Avoiding a Lawsuit: Deal with your guest’s problems, don’t pass the buck to someone who can only create a lawsuit.

As you prepare for the upcoming season, checking each piece of equipment and training staff, your personal pre-season checklist needs to be updated: how will you handle an emergency? Each member of your staff must be prepared, trained in First Aid and CPR and know how to respond to a crisis. But are you prepared for the responsibilities of making sure an injured guest will not sue you?

As you prepare for the upcoming season, checking each piece of equipment and training your staff, your personal pre-season checklist needs to be updated: how will you handle an emergency? Each member of your staff must be prepared, trained in First Aid and CPR and know how to respond to a crisis. But are you prepared for the responsibilities of making sure an injured guest will not sue you? This article will probably be the exact opposite of how you have approached problems in the past. I suggest, however, that you read and think, and then call your insurance agent.

Most times, we, the soon-to-be-defendant, place the idea of a lawsuit in the mind of an injured party. I was once involved in a lawsuit that started when the defendant called the plaintiff and offered to settle the lawsuit. The plaintiff hadn’t started a lawsuit, but like everyone today, had threatened to get an attorney. Because the defendant believed he had a lawsuit, the plaintiff called an attorney, and a lawsuit was started. Too often, we have been trained by our auto insurance cards to say nothing, get names and addressees, and tell the injured parties that our insurance companies or adjusters will call. Try this test. Get your staff together and ask them to say the first word that comes to mind after you say adjuster, settlement, claim, or insurance company. Eventually, the words remind them of money. We have, by following the advice of our insurance carriers, put the idea of money into the minds of injured parties.

By immediately bringing in third parties to handle problems, we remove the caring attitude on which the outdoor industry was founded and bring in strangers to handle a problem. Our care for the environment and its relationship with human’s dissolves when a human is injured by or in the environment. The majority of people that sue over an injury do not want money; they want their problems taken care of. Think about the last car accident you were involved in. Did you want a check or did you want your car fixed? If the inconvenience you encounter is eliminated, and you are returned to your situation prior to the accident, you won’t worry about the accident or getting money. Our first goal should be to place people in the position they were in before they were injured, not with money, but with the ability to get along, get well, and get back to the program.

How often do we shun an injured guest? Don’t shun them, get them back. Fulfill your commitment to provide them with the adventure and the relationship your course or brochure promised. This effort to bring back an injured participant will bring additional rewards.

When a guest is injured on a trip, he/she is dealing with an instructor and organization that he/she knows and trusts. The guests won’t worry about money. Put yourself in an injured party’s place. Who would you rather deal with, the guide and company with whom you have spent four days and have gotten to know and trust, or an adjuster that you don’t know? How would you feel if the people with whom you have just spent time building trust disappear? Don’t disappear.

Try this. When someone gets hurt, call your insurance agent, notify your attorney, and go to the hospital to tell them you are sorry that their vacation was ruined. Ask them if there is anything they need. Help them arrange special transportation home. Help them get back into the program or catch up with the trip. Give them a rain check, ask them to come back and use it, send them flowers, and help them get well. Double check their insurance form with the information from their medical release form (Outdoor Network, Winter 1990, Volume 1, Issue 8), make sure the deductible is covered under your liability med-pay, and help them recover. Why should they sue you? You are now a friend helping them, not someone who disappeared when the injury occurred to be replaced by a clipboard-carrying adjuster.

When you get mad at a friend, what do you feel? Anger. When you get mad at someone, you don’t know, you get an attorney. Prevent the lawsuit from arising by making an injured guest comfortable, make them like you, keep the adjuster who only talks money out of the equation. Insurance companies can only pay; they can’t eliminate the emotional problems. You can.

Too often, we are afraid of saying anything, for fear that it will come back and haunt us in a courtroom. That fear alienates us from someone we just spent days trying to get to know. We have to know our guests to help them get the most from the experience, and yet we run for cover when they get injured. A rafting company had an attorney that was injured on a rafting trip. The attorney was air-lifted out of the canyon and taken to the hospital. the staff visit her and made her hospital stay more comfortable. For the price of some flowers, and the time it cost to stop by and say hello before and after work, they made a friend. The attorney walked back into the canyon after she got well and rejoined the trip. She never sued.

The rafting company took a potentially devastating incident and turned it into a minor incident. Also, it was probably great advertising: “The trip was rough and exciting. I was injured, and the staff was super. I even hiked back in order to rejoin the trip.”

Clearing this with your insurance company will be the biggest hurdle. Walking into a hospital room and showing someone, you care will remind you of the first time you strapped on a climbing harness. Some of my clients and I have developed a program with the insurance companies that makes them less concerned. After an accident occurs, the insured, the insurance company, and I get on the phone and plan a procedure for helping the insured. Coverage is reviewed, and limits are set on the amount of money to be spent in covering the insured’s expenses and my fees. The insurance company is not left in the dark, and the insured knows that we are only a phone call away to answer questions and provide support. Call your insurance agent and find out how they feel about a program like this.

Next time one of your guests is injured, think about how they feel. They are probably a long way from home, alone, in a strange hospital. How much better would you feel if someone stopped by once in a while and asked about you? How more secure would you be if you knew you could call someone and ask them to pick up another book for you on their way home from work? How mad could you get if they sympathized with your injury, wanted you to get well, and wanted you to come back and see them again?

What do you think? Leave a comment.

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Family of slain girl would waive damages to learn more about what happened

Lawsuits are not money a lot of the time; they are about emotions, finding out why.

This is outside the area of Outdoor Recreation; however it has value to all of us. The family of a girl killed by a gunman in school has offered to waive damages if they can learn more about what happened.

It is a scary, chilling terrible story, but what is important is why this offer. They just want to know why and to try and make sure it does not happen again.

See Father of Claire Davis to district: Provide information, avoid lawsuit

More articles about this issue:

It’s Not Money                                                    http://rec-law.us/zxmmqy

Why do people sue? Not for the money.                 http://rec-law.us/A0866T

Serious Disconnect: Why people sue.                      http://rec-law.us/wm2cBn

Her life is permanently changed, but she really wants an apology       http://rec-law.us/yHjVn0

Money is important in some lawsuits, but the emotions that starts a lawsuit. http://rec-law.us/xbSs4M

A Church wants to apologize and the insurance company for the church panics. What else would you expect a church to do?                          http://rec-law.us/zI0FUI

Great article on why some corporate apologies fall short and they are not sincere                                                        http://rec-law.us/xb1uVb

Keep customers and turn possible plaintiffs into PR teams for you       http://rec-law.us/12maA6Q

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Strava wins lawsuit claim it was responsible for cyclist death

Hopefully, Strava can receive sanctions for defending against this stupid suit.

Background:

Strava is an online website where cyclists and/or runners can post their ride/run information, track changes, share their ride/run information and on certain sections of the country be rated as the “king” of the section. The plaintiff was king of the mountain which is the shortest amount of time to climb and descend.

The plaintiff lost his ranking as king of a mountain. He was attempting to regain this title when he was struck and killed by a car.

His family filed suit claim that Strava was liable.

Stupid right!

Strava filed a motion for summary judgment, which was granted by the court. Simply, the deceased assumed the risk of his injuries, or in this case, the plaintiff assumed the risk of his death. “Plaintiff’s claim is precluded as a matter of law because Mr. Flint impliedly assumed the risks of bicycling…” and “that the defendant (Strava) has shown that bicycling is an inherent risky activity.”

As part of its defense, Strava countersued the plaintiffs. I was never able to find a specific statement as to the claims of the countersuit. The status of those claims is unknown. However, I hope they are still alive and Strava can recover its costs and attorney’s fees for defending this action.

This from a guy who hates lawsuits, but once in a while, for both sides, it should be done.

See Strava wins dismissal of civil suit over Berkeley deathor One-year-old lawsuit against Strava dismissed

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A default judgment does not mean you won, it means the other side lost

Whenever you see someone touting their win with a default, they are manipulating the

Differenty colored cycling jerseys as used in ...

system.

Lately, a lot of press releases and articles have been written about “winning” lawsuits when the other side does not show up. Nobody won a lawsuit in that situation; the

other side lost. You only win when you can present your evidence to a court of law AND rebut the evidence presented by your opponent.

Failing to appear may mean you lost the lawsuit; it may also mean you don’t want to spend the money in a case you can’t win. (See Lance Armstrong not arbitrating.) It may mean that the cost of winning or defending is more than the other side can win or that the winning side can never get its money. (See Floyd Landis and the UCI.)Lance Armstrong

It does not mean that the person who shows up to court, and wins does not win as much as it does not support all the allegations, statements and their positions. Nor does it mean that the loser admits to everything the winner is now proclaiming.

It’s understandable to the masses, but crap JOURNALISTS SHOULD FIGURE THIS OUT and write what really occurred, not just what the winning press release says.

Hint Hint Velonews and BRAIN and CyclingNews.com

At the same time, if you are sued, show up and fight. In the US, in a courtroom, you have a fair chance if you have any defense and if nothing else you can probablyLandis at the 2006 Tour of California

negotiate a lower amount to what you may owe. Arbitration where the other side makes the rules, foreign courts that can never come back to the US to get anything, smile and have a beer.

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You cannot answer a question by filing a lawsuit.

Man suing for answers on how his wife died.

Here is the quote from the article: “Grieving husband Colin Cross is taking legal action in his quest for answers as to how his wife died in Mexico

Arch of Cabo San Lucas

Arch of Cabo San Lucas (Photo credit: Wikipedia)

earlier this month.”

A San Diego attorney suing a Mexican company for a Canadian. That set of circumstances alone will probably prevent any real resolution. On top of that, how are you going to collect from a Mexican defendant.

Finally, lawsuits don’t answer questions. Lawsuits move money around.

See Man takes legal action in wife’s Mexico scuba death

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Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court.

Lafond v. Salomon North America Inc. et al, Superior Court County of Suffolk, Commonwealth of Massachusetts.

Although not a Precedent setting decision, it is indicative of where the courts are going.

This is a decision in the trial court of Massachusetts over ski bindings. The bindings broke injuring the plaintiff while he was skiing in Utah. He sued Salomon in the US and Salomon SAS, the French parent company based on Annecy France. The retailer, Bob Smith’s Wilderness House was brought in as a third party defendant.

The defendants filed a Motion to Dismiss, or what is referred to as a Rule 12(b)(2) motion. A Motion to Dismiss is granted only if the pleadings of the plaintiff do not state a legal claim or the defendant can’t be sued in this case. No evidence is reviewed by the court; it is purely a simple legal argument based on the laws of procedure.

Salomon SAS argued that it had no business in France, did no business in any country other than with Salomon North America based in Ogden Utah. Therefore, because it did no business in Massachusetts, it should not be brought into the litigation in Massachusetts.

So?

English: Seal of the Commonwealth of Massachusetts

Image via Wikipedia

The plaintiff claimed it went to the Salomon SAS website to research different bindings. The Salomon SAS website directed the plaintiff to the third party defendant Bob Smith’s Wilderness House as a retailer the plaintiff could from whom he could purchase the bindings.

The broken bindings were replaced by Salomon, although it is not known in the motion if it was Salmon SAS or Salomon North America.

The issue is whether court has the legal right to require a defendant to submit to its jurisdiction. The limits or requirements the court must follow are set usually set out in a long-arm  statute. That is the name given to the statute that controls whether the long arm of the law can extend outside of the state.

To exercise out of state jurisdiction over a defendant located in another state or country the defendant must have engaged in “purposeful and successful solicitation of business from Massachusetts residents.”

A website alone is not enough to bring a foreign or out of court defendant into the jurisdiction of a Massachusetts court. However, because the plaintiff identified the store where he purchased the bindings based on his actions on the Salomon SAS website that was enough to subject the foreign defendant to the jurisdiction of the Massachusetts court.

There are numerous other tests the court must review to subject a foreign business the jurisdiction of the court. However, this one act of directing the plaintiff to a local retailer was enough to subject the defendant to the jurisdiction of the Massachusetts court.

So Now What?

This is a crap decision. When a website brings you into court, a website alone, the purpose of long arm statutes has faded considerably.

However, this is just the first step in a long line of steps before the case is decided. Rarely is a Rule 12(b)(2) motion granted. Motions for Summary Judgment, other defense motions and a trial are all next, then appeals. Hopefully, an appellate court will look at this say the original decision must be overturned.

What can you do? In this case, maybe not a lot can be done, but there are something’s that might assist in some circumstances.

In every sale or contract, put into the agreement a jurisdiction and indemnification clause. You can use them in retail sales agreements with consumers, to some extent.

You also might consider an indemnification agreement between your US based distributor and yourself if you are a foreign, non US based, manufacture. The agreement would say that you would be 100% indemnified for any US based lawsuits, other than product recalls. This might encourage US plaintiff’s not to drag you into a US court.

Make sure your agreement with your US based distributor is not a big target for lawsuits. Identify when the inventory transfers to the US subsidiary and when payment is owed for the inventory.

Set up a defense program with your US Distributor, Reps and all retailers. The program should incorporate the use of a release. The program should make sure three things happen to help eliminate several of the issues in this case.

1.       It requires the use of a release by all parties at all times. You can even put one on your website. Releases are not 100% effective in product liability cases, but their jurisdiction and venue clauses may at least get the suit back to your home state.

2.      The agreement identifies who shall be protected who and for what reasons. The manufacture of a product in a product liability claim is going to be holding the bag in most cases so this is not a big deal. More importantly it keeps the retailer in your camp in litigation and prevents the embarrassment of brining in the retailer as a third party defendant, making them mad and making you look bad, that occurred in this case.

3.      It requires the retailer to notify you immediately of any problems so you can get ahead of the curve.

4.      It puts you in control of your litigation destiny and makes you look like the good guy when you are sued to all distributors and retailers in the industry.

For more cases on Jurisdiction and Venue see:

The legal relationship created between manufactures and US consumers

Four releases signed and all of them thrown out because they lacked one simple sentence!

A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit.

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Lucas v Norton Pines Athletic Club, Inc., 2010 Mich. App. LEXIS 1066

Lucas v Norton Pines Athletic Club, Inc., 2010 Mich. App. LEXIS 1066

 

Clinton Lucas and Robyn Lucas, Plaintiffs-Appellants, v Norton Pines Athletic Club, Inc., and David Swinburne, Defendants-Appellees.

 

No. 289685

 

Court of Appeals of Michigan

 

2010 Mich. App. LEXIS 1066

 

 

June 10, 2010, Decided

 

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

 

PRIOR HISTORY:  [*1]

Muskegon Circuit Court. LC No. 08-45745-NO.

 

CORE TERMS: misconduct, reckless, climbing, eye contact, recreational activity, climber, ordinary negligence, climb, auto-belay, protocol, harness, general negligence, wilful, posted, rock, assumption of risk, wanton negligence, negligence claims, citation omitted, co-participant, coparticipant, indifference, recklessness, casts, Climbing Wall Rules, acknowledgement, initiating, routine, tether, staff

 

JUDGES: Before: OWENS, P.J., and O’CONNELL and TALBOT, JJ.

 

OPINION

PER CURIAM.

Plaintiffs appeal as of right from the grant of summary disposition in favor of defendants pursuant to MCR 2.116(C)(7). We affirm.

This appeal arises from an accident that occurred at defendant Norton Pines Athletic Club (hereinafter “the Club”). Plaintiff Clinton Lucas (hereinafter “plaintiff”) suffered injuries after falling approximately 20 feet from the Club’s indoor rock climbing wall. At the time of the accident David Swinburne, an employee of the club, was monitoring the climbing wall.

When initiating their membership with the Club, plaintiffs executed a Participant Release of Liability and Assumption of Risk Agreement that provided, in relevant part, for a “release and . . . discharge” of the Club and its employees from any claims of injury “which may occur from any cause during such participation and/or use of the facilities.” The Release also included a specific acknowledgement that the member assumed the risk of participation in activities at the Club. However, the Release specifically did not cover claims “arising from the willful or wanton negligence of Norton Pines Athletic  [*2] Club or its officers, agents, or employees.” In addition before engaging in climbing of the rock wall, each member of the Club was required to execute a Climbing Wall Release of Liability, which also included an acknowledgement regarding the assumption of risk of the member in participating in this activity and discharged the Club and its employees “from any and all claims, demands, actions, or causes of action on account of injury or death to myself . . . which may occur from any cause during such participation and/or use of the facilities.” The Club also posted Climbing Wall Rules and Regulations, which required each member climbing the rock wall to wear a harness that must be attached with metal carabiners to tethers that descend from an auto-belay, or safety mechanism, which are secured to the wall. A climber’s release of his or her grip from the climbing wall engages the auto-belay mechanism, which serves to lower the climber in a slow and safe manner to the ground. The Club’s posted Climbing Wall Rules require that “[o]nly a Norton Pines staff member is allowed to hook and unhook climber to and from the belay,” and “[o]nly a Norton Pines staff is allowed to check the safety of  [*3] equipment after it is put on.”

Plaintiff was an experienced climber and had developed a routine or practice with Swinburne that would permit plaintiff to secure his own clip onto the harness and ascend the wall after making eye contact with Swinburne to visually verify that plaintiff’s harness was properly attached to the auto-belay system. On the day of plaintiff’s fall, he and Swinburne had followed this routine a number of times. However, on his last climb, plaintiff ascended the wall without clipping the harness to the auto-belay system or making eye contact with Swinburne to indicate that he was initiating his climb. Swinburne was in the vicinity, but reading a magazine when plaintiff commenced his climb. Plaintiff lost his grip on the wall and, without attachment to the safety mechanism, fell approximately 20 feet to the ground, incurring injuries.

Plaintiffs filed suit against both Swinburne and the Club alleging several counts of general negligence and reckless misconduct. Defendants sought summary disposition, pursuant to MCR 2.116(C)(7) and (C)(8), arguing there was no genuine issue of material fact based on plaintiff’s assumption of risk and the execution of valid releases  [*4] and waivers. The trial court initially granted summary disposition only on plaintiffs’ general negligence claims and denied defendants’ request for the dismissal of plaintiffs’ reckless misconduct claim. On reconsideration the trial court subsequently dismissed plaintiffs’ reckless misconduct claim and this appeal ensued.

Initially, we note that the various waivers and releases signed by plaintiffs precluded his claims of ordinary negligence. Specifically, “A contractual waiver of liability also serves to insulate against ordinary negligence, but not gross negligence.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003), citing Lamp v Reynolds, 249 Mich App 591, 594; 645 NW2d 311 (2002). Notably, the various releases signed by plaintiffs indicate a waiver of liability for general negligence but not “willful or wanton negligence” or misconduct, which is defined in case law as being established “if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.Xu, 257 Mich App at 269 n 3 (citation omitted).

Plaintiffs have pleaded only general negligence and reckless misconduct. On appeal,  [*5] plaintiffs do not challenge the dismissal of their general negligence claims but assert error in the trial court’s grant of summary disposition on their claim of reckless misconduct. Plaintiffs contend that the trial court erred in limiting their claim of reckless misconduct only to injuries caused by a “co-participant” in a recreational activity rather than applying this standard to encompass all recreational activities as implied in Ritchie-Gamester v City of Berkley, 461 Mich 73, 89 n 9; 597 NW2d 517 (1999), which provided:

 

We recognize that we have stated this standard broadly as applying to all “recreational activities.” However, the precise scope of this rule is best established by allowing it to emerge on a case-by-case basis, so that we might carefully consider the application of the recklessness standard in various factual contexts.

 

Contrary to plaintiffs’ position, the Court’s ruling in Ritchie-Gamester was very specific, stating in relevant part:

 

[W]e conclude that coparticipants in a recreational activity owe each other a duty not to act recklessly. Because the trial court properly concluded that plaintiff could not show that defendant violated this standard, summary disposition  [*6] was proper. [Id. at 95 (emphasis added).]

 

Based on the factual circumstances of this case, there is no basis to assert reckless misconduct as a basis for imposition of liability as Swinburne is merely the employee of a venue housing a recreational activity and not a coparticipant. Accordingly, the trial court correctly found that the case at hand is not analogous to Ritchie-Gamester and properly dismissed plaintiffs’ claim of reckless misconduct.

Further, even if Swinburne could be construed as a co-participant, his failure to act does not rise to the level of reckless misconduct, which is defined as:

 

One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the wilful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether  [*7] it does so or not.” [Behar v Fox, 249 Mich App 314, 319; 642 NW2d 426 (2002) (citations omitted).]

 

There was no evidence presented of any affirmative or assertive behaviors by Swinburne to support an assertion of reckless conduct. At most, Swinburne was negligent because he was inattentive to plaintiff’s activity at the initiation of his climb. Swinburne’s complicit participation with plaintiff in ignoring the rules and regulations for the rock-climbing wall could only be construed as ordinary negligence based on their having established a mechanism or procedure to assure plaintiff’s safety while climbing. While the procedure followed deviated from the Club’s policy it does not evidence a level of willfulness or indifference necessary to establish reckless misconduct.

Plaintiffs also contend that the trial court erred by making findings of fact and failing to construe the evidence most favorably to the party opposing summary disposition. A trial court may not make findings of fact or weigh credibility in deciding a motion for summary disposition, and all reasonable inferences must be drawn in favor of the nonmovant. Amerisure Ins Co v Plumb, 282 Mich App 417, 431; 766 NW2d 878 (2009).  [*8] Defendants sought summary disposition in accordance with MCR 2.116(C)(7). In deciding a motion based on that sub-rule, a trial court may consider “affidavits, depositions, admissions, or other documentary evidence” that would be admissible at trial. MCR 2.116(G)(2); Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008).

Specifically, plaintiffs argue that the trial court erroneously found, as an undisputed fact, that plaintiff and Swinburne had adopted an “eye contact protocol” and that reasonable minds could not conclude that Swinburne’s behavior had exceeded ordinary negligence. According to plaintiffs, acceptance of the use of an “eye contact protocol” is contrary to the facts established by the record based on the Club having established and posted a formal procedure for securing climbers in its “Climbing Wall Rules & Regulations” coupled with Swinburne’s acknowledgment that this policy was mandatory and that he lacked the authority to override or ignore that policy.

Swinburne and plaintiff both admitted that the procedure they had adopted using eye contact was a deviation from the Club’s written rules. However, Swinburne and plaintiff also testified that they believed the “eye [*9] contact protocol” was appropriate due to plaintiff’s climbing experience and because it achieved the intended goal of verifying that plaintiff was properly attached to the tether. The trial court properly considered this evidence and construed it in a light most favorable to plaintiff. The only reasonable construction of the evidence was that Swinburne and plaintiff had developed their own protocol to insure that plaintiff was securely attached to the safety mechanism, albeit contrary to the Club’s rules and regulations. This did not comprise improper fact-finding by the trial court.

Affirmed.

/s/ Donald S. Owens

/s/ Peter D. O’Connell

/s/ Michael J. Talbot

 


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

This case shows how standards, written by a great organization with good intentions can be used to help, encourage and support lawsuits against its own members.

This case was settled, but it is full of information that everyone who may be a defendant needs to understand.
This case was started by a woman, the plaintiff, more than five years after she had spent a couple of weeks at a summer camp. She was not a camper nor was she working at the camp. She had been invited out by a staff member to give her a break from home. Allegedly, she was (consensually although there may have been statutory issues) sexually assaulted by an older staff member. She sued the staff member and the camp.

The plaintiff, to support her position, hired an expert witness. This is a common practice to support a claim. The expert witness’s job is to prove the defendant camp had acted in violation of the standard of care for camps. The plaintiff’s expert was an ACA standards visitor. The Expert Opinion by the ACA standards visitor was used in the plaintiff’s motion to support a claim that the defendant Camps actions warranted an award of Punitive Damages.

Punitive damages, are damages awarded by the jury above and beyond actual or compensatory damages. The damages are meant to punish the defendant. Punitive damages are not covered by insurance, are not dischargeable in bankruptcy and are in addition to any other damages. The defendant must pay punitive damages, if awarded, no matter what. Consequently, if the court approves the motion to ask for punitive damages in a case, it almost always forces the defendant to settle for fear of having to pay money out of their own pocket. The facts are never thoroughly litigated because they fear of the punitive is overriding. Even if you are 100% right, you may still settle in if punitive damages is a real threat.

The expert for the plaintiff (no relationship to me) was listed as an expert because she was an American Camp Association Accreditation Standards visitor. The experts Resume listed her ACA membership and her ACA Associate Visitor status second only to her education. The “Standards” allegedly violated were the 1998 ACA Accreditation Standards for Camp Programs and Services.

The expert opinion listed five areas that the camp had violated the standard of care for camps. Those areas are listed in the report as Opinion 1 through 5. ACA standards were used to support the expert’s opinion in three of the violations.

The first opinion rendered was the defendant camp violated the then ACA Accreditation Standards – HR-10. HR-10 states no camp staff member is to be under 16 years of age. The plaintiff at the time she was visiting camp was 14.

The first issue is the standard was applied to a fact situation that really had nothing to do with the claim. However, because there was a standard that could be linked to the claim, no matter how remote, the standard was alleged to be violated by the defendant. The plaintiff in this case was not a camp staff member, was not a volunteer, and was not getting paid. She was there for a break from her family. Nevertheless, the standard was applied to show the defendant camp should be held liable for punitive damages.

The second issue is the standard created by the trade association that the camp was a member of, was used to show the camp was negligent. That is just wrong!

Opinion 4 stated that 4 ACA Camp Standards were violated:

HR-11 requires six days of pre-camp staff training of employees.

HR-12 required late hire training for employees.

HR-13 requires implementation of in-service training for employees.

HR-19 requires specific training for staff supervisors to maintain staff performance and address inappropriate staff behavior.

The plaintiff had not received any training. I’ve never seen a camp train any visitor. (Although I’m sure you wish you could sometimes!)

All four “Standards” were violated because the plaintiff did not receive any of the training required by the ACA “Standards”. Again, visitors to camp need to go through training? Late hire camp staff training? Hire usually means someone is employed, consequently, paid, which never occurred here.

Opinion No. 5 stated the defendant camp violated ACA Standard HW-19 and ACA Standard HW-20 on the proper system of health care camp record keeping. This was alleged because a cut the plaintiff received was not recorded in the nurse’s log.

What is so interesting about this issue was there was no allegation that the cut the plaintiff had received was received or treated negligently. Nothing in the lawsuit claimed the way the plaintiff received the cut, the first aid or treatment was negligent. The complaint just stated she received a cut and was taken home by her parents. The suit claimed that an older camp staff employee had sexual relations with the plaintiff.

However, this is a perfect example of how plaintiffs use any violation of the standard, whether or not it has anything to do with the claim, to make the defendant look bad in the eyes of the court and the jury. Good defendants do not violate standards. Here the defendant was obviously bad because the standard was not met.

There is no way that any camp can operate and not violate one of the “Standards” at some time during the camp season! 1998 there were just too many of them. In 2011 there are even more.
 
To support the allegations made in the plaintiff’s expert report copies of the “Standards” were attached to the report. The following pages were attached to the report:

Cover Page
Title Page
Table of Contents vii
Table of Contents viii
Page 92 HR-10 Staff Age Requirements
Page 93 continuation of HR-10 and HR-11
Page 94 continuation of HR-11, HR-12 and HR-13
Page 97 HR-18 and HR-19
Page 98 continuation of HR-19 and HR-20
Page 67 HW-19 Recordkeeping
Page 68 HW-20 and HW-21

Why only those pages? Because those are the important pages the plaintiff wants the judge to see. There are limits to how big motions can be how many pages the judge will read, pages, etc. Those are all valid arguments and are real for only putting in the important documents as exhibits.

However “standards” are written with disclaimers and limitations and definitions, none of which are ever given to the court. The court is never shown that there may be limitations to what the “Standards” mean or how they are applied.

Even if those were supplied, the court must apply the definitions that are in the statute or by law first and then as used in the community or industry second. See Words: You cannot change a legal definition.

Trade Associations write standards with the mistaken believe that the plaintiff’s experts and the court will apply the standards exactly the way the standards are intended to be written. The facts are once the standards are printed the trade association loses all control no matter how many pages of disclaimers are put in the information.

So the judge in this case, who is pressed for time, reads the report and has a list of standards that are violated. A standard is the optimum word. The camp was below the minimum level of acting or not acting that was set by the camps own trade association. That is all that is needed to keep the case moving forward. Standards were violated. Therefore, there may be negligence. That must go to a jury, there must be a trial and the cost to the defendant (and its insurance company) climbs even higher. (Consequently, your premiums increase also. See Insurance 101 if you don’t fully understand this.)

Even if the additional documentation is put into evidence, the legal definition of the words is going to be used, not how the word is defined in the standards book. See Words: You cannot change a legal definition.

Nor does the court have the opportunity to delve into the standards to find out that most of them are not really standards but suggestions, ideas or just good practices. However, by identifying the book as standard there is a legal definition applied to the work that is just as dangerous as it may be helpful.

Some might say that if the camp was bad then lawsuits get rid of bad camps (or other defendants). However, that never works. This camp did not close up. In fact, in my opinion, this camp was sued because it tried to help out a confused young woman. The end effect is there will be no more attempts to help anyone in the future.

The only real consequence of this lawsuit was the amount of time that spent working on the case. Some money might have moved between the parties, and the attorneys and expert witnesses made money.

Let’s look at the opinion no 1 of the plaintiff’s expert witness. The standard says that employees should not be under the age of 16. Most camps are run by families. Many times there may be two or three generations at the camp. If a staff member sends their 15 year old son to the tool shed to get a tool and in the process the son accidentally knocks over a camper, injuring the camper, the camp has violated that standard. No 16 year olds should be hired by a camp. However, he wasn’t hired. Well, we’ve seen how that does not work, and he was working, providing a benefit for the camp.

The camp has a couple of options.

1. Not allow their children at camp until they are 16.

2. Violate the standard.

You are going to take your kids to camp and have them play video games and watch TV or are you going to put them to work. If you put them to work before they reach the age of 16 you are violating a standard created by a trade association for your benefit.

Say you are an organization that works to install leadership, training and teamwork into the youth. It is common in your organization for the youth to be responsible for other members. (Sound like any organization you know?) Your camps are staffed predominantly by youth because of the training and goals of the organization. Every single one of those camps is in violation of the standard HR-10 (as it was in 1998).
If your youth organization is focused in leadership training and does that by helping youth move up to more advanced and important leadership positions, the entire program will fail if you say to the 14 year olds, wait two years until you turn 16 to move up to the next level, camp staff.

These are just two scenarios where the standard set forth in HR-10 (which is almost identical in the latest version) can be used to sue a camp every single day of the year. However, in both scenarios, nothing has been done wrong other than taking your kid to work and following your youth program guidelines.

Are all standards bad? No, standards for things are great. Concrete “acts” the same way every day. A fight with a spouse, traffic on the way to work, rain, none of this affects concrete. It is going to support XX thousands of pounds of weight. Standards for things work. People and how people operate are subject to millions of things, weather and other people. We don’t’ react the same way. We aren’t affected the same way. We don’t respond the same way, who can you write something down that says we will, no matter what.

For other articles about standards see:

This is how a standard in the industry changes…..but….

Can a Standard Impede Inventions?

Playgrounds will be flat soon

Words: You cannot change a legal definition

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

The motion where the expert witness’ report was filed is here.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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People familiar with the legal system are more likely to sue.

Burgad v. Jack L. Marcus, Inc., 345 F. Supp. 2d 1036; 2004 U.S. Dist. LEXIS 24491; CCH Prod. Liab. Rep. P17, 226

However, the court found the manufacture of a sports bra not liable. The plaintiff in this case sued for burns she received while wearing a sports bra. The bases of the claim were burns the plaintiff received allegedly from the chemicals in the materials used to manufacture the bra. However, the plaintiff also laid out in the prison court yard wearing the black sports bra in over 100 degree heat. She suffered a few burns that were 1 to 3 centimeters in size.

The plaintiff argued failure to warn, negligence, and strict products liability claims.

The court dismissed the failure to warn and negligence claims because the plaintiff did not have any proof, other than her own statements, that there was a duty or a breach of the duty to her. No other witness or more importantly expert witness corroborated her claims. To prove negligent design under North Dakota law the plaintiff must prove “that the defendant failed to use reasonable care in designing the product and that failure resulted in a defective product.” The plaintiff was never able to connect that the design of the bra was the cause of her burns. There was no legal or even reasonable connection between her burns and the fabric, the construction or design of the bra.

Under a strict liability theory in North Dakota the plaintiff had to prove.

…by a preponderance of the evidence the product was defective in design or manufacture; the defect rendered the product unreasonably dangerous to the consumer; the defect existed when the product left the manufacturer; and the defect was a proximate cause of the plaintiff’s injuries.

The key is unreasonably dangerous. Simply having a product that produced an injury is not enough to prove a strict liability defect claim. You must supply a connection between the injury and the product AND that the problem with the product was unreasonable. Again, here is where the court said an expert witness was needed to prove the defect and whether that defect was unreasonable.

So?

There is a good discussion of North Dakota product liability law in this case, no matter the facts. The issue to remember, unlike negligence, which is uniformly defined and applied in all 50 states, each state has a slightly different approach to product liability claims.

The information contained here is good, but best only for North Dakota.

However, to win a product liability case you must state a cause of action. Injuries alone are not enough.

Familiar with the legal system usually means lawyers and paralegals. However, in this case it also included prisoners. Once you understand the legal system, and in this case have a lot of time on your hands, you are more likely to sue.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

© 2010 James H. Moss

 

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Aspen Skiing Company Release stops claim by injured guest hit by an employee on snowmobile.

Robinette v. Aspen Skiing Company, L.L.C., 2009 U.S. Dist. Lexis 34873 (Colo)

Colorado Release law dismisses claim for what could have been a nasty outcome.

The Plaintiff in this case Robinette was snowboarding and approaching an incline attempting to perform a jump. An Aspen Skiing Company employee was driving a snowmobile uphill on the other side of the incline. The guest and the snowmobile collided causing serious injuries to the guest.

The guest was skiing on a season pass purchased from Aspen Skiing Company. As with most ski resorts, the guest was required to sign a release as part of the season pass purchase.

The Plaintiff argued the defendant Aspen Skiing Company was negligent. The negligence was based on a violation of the Colorado Snowmobile Act, C.R.S. § 33-14-116. The specific statute states:

33-14-116. Other operating restrictions

(1) No person shall operate a snowmobile in a careless or imprudent manner without due regard for width, grade, corners, curves, or traffic of trails, the requirements of section 33-14-110 (3), nd all other attendant circumstances.

(2) No person shall operate a snowmobile in such a manner as to indicate either a wanton or a willful disregard for the safety of persons or property.

(3) No person shall operate a snowmobile while under the influence of alcohol, a controlled substance, as defined in section 12-22-303 (7), C.R.S., r any other drug, or any combination thereof, which renders him incapable of the safe operation of a snowmobile.

(4) No owner shall permit such snowmobile, while under his control, to be operated in violation of the provisions of this article.

(5) Any person who violates subsection (1) of this section is guilty of a class 2 petty offense and, upon conviction, shall be punished by a fine of one hundred dollars.

(6) Any person who violates subsection (2) or (3) of this section is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.

(7) Any person who violates subsection (4) of this section is guilty of a class 2 petty offense and, upon conviction, shall be punished by a fine of fifty dollars.

The plaintiff argued that the statute creates a duty for snowmobile operators to operate in a safe manner. The plaintiff argued duty cannot be waived by a release by cause the duty is imposed by statute. The plaintiff also argued the release was ambiguous as to this type of accident.

The court outlined the four requirements for a release to be valid in the State of Colorado.

(i) There must not have been an obvious disparity in bargaining power between the releasor and releasee;

(ii) The agreement must set forth the parties’ intentions in clear and unambiguous language;

(iii) The circumstances and the nature of the service must indicate that the agreement was fairly entered into; and

(iv) The agreement may not violate public policy.

The burden of proving all of these elements is met is upon the party trying to enforce the release. In this case, it was the defendant Aspen Skiing Company. The court accepted Aspen’s arguments on the first and third steps and analyzed the second and fourth elements in its decision.

The first argument and analysis centered on whether the language in the release covered being hit by a snowmobile. This is an important analysis for everyone in the recreation industry. To name all the possible ways you can be injured would require a multi volume encyclopedia with a signature at the end. The court found the risk did not have to be identified in the release because it was identified in the Colorado Skier Safety Act C.R.S. § 33-44-108(3), which requires snowmobiles to have specific equipment on it to be operated at a resort. Because the statute looked at the risks of a skier being hit by a snowmobile, it was within the scope of the activity and the release.

The main argument that the defendant’s employee violated the Colorado Snowmobile statute creates an interesting argument. A release cannot void the obligations created by a state law, which is true. You cannot contract for something, which is illegal, and you cannot contract to do a crime, and you cannot contract away a statutory duty. The snowmobile licensing statute imposes a criminal penalty for anyone who violates it. However, the court found that the two could exist without a problem. The release attempts to prevent liability for a tort, and the statute imposes criminal liability for criminal acts. The release does not prohibit the state from imposing criminal liability on the driver of the snowmobile.

Aspen moved for Summary Judgment based on the release, and the court upheld the motion dismissing the plaintiff’s claims.

However, this decision might not have had the same outcome in many other states. Most states look at a statute that imposes criminal liability for an act or failure to act as something a release cannot protect. If the act was negligence per se, a violation of a statute, then most states do not allow a release to be used as a defense.

So?

The decision provides a good framework for understanding the steps necessary for a defendant to rely on one as a defense. Specifically, the analysis of who has the burden of proving the release is valid and whether or not the language of a release is clear. This also shows how other statutes can be used to assist in the defense of a lawsuit.

However, the public policy answer, step IV of the four parts necessary for a release to be valid in Colorado is contrary to the law in most other states.

This case can still be appealed; the District Court is just the first step, the trial court in the Federal court system. If this case is appealed and upheld at the appellate level, it will be a significant strengthening of the law of releases in Colorado.

This is also significant because guest collisions with snowmobiles have been costly to the ski industry.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

© 2010 James H. Moss

 

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Serious Disconnect: Why people sue.

One of the common themes you see running through these posts is the “disconnect” between the plaintiff and defendants in a lawsuit. This disconnect is between what the plaintiff is asking for and what the defendant believes the plaintiff wants. The defendant always believes the plaintiff wants money. The only thing a court can provide is money, no matter what the plaintiff may want. When you read the plaintiff’s statements however plaintiffs rarely are asking for money. Plaintiff’s want answers, want a response, and want to know why.

Defendants are prevented by insurance companies and attorneys from dealing with possible plaintiffs because insurance companies and attorneys know their client will make the lawsuit worse. (For proof read the back of your automobile insurance card.) This is where the disconnect starts. The plaintiff has a question and the defendant is not allowed to answer the question.

An article in The Chronicle of Higher Education titled Family Uses Web Site to Publicize Their Son’s Injury at Camp Run by Community College is a perfect example of these issues.

The facts of the original case have been broadcast in the media and on the web but need to be reviewed here. Twelve year old Adam E. Dzialo had gone to a summer camp run by Greenfield Community College. During a whitewater activity Adam’s foot was caught and he was submerged for several minutes suffering permanent brain damage. Adam is now minimal functional, paralyzed and unable to hear.

The college had just undergone an Association of Experiential Education accreditation review where the review report alleged stated the whitewater program needed more instructors.

Accrediting Program Increases Liability Exposure

This accreditation report created the issue in everyone’s mind that has continued to plague the college. If the “group” you paid to come in and review you said to add more instructors, why did you not add more instructors? This also highlights the risk of asking a group to come in and review you. If you are not going to heed the review, don’t ask for the review. Someone else may look at the review.

Plaintiff’s filed suit

Adam Dzialos parents filed suit against the college. However the college was protected by government immunity and that lawsuit was dismissed. The parents then sued for violation of Adam’s civil rights in Federal District Court. This is a way to get around the governmental immunity defense in most states, but the damages are much more limited in this type of lawsuit.

The Dzialos have now set up a website to publicize their son’s progress and their issues with the college.

Plaintiff’s comments about the suit

Of greater interest though are comments the Dzialos have made about the website and the college. The following statements have been reported to the media.

“They [Dzialos] wanted to know why only one of the camp’s two counselors was on hand for a white-water river rescue exercise that day.”

“They wanted to know why they were not notified first by college officials but nearly two hours later by the hospital where their son was taken for treatment.”

“….the Dzialos say they have gotten little response from officials at the Massachusetts college.”

“….and to help educate the community about camp safety.”

“But they say what they really want is an apology from the institution.”

“”Instead of dealing with all these issues of honesty, they would rather protect their mortar and bricks,” says Adam’s father, Philip A. Dzialo.”

“”I’m hoping that there is enough community response that the college will say, Because these are our consumers, we should sit down with these people and hear what they have to say,” he says.”

The only statement indicating the Dzialos want any money out of the college is this last one and it is not a quote.

“So they decided to set up a Web site to provide information about their son’s rehabilitation progress and to pressure the college to assume some responsibility for his injuries.”

At the same time, this statement could also mean they want the college to acknowledge they are wrong, which does not necessarily mean they want money. The medical bills have forced the Dzialos to file bankruptcy.

Although by this point, money is probably necessary to ease the issues facing the family. But the amount of money might be significantly reduced if the college agrees to meet and accept responsibility for what occurred. There is a fear that apologizing will prove liability, but that is not the case. No lawsuits have ever shown an apology to be more than an apology. Several states protect apologies from being used as a statement of liability and if made during settlement negotiations the apology cannot be used in court.

The Disconnect

The college knows, because their attorney and insurance company have told them so, that the Dzialos want money. The Dzialos attorney wants money that is how he or she makes a living. But the Dzialos have never made a statement that they want money! They want answers

This is a serious disconnect. And it pervades our society. One side is convinced it knows what the other side wants, no matter how many times they are told differently. No matter what, the only thing one side can get is money and the only thing the other side is allowed to give is money. Yet neither wants to deal in that medium

What do you think? Leave a comment.

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