Connecticut statute allows Camp Director to be personal liable for injuries of camper

Posted: July 22, 2013 | Author: Recreation Law | Filed under: Connecticut, Minors, Youth, Children, Summer Camp | Tags: Camp, Camp Kenwood, Camp Moshava, Connecticut, Inc. dba Camp Kenwood, MAINE, Open and Obvious, Personal Liability, Recreation, Summerland | Leave a comment

Connecticut has been moving towards the defendant is liable no matter what attitude.

Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)

Plaintiff: John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers

Defendant: Summerland, Inc. dba Camp Kenwood, David B. Miskit and Sharon B. Miskit, Camp Directors

Plaintiff Claims: negligence

Defendant Defenses: individuals not personally liable and dangers were open and obvious to the plaintiff.

Holding: For the plaintiff, Connecticut statute creates personal liability for the camp directors and the open and obvious argument is a genuine issue of material fact to be determined by the jury.

Another case with good information, however, the case is probably not decided yet and the basis for the decision could be different than first reported.

The facts are spotty in this decision. The deceased was a thirteen-year-old girl attending the defendant Camp Kenwood. As part of the camp, the plaintiff was mountain biking on Bald Hill Road. The road gets steeper as it descends.

The camper was biking on the road and seems to have run off the road which caused her fatality. The administrator of her estate sued the camp and the camp directors individually.

Summary of the case

This appeal was of a denial of a motion for summary judgment. The motion looked at two issues. The first was the individual camp directors should not be personally liable for the plaintiff’s claims. The second was the case should be dismissed because the risks of the riding a bike on that road is open and obvious.

The individual liability issue was the first examined by the court. Connecticut has several statutes regulating summer camps for minors. One of those statutes C.G.S. §19a-422(c) states:

[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.

Another statute C.G.S. §19a-428(a) states:

“The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff….

The regulations adopted by the Commissioner of Public Health, included Regs., Connecticut State Agencies §19-13-B27a which states:

(1) No person shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.

Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.

The plaintiffs argued that because the statutes and regulations created a duty on the part of the directors to care for the “health, comfort and safety of camps” any injury to a camper created personal liability on the part of the camp director.

The defendant argued that liability for actions of a corporation, which owned the camp, could not be imputed to an individual, which is the law in most jurisdictions. That is the argument normally made in this situation where the employee is only acting on behalf of the employer or corporation and as such the corporation has the liability. However, the statutory scheme of Connecticut eliminated that defense.

Consequently, the court easily found that the statutory and regulatory framework in Connecticut created personal liability on the camp director.

The Open and Obvious argument was easier for the court to decide. Even though two camp counselors had warned the deceased of the risks of the road, and the road’s risks were discernible to any rider, the court found that whether or not a thirteen-year-old camper recognized and understood the risks was a decision for a jury.

So Now What?

Part of any plan to develop a business must look at any statutes that apply to the business. At the same time, when the legislature is making laws that may apply to your business you need to become involved and make sure the laws will not make your business life miserable or create liability.

If the statutes or regulations create liability either for the organization, business or program which you do not want to deal with or personal liability, make sure you want to deal with that state. In the alternative make sure can afford the insurance you will need.

Here what could probably appear to be a harmless statute created personal liability for the camp director. Normally, this is a “play” made by the plaintiff to try to increase the value of the case.

However, one issue that should be explored by any camp or outfitter is if the insurance coverage of the corporation provides a defense to individuals for actions of the individual who create statutory liability.

Absent that protection, the individual defendants could be personally liable for any damages. Their homeowner’s insurance would not provide coverage for the liability that occurs because of work. Whether or not their corporate documents, articles and bylaws, provide for indemnification of employees or the board of directors is willing to pay for the damages, the employees could be stuck with the bill personally. Dependent upon how the damages are paid; this could also create a tax liability for the individuals. The final issue is whether the insurance policy provides coverage for employees liable individually.

Whenever you are dealing with kids 12-14 years of age and younger, it is fairly impossible to prove assumption of the risk or the sub-set defense of open and obvious. Unless you have a record of prior experience, a video proving the training, you are going to have a difficult time with this defense.

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Summerland, Inc. dba Camp Kenwood, Camp Kenwood, Summerland, Connecticut, Open and Obvious, Personal Liability,

WordPress Tags: Connecticut,statute,Camp,Director,injuries,camper,defendant,attitude,Wynne,Summerland,Conn,Super,LEXIS,Plaintiff,John,Administrator,Estate,Hunter,Brothers,Kenwood,David,Miskit,Sharon,Directors,Claims,negligence,Defenses,individuals,dangers,argument,fact,jury,Another,information,basis,decision,girl,mountain,Bald,Hill,Road,Summary,denial,judgment,bike,statutes,minors,specialists,counselors,maintenance,personnel,reputation,Commissioner,Public,Health,accordance,chapter,youth,qualifications,Regs,State,Agencies,person,turpitude,physician,narcotic,drug,Except,management,campers,appliances,plaintiffs,injury,corporation,jurisdictions,situation,employee,employer,framework,Open,Obvious,rider,Part,legislature,laws,life,insurance,Here,coverage,Absent,protection,defendants,homeowner,Whether,bylaws,employees,Dependent,policy,assumption,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Human,Rock,Ropes,Course,Challenge,Summer,Camps,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Personal

Maine Ski Area Safety Act

Posted: July 22, 2013 | Author: Recreation Law | Filed under: Maine, Ski Area, Skiing / Snow Boarding | Tags: MAINE, Maine Ski Area Safety Act, ski area, Ski Safety Act, Skier Snowboarder | Leave a comment

Maine Ski Area Safety Act

TITLE 14. COURT PROCEDURE–CIVIL

PART 2. PROCEEDINGS BEFORE TRIAL

CHAPTER 205. LIMITATION OF ACTIONS

SUBCHAPTER 1. GENERAL PROVISIONS

GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY

14 M.R.S. § 752-B (2012)

§ 752-B. Ski areas

All civil actions for property damage, bodily injury or death against a ski area owner or operator or tramway owner or operator or its employees, as defined under Title 32, chapter 133, whether based on tort or breach of contract or otherwise, arising out of participation in skiing or hang gliding or the use of a tramway associated with skiing or hang gliding must be commenced within 2 years after the cause of action accrues.

TITLE 32. PROFESSIONS AND OCCUPATIONS

CHAPTER 133. BOARD OF ELEVATOR AND TRAMWAY SAFETY

GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY

§ 15201. Declaration of policy

It is the policy of the State to protect its citizens and visitors from unnecessary mechanical hazards in the operation of elevators and tramways and to ensure that reasonable design and construction are used, that accepted safety devices and sufficient personnel are provided and that periodic maintenance, inspections and adjustments considered essential for the safe operation of elevators and tramways are made. The responsibility for design, construction, maintenance and inspection rests with the firm, person, partnership, association, corporation or company that owns elevators or tramways.

32 M.R.S. § 15202 (2012)

§ 15202. Definitions.

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. APPROVED. “Approved” means as approved by the Board of Elevator and Tramway Safety.

2. BOARD. “Board” means the Board of Elevator and Tramway Safety.

2-A. CHIEF INSPECTOR. “Chief inspector” means an individual in the employ of the State whose duties include the examination and inspection of elevators and tramways and who has been designated as chief inspector by the Commissioner of Professional and Financial Regulation.

3. COMMISSIONER. “Commissioner” means the Commissioner of Professional and Financial Regulation.

4. DEPARTMENT. “Department” means the Department of Professional and Financial Regulation.

4-A. DEPUTY INSPECTOR. “Deputy inspector” means an individual in the employ of the State whose duties include the examination and inspection of elevators and tramways under the direction of the chief inspector.

4-B. DIRECT SUPERVISION. “Direct supervision” means that a helper is working in the presence of a licensed elevator or lift mechanic at all times.

4-C. DIRECTOR. “Director” means the Director of the Office of Licensing and Registration.

5. ELEVATOR. “Elevator” includes an escalator or a manlift and means a guided hoisting and lowering mechanism equipped with a car, platform or load-carrying unit, including doors, well, enclosures, means and appurtenances. “Elevator” does not include an inclined stairway chairlift, a conveyor, chain or bucket hoist or a tiering, piling or feeding device. For the purposes of this subsection, “inclined stairway chairlift” means a mechanized chair apparatus running on a track or rail along the side of a staircase.

5-A. ELEVATOR CONTRACTOR. “Elevator contractor” means any person, firm, partnership, association, corporation or company engaged in the installation, sale, service, maintenance or inspection of elevators in this State.

6. ESCALATOR. “Escalator” means a power-driven, inclined and continuous stairway used for raising or lowering passengers.

7. REPEALED. Laws 2001, c. 573, § B-3.

7-A. HELPER. “Helper” means a person who is not licensed under this chapter as an elevator mechanic or lift mechanic and who assists in the installation, service or maintenance of elevators located in this State while working under the direct supervision of a licensed elevator mechanic or licensed lift mechanic.

7-B. LICENSED PRIVATE ELEVATOR INSPECTOR. “Licensed private elevator inspector” or “licensed private elevator and lift inspector” means an individual who has been licensed by the board to inspect elevators pursuant to this chapter and who is not a state employee whose duty is to inspect elevators.

8. LICENSED PRIVATE TRAMWAY INSPECTOR. “Licensed private tramway inspector” means an individual who has been licensed by the Board of Elevator and Tramway Safety to inspect tramways pursuant to this chapter and who is not a state employee whose duty is to inspect tramways.

9. MANLIFT. “Manlift” means a device, consisting of a power-driven, endless belt or chains, provided with steps or platforms and handholds attached to it for the transportation of personnel from floor to floor.

10. OPERATOR. “Operator” means the person or persons who physically operate an elevator or tramway.

11. OWNER. “Owner” means a firm, person, partnership, association, corporation or state or political subdivision that owns an elevator or tramway.

12. REPEALED. Laws 2001, c. 573, § B-6.

13. PHYSICALLY HANDICAPPED PERSON. “Physically handicapped person” means a person who has a physiological disability, infirmity, malformation, disfigurement or condition that eliminates or severely limits the person’s ability to have access to the person’s environment by normal ambulatory function, necessitating the use of crutches, a wheelchair or other similar device for locomotion.

14. SKIER. “Skier” means any person who engages in any of the activities described in section 15217, subsection 1, paragraph B.

15. SKI AREA. “Ski area” means the ski slopes and trails, adjoining skiable terrain, areas designated by the ski area operator to be used for skiing as defined by section 15217, subsection 1, paragraph B and passenger tramways administered or operated as a single enterprise within this State.

16. SKI INDUSTRY. “Ski industry” means the activities of all ski area operators.

17. SKI AREA OPERATOR. “Ski area operator” means a person or organization having operational responsibility for a ski area, including an agency or a political subdivision of this State.

18. REPEALED. Laws 2001, c. 573, § B-8.

19. TRAMWAY. “Tramway” means a device used to transport passengers uphill on skis or in cars on tracks or suspended in the air by the use of steel cables, chains or belts or by ropes usually supported by trestles or towers with one or more spans. “Tramway” includes the following:

A. Reversible aerial tramways, which are that class of aerial passenger tramways and lifts by which passengers are transported in carriers and are not in contact with the ground or snow surface, and in which the carriers reciprocate between terminals. This class includes:

1) Single-reversible tramways, which are a type of reversible lift or aerial tramway having a single carrier, or single group of carriers, that moves back and forth between terminals on a single path of travel, sometimes called “to-and-fro” aerial tramways; and

2) Double-reversible tramways, which are a type of reversible lift or aerial tramway having 2 carriers, or 2 groups of carriers, that oscillate back and forth between terminals on 2 separate paths of travel, sometimes called “jig-back” aerial tramways;

B. Aerial lifts and skimobiles, which are that class of aerial passenger tramways and lifts by which passengers are transported in carriers and are not in contact with the ground or snow surface, and in which the carriers circulate around a closed system and are activated by a wire rope or chain. The carriers usually make U-turns in the terminals and move along parallel and opposing paths of travel. The carriers may be open or enclosed cabins, chairs, cars or platforms. The carriers may be fixed or detachable. This class includes:

1) Gondola lifts, which are a type of lift or aerial tramway by which passengers are transported in open or enclosed cabins. The passengers embark and disembark while the carriers are stationary or moving slowly under a controlled arrangement;

2) Chair lifts, which are a type of lift or aerial tramway by which passengers are transported in chairs, either open or partially enclosed; and

3) Skimobiles, which are a type of lift or aerial tramway by which passengers are transported in open or enclosed cars that ride on a rigid structural system and are propelled by a wire rope or chain;

C. Surface lifts, which are that class of conveyance by which passengers are propelled by means of a circulating overhead wire rope while remaining in contact with the ground or snow surface. Transportation is limited to one direction. Connection between the passengers and the wire rope is by means of a device attached to and circulating with the haul rope known as a “towing outfit.” This class includes:

1) T-bar lifts, which are a type of lift in which the device between the haul rope and passengers forms the shape of an inverted “T,” propelling passengers located on both sides of the stem of the “T”;

2) J-bar lifts, which are a type of lift in which the device between the haul rope and passenger is in the general form of a “J,” propelling a single passenger located on the one side of the stem of the “J”; and

3) Platter lifts, which are a type of lift in which the device between the haul rope and passenger is a single stem with a platter or disk, attached to the lower end of the stem, propelling the passenger astride the stem of the platter or disk;

D. Tows, which are that class of conveyance in which passengers grasp a circulating haul rope, which may be natural or synthetic fiber or metallic, or a handle or gripping device attached to the circulating haul rope, and are propelled by the circulating haul rope. The passengers remain in contact with the ground or snow surface. The upward-traveling haul rope remains adjacent to the uphill track at an elevation that permits the passengers to maintain their grasp on the haul rope, handle or gripping device throughout the portion of the tow length that is designed to be traveled; and

E. Similar equipment not specified in this subsection, but conforming to at least one of the general descriptions in this subsection.

20. TRAMWAY PASSENGER. “Tramway passenger” means a person being transported or conveyed by a tramway, waiting in the immediate vicinity for transportation or conveyance by a tramway, moving away from the disembarkation or unloading point of a tramway to clear the way for the following passengers or boarding, embarking upon or disembarking from a tramway.

§ 15203. Retroactive effect; exception

This chapter may not be construed to prevent the use or sale of elevators in this State that were being used or installed prior to January 1, 1950 and that have been made to conform to the rules of the board covering existing installations and must be inspected as provided for in this chapter.

This chapter does not apply to elevators or tramways on reservations of the Federal Government, to elevators used for agricultural purposes on farms or to elevators located or maintained in private residences, as long as they are exclusively for private use.

§ 15204. Appeals; variances

A person aggrieved by an order or act of the chief inspector or a deputy inspector under this chapter may, within 15 days after notice of the order or act, appeal from the order or act to the board, which shall hold a hearing pursuant to Title 5, chapter 375, subchapter IV. After the hearing, the board shall issue an appropriate order either approving or disapproving the order or act.

Any person who is or will be aggrieved by the application of any law, code or rule relating to the installation or alteration of elevators or tramways may file a petition for a variance, whether compliance with that provision is required at the time of filing or at the time that provision becomes effective. The filing fee for a petition for a variance must be set by the director under section 15225-A. The chief inspector may grant a variance if, owing to conditions especially affecting the particular building or installation involved, the enforcement of any law, code or rule relating to elevators or tramways would do manifest injustice or cause substantial hardship, financial or otherwise, to the petitioner or any occupant of the petitioner’s building or would be unreasonable under the circumstances or condition of the property, provided that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of that law, code or rule. In granting a variance under this section, the chief inspector may impose limitations both of time and of use, and a continuation of the use permitted may be conditioned upon compliance with rules made and amended from time to time. A copy of the decision must be sent to all interested parties.

§ 15205. Board of Elevator and Tramway Safety

The Board of Elevator and Tramway Safety, as established by Title 5, section 12004-A, subsection 14, consists of 9 members, of whom 7 are appointed by the Governor. Of the 7 members of the board appointed by the Governor, one must be an owner or lessee of an elevator in the State; one must be a manufacturer of elevators; one must be a manufacturer or installer of accessibility lifts; one must be a licensed elevator mechanic; one must be a ski area operator presently operating tramways in the State; one must be a qualified licensed professional engineer who is familiar with tramway design, inspection and operation; and one must be a public member as defined in Title 5, section 12004-A. The 8th member of the board must be a physically handicapped person appointed by the Director of the Bureau of Rehabilitation Services, subject to the approval of the Governor. The 9th member of the board must be a member of the Division of Fire Prevention appointed by the Commissioner of Public Safety. Appointments are for 3-year terms. Appointments of members must comply with Title 10, section 8009. A member may be removed by the Governor for cause.

1. DELETED. Laws 2007, c. 402, § NN-1.

2. MEETINGS; CHAIR; QUORUM. The board shall meet at least once a year to conduct its business and to elect a chair. Additional meetings must be held as necessary to conduct the business of the board and may be convened at the call of the chair or a majority of the board members. Five members of the board constitute a quorum.

3. DELETED. Laws 2007, c. 402, § NN-1.

§ 15205. Board of Elevator and Tramway Safety

1. DELETED. Laws 2007, c. 402, § NN-1.

3. DELETED. Laws 2007, c. 402, § NN-1.

§ 15206. Powers and duties of board

The board shall administer, coordinate and enforce this chapter and has the following powers and duties in addition to those otherwise set forth in this chapter.

1. RULES. The board shall, in accordance with Title 5, chapter 375, adopt rules to implement the purposes of this chapter, including rules for the safe and proper construction, installation, alteration, repair, use, operation and inspection of elevators and tramways in the State. The rules must include standards for the review and audit of inspections performed by licensed private elevator inspectors not employed by the State. The rules must conform as nearly as practicable to the established standards as approved by the American National Standards Institute or its successor or other organization approved by the board. Rules adopted by the board under this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

Board rules that are standards of the American National Standards Institute or its successor or other organization approved by the board must be obtained from the publisher.

2, 3. DELETED. Laws 2007, c. 402, § NN-2.

§ 15206-A. Denial or refusal to renew license; disciplinary action

The board may deny a license, refuse to renew a license or impose the disciplinary sanctions authorized by Title 10, section 8003, subsection 5-A for any of the reasons enumerated in Title 10, section 8003, subsection 5-A, paragraph A.

§ 15207. Repealed. Laws 1999, c. 687, § F-11

§ 15208. Examination of private elevator and lift inspectors; licenses and renewals

The board shall set standards necessary for the licensure and renewal of private elevator and lift inspectors. The board may adopt rules relating to the qualifications for licensure and renewal of private elevator and lift inspectors, including requirements for examination and continuing education. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A. The fee for applications, examinations, licenses and renewals must be established by the director pursuant to section 15225-A and Title 10, section 8003, subsection 2-A, paragraph D. Licenses are issued for a period of one year.

An elevator contractor or a person who is licensed as a private elevator and lift inspector who services an elevator or lift equipment may not inspect that elevator or lift equipment within 12 months from the date of servicing that elevator or lift equipment.

§ 15208-A. Registration of elevator contractors

Any person, firm, partnership, association, corporation or company engaged in the installation, sale, service, maintenance or inspection of elevators in this State shall register with the board annually. The registration must be submitted on a form provided by the board and must include the names and addresses of all licensed private inspectors, licensed mechanics and all helpers employed by the elevator contractor. An elevator contractor shall notify the board of any change in the information required under this section within 30 days of the change. The required fee for registration must be set by the director under section 15225-A.

§ 15209. Examination of private tramway inspectors; licenses

The board shall license an applicant as a private tramway inspector, who may perform the inspections required on tramways, if that applicant:

1. REGISTRATION. Is a professional engineer with a current valid registration in some state. If an applicant for a private tramway inspector’s license demonstrates to the board that the applicant possesses more than 6 years’ experience in the construction, design, inspection and operation of tramways, this registration requirement may be waived by the board;

2. EXPERIENCE. Has considerable experience in the construction, design or maintenance of tramways;

3. EXPERIENCE IN INSPECTING. Has 4 years’ experience inspecting tramways while working for an insurance company, a government agency or a company performing tramway or similar equipment inspections;

4. CAPABILITY AND APTITUDE. Has the physical capability and aptitude to perform the duties of a private tramway inspector in a safe and thorough manner; and

5. EXAMINATION. Has sufficient experience and knowledge to achieve a satisfactory rating in an examination designed to test the applicant’s knowledge of orders and principles of tramway safety. When an applicant for a private tramway inspector’s license demonstrates more than 6 years’ experience in the construction, design, inspection and operation of tramways, the provisions for examination must be waived.

A. The examination for a licensed private tramway inspector must be given by the chief inspector or by 2 or more examiners appointed by the chief inspector. The examination must be written, in whole or in part, and must be confined to questions the answers to which will aid in determining the fitness and competency of the applicant for the intended service and must be of uniform standard throughout the State.

B. Deleted. Laws 2001, c. 573, § B-15.

C. A private tramway inspector’s license is issued for a period of one year. The license fee must be set by the director under section 15225-A.

D. Applications for examination and license must be on forms furnished by the board. The examination fee for a private tramway inspector’s license must be set by the director under section 15225-A.

§ 15209-A. Private wire rope inspectors; licenses

The board shall license an applicant as a private wire rope inspector, who may perform the inspections required for each tramway equipped with wire rope, if that applicant has a total of 5 years’ experience in wire rope manufacture, installation, maintenance or inspection. A private wire rope inspector’s license is issued for a period of one year. The license fee must be set by the director under section 15225-A.

§ 15210. Revocation of private tramway or elevator inspector’s license

The board may revoke a private tramway, elevator or lift inspection license or remove inspection endorsements from an elevator or lift mechanic’s license for the following causes:

1. FAILURE TO SUBMIT TRUE REPORTS. For failure to submit true reports concerning the conditions of a tramway or elevator or for conduct determined by the board to be contrary to the best interests of tramway or elevator safety or the board;

2. PHYSICAL INFIRMITIES. For physical infirmities that develop to a point at which it appears that an inspector or mechanic is no longer able to perform the required duties in a thorough and safe manner; or

3. REPEALED. Laws 2007, c. 402, § NN-4.

§ 15211. Notice of accidents

1. REPORTING ACCIDENTS. Each elevator or tramway accident that is caused by equipment failure or results in significant injury to a person or results in substantial damage to equipment must be reported by the owner or lessee to the chief inspector in accordance with the board’s rules.

2. REVOCATION OF CERTIFICATE. When an elevator or tramway accident as described in subsection 1 occurs, the inspection certificate for the involved elevator or tramway may be summarily revoked in accordance with and subject to the standards and limitations of Title 5, section 10004, pending decision on any application with the District Court for a further suspension.

§ 15212. Examination of accidents

The chief inspector may examine or cause to be examined the cause, circumstances and origin of all elevator or tramway accidents within the State. Upon request, the chief inspector shall furnish to the proper district attorney the names of witnesses and all information obtained.

§ 15213. Elevator or lift mechanics; license; definition

A person may not service, repair, alter or install any elevator unless that person is licensed as an elevator or lift mechanic under this chapter. Elevator work in industrial plants and manufacturing plants may be performed by plant personnel who are not licensed under this chapter if the work is supervised by the plant engineer and performed in compliance with rules adopted by the board.

The word “elevator,” as used in this chapter, includes all electrical equipment, wiring, steelwork and piping in the elevator machine room, hoistway and pit pertaining to the operation and control of an elevator, except power feeders and required power equipment up to the control panel, heating, lighting, ventilation and drainage equipment.

CASE NOTES

1. Term “industrial plant” would be understood by an ordinary man to apply to any factory, business, or concern that is engaged primarily in the manufacture or assembly of goods or the processing of raw materials or both. Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).

2. By no stretch of the imagination could a bank building, a hotel, a theater, an office building, or a restaurant be considered an industrial plant; while one sometimes speaks of “the movie industry,” the “hotel industry,” or “the banking industry,” that is merely a loose use of language to convey that idea that the particular business is a sizeable one; in spite of that colloquialism, we do not speak of the buildings housing such businesses as “industrial plants.” Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).

3. Insurance company’s home office, which consisted of office facilities at which its employees worked, was not an “industrial plant” as that term is used in former Me. Rev. Stat. Ann. tit. 26, § 439 (now Me. Rev. Stat. Ann. tit. 32, § 15213). Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).

§ 15214. Issuance; qualifications

The board shall issue an elevator or lift mechanic’s license to any applicant who has at least 2 years’ experience in the service, repair, alteration or installation of elevators and lifts while employed by an elevator company, or has equivalent experience as defined by rules of the board, and meets the requirements established pursuant to section 15216.

A licensed elevator or lift mechanic may not have more than 2 helpers under direct supervision. These helpers need not be licensed.

A licensed elevator or lift mechanic shall comply with the provisions of this chapter and the rules adopted by the board. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A.

§ 15215. Repealed. Laws 2001, c. 573, § B-22

§ 15216. Examination of elevator or lift mechanics; applications; licenses; renewals

The board shall set standards necessary for the licensure and renewal of elevator or lift mechanics. The board may adopt rules relating to the qualifications for licensure and renewal of elevator or lift mechanics, including requirements for examination and continuing education. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A. The fee for applications, examinations, licenses and renewals must be established by the director pursuant to section 15225-A and Title 10, section 8003, subsection 2-A, paragraph D. Licenses are issued for a period of one year.

§§ 15216-A, 15216-B. Repealed. Laws 2001, c. 573, § B-24

§ 15216-C. License renewal

Any license issued under this chapter is renewable upon satisfaction of the applicable requirements for renewal and payment of the renewal fee as set by the director under section 15225-A. The expiration dates for licenses issued under this chapter may be established at such other times as the commissioner may designate.

A license may be renewed up to 90 days after the date of its expiration upon payment of a late fee in addition to the renewal fee as set under section 15225-A. Any person who submits an application for renewal more than 90 days after the license expiration date must pay an additional late fee as set under section 15225-A and is subject to all requirements governing new applicants under this chapter, except that the board may in its discretion waive the examination and other requirements. Notwithstanding any other provision of this chapter, the board shall waive the examination if a renewal application is made within 90 days after separation from the United States Armed Forces, under conditions other than dishonorable, by a person who failed to renew that person’s license because that person was on active duty in the Armed Forces; except that the waiver of examination may not be granted if the person served a period of more than 4 years in the Armed Forces, unless that person is required by some mandatory provision to serve a longer period and that person submits satisfactory evidence of this mandatory provision to the board.

§ 15217. Skiers’ and tramway passengers’ responsibilities

1. DEFINITIONS. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.

A. “Inherent risks of skiing” means those dangers or conditions that are an integral part of the sport of skiing, including, but not limited to: existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, slush and granular, corn, crust, cut-up and machine-made snow; surface or subsurface conditions, such as dirt, grass, bare spots, forest growth, rocks, stumps, trees and other natural objects and collisions with or falls resulting from such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects and their components, and collisions with or falls resulting from such man-made objects; variations in steepness or terrain, whether natural or as a result of slope design; snowmaking or snow-grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities.

B. “Skiing” means the use of a ski area for snowboarding or downhill, telemark or cross-country skiing; for sliding downhill or jumping on snow or ice on skis, a toboggan, sled, tube, snowboard, snowbike or any other device; or for similar uses of any of the facilities of the ski area, including, but not limited to, ski slopes, trails and adjoining terrain.

C. “Skier” means any person at a ski area who participates in any of the activities described in paragraph B.

D. “Competitor” means a skier actually engaged in competition or a special event or training or practicing for competition or a special event on any portion of the ski area made available by the ski area operator.

E. “Freestyle terrain” includes, but is not limited to, terrain parks and terrain park features such as jumps, rails, fun boxes and all other constructed or natural features, halfpipes, quarterpipes and freestyle-bump terrain.

2. ACCEPTANCE OF INHERENT RISKS. Because skiing as a recreational sport and the use of passenger tramways associated with skiing may be hazardous to skiers or passengers, regardless of all feasible safety measures that may be taken, each person who participates in the sport of skiing accepts, as a matter of law, the risks inherent in the sport and, to that extent, may not maintain an action against or recover from the ski area operator, or its agents, representatives or employees, for any losses, injuries, damages or death that result from the inherent risks of skiing.

3. WARNING NOTICE. A ski area operator shall post and maintain at the ski area where the lift tickets and ski school lessons are sold and at the loading point of each passenger tramway signs that contain the following warning notice:

WARNING:

Under Maine law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including, but not limited to: existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, corn, crust and slush and cut-up, granular and machine-made snow; surface or subsurface conditions, such as dirt, grass, bare spots, rocks, stumps, trees, forest growth or other natural objects and collisions with such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities.

4. DUTY TO SKI WITHIN LIMITS OF ABILITY. A skier has the sole responsibility for knowing the range of the skier’s own ability to negotiate any slope or ski trail, and it is the duty of the skier to ski within the limits of the skier’s own ability, to maintain control of the rate of speed and the course at all times while skiing, to heed all posted and oral warnings and instructions by the ski area operator and to refrain from acting in a manner that may cause or contribute to the injury of the skier or others.

4-A. COMPETITION AND FREESTYLE TERRAIN. A competitor accepts all inherent risks of skiing and all risks of course, venue and area conditions, including, but not limited to: weather and snow conditions; obstacles; course or feature location, construction and layout; freestyle terrain configuration and condition; collision with other competitors; and other courses, layouts and configurations of the area to be used.

5. RESPONSIBILITY FOR COLLISIONS. The responsibility for a collision between any skier while skiing and any person or object is solely that of the skier or skiers involved in the collision and not the responsibility of the ski area operator or its agents, representatives or employees.

6. LIABILITY. A ski area operator or its agents, representatives or employees are not liable for any loss, injury, damage or death resulting from the design of the ski area.

7. PROVISION OF NAME AND CURRENT ADDRESS REQUIRED. A skier involved in, causing or contributing to a collision or other accident at a ski area that results in a fall or injury may not leave the vicinity of the collision or accident before giving that skier’s name and current address to an employee or representative of the ski area operator or a member of the ski patrol, except for the purpose of securing aid for a person injured in the collision, in which case the person leaving the scene of the collision shall give that skier’s name and current address after securing such aid. A ski area operator, or its agents, representatives or employees, is not liable for a skier’s failure to provide that skier’s name and address or for leaving the vicinity of an accident or collision.

8. ACTIONS NOT PROHIBITED. This section does not prevent the maintenance of an action against a ski area operator for:

A. The negligent operation or maintenance of the ski area; or

B. The negligent design, construction, operation or maintenance of a passenger tramway.

CASE NOTES

1. In a negligence action arising from the collision of two skiers, plaintiff and defendant, the clear intent under Maine law to confine the responsibility for skiing accidents to those skiers involved, coupled with the lack of an agreement of any sort between plaintiff and defendant as to any allocation of responsibility for any such accident, defendant failed to prove by a preponderance of the evidence that he should prevail as a matter of law on his defense of assumption of risk. Bresnahan v. Bowen, 263 F. Supp. 2d 131, 2003 U.S. Dist. LEXIS 8623 (D. Me. 2003).

2. Proposed instruction by an injury claimant in a skiing accident case that a ski slope operator had a duty to protect the public from a recurring dangerous condition and to protect skiers from unseen hazards by adequately warning of or removing the hazard was not given by the trial court, which was an exercise of its proper discretion because the instruction might have been inconsistent with the intended immunity from liability for inherent risks provided by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), and the trial court’s instructions adequately charged the issues raised. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

3. Former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) did not support the application of a primary assumption of the risk defense, and the statute also lacked any language that added proof of the nonexistence of an inherent risk to the elements of a skier’s negligence claim. Former § 488 established a relatively simple and straightforward process, which, first, protected ski area operators from strict liability claims that otherwise might arise from allegations that ski area operation is an inherently dangerous activity, and second, stated that establishing liability required an injured skier to prove that the skier’s damages were caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

4. In a personal injury action that arose from a skiing accident, the trial court erred in its application of former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) where it required the injured skier to assume a double burden of proof: first, to prove the negative of inherent risk and, second, to prove the affirmative of negligence in order to demonstrate causation. The trial court’s instruction that the skier had the burden to disprove causation by the dangers inherent in the sport of skiing improperly shifted the burden of proof to the skier and constituted prejudicial error. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

5. Under former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), a defending ski slope operator could rely on an injury claimant’s burden to prove negligence and causation by a preponderance of the evidence and could assert that the injury claimant failed to meet that burden, or if a ski slope operator went beyond relying on the injury claimant’s burden of proof to assert affirmatively that the injury claimant’s damages were caused not by the ski slope operator’s negligence, but by some other causative factor, be that inherent risk, independent intervening event, comparative fault, or any other theory, the burden shifted to the ski slope operator to prove by a preponderance of the evidence that the other condition or factor caused the injury claimant’s damages in whole or in part. Whether to assume such a burden or rely on the injury claimant’s burden of proof on causation was a matter of the defending ski slope operator’s choice and trial strategy, but a ski slope operator who chose to affirmatively claim causation by inherent risk had to prove it by a preponderance of the evidence. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

6. Under Me. Rev. Stat. Ann. tit. 32, § 15217(1)(A) and (2), a ski area was immune from an injured skier’s tort suit arising out of a collision with a snow-making hydrant; thus, summary judgment for the ski area was proper. The skier’s contention that his claim was cognizable under § 15217(8) if the ski area had been negligent in the operation and maintenance of the snow-making hydrant was without merit because such a suit must not arise out of an inherent risk of skiing, of which a collision with snow-making equipment is such a risk. Green v. Sunday River Skiway Corp., 81 F. Supp. 2d 122, 1999 U.S. Dist. LEXIS 19890 (D. Me. 1999).

7. Former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) does not specify what risks are inherent in skiing, and in the absence of such statutory specification, whether a skier’s injury results from an inherent risk depends on the factual circumstances of each case. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

8. Whether a ski area is protected from liability by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) depends on whether the skier’s injuries resulted from an inherent risk; if the skier’s injuries result from a risk that is inherent in the sport, the ski area is not liable for those injuries because the ski area has no duty to protect or warn the skier of such dangers, but if the skier’s injuries are not caused by an inherent risk, the trier of fact must determine whether the injuries are actually caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

9. Trial court did not err in granting the ski area operator’s motion for summary judgment because no negligence was demonstrated where Me. Rev. Stat. Ann. tit. 32, § 15217 did not impose any duty on ski area operators to instruct skiers or snow tubers on safety measures; the only affirmative duty placed on ski area operators was the posting of a warning pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217(3), a duty with which the ski area operator complied. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).

10. Proposed instruction by an injury claimant in a skiing accident case that a ski slope operator had a duty to protect the public from a recurring dangerous condition and to protect skiers from unseen hazards by adequately warning of or removing the hazard was not given by the trial court, which was an exercise of its proper discretion because the instruction might have been inconsistent with the intended immunity from liability for inherent risks provided by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), and the trial court’s instructions adequately charged the issues raised. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

11. Whether a ski area is protected from liability by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) depends on whether the skier’s injuries resulted from an inherent risk; if the skier’s injuries result from a risk that is inherent in the sport, the ski area is not liable for those injuries because the ski area has no duty to protect or warn the skier of such dangers, but if the skier’s injuries are not caused by an inherent risk, the trier of fact must determine whether the injuries are actually caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

12. In a personal injury action that arose from a skiing accident, the trial court erred in its application of former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) where it required the injured skier to assume a double burden of proof: first, to prove the negative of inherent risk and, second, to prove the affirmative of negligence in order to demonstrate causation. The trial court’s instruction that the skier had the burden to disprove causation by the dangers inherent in the sport of skiing improperly shifted the burden of proof to the skier and constituted prejudicial error. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

13. Under former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), a defending ski slope operator could rely on an injury claimant’s burden to prove negligence and causation by a preponderance of the evidence and could assert that the injury claimant failed to meet that burden, or if a ski slope operator went beyond relying on the injury claimant’s burden of proof to assert affirmatively that the injury claimant’s damages were caused not by the ski slope operator’s negligence, but by some other causative factor, be that inherent risk, independent intervening event, comparative fault, or any other theory, the burden shifted to the ski slope operator to prove by a preponderance of the evidence that the other condition or factor caused the injury claimant’s damages in whole or in part. Whether to assume such a burden or rely on the injury claimant’s burden of proof on causation was a matter of the defending ski slope operator’s choice and trial strategy, but a ski slope operator who chose to affirmatively claim causation by inherent risk had to prove it by a preponderance of the evidence. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

14. Trial court did not err in granting the ski area operator’s motion for summary judgment because the injured patron was barred from recovery pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217 where the patron’s injury resulted from a collision with a hillock, and collisions with or falls resulting from natural and manmade objects were included within the inherent risks of skiing. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).

15. Trial court did not err in granting the ski area operator’s motion for summary judgment because no negligence was demonstrated where Me. Rev. Stat. Ann. tit. 32, § 15217 did not impose any duty on ski area operators to instruct skiers or snow tubers on safety measures; the only affirmative duty placed on ski area operators was the posting of a warning pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217(3), a duty with which the ski area operator complied. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).

§ 15218. Duties of skiers and tramway passengers; acts prohibited

A person engaged in skiing or riding on a tramway may not:

1. EMBARK OR DISEMBARK FROM TRAMWAY EXCEPT AS DESIGNATED. Embark or disembark from any tramway, except at a designated area;

2. THROW OR EXPEL OBJECTS FROM TRAMWAY. While riding on any tramway or similar device, throw or expel any object or do any act or thing that interferes with the running of that tramway;

3. ENGAGE IN HARMFUL CONDUCT. While riding on any tramway, willfully engage in any type of conduct that will contribute to or cause injury to any person, or to the tramway, or willfully place any object in the uphill ski track that will cause injury to any person or cause damage to or derailment of the tramway;

4. CLOSED TRAILS. Ski or otherwise use a slope or trail that has been designated “closed” by the operator without written permission of the operator or the operator’s designee;

5. REMOVAL OR DESTRUCTION OF SIGNS. Remove, alter, deface or destroy any sign or notice placed in the ski area or on the trail by the operator; or

6. OUT-OF-BOUNDS AREAS. Ski or otherwise use any portion of the ski area that is not a part of a regular network of trails or areas open to the public, including wooded areas between trails, undeveloped areas and all other portions not open to the public, if the operator has properly posted these areas as being closed to public access.

§ 15219. Hang gliding

Hang gliding is also recognized as a hazardous sport. Therefore, a person who is hang gliding is deemed to have assumed the risk and legal responsibility for any injury to the hang glider’s person or property in the same manner and to the same extent as skiers under this chapter.

§ 15220. Penalties

1. VERBAL WARNING; FORFEITURE OF LIFT TICKET. Any owner, manager or employee of any ski area, who finds a person in violation of section 15218, may first issue a verbal warning to that individual or suspend the individual’s lift use privileges. Any person who fails to heed the warning issued by the ski area owner, manager or employee shall forfeit the ski lift ticket and ski lift use privileges and must be refused issuance of another lift ticket and is liable for any damages to the tramway and its incidental equipment that have been caused by the individual’s misconduct.

2. COST OF RESCUE OPERATION. When it is necessary to commence a rescue operation as a result of a violation of section 15218, subsection 6, any person who has committed the violation is liable for the cost of that rescue operation.

§ 15221. Inspection of elevators and tramways

1. FEES; INSPECTION CERTIFICATE. Each elevator or tramway proposed to be used within this State must be thoroughly inspected by either the chief inspector, a deputy inspector or a licensed private elevator or tramway inspector and, if found to conform to the rules of the board, the board shall issue to the owner an inspection certificate. Fees for inspection and certification of elevators and tramways must be set by the director under section 15225-A and must be paid by the owner of the elevator or tramway. The certificate must specify the maximum load to which the elevator or tramway may be subjected, the date of its issuance and the date of its expiration. The elevator certificate must be posted in the elevator and the tramway certificate at a conspicuous place in the machine area.

2. SCHEDULED INSPECTIONS. The owner of an elevator shall have the elevator inspected annually by a licensed private elevator inspector, the chief inspector or a deputy inspector. The owner of a tramway shall have the tramway inspected by a licensed private tramway inspector, the chief inspector or a deputy inspector twice each year. One tramway inspection must be made when weather conditions permit a complete inspection of all stationary and moving parts. The 2nd tramway inspection must be made while the tramway is in operation.

3. TEMPORARY SUSPENSION OF INSPECTION CERTIFICATE; CONDEMNATION CARD. When, in the inspector’s opinion, the elevator or tramway can not continue to be operated without menace to the public safety, the chief inspector or deputy inspector may temporarily suspend an inspection certificate in accordance with Title 5, section 10004 and post or direct the posting of a red card of condemnation at every entrance to the elevator or tramway. The condemnation card is a warning to the public and must be of such type and dimensions as the board determines. The suspension continues, pending decision on any application with the District Court for a further suspension. The condemnation card may be removed only by the inspector posting it or by the chief inspector.

4. SPECIAL CERTIFICATE; SPECIAL CONDITIONS. When, upon inspection, an elevator or tramway is found by the inspector to be in reasonably safe condition but not in full compliance with the rules of the board, the inspector shall certify to the chief inspector the inspector’s findings and the chief inspector may issue a special certificate, to be posted as required in this section. This certificate must set forth any special conditions under which the elevator or tramway may be operated.

5. INSPECTION REPORTS. Licensed private tramway and elevator inspectors shall submit inspection reports to the owner on a form provided by the board within 15 working days from the date of the inspection.

6. FOLLOW-UP INSPECTIONS. All follow-up inspections necessary to enforce compliance must be performed by either the chief inspector or a deputy inspector. A fee set by the director under section 15225-A must be charged for those follow-up inspections.

7. CERTIFICATE NOT TRANSFERABLE. An inspection certificate may not be transferred to any other person, firm, corporation or association. If ownership of an elevator or tramway is transferred, the new owner must apply for a new inspection certificate as required by section 15229, subsection 7.

§ 15222. Condemned elevators and tramways not to be operated

An elevator or tramway that has been condemned under section 15221 may not be operated in this State. Any person who owns or operates or causes to be operated for other than repair or corrective purposes an elevator or tramway in violation of this section commits a Class E crime and must be punished by a fine of not more than $ 500 or by imprisonment for not more than 6 months, or by both.

§ 15223. Criminal operation of elevator or tramway

1. PROHIBITION. An owner of an elevator or tramway is guilty of criminal operation of an elevator or tramway if that owner operates that elevator or tramway without a current and valid inspection certificate.

2. STRICT LIABILITY. Criminal operation of an elevator or tramway is a strict liability crime as defined in Title 17-A, section 34, subsection 4-A.

3. SPECIFIC NUMBER OF DAYS OF CRIMINAL OPERATION. Each day of criminal operation does not constitute a separate crime.

4. CLASS OF CRIME; ENHANCED FINE. Criminal operation of an elevator or tramway is a Class E crime. However, notwithstanding Title 17-A, section 1301, subsection 1-A, paragraph E or Title 17-A, section 1301, subsection 3, paragraph E, the court may impose an enhanced fine. The fine amount above that authorized under Title 17-A, section 1301 is based solely on the number of days of criminal operation pleaded and proved by the State. For each day of criminal operation pleaded and proved, the court may increase the fine amount by up to $ 100 for each of those days.

5. IMPOSITION OF SENTENCE WITHOUT ENHANCED FINE. Nothing in subsection 3 or 4 may be construed to restrict a court, in imposing any authorized sentencing alternative, including a fine in an amount authorized under Title 17-A, section 1301, subsection 1-A, paragraph E or Title 17-A, section 1301, subsection 3, paragraph E, from considering the number of days of illegal operation, along with any other relevant sentencing factor, which need not be pleaded or proved by the State.

§ 15224. Installation of new elevators and tramways; fees

Detailed plans or specifications of each new or altered elevator or tramway must be submitted to and approved by the chief inspector before the construction may be started. Fees for examination of the plans or specifications must be set by the director under section 15225-A.

§ 15225. Repealed. Laws 2001, c. 573, § B-29

§ 15225-A. Fees

The Director of the Office of Licensing and Registration within the Department of Professional and Financial Regulation may establish by rule fees for purposes authorized under this chapter in amounts that are reasonable and necessary for their respective purposes, except that the fee for any one purpose other than permit and inspection fees may not exceed $ 500. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

§ 15226. Reports by inspectors

A deputy inspector or licensed private inspector shall make a full report to the chief inspector, giving all data required by the rules adopted by the board and shall report to the chief inspector and to the owner all defects found and all noncompliances with the rules. When any serious infraction of the rules is found by a deputy inspector or licensed private inspector and that infraction is, in the opinion of the inspector, dangerous to life, limb or property, the inspector shall report that infraction immediately to the chief inspector.

§ 15227. Powers of chief inspector

The board is authorized to investigate all elevator and tramway accidents that result in injury to a person or in damage to the installation.

The chief inspector is authorized:

1. ENFORCE LAWS AND RULES. To enforce the laws of the State governing the use of elevators and tramways and to enforce adopted rules of the board;

2. FREE ACCESS TO PREMISES OR LOCATION. To provide free access for deputy inspectors, including the chief inspector, at all reasonable times to any premises in the State where an elevator or tramway is installed or is under construction for the purpose of ascertaining whether that elevator or tramway is installed, operated, repaired or constructed in accordance with this chapter;

3. SUPERVISE INSPECTORS. To allocate and supervise the work of deputy inspectors;

4. CERTIFICATES. To issue and temporarily suspend certificates allowing elevators and tramways to be operated pursuant to Title 5, chapter 375;

5. EXAMINATIONS. To hold examinations and establish the fitness of applicants to become licensed private elevator or tramway inspectors or elevator mechanics, and to issue certificates or licenses to those persons who have successfully passed required examinations and been approved by the board as licensed private elevator or tramway inspectors or elevator mechanics; and

6. TAKE UNINSPECTED OR UNREPAIRED ELEVATORS AND TRAMWAYS OUT OF SERVICE. To take an elevator or tramway out of service in accordance with Title 5, section 10004 if an inspection report has not been submitted to the board within 60 days of the expiration of the most recent certificate or if the owner has failed to make repairs as required by the board. This power is in addition to the chief inspector’s powers under section 15221, subsection 3.

§ 15228. Elevator size

1. REQUIREMENTS. Notwithstanding section 15206, whenever a passenger elevator is installed in a building being newly constructed or in a new addition that extends beyond the exterior walls of an existing building, the passenger elevator must reach all levels within the building and be of sufficient size to allow the transport of a person on an ambulance stretcher in the fully supine position, without having to raise, lower or bend the stretcher in any way. This requirement applies to all plans approved by the board after January 1, 2002. The board shall adopt rules necessary to carry out the provisions of this section. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A.

2. APPLICABILITY. This section applies only to multi-story buildings that house private entities or nonprofit organizations that serve the public or are places of public accommodation. Notwithstanding Title 5, section 4553, subsection 8, places of public accommodation include restaurants, cafes, hotels, inns, banks, theaters, motion picture houses, bars, taverns, night clubs, country clubs, convention centers, retail stores, shopping centers, hospitals, private schools, day care centers, senior citizen centers, doctor offices, professional offices, manufacturing facilities, apartment buildings, condominiums, state facilities or any private establishment that in fact caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from, the general public. This section does not apply to any building owned by a local unit of government.

§ 15229. Duties of owners of elevators or tramways

1. OWNER RESPONSIBILITY. The responsibility for design, construction, maintenance and inspection of an elevator or tramway rests with the person, firm, partnership, association, corporation or company that owns the elevator or tramway.

2. OBTAIN INSPECTION CERTIFICATE. The owner of an elevator or tramway shall submit an annual application for an annual inspection certificate together with the inspection report within 30 business days of the inspection and prior to the expiration of the current certificate. The application must be on a form provided by the board and must be accompanied by the required fee set by the director under section 15225-A. A late fee set by the director under section 15225-A may be assessed for failure to submit the application and inspection report in a timely manner.

3. FAILURE TO QUALIFY FOR INSPECTION CERTIFICATE. The owner of an elevator or tramway that does not qualify for an inspection certificate shall take the elevator or tramway out of operation until the required repairs have been made and a new inspection certificate has been issued.

4. NOTIFY BOARD WHEN REQUIRED REPAIRS MADE. The owner of an elevator or tramway shall notify the board when required repairs have been made and provide the board with satisfactory evidence of completion.

5. ELEVATOR OR TRAMWAY DECLARED IDLE OR PLACED OUT OF SERVICE. The owner of an elevator or tramway that has been declare d idle or placed out of service in accordance with rules adopted by the board shall notify the board within 30 days of declaring the elevator or tramway idle.

6. REMOVAL. The owner of an elevator or tramway shall notify the board within 30 days of the removal of the elevator or tramway.

7. CHANGE OF OWNERSHIP. The owner of record of an elevator or tramway shall notify the board of a transfer of ownership of an elevator within 30 days of such transfer. The new owner shall apply, on a form provided by the board, for a new inspection certificate that will be issued without the need for an additional inspection for the remainder of the term of the current certificate. A fee for issuance of a new inspection certificate may be set by the director under section 15225-A.

8. FAILURE TO COMPLY. In addition to the remedies available under this chapter, an owner who fails to comply with the provisions of this chapter or rules adopted by the board is subject to the provisions of Title 10, section 8003, subsection 5 whether or not the elevator or tramway has a current inspection certificate, except that, notwithstanding Title 10, section 8003, subsection 5, paragraph A-1, subparagraph 3, a civil penalty of up to $ 3,000 may be imposed for each violation.

Discover Maine in a whole new way!

Posted: April 6, 2013 | Author: Recreation Law | Filed under: Cycling, Maine | Tags: Bicycling, Bike, BikeMaine, Cycling, MAINE | Leave a comment

Discover Maine by Bike

The Bicycle Coalition of Maine has launched a week-long bicycle ride, BikeMaine, that will run from September 7-14, 2013.

The 400 mile loop ride travels on mostly rural, low traffic roads offering magnificent scenery and allows riders to explore six host communities, each providing a unique Maine experience: college town, mill town, arts community, historic maritime village, summer colony, and traditional Maine camp.

Riders will enjoy meals featuring locally sourced, in season food, tours and nightly entertainment. The $875 registration fee includes a fully supported route, 18 meals, ample beverages and snacks during each day’s ride, baggage transport, camping facilities, hot showers, and other rider amenities.

Visit BikeMaine for more detailed information. This year’s ride is limited to 350 riders, so sign up today to ensure your place in the inaugural BikeMaine ride.

What do you think? Leave a comment.

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

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, BikeMaine, Discover Maine, Maine, Bicycle Coalition of Maine,

WordPress Tags: Discover,Maine,Bike,Bicycle,Coalition,BikeMaine,September,roads,scenery,riders,college,arts,village,colony,food,registration,beverages,baggage,facilities,rider,amenities,Visit,information,Leave,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer

In this mountain biking case, fighting each claim pays off.

Posted: September 10, 2012 | Author: Recreation Law | Filed under: Cycling, Tennessee | Tags: Boy Scout, Boy Scouts, BSA, Gross negligence, MAINE, Mountain bike, Mountain Bike Trail, Mountain biking, Punitive damages, Scouting, Summer Camp, USA Cycling | 1 Comment

N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452

Gross negligence claim is thrown out because the complaint failed to plead enough facts.

This case is about a minor, who was attending a Boy Scout summer camp. While at camp, he went mountain biking on a camp bicycle. While riding the mountain bike the plaintiff alleges the brakes were not working and the plaintiff road off the trail and hit a tree.

The plaintiff’s complaint alleged the following:

(1) it failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners.

The plaintiff also requested gross negligence as part of his damages. His complaint stated, “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff….”

Generally, gross negligence is defined as greater than normal negligence. (Only a lawyer could get away with that definition….) A better definition might be:

Another definition is the failure to exercise that care that even a careless person would exercise. Gross Negligence falls just short of a reckless disregard of the consequences of the actor’s acts. Aggravated Negligence is gross negligence. The actual differences between ordinary negligence and gross negligence are difficult to define, and ordinarily done by the jury.[1]

For more on Gross Negligence see Good Release stops lawsuit against Michigan’s bicycle renter based on marginal acts of bicycle renter or New Jersey upholds release for injury in faulty bike at fitness club.

The defendant camp filed a motion for summary judgment to eliminate the claim for gross negligence. The reason is based upon the complaint the allegation of gross negligence is the only real basis for the demand for punitive damages. Eliminate the claim for gross negligence and you have taken most of the fight out of the gross negligence claim and a lot of the ability of the plaintiff to threaten from the case.

A claim of gross negligence is not enough under Tennessee’s law to allow a jury to award punitive damages. Punitive damages can only be awarded if the jury finds the defendant acted “(1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.

Intentionally, fraudulently and maliciously are easily understood. In Tennessee, a person acts recklessly when:

A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.

Because the complaint did not allege how or why the defendant was aware of the problems with the bicycle or the trail, he could not sustain a claim for gross negligence and consequently, claim punitive damages.

The court granted the defendants claim.

So?

Not every lawsuit provides the opportunity to start and win a fight based on the pleadings. However, every pleading, complaint, should be examined to make sure, under the law of that state, the pleadings make a legal case.

Even if a flaw is found, you need to examine the cost of the fight and the benefit. Sometimes a flaw can be allowed to survive to be attacked later. However, litigation is a fight and every opportunity to weaken the opposing side should be taken.

For additional cases looking at the legal issues of cycling see:

Connecticut court works hard to void a release for a cycling event

Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

How to fight a Bicycle Product Liability case in New York. One step at a time

Maine upholds release in a mountain bike race and awards defendants costs and attorney fees

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling

PA court upholds release in bicycle race

Release for training ride at Triathlon training camp stops lawsuit

Release stops most of the litigation against a ski area and USA Cycling in a Mountain Bike race but leaves other members out in the cold or should I say stuck in the courtroom

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Boy Scouts, Boy Scouts of America, Cycling, Mountain Biking, Tennessee, Minor,

[1] Outdoor Recreation Risk Management, Insurance and Law, Chapter 7

WordPress Tags: mountain,Sequoyah,Council,Scouts,America,Dist,LEXIS,Gross,negligence,complaint,Scout,bicycle,bike,plaintiff,road,tree,perils,defendant,inspection,employees,skill,injuries,lawyer,definition,Another,failure,person,consequences,actor,differences,jury,Release,lawsuit,Michigan,renter,Jersey,injury,judgment,allegation,basis,Eliminate,Tennessee,Punitive,deviation,defendants,flaw,cost,Sometimes,litigation,Connecticut,event,Product,York,Maine,attorney,Decision,doctrine,Primary,Assumption,Risk,Triathlon,area,Summary,manufacturer,retailer,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Minor,Insurance,Chapter,pleadings

Maine upholds release in a mountain bike race and awards defendants costs and attorney fees

Posted: July 2, 2012 | Author: Recreation Law | Filed under: Cycling, Maine, Racing | Tags: MAINE, ME, Mountain Bike Racing, Mountain biking, Negligence, Racing, Release, Sugarloaf Mountain | Leave a comment

Lloyd v. Sugarloaf Mountain Corp. et al., 2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

The plaintiff argued the release was not valid because the injury occurred during a practice run.

In this case, the plaintiff was injured during a practice run for a mountain-bike race. The plaintiff sued the ski area, Sugarloaf Mountain and the organization that sponsored the race National Off-Road Bicycle Association (NORBA). NORBA is now part of USA Cycling. The name of the race was the Widowmaker Challenge mountain bicycle race. The name was mentioned several times in the opinion.

Before racing the plaintiff had to sign a release to join NORBAwhere he signed a release. He also signed a release to enter the race. The lower court granted the defendants motion for summary judgment and based on an indemnification clause in one of the releases granted the defendants judgment against the plaintiff for $18,420.50.

The plaintiff argued the first release was superseded by the second release, and the second release was ambiguous and vague. He also argued that because the injury occurred during a practice run, the releases did not apply. All parties agreed that the racers had to participate in the practice session.

The NORBA release was a well-written release and excluded claim for liability for negligence of any person or organization. The race release simply said discharge the defendant for all claims and liability and promise not to sue. However, the race release contained indemnification language that allowed the defendants to counterclaim for the costs and attorney fees for defending the lawsuit.

The plaintiff sued for negligence and willful and wanton negligence. The race release gave the plaintiff the idea to sue for willful and wanton negligence I suspect because in the indemnification clause language, it excluded claims for willful and wanton negligence.

However, Maine does not support claims for willful and wanton negligence.

Summary

The court first looked at the releases to see if one release superseded the prior release. To supersede another agreement one agreement must be inconsistent with the other agreement. The court found this was not the case. Although they were similar and overlapped, and one was more specific than the other was not enough to make the releases inconsistent. Nor was there anything in either agreement to indicate that one release was to supersede the other release.

The next issue the court reviewed was whether the releases were valid under Maine law. Maine like most states holds that a release “…must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.”” Releases are strictly construed against the party seeking immunity from liability.

The court found the membership release, the NORBA release that referenced negligence in the release “…sufficiently spells out the parties’ intent to extinguish the negligence liability of NORBA and Sugarloaf”

The court then examined the claim that the practice run where the plaintiff was injured was not sufficiently connected to the race to be covered by the release. However, the court found that since the practice session was mandatory the release covered it. The court also found the language in the release covered the practice run.

The final argument made by the plaintiff was the release was against public policy in Maine. The court stated it would be “hard-pressed” to conclude that an event titled Widowmaker Challenge is a public service or that there was a compulsion on the part of the participants to sign that would make the release void as against public policy.

Finally, the court looked at the indemnification clause in the second or race release. The court found the language was unambiguous and that the plaintiff was contractually bound to indemnify the defendants.

There was a dissent in the case. The dissent argued the release should be upheld but that the indemnification clause in the release was unclear and ambiguous. Under Maine’s law to be clear the language of the release must be unequivocal in its intent:

…on the part of the parties to provide indemnity for loss caused by negligence of the party to be indemnified that liability for such damages will be fastened on the indemnitor, and words of general import will not be read as expressing such an intent and establishing by inference such liability.

The dissent also found the indemnification clause to be ambiguous. A contractual provision is “ambiguous if it is reasonably possible to give that provision at least two different meanings.”

The dissent found two different meanings to the clause in the defendant’s motions. NORBA’ s briefs argued the clause one way and Sugarloaf’s brief interpreted the clause a different way.

So Now What?

This case is pretty simple and quite clear.

1. Your release needs to include the word negligence under Maine law.

2. Your release must not be written to conflict with any other release that may be used in the same case to prevent litigation. If you are aware of two or more releases being signed by the parties for the same event, make sure the releases do not cancel each other out.

3. Make sure your release covers all aspects of the activity. You can never tell when an accident will occur, where a person will be injured or whether or not someone may sue because of those issues.

4. Although upheld by the majority a dissent always should be read to make sure your release or language incorporates any of those issues in the future. Dissents with a change of the court can become a majority opinion in the future, even with the legal precedent of stare decisis.

5. If you name your event with a scary name, there is a better chance that participants and the courts will understand it was a risk event.

6. Make sure your release is clearly written and written so that the person signing the release cannot argue they did not understand the release.

Sugarloaf needs to thank NORBA for writing a release that protected both of them. NORBA should thank Sugarloaf for at least writing an indemnification clause that worked.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, #NORBA, Mountain Bike, Mountain Biking, Mountain Bike Race, #Sugarloaf, #Maine, #ME,

WordPress Tags: Maine,mountain,bike,defendants,attorney,Lloyd,Sugarloaf,Corp,LEXIS,plaintiff,injury,area,National,Road,Bicycle,Association,NORBA,Widowmaker,Challenge,opinion,judgment,clause,racers,session,negligence,person,defendant,lawsuit,Summary,agreement,Although,intention,Releases,membership,argument,policy,event,compulsion,participants,Under,inference,provision,meanings,litigation,Make,aspects,accident,Dissents,precedent,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Risk,Management,Human,Rock,Ropes,Course,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,laws,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Race,indemnification,whether

L.L. Bean and Point 65 to creat kayak with 100 L.L. Bean Employees

Posted: May 31, 2012 | Author: Recreation Law | Filed under: Paddlesports, Sea Kayaking | Tags: Freeport, Guinness World Records, Kayak, Kayaks, L.L. Bean, MAINE, Paddlesports, Point 65, Sea kayak, Snap Kayaks | 1 Comment

L.L.Beanto attempt getting 100 employees into world’s longest modular kayak in celebration of its 100th Anniversary during Annual PaddleSports Weekend, June 1-3

The event will also feature free boat testing, demonstrations, clinics, kid’s activities, guided kayak tours, free oceanside cookout, live music and great deals.

FREEPORT, ME.—As part of its ongoing 100th Anniversary celebration, L.L.Bean will attempt to get 100 employees into a uniquely built kayak that is nearly 500’ long during their 31st Annual PaddleSports Weekend. This could be a world-record for the longest modular kayak ever and if successful, L.L.Bean will submit it to Guinness World Records for consideration. The unique kayak being used for the attempt, the Point 65N Modular Kayak, is able to be joined together in sections, thus creating a kayak that will be approximately 500’ long–possibly the longest ever. The attempt will be made on Saturday, June 2nd at 11 a.m. at the L.L.Bean Paddling Center on Lower Flying Point in Freeport, Maine. The public is welcome to attend this event as well as all of the other family-fun activities at the Paddling Center over the weekend. Free shuttles will be available to take people to and from the Flagship Store all weekend long.

“What a perfect, fun way to infuse the essence of our 100th Anniversary, as well as our outdoor spirit into this event,” said Scot Balentine, L.L.Bean’s senior developer for outdoor equipment. “The 100 employees that are taking part are very excited to be sharing in this fun and historic moment. To set a new world record would simply put an exclamation point on what will no doubt be an already exhilarating experience.”

Other event highlights for the PaddleSports Weekend include a variety of waterfront activities at the L.L.Bean Paddling Center just minutes from the store on Saturday and Sunday, such as a free oceanside cookout, free boat testing with hundreds of kayaks, stand-up paddleboards and canoes. Plus folks will have the chance to speak with industry vendors and experts. In addition, there will be live music with the Eric Bettencourt on Saturday and Putnam Smith on Sunday, craft making for kids and more. Free shuttles will be running all weekend long to and from the Flagship Store and the Paddling Center.

The L.L.Bean Outdoor Discovery Schools will also offer 90-minute kayak tours of beautiful Casco Bay for only $35 and an Intro to Stand-Up Paddleboarding course for only $29. The L.L.Bean Outdoor Discovery Schools will also be offering their Kayaking Discovery Course all weekend for only $20. Space is limited, so please call 888-552-3261 to reserve your spot.

At the L.L.Bean Campus of Stores in downtown Freeport, there are even more terrific events such as demonstrations and clinics on everything from how to get into stand-up paddleboarding, selecting the right paddle, paddling techniques, as well as non-profit guests, vendors and much more. Special promotions start Friday and include 20% off the purchase of kayaks, stand-up paddleboards, canoes and Thule® car racks. L.L.Bean will also be offering a free extension middle section from the world record attempt (up to a $500 value) with the purchase of a Point 65N Modular Kayak while supplies last, For more information, please visit www.llbean.com/freeport, or call 877-755-2326.

About L.L.Bean, Inc.

L.L.Bean, Inc. is a leading multi-channel merchant of quality outdoor gear and apparel. Celebrating its 100th Anniversary this year, the company was founded in 1912 by Leon Leonwood Bean and began as a one-room operation selling a single product, the Maine Hunting Shoe. While the business has grown substantially, the company remains committed to the same honest principles upon which it was built–a focus on the customer, continuous product improvement and innovation, respect for people, preservation of the natural environment and a 100% satisfaction guarantee. The 220,000 sq. ft. Flagship campus of stores in Freeport, Maine is open 24 hours a day, 365 days a year and welcomes more than three million visitors each year. L.L.Bean can be found worldwide on www.llbean.com, L.L.Bean Facebook, L.L.Bean Twitter and L.L.Bean YouTube.

Maine follows the majority and does not allow a parent to sign away a minor’s right to sue.

Posted: August 15, 2011 | Author: Recreation Law | Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Adventure travel, American Ski Company, Children, JimMoss, MAINE, Minor, Outdoor recreation, Parental Responsibility, Parental Rights, Rock climbing, Ski Resort, United States | Leave a comment

Rice, Et Als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90

However the court held out the possibility that a

properly written indemnification clause may

be upheld.

In Rice et all the plaintiff was a nine year old boy skiing at Sunday River Ski Area. Sunday River Skiway Corporation was owned by the now defunct

English: The beautiful Sunday River Ski Resort...

Image via Wikipedia

American Ski Company at the time. The mother of the plaintiff signed the plaintiff up for an all-day ski lesson. While doing so she signed a “Acknowledgement &; Acceptance of Risks & Liability Release” (Ski Enrollment Form)” The form stated the risks and released the defendant of liability for negligence. The form also contained an indemnification provisions which stated the parents would indemnify the ski area for any losses of the minor.

During the afternoon instruction the plaintiff fell. The class stopped and waited for him to catch up. The plaintiff lost control and skied into the tree suffering injuries. The plaintiff sued for negligent supervision. The defendants claimed the defenses of the Maine Skiers’ and Tramway Passengers’ Responsibilities Act, 32 M.R.S.A. § 15217 (Supp. 1999) and the release signed by the mother.

The court quickly found the Maine Ski Act did not stop the lawsuit. The Maine Ski Act allows a suit for “does not prevent the maintenance of an action against the ski area operator for the negligent operation of the ski area”. The court found that negligent supervision “clearly” falls within the Maine Ski Acts “negligent operation” exclusion.

The court then looked at the release and struck the normal cords discussing releases. The court looks with disfavor on releases, releases must be strictly construed, and they must spell out with greatest particularity the intention of the parties.

After reviewing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (Ohio 1998), the court held that Zivich only applied to non-profit organizations and in one-half of a sentence dismissed the issue that a parent is constitutionally allowed to sign a release for a child. The court then looked at prior law in Maine and held that a parent could not sign away a minor’s right to sue in Maine.

The court then looked at the mother’s claim for lost wages. The mother’s claim is derivative of the son’s claims. That means that if the son’s claim does not prevail then the mother’s claim does not stand. Because there were no defenses to the son’s claim then the mother’s claim could go forward.

Whether a parent can recover for their own losses when a child is negligently injured varies from state to state.
The final defense reviewed by the court was the indemnification language in the release. Maine, like all other states disfavors indemnification clauses against a defendant’s own negligence. The court found that this clause was not sufficient to state a defense under Maine law. However the court did not deny indemnifications claims absolutely. A release or indemnification agreement written with the guidelines of the court may be upheld.

So? Summary of the case

Maine fell in with the majority of the states holding that a parent could not sign away a minor’s right to sue. Nothing knew there. However there were several other defenses that were not raised or maybe were raised at later times.

The mother enrolled the plaintiff in a level III class. That required the plaintiff to have experience and be able to “form a wedge, to be able to stop and start and to get up on their own if they fall and they can put their skis on by themselves and that they have experience riding the chairlift.” A minor can assume the risk of injury. Whether or not a nine year minor can I do not know. The specific age were a minor can assume a risk varies by state and by age. However, the plaintiff did have experience skiing and as such might have assumed the risk.

Another outside claim might be that the mother was a fault for signing here son up for a class that was beyond his abilities. Maybe the minor should have been enrolled in a Level 1 or 2 class. However, this claim would be subject to the claim that the instructor should have moved the child if the child was in the wrong class by lunch. This argument may hold if the accident occurred in the morning before the ski instructor had the opportunity to review the student.

The court also brought up and pointed out that the father had not signed any of the documentation. Not a legal point, but an interesting one in this case.

Image via Wikipedia

So Now What?

1. Get the best most well written release you can that specifically stops lawsuits by parents.
2. Educate the minor in advance, and probably the parents so you might have an assumption of the risk defense.
3. Be very wary with kids. If it appears that the minor cannot ski with the rest of the class, either move the minor to another class or move the class to a slope the minor can handle.

What do you think? Leave a comment.

Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Keywords: #recreationlaw, #@recreationlaw, #cycling.law #fitness.law, #ski.law, #outside.law, #recreation.law, #recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #Sunday River, #ski area, #ski school, #skiway,

Technorati Tags: Maine,Rice,American,Company,Super,LEXIS,clause,plaintiff,River,Area,Skiway,Corporation,lesson,Acknowledgement,Acceptance,Risks,Release,Enrollment,Form,defendant,negligence,parents,instruction,tree,injuries,supervision,defendants,Skiers,Tramway,Passengers,Responsibilities,Supp,lawsuit,maintenance,action,operator,Acts,exclusion,cords,intention,Zivich,Mentor,Soccer,Club,Ohio,Whether,clauses,agreement,guidelines,Summary,injury,Another,abilities,Maybe,Level,instructor,argument,accident,student,documentation,Motivational,lawsuits,Educate,assumption,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,youth,areas,indemnification,nine

Windows Live Tags: Maine,Rice,American,Company,Super,LEXIS,clause,plaintiff,River,Area,Skiway,Corporation,lesson,Acknowledgement,Acceptance,Risks,Release,Enrollment,Form,defendant,negligence,parents,instruction,tree,injuries,supervision,defendants,Skiers,Tramway,Passengers,Responsibilities,Supp,lawsuit,maintenance,action,operator,Acts,exclusion,cords,intention,Zivich,Mentor,Soccer,Club,Ohio,Whether,clauses,agreement,guidelines,Summary,injury,Another,abilities,Maybe,Level,instructor,argument,accident,student,documentation,Motivational,lawsuits,Educate,assumption,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,youth,areas,indemnification,nine

WordPress Tags: Maine,Rice,American,Company,Super,LEXIS,clause,plaintiff,River,Area,Skiway,Corporation,lesson,Acknowledgement,Acceptance,Risks,Release,Enrollment,Form,defendant,negligence,parents,instruction,tree,injuries,supervision,defendants,Skiers,Tramway,Passengers,Responsibilities,Supp,lawsuit,maintenance,action,operator,Acts,exclusion,cords,intention,Zivich,Mentor,Soccer,Club,Ohio,Whether,clauses,agreement,guidelines,Summary,injury,Another,abilities,Maybe,Level,instructor,argument,accident,student,documentation,Motivational,lawsuits,Educate,assumption,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,youth,areas,indemnification,nine

Rice, et als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90

Posted: November 25, 2010 | Author: Recreation Law | Filed under: Legal Case, Maine, Release (pre-injury contract not to sue), Ski Area | Tags: Inc., MAINE, Outdoors, Perfect Turn, Recreation, Resort, Ski, ski lesson, Sunday River, Sunday River Ski Co., Thomas Rice | Leave a comment

Thomas Rice, et als, Plaintiffs vs. American Skiing Company, Et Als, Defendants

Civil Action Docket No. CV-99-06

SUPERIOR COURT OF MAINE, OXFORD COUNTY

2000 Me. Super. LEXIS 90

May 8, 2000, Decided

May 9, 2000, Filed

DISPOSITION: [*1] Plaintiff Laurene’s Motion for Summary Judgment on Defendants’ Counterclaim GRANTED; Defendants’ Motion for Summary Judgment on Count I of Plaintiffs’ Complaint DENIED; and Defendants’ Motion for Summary Judgment on Count II of Plaintiffs’ Complaint GRANTED.

OPINION

DECISION AND ORDER

This matter is before the court on the motion of the plaintiff Laurene Rice for summary judgment, dated December 6, 1999, directed to the defendants’ counterclaim and on the defendants’ motion for summary judgment, dated January 6, 2000, directed to the plaintiffs’ complaint.

FACTUAL BACKGROUND

The plaintiffs Thomas and Laurene Rice are the parents of the plaintiff Nicholas Rice. The defendants Sunday River Skiway Corporation (SRS) and Perfect Turn, Inc. (Perfect Turn), are affiliates of each other and subsidiaries of the defendant American Skiing Company (American Skiing). ¹ SRS owns and operates the Sunday River Ski Resort in Newry, Maine (Sunday River). SRS also operates a ski school there called “Perfect Kids Children’s Program” (ski school), but does not require individuals to enroll in the ski instruction program as a precondition to skiing at Sunday River. The defendant Timothy McGuire [*2] is employed by SRS as a ski instructor.

1 On April 26, 2000, the parties filed a stipulation of dismissal without prejudice as to American Skiing Company and Perfect Turn, Inc.

On December 13, 1997, the plaintiffs went to Sunday River to ski. Nicholas was almost nine years old at the time and Laurene enrolled him in the ski school. She selected the Level Three program for people who already had certain skiing skills. ²

2 In deposition testimony, Timothy McGuire described that skill level:

Q. Would you please tell us again what Level Three meant in terms of skill level?

A. That it meant that they were able to form a wedge, to be able to stop and start and to get up on their own if they fall and they can put their skis on by themselves and that they have experience riding the chairlift.

Defendants’ Statement of Material Facts, Ex. B at p. 22.

[*3] Prior to Nicholas’ enrollment in the class, Laurene signed a form entitled “Acknowledgement & Acceptance of Risks & Liability Release” (Ski Enrollment Form) on behalf of herself and her son. The document began with a “WARNING” about the hazards of “Alpine activities” ³ and the challenges of the ski school program, then included language purporting to be a release by Laurene and Nicholas ⁴ of SRS and

“its owners, affiliates, employees and agents from any and all liability for all personal injury [] arising from any alleged negligence in the operation and maintenance or design of the ski area and other conditions such as those listed in the WARNING above.”

See Affidavit of Joseph R. Saunders, Esq. The document concluded with Laurene’s agreement to indemnify the defendants “for all awards, legal expenses and settlements arising out of” her child’s participation in the ski school and his use of the Sunday River premises. Thomas did not sign the Ski Enrollment Form and there is no evidence that he was involved in the enrollment process. The parents went off to ski while Nicholas was in class.

3 The hazards included many of the dangers or conditions included in the definition of “inherent risks of skiing” in Maine’s Skiers’ and Tramway Passengers’ Responsibilities Act. 32 M.R.S.A. § 15217(1)(A) (Supp. 1999). See Affidavit of Joseph R. Saunders, Esq.

[*4]

4 The document included the following language:

“As a parent/guardian with legal responsibility for a minor participant, I am authorized to sign this agreement for that child. I consent and agree for the minor child to be bound by this agreement ….”

See Affidavit of Joseph R. Saunders, Esq.

The ski class began around 9:30 a.m. McGuire first taught the class “rule number one” which was “you don’t pass the coach.” Nicholas fell at one point during a training run in the morning session. McGuire and the rest of the class went further ahead, then stopped and formed a group. When the boy caught up to them, McGuire was finishing an instruction about a skiing maneuver for stopping called a “hockey stop”.

The class broke for lunch at 11:15 a.m. and resumed shortly after the noon hour on a trail called Mixing Bowl. Ski conditions were good and the trail was in good shape. McGuire took his charges on a “fun run” down the slope again instructing the class not to ski past him. Nicholas fell and the group stopped further on to wait for him. He got up and began skiing toward them. He [*5] started going faster and panicked. As he approached the group, he could not slow down. He tried to do a “hockey stop”, skied off the side of the trail, hit a tree and was injured.

DECISION

A summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Panasonic Communications & Sys. Co. v. State, 1997 ME 43, P10, 691 A.2d 190, 194 (citing Gonzales v. Comm’r, Dep’t of Pub. Safety, 665 A.2d 681, 682-83 (Me. 1995)). Even if the parties differ as to the legal conclusions to be drawn from the historical facts before the court, if there is no serious dispute as to what those facts are, consideration of a summary judgment is proper. North East Ins. Co. v. Soucy, 1997 ME 106, P8, 693 A.2d 1141.

At the heart of it, the plaintiffs allege that the defendants, acting through McGuire, were negligent in their supervision of Nicholas. Laurene’s separate claim for lost wages can only survive on the strength of this negligence claim. The defendants disclaim responsibility by virtue of the immunity provisions of Maine’s Skiers’ and Tramway Passengers’ Responsibilities [*6] Act, 32 M.R.S.A. § 15217 (Supp. 1999), and the provisions of the Ski Enrollment Form signed by Laurene.

Maine’s Skiers and Tramway Passengers’ Responsibilities Act

The threshold issue is whether the Act immunizes the defendants against liability for a claim of negligent supervision. The court concludes that it does not. The Act relieves ski area operator’s from responsibility for injuries that result from the “inherent risks of skiing–such as skiing into a tree. Id. However, the statute expressly provides that it “does not prevent the maintenance of an action against the ski area operator for [] the negligent operation [] of the ski area”. 32 M.R.S.A. § 15217(8)(A). ⁵ Nicholas’ claim of negligent supervision clearly falls within the Act’s “negligent operation” exclusion.

5 See McGuire v. Sunday River Skiway Corp., 1994 WL 505035, *5 (D. Me.), in which Judge Hornby wrote “McGuire’s argument for liability might have some appeal if her skiing instructor had encouraged her to do something inappropriate during her lesson. That might amount to negligent operation of the ski area.”

[*7] Nicholas’ Claim

The issue then becomes whether the boy’s claim against the defendants has been effectively released by his mother. This issue requires an examination of the meaning and validity of the release language in the Ski Enrollment Form.

Releases in general are not against public policy. See Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983). However, for its terms to be valid, a release absolving a defendant of liability for its own negligence “must spell out ‘with greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” The courts have “traditionally disfavored contractual exclusions of negligence liability and have exercised a heightened degree of judicial scrutiny when interpreting contractual language which allegedly exempts a party from liability for his own negligence.” See Hardy v. St. Clair, 1999 ME 142, P3, 739 A.2d 368, 369, citing Doyle v. Bowdoin College, 403 A.2d 1206, 1207 (Me. 1979). The release must be construed strictly. See Doyle, 403 A.2d at 1207-08 (citing Prosser, Torts, § 68 (4th ed. 1971)) (it must appear that [*8] the terms of the release were “brought home to the plaintiff”).

The release that Laurene signed on behalf of herself and Nicholas prevents claims

“against [SRS], its owners, affiliates, employees and agents from any and all liability for all personal injury, including death or property damage arising from any alleged negligence in the operation and maintenance or design of the ski area and other conditions such as those listed in the WARNING above.”

See Affidavit of Joseph R. Saunders, Esq. (emphasis added). This language is unambiguous and, if valid, clearly releases the defendants from liability for damages and losses sustained as a result of negligence in the operation of the ski area, which would include the claim of negligent supervision in this case. The interpretation of an unambiguous contract is a question of law, see Fleet Bank of Maine v. Harriman, 1998 ME 275, P4, 721 A.2d 658.

More to the point of this case, the issue is whether an unambiguous release of negligence claims given by a parent on behalf of her child is valid. The defendants cite Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (Ohio 1998), as [*9] support for their assertion that a parent can give a binding release of such claims on behalf of the child. However, Zivich stands for the more limited proposition “that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sports activities where the cause of action sounds in negligence.” 82 Ohio St. 3d at 374 (emphasis added). The decision was grounded on two public policy considerations: first, nonprofit sports organizations would be unable to get volunteers without such releases and would go out of existence; and, second, parental authority to make and give such releases is of constitutional importance. However, the first consideration is inapplicable to the facts of this case–none of the defendants is a nonprofit organization and McGuire was not a volunteer–and the court is not persuaded by the second.

The defendants’ do make a broader public policy argument addressed to the facts of this case. They assert that ski schools are offered by ski areas for the convenience and safety of their guests. If releases on behalf of minors are unenforceable, ski areas will be reluctant to offer [*10] training and instructions to children, whose safety will then be as risk. This is not an inconsequential point. However, it is a risk against which a for-profit business may insure itself. ⁶ This court cannot conclude that the public policy consideration espoused by the defendants is paramount to the right of the infant to his negligence claim.

6 The court is mindful that in Zivich the Ohio Supreme court determined that “insurance for the [nonprofit] organizations is not the answer, because individual volunteers may still find themselves potentially liable when an injury occurs.” 82 Ohio St. 3d at 371-72. However, the point in Zivich, which involves a volunteer, is distinguishable from this case, which involves a paid employee. While a volunteer may reasonably expect that he should suffer no penalty for the consequences of his gratuitous acts, a paid employee–such as Defendant McGuire–may not.

There are numerous cases holding contrary to the defendants’ position. See, e.g., Scott v. Pacific West Mtn. Resort, 119 Wn.2d 484, 834 P.2d 6 (Wash. 1992) [*11] (en banc); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458, 460 (Vt. 1982). Maine appears to side with these decisions. In the case of Doyle v. Bowdoin College, supra, the Law Court was unequivocal in its declaration, albeit dicta, ⁷ that “this Court has held that a parent, or guardian, cannot release the child’s or ward’s, cause of action.” Doyle v. Bowdoin College, 403 A.2d at 1208 n.3. This language is too unequivocal to ignore. In fact, other courts holding in line with Scott have cited Doyle as support for this proposition. See Scott, 834 P.2d at 12 n.19; see also International Union v. Johnson Controls, Inc., 499 U.S. 187, 214, 113 L. Ed. 2d 158, 111 S. Ct. 1196 (1991)(White, J., concurring) (“the general rule is that parents cannot waive causes of action on behalf of their children”); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. 1994).

7 Although it is dicta, courts have cited Doyle for the proposition that a parent cannot release a child’s causes of action.

[*12] The court concludes that the claim for negligent supervision brought on behalf of Nicholas is not barred by the release provisions of the Ski Enrollment Form signed by his mother.

Laurene’s Claim

Laurene’s claim for lost wages arises out of and is dependant upon her son’s claim for negligent supervision. As noted, the release language is unambiguous and clearly releases the defendants from liability for damages and losses “arising from any alleged negligence in the operation [] of the ski area”, which includes the claim of negligent supervision in this case. Although this court concludes that Nicholas’ cause of action survives the release provisions of the Ski Enrollment Form, his mother’s claim does not. See Scott v. Pacific West Mtn. Resort, 834 P.2d at 12 (holding that although child’s cause of action is not barred by parents’ signing of release, parents’ claims based on child’s injury are barred by unambiguous and conspicuous release); see also Childress v. Madison Cty., 777 S.W.2d 1, 7-8 (Tenn. Ct. App. 1989) (although child and child’s father are not bound by release signed by mother, she is barred from bringing claims based [*13] on child’s injuries).

Indemnification Clause

Finally, there remains the issue of whether Laurene is obligated to indemnify the defendants against Nicholas’ cause of action. In Maine, the Law Court views clauses “indemnifying a party against its own negligence with disfavor, and directs courts to construe them strictly against such a result.” See International Paper Co. v. A&A Brochu, 899 F. Supp. 715, 719 (D. Me. 1995), citing Emery Waterhouse, 467 A.2d at 993. However, the court may uphold an indemnification agreement that expressly indemnifies the indemnitee against its own negligence in a manner that clearly reflects the mutual intent of the parties. “[A] clear reflection of mutual intent requires language from the face of which the parties unambiguously agree to indemnification for indemnitee negligence.” See id. In International Paper, the court upheld the validity of such an indemnification clause that provided, as follows:

“SELLER does hereby agree to indemnify and hold harmless PURCHASER from and against any and all claims, damages, debts, demands, suits, actions, attorney fees, court costs and expenses arising [*14] out of, attributable to, or resulting from SELLER’S or any supplier’s said operations, whether the same are caused or alleged to have been caused in whole or in part by the negligence of PURCHASER, Its (sic) agents or employees.”

Id. (emphasis added). However, unlike International Paper, it is not clear that the indemnification provision in this case applies to the defendants’ own negligence. ⁸ The Ski Enrollment Form provides as follows:

“I hereby indemnify the ski areas named above, its owners, affiliates, employees and agents for all awards, legal expenses and settlements arising out of the child’s participation in this clinic and the use of the ski area premises.”

Employing a strict construction analysis, the court concludes that this language is ambiguous and does not reflect an express mutually intended agreement that Laurene will indemnify the defendants against their own negligence. In fact, it seems more suited to an interpretation that the indemnification is for losses or damages caused by Nicholas while participating in the ski school.

8 See McGraw v. S.D. Warren Co., 656 A.2d 1222, 1224 (Me. 1995), where the court held that Cianbro did not specifically agree to indemnify Warren for damages caused by Warren’s own negligence where the clause provided:

The contractor [Cianbro] is responsible for and shall continuously maintain protection of all the work and property in the vicinity of the work from damage or loss from any cause arising in connection with the contract and any work performed thereunder. [Cianbro] shall indemnify and hold owner [Warren] harmless for any claims, suits, losses or expenses including attorneys’ fees suffered by [Warren] arising out of injury to any person including [Warren’s] or [Cianbro’s] employees or damage to any property, including [Warren’s] property if the injury or damage is caused in whole or in part by [Cianbro] or any of [Cianbro’s] subcontractors, material men or anyone directly or indirectly employed or otherwise controlled by any of them while engaged in the performance of any work hereunder.

[*15] Based on the conclusion that the Ski Enrollment Form does not include an indemnification by Laurene against the defendants’ own negligence, the court does not need to reach the plaintiffs’ further claim that the indemnification clause is unconscionable as a contract of adhesion. See Dairy Farm Leasing Co., Inc. v. Hartley, 395 A.2d 1135, 1139-40 (Me. 1978) (“where a standard-form, printed contract is submitted to the other on a ‘take it or leave it’ basis, upon equitable principles the provisions of the contract are generally construed to meet the reasonable expectations of the party in the inferior bargaining position; when a contract of adhesion is exacted by the overreaching of a party, the defense of unconscionability may be asserted”).

Pursuant to Rule 79(a) M.R.Civ.P., the Clerk is directed to enter this Decision and Order on the Civil Docket by a notation incorporating it by reference, and the entry shall be:

Plaintiff Laurene’s Motion for Summary Judgment on Defendants’ Counterclaim is GRANTED;

Defendants’ Motion for Summary Judgment on Count I of Plaintiffs’ Complaint is DENIED; and

Defendants’ Motion for Summary Judgment on Count II of [*16] Plaintiffs’ Complaint is GRANTED.

Dated: May 8, 2000

/s/ signed

Justice, Superior Court

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

Rate this:

Share this:

Like this:

§ 752-B. Ski areas

§ 15201. Declaration of policy

§ 15202. Definitions.

§ 15203. Retroactive effect; exception

§ 15204. Appeals; variances

§ 15205. Board of Elevator and Tramway Safety

§ 15205. Board of Elevator and Tramway Safety

§ 15206. Powers and duties of board

§ 15206-A. Denial or refusal to renew license; disciplinary action

§ 15208. Examination of private elevator and lift inspectors; licenses and renewals

§ 15208-A. Registration of elevator contractors

§ 15209. Examination of private tramway inspectors; licenses

§ 15209-A. Private wire rope inspectors; licenses

§ 15210. Revocation of private tramway or elevator inspector’s license

§ 15211. Notice of accidents

§ 15212. Examination of accidents

§ 15213. Elevator or lift mechanics; license; definition

§ 15214. Issuance; qualifications

§ 15215. Repealed. Laws 2001, c. 573, § B-22

§ 15216. Examination of elevator or lift mechanics; applications; licenses; renewals

§§ 15216-A, 15216-B. Repealed. Laws 2001, c. 573, § B-24

§§ 15216-A, 15216-B. Repealed. Laws 2001, c. 573, § B-24

§ 15216-C. License renewal

§ 15217. Skiers’ and tramway passengers’ responsibilities

§ 15218. Duties of skiers and tramway passengers; acts prohibited

§ 15219. Hang gliding

§ 15220. Penalties

§ 15221. Inspection of elevators and tramways

§ 15222. Condemned elevators and tramways not to be operated

§ 15223. Criminal operation of elevator or tramway

§ 15224. Installation of new elevators and tramways; fees

§ 15225. Repealed. Laws 2001, c. 573, § B-29

§ 15225-A. Fees

§ 15226. Reports by inspectors

§ 15227. Powers of chief inspector

§ 15228. Elevator size

§ 15229. Duties of owners of elevators or tramways

Rate this:

Share this:

Like this:

Rate this:

Share this:

Like this:

Gross negligence claim is thrown out because the complaint failed to plead enough facts.

So?

For additional cases looking at the legal issues of cycling see:

What do you think? Leave a comment.

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

Rate this:

Share this:

Like this:

Summary

So Now What?

What do you think? Leave a comment.

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

Rate this:

Share this:

Like this:

L.L.Beanto attempt getting 100 employees into world’s longest modular kayak in celebration of its 100th Anniversary during Annual PaddleSports Weekend, June 1-3

Rate this:

Share this:

Like this:

Rice, Et Als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90

However the court held out the possibility that a

properly written indemnification clause may

be upheld.

So Now What?

What do you think? Leave a comment.

Rate this:

Share this:

Like this:

Rate this:

Share this:

Like this:

35 Years of Outdoor Retailer

Recognized as the Go to Lawyer by the Outdoor Recreation Industry