New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


VeloSwap is coming Up Fast, November 4, 2017

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Saturday, November 4, 2017
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VeloSwap is for Everyone!!

Buy Tickets Here
If you like biking, you belong at VeloSwap. Every year, every one is invited to the world’s largest consumer bike swap and expo.
Mark your calendar for Denver’s fall tradition: This one-day-only cycling marketplace and festival happens Saturday, Nov. 4, 2017.
VISIT THE WEBSITE
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Purchase Tickets at Performance Bicycle
All front range Performance Bicycle retailers are selling discounted VeloSwap tickets. Find a shop near you here!
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Happenings On Site!

You’ve come to shop and found that killer deal, now what?

  • Demo a bike
  • Visit Bikes Together Educational area
  • Hang out in the VeloLounge
  • Visit with supplier and reps to discuss what the 2018 lines will look like.
  • More…
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Plan Your Day!

Not sure how best to maximize your VeloSwap day? Visit our Plan You Day section and get some best practice tips!

#VeloSwap
Copyright © 2017 VeloSwap, All rights reserved.
You are receiving this e-mail as you have requested information about VeloSwap.Our mailing address is:

VeloSwap

3002 Sterling Circle

Boulder, CO 80301

Add us to your address book

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Virus-free. www.avast.com

VeloSwap Online Registration Up 35%, See you there

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Saturday, November 4, 2017
Online Consumer Ticket Sales Tracking 35% above Last Year!
RESERVE A BOOTH
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Vendor/exhibitor set-up:

Friday, Nov 3, Noon to 7:30 p.m.; Saturday, Nov 4, 6 a.m. to 8:30 a.m.; “Swappers Corner” vendors set up Saturday, Oct. 22 at 8:30 a.m. More infor here: Load-In Information

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IMPORTANT LINKS

There’s no more captive audience for unloading anything and everything related to bikes and sports gear than at VeloSwap—the world’s largest consumer bike swap and expo.

But its more…Its the perfect opportunity to collaborate and showcase not only your retail storefront and brands, but to work with the supplier reps to tell the complete story of the brands you carry and the knowledge of your staff. Help your existing customers and, potential new customers, make the best buying decisions for that coveted new ride, be that purchase this year or next.

#VeloSwap
Copyright © 2017 VeloSwap, All rights reserved.
You are receiving this e-mail as you have been a vendor at VeloSwap in the past.Our mailing address is:VeloSwap

PO Box 818

Woodstock, VT 05071

Add us to your address book

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Crashing while mountain biking is an inherent risk under Indiana’s law.

The plaintiff also admitted that he knew the risks of mountain biking and as such were contributorily negligent which barred his claims against the park owner.

Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133

State:  Indiana, Court of Appeals of Indiana

Plaintiff: (At Trial) Richard Kaler 

Defendant: (At Trial) Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation

Plaintiff Claims: Premises Liability 

Defendant Defenses: No liability and Contributory Negligence 

Holding: For the Defendants (at Trial) 

Year: 2017 

Summary

Crashing while mountain biking is an inherent risk under Indiana’s law. The plaintiff, an experienced mountain biker could not recover from the park because he knew and had crashed mountain biking and his knowledge of mountain biking also made him contributorily negligent. Contributory negligence under Indiana Law is a complete bar to recovery when suing a municipality.

Facts 

This decision the parties in the heading is reversed. The plaintiff is listed second in this case at the appellate court heading and the defendants are listed first. The reason is the defendants are appealing the trial court’s ruling and they the defendants are prosecuting the case to the appellate court. Few states work this way in titling their decisions. 

The City of Indianapolis, through its Indy Parks and Recreation department owns Town Run Trail Park. It has numerous mountain bike trails through the park which are managed by the Hoosier Mountain Bike Association.

The plaintiff had been mountain biking for five or six years. An Eagle Scout had created a berm in the park as part of a “merit badge” in the park. While riding the berm the plaintiff crashed and sued.

He described himself as an “experienced” and “better than average” bicyclist. Although he was familiar with the trails at Town Run, he had not been on the mountain-bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.”

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

All states have Premises Liability statutes. These statutes set out the duties of land owners relative to people on their land. If the land owner fails to meet those duties, the landowner is liability. An injury to a person on someone’s land is called a premises liability claim.

The plaintiff mountain biker brought a premises liability claim for his injuries. To win a premises liability claim in Indiana the plaintiff must prove the landowner. 

(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable
risk of harm to such invitees, and

(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) Fails to exercise reasonable care to protect them against the danger. 

The plaintiff failed to prove this to the appellate court on two different arguments. First, the plaintiff’s experience as a mountain bike showed he knew that crashing was a possibility mountain biking, and he crashed often. 

He admitted that a fall “was just a general consequence of the sport.” Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark, but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” At no point, did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions. 

Second he had ridden the wooden berm once before that day, electing to take a lower ride through the berm. The second time he went faster taking the higher edge of the berm when he crashed.

The plaintiff could not prove that actual or constructive knowledge that the City knew the trail created an unreasonable risk of harm to the plaintiff. Not because of the lack of the cities’ knowledge, but because crashing was part of the sport. Therefore, there was no unreasonable risk. The plaintiff had testified that crashing was part of the sport.

As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element.

Having the plaintiff admit crashing was part of the sport, the court held that while mountain biking crashing was an inherent risk of the sport. If a risk is inherent to the sport, then you could not sue for injuries from an inherent risk.

The second defense brought by the City on appeal was the plaintiff was contributorily negligent. Contributory negligence 

“[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.

If you can prove the plaintiff was responsible for his own injuries, then the defendant is not liable. In some states, this could act to reduce the plaintiff’s damages. In Indiana, it was a complete bar to the plaintiff’s claims. 

Reviewing the testimony of the plaintiff, the court found that the plaintiff was not completely free of all negligence. Meaning the plaintiff was also negligent and therefore, barred from suing for his claims.

So Now What? 

Two great ideas came out of this for land owners in Indiana. The first is crashing is an inherent risk of the mountain biking. Most mountain bikers already knew this; however, having a court make the statement is great. 

Second premises liability statute in Indiana has been interpreted to allow the defendant to introduce the knowledge and skill of the plaintiff as a defense to the plaintiff’s claims and as a denial of his claims. 

What do you think? Leave a comment. 

Bicycle Demo Release Available

Bicycle Rental Release Available

Mountain Bike Rental or Demo Release

Copyright 2017 Recreation Law (720) 334 8529 

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Rec-law@recreation-law.com 

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

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#AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps,
#ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw,
#FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation,
#IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence,
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Indianapolis, Indy Parks and Recreation, trail, berm’s, bike, summary judgment,
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bicyclist, bicycle, mountain bike, mountain biking, inherent risk. Inherent
risk,


 

 


Fox Factory Recalls Mountain Bike Shock Absorbers Due to Fall and Injury Hazards

Hazard: The bicycle’s rear shock absorber outer sleeve can rupture, allowing the sleeve to come in contact with other bicycle parts or the rider, posing a fall and injury hazard.

Remedy: Repair

Consumers should immediately stop using bicycles with the recalled rear shock absorbers and return them to the place of purchase for a free repair. Consumers unable to return their bicycles should contact Fox for instructions on receiving a free repair. 

Name of Product: Mountain bike rear shock absorbers

Consumer Contact: Fox toll-free at 855-360-3488 from 8 a.m. to 5 p.m. PT Monday through Friday, email at recall@ridefox.com or online at http://ridefox.com/recall and click on the recall link for more information.

Pictures available here: https://cpsc.gov/Recalls/2017/Fox-Factory-Recalls-Mountain-Bike-Shock-Absorbers-Due-to-Fall-and-Injury-Hazards

Units: About 6,100 (in addition, about 1,200 were sold in Canada)

Description: This  recall involves all model year 2016 and some 2017 FLOAT X2 bicycle rear shock absorbers sold both individually and installed on YT, Giant, Pivot, Intense, Ibis, Scott, Trek, GT, Knolly, Norco, Rocky Mountain, Diamondback, Morpheus, Foes Racing, Orbea and Canyon full-suspension mountain bikes and frames. The solid black or black and gold FLOAT X2 shocks have an air sleeve construction. FLOAT X2 is printed on the external reservoir connected to the blue compression and red rebound adjusters that have X2 and RVS laser etched on them. Recalled shocks do not have a “250 psi max” label directly under the air fill boss on the outer sleeve of the shock.  Recalled shocks and bike models can be identified at http://ridefox.com/recall. 

Incidents/Injuries: The firm has received seven reports of the shock absorber outer sleeve rupturing. No injuries have been reported.

Sold at: Independent bike stores nationwide, online at Jenson USA, Pro Bike Supply, Universal Cycles, Go-ride.com and other online bike retailers from March 2015 through September 2016. The shocks were installed as original equipment on full-suspension mountain bikes and frames sold for between about $2,700 to $10,000 and sold individually as an aftermarket accessory for about $600.

Manufacturer: Fox Factory, Watsonville, Calif.

Manufactured in: United States

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

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

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

What do you think? Leave a comment.

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

 

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

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

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

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council, Mountain Biking, Shock, Rear Shock, Fox, Cycling

 

 


2016 Gravel Grinder Championship Series

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Dates Announced for the 2016 Vail Outlier Offroad Festival, Breck Epic, Eagle Outside Festival

Uncommon Events – tuned in to the industry schedule, the media cycle, and most of all, your budget.
Breck Epic’s vaunted Wheeler Stage. Your suffering will be legendary. Image courtesy Liam Doran.
2016 Dates Announced for Vail Outlier, Breck Epic & Eagle Outside Festival
Public relations and event marketing agency Uncommon Communications is pleased to announce the company’s 2016 event calendar.

Uncommon’s Breck Epic MTB Stage Race attracts riders from 25 countries and 40+ states annually and has become a mainstay on the global ultra-endurance calendar since its 2009 inception. The company’s demo-focused and value-driven Vail Outlier and Eagle Outside Festival events have generated significant excitement from industry and consumer attendees since their respective launches in 2015 and 2013.

While the Breck Epic is a distinct and unique event competitive event held over 6 days and 240 miles of Colorado’s best singletrack, Vail Outlier Offroad and Eagle Outside event subscribe to a slightly different formula. The latter events seek to attract enthusiasts and media (as well as competitors) with their high-energy, well-organized and most importantly, low-cost blend of demo, racing, live music, great beer and media/marketing/VIP-only aspects.

To sum up, we’re doing our level best to provide you with compelling options for your marketing and demo budgets. Cheap ones. Good ones. Rad ones.

Please read below for additional details, dates and registration information. Questions and comments always welcome. My thanks along with gratitude from all of us here at Uncommon for your time and consideration –

Eagle Outside Festival

The Eagle Outside Festival fuses racing, consumer demo, trail running, craft brewed beer and live music in a weekend long bicycling bacchanal in Colorado’s newest MTB destination.

Easily accessible from Colorado’s Front Range, Eagle offers tremendous weather, multiple close-in trail options, low prices and tight organization. Eagle also pins down the western end of the Vail Valley, a hotspot for affluent backcountry cyclists and their families, many of whom are in the market for new rides during Eagle Outside’s strategic spring date.

  • Date: June 4-6, 2016
  • Fee(s): $100-300. Eagle Outside demo space is FREE when also registering for Vail Outlier (see below). All demo attendees also receive discounted hotel rates, a cold locally-brewed 6-pack upon arrival and a gift card valid for up to $200 in meals (or booze!) from local restaurants.
  • Registration: OPEN NOW

EagleOutsideFestival.com

Breck Epic MTB Stage Race – powered by SRAM

The oldest MTB stage race in the US, Summit County’s Breck Epic treats riders to 6 days of Colorado’s best singletrack. Utilizing a unique cloverleaf format, each stage begins and ends within a mile of the historic Victorian mining town of Breckenridge, CO.

With too many dining, coffee and social options to list, riders and support crews will also find fantastic lodging deals at host property Beaver Run Resort. The Epic itself presents a modestly priced stage race with an especially strong media component. It offers non-pros an amazing non-USAC experience of a lifetime, and professional riders and brand an outstanding weeklong opportunity to dominate the news cycle.

Word on the street is that a certain highly regarded road event may also make an appearance during this year’s event. Or not. But we’re holding a table laden with raw seafood at Mountain Flying Fish for Mssrs. Liggett and Sherwin just in case.

  • Date: August 14-19, 2016 (3-day events also available for stages 1-3 and 4-6)
  • Fee(s): $449-799. Partnership opportunities also available.
  • Registration: OPEN NOW. Register soon – strict field limits apply.

BreckEpic.com

Vail Outlier Offroad Festival

We open the season with our Eagle event, and then for our finale, we give riders from across Colorado a first look at next year’s top gear with Vail’s Outlier Offroad Festival in September.

Powered by SRAM, and set against the stunning backdrop of the Gore and New York Ranges, the Vail Outlier Offroad Festival is easily accessible from Denver and presents a wide range of opportunities for brands seeking to distinguish themselves from the noise surrounding the fall tradeshows.

Priced sensibly, Outlier offers consumer demo with two lifts, Enduro and XC racing components and a media and VIP-only day that allows product managers and marketing teams alike meaningful time and access to what’s estimated at over 150 media attendees. A deliberate mishmash of Vegas, Whistler, Moab, Park City and Monterey, Outlier clocks in heavy on the fun, but light on the budget.

Held the same weekend as Vail’s Oktoberfest and the 12th annual Vail Farmer’s Market, we’ve also added a delightfully trashy music and nightlife component for 2016.

  • Date: September 9-11, 2016
  • Fee(s): $300-800. Outlier demo brands receive a generous number of competitive event entries, lift tickets and VIP passes. Registrants also receive complimentary entry to our Eagle event, held June 4-6.
  • Media Members: attending media receive complimentary lift passes, VIP access to participating brands, complimentary event entries and tickets to Mini Kiss.
  • Registration: OPEN NOW.

Outlier.bike

Blistering temps and 100-mph winds? Not here, friend. We’re packing world class loam, two high speed lifts and an intimate evening with Mini Kiss. Image courtesy Eddie Clark.
Uncommon Communications | 970.485.5847 | mikemac

When you are mountain biking on land you are unfamiliar with, probably private land, any condition of the land causing any injury is your responsibility to find.

Michigan mountain biker that struck a cable gate liable for his own injuries because of the Michigan Recreational Use Statute. Actions of the land owner in creating the gate were not gross negligence when they had posted the property with no trespass signs.

Schoonbeck v. Kelly, 2015 Mich. App. LEXIS 223

State: Michigan, Court of Appeals of Michigan

Plaintiff: Thomas H. Schoonbeck

Defendant: v Casey J. Kelly, a/k/a Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: Michigan Recreational Use Statute

Holding: for the defendant land owner and land lessee

Year: 2015

The plaintiff was mountain biking on private land that was adjacent to state land. While traveling down a trail he was injured when he struck a cable being used as a gate strung between two trees. The cable had a “No Trespassing” sign facing away from the plaintiff’s direction of travel so people coming onto the land could see the sign.

The land was owned by one defendant, Nielsen, who leased the land to Donajkowski and Kelly to use for hunting. Donajkowski and Kelly created the cable gate because it was the cheapest and easiest gate to erect. They also placed “no trespassing” signs around the property and at the corners of the property.

The plaintiff sued for negligence and gross negligence. The defendants filed a motion for summary disposition on the negligence claim and argued that installing a gate was not gross negligence. The trial court agreed, and this appeal followed.

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

The Michigan Recreational Use statute is very comprehensive. The statute covers any cause of action, which is a “concurrence of facts giving rise to the obligation sought to be enforced against the defendant.” on the land. That definition also is based on premise’s liability law, which is the law that is based on ownership of land.

The plaintiff’s argued the statute was based on laws occurring on the land, not of the land. Mainly the law dealt with nuisance claims, which is “unreasonable interference with a common right enjoyed by the general public.”

However, the argument failed in total because the nuisance argument was not raised in the lower court so it could not be argued in the appellate court.

The next argument was whether erecting (stringing) a cable gate on the land was gross negligence. The plaintiff argued the gate case created with “deliberate indifference to the likelihood that an injury would result.”

The court then looked at the definition of gross negligence in Michigan.

A person’s conduct is grossly negligent if the person engages in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” “Evidence of ordinary negligence does not create a material question of fact concerning gross negligence.” Willful and wanton misconduct occurs when the defendant acted “with a set purpose to accomplish the results which followed the act,” which “implies malice.” “Willful and wanton misconduct is not a high degree of negligence; rather, it is in the same class as intentional wrongdoing.”

The plaintiff argued the defendants should have done more. They should have built a gate at the other end of the property, notified neighbors the land was now closed or turned the No Trespassing sign around. However, allegations that someone could have done more are not proof that what was done was gross negligence. “To be grossly negligent, a person must disregard precautions or safety in a way that suggests that he or she does not care about the welfare of others.”

The allegations of the plaintiff were the defendants could have done more, not that what they did was grossly negligent.

At best, Schoonbeck has only alleged that Donajkowski and Kelly could have done more. He has not provided any evidence that their actions showed a substantial lack of concern for whether an injury might result.

The actions of the defendant were not grossly negligent and the Michigan Recreational Use Statute provides protection for the negligence claims. The trial court dismissal of the complaint was upheld.

So Now What?

I don’t have mostly indifference to the plaintiff in this case. Mountain biking is defined by its falls, just like skiing. Not falling, not trying hard enough, etc.

Here the landowner/lease did what every other landowner did. The real sole issue was, whether the landowner should have done more when the status to the land allegedly changed. However, the plaintiff did not even prove that. The prior landowner did not allow mountain biking or other activities; he just did not go out and try to stop them.

If you own the land, and you don’t want people on it, do what the law requires to protect your land.

If you are a mountain biker, make sure you know where you are before you go barreling down a trail. Much like a terrain park skiing, check out the jumps before cruising through them.

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Schoonbeck v. Kelly, 2015 Mich. App. LEXIS 223

Schoonbeck v. Kelly, 2015 Mich. App. LEXIS 223

Thomas H. Schoonbeck, Plaintiff-Appellant, v Casey J. Kelly, a/k/a Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen, Defendants-Appellees.

No. 318771

COURT OF APPEALS OF MICHIGAN

2015 Mich. App. LEXIS 223

February 10, 2015, Decided

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

PRIOR HISTORY: [*1] Muskegon Circuit Court. LC No. 12-048517-NO.

CORE TERMS: gate, trespassing, cable, gross negligence, wanton misconduct, willful, causes of action, installed, trail, nuisance claims, grossly negligent, recreational, material fact, premises liability, motorcycles, installing, favorable, struck, tenant, lessee, bike, snowmobiles, land use, claims of negligence, facts giving rise, questions of fact, de novo, genuine issue, nonmoving party, reasonable minds

COUNSEL: For THOMAS H. SCHOONBECK: ALANA LYNN WIADUCK, MUSKEGON, MI.

For CASEY J. KELLY: JAMES M SEARER, MUSKEGON, MI.

For ROGER W. NIELSEN: JOSEPH P VANDERVEEN, GRAND RAPIDS, MI.

JUDGES: Before: O’CONNELL, P.J., and SAWYER and MARKEY, JJ.

OPINION

Per Curiam.

Plaintiff, Thomas H. Schoonbeck, appeals as of right the trial court’s order granting summary disposition under MCR 2.116(C)(10) in favor of defendants, Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen. Schoonbeck was injured when he struck a cable gate while riding a dirt bike on property that Nielsen had leased to Donajkowski and Kelly. The trial court ruled that the recreational land use act (the Act), 324.73301, barred Schoonbeck’s claims. We affirm.

I. FACTS

In September 2010, Schoonbeck was riding a dirt bike on Nielsen’s property when he struck a cable gate that was suspended across a trail between two trees. According to Trooper Brian Cribbs’s report of the incident, the cable was installed along a fairly straight section of the trail that had a “very slight curve” about 87 feet before where Schoonbeck struck it. A 10 x 14-inch sign that read “Private Property — No Trespassing” was attached to the middle of the cable. The sign faced the opposite direction from which Schoonbeck was traveling.

At his deposition, Nielsen testified that he had rented the property for hunting [*2] and recreational purposes to Donajkowski and Kelly at the time of the accident. A two-track trail traversed the property from the southwest to the northeast. In affidavits, various neighbors stated that the property did not have “no trespassing” signs and that they walked, rode bikes, and used motorcycles or snowmobiles on the property’s trails. Nielsen testified that he had previously seen some evidence that people rode motorcycles or snowmobiles across the property. However, according to Nielsen and Donajkowski, there were “no trespassing” ribbons at the corners of the property and “no trespassing” signs along its borders.

Kelly testified that he was not aware that motorcycles or snowmobiles crossed the property, but he wanted to inform people that the property was private because it abutted state land. Donajkowski testified that he wanted to put a gate on the trail to stop traffic. Nielsen testified that Donajkowski asked to install a gate on the property and complained that people were trespassing on it with motorcycles and off-road vehicles.

According to Kelly, about a week after leasing the property, he and Donajkowski installed “no trespassing” signs and a cable gate with a “no [*3] trespassing” sign on it. They installed a cable gate because it was the easiest kind of gate to install. It was Kelly’s first time on the property and Donajkowski’s second time on the property. Donajkowski testified that the “no trespassing” sign faced outward from the property.

In August 2012, Schoonbeck filed this suit. He alleged claims of negligence and gross negligence against Nielsen, Donajkowski, and Kelly. In May 2013, Nielsen moved for summary disposition under MCR 2.116(C)(8) and (10). In pertinent part, Nielsen contended that the Act barred Schoonbeck’s claims because Donajkowski and Kelly’s act of installing the cable gate was not grossly negligent or malicious. Donajkowski and Kelly also moved for summary disposition, adopting Nielsen’s arguments and further contending that they were not grossly negligent and did not commit willful or wanton misconduct. Schoonbeck responded that the Act did not apply and, even if it did apply, there were material questions of fact regarding whether Donajkowski and Kelly were grossly negligent or committed willful and wanton misconduct.

In a brief written opinion, the trial court granted the defendants’ motions under MCR 2.116(C)(10). It determined that the Act barred Schoonbeck’s [*4] claims. Schoonbeck now appeals.

II. STANDARDS OF REVIEW

This Court reviews de novo the trial court’s decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law.” The trial court must consider all the documentary evidence in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Maiden, 461 Mich at 120. A genuine issue of material fact exists if, when viewing the record in the light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).

This Court reviews de novo issues of statutory interpretation. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004). When interpreting a statute, our goal is to give effect to the intent of the Legislature. Id. at 665. The statute’s language is the best indicator of the Legislature’s intent. Id. If the language of a statute is unambiguous, we must enforce the statute as written. United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 13; 795 NW2d 101 (2009). This Court should not read language into an unambiguous statute. McCormick v Carrier, 487 Mich 180, 209; 795 NW2d 517 (2010).

III. APPLICATION OF THE RECREATIONAL LAND USE ACT

First, Schoonbeck contends the Act does not apply because it is limited to premises liability causes of action. We disagree.

The Act provides that “a [*5] cause of action” generally does not arise from a nonpaying outdoor recreational user’s use of an owner’s land unless the user’s injuries were caused by the owner’s gross negligence or willful and wanton misconduct:

Except as otherwise provided in this section, a cause of action shall not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee. [MCL 324.73301(1).]

A cause of action is a “concurrence of facts giving rise to the obligation sought to be enforced against the defendant.” Davis v Kramer Bros Freight Lines, Inc, 361 Mich 371, 376-377; 105 NW2d 29 (1960); also see Black’s Law Dictionary (9th ed) (“A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”).

The plain language of the statute bars any cause of action, not only those [*6] causes of action that sound in premises liability. Had the Legislature wished to limit the statute to a narrower set of circumstances, it could have used the words “cause in action sounding in premises liability” rather than the more general term “cause of action.” See Neal, 470 Mich at 665-666. It did not do so. We decline to read additional language into the statute and, therefore, we reject Schoonbeck’s argument that the Act only applies to claims sounded in premises liability.

Second, Schoonbeck contends that the trial court erred by granting summary disposition because the Act does not apply to nuisance claims. “A public nuisance is an unreasonable interference with a common right enjoyed by the general public.” Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297 (1995). In this case, regardless of whether revoking an implied license to trespass constitutes a nuisance or whether the Act bars nuisance claims, Schoonbeck did not assert a nuisance claim in his complaint. He asserted only claims of negligence and gross negligence. Since Schoonbeck did not plead a nuisance claim, nor does he provide argument to support that the trial court erred by granting summary disposition on potentially meritorious claims that the plaintiff did not raise, we fail to see how he [*7] can be deemed to have addressed a nuisance claim. Moreover, we decline to make Schoonbeck’s arguments for him. See VanderWerp v Plainfield Charter Twp, 278 Mich App 624, 633; 752 NW2d 479 (2008). Accordingly, we reject this assertion because Schoonbeck did not allege a nuisance claim.

IV. GROSS NEGLIGENCE AND WILLFUL OR WANTON MISCONDUCT

Schoonbeck contends that the trial court erroneously granted summary disposition because there was a question of material fact regarding whether Donajkowski and Kelly’s installation of the cable gate showed a deliberate indifference to the likelihood that an injury would result. We conclude that Schoonbeck did not show a genuine issue of material fact regarding whether Donajkowski and Kelly acted with gross negligence or willful and wanton misconduct.

A person’s conduct is grossly negligent if the person engages in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Maiden, 461 Mich at 123; Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003). “Evidence of ordinary negligence does not create a material question of fact concerning gross negligence.” Maiden, 461 Mich at 122-123. Willful and wanton misconduct occurs when the defendant acted “with a set purpose to accomplish the results which followed the act,” which “implies malice.” Boumelhem v Bic Corp, 211 Mich App 175, 185; 535 NW2d 574 (1995). “Willful and wanton misconduct is not a high degree [*8] of negligence; rather, it is in the same class as intentional wrongdoing.” Id.

Even accepting Schoonbeck’s assertions that Donajkowski and Kelly should have installed a gate at the other end of the property, faced a second sign inward on the gate, or informed the neighbors they were installing the gate, these allegations do not show a genuine question of material fact on the issue of gross negligence. An allegation that an actor could have done more or acted differently is not evidence of ordinary negligence, much less gross negligence. Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). To be grossly negligent, a person must disregard precautions or safety in a way that suggests that he or she does not care about the welfare of others. Id. At best, Schoonbeck has only alleged that Donajkowski and Kelly could have done more. He has not provided any evidence that their actions showed a substantial lack of concern for whether an injury might result.

In contrast, Donajkowski and Kelly provided evidence that they did not act with a deliberate indifference of whether an injury could result from installing the cable gate. Donajkowski and Kelly installed a “no trespassing” sign near the entrance to the property and hung a “no trespassing” [*9] sign from the cable gate. They installed the cable gate and sign on a fairly straight area of the trail. They also installed additional “no trespassing” signs. These signs faced toward the road, the logical direction from which to expect traffic would approach the gate. We conclude that, viewing the evidence in the light most favorable to Schoonbeck, reasonable minds could not differ concerning whether Donajkowski and Kelly’s action was so reckless that it showed a substantial lack of concern for whether an injury resulted. We conclude that the trial court did not err by granting summary disposition under MCR 2.116(C)(10).

V. CONCLUSION

We conclude that the Act is not limited to premises liability actions. Further, we conclude that the trial court did not err by granting summary disposition under MCR 2.116(C)(10) when Schoonbeck provided no evidence from which a reasonable juror could conclude that Donajkowski and Kelly acted recklessly.

We affirm. As the prevailing parties, defendants may tax costs. MCR 7.219.

/s/ Peter D. O’Connell

/s/ David H. Sawyer

/s/ Jane E. Markey


Golden Bike Shop: Bike Junkies Fest Sunday May 3 & Beer

 


BSA Summer Camp was able to have punitive damages claim dismissed prior to trial

Plaintiff’s complaint was not sufficient to adequately plead its claim for punitive damages.

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

Plaintiff: N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually

Defendant: Sequoyah Council, Inc., Boy Scouts of America

Plaintiff Claims: (1) it [defendant] 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

Defendant Defenses: Unknown

Holding: Motion to dismiss punitive damages claim by defendant granted for defendant

 

This is a pre-trial decision and should not be relied upon for a firm statement about the law in Tennessee as far as dismissing claims prior to trial.

The plaintiff was a boy who went to a Boy Scout Summer Camp in Tennessee. While mountain biking at the camp his brakes allegedly did not work, and he rode off the trail and hit a tree.

The plaintiff sued for a multitude of claims, including an allegation that punitive damages were being requested. The defendant filed this motion prior to trial to eliminate the claim for punitive damages.

Summary of the case

The court looked at Tennessee’s law concerning punitive damages. Under Tennessee’s law, punitive damages are only available for “only the most egregious of wrongs.” “Accordingly, under Tennessee’s law, “a court may … award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.”

Punitive damages are not available for gross negligence. To receive punitive damages under Tennessee’s law:

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.

In this case, the complaint did not make any allegations that fit within the required definitions. Consequently, the part of the complaint demanding punitive damages was dismissed.

So Now What?

This was a pre-trial motion that was of interest; however, this is not a final decision in the case and could be overturned by another court after the trial on this case.

Tennessee has higher requirements for most other states to ask for and receive punitive damages. Consequently, the defendant was able to dismiss that part of the complaint in advance of trial.

It never hurts to know the specifics of what is required to prove damages above normal damages. That knowledge can help keep you safe.

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

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

N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually, v. Sequoyah Council, Inc., Boy Scouts of America

NO. 2:11-CV-171

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

2012 U.S. Dist. LEXIS 87452

April 30, 2012, Filed

COUNSEL: [*1] For Jorge Hernandez, Individually Minor N. H, Elizabeth Hernandez, Individually Minor N. H., Plaintiffs: Thomas C Jessee, Jessee & Jessee, Johnson City, TN.

For Sequoyah Council, Inc., Boy Scouts of America, defendant: Suzanne S Cook, LEAD ATTORNEY, Hunter, Smith & Davis – Johnson City, Johnson City, TN.

JUDGES: J. RONNIE GREER, UNITED STATES DISTRICT JUDGE.

OPINION BY: J. RONNIE GREER

OPINION

ORDER

This personal injury action is before the Court pursuant to 28 U.S.C. § 1332. Pending before the Court is the defendant’s motion to dismiss plaintiffs’ demand for punitive damages pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. 5]. For the reasons which follow, the motion is GRANTED.

FACTS

The following facts are taken from plaintiffs’ Complaint and are assumed true for the purposes of defendant’s motion to dismiss. In June 2010, the minor plaintiff was registered by his parents to participate in a summer camp owned and operated by defendant in an attempt to earn merit badges towards becoming an Eagle Scout. On June 15, 2010, while at this summer camp, the minor plaintiff participated in a mountain biking activity/class sponsored by defendant. During the course of his participation, the minor plaintiff discovered [*2] that the brakes on his bike were not working, and he rode off the trail and struck a tree, sustaining severe bodily injuries.

The defendant was allegedly negligent as follows: (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.” [Doc. 1 at ¶19]. The Complaint also states that “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff.” Id. at ¶20. The Complaint contains a number of additional paragraphs that allege how the “negligence” of the defendant was the proximate cause of various other consequences. Id. at ¶¶22-27. The final paragraph of the Complaint states, “As a proximate . . . result of the negligence of Defendant, the Plaintiffs have been damaged . . . in an amount not to exceed $600,000.00 actual damages. As a [*3] direct and proximate result of the gross negligence of the Defendant, the Plaintiffs believe they are entitled to recover punitive damages . . ..” Id. at ¶28 (emphasis added).

Defendant has filed a motion asking the Court to dismiss the Complaint so far as punitive damages are concerned on the ground that the plaintiffs have failed to adequately plead a factual basis that would provide for the award of punitive damages.

LEGAL STANDARD

[HN1] Fed.R.Civ.P. 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than just labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

[HN2] “To survive a motion to dismiss, a complaint must contain sufficient factual matter, [*4] accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff’s allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984).

ANALYSIS

[HN3] “In a diversity action . . . the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law.” Browning-Ferris Indus. of Vt., Inc., v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Thus, to survive a motion to dismiss, a claim for punitive damages must be plausible as defined by Tennessee law.

[HN4] The Tennessee Supreme Court has held that punitive damages are available in cases involving “only the most egregious of wrongs.” [*5] Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). Accordingly, under Tennessee law, “a court may . . . award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” Id. 1

1 [HN5] The Tennessee Supreme Court has expressly stated that punitive damages are not available for “gross negligence.” Hodges, 833 S.W.2d at 900-901. However, the legal sufficiency of a complaint does not depend upon whether or not the plaintiffs invoked the right “magic words,” but instead whether the facts as alleged may plausibly be construed to state a claim that meets the standards of Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)(clarifying the dismissal standard under Rule 12(b)(6) and noting that “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era”). Consequently, the Court will construe the plaintiffs’ allegations of “gross negligence” in paragraph 28 of the Complaint as an allegation that defendant behaved “recklessly.”

Here, defendant asserts that “Although the Complaint cursorily mentions ‘gross negligence’ one time in a conclusory manner, the Complaint [*6] lacks any facts or allegations that aver an utter lack of concern or reckless disregard such that a conscious indifference can even be implied . . ..” [Doc. 6 at 3]. The plaintiff counters that “The plaintiff in this case has identified specific detailed acts of negligence on the part of the defendant and . . . [consequently] it is clear that a jury could decide that the actions of the defendant were grossly negligent.” [Doc. 7 at 2].

The Court has reviewed the Complaint and agrees with the defendant. [HN6] “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at 678. Such is the case with the Complaint in this matter. The entirety of the Complaint is dedicated to explaining why the defendant was negligent. However, there is no separate mention made regarding why the defendant was reckless. To be sure, the plaintiff could argue that by alleging in multiple paragraphs that defendant “knew, or should have known,” of certain unsafe conditions, he has sufficiently pled both negligence and recklessness. However, plaintiff would be mistaken in asserting such [*7] argument.

[HN7] Under Tennessee law, “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.” Hodges, 833 S.W.2d at 901. An examination of the Complaint reveals that plaintiffs have failed to allege how or why the defendant was aware of the deficiencies in the bicycle and the biking trail. This is fatal to plaintiffs’ claim for punitive damages. See Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 445 (6th Cir. 2012) ( [HN8] “To survive a motion to dismiss . . . allegations must be specific enough to establish the relevant ‘who, what, where, when, how or why.”); See also, Tucker v. Bernzomatic, 2010 U.S. Dist. LEXIS 43771, 2010 WL 1838704 (E.D.Pa. May 4, 2010) (Dismissing punitive damages claim in products liability action because consumer did not allege how or why manufacturer knew that its product was dangerous).

In light of the foregoing, the Court concludes that the Complaint does not contain sufficient factual content to allow the Court to draw the reasonable inference that defendant has acted recklessly. [*8] See Iqbal, 556 U.S. at 678. The punitive damages claim will therefore be dismissed.

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss plaintiffs’ demand for punitive damages [Doc. 5] is GRANTED and plaintiffs’ demand for punitive damages is DISMISSED.

ENTER:

/s/ J. RONNIE GREER

UNITED STATES DISTRICT JUDGE

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If you agree to the rules you have to follow the rules

Sanctioning body said you must do XYZ, which creates a standard of care you will be judged by

McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)

Plaintiff: Arthur Mcdonough and Linda Mcdonough, in their own right and as Parents of Bradley Alan Mcdonough, deceased

Defendant: National Off-Road Bicycle Assn. (NORBA), U.S. Cycling Fed., and Delaware Trail Spinners

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the plaintiff, sent back for trial

 

In this case the deceased was racing in an Off Road [Mountain] Bike Race when he died of dehydration. The lawsuit was started by his parents against the organizations that sanctioned the race, NORBA, the race, and the race course owner. The suit alleged failure of the standards created by the sanctioning organization even though race had agreed to follow the standards.

The decedent died racing in a mountain bike race after being discovered along the race course unconscious. This was the deceased second NORBA race. There were no water or aid stations along the course. However the riders had access to their own water bottles on their bikes.

The plaintiffs argued there was no way for a beginner to access their water bottle on the course because it was so difficult unless they stopped riding. The only water available was what the participants brought with them. No physician, ambulance or emergency medical personnel at the race.

As a sanctioned race, NORBA provided defendant Delaware Trail Spinners the race organizer, with a “Pre-Event Planning Checklist.” In order to host the event the defendant Trail Spinners had to go through the checklist and agree to abide or provide the items on the checklist. The race director for Trail Spinners specifically stated that “there would be an ambulance on site and adequate water or fluids for participants and spectators before, during, and after the race.” NORBA also sends an official who according to the checklist will confirm issues and sign off on the checklist. In this case the NORBA representative did not sign off on the checklist.

To be able to race participants had to sign a one day membership to NORBA and sign a release. The court pointed out that no one explained the release to the participants. The back of the trial membership form said that everyone had to carry 8 ounces of water and that if the race exceeded sixty minutes NORBA would provide water to the race participants.

Before the race began one of the Trail Spinners race organizers, spoke to the 80 to 100 race participants. He told them without a bullhorn or PA system that there was no ambulance on site, but that one could be called if needed. He also told the contestants to be “”careful, . . . take their time” and not to “ride over your head, which means going beyond your ability.” McGroerty also told them to “watch their bodies, make sure they didn’t push themselves too hard because it was hot out.” Finally, he told them that “if they felt dizzy or nauseous, to back off, stay cool and keep from going too hard.”

The deceased was found after a search in an unconscious state off the trail. The friend called 911 from his cell phone and went and got assistance back at the race headquarters.  When he arrived back with two people to help him they started CPR. The deceased bike still had a water bottle with water in it. The deceased died of heat stroke fifteen days later.

Summary of the case

Delaware law, the state where the race was held, was the law applied to this case. The defendants filed a motion for summary judgment based on the release and the defense of primary assumption of the risk. Delaware merged secondary assumption of risk with comparative negligence, however Primary or express (written) assumption of risk is still a defense. The court defined the differences as:

Primary assumption, sometimes referred to as express assumption of risk, “involves the express consent to relieve the defendant of any obligation of care while secondary assumption [of risk] consists of voluntarily encountering a known unreasonable risk which is out of proportion to the advantage gained.”

The court quickly concluded that the summary judgment granted by the lower court should be overturned. The court felt that

…genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race.

The court reviewed the record of the case pointing out every place where the requirements set forth by the sanctioning body, NOBA were not met by the race. (Whether those issues would have made a difference was never discussed.)

The court then shifted and wrote that because it could be argued that the deceased did not understand the release was a waiver of the risks that it was a material fact, which voided the release.

In the present case, plaintiffs assert that a genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race. The court agrees.

The court arrived at this decision by stating the law and then interpreting it differently than all other courts had interpreted the law.

However, for the release to be effective, it must appear that the plaintiff understood the terms of the agreement, or that a reasonable person in his position would have understood the terms.

Thus, the understanding of the parties when the release was executed, in light of all the facts and circumstances, is paramount in determining whether the language is clear and unambiguous.

If you don’t understand what you are signing, then the release was not clear and unambiguous. I know of no other case that has argued that before.

So Now What?

The obvious issue here was the written documentation that required water and first aid and the documentation given to the deceased that stated water would be available where not available. Every race, camp, organization needs to develop a checklist or risk management plan so they can operate. However, as in this case, failing to follow any checklist was enough to lose the defenses of Primary Assumption of the Risk and Release and send your case to trial.

ØIf it is written down and you agree to it, you must follow it.

ØIf it is written down by an organization that you belong to or are sanctioned by, then you must agree to it.

ØIf an organization that you belong to writes a standard, then you must meet the standard!

The court then looked at these facts and was not happy. It then applied the facts in such a way that the court could find the release invalid and send it back for trial.

To see other cases where the defendant lost because they violated their trade associations standard of care see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp                                                                             http://rec-law.us/zmKgoi

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp                                                   http://rec-law.us/y7QlJ3

Marketing Makes Promises that Risk Management (or in this case an insurance policy) must pay for.                                                       http://rec-law.us/14MebM4

Plaintiff uses standards of ACCT to cost defendant $4.7 millionhttp://rec-law.us/11UdbEn

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent                                           http://rec-law.us/wszt7N

To Read other articles about standards see:

Can a Standard Impeded Inventions?                http://rec-law.us/yOcca2

Playgrounds will be flat soon                             http://rec-law.us/zGC4DZ

Staying Current                                                  http://rec-law.us/ArdsVk

Stop Feuding, I doubt, move forward anyway, I think you can.   http://rec-law.us/P763zu

This is how a standard in the industry changes          http://rec-law.us/w76X3K

Words: You cannot change a legal definition    http://rec-law.us/AbJ540

 

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McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)

McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)

Arthur Mcdonough and Linda Mcdonough, in their own right and as Parents of Bradley Alan Mcdonough, deceased, and Arthur Mcdonough in his own right and as Administrator of the Estate of Bradley Alan Mcdonough, Plaintiffs, v. National Off-Road Bicycle Assn. (NORBA), U.S. Cycling Fed., and Delaware Trail Spinners, Defendants.

C.A. No. 95-504-SLR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

1997 U.S. Dist. LEXIS 8036

June 2, 1997, Decided

NOTICE: [*1] FOR ELECTRONIC PUBLICATION ONLY

DISPOSITION: Defendants’ motion for summary judgment denied.

COUNSEL: For plaintiffs: Donald Eilhu Evans, Esquire, Wilmington, Delaware. Of Counsel: Edwin F. McCoy, Esquire., Philadelphia, Pennsylvania.

For defendants: Mason E. Turner, Esquire, of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Delaware.

JUDGES: Sue L. Robinson, District Judge

OPINION BY: Sue L. Robinson

OPINION

MEMORANDUM OPINION

Date: June 2, 1997

Wilmington, Delaware

ROBINSON, District Judge

I. INTRODUCTION

This case is a wrongful death/survival action filed as a result of Bradley McDonough’s (“McDonough”) death on August 30, 1993. Plaintiffs are Arthur and Linda McDonough, the parents of the decedent (collectively referred to as “plaintiffs”). Defendants are The National Off-Road Bicycle Association (“NORBA”), United States Cycling Federation (“Federation”), and the Delaware Trail Spinners (“Trail Spinners”). The court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Presently before the court is defendants’ motion for summary judgment. (D.I. 66) For the following reasons, defendants’ motion for summary judgment shall be denied.

II. BACKGROUND

[*2] In the summer of 1993, Bradley McDonough developed an interest in off-road bicycle competition. In the spring or early summer of 1993, McDonough acquired an off-road bike (also known as a mountain bike) and rode with his college friends, Randall Blaker (“Blaker”), Michael Odenwald (“Odenwald”), and Kenny Steidle (“Steidle”). (D.I. 71 at A51-A52) On August 8, 1993, McDonough, Blaker, Odenwald and Steidle participated in a NORBA sanctioned event in Windham, New York (“Windham race”). (D.I. 71 at A51) In all NORBA events, participants are required to obtain a permanent membership or a one-day trial membership. The application for the one-day membership contains a section entitled “Agreement and Release of Liability” (“release”). (D.I. 68 at A3)

On the day of the Windham race, McDonough, along with his friends, paid for a one-day trial membership and signed the release. (D.I. 71 at A 54-55; D.I. 68 at A5) In signing the release, Blaker stated that he did not really read it, but simply skimmed through it. (D.I. 71 at A54) Blaker stated that he assumed it was a release “to some degree and we understood that we were involved in a sport.” (D.I. 71 at A54-A55)

The Windham race course was [*3] basically a two lap course. (D.I. 71 at A56) McDonough and Steidle quit after one lap because they were tired. (D.I. 71 at A56) Blaker, who was behind McDonough and Steidle, also stopped after the first lap since his friends had stopped. (D.I. 71 at A56) Odenwald did not complete the race either, because his bicycle broke. (D.I. 71 at A56) All four friends had water bottles on their bikes during the race. (D.I. 71 at A54)

On August 15, 1993, McDonough and Blaker participated in another NORBA sanctioned event in Delaware, called the C & D Canal Classic (“C & D race”). (D.I. 84 at A109) The C & D race consisted of three race levels: (1) Beginners’; (2) Sport; and (3) Pro/Expert. (D.I. 71 at A22) McDonough and Blaker both entered the Beginners’ level. (D.I. 71 at A23 and A59) The Beginners’ course was a 14 mile course “over the local terrain which included steep and gradual hills, open gravel and dirt roads, and wooded trails.” (D.I. 71 at A23) The Sport and Pro/Expert courses also used the same 14 miles designated for the Beginners’ course. (D.I. 71 at A38)

The Beginners’ course was difficult because of its layout. (D.I. 71 at A38) The terrain on the Beginners’ course made it difficult [*4] for riders to access their own water without stopping. (D.I. 71 at A38) Some areas on the course were smoothed out so that riders could stop or ride slowly and access their water bottles. (D.I. 71 at 38) The course, however, did not have any neutral area where water was given out to the race contestants. (D.I. 71 at A38) The only water the race contestants could drink was the water that they brought themselves. (D.I. 71 at A38) No physician was present at the race. (D.I. 71 at A24) There was neither an ambulance nor emergency medical personnel present at the race site. (D.I. 71 at A23) Denise Dowd (“Dowd”), another participant in the Beginners’ level, stated that the course was “difficult due to the heat and humidity and layout.” (D.I. 71 at A87) Although Dowd is an avid biker and had participated in approximately 20 mountain bike races, it took her over an hour and fifteen minutes to complete the course. (D.I. 71 at A87)

Defendant Trail Spinners, a NORBA club member, received sanctioning from NORBA to promote the C & D race. In order to receive sanctioning, defendant Trail Spinners had to complete a “Pre-Event Planning Checklist” (“Checklist”) provided by NORBA. (D.I. 84 at A109-A110) [*5] The Checklist contains several questions relating to the safety precautions taken for the event. Trail Spinners, through its race director William Bowen (“Bowen”), represented on the Checklist that there would be, inter alia, emergency medical assistance on site and adequate water for the participants and spectators. (D.I. 84 at A110) Bowen specifically represented that there would be an ambulance on site and adequate water or fluids for participants and spectators before, during, and after the race. (D.I. 84 at A110) The Checklist also provided that: “A NORBA Official must be present at your event. The NORBA Official will complete their portion of the checklist before allowing the event to proceed.” (D.I. 84 at A109) The Checklist identifies Elizabeth Small (“Small”) as the NORBA Official. Small, however, did not complete her portion of the Checklist and did not sign it. (D.I. 84 at A110)

When McDonough arrived at the race site, he again paid for a one-day trial membership and signed the release. (D.I. 68 at A7) Blaker also paid for a one-day trial membership and signed the release. (D.I. 71 at A59) No one at the race site explained the documents to the race participants. (D.I. [*6] 71 at A41) The release provides in part:

I acknowledge that cycling is an inherently dangerous sport in which I participate at my own risk and that NORBA is a non-profit corporation formed to advance the sport of cycling, the efforts of which directly benefit me. In consideration of the agreement with NORBA to issue an amateur license to me, hereby on behalf of myself, my heirs, assigns and personal representatives, I release and forever discharge NORBA and the United States Cycling Federation, its employees, agents, members, sponsors, promoters, and affiliates from any and all liability, claim, loss, cost or expense, and waive any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any action or omission to act of any such person or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, in which I may participate as a rider, team member or spectator.

(D.I. 68 at A5) On the back of the trial membership and release certain “Racing Regulations” are set forth. (D.I. 68 at A8). At section 4.6, NORBA recommends that each participant carry “at least [*7] 8 ounces of water.” (D.I. 68 at A8) Section 5.6 provides that neutral water will be provided for any race that exceeds 60 minutes in length. (D.I. 68 at A8)

According to James McGroerty (“McGroerty”), the President, Officer, and Co-Founder of Trail Spinners, it is commonly understood by those who participate in races that they are required to sign the release. (D.I. 71 at A45) McGroerty stated that: “Most of [his] friends who are avid racers look at the form as you are signing this paper basically saying yes, I am doing this race at my own risk on the course. If I get hurt, it’s my own fault. It’s basically the way we look at it when we sign these forms and compete in an event.” (D.I. 71 at A45) Dowd, who also signed the release that day, stated that she understood that the release was intended to protect the defendants from liability. (D.I. 71 at A89) Dowd, however, did not believe that the release was intended to relieve the defendants from providing “common sense safety precautions, particularly on site trained medical personnel with an ambulance.” (D.I. 71 at A89) Dowd stated that she would not have signed the release if she had known there was no medical assistance immediately [*8] available. (D.I. 71 at A89)

Before the start of the race, McGroerty addressed the race contestants from the hood of his car. (D.I. 71 at A38 and A42) He addressed the participants without a bullhorn. (D.I. 71 at A37) There were approximately 80 to 100 total participants in the group that raced with McDonough and Blaker. (D.I. 71 at A37 and A62) McGroerty told the race contestants that there was no ambulance on site, but that one could be called. (D.I. 71 at A42) McGroerty did not specifically warn the participants about heat exhaustion. (D.I. 71 at A42) Instead, McGroerty told the contestants to be “careful, . . . take their time” and not to “ride over your head, which means going beyond your ability.” (D.I. 71 at A42) McGroerty also told them to “watch their bodies, make sure they didn’t push themselves too hard because it was hot out.” (D.I. 71 at A42) Finally, he told them that “if they felt dizzy or nauseous, to back off, stay cool and keep from going too hard.” (D.I. 71 at A42) McGroerty did not get any questions after he addressed the participants. (D.I. 71 at A37) McGroerty testified that he does not have Red Cross, CPR or EMT certification of any kind. (D.I. 71 at A43) He [*9] also does not know the signs of exertional heat stroke. (D.I. 71 at A43)

At approximately 9:00 a.m., McDonough and Blaker left the starting line with other contestants. (D.I. 71 at A23 and A62) Both McDonough and Blaker had brought water bottles with them. (D.I. 71 at A61) The temperature on that day was “extremely hot [] with high humidity.” (D.I. 71 at A85) Although McDonough and Blaker began the race together, they were separated because Blaker had a flat tire. (D.I. 71 at A63) After Blaker changed his flat tire, he continued in the race and eventually completed the course. (D.I. 71 at A64) McDonough, however, did not. (D.I. 71 at A64)

McGroerty found McDonough when he went to investigate whether some participants had accidently or deliberately missed the course markings. (D.I. 71 at A44) McGroerty first saw McDonough’s bike. As he approached the bike, he saw McDonough who was about five or six feet from his bike. (D.I. 71 at A44) According to McGroerty, other participants would not have seen McDonough since he was off to the side of the course, but could have seen his bike. (D.I. 71 at A44)

When McGroerty found McDonough, he was on the ground lying on his side and his breathing [*10] was heavy and labored. (D.I. 71 at A44) McDonough appeared to have trouble breathing and was not responsive. (D.I. 71 at A44) According to McGroerty, McDonough appeared to be unconscious. (D.I. 71 at A44) Based on these observations, McGroerty called 911 from his cellular phone. (D.I. 71 at A44) After calling 911, McGroerty went to the start/finish area and sought assistance. (D.I. 71 at A42 and A87) He led two people back to where McDonough was found and they administered CPR until an ambulance arrived. (D.I. 71 at A42 and A87-A88) According to Dowd, one of the two people who administered CPR, no one gave McDonough any water before the ambulance arrived because no water was provided. (D.I. 71 at A88) Blaker, however, testified that when McDonough’s bike was brought back from where McDonough had been found, it still had a water bottle attached to it that was half full. (D.I. 71 at A65)

Dowd stated that the race was “generally disorganized” and that there was a lot of confusion. (D.I. 71 at A86) According to Dowd, the race was delayed for 30 minutes and no maps of the course were given to the participants or posted. (D.I. 71 at A87-A88) Small, the NORBA official on duty at the race, [*11] reported to NORBA that the “race director [Bowen] was ‘light’ in the emergency medical area.” (D.I. 84 at A110) Small also reported that no course maps were available, but that the course was adequately marked. (D.I. 84 at A110) Overall, Small stated that mistakes were made since no water was provided, no emergency medical personnel were on site, and the course was too long. (D.I. 84 at A114)

Dowd stated that it took her about 5 minutes to reach McDonough and that the ambulance arrived 10 to 15 minutes after she began administering CPR. (D.I. 71 at A88) When the ambulance arrived, McDonough was treated by paramedics and helicoptered to the Medical Center of Delaware in Christiana, Delaware. (D.I. 71 at A23) Although hospitalized, McDonough died of heat stroke on August 30, 1993. (D.I. 70 at 1)

III. DISCUSSION

1. Summary Judgment Standard

[HN1] Summary judgment should be granted only if a court concludes that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). [HN2] The moving party bears the burden of proving that no genuine issue of material fact is in dispute. Matsushita Elec. Indus. [*12] Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Once the moving party has carried its initial burden, the nonmoving party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Id. at 587. “Facts that could alter the outcome are ‘material,’ and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.” Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995) (citations omitted). If the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The mere existence of some evidence in support of the nonmoving party will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that factual issue. Anderson v. Liberty Lobby, [*13] Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). This court, however, must “view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995) (citation omitted).

2. Express or Primary Assumption of Risk

[HN3] Since Delaware adopted a comparative negligence statute, 1 it has become necessary to distinguish between primary and secondary assumption of the risk. Koutoufaris v. Dick, 604 A.2d 390, 397 (Del. 1992); cf. Bib v. Merlonghi, 252 A.2d 548, 550 (Del. 1969) Primary assumption, sometimes referred to as express assumption of risk, “involves the express consent to relieve the defendant of any obligation of care while secondary assumption [of risk] consists of voluntarily encountering a known unreasonable risk which is out of proportion to the advantage gained.” Koutoufaris, 604 A.2d at 397-398. With the adoption of the comparative negligence statute in Delaware, secondary assumption of risk became “totally subsumed within comparative negligence.” Id. at 398. Primary assumption of risk, however, still exists as [*14] a complete bar to recovery. See id. (stating that primary assumption of risk “might well constitute a complete bar to recover, as a matter of law, even in a comparative negligence jurisdiction”) (citation omitted); see also Patton v. Simone, 626 A.2d 844, 852 (Del. Super. Ct. 1992); see also Staats v. Lawrence, 576 A.2d 663, 668 (Del. Super. Ct. 1990).

1 In 1984, Delaware adopted a modified comparative negligence statute, which allows a jury to apportion liability where both parties are negligent only if the plaintiff’s negligence is less than fifty percent. 10 Del. C. § 8132 (1984).

Defendants argue that plaintiffs’ action is barred, as a matter of law, because McDonough expressly assumed the risks inherent in an off-road bicycle race when he signed the release. Defendants contend that the release, in plain and unambiguous language, is intended to protect defendants from all liability arising out of any hazards encountered in an off-road bike race. (D.I. 78 at 9) Defendants assert that McDonough, [*15] as a college graduate and former participant in a NORBA event, must have had an understanding of the these inherent dangers when he signed the release. As further support, defendants note that McDonough signed an identical Agreement and Release just one week prior to the C & D race. Based on these facts, defendants assert that summary judgment is appropriate.

In considering the facts and making all reasonable inferences in plaintiffs’ favor, the court finds to the contrary. [HN4] A release will not be set aside if the language is clear and unambiguous. Hallman v. Dover Downs, Inc., 1986 U.S. Dist. LEXIS 15708, Civ. A. No. 85-618 CMW, 1986 WL 535 at *2 (D. Del., Dec. 31, 1986) (citing Chakov v. Outboard Marine Corp., 429 A.2d 984, 985 (Del. 1981); see Bennett v. United States Cycling Federation, 193 Cal. App. 3d 1485, 239 Cal. Rptr. 55, 58 (Cal. Ct. App. 1987). [HN5] Where the language of a release is ambiguous, it must be construed strongly against the party who drafted it. Hallman, 1986 WL 535 at *2; Bennett, 239 Cal. Rptr. at 58. [HN6] In an express agreement to assume a risk, a plaintiff may undertake to assume all risks of a particular relation or situation, whether they are known or unknown to him. [*16] Restatement (Second) of Torts, § 496D, cmt. a, (1965). However, for the release to be effective, it must appear that the plaintiff understood the terms of the agreement, or that a reasonable person in his position would have understood the terms. Bennett, 239 Cal. Rptr. at 58. As the Bennett court stated, “there is little doubt that a subscriber of a bicycle release . . . must be held to have waived any hazards relating to bicycle racing that are obvious or that might reasonably have been foreseen.” Id. These hazards include “collisions with other riders, negligently maintained equipment, bicycles which were unfit for racing but nevertheless passed by organizers, [and] bad road surfaces . . . .” Id. Thus, the understanding of the parties when the release was executed, in light of all the facts and circumstances, is paramount in determining whether the language is clear and unambiguous. Hallman, 1986 WL 535 at *2. The evidence must establish that the parties intended the release to apply to the particular conduct of the defendant which has caused the harm. Restatement (Second) of Torts, § 496B, cmt. d, (1965).

In the present case, plaintiffs assert that [*17] a genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race. The court agrees.

IV. CONCLUSION

For the reasons stated above, the court shall deny defendants’ motion for summary judgment. An order will issue consistent with this memorandum opinion.

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City of Lakewood is hosting clinics for beginner, intermediate and advanced women mountain bikers

The City of Lakewood Colorado is hosting clinics for beginner, intermediate and advanced women mountain bikers taught by a woman biker.

I thought, “Well, maybe some women road bikers would like to become “switch hitters?”

In addition there are also private lessons available for both women and men.

The information sheet about these clinics from the City’s spring catalog.

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1 of 1 File(s)

pdf16x16.gifWomen MTB Lessons.pdf

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Hero Kit Portable Bike Repair

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This kit, a retail value of over $75, contains step-by-step instructions, tools, and materials to help you with the most common (and many uncommon) issues you might encounter on your mountain bike. This first-aid kit for mountain bikes is intended to empower all levels of mountain bikers to fix mechanical problems that can arise on any ride, and to get back to the trailhead or home safely.

Contents:

-24 Page, Waterproof Field Repair Instruction Manual with Color Photos and Step by Step Instructions

-12 Function Multi Tool w/Chain tool

-Planet Bike Tire Levers w/ tire patch kit

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

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.

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Copyright 2012 Recreation Law (720) Edit Law

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

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

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

N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually, v. Sequoyah Council, Inc., Boy Scouts of America

NO. 2:11-CV-171

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

2012 U.S. Dist. LEXIS 87452

April 30, 2012, Filed

CORE TERMS: punitive damages, trail, gross negligence, recklessly, survive, failed to properly, bike, damages claim, reasonable inference, entitlement to relief’, plausibility, punitive, reckless, biking, summer camp, proximate cause, proximate result, mountain

COUNSEL: [*1] For Jorge Hernandez, Individually Minor N. H, Elizabeth Hernandez, Individually Minor N. H., Plaintiffs: Thomas C Jessee, Jessee & Jessee, Johnson City, TN.

For Sequoyah Council, Inc., Boy Scouts of America, defendant: Suzanne S Cook, LEAD ATTORNEY, Hunter, Smith & Davis – Johnson City, Johnson City, TN.

JUDGES: J. RONNIE GREER, UNITED STATES DISTRICT JUDGE.

OPINION BY: J. RONNIE GREER

OPINION

ORDER

This personal injury action is before the Court pursuant to 28 U.S.C. § 1332. Pending before the Court is the defendant’s motion to dismiss plaintiffs’ demand for punitive damages pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. 5]. For the reasons which follow, the motion is GRANTED.

FACTS

The following facts are taken from plaintiffs’ Complaint and are assumed true for the purposes of defendant’s motion to dismiss. In June 2010, the minor plaintiff was registered by his parents to participate in a summer camp owned and operated by defendant in an attempt to earn merit badges towards becoming an Eagle Scout. On June 15, 2010, while at this summer camp, the minor plaintiff participated in a mountain biking activity/class sponsored by defendant. During the course of his participation, the minor plaintiff discovered [*2] that the brakes on his bike were not working, and he rode off the trail and struck a tree, sustaining severe bodily injuries.

The defendant was allegedly negligent as follows: (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.” [Doc. 1 at ¶19]. The Complaint also states that “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff.” Id. at ¶20. The Complaint contains a number of additional paragraphs that allege how the “negligence” of the defendant was the proximate cause of various other consequences. Id. at ¶¶22-27. The final paragraph of the Complaint states, “As a proximate . . . result of the negligence of Defendant, the Plaintiffs have been damaged . . . in an amount not to exceed $600,000.00 actual damages. As a [*3] direct and proximate result of the gross negligence of the Defendant, the Plaintiffs believe they are entitled to recover punitive damages . . ..” Id. at ¶28 (emphasis added).

Defendant has filed a motion asking the Court to dismiss the Complaint so far as punitive damages are concerned on the ground that the plaintiffs have failed to adequately plead a factual basis that would provide for the award of punitive damages.

LEGAL STANDARD

Fed.R.Civ.P. 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than just labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, [*4] accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff’s allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984).

ANALYSIS

“In a diversity action . . . the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law.” Browning-Ferris Indus. of Vt., Inc., v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Thus, to survive a motion to dismiss, a claim for punitive damages must be plausible as defined by Tennessee law.

The Tennessee Supreme Court has held that punitive damages are available in cases involving “only the most egregious of wrongs.” [*5] Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). Accordingly, under Tennessee law, “a court may . . . award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” Id. 1

1 The Tennessee Supreme Court has expressly stated that punitive damages are not available for “gross negligence.” Hodges, 833 S.W.2d at 900-901. However, the legal sufficiency of a complaint does not depend upon whether or not the plaintiffs invoked the right “magic words,” but instead whether the facts as alleged may plausibly be construed to state a claim that meets the standards of Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)(clarifying the dismissal standard under Rule 12(b)(6) and noting that “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era”). Consequently, the Court will construe the plaintiffs’ allegations of “gross negligence” in paragraph 28 of the Complaint as an allegation that defendant behaved “recklessly.”

Here, defendant asserts that “Although the Complaint cursorily mentions ‘gross negligence’ one time in a conclusory manner, the Complaint [*6] lacks any facts or allegations that aver an utter lack of concern or reckless disregard such that a conscious indifference can even be implied . . ..” [Doc. 6 at 3]. The plaintiff counters that “The plaintiff in this case has identified specific detailed acts of negligence on the part of the defendant and . . . [consequently] it is clear that a jury could decide that the actions of the defendant were grossly negligent.” [Doc. 7 at 2].

The Court has reviewed the Complaint and agrees with the defendant. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at 678. Such is the case with the Complaint in this matter. The entirety of the Complaint is dedicated to explaining why the defendant was negligent. However, there is no separate mention made regarding why the defendant was reckless. To be sure, the plaintiff could argue that by alleging in multiple paragraphs that defendant “knew, or should have known,” of certain unsafe conditions, he has sufficiently pled both negligence and recklessness. However, plaintiff would be mistaken in asserting such [*7] argument.

Under Tennessee law, “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.” Hodges, 833 S.W.2d at 901. An examination of the Complaint reveals that plaintiffs have failed to allege how or why the defendant was aware of the deficiencies in the bicycle and the biking trail. This is fatal to plaintiffs’ claim for punitive damages. See Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 445 (6th Cir. 2012) (“To survive a motion to dismiss . . . allegations must be specific enough to establish the relevant ‘who, what, where, when, how or why.”); See also, Tucker v. Bernzomatic, 2010 U.S. Dist. LEXIS 43771, 2010 WL 1838704 (E.D.Pa. May 4, 2010) (Dismissing punitive damages claim in products liability action because consumer did not allege how or why manufacturer knew that its product was dangerous).

In light of the foregoing, the Court concludes that the Complaint does not contain sufficient factual content to allow the Court to draw the reasonable inference that defendant has acted recklessly. [*8] See Iqbal, 556 U.S. at 678. The punitive damages claim will therefore be dismissed.

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss plaintiffs’ demand for punitive damages [Doc. 5] is GRANTED and plaintiffs’ demand for punitive damages is DISMISSED.

ENTER:

/s/ J. RONNIE GREER

UNITED STATES DISTRICT JUDGE

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