowners and those upon the land as well [**9] as to assure that the ability of an injured party to recover is correlated with his status as a trespasser, licensee, or invitee;
(b) That these objectives were characterized by the Colorado supreme court as “legitimate governmental interests” in [Gallegos];
(c) That the purpose of amending this section in the 1990 legislative session is to assure that the language of this section effectuates these legitimate governmental interests by imposing on landowners a higher standard of care with respect to an invitee than a licensee, and a higher standard of care with respect to a licensee than a trespasser;
(d) That the purpose of this section is also to create a legal climate which will promote private property rights and commercial enterprise and will foster the availability and affordability of insurance;
(e) That the general assembly recognizes that by amending this section it is not reinstating the common law status categories as they existed immediately prior to [Mile High Fence,] but that its purpose is to protect landowners from liability in some circumstances when they were not protected at common law and to define the instances when liability will be imposed in the manner most consistent [**10] with the policies set forth in paragraphs (a), (c), and (d) of this subsection (1.5).
§ 13-21-115(1.5)(a)-(e).
[*P18] As part of the reenactment of section 13-21-115, the legislature revived the common law doctrine of attractive nuisance, which had been rendered unnecessary by Mile High Fence. See Grund and Miller, § 19.5, at 314; see also Vigil v. Franklin, 103 P.3d 322, 331 (Colo. 2004) (as reenacted in 1990, § 13-21-115(2) “expressly provided for the attractive nuisance doctrine”); Union Pac. R.R. Co. v. Martin, 209 P.3d 185, 188 (Colo. 2009) (in reenacting § 13-21-115, legislature “specifically singl[ed] out for continued vitality the common law doctrine of attractive nuisance”). But see Salazar v. City of Sheridan, 44 Colo. App. 443, 445-46, 618 P.2d 708, 709-10 (1980) (mentioning attractive nuisance claim brought by plaintiff); Cent. Mut. Ins. Co. v. Wilson, 533 P.2d 57, 58 (Colo. App. 1975) (not published pursuant to C.A.R. 35(f)) (same).
Subsection (2) states:
[HN7] In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on [**11] such property, the landowner shall be liable only as provided in subsection (3) of this section. Sections 13-21-111, 13-21-111.5, and 13-21-111.7 shall apply to an action to which this section applies. This subsection (2) shall not be construed to abrogate the doctrine of attractive nuisance as applied to persons under fourteen years of age. A person who is at least fourteen years of age but is less than eighteen years of age shall be presumed competent for purposes of the application of this section.
§ 13-21-115(2) (emphasis added).
2. Revival of Attractive Nuisance Doctrine
[*P19] Plaintiffs contend that the amendment to section 13-21-115(2) changed not just the upper age limit of the children to whom it could be applied, from age eighteen to age fourteen. They contend it also did away with the attractive nuisance doctrine as it had previously existed in Colorado. In its place, they argue that principles reflected in CJI-Civ. 4th 12:4 (1998) and the Restatement (Second) of Torts §§ 299 and 343B control. We disagree.
[*P20] [HN8] The premises liability statute gives no indication that the attractive nuisance doctrine as applied in the publications cited by plaintiffs, or in jurisdictions other than Colorado, [**12] is intended to supplant preexisting Colorado precedents. The only logical interpretation of subsection (2)’s incorporation of the attractive nuisance doctrine is that it is to be applied in accordance with preexisting Colorado precedents, to the extent they do not conflict with the provisions of section 13-21-115. See Grund & Miller, § 19.5, at 314 (in enacting section 13-21-115, “the legislature expressly revived the attractive nuisance doctrine”); see also Vaughan v. McMinn, 945 P.2d 404, 409 (Colo. 1997) (legislature “is presumed to be aware of the judicial precedent in an area of law when it legislates in that area”); State Engineer v. Castle Meadows, Inc., 856 P.2d 496, 504 (Colo. 1993) (same).
[*P21] We reject plaintiffs’ argument that the provisions of CJI-Civ. 12:4 should guide us in the application of attractive nuisance law. As relevant here, CJI-Civ. 12:4 provides that a plaintiff may recover on a claim for attractive nuisance if, among other things, the plaintiff “(was attracted onto the premises by [an unusual activity being carried on on the premises] [or] [by an unusual condition, other than a natural condition, existing on the premises]) (or) (was on the premises with the [**13] express or implied consent of the defendant)” (emphasis added). The italicized language is not consistent with Colorado case law, as discussed herein, and we disapprove it. See Krueger v. Ary, 205 P.3d 1150, 1154 (Colo. 2009) ( [HN9] pattern jury instructions are not law, not authoritative, and not binding on Colorado courts; they are not to be used if they do not reflect the prevailing law).
[*P22] The sections of the Restatement cited by plaintiffs do not reflect Colorado law and have not been adopted by Colorado courts, and thus are not binding here. See Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 79 (Colo. 1998). The same is true of plaintiffs’ citation to 62 Am. Jur. 2d Premises Liability § 299. We note that both 62 Am. Jur. 2d Premises Liability § 299 and the Restatement (Second) of Torts § 343B indicate that [HN10] Colorado is in the minority of states that require a trespass in order for the attractive nuisance doctrine to apply. See Restatement (Second) of Torts § 339 cmt. e (1965) (citing Esquibel v. City & County of Denver, 112 Colo. 546, 151 P.2d 757 (1944)); 62 Am. Jur. 2d Premises Liability § 299 n.9 (citing Denver Tramway Corp. v. Callahan, 112 Colo. 460, 150 P.2d 798 (1944)).
[*P23] [**14] We conclude that historical Colorado attractive nuisance doctrine can easily be harmonized with other provisions of the premises liability statute, and that [HN11] the attractive nuisance doctrine has been modified by the statute only to the extent that the doctrine can no longer be applied to persons above age fourteen. § 13-21-115(2).
B. Inapplicability of Attractive Nuisance Doctrine to SW
[*P24] Plaintiffs contend that the attractive nuisance doctrine should be interpreted to apply to child trespassers, licensees, and invitees. Because such an interpretation would be inconsistent with Colorado law, we disagree.
[*P25] Colorado courts without exception have held that [HN12] the attractive nuisance doctrine may be invoked only where an attraction on land “entices children to trespass.” Hayko, 77 Colo. at 146, 235 P. at 374 (“While he [the owner of the premises] owes a duty to one invited, and some attractive agencies may amount to an invitation to a child, yet such an agency must invite to trespass and not merely after trespass.”); see also Esquibel v. City & County of Denver, 112 Colo. 546, 549, 151 P.2d 757, 758 (1944) (“[The] doctrine consists in maintaining an attraction which entices to trespass, not merely [**15] entices one after he has become a trespasser.”), overruled in part by Mile High Fence, 175 Colo. 537, 489 P.2d 308; Denver Tramway Corp. v. Garcia, 154 Colo. 417, 423, 390 P.2d 952, 956 (1964) (same); Staley v. Sec. Athletic Ass’n, 152 Colo. 19, 22-25, 380 P.2d 53, 55 (1963) (same), overruled in part by Mile High Fence, 175 Colo. 537, 489 P.2d 308; accord Garel v. Jewish Cmty. Centers, 163 Colo. 110, 112, 428 P.2d 714, 715 (1967) (noting that the Hayko rule on attractive nuisance has been “consistently followed” by the Colorado Supreme Court); Guilfoyle v. Missouri, Kansas & Texas R.R. Co., 812 F.2d 1290, 1292 (10th Cir. 1987) (attractive nuisance doctrine “imposes a duty of care on landowners to prevent serious harm to trespassing children”).
[*P26] Moreover, contrary to plaintiffs’ argument, the supreme court has explicitly stated that [HN13] “the attractive-nuisance doctrine is only an exception to the general rule limiting the liability of landowners as to [child] trespassers.” Niernberg v. Gavin, 123 Colo. 1, 3, 224 P.2d 215, 216 (1950) (emphasis added).
[*P27] Recognizing the continued vitality of that rule is consistent with the legislature’s intent. As the supreme court stated in Gallegos, by amending [**16] the premises liability statute to “re-link a landowner’s duty and an injured party’s ability to recover damages with the party’s status as an invitee, licensee, or trespasser,” the legislature intended “that a landowner’s liability should once again depend upon the landowner’s knowledge of the other person’s presence and the reason for the presence on the property.” 779 P.2d at 861.
[*P28] We therefore conclude that the common law doctrine of attractive nuisance applies only to trespassing children.
C. Equal Protection
[*P29] Plaintiffs further contend that limiting the application of the attractive nuisance doctrine to child trespassers would result in an “inverted hierarchy” of landowner duties and would thus contravene Gallegos and be unconstitutional. We are not persuaded.
[*P30] Initially, the majority notes our respectful disagreement with the assertion in the special concurrence that we need not reach the plaintiffs’ constitutional argument. Plaintiffs in essence assert that, to avoid an equal protection problem, a licensee must always receive better treatment in the law than would a trespasser, regardless of the reason for entry on the land, and that is the linchpin of their argument that they are [**17] entitled to assert an attractive nuisance claim here. Thus, we conclude that the necessity to analyze the constitutional question is not dispelled by that fact that, as recognized by the special concurrence, plaintiffs cannot establish but one element of an attractive nuisance claim, namely, enticement by an attractive nuisance to trespass.
[*P31] In Gallegos, the supreme court held that the pre-1990 version of the premises liability statute violated the plaintiffs constitutional equal protection guarantees because it “impose[d] on landowners a higher standard of care with respect to a licensee than an invitee.” 779 P.2d at 862. The court held that “[s]uch an inverted hierarchy of duties bears no rational relationship to a legitimate governmental interest,” and would deny the plaintiff equal protection of the laws. Id. (citing U.S. Const. amend. XIV, § 1; Colo. Const. art. II, § 25).
[*P32] In response to Gallegos, the General Assembly repealed and reenacted the premises liability statute to impose higher duties on landowners with respect to licensees than to trespassers, and higher still duties with respect to invitees than to trespassers. Vigil, 103 P.3d at 326.
[*P33] Here, in essence, plaintiffs contend [**18] that, as applied by the trial court, the attractive nuisance doctrine would violate the constitutional guarantee of equal protection of the laws and thus would be unconstitutional. See Gallegos, 779 P.2d at 863. We are not persuaded.
[*P34] ” [HN14] Because section 13-21-115 does not infringe upon a fundamental right, a suspect class, or a classification triggering an intermediate standard of review, the statute need only have some rational basis in fact and bear a rational relationship to a legitimate governmental interest to be valid.” Gallegos, 779 P.2d at 860.
[*P35] Plaintiffs argue that the duty to exercise reasonable care owed by a landowner to trespassing children under the attractive nuisance doctrine is a more expansive, general, and higher standard of care than that owed to child licensees, and that because trespassers should be the least favored of all entrants on land, such a higher standard would bear no rational relationship to a legitimate governmental interest. As support for this proposition, plaintiffs cite only CJI-Civ. 12:4, which they contend imposes on a landowner a duty to “exercise reasonable care to protect persons like [the] plaintiff from injury.” As noted above, this jury instruction [**19] is not binding Colorado law, Krueger, 205 P.3d at 1154, and plaintiffs have not provided us with any Colorado precedent that would establish that duty of care.
[*P36] We disagree that [HN15] the “reasonable care” standard imposed on landowners as to trespassing children under the attractive nuisance doctrine is a higher standard of care than is owed to child invitees under the premises liability statute. Rather, section 13-21-115 sets forth standards of reasonable care applicable to landowners, and those standards of care vary depending on the status of the entrant on land. Compare § 13-21-115(3)(b)(I)-(II) (licensee may recover only for damages caused by landowner’s “unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which landowner actually knew,” or “unreasonable failure to warn of” described dangers of which landowner actually knew) (emphasis added) and § 13-21-115(3)(c)(I)-(II) (invitee may recover for damages caused by a “landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known,” except that, as to agricultural or vacant land, invitee may recover for damages “caused [**20] by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew”) (emphasis added), with § 13-21-115(3)(a) (trespasser may recover only for damages “willfully or deliberately caused by the landowner”).
[*P37] The logical implication of plaintiffs’ argument is that, to avoid the “inverted hierarchy” equal protection problem identified in Gallegos, invitees and licensees must always receive more favorable treatment than trespassers. See § 13-21-115(3.5) (“It is the intent of the general assembly in enacting the provisions of subsection (3) of this section that the circumstances under which a licensee may recover include all of the circumstances under which a trespasser could recover and that the circumstances under which an invitee may recover include all of the circumstances under which a trespasser or a licensee could recover.”).
[*P38] However, by incorporating attractive nuisance doctrine in section 13-21-115, the legislature necessarily accepted that doctrine’s treatment of young children trespassers, who were enticed onto property by an attractive nuisance, as invitees. See United Zinc & Chem. Co. v. Britt, 258 U.S. 268, 275, 42 S. Ct. 299, 66 L. Ed. 615 (1922) (“knowingly [**21] to establish and expose . . . something that is certain to attract [children], has the legal effect of an invitation to them”); see also Denver Tramway Corp. v. Callahan, 112 Colo. at 464-65, 150 P.2d at 799-800 (“[T]here is no question but that the boy was a trespasser on the private property of defendant, unless he was ‘invited’ by an ‘attractive nuisance,’ as recognized by our decisions.”); Kopplekom v. Colorado Cement-Pipe Co., 16 Colo. App. 274, 277, 64 P. 1047, 1048 (1901) (citing with approval cases from other jurisdictions that treat children enticed by an attractive nuisance to trespass as invitees); accord Concrete Constr., Inc. v. Petterson, 216 So. 2d 221, 222 (Fla. 1968) (under attractive nuisance doctrine, a “child who enters upon another’s property in response to a special attraction is classified as an implied invitee”).
[*P39] In other words, [HN16] under the attractive nuisance doctrine, children enticed to trespass by an attractive nuisance are treated as invitees, and not as trespassers. Thus, it would not violate equal protection to treat such children more favorably than licensees such as SW if there is a rational basis for doing so. See Gallegos, 779 P.2d at 860 (applying [**22] rational basis test to classifications under premises liability act).
[*P40] We conclude that [HN17] section 13-21-115’s liability scheme reflects a rational basis for treating children induced to trespass by an attractive nuisance more favorably than child licensees. As the supreme court recognized in Gallegos, the legislature could rationally choose to treat entrants on land differently depending upon their reasons for entry on the land. Id. at 861.
[*P41] We note that the rational basis for disparate treatment of entrants on land is reflected in more than seven decades of Colorado appellate precedent. Even among trespassing children, some received the elevated treatment of invitees, while others did not. A child who was enticed by an attractive nuisance to trespass could recover for ensuing injuries, while a trespassing child already on the premises could not recover, even though the latter child who had already entered on the land might also find a dangerous feature on the land to be enticing after entry. See Esquibel, 112 Colo. at 550, 151 P.2d at 759 (where evidence showed that the plaintiff had previously trespassed on land and had used it as a playground before the alleged attractive nuisance appeared [**23] there, she could not recover because the attractive nuisance did not entice her to enter the land); see also Garel, 163 Colo. at 112, 428 P.2d at 715; Denver Tramway Corp. v. Garcia, 154 Colo. at 423, 390 P.2d at 956; Staley, 152 Colo. at 23, 380 P.2d at 55; Hayko, 77 Colo. at 146-47, 235 P. at 374.
[*P42] These precedents rest on the rationale that the attractive nuisance itself acts as the invitation to the child to enter on the land. See Denver Tramway Corp. v. Callahan, 112 Colo. at 464-65, 150 P.2d at 799-800. The supreme court noted its approval of this concept in Lovejoy v. Denver & Rio Grande R.R. Co., 59 Colo. 222, 225-26, 146 P. 263, 264 (1915):
The leaving or maintaining of a dangerous and attractive machine, or other instrument or agency upon one’s premises, under circumstances which naturally tend to attract or allure young children of immature judgment, and to induce them to believe that they are at liberty to enter and handle or play with it, is tantamount to an implied invitation to enter. Hence a corresponding duty is imposed upon the owner or occupant of the premises to prevent the intrusion, or to protect from personal injury such children as may be so attracted and thus [**24] induced to enter, and who are incapable of appreciating the attending dangers. The doctrine is founded upon the principle that when one sets a temptation before young children under circumstances which in law is equivalent to holding out of an inducement to enter, he must use ordinary care to protect them from harm. It is but applying the general rule that when one induces or invites another upon his premises, he must use ordinary care to avoid injuring him.
[*P43] These precedents establish that [HN18] a child who is enticed to trespass on the land by an attractive nuisance is accorded the preferential treatment reserved in the law for invitees. Thus, we conclude there is no constitutional infirmity in treating such a child preferentially to one in SW’s position who is a mere licensee, and we affirm the judgment in landowner’s favor.
[*P44] Because of our conclusion, we need not address landowner’s contention that the trial court erred in construing the complaint to assert an attractive nuisance claim.
[*P45] Judgment affirmed.
JUDGE ROY concurs.
JUDGE GABRIEL specially concurs.
CONCUR BY: GABRIEL
CONCUR
JUDGE GABRIEL specially concurring.
[*P46] I agree with my colleagues that the district court correctly granted summary judgment to defendant [**25] Towers Boat Club, Inc. (the landowner) on plaintiffs’ attractive nuisance claim. I respectfully write separately, however, because unlike my colleagues, I would rule on narrower grounds and not reach any of the constitutional issues. See Developmental Pathways v. Ritter, 178 P.3d 524, 535 (Colo. 2008) (noting that the principle of judicial restraint requires courts to avoid reaching constitutional questions that need not be decided); People v. Lybarger, 700 P.2d 910, 915 (Colo. 1985) (“Axiomatic to the exercise of judicial authority is the principle that a court should not decide a constitutional issue unless and until such issue is actually raised by a party to the controversy and the necessity for such decision is clear and inescapable.”).
[*P47] Plaintiffs contend that the district court erred in holding that the attractive nuisance doctrine applies only to trespassers, because in plaintiffs’ view, it must apply equally to invitees, licensees, and trespassers. If it did not, plaintiffs say, the premises liability statute would allow the type of “inverted hierarchy” that our supreme court found unconstitutional in Gallegos v. Phipps, 779 P.2d 856, 862-63 (Colo. 1989).
[*P48] Unlike the majority, [**26] I see no reason to decide this issue, or the constitutional questions that it necessarily implicates. Assuming without deciding that plaintiffs are correct and that the attractive nuisance doctrine applies to invitees, licensees, and trespassers alike, plaintiffs’ attractive nuisance claim fails as a matter of law for another reason.
[*P49] It has long been settled in Colorado that for the attractive nuisance doctrine to apply, the attraction must have enticed the child to trespass; it is not enough if the attraction enticed the child only after he or she became a trespasser. Hayko v. Colo. & Utah Coal Co., 77 Colo. 143, 145, 235 P. 373, 375 (1925); accord Adams v. Warren Analytical Labs., Inc., No. 05-cv-01536-EWN-MEH, 2006 U.S. Dist. LEXIS 88129, 2006 WL 3512044, at *5 (D. Colo. Dec. 6, 2006); Denver Tramway Corp. v. Garcia, 154 Colo. 417, 423, 390 P.2d 952, 956 (1964). Indeed, plaintiffs concede that, even under their view of the attractive nuisance doctrine, the attraction must have enticed the child to enter the landowner’s property. Here, however, it is undisputed that the bungee run attraction did not entice SW to enter the landowner’s property. Accordingly, even if the attractive nuisance doctrine could be read [**27] to apply to invitees, licensees, and trespassers alike, as a matter of law, plaintiffs cannot prevail on their attractive nuisance claim. I would thus affirm the district court’s judgment on that narrow ground and not reach the broader and constitutional questions that plaintiffs have raised.
Architects, Engineers and Recreation, we need the first two, to be successful in the second
Posted: May 9, 2012 Filed under: Uncategorized | Tags: Adventure travel, challenge course, Climbing Wall, Contractor, Insurance, Law, license, permit, Rock climbing, Ropes course, zip line Leave a commentNo, not to tear down the wilderness, I’m talking about what we build.
In the recreation industry, we build a lot of things that our customers use: Ropes courses, zip lines, climbing walls, raft frames, etc. I see a lot of these being built by owners or by contractors who are not the correctly licensed people for the jobs. If you have clients interacting with something, you built; you better have an engineer/architect approve the plans and the construction. You also may need to have the plans approved the structure approved by the appropriate city, county, or state licensing authority.
Additionally, you may be violating city, county or state laws if the work is not approved in advance by an architect or engineer and or built by a “licensed” person/contractor.
This is hard to write because the laws are usually local in nature, so there is no uniform way to look at the issues. In the general, I’ll use the term state to mean any government entity, city, county, municipal, tax district, state or federal agency.
It does not matter what letters or made-up name is behind a person’s name when they tell you they can build your wall/course/building. Each state law requires the person who approves it be licensed by the state to plan and make sure the works is done correctly. The actual builder can be anyone in most cases, although this varies by state law. But somewhere in the process a city, county or state requires the plans be created or approved by a licensed engineer or architect.
You may also have to make sure that the city; county or state code is met and approved as well as fire code.
Why pay the extra money? Because if something goes wrong, only that license can prove you are not intentional injuring people. Here is why.
· The architect or engineer is going to be local; you can find him to have him or her testify on your behalf. You won’t be calling a number that is not being answered in another state.
· The license is going to give you the first defense, rather than a liability.
· If the licensed person did screw up, they have insurance to cover you rather than a general liability policy which has holes the insurance company can use to exit the lawsuit with its money in its pocket.
· There is probably a law or regulation that requires it. If you violate this law and do not have the plans or construction approved by the appropriate people you are negligent per se. As such, you may not have a defense to the claim, including the release you use.
· The licensed local person is going to know the laws and regulations you must meet. You should not have a government inspector show up later and close you down.
It might be a problem if you are first climbing wall/gym/ropes course the licensing bureau has ever seen. You may need to bring photographs, videos and other examples to show what you are doing.
You may also have to do the same if you are hiring a licensed contractor to explain to them what you are trying to accomplish.
Either way, in the long run, it is the only legal way to go.
It is better than jail time, by the way. Yes, if you have not correctly licensed your structure, you could be facing zoning issues and violation of other laws, which could result in fines. In this example, the owner of this tree house ended up in court. See Golden takes aim at elaborate treehouseor Fight over Golden tree house set to go to court.
What do you think? Leave a comment.
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Law requires helmets, injuries down fatalities up?
Posted: April 23, 2012 Filed under: Cycling | Tags: bicycle, Bicycle helmet, British Columbia, Canada, Cycling, Cycling Helmet, Head injury, Helmets, Law Leave a commentHowever the article eventually does explain some great ideas about helmets.
An article Injuries have dropped since mandatory rule came in, but fatalities remain the same was written to look at the effects of a mandatory helmet law in British Columbia, Canada. The law was enacted in 1996. Riding a bike without a helmet can get you a $40 ticket.
One part of the article says that fatalities are down. The article also states:
Statistics compiled by the Bicycle Helmet Research Foundation show that injuries from cyclists involved in collisions did decrease from 35% of all police attended collisions in 1995 to 31% of those collisions by 1999.
However, a Canadian ministry says that bicycle fatalities have not decreased. “However in 2010, the Superintendent of Motor Vehicles admitted that fatalities had not decreased since the introduction of the helmet law.”
The article then states:
Bicycle helmet proponents are the subject of a great number of myths and exaggerations, some of which feature prominently in the promotion of helmets, according to the foundation.
These proponents claim that helmets prevent 85% of head injuries and 88% of brain injuries. But the foundation claims that where helmet use has become significant, there has been no detectable reduction in head injuries relative to cycle use.
Another myth, according to the foundation, is that bicycle helmets prevent 90% of fatalities.
“This prediction comes from a single source and is not reflected by real-world experience. Fatality trends in countries where helmet use has become significant give no reason to believe that helmets have saved even a single life,” the foundation states at http://www.cyclehelmets.org.
The article is full of confusing facts. However at least the article tackles the issues concerning helmets and dispels a few myths.
I suspect that injuries are down; however attributing that to helmets is difficult. Why injuries are up, could just be a factor of more people riding bikes, bikes that enable riders to go a lot faster or more cars on the road, as well as any number of different reasons.
Bicycle helmets may prevent a minor head injury, however most people do not believe that helmet may save your life.
What do you think? Leave a comment.
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Insurance company release fails, even in the state where the company is located
Posted: April 4, 2012 Filed under: Insurance, Release (pre-injury contract not to sue) | Tags: healthinsurance, Insurance, Insurance policy, Law, Montana, New York, Sports Underwriters, Waiver Leave a commentSport Underwriters.com release has some good points, but overall it has major flaws.
I received this release, which was provided with a quote for insurance. The quote was great. The quote required the insured to have a Waiver and Release System:
Waiver & Release System:
The insured must maintain a system to regularly secure signed Waiver and Release forms from participants. For minor participants, these waiver/release forms should be signed by a parent or guardian. Unintentional error on your part in securing Waiver and Release forms will not void your coverage in the event of a claim by a participant; however, your failure to maintain an adequate system to regularly secure Waiver and Release forms will void your coverage in the event of a claim. All waivers & medical release forms must be approved by underwriters; if you do not have one, we will provide for you.
Overall, that is a good thing. It is also not so different from what most insurance companies want to achieve. However, very few make it such a mandatory issue.
However, I am curious if their system allows for states to not have a system if they are prohibited by law or where releases have no legal value. (See: States that do not Support the Use of a Release.) Montana not only does not allow the use of a release, if an outfitter is found using one, their state license will be yanked, and they will be prohibited from engaging in any business.
Let’s look at the release itself:
This release came from a Sport Underwriters.com. The release also says it is a division of Sport and Special Event Insurance Agency USA which can be found here. That agency is located in New York, which does not allow the use of a release for commercial activities. (See New York Law Restricting the Use of Releases)
The release in its first paragraph states it covers “traveling to and from activity sites in which I am about to engage.”Some states consider transportation to be defined as a “public policy” which is not covered by a release. Some states allow a release to cover transportation if it is incidental to the activity; however, this release does not go deep enough into the issue, in my opinion, to make it effective to stop a suit over a car or bus accident.
The release also states in bold letters that the signor “…will wear approved protective gear as decreed by the governing body of the sport…” Very few outdoor recreation programs have a governing body that decrees safety gear. Some state or federal regulations may require some gear such as PFDs on whitewater for commercial operators, but very little in the rest of the industry.
The release, midway down the page, has a page for the signor to fill in the name of the company or person the release protecting. This is just plain confusing. What if that is skipped, is the release invalid? What if they spell the name wrong or put the wrong name down?
Then the release starts using the term releasees. Releasees is the term applied to the name in the blank. The language is quite broad, but the people being released are, by nature of the way the release is written, very narrowly defined. I generally, in any document being used with the general consumer, avoid using a legal term. It just becomes confusing for the consumer to understand, if they read the document and can make judges and juries mad. Use the name of the company so that everyone knows no matter how confusing, at least who is being protected.
The release also says you are indemnifying the releasee. I’ve not read a single decision that allows indemnification to work in a release. There is a major difference between indemnifying against losses and stopping them to begin with, unless the indemnification language is written very specifically for a specific reason.
The release has two areas for signatures. One area is for adults to sign, and one area is for parents to sign. Consequently, either you are going to have a parent sign twice or signature line that is blank. There is no place for the minor to sign the agreement.
The parental signage line is preceded by a clause.
FOR PARTICIPANTS OF MINORITY AGE: This is to certify that I, as a Parent, Guardian, Temporary Guardian with legal responsibility for this participant, do consent and agree not only to his/her release of all Releasees, but also to release and indemnify the Releasees from any and all liability incident o his/her involvement in these programs for myself, my heirs, assigns and next of kin.
First, the paragraph is directed to the participants in the first line then refers to the parent guardian. I’ve never heard of a Temporary Guardian. My concern with this is, volunteer youth leaders (church groups, Scout groups, etc.) probably believe they are temporary guardians and sign the form. The outfitter will probably accept the form, not knowing that the signature of the adult has no legal value.
Then the telltale clause that makes me think the release was not written by an attorney: “…agree not only to his/her release of all Releasees, but also to release and indemnify the Releasees…” This language says you are releasing the outfitter and releasing and indemnifying the outfitter. In effect, whoever wrote this stuttered.
Then hint two: “…for myself, my heirs, assigns and next of kin.” The person signing is signing away their right to sue, their heirs, which may include their child’s right to sue, and the adults next of kin. If the child is a minor, they have not signed away the child’s right to sue or the right to sue of the child’s heirs or next of kin.
None of the language above conforms to the required language in Colorado or Florida or the language that other statutes and court cases suggest. As far as a release against the claims of a minor this release fails miserably.
Finally, there is no jurisdiction and venue clause. See Four releases signed and all of them thrown out because they lacked one simple sentence!
My Legal Stutter
An attorney has to write your release. Your release must meet your state laws. Your release must meet the requirements of your program.
Free releases cost you a fortune. The amount of time you will spend defending a release given to you by an insurance company or created by someone who does not understand the legal ramifications is not worth it. No trial will cost you less than ten days, and if you are making less than $1500 in profit in ten days, you need to get another job. J
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Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141
Posted: February 20, 2012 Filed under: Legal Case, Minors, Youth, Children, Summer Camp, Youth Camps | Tags: Appeal, Appellant, Bunk bed, Cabin, Camp, Girl Scouts, Girl Scouts of America, Law, MISSISSIPPI, Summary judgment, United States district court Leave a commentBuck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141
Debbie Buck, as mother and natural guardian of Jamie Buck, Appellant, v. Camp Wilkes, Inc.; Girl Scouts of Gulf Pines Council, Inc.; and Deborah Boozer, Appellees.
NO. 2003-CA-01065-COA
COURT OF APPEALS OF MISSISSIPPI
906 So. 2d 778; 2004 Miss. App. LEXIS 1141
December 14, 2004, Decided
PRIOR HISTORY: [**1] COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF TRIAL COURT JUDGMENT: 4/17/2003. TRIAL JUDGE: HON. JERRY O. TERRY, SR. TRIAL COURT DISPOSITION: TRIAL JUDGE GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS DEBORAH BOOZER AND GIRL SCOUTS OF GULF PINES COUNCIL, INC. AND DISMISSED APPELLANTS’ CLAIM WITH PREJUDICE.
DISPOSITION: AFFIRMED.
COUNSEL: ATTORNEYS FOR APPELLANT: JAMES CLAYTON GARDNER, DAVID C. FRAZIER, and WILLIAM L. DENTON.
ATTORNEYS FOR APPELLEES: DORRANCE DEE AULTMAN, ROGER T. CLARK, PATRICK R. BUCHANAN, KIMBERLY DAWN SAUCIER ROSETTI, and SAMUEL TRENT FAVRE.
JUDGES: BEFORE KING, C.J., LEE, P.J., AND IRVING, J. KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.
OPINION BY: IRVING
OPINION
[*779] NATURE OF THE CASE: CIVIL – PERSONAL INJURY
IRVING, J., FOR THE COURT:
P1. Debbie Buck filed a personal injury action on behalf of her minor daughter, Jamie, against Camp Wilkes, Girl Scouts of Gulf Pine Council, Inc., and troop leader Deborah Boozer, for injuries sustained when the child fell out of a bunk bed at camp. In her complaint, Buck alleged that the defendants’ negligent conduct caused Jamie to sustain multiple damages. [**2] In response, Boozer filed a motion for summary judgment, and Girl Scouts filed a joinder, adopting Boozer’s motion. On April 17, 2003, after a hearing on the matter, the trial judge granted Boozer and Girl Scouts’s motion and found that Buck failed to show that the defendants’ actions caused or contributed to Jamie’s fall. On May 14, Buck filed a notice of appeal of the judge’s grant of Boozer and Girl Scouts’s motion.
P2. On May 28, Camp Wilkes filed a motion for summary judgment. The trial court entered a final judgment of dismissal, granting Camp Wilkes’s motion, and Buck again filed a notice of appeal. Buck’s first and second appeal were consolidated.
P3. In this appeal, Buck seeks review of whether the trial court committed reversible error (1) in failing to follow existing standards in granting the defendants’ motions for summary judgment, (2) in finding no merit to Buck’s argument that a causal relationship existed between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed, and in applying the wrong standard when considering Boozer and the Girl Scouts’s lack of supervision, and (3) in ruling as a matter of law that a bunk bed is [**3] not a dangerous instrumentality and that Appellees’ use of bunk beds did not amount to a failure on their part to use reasonable care in providing Jamie a reasonably safe place to sleep.
[*780] P4. We find no reversible error; therefore, we affirm the trial court’s grant of summary judgment in favor of the Appellees.
FACTS
P5. In June 2000, thirteen-year-old Jamie Buck attended a Girl Scouts camping trip with her troop at Camp Wilkes. The chaperones for the trip were troop leader, Deborah Boozer, and assistant leader, Jenny White. Upon arriving at the camp, Jamie’s mother helped Jamie set up Jamie’s bed. 1 The next day, however, the troop moved to another cabin because their refrigerator was not working. 2 That night, all of the girls decided to sleep on the top bunks, and everyone, except Jamie, pulled their beds together to make a single bed. The following night, Jamie was asleep on the top bunk when she rolled out of her bed and sustained injuries to her face. Boozer was not present at the time of the accident because she had gone to retrieve supplies but had left the troop’s assistant leader with the girls while she was gone. Additional facts will be related during our discussion [**4] of the issues.
1 The camp furnished bunk beds for the girls to sleep on. The beds did not have any guard rails.
2 The second cabin had a similar layout as the first cabin and also had bunk beds for the girls to sleep on.
DISCUSSION AND ANALYSIS OF THE ISSUES
(1)Standard of Review
P6. Buck first contends that by granting the defendants’ summary judgment motions, the trial judge failed to view the facts and issues in the light most favorable to her.
P7. The law is well established with respect to the grant or denial of summary judgments. [HN1] A summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, 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.” M.R.C.P. 56(c). “All that is required of an opposing party to survive a motion for summary judgment is to establish a genuine issue of material fact by the means available under [**5] the rule.” Lowery v. Guaranty Bank and Trust Co., 592 So. 2d 79, 81 (Miss. 1991) (citing Galloway v. Travelers Ins. Co., 515 So. 2d 678, 682 (Miss. 1987)). [HN2] “In determining whether the entry of summary judgment [is] appropriate, [the appellate court] reviews the judgment de novo, making its own determination on the motion, separate and apart from that of the trial court.” Lowery, 592 So. 2d at 81. “The evidentiary matters are viewed in the light most favorable to the nonmoving party.” Id. “If after this examination, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then summary judgment is affirmed, but if after examining the evidentiary matters there is a genuine issue of material fact, the grant of summary judgment is reversed.” Lowery, 592 So. 2d at 81 (citing Newell v. Hinton, 556 So. 2d 1037, 1041 (Miss. 1990)).
P8. A thorough examination of the record reveals that Buck failed to meet her burden of producing significant evidence to rebut the defendants’ showing that no genuine issue of material fact existed. Buck also produced [**6] no evidence to show that the defendants’ breached the established standard of care and that such breach was the cause of Jamie’s injuries. As a result, the trial judge appropriately granted the defendants’ summary judgment motions.
[*781] (2) Breach of Duty
P9. Buck argues that the trial court erred in finding that there was no causal relationship between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed. Buck also argues that Boozer and Girl Scouts failed to properly supervise Jamie and the other minor children by not requiring the children to sleep on the bottom bunks, or at least, on bunk beds with side rail protectors. 3
3 Buck argues that the beds were donated by the U.S. Navy, and therefore the beds were designed for adults, not minors.
P10. [HN3] “In this negligence action, [Buck] bears the burden of producing evidence sufficient to establish the existence of [a] duty, breach, proximate causation, and damages.” Simpson v. Boyd, 880 So. 2d 1047, 1050 [**7] (P 12) (Miss. 2004) (citing Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 794 (Miss. 1995)).
P11. At the conclusion of the motion hearing, the trial judge found that Buck did not produce any evidence to indicate negligence by Boozer or Girl Scouts. We agree with the trial judge’s findings. However, assuming arguendo that Boozer was negligent in leaving the troop with the assistant troop leader, Buck has failed to demonstrate how Boozer’s absence contributed to Jamie’s injuries.
P12. Similarly, Buck has presented no authority that would substantiate her claim that the troop should not have been allowed to sleep on the beds without guard rails, or at least should have been made to sleep on the bottom bunks. Therefore, this argument is without merit.
(3) Dangerous Instrumentality
P13. Buck’s next allegation of error concerns the trial judge’s failure to find that a bunk bed constituted a dangerous instrumentality. The trial judge, relying on the New York case of Rueben v. Olympic Resort, Inc., 24 Misc. 2d 131, 198 N.Y.S. 2d 408 (N.Y. 1960), coupled with Buck’s lack of proof, found no merit in Buck’s contention [**8] that a bunk bed is a dangerous instrumentality. In Reuben, a six-year-old child was vacationing with her family at a hotel when she fell out of the top bunk and was injured. Id. at 409. The bunk bed had no guard rails. Id. Although the court denied the child’s parents recovery on other grounds, it commented that:
This Court is not prepared to state that a bunk bed without a guard rail is a dangerous instrumentality in and of itself. Such a bed, even with a guard rail, might be very dangerous to a child six months of age. Without a guard rail such a bed may be entirely safe for a child of fourteen years. It is for the parents of the child to determine what equipment is necessary or suitable for their own children. The hotel keeper cannot be presumed to know.
Id. at 409-10.
P14. We, like the trial judge and the Reuben court, [HN4] are not prepared to say that a bunk bed being used by a thirteen-year old without guard rails is a dangerous instrumentality. As noted by Camp Wilkes, Buck has failed to show any defect in the design of the bed or offered any evidence that the bed failed to comply with applicable standards, regulations, or guidelines. [**9] Buck even testified in a deposition that she knew what type bed her daughter was sleeping on and that she had no concerns about her daughter sleeping on the top bunk. Buck further stated that she did not inform anyone that she did not want her daughter sleeping on the top [*782] bunk. For the forgoing reasons, we find this issue to be without merit.
P15. Buck also argues that Camp Wilkes, by its use of bunk beds, failed to use reasonable care in providing a safe place for Jamie to sleep and also failed to adequately maintain and inspect its premises in a reasonably prudent manner. Buck further contends that Camp Wilkes failed to warn Jamie of a dangerous condition which the camp knew, or should have known, existed on their premises.
P16. [HN5] Camp Wilkes properly advances that it owed Jamie, as an invitee, the duty of exercising reasonable care to keep its premises safe, or to warn Jamie of any hidden or concealed perils of which it knew, or should have known, in the exercise of reasonable care. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646, 648 (Miss. 1988) (citing Downs v. Corder, 377 So. 2d 603, 605 (Miss. 1979)). However, Camp [**10] Wilkes argues that a bunk bed is an item normally encountered on the business premises of camps like Camp Wilkes and that a bunk bed is not a hidden or concealed peril.
P17. We have already found that a bunk bed is not an inherently dangerous instrumentality. We now find that Buck has failed to demonstrate or show that the bunk bed in question was in any way defective. Therefore, we find no merit in Buck’s argument that Camp Wilkes, by its use of bunk beds, failed to use reasonable care in providing a safe place for Jamie to sleep.
P18. Finally, Buck asserts that the Appellees’ actions constituted negligence per se because Jamie was less than fourteen years old at the time of the accident. The record reveals that Buck failed to cite any case law in support of this proposition. [HN6] “Issues cannot be decided based on assertions from the briefs alone.” Pulphus v. State, 782 So. 2d 1220, 1224 (Miss. 2001) (P 15) (citing Robinson v. State, 662 So. 2d 1100, 1104 (Miss. 1995)). Similarly, a failure to cite legal authority in support of a proposition precludes this Court from considering the issue on appeal. Grey v. Grey, 638 So. 2d 488, 491 (Miss. 1994) [**11] (citing Matter of Estate of Mason v. Fort, 616 So. 2d 322, 327 (Miss. 1993)).
P19. However, notwithstanding Buck’s failure to supply any authority in support of her proposition that allowing a thirteen-year old to sleep in a bunk bed not equipped with guard rails constitutes negligence per se, we refuse to embrace such a proposition. Therefore, we affirm the decision of the trial court granting summary judgment to the Appellees.
P20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.
Help End the Hit and Run Loophole in Colorado. Support Bicycle Colorado!
Posted: February 17, 2012 Filed under: Colorado, Criminal Liability, Cycling | Tags: Bicycle Colorado, Colorado, Colorado State Patrol, Denver, Driving under the influence, Law Leave a commentBicycle Colorado is working hard to make Cycling Safer in Colorado
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Bicycle Colorado announces support for the “End the Hit and Run Loophole” Act (HB12-1084) introduced in the Colorado House by Representatives Kathleen Conti (R) and Rhonda Fields (D). The act will increase the penalty for a hit-and-run crash causing serious bodily injury from a Class 5 felony to a more serious Class 4, removing a dangerous loophole in Colorado law by giving a hit-and-run offense the same penalty as drunk driving.
At present it is better to flee and avoid getting caught drunk than it is to stay at the scene.
Hit-and-run crashes disproportionately affect people who walk and ride bicycles. Bicycle and pedestrian fatalities are four times more likely to be the result of a hit and run than other roadway crashes. The difference between life and death may be the immediate help that is offered at the time of the crash.
The bill will soon be heard in the Judiciary Committee, and we will keep you updated on its progress. For more information, go to the legislative page on our website.
Do Something
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Cyclists! We need to change this. It is legal to change it, it is right to change it.
Posted: January 18, 2012 Filed under: Criminal Liability, Cycling, Uncategorized | Tags: Cycling, Driving, Law, Maui, Organizations, Sports, Traffic Leave a comment
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We have to get/force/educate law enforcement that cyclists are not just future road kill!
If you ride regularly, other than on a trainer, you’ve probably been scared, brushed or hit on a bike by a vehicle. If you are injured or your bike or other property is damaged, a
nd you call the police/state patrol/sheriff, you are probably ignored, or if they respond, still ignored.
People are starting to take action about the issue of motorists killing or almost killing cyclists. See Tell Maui and HI that you’re not coming until they prove the place is safe and the news article Family Of Killed Cyclist Mathieu Lefevre Sues NYPD For Withholding Information. The horses are hitched; it’s time to get on the band wagon!
This has to stop!
There are several things you must do (yes I’m not suggesting I’m telling you).
Before an incident.
1. Get a law passed that gives cyclists the right to call law enforcement that makes law enforcement respond.
The law should say the cops have to show up.
The law should say the cops have to take a report.
2. If you are politically active, ask politicians if they support the right of cyclists to be on the road. The law has already allowed it, so this is to find out any bias.
Once you get an answer if is one you like to tell them you are going to support them and tell everyone.
If it is an answer, you do not like, get it confirmed somehow. Record the response or get a written response, some way to hold the person accountable later. Usually when a politician finds out, they’re commented was stupid, they correct it.
If they still stand by a negative answer, let the world know. If proof of the claim I’ll post it, and I know of a lot of other cycling blogs that will post it. Let your local bicycle advocacy groups know. (You are a member right!).
After an Incident
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For what to do before an incident and what to do after an incident see: How do you prove to a cop that you were not at fault in an accident with a car when you were on a bike?
If you follow the advice in How do you prove to a cop that you were not at fault in an accident with a car when you were on a bike?You should get a response. If not, then proceed to step 3.
After an Incident and you do not get a response!
1. Make noise. Make lots of noise. To borrow an old slogan, be loud and proud.
Contact the head of the law enforcement agency and get a reason why you have not had a response. Furthermore, ask for a copy of the file on the incident. In most states, you have the right and can get this file.
Contact the District Attorney’s office and find out why charges have not been pressed against the driver. Ask for a copy of the file.
Contact the chief political politician, mayor, commissioner, governor and ask them why nothing has happened. Ask them to investigate. A month later asks for a copy of their file on the incident.
Contact the local Visitors Bureau and let them know that you have that their city/county/state is dangerous, and you will let other cyclists know. Those cyclists’ make up a big part of the economy and cyclists visit the area to ride.
The more the merrier!
Ask your friends and other cyclists to help. They can also contact law enforcement, the District Attorney, the visitor’s bureau and the media to add weight and support to what you are doing.
In all communications, it is important for both you, and others that are assisting, to copy people on the communications. In many cases the people you copy are the most important part of the letter. CC everyone above on each other’s letters. Always include any bicycle groups or clubs with a copy. Include bike shops as a cc in your communication so the people you are contacting understand that you are getting the word out.
In your communications be polite and be persistent. Set up a schedule. Give the prosecutor and law enforcement a month at first. No response gives them another month, then 2 weeks then every week. I would suggest you do this in such a way you can keep records of your communications. What you said and when you said it. Email or in writing is best.
In your communications be polite and be persistent. Do not threaten anything except your vote and your obligation to communicate. You do not want to put yourself in any box except as an aggrieved citizen or worse charged with harassing a government official.
If you have not heard anything after the first week, get on the publicity horn. Prepare a written statement of what occurred. Include any witness names and contact information. Include any photographs, GPS files, etc. and send it to every media outlet in your community and every cycling media outlet. Most will ignore it, but on a slow news day, you may get lucky.
You want your initial contact to be valid enough so that you are not considered a whack job by the media. You want to come across as a member of the community hat was almost killed, and you want to know why the police have not done anything.
If you want to invest a ton of time, you can go to the courts in many jurisdictions and request a special prosecutor. A special prosecutor is one from another county whom the court orders to investigate the case and see if charges should be brought. This is rarely granted, however, it will show that you are serous, and it will help get more media interest in your case.
You may never get a ticket issued against the driver. However, you will let the community know that cycling is dangerous in your community and what politicians and other elected officials think about the issue.
If enough people do something, something will happen. Eventually, law enforcement will track down and start issuing tickets to.
What do you think? Leave a comment.
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Illinois lawsuit filed over drowning death of a man at a summer camp.
Posted: December 20, 2011 Filed under: Michigan, Summer Camp, Swimming, Youth Camps | Tags: Adventure travel, Law, Outdoor recreation, Recreation, summer camp 1 CommentClaims seem to be based on whether or not there was lighting to swim at night.
The deceased was a fifteen year-old person who drowned while attending a summer camp. Supposedly, he was swimming after dark, after 9:00 PM. The allegations claim that there must be adequate lighting to swim after dark.
What lighting has to do with finding someone after dark in a lake is a little confusing. However, it does not matter if the rule or law makes no sense, you must abide by it.
Most of the information for the article seems to come from the attorney for the plaintiffs. Obviously, the information is slightly slanted……
But?
What can you as the defendant do then? If you respond to the allegations, you can harm a defense, and for sure you will just start a PR war with the plaintiff’s.
Worse you will be caught off guard because the plaintiff will spend days preparing their press release to be given at a press conference, and you will be contacted on the phone by a reporter and given 15 seconds to respond.
Don’t.
Tell the reporter you will look at the press release and review the press conference, and you will have a response. Whatever else the reporter may say, do not worry about it. They’ll argue deadlines; you need to respond, and you can have them read the press release to you. It is all a setup, don’t take the bait.
The only people you really have to make sure understand the truth is the jury from a liability perspective.
However, you also have a business to run, and you need to make sure the plaintiff’s allegations don’t sink your business. Hire an attorney and a PR team and respond. Have your attorney set up a press conference and refute the plaintiff’s allegations.
You have to take a beating, and maybe you’ll have nothing to say at a press conference. If that is the case, you’ll suffer through the slings and arrows of the plaintiff and the press.
However, you do not have the skills, education, training or temperament to deal with a response or the press.
Don’t.
To read the article see Buffalo Grove family sues campground for son’s drowning death.
What do you think? Leave a comment.
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Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.
Posted: February 28, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Child, Church Group, Colorado, Colorado Supreme Court, Information, Insurance, Law, Minor, Parental Responsibility, Parental Rights, Plaintiff, Supreme Court, United States, Youth Group Leave a commentWycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832
The case is a little confusing to read because there was another case that was appealed by the same parties whom this case refers to. Additionally, the act of the trial court in reducing the damages is confusing. However, this case is a very clear example of how a badly written release is going to cost the church and its insurance company millions.
A church group had taken kids to a camp for a “Winterama 2005.” The church had rented the camp for the weekend. The plaintiff was 17 and not a member of the church. Her parents had paid a reduced fee for her to attend the activity. As part of that registration her mother signed a “Registration and information” form. One of the activities was pulling them behind an ATV on an inner tube on a frozen lake.
There was a large boulder embedded in the lake. On the second loop, the plaintiff’s inner tube hit the boulder breaking her back.
The plaintiff’s mother had signed the “Registration and Information” form. On the form was the following sentence.
I will not hold Grace Community Church or its participants responsible for any liability, which may result from participation.
The case went to trial, and the jury returned a $4M verdict in favor of the plaintiff. The defendant and plaintiff appealed after the judge reduced the damages to the limits of the insurance policy of the church, $2M plus interest.
The appellate court first looked at Colorado case law on releases and the legislative history of § 13-22-107(3), C.R.S. 2010. That statute, C.R.S. § 13-22-107(3), was enacted to allow a parent to sign away a minor’s right to sue. The statute, and the decision in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981), has a requirement that the parental decision must be “informed” and with the intent to release the [defendant] from liability. Jones v. Dressel was the first Supreme Court review of releases in the state of Colorado as they applied to recreational activities.
The court looked at the language in the “Registration and Information” form to see if it informed the parents of the activities and risks their child would be undertaking. The court looked at the language and found:
There is no information in Grace’s one-page registration form describing the event activities, nothing describing the associated risks. Stating that the children would participate in “Winterama 2005 and all activities associated with it” does not indicate what the activities would involve and certainly does not suggest they would include ATV-towed inner-tube excursions around a frozen lake.
The court also looked at prior decisions concerning releases and found that “in every Colorado Supreme Court case upholding an exculpatory clause. The clause contained some reference to waiving personal injury claims based on the activity being engaged in.”
The court concluded that:
Grace’s [the defendant’s] form made no reference to the relevant activity or to waiving personal injury claims. The operative sentence (the third one in a paragraph) states only that plaintiff will not hold Grace “responsible for any liability which may result from participation.” Surrounding sentences address other issues: the first gives permission to attend; the second consents to medical treatment; and the fourth agrees to pick up disobedient children.
… nowhere does the form provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. The form is legally insufficient to release plaintiff’s personal injury claims.
The court then looked at the second major issue that has been surfacing in many outdoor recreation cases of late. The plaintiff sued claiming a violation of the duties owed by the landowner, a premises liability claim. That means that the landowner owed a duty to the plaintiff to warn or eliminate dangers, which the landowner failed to do.
The defendant argued that it was not the landowner; it had just leased the land for the weekend. However, the court found this argument lacking. The premise’s liability statute § 13-21-115(1), C.R.S. 2010, defines landowner to include someone leasing the property.
This places two very important burdens on anyone leasing land or using land.
- They must know and identify the risks of the land before bringing their clients/guests/members on the land.
- The release must include premise liability language.
The second one is relatively easy to do; however, the effectiveness is going to be difficult. The first places a tremendous burden on anyone going to a camp, park or other place they do not own for the day, weekend or week.
- Your insurance policy must provide coverage for this type of claim.
- You need to inspect the land in advance, do a due diligence to make sure you know of any risks or dangers on the land.
- You must inform your guests/members/clients of those risks.
The final issue that might be of some importance to readers is the court reviewed the legal concept of charitable immunity. At one time, charities could not be sued because they “did good” for mankind. That has evolved over time so that in most states charitable immunity no longer exists. At present, and with this court decision, the assets of the charity held may not be levied by a judgment. What that means is after someone receives a judgment against a charity, the plaintiff with the judgment then attempts to collect against the assets of the charity. Some of the assets may not be recovered by the judgment creditor because they are part of the charitable trust.
What does that mean? If you are a charity, buy insurance.
Of note in this case is the plaintiffs are the injured girl and her insurance company: The opinion states “Plaintiff and her insurer, intervenor American Medical Security Life Insurance Company (insurer).” Although set forth in the decision, her insurance company is probably suing under its right in the subrogation clause. A subrogation clause in an insurance policy says your insurance policy has the right to sue under your name or its own name against anyone who caused your damages that the insurance company reimbursed.
So?
As I have said numerous times, your release must be written by an attorney that understands two things.
- Release law
- The activities you are going to engage in.
- The risks those activities present to your guests/members/clients.
- Any statutes that affect your activity and/or your guests/members/clients.
Any release should include a good review of the risks of the activities and a description of the activities so adults and parents can read and understand those risks. Any minor who can read and understand the risks should also sign the release as proof the child assumed the risk. Assumption of the risk works to win cases against minors when the release is thrown out or in those cases where a release cannot be used against a minor.
Find a good attorney that knows and understands your activities, those risks and the laws needed to write a release to protect you.
What do you think? Leave a comment.
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States that do not Support the Use of a Release
Posted: December 16, 2010 Filed under: Arizona, Hawaii, Louisiana, Montana, Release (pre-injury contract not to sue), West Virginia | Tags: Duty of care, Insurance, Law, Liability insurance, Louisiana, Montana, Release, Virginia 9 CommentsAssumption of the risk is your best defense in these states
These states do not allow a recreational business or program to use a release to stop litigation.
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State |
Citation |
Issues |
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Releases are Void |
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C.C. Art. 2004 (2005) |
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party. |
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MCA § 27-1-702 |
All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law. |
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Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890) |
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Use of a Release is Restricted |
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Arizona |
Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53 |
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New Mexico |
Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48 P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25 |
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West Virginia |
Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649; 1994 W. Va. LEXIS 161 |
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Use of Releases is Probably Void |
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Connecticut |
Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330 |
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Wisconsin |
Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 |
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Vermont |
Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127 |
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Specific uses of Releases are Void |
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Alaska |
Sec. 05.45.120(a). Use of liability releases |
A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced. |
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Hawaii |
King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004) |
Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release |
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New York |
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable. |
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Releases/Waivers: The basics, the very basics!
Posted: September 26, 2008 Filed under: Release (pre-injury contract not to sue) | Tags: Law, Legal release, Release, Releases / Waivers, Waiver, waivers Leave a comment1. A release cannot be written by anyone other than an attorney. Sure you can try and write one but you are just wasting paper, or killing trees. Releases must meet the specific legal needs and requirements of your state, your activity and numerous other issues. See Releases 101.
2. Some states require the use of “magic words” to make the release enforceable. Without those words you are back to killing trees. See What is a Release?.
3. You release must make sure that the correct law that will be applied to the case and the correct location where the lawsuit will occur are identified so the release is valid. See States that do not Support the Use of a Release.
4. After that the issues that require a release to be correct still go on. The legal terminology for who is going to be protected by the release. The correct terminology for who is going to be prevented from suing in the release is critical.
5. At the same time, your release cannot be written in legalese in many jurisdictions.
6. Your release must be checked every year to make sure it is up to date. Each year a judge someplace decides to tweak or in some cases totally change how state law applies to releases. If you are in the state where that occurs you MUST know and make changes. See States that do not Support the Use of a Release.
7. Are you clients under the age of 18? That is sets up more requirements for writing a release. See States that allow a parent to sign away a minor’s right to sue.
These are but seven of hundreds of issues that must be covered for a waiver to be upheld in a court of law. There is no easy checklist of items to cover. Each state is different, each activity is different. As an example there are 50 states, and several territories, with equine liability acts. No one release will work in many of the other states. Add into that mix skiing statutes, whitewater rafting statutes and you are all ready at hundreds of different requirements that must be met for different statutes. See What is a Release?.
You can’t write your own release unless you just want to waste paper.
For more articles on releases see:
Well written decision from Wyoming defines release law and how releases should be written.
Plaintiff signed two releases and wanted them both thrown
Another Litigation versus Criminal example
Posted: July 22, 2008 Filed under: Uncategorized | Tags: Asia, Business, Canada, Court, Japan, Jet Ski, Law, Lawsuit Leave a commentI’ve all ready commented about this issue length in Litigation v. Jail Time; however this article caught my eye. At the very bottom it
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mentions another boating accident. The owner of the jet skis who rented the jet skis was fined £450 for renting the jet skis.
Again another example of how in the US we sue, in Europe they charge criminally. Although in this case a £450 fine is probably much easier to deal with than protracted litigation, it still is a criminal charge that will be on someone’s record for life.
However the basic issue is who is going to take responsibility for dealing with problems. In Europe the government deals with the liability between two people. In the US, most of the time the victim is in charge of his life and any money someone may owe him.
See: Brit held after death of Cypriot diver
Lawsuit against university outdoor program
Posted: June 27, 2008 Filed under: Uncategorized | Tags: Assumption of risk, Columbus Dispatch, Law, Ohio University 3 CommentsThe Columbus Dispatch is reporting that Christopher Mance has filed a lawsuit against Ohio Universityfor injuries he suffered when he fell into a fire on a
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University outdoor trip. The story is titled Disfiguring fall into campfire spurs lawsuit against OU. Mance, the plaintiff was a few credits from completing his bachelor’s degree to become a wilderness educator. During a wilderness survival trip in 2006 he suffered an epileptic seizure and fell face first into a fire suffering burns to his face, arms and hands.
The plaintiff and his family are suing the university for $300,000 because they claim the university was responsible for the accident. They claim the plaintiff is unable to secure work in the outdoor field after receiving his injuries.
The university knew of the plaintiff’s medical condition which he noted on a medical form he completed before going on the trip. (For more information on why pre-trip medical forms create liability see: Legal Issues in Wilderness First Aid.) The plaintiff was taking medication to control the seizures but the drug is allegedly less effective when sleep and eating habits are disruptive which they were on the trip.
The incident occurred during a solo part of the trip when the students were left alone to feed and take care of themselves. The suit claims that an instructor should have been assigned to watch the plaintiff to make sure he was safe. (Doesn’t that sort of eliminate the idea behind the solo?)
The attorney for the plaintiffs’ also stated “the university did not appoint an instructor to supervise Mance or send him for a medical check to determine whether he could handle the trip. He said Mance and his parents were unaware of the risks involved in the trip.”
This is a very sad case. A senior with only a few credits left to graduate in the field of outdoor recreation and education that falls victim to an accident in the field. On top of that the accident is disfiguring which is a double edged sword.
However a read of the article and possibly the complaint raises a lot of disturbing statements. You can reasonably assume that the plaintiff is over the age of 18, an adult able to make decisions about his own health and welfare. The complaint places all of the responsibility on the university. It was the universities responsibility to make sure he was safe, able to undertake the trip and able to physically handle the trip. Worse, it was the university’s responsibility to have the plaintiff determine if he was medically able to undertake the trip.
At what point do you take personal responsibility for your actions? We might have created some of these problems ourselves. We rely on outdoor programs to determine whether or not we can physically and medically undertake a trip. When in reality those people know nothing about us and are not physicians. The attempt to solve a problem as in this case, probably has created litigation. You and your doctor are the only ones who can make a decision as to whether you should undertake a trip. Your physician is the only person legally allowed and medically able to make that decision. For more information on this subject see: Legal Watch: Prescriptions and the Law, Legal Issues in First Aid #3: The prescription drug conundrum, Legal Issues in Wilderness First Aid: Value of various first aid certificates and training, Legal Issues in Wilderness First Aid.
For more articles on lawsuits against colleges for injuries in outdoor programs see: Case Brief: Release Protects Gonzaga University from Lawsuit Following Student Death, College successfully defends student high altitude fatality, Assumption of Risk and Inherent Risk in Higher Outdoor Education, and College loses suit by parents of deceased student from snow skiing class.
This is a sad case were the basis of the lawsuit seems to ride on the idea that someone else should have been responsible for me and my problems.
Letter to the editor: Camp Business
Posted: May 9, 2008 Filed under: First Aid | Tags: Camp Business, first aid, Good Samaritan law, Health care, Health care provider, James H. Moss, Law Leave a commentMay 1, 2008
Rodney J. Auth, Publisher
Camp Business
PO Box 1166
Medina, OH 44258-1166
Camp Business May/June 2008
I read with interest and concern the article Medical Matters in the May/June Camp Business. I believe it should be pointed out that no liability protection is provided by receiving doctor’s standing orders or physician protocols. I’m going to use the term protocol to refer to standing orders. This is the term used in the medical industry and by state statutes to define a physician directing a non-physician to do a procedure that is more than first aid. A physician issuing a protocol which the camp follows does not provide any liability protection to a camp.
There are two main issues that define how a protocol can be issued by a physician. The first is to whom the physician’s protocol is transmitted. That can be either a licensed health care provider within the scope of their duties as defined by state law or an employee of the physician under the supervision and control of the physician.
A licensed health care provider is a nurse, physician assistant, paramedic or emergency medical technician; someone is has been issued license by the state. Whether and how someone is licensed is controlled by state law and varies by state. The scope of the duties a licensed health care provider can provide outside of the supervision and control of a physician also varies by state. A good example is the states are split about evenly on whether an EMT can use epinephrine without a physician’s approval. This difference is also important if you are hiring a health care provider. Make sure you hire the person who is licensed by the state to perform the level of health care you expect under the law where the health care is to be performed.
The second, if a person is not a licensed health care provider they may still be able to act, however they must be under the direct supervision and control of a physician. That generally means the physician has trained the person in the procedure, the physician has employed the person to administer the procedure and the physician is within the distance required by law. Distance varies by state. In Colorado the physician must be within 30 minutes of where the procedure is being done and be able to get there. In Arizona the physician must be in the same room as the person administering the procedure.
As such, for most camps in most states physician protocols for non-licensed camp personnel provide no liability protection. Any liability protection that a proper protocol does provide does not stop any litigation; it just changes the claim from failure to provide proper first aid to a medical malpractice suit and ads the physician as a defendant.
Also of concern is asking a physician to issue a protocol that puts the physician at risk for review or worse by their state physician licensing agency.
Things have changed dramatically from my camp staff days. One of the main duties in preparing for the campers was scraping the m off M&M’s in anticipation of homesickness problems.
Sincerely,
James H. Moss
Editor Outdoor Recreation Law Review
www.snewsnet.com/lawreview
http://rec-law.blogspot.com/
For more information on this subject see: Legal Issues in First Aid #3: The prescription drug conundrum, Legal Issues in Wilderness First Aid: Value of various first aid certificates and training, Arizona adopts epinephrine Good Samaritan law, Legal Issues in Wilderness First Aid
Sometimes you only have to point things out
Posted: May 9, 2008 Filed under: Uncategorized | Tags: American Civil Liberties Union, Civil Liberties, Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, Law, Organizations, United States Leave a commentACLU Challenges Va. Law Banning Nude Summer Camps
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BSA develops successful defense strategy: Train your attorneys
Posted: April 22, 2008 Filed under: Insurance, Risk Management | Tags: Boy Scouts of America, BSA, defense, Law, Scout Leave a commentThe Boy Scouts of Americawent from a poor win record to almost a perfect record by organizing and training their attorneys. Business Insurance
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reported in an article Risk Manager of the Year, published April 24, 2006 that the BSA’s risk manager had organized their defense counsel to make these dramatic changes. In doing so the Risk Manager, Debra Griffith, became the Manager of the Year for her success.
The first approach was to create a unified defense strategy. One law firm was hired to coordinate all lawsuits. This took the claims out of the hand of the insurance company who hired good counsel but never provided additional support for the defense attorneys. Information and successfully strategies where then routed to all attorneys handling cases providing solid ideas and information.
A second approach was to make sure all interrogatories where reviewed by the BSA defense team. This made sure that all interrogatories were answered correctly and the same way.
If you did not know, the plaintiff’s bar has been filing documents for years so answers to interrogatories form another case can be searched to find inconsistencies.
The third idea, and to a large extent the most controversial was a unified training program of all defense counsel…..at a Boy Scout Camp. This allows the defense counsel to get a real feel for the BSA and how the program works. These training programs encourage information and idea sharing both at the conference and when the attorneys go back to home.
It is this last idea that I find so exciting and valuable. From studying motions and briefs and talking to other attorneys in cases the only difference between winning and losing is not the facts of the case but how well the attorneys representing the defendant understand what the defendant was trying to accomplish and how. It is one thing to understand the problems when someone is injured on a ropes course. It is another when the defense team understands the physics of the activity as well as the goals of the participants in the activity.
Another way of looking at this is horseback or equine suits. Falling off a horse produces the same type of defenses: release, equine law and assumption of the risk. However the risks can be explained in a much better way when the plaintiff was part of a weeklong camp program versus someone who rented a horse for a day. The education and care that a camp provides is much different and creates a very different atmosphere from a trail ride offered out the back door of a conference center. Knowing why people are riding the horse can be important in defending a case as knowing the legal issues.
Reading between the lines is to not leave this solely to your insurance company. They will not hire the best law firm, they will not assist in training or getting the firm up to speed, they rarely understand your program and they won’t support you if the dollars look better to sette.
My own experience supports this idea. In the outdoor recreation industry we win cases when the defense firm understands what they are defending rather than throwing the case in their pot and following the same old strategy. Outdoor recreation is different from an auto accident, a fuel spill and a breach of contract. The participants and the outfitters/facilitators/guides are working together to accomplish goals. These facts combined with an attorney who understands the goals of the program, the program and the defenses create a win.
Is your Release and Risk Management Program Up To Date?
Posted: April 17, 2008 Filed under: Release (pre-injury contract not to sue) | Tags: California, Colorado, Connecticut, Idaho, Law, Risk Management, Utah, Wyoming Leave a commentIt’s that time of year. If you are an outdoor recreation program, summer camp, challenge course or outfitter have you had your risk management program reviewed and ready for the summer? Is your release up to date? Have you had an attorney review your release to make sure it complies with the latest court decisions, changes in the law and what the rest of the industry is doing?
Release laws for your state and activity may not change for years, but sometimes it can change monthly. Connecticut, Utah and Arizona Supreme Courts have recently handed down decisions that complicate the laws in those states. Many other states including Colorado, California, Wyoming, Idaho and most eastern states have had decisions that may modify your release.
It’s that time of year, to get ready for the season, make sure your risk management and legal needs are up to date also.
Vancouver BC, Canada passes helmet law for cyclists and skaters
Posted: March 2, 2008 Filed under: Cycling | Tags: Canada, helmet, Law, Vancouver, Vancouver City Council, Vancouver Police Department Leave a commentThe Columbian is reporting that the Vancouver City Council will soon require juvenile and adult cyclists and skaters to wear a helmet. All bicycles, skateboards, roller skates, roller blades, scooters and unicycles on public streets, sidewalks and trails will be required to wear a helmet.
The article Vancouver city council enacts helmet law states that Vancouver has a cyclist fatality rate is five times the Canadian national average. The law also provided for $5000 dollars for education and helmets for low income children. The law will be enforced by the Vancouver Police Department.
Sound like the money could be also spent on a driver education program. Five times the Canadian national fatality rate!
Assumption of the Risk
Posted: February 11, 2008 Filed under: Assumption of the Risk | Tags: Assumption of risk, Boy Scouts of America, education, Insurance, Law, Lawsuit, Risk Management, Summary judgment Leave a commentAssumption of the risk is defined as someone knowing and understanding the risks of the activity that injured them.
Every state has slightly different definitions of assumption of risk. In general, prior to the guest becoming injured, the guest must comprehend the risks of the activity. The comprehension must include not only the knowledge of the danger, but most states require the plaintiff know extent of the possible injury.
If this knowledge is confirmed in writing then assumption of the risk is called express assumption of the risk. If the knowledge is not written down, then assumption of the risk it is called implied assumption of the risk. In many states implied assumption of the risk has been merged with contributory negligence and goes to the percentage of fault of the plaintiff.
Assumption of the Risk in most states is no longer available as a pure defense to a claim. The legal defense of assumption of the risk has been merged into contributory negligence. With contributory negligence, the jury decides how much each person in the lawsuit was a fault. If the Plaintiff was 50% or more at fault (51% in some states) then the Plaintiff cannot recover from the Defendant. Assumption of the risk is one of the factors that contribute to a plaintiff being at fault in an accident.
However that is changing in many states as courts are tired of dealing with claims in sports and recreation where the injured party should not recover for their actions.
Assumption of the risk is a valuable a defense. It can be used to show a jury that the plaintiff was solely responsible for his or her injuries. Assumption of the risk is also the only defense available when a minor sues in many states.
However, the legal issues aside, 28 years of reviewing claims and lawsuits have shown that assumption of the risk great value besides use as a defense. Plaintiffs, who understand the risks, do not get injured. More importantly, outfitters and guides who take the time to get to know their guests, answer their questions and fully inform their guest of the risks are not sued.
There are several sub issues of these ideas that need to be explored. From the guests perspective the more the guest knows they least likely that they will be injured. A guest who really understands what is going to happen is better prepared. The guest understands the activity is not an amusement park, that there are millions of things that are out of anyone’s control. Those guests will enjoy the experience, be less afraid and will deal with any issues with better results.
Guest’s who understand the risks also are more likely to ask questions before leaping. Is that snake poisonous, is that ice solid, can I boulder over here? Answering these questions might prevent guest injuries. An outfitter who goes forward informing and educating a guest is usually also one who encourages questions. Most people if they feel comfortable will ask questions, especially, if the conversation between guest and guide is encouraged rather than strained.
Outfitters and Guides who make it part of the program to educate their guests understand that educated guests are the best guests. Not only do educated guests remain healthy, they have more fun. Nothing is worse then giving up your warm clothing to a shivering guest when they should have brought their own, but did not know to do so. That may seem like a far fetched statement, but in the whitewater rafting industry, every guide carries extra clothing because guests are rarely fully informed.
Another important issue that arises when guests are educated is they develop a closer relationship with the guides and the outfitter. As such, there is usually little anger or emotion accompanying an injury. Anger or some other emotion is the basis for the majority of lawsuits and if you can eliminate this emotion you can reduce your chances of being sued. Educated injured guests usually understand how they were injured, or understand that accidents happen that do not have someone to blame for the injury.
Finally, educated guests appreciate the risk. They understand what the outfitter and guide are doing to make the activity fun and a success as well as to keep the guests safe. They understand the energy it takes to keep a group organized and together. Educated guests are the ones you like to work for.
One major problem of assumption of the risk is quickly once we become enamored with an activity; the risks fade as a danger and become mundane. Those risks that a new guest may see as terrifying, we lightly skip over every day. Watch your guest the next time you casually stroll the to an ice climb as they contemplate, with an engaged if not terrifying look on their mind, the crampons, ice axes and the mixed terrain slope. Those risks that we now ignore are real to your guests.
This acceptance of risk can create dire consequences for the guide and outfitter. Most times we fail to identify the mundane to your guests and consequently, leave our guests in a precarious position. Yet it is the mundane risks that generally lead to the small activity ending injuries. Slightly injured guests either leave or end their activity or continue placing everyone at a heightened risk.
Watch a guest carefully negotiate the cliff edge as you walk around it or standing on a slightly sloping ice covered rock. The greatest risk to everyone within earshot is possibly the flying ice axe as the guest, feet firmly planted tries to remain upright.
Most of the time, we work heard at informing the guests of the hidden risks. Avalanches, rock fall, and hypothermia are always covered in great detail. We miss those things we have come to accept as the day to day. Like driving to and from the activity, we talk about the risks of the activity in the van, ignoring the fact we are traveling at 65 miles per hour in the deadliest contraption invented by man.
Employee or contractor guides also accept risks as mundane that are still dangerous to them. This mundane acceptance becomes a worker’s compensation injury if awareness is not kept at the forefront of both guest and guide’s awareness.
Does this mean you need a continuous monologue of warnings coming from everyone’s mouth? No, it does mean that you need to have a well thought out education program. Inform the guest of what they need to know to evaluate the activity when they are exploring the idea of going. What the guests need to know when preparing for the activity. What the guests need to know when they are engaging in the activity. More importantly, paying attention to the guests looking for those expressions or voice intonations that indicate more information is needed.
For more articles on Assumption of the Risk see:
New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
Keep your guests educated, healthy and happy and you will probably stay out of court.
Copyright 2011-2023 Recreation Law 720 334 8529, Recreaton.Law@Gmail.com
Good Idea, Bad Approach and it Didn’t Work Anyway: Berkshire Ski Area wins lawsuit
Posted: February 10, 2008 Filed under: Massachusetts, Ski Area | Tags: Berkshire East Ski Resort, Death, Law, Massachusetts, Ski, Ski Resort, snowmaking Leave a commentA ski area recently one a lawsuit filed by the parents of a teenage who died skiing at the Berkshire East Ski Resort. Elizabeth Ann Loughman was skiing with her high school when she fell hitting a snowmaking hydrant. The jury deliberated for two hours before finding that the ski area and its employees were not liable for the death of the young women.
This is a sad story in two ways. One, a young woman died skiing and two, a father felt the legal system was the best way to create a change in to keep other people safe. Another example where the law was felt by the parents to be the best way to accomplish their goals, but not an effective way.
For more information see:
Greenfield, Massachusetts Recorder.com: Jury: Ski resort not at fault in teen death
MassLive.com: Ski area wins lawsuit in death of local teen
Staying Current
Posted: February 10, 2008 Filed under: Uncategorized | Tags: Business, Colorado, Conference, Law, Lawsuit, Legal Information, Personal Flotation Device, Reasonable person, Services, Standard, Standard of Care, Tradeshow, West Virginia 2 CommentsLegal Reasons Why You Should be at your Industry Conference
You also do not want to miss out on all the fun!
People attend conferences for numerous reasons. To see old friends, meet new friends or to save money. The money you can save by buying equipment at a conference will usually pay for the trip. However, many people miss a very and important reason for attending their industry conference. Attending could keep you from being sued. This is a hidden, but very important benefit of attending a conference that most people do not appreciate until they are sitting on the witness stand in a courtroom.
There are several defenses you can use in running your outdoor recreation business. Releases and Assumption of the Risk are the two biggest and the ones most frequently use. Both to some extent revolve around the question whether you met the “reasonable standard for the industry.” Reasonable is defined as what a reasonable person would do in the same situation. Standard is the level of safety or knowledge and practice of safety required Industry is the paddling business industry. The definition combines to create a safety requirement that is the absolute minimum that a reasonable person running an outdoor recreation business would do. Standards are not goals; however, falling below the standard will almost always guaranty a losing lawsuit or at least increasing the cost of winning one.
Standards are floating. It is not always the same for a state, region or the nation. The standard will also change based on the water level, the type of river you are on, the equipment you are using and in several cases the types of guests to whom you are marketing. A recreation business in a rural area with a slow mellow stream that market’s to local people may have a different standard then when on a stream with small rapids near a large city and marketing to the masses. As such, you need to meet other people who are applying the same standard in the industry that you are using. You may also need to converse with people who are applying higher standards. History shows that companies move up to meet the standards for better operations or operations with higher standards.
Standards are not made, written down or created in courtrooms. They are constantly changing and they can only be found in the eyes and actions of everyone else in the industry. In trials, expert witnesses are brought in to tell the jury what the standard of care in a particular situation should have been. These expert opinions are based on the knowledge of the accident and a broad knowledge of the industry. You need to maintain your knowledge level of the industry at the same level as the experts. You are required to know the standard of the industry and your standards when running any business.
“Why does attending a conference change the way I do business?” Because the only way you can find out about a change in the standards is by meeting and greeting other people in the industry. If you have not attended a conference in several years, you may not know that the majority of states now require Personal Flotation Devices‘ for children. Even though your state may not require them, the standard has changed. You may not be required by law to provide a PFD, however, the standard is that one will be required and as such you have dropped below what the reasonable person would do in your situation.
Without attending a conference and seeing what everyone else is doing, you will not stay current in the industry. As such, you are wearing a target on your back that says sue me. Only personal injury attorneys can see that target. But see it they will when someone is hurt at your business.
There are other reasons for attending the conference. Unless you have hired an attorney to stay current on the issues or a lobbyist, you may have missed a change in the law. Many laws are passed each year that do not make the news. Old laws may also change. A great example of that is how courts have interpreted laws in West Virginia and Colorado recently. Unless you attend a conference, you may not know how new or interpreted laws have changed over the past year. What was a defense to the horseback riding industry in Colorado is now a welcome mat for lawsuits.
New ways to promote safety show up at conferences. New ideas that one business develops in their program can be a great way to keep your guests safe. New equipment is debuted, with the plusses and minuses at conferences.
New ideas also change the legal environment. A new product by a manufacture showing at the Conference can quickly change the standard for an industry. A new design of boat, Personal Flotation Device or trailer may suddenly make your system a risky liability issue.
These changes will not only affect whether a guest can sue you for injuries but also whether your own employees can sue you. Lifting canoes to the top level of a trailer may cause worker’s compensation injuries. A new design that promotes employee health and welfare could save thousands in worker’s compensation benefits.
The final legal reason for attending a conference is the overall education you receive. Judges and juries look at witnesses and examine their credibility. People who are honest are the witnesses’ juries believe. Honesty is not just how you are on the stand when you are testifying, but how you ran your business. An honest and upstanding member of the business community is going to continually want to improve his business. Being a member of your professional organization and attending the yearly conferences shows a jury that you care enough about your business and your clients to spend the extra time and money to run your business the best way possible. If you are willing to show an interest in your clients by receiving the most up to date education, you must not be as bad as you are being portrayed by the opposing attorney.
Some insurance companies give discounts on premium for attending a conference. They know that the company that attends a conference is concerned about staying current with the industry and keeping their operation as top notch as possible. Companies that attend conferences and get the most possible from a conference are less likely to have accidents that cost insurance company’s money.
Go to this year’s Conference and increase your chances of not going to court!
Recreation Law 