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

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

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

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

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

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

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

Defendant Defenses: Release

Holding: for the Defendant

Year: 2018

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

What do you think? Leave a comment.

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UIAA Newsletter_5 July 2018: Preservation of Natural Rock, style=’font-size:11.5pt;font-family:”Georgia”,serif;color:black’>2018 UIAA Rock Climbing Festival Award, and More

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The UIAA newsletter.
5 July 2018
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The UIAA Newsletter. 5 July 2018

In Brief

The 2018 UIAA Respect the Mountains Series commences this weekend with two events taking place in Italy. The application process for the UIAA’s other annual core project in sustainability – the Mountain Protection Award – closed on 30 June with over 20 project submissions received from 17 countries. At both the 2018 Sustainable Summits Conference and Outdoor2018, the UIAA played a key role in discussions related to the future of the mountains. UIAA member federations, delegates and partners are informed that the Calling Notice for the 2018 UIAA General Assembly was published on 30 June. Registration opens next week.

Next Newsletter – Week of 23 July.
Key topics: 2018 UIAA Rock Climbing Festival Award, UIAA Safety Standards

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NATURAL ROCK FOR ADVENTURE CLIMBING:
FRESH CONCERNSAs part of its commitment to raising awareness about the importance of preserving natural rock and to reducing indiscriminate bolting, the UIAA is sharing an article from Norwegian climber Robert Caspersen concerning an expedition made in late 2017 with three friends to climb the high east face of Gessnertind (3020m) in Antarctica.

The article was brought to the UIAA’s attention by former UIAA Management Committee member and legendary mountaineer Doug Scott, who spearheaded the UIAA’s seminal paper on ‘UIAA Recommendations on the Preservation of Natural Rock for Adventure Climbing’ in 2014. The paper evaluated the history and appeal of different forms of rock climbing, and considered earlier attitudes to fixed gear. It also considered how the case for adventure climbing can be re-stated more effectively and offered guidance to UIAA member federations in developing countries on how to sustain the balance between sport and adventure climbing

“Thearticle written by Robert Caspersen is exceptionally inspiring and cannot fail, I am sure, to move people towards at least thinking of restricting the use of the bolt,” explains Scott. Full Story.

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LAUNCH:
2019 UIAA ICE CLIMBING WORLD TOUR CALENDARThe UIAA is delighted to confirm the calendar for the 2019 Ice Climbing World Tour. Comprising a comprehensive and impressive programme of events, the 2019 calendar is the biggest to date and includes six World Cup events, four European Cups, a World Championships, a World Combined Championships and a World Youth Championships. The World Tour will visit ten different countries on three continents and features two events taking place in major cities – Moscow and Denver. Full story.

Athletes, officials and member federations are informed that the Competition Regulations for the 2019 UIAA Ice Climbing World Tour are also available. Full story.

LATEST NEWS FROM
UIAA MEMBER FEDERATIONS & PARTNERSShare your news with the UIAA by emailing news

ALPINE CLUB OF CANADA
Mountain Science, Climate Change & Education
2018 State of the Mountains Report

ALPINE CLUB OF PAKISTAN
The Alpine Club of Pakistan have confirmed Mr. Abu Zafar Sadiq as President and Mr.Karar Haidri as Secretary

AMERICAN ALPINE CLUB
Lending Climbers A Stronger Voice

ASIAN ALPINE ASSOCIATES
Latest newsletter now available

BRITISH MOUNTAINEERING COUNCIL
Lynn Robinson becomes the BMC’s first-ever female president.

DEUTSCHER ALPENVEREIN, DAV
Climbing Safety Video Series Now Available

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2018 UIAA MOUNTAIN PROTECTION AWARD:
APPLICATION CLOSESThe UIAA Mountain Protection Commission confirms that as of 30 June, the application process for the 2018 UIAA Mountain Protection Award is now closed. The sixth edition of the Award has welcomed over 20 applicants from some 17 countries. The Award Assessment Team are currently reviewing all applications. Projects accepted for the 2018 Award will be contacted in due course. Showcased projects will be uploaded to the UIAA website during the month of July. The winning project will be announced at the 2018 UIAA General Assembly held in Ulaanbaatar, Mongolia on 6 October. Full story.
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UIAA SHAPING DISCUSSIONS
AT SUSTAINABLE SUMMITS AND OUTDOOR 2018 Two major international gatherings for the outdoor community took place in June 2018 with the UIAA represented, and leading discussions, at both events. First, the biennial Sustainable Summits Conference took place in Chamonix, France from 12-14 June where the three-day discussions focused on the future for the world’s high mountains. A week after the Sustainable Summits conference, the UIAA was represented at OutDoor, the world’s leading trade fair in the industry which took place in Friedrichshafen, Germany from 17-20 June. Full story.
RECENT ARTICLES

A reminder of some other recent articles published by the UIAA:

SAFETY:
Safety Standards / Support UIAA SafeCom Research:
Submit Examples of Climbing Anchor Corrosion

Safety Label Holder / Skylotec precautionary call for inspection check of Via Ferrata sets
MedCom / Medical Advice for Women Going to Altitude

SKILLS:
Alpine Series / What Weakens A Rope?
Alpine Series / Gear: Single & multi pitch check list

SUSTAINABILITY:
RTM / 2018 UIAA Respect the Mountains Series: Dates Announced

IN MEMORY

The UIAA is sad to hear about the recent passing of two pioneering figures in the world of climbing and mountaineering. Suk-Ha Hong, who died on 29 May, was an influential presence in Korean mountaineering. Among his legacies are the creation of Man and Mountain magazine and his role in the foundation of Asia’s Piolets d’Or. Suk-Ha Hong was awarded “Order of Civil Merit” by the Korean Government in 2008 for his devotion to mountaineering culture.

On 20 June, elite ice climber and French guide Stéphane Husson was involved in an accident in the Alps and died in hospital the following day. A 16-year old climber was killed in the same accident. Husson played a pivotal role in the development of competition ice climbing in France. Further details.

UPCOMING EVENTS
8 July
RESPECT THE MOUNTAINS
Passo della Focolaccia, Italy
8 July
RESPECT THE MOUNTAINS
Molise, Italy
22 July
RESPECT THE MOUNTAINS
Snowdonia National Park, Wales
23-30 July
UIAA YOUTH MOUNTAINEERING SCHOOL
Mount Kazbek, Georgia
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The UIAA was founded in 1932 and represents over 90 member associations in 68 countries. The organization’s mission is to promote the growth and protection of climbing and mountaineering worldwide, advance safe and ethical mountain practices and promote responsible access, culture and environmental protection.

The organization operates through the work of its commissions which make recommendations, set policy and advocate on behalf of the climbing and mountaineering community. The UIAA is recognized by the International Olympic Committee (IOC).

UIAA OFFICE
c/o Schweizer Alpen-Club SAC
Monbijoustrasse 61 Postfach CH-3000
Bern 14, Switzerland
Tel: +41 (0)31 370 1828news

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UIAA Newsletter_December 2017

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The UIAA newsletter. December 2017
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The UIAA. Newsletter. December 2017.
Welcome to the latest UIAA newsletter.

During the month of November, the UIAA played a leading role in mountain sustainability discussions at both the International Federation Forum in Lausanne and in Bonn during the 23rd United Nations Framework Convention on Climate Change (UNFCCC) – COP23. Ahead of 11 December’s International Mountain Day (IMD) titled ‘Mountains under Pressure: climate, hunger, migration’, the UIAA invites its member federations to share news of their IMD activities with news. The UIAA Ice Climbing season starts this weekend as the countdown to January’s World Cup series gains momentum. Meanwhile, application for the 2018 UIAA Rock Climbing awards is open and the UIAA MedCom shares advice for gap year and charity-event travellers.
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INTERNATIONAL FEDERATION FORUM
UIAA’S INTEGRAL ROLE IN SUSTAINABILITY DISCUSSIONSOn 9 November, the UIAA took part in a panel discussion at Sport Accord’s International Federation Forum (IF) in Lausanne, Switzerland discussing the relationship between sport and biodiversity and the role of the sporting community. The theme of the three day conference was the International Federations’ Impact In Leading The Way To Towards A Sustainability Agenda. The IF Forum programme is a collaboration between the International Olympic Committee (IOC), the Global Association of International Sport Federations (GAISF), the Association of Summer International Federations (ASOIF), the Association of Winter Olympic Federations (AIOWF),the Association of the IOC Recognized International Sports Federations (ARISF), AIMS (Alliance of Independent Members of SportAccord) and Associate Members. Full story here
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2018 UIAA ROCK CLIMBING FESTIVAL AWARD
APPLICATION OPEN

The international rock climbing community is informed that application for the 2018 UAA Rock Climbing Festival Award is now open. The annual Award was created in 2015 and is granted to the festival which best demonstrates a commitment to safety, sustainability and the development of rock climbing as a sport. The chosen festival is selected from a shortlist of applicants and chosen by the UIAA Rock Climbing Working Group. To date, Award winners have come from Africa (South Africa, 2015), Europe (Greece, 2016) and North America (USA, 2017). Please note, for 2018 the UIAA is inviting applications from festivals held in South America. Full story here.

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FEDME’S MOUNTAIN SAFETY COMMITMENT
SPANISH FEDERATION MAKING IMPRESSIVE STRIDESOver last few years, FEDME (Federación Española de Deportes de Montaña y Escalada), a full UIAA member, has reinforced its commitment to mountain safety, introducing a number of innovative and extensive measures to expand knowledge and consciousness about mountain safety on national level. One of their recent successes saw the publication of a detailed report about tests carried out on anchors in the marine environment. Here is their story.Full story here.
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In collaboration with Mountain Partnership, the UIAA took part in a side event discussion during COP23, titled “Implementing the 2030 Agenda & Paris Agreement in mountains: building a Framework for Action” during COP23. A video replay of the side panel discussion is embedded (starting at 7:15.00)

Organized by Mountain Partnership, the Government of Kyrgyzstan and the UIAA, the panel explored common challenges and solutions for addressing climate change impacts in mountains during the event, supporting concrete actions, putting in place long-lasting processes and establishing policies that strengthen the resilience of mountain peoples and environments. The UIAA was represented by Mountain Protection Commission delegate Joop Spijker (NKBC, Netherlands). He addressed the subject of mountaineering and climate change. UIAA Honorary Member Ang Tshering Sherpa (NMA, Nepal) also took part introducing ‘Community Experience of the Climate Change in the Himalayas and Solutions’.

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2018 UIAA ICE CLIMBING SEASON
IMPORTANT UPDATES

The first event of the new UIAA Ice Climbing season starts this weekend in Domzale (Slovenia), a perfect opportunity for young athletes to develop their skills and senior campaigners to prepare for the UIAA Ice Climbing World Tour in January.

The following links provide useful information about the 2018 season.
Latest Updates – including final calendar
A guide to the European Cups
Athletes’ Handbook
Rules & Regulations
UIAA & Ice Climbing

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HOW TO CHECK THE QUALITY OF A COMMERCIALLY ORGANISED TREK OR EXPEDITION
LATEST UIAA MEDCOM ADVICE

This, the sixth article in the UIAA’s series dedicated to high-altitude medical advice, has a very clear target audience, principally trekking or expedition company operators and their potential clients, notably those on gap years, round the world tickets or taking part in charity events.

As the number of mountaineers who are joining organised treks or expeditions continues to increase, so does the incidence of altitude-related diseases. Technically simple high altitude treks and peaks with easy access such as Kilimanjaro, Aconcagua, or the Everest trek (with fly-in to Lukla) are still potentially dangerous because of the rapid ascent profile undertaken by many trekkers and/or offered by numerous trekking companies. Full story here.

FROM THE UIAA NEWSROOM

Following on from October’s UIAA General Assembly, the UIAA Access Commission led a mountain workshop in Tehran. Angelika Rainer, one of the stars of the UIAA Ice Climbing World Tour recently made history. Hohhot is confirmed as the venue for the Chinese leg of the 2018 UIAA Ice Climbing World Tour. Registration for two 2018 UIAA youth camps in France – part of the Global Youth Summit series – is now open.

UPCOMING EVENTS
2 December
ICE CLIMBING – EUROPEAN CUP
Domzale, Slovenia
9 December
ICE CLIMBING – EUROPEAN CUP
Bratislava, Slovakia
11 December
INTERNATIONAL MOUNTAIN DAY
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The UIAA was founded in 1932 and has 92 member associations in 68 countries representing about 3 million climbers and mountaineers. The organization’s mission is to promote the growth and protection of climbing and mountaineering worldwide, advance safe and ethical mountain practices and promote responsible access, culture and environmental protection.

The organization operates through the work of its commissions which make recommendations, set policy and advocate on behalf of the climbing and mountaineering community. The UIAA is recognized by the International Olympic Committee (IOC).

You received this message as a subscriber to the UIAA monthly newsletter.

UIAA OFFICE
c/o Schweizer Alpen-Club SAC
Monbijoustrasse 61 Postfach CH-3000
Bern 14, Switzerland
Tel: +41 (0)31 370 1828

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UIAA Updates: If you are a Rock Climber or Mountaineer this Great Organization is part of your Life.

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Welcome to UIAA Newsletter – November 2015
Issue No. 0

Everest2.jpg UIAA Statement regarding Proposed Restrictions on Mount Everest

The UIAA fully supports the decision by Nepalese authorities to propose more stringent measures for climbers wishing to scale the world’s highest peak, Mount Everest (29,029ft / 8,848m). These measures will include individuals having to prove they have already scaled a peak in excess of 6,500m, eliminating the possibility of novice climbers scaling the mountain. Read More

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Member Federations
IMG_7379_Marco-Frattini.jpg Join the UIAA in supporting the World Food Programme and Nepal Mountaineering Association’s response in Nepal
Following the April earthquake that shook Nepal and left thousands of people stranded in remote locations beyond the access of roads and helicopters, the World Food Programme (WFP) set up a Remote Access Operation to reach survivors with life-saving food, medicine and shelter. … Read More
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Safety
bolt.jpg New Download: UIAA Warning About Climbing Anchor Failures
The UIAA Safety Commission has produced an extensive document ‘Watch Your Anchor! Corrosion and Stress Corrosion Cracking Failure of Climbing Anchors’. … Read More
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Sustainability
test2.jpg The UIAA integrates Respect the Mountains
The UIAA is delighted to announce the extension of its activities in mountain preservation through the recent addition of the Respect the Mountains campaign. … Read More
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General Assembly
LEA_4284.jpg Images: 2015 UIAA General Assembly
Member federations can access the photo library from the 2015 UIAA General by accessing the UIAA Flickr account at the following link. … Read More
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Mountain Protection
MPA15_banner.jpg 2015 UIAA Mountain Protection Award Winner
KTK-BELT Studio joins impressive list of UIAA Mountain Protection Award recipients … Read More
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Competition Sports
herndon_ben_bif17_UIAAnewsletter-6.jpg Confirmation: UIAA Ice Climbing Event in Bozeman, Montana goes ahead
The UIAA informs member federations, athletes and the ice climbing community that the 2016 UIAA Ice Climbing World Tour season opener in Bozeman, Montana scheduled for 11-12 December will go ahead as planned. … Read More
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Youth
IYCI_Italy1.png Registration for 2016 International Youth Ice Climbing Camp (Italy) open
Information is now available – and registration open – for the 2016 International Youth Climbing Camp in Italy. … Read More
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Guillestre-region-IMG_3686.jpg 2016 International Youth Ice Climbing Camp (France) registration open
Full details about February’s International Youth Ice Climbing camp in France are now available. … Read More
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10 – 12 December 2015
UIAA Ice Climbing World Cup & NA Championships
Bozeman, MT. USA16 – 17 January 2016
UIAA Ice Climbing World Cup & Asian Championships
Cheongsong. Korea

22 – 23 January 2016
UIAA Ice Climbing World Cup
Saas Fee

29 – 31 January 2016
UIAA Ice Climbing World Cup
Rabenstein

06 – 07 February 2016
UIAA World Youth Championships – Rabenstein
Rabenstein

06 – 10 February 2016
International Youth Ice Climbing Camp
Valle Varaita (Cuneo)

See full calendar

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UIAA – International Climbing and Mountaineering Federation

Monbijoustrasse 61 Postbach CH-3000 Bern 23 Switzerland


AMGA Terrain and Supervision Guidelines? Making more rules does not make things safer. Rarely does that work, look at the laws concerning our highways and the highway deaths. Making more rules does lead to more lawsuits. Again, look at our highways.

The latest actions of AMGA hit a lot of nerves and rightfully so. As usual, the lack of understanding and the desire to create something (not sure what) labeled standards are going to create lawsuits. The new Terrain & Supervision Guidelines won’t solve any problems; they’ll only create new ones.

I’ve attached the new requirements here below, so you can review them yourself. If not, you can download your own set here: Terrain & Supervision Guidelines. I’m not sure why the AMGA has created the new requirements. I’ve been told it is a money thing, I’ve been told it is a safety thing, I’ve been told it is a back door into trying to get permits on NPS lands; I have no real idea. I do know it won’t accomplish any of those goals. I did not contact the AMGA to find out what or why.

Attorneys love to deal in fuzzy it gives them latitude to litigate. The only time they don’t like fuzzy is when something is solid and proves their case without having to work very hard. The new Terrain & Supervision Guidelines are the classic sharp line to help prove the defendant was wrong and everything else is fuzzy so no one really knows how to help the defendant.

Let me reminisce.

I quit providing pro bono legal work to the AMGA over fifteen years ago when another attorney said he could get the AMGA into national parks. I told the AMGA that would never happen. I moved on. Fifteen years later and at least two attorneys failing to pull AMGA guides into parks, the AMGA might be going around to the back door believing the back door will open.

Back doors meaning the NPS employees in individual parks who lead the rescues have to deal with the current concessionaires; who they don’t like (familiarity breed’s contempt). It is always easier to like someone who is sucking up in the belief; you can get them in a park to guide.

The problem is the door is not at any park; the door is in Washington DC no matter what the AMGA wants to believe. It doesn’t start at 1849 C St NW, Washington, DC 20240, the Department of the Interior address, either, but at Congress. Congress made the laws the NPS, and the USFS are enforcing on commercial guides on Federal lands. Until the AMGA can raise millions, probably $10 million dollars to lobby Congress, nothing will even look like it is going to change. And I suspect that the $10 million is not enough because the current companies that own permits and concessions will lobby against it, and they are bigger. Remember the big hotel concessions in the parks also run raft trips, trail rides and work with climbing guides.

However, I’ve also been told that the AMGA has backed off from the position that AMGA guides should be allowed to guide in National Parks.

I have found some legal disasters in the new Terrain & Supervision Guidelines.

The guidelines won’t apply to staff hired prior to 2008. An arbitrary number I guess, or probably the number when the last member of the committee became certified and was hired. I sat through board meetings when the first date of guides to be grandfathered under the UIAGM was determined. It was ugly, funny and basically a turf war. Trial attorneys will tear this up. (How come Guide X made it and Guide Y did not. Guide Y has thousands of year’s more recent experience, and Guide X has not been on a mountain since 08?)

The guidelines require that everything has to be documented “in the guide’s personnel file.” Thank heavens the AMGA has reviewed all HR laws in the US and knows this will not create problems. If personal files are paper, then you better get accordion files. To back this up, you’ll have to collect all the information supporting the requirements in the guidelines first, and then add the review of the supervising guides and the evaluations. Weather conditions, snow conditions, terrain maps, route maps, etc., can take a lot of space in a file folder.

My favorite rule is one that requires a guide who has not made the qualifications yet, must be under the direct supervision of a guide who has met the qualifications. Unless the guide, who has met the qualifications, has to take guests down the mountain, then the two guides can be in radio contact. The rules allow the least experienced guide to remain up high, alone.

Direct Supervision: Direct supervision implies side by side guiding such as two rope teams traveling near by on a glacier or on nearby multi-pitch routes, daily briefings and debriefings about route selection, strategy, and client care. Side by side guiding and meetings should be documented in the guide’s personnel file. It is the supervising guide’s responsibility to ensure that assigned tasks are appropriate to a guide’s training and ability. It is allowable for the mentored guide to be in radio or phone contact when turning around with clients to descend.

What if the guide who has been certified, leaves to summit with a group of clients, can the one who hasn’t been certified stay with the clients who don’t/can’t summit. They’ll be in radio contact?

So you make a rule, then you make an exception to the rule. On Denali in a few years, this will be a disaster. The new concession requirements for climbing concessions are going to reduce the number of guides with a commercial group. Rescues will be done without commercial guides because a guide won’t be able to leave the group and work the rescue with these guidelines. (Rescues in the future on Denali are going to be a mess with the latest version of the commercial rules anyway, that is a whole other article.)

The languages of the guidelines are full of legal land mines. Here are some of my favorites.

…who are appropriately trained, tenured or certified

It is the supervising guide’s responsibility to ensure that assigned tasks are appropriate to a guide’s training and ability.

Certified supervisors

…is not of wilderness in nature

My favorite are the terms applied to different people.

Apprentice Guide

Assistant Guide

Aspirant Mountain Guide

Certified Guide

So does that mean you are a patrol leader or a star scout? More importantly do you get a badge?

Here are some more phrases that seem innocuous but don’t make sense.

The stated goal of the new accreditation standard is to have all field staff, except those meeting the 2008 exemption, be trained by the AMGA for the terrain they work on.

So guides who met the requirements prior to 2008 cannot have a lick of training, sense or experience now and not be up to date on the requirements.

How is this going to happen? So I have a concession to guide on Denali. Am I supposed to bring you on one of my trips to tell me that you can train me on this terrain? What about the NPS on this issue and their current regulations. I guess you can come, go sign up and pay the fee, and I’ll take you where I am permitted to go.

AMGA courses are considered the baseline technical training for specific terrain types and are not a substitute for in-house training.

Yet above, they said this is the best you can get? What is this going to mean in court? The AMGA is just the baseline, yet the states the IFMGA (UIAGM) are now the baseline.

(The IFMGA (UIAGM) was founded to allow guides in Europe to guide everywhere and is the International Organization the AMGA must follow.)

I doubt that this has been run by the IFMGA (UIAGM).

Do Something

What’s going to happen? The big concessionaire members of the AMGA are either going to leave and financially sink the AMGA or revolt. No one will be happy either way. They don’t need greater chances of being sued. People die on mountains, and I would guess these new guidelines are not going to change that. They know the terrain and have in place, with NPS approval a way of guiding customers and training staff.

I have not taken the time to compare these guidelines with current NPS regulations for various mountains. I suspect there may be some conflicts. What is a concessionaire supposed to do, not follow the NPS and lose their permit or not follow these. Let’s see I pay money to the AMGA I make money with my NPS permit. Who am I going to follow?

These guidelines, like all standards for people, will only create a checklist for the attorney representing an injured client to sue. The guidelines will be taken and incorporated in interrogatories about each member of the guiding team. One misstep on the mountain or in discovery and these guidelines will change the lawsuit from what we can defend to how much we have to pay.

Don’t get me wrong. The American Mountain Guides Association has some of the greatest people I know as members and as an organization has accomplished tons. However, it is faced with an impossible job with no money to accomplish the job: the promise the AMGA made to the IFMGA in 1993 is never going to come through.

However, making standards, guidelines for people do not stop lawsuits; they only help the plaintiff’s win lawsuits.

Click on the link to download your own copy of the Terrain & Supervision Guidelines.

See the following articles where association guidelines were used to sue the association member:

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

Great article about the risks of an organization creating standards for members of the industry – and I did not write it                                                                              http://rec-law.us/1rk8oHR

If your organization says you do something and you are a member of the organization you better do it or be able to explain why you did not                                   http://rec-law.us/1gOLpju

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

Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release            http://rec-law.us/1dqBdxo

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

So if you write standards, you can, then use them to make money when someone sues your competitors            http://rec-law.us/1gCGce8

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

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Email: Rec-law@recreation-law.com

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International Mountain Guides has Trips All Over the World

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November 2014463.jpgQuick Links Our Website

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Prep For The Himalayas In Bolivia

Bolivia Team Summits Huayna Potosi
Summit day on Huayna Potosi

Is a high altitude mountain in your future? If so, there is no better training than our IMG Bolivia programs! Great weather, good access, spectacular climbing, challenging peaks…Bolivia has it all. Our July and August trips are filling up nicely, but we still have space available on both programs. Airline flights to La Paz are still reasonably priced right now. It’s a great time to put Bolivia on your calendar for next summer.


Commercial Summer Fatalities: 2014

Our condolences to the families of the deceased.

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

Whitewater fatalities are light blue

Medical fatalities are light red

This is up to date as of September 14, 2014

If this information is incorrect or incomplete please let me know. Thank You.

Date

State

Activity

Where

How

Outfitter or Guide Service

Sex

Home

Age

Source

Source

5/28

AZ

Whitewater Kayaking

Colorado River, Grand Canyon, Badger Rapid

Did not right his kayak

 

M

 

43

http://rec-law.us/SVpdfb

 

6/3

AZ

Whitewater Rafting

Colorado River, Grand Canyon

Allergic reaction

 

F

Seattle, WA

54

http://rec-law.us/1l4xk4K

 

6/7

CO

Whitewater Rafting

Clear Creek

Fell out of raft, possible respirator problems

 

M

Brighton, CO

41

http://rec-law.us/1uEp3Fc

http://rec-law.us/1rafOwq

6/10

CO

Whitewater Rafting

Arkansas River, Salt Lick

boat flipped or dump trucked

Royal Gorge Rafting

M

Enid, OK

48

http://rec-law.us/1spBsRI

http://rec-law.us/1niITC2

6/14

CO

Whitewater Rafting

Arkansas River, Royal Gorge

respiratory problems before he and five other rafters were tossed out

 

M

Colorado Springs, CO

44

http://rec-law.us/1nl63ZF

http://rec-law.us/1lXMEAj

6/16

CO

Whitewater Rafting

Roaring Fork river

Fell out of raft

Blazing Adventures

M

Denver, CO

44

http://rec-law.us/1lB7jey

 

6/27

ID

Whitewater Rafting

Salmon River, The Slide

Ejected from raft

Epley’s Whitewater Adventure

M

Poulsbo, WA

50

http://rec-law.us/1x79IAj

http://rec-law.us/1qPcLds

7/15

WY

Mountaineering

Grand Teton

Fell

Jackson Hole Mountain Guides

F

Edmond, OK

43

http://rec-law.us/1spEHaK

http://rec-law.us/1nbZH2J

7/24

CO

Whitewater Rafting

Arkansas River, The Numbers

Fell out of raft

Timberline Tours

F

Dallas, TX

57

http://rec-law.us/1lC3ReN

http://rec-law.us/1pmumpZ

9/13

TN

Whitewater Rafting

Ocoee River

Raft flipped

Endless River Adventures

M

Clayton, NC

50

http://rec-law.us/1tTRGT9

http://rec-law.us/1oNpJWi

Several of the water fatalities can be medical. A sudden full body cold water immersion can cause vasoconstriction in the hear resulting in death. See the Wikipedia listing Cold shock response.

If you are unable to see this graph, please email me at Rec-law@recreation-law.com and I will send you a PDF of the page.

What do you think? Leave a comment.

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Copyright 2014 Recreation Law (720) 334 8529

Email: Rec-law@recreation-law.com

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Facebook Page: Outdoor Recreation & Adventure Travel Law

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

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