New York Skier Safety Act
Posted: August 28, 2013 Filed under: New York | Tags: Alpine skiing, New York, NY, Platter lift, Recreation, Ski, Ski Resort, Skier Safety Act Leave a commentNew York Skier Safety Act
General Obligations Law
ARTICLE 18. SAFETY IN SKIING CODE
NY CLS Gen Oblig Article 18 Note (2012)
Gen Oblig Article 18 Note
HISTORY:
Add, L 1988, ch 711, § 1, eff Nov 1, 1988 (see 1988 note below).
NOTES:
Laws 1988, ch 711, § 4, eff Nov 1, 1988, provides as follows:
§ 4. This act shall take effect on November first, nineteen hundred eighty-eight; provided that section 18-106 of the general obligations law, as added by section one of this act, shall take effect on the first day of October, nineteen hundred eighty-nine; and provided further that the commissioner of labor, effective immediately, is authorized and directed to promulgate any and all rules and regulations necessary to the timely implementation of the provisions of this act on their effective dates.
Research References & Practice Aids:
3 NY Jur 2d Amusements and Exhibitions § 30
§ 18-103. Duties of ski area operators
§ 18-104. Duties of passengers
§ 18-106. Duties of skiers and ski area operators with respect to inherent risks
§ 18-101. Legislative purpose
The legislature hereby finds that alpine or downhill skiing is both a major recreational sport and a major industry within the state of New York. The legislature further finds: (1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state; (2) that downhill skiing, without established rules of conduct and care, may result in injuries to persons and property; (3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry.
§ 18-102. Definitions
The following words and phrases when used in this article shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
1. “Lift ticket” means any item issued by a ski area operator to any skier that is intended to be affixed to the outerwear of the skier, or otherwise displayed by a skier, to signify lawful entry upon and use of the passenger tramways or ski slopes or trails maintained by the ski area operator.
2. “Passenger tramway” means a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails as defined by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.
3. “Passenger” means a person in or on or being transported by a tramway.
4. “Ski area” means all ski slopes, ski trails and passenger tramways administered as a single enterprise within this state.
5. “Ski area operator” means a person, firm or corporation, and its agents and employees, having operational and administrative responsibility for any ski area, including any agency of the state, any political subdivision thereof, and any other governmental agency or instrumentality.
6. “Skier” means any person wearing a ski or skis and any person actually on a ski slope or trail located at a ski area, for the purpose of skiing.
7. “Ski slopes and trails” mean those areas designated by the ski area operator for skiing.
§ 18-103. Duties of ski area operators
Every ski area operator shall have the following duties:
1. To equip all trail maintenance vehicles with such warning implements or devices as shall be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law. Such implements or devices shall be present and operating whenever the vehicle is within the borders of any slope or trail.
2. To post in a location likely to be seen by all skiers signs of such size and color as will enable skiers to have knowledge of their responsibilities under this article.
3. To hold employee training sessions at least once before the beginning of each season, the contents of which shall be specified by the commissioner of labor upon the recommendation of the passenger tramway advisory council, as follows:
a. for operators of trail maintenance equipment concerning the safe operation of such vehicles in the ski area;
b. for passenger tramway attendants concerning the safe operation of passenger tramways;
c. for ski personnel charged with the responsibility of evacuating passengers from passenger tramways concerning proper evacuation techniques; and
d. for all other personnel charged with on-mountain maintenance, inspection or patrol duties as to methods to be used for summoning aid in emergencies.
4. To conspicuously mark with such implements as may be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law, the location of such man-made obstructions as, but not limited to, snow-making equipment, electrical outlets, timing equipment, stanchions, pipes, or storage areas that are within the borders of the designated slope or trail, when the top of such obstruction is less than six feet above snow level.
5. To maintain in a central location at the ski area an information board or boards showing at a minimum the following:
a. the location of tramways, slopes or trails;
b. the status of each trail–open or closed;
c. the location of emergency communications or medical equipment and sites designated by the ski area operator for receipt of notice from skiers pursuant to subdivision thirteen of this section;
d. the relative degree of difficulty of each slope or trail (at a minimum easier, more difficult, most difficult); and
e. the general surface condition of each slope and trail as most recently recorded in the log required to be maintained by subdivision six of this section.
6. To inspect each open slope or trail that is open to the public within the ski area at least twice a day, and enter the results of such inspection in a log which shall be available for examination by the commissioner of labor. The log shall note:
a. the general surface conditions of such trail at the time of inspection (powder, packed powder, frozen granular, icy patches or icy surface, bare spots or other surface conditions);
b. the time of inspection and the name of the inspector;
c. the existence of any obstacles or hazards other than those which may arise from:
(i) skier use;
(ii) weather variations including freezing and thawing; or
(iii) mechanical failure of snow grooming or emergency equipment which may position such equipment within the borders of a slope or trail.
7. To develop and maintain a written policy consistent with the regulations of the commissioner of labor upon the advice of the passenger tramway advisory council for situations involving the reckless conduct of skiers, which shall include, but not be limited to:
a. a definition of reckless conduct; and
b. procedures for approaching and warning skiers of reckless conduct and procedures for dealing with such skiers which may include the revocation of the lift tickets of such skiers.
8. To designate personnel to implement the ski area’s policy on reckless conduct.
9. To report to the commissioner of labor by telephone within twenty-four hours any fatality or injury resulting in a fatality at the ski area.
10. To conspicuously post and maintain such ski area signage, including appropriate signage at the top of affected ski slopes and trails, notice of maintenance activities and for passenger tramways as shall be specified by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.
11. To post in a conspicuous location at each lift line a sign, which shall indicate the degree of difficulty of trails served by that lift with signs as shall be specified by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.
12. To ensure that lift towers located within the boundaries of any ski slope or trail are padded or otherwise protected and that no protruding metal or wood objects, such as ladders or steps, shall be installed on the uphill or side portion of lift towers within the borders of a ski slope or trail, unless such objects are below the snow line, at least six feet above it, or padded or otherwise protected with such devices as, but not limited to, the following:
a. commercially available tower padding;
b. air or foam filled bags;
c. hay bales encased in a waterproof cover; or
d. soft rope nets properly spaced from the tower.
13. To, within a reasonable amount of time after the inspection required by subdivision six of this section, conspicuously mark with such implements as may be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law and to provide sufficient warning to skiers by such marking or remove such obstacles or hazards which are located within the boundaries of any ski slope or trail and were noted pursuant to paragraph c of subdivision six of this section; and to also conspicuously mark with such implements and provide such warning or remove such obstacles or hazards within a reasonable amount of time after receipt of notice by the ski area operator from any skier as to the presence of such obstacles or hazards when notice is given at sites designated by the ski area operator for such receipt and the locations of which are made known to skiers pursuant to paragraph c of subdivision five of this section.
14. To have present at all times when skiing activity is in progress, individuals properly and appropriately trained for the safe operation of on-slope vehicles; trail maintenance equipment; tramways; tramway evacuations; implementation of the reckless skier policy; first aid and outdoor rescue; and, to have present according to a schedule posted for access by skiers, by the ski area operator, personnel appropriately trained in the instruction of skiers and passengers in methods of risk reduction while using ski slopes and passenger tramways and the instruction of skiers with respect to the risks inherent in the sport.
§ 18-104. Duties of passengers
All passengers shall have the following duties:
1. To familiarize themselves with the safe use of any tramway prior to its use;
2. To remain in the tramway if the operation of a passenger tramway, as defined pursuant to section two hundred two-c of the labor law, is interrupted for any reason, until instructions or aid are provided by the ski area operator;
3. To board or disembark from passenger tramways only at points or areas designated by the ski area operator;
4. Not to eject any objects or material from a passenger tramway;
5. To use restraint devices in accordance with posted instructions;
6. To wear retention straps or other devices to prevent runaway skis;
7. Not to interfere with the operation of a passenger tramway;
8. Not to place or caused to be placed on the uphill track of a surface lift any object which may interfere with its normal operation; and
9. Not to wear loose scarves, clothing or accessories or expose long hair which may become entangled with any part of the device.
§ 18-105. Duties of skiers
All skiers shall have the following duties:
1. Not to ski in any area not designated for skiing;
2. Not to ski beyond their limits or ability to overcome variations in slope, trail configuration and surface or subsurface conditions which may be caused or altered by weather, slope or trail maintenance work by the ski area operator, or skier use;
3. To abide by the directions of the ski area operator;
4. To remain in constant control of speed and course at all times while skiing so as to avoid contact with plainly visible or clearly marked obstacles and with other skiers and passengers on surface operating tramways;
5. To familiarize themselves with posted information before skiing any slope or trail, including all information posted pursuant to subdivision five of section 18-103 of this article;
6. Not to cross the uphill track of any surface lift, except at points clearly designated by the ski area operator;
7. Not to ski on a slope or trail or portion thereof that has been designated as “closed” by the ski area operator;
8. Not to leave the scene of any accident resulting in personal injury to another party until such times as the ski area operator arrives, except for the purpose of summoning aid;
9. Not to overtake another skier in such a manner as to cause contact with the skier being overtaken and to yield the right-of-way to the skier being overtaken;
10. Not to willfully stop on any slope or trail where such stopping is likely to cause a collision with other skiers or vehicles;
11. To yield to other skiers when entering a trail or starting downhill;
12. To wear retention straps or other devices to prevent runaway skis;
13. To report any personal injury to the ski area operator before leaving the ski area; and
14. Not to willfully remove, deface, alter or otherwise damage signage, warning devices or implements, or other safety devices placed and maintained by the ski area operator pursuant to the requirements of section 18-103 of this article.
§ 18-106. Duties of skiers and ski area operators with respect to inherent risks
It is recognized that skiing is a voluntary activity that may be hazardous regardless of all feasible safety measures that can be undertaken by ski area operators. Accordingly:
1. Ski area operators shall have the following additional duties:
a. To post at every point of sale or distribution of lift tickets, whether on or off the premises of the ski area operator, a conspicuous “Warning to Skiers” relative to the inherent risks of skiing in accordance with regulations promulgated by the commissioner of labor pursuant to subdivision four of section eight hundred sixty-seven of the labor law, and to imprint upon all lift tickets sold or distributed, such text and graphics as the commissioner of labor shall similarly specify, which shall conspicuously direct the attention of all skiers to the required “Warning to Skiers”;
b. To post at every point of sale or distribution of lift tickets at a ski area notice to skiers and passengers that this article prescribes certain duties for skiers, passengers and ski area operators, and to make copies of this article in its entirety available without charge upon request to skiers and passengers in a central location at the ski area;
c. To make available at reasonable fees, as required by subdivision thirteen of section 18-103 of this article, instruction and education for skiers relative to the risks inherent in the sport and the duties prescribed for skiers by this article, and to conspicuously post notice of the times and places of availability of such instruction and education in locations where it is likely to be seen by skiers; and
d. To post notice to skiers of the right to a refund to the purchaser in the form and amount paid in the initial sale of any lift ticket returned to the ski area operator, intact and unused, upon declaration by such purchaser that he or she is unprepared or unwilling to ski due to the risks inherent in the sport or the duties imposed upon him or her by this article.
2. Skiers shall have the following additional duties to enable them to make informed decisions as to the advisability of their participation in the sport:
a. To seek out, read, review and understand, in advance of skiing, a “Warning to Skiers” as shall be defined pursuant to subdivision five of section eight hundred sixty-seven of the labor law, which shall be displayed and provided pursuant to paragraph a of subdivision one of this section; and
b. To obtain such education in the sport of skiing as the individual skier shall deem appropriate to his or her level of ability, including the familiarization with skills and duties necessary to reduce the risk of injury in such sport.
§ 18-107. Construction
Unless otherwise specifically provided in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law.
§ 18-108. Severability
If any provision of this article or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this article that can be given effect without the invalid provision or application, and to this end the provisions of this article are declared to be severable.
§ 867. Safety in skiing code
1. The [fig 1] commissioner, on the advice of the passenger tramway advisory council as created pursuant to section twelve-c of this chapter, shall promulgate rules and regulations, consistent with article eighteen of the general obligations law, intended to guard against personal injuries to downhill skiers which will, in view of such intent, define the duties and responsibilities of downhill skiers and the duties and responsibilities of ski area operators.
2. The commissioner shall enforce all the provisions of this article and the regulations adopted pursuant hereto and may issue such orders against any entity, public or private, as he finds necessary, directing compliance with any provision of this article or such regulations. The commissioner may also investigate any fatality or injury resulting in a fatality at a ski area.
3. The passenger tramway advisory council shall conduct any investigation necessary to carry out the provisions of this [fig 1] article.
4. The passenger tramway advisory council shall conduct public hearings on any rules and regulations proposed under this section prior to their promulgation by the [fig 1] commissioner. The passenger tramway advisory council shall fix a time and place for each such hearing and cause such notice as it may deem appropriate to be given to the public and news media prior to such a hearing. Testimony may be taken and evidence received at such a hearing pursuant to procedures prescribed by the passenger tramway advisory council.
5. Upon advice of the passenger tramway advisory council, the commission shall, on the fifteenth day of March, nineteen hundred eighty-nine, promulgate rules which shall set forth specifications for the uniform textual and graphic content, physical description, and conspicuous posting of a “Warning to Skiers” regarding the risks inherent in the sport as set forth in section 18-101 of the general obligations law, which shall be posted and provided to skiers by ski areas operators in accordance with subdivision one of section 18-106 of the general obligations law, and shall promulgate rules which shall set forth textual and graphic specifications designed to occupy not more than twenty-five percent of the imprintable surface area of the face side nor more than eighty percent of the imprintable surface area of the reverse side or backing paper of all lift tickets sold or distributed in the state, as defined by section 18-102 of the general obligations law, which shall uniformly serve to direct the attention of all skiers to the “Warning to Skiers” herein directed to be promulgated and required by section 18-106 of the general obligations law.
WordPress Tags: York,Skier,General,Obligations,ARTICLE,CODE,Oblig,Note,HISTORY,NOTES,Laws,November,October,commissioner,implementation,Research,References,Practice,Aids,Amusements,Exhibitions,Legislative,purpose,Definitions,Duties,area,operators,passengers,Construction,legislature,industry,injury,death,variations,terrain,areas,moguls,ruts,facilities,growth,debris,trees,provision,maintenance,injuries,decision,Editor,NYCRR,Annotations,resort,Case,Defendants,owners,judgment,plaintiff,participation,affidavit,fact,Osorio,Deer,Assocs,Dept,Voluntary,participants,Fabris,Town,Thompson,action,defendant,dangers,accident,companion,collision,Martin,Luther,tree,woods,assertions,claimant,adequacy,negligence,addition,obstacles,Atwell,State,owner,participant,Kaufman,Hunter,Bowl,Duncan,Court,Claims,ramp,platform,custom,Simoneau,testimony,examination,gate,Bono,operator,litigation,health,person,collisions,Olympic,Regional,Auth,Misc,assumption,obligation,Plaintiffs,complaint,items,presence,Painter,Peek,Peak,Where,ravine,opposition,barrier,Bennett,Bridge,Corp,context,meanings,Lift,ticket,item,Passenger,device,enterprise,corporation,agents,employees,agency,subdivision,Prevention,Labor,vehicles,vehicle,location,size,knowledge,employee,sessions,recommendation,council,equipment,attendants,personnel,evacuation,techniques,mountain,inspection,emergencies,obstructions,outlets,stanchions,storage,obstruction,feet,information,status,receipt,degree,inspector,existence,failure,policy,advice,situations,definition,procedures,revocation,tickets,hours,boundaries,wood,bales,paragraph,locations,individuals,evacuations,instruction,reduction,Supreme,argument,perimeter,accordance,Sytner,crossovers,patrons,instructions,retention,hair,configuration,manner,requirements,sale,distribution,premises,Skiers,text,graphics,attention,education,purchaser,declaration,decisions,familiarization,skills,Premise,novice,jury,Vanderwall,Troser,Mgmt,statute,Recreational,park,foot,cliff,markings,warnings,constraints,protection,winter,Stento,Hyland,Matthew,Bender,Civil,Rohan,EPTL,lessons,rental,involvement,adjustment,Jordan,Maple,Ridge,chapter,compliance,investigation,hearings,promulgation,news,media,Upon,March,specifications,description,paper,June,Former,nine,subsurface,whether,patroller,cognizable,affd,tramways,tramway,pursuant,seven,thereof,skis,four,signage,five,imprintable
Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)
Posted: August 26, 2013 Filed under: Climbing Wall, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: Bacchiocchi v Ranch Parachute Club, Bouldering, Cause of action, Climbing Wall, Cornell University, education, Ithaca, New York, Release, Rock climbing, Supreme Court 4 CommentsLemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)
Decided and Entered: December 11, 2003
93723
[*1]Nadine Lemoine, Appellant, v Cornell University, Respondent.
Memorandum and Order
Calendar Date: October 15, 2003
Before: Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ.
Lo Pinto, Schlather, Solomon & Salk, Ithaca
(Raymond M. Schlather of counsel), for appellant.
Nelson E. Roth, Cornell University, Ithaca, for
respondent.
Cardona, P.J.
Appeal from an order of the Supreme Court (Mulvey, J.), entered January 2, 2003 in Tompkins County, which granted defendant’s motion to dismiss the complaint.
Plaintiff alleges that she sustained injuries on January 30, 2000, when she fell from the Lindseth Climbing Wall at defendant’s university during the first session of a seven-week basic rock climbing course offered by defendant’s outdoor education program. She had taken the same course eight years earlier, but had not taken any further instruction in the intervening years. Plaintiff registered, paid the tuition for the class, watched the orientation video describing safety procedures and signed a release holding defendant harmless from liability for, inter alia, any injuries caused by use of the climbing wall, including those caused by defendant’s own negligence. Plaintiff, as a climbing student, also signed a “Contract to Follow Lindseth Climbing Wall Safety Policies,” which included a promise that she would not climb above the yellow “bouldering” line without the required safety equipment. Prior to the accident, plaintiff, who was not wearing safety equipment, alleged that she was climbing with most of her body above the bouldering line. At the time, plaintiff and approximately 10 other students were under the supervision of two instructors. As she descended, instructor Michael Gilbert allegedly told her where to place her hands and feet. Plaintiff asserts that she lost her footing and fell to the floor [*2]below, which she described as “virtually unpadded.”[FN1] Thereafter, plaintiff commenced this action asserting negligence and gross negligence. Defendant moved to dismiss based upon the release and the safety contract, as well as a claim that plaintiff failed to set forth a cause of action [FN2]. Supreme Court granted defendant’s motion, prompting this appeal.
Plaintiff contends that the release and safety contract are void as against public policy by operation of statute, and, as a result, Supreme Court erred in granting defendant’s motion to dismiss. General Obligation Law § 5-326 states in pertinent part:
“Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”
The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F Supp 2d 92, 99 [1998]; McDuffie v Watkins Glen Intl., 833 F Supp 197, 202 [1993]). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370 [1994]), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145 [1985]), have been found to be outside the scope of the statute.
In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility (see Fusco v Now & Zen, 294 AD2d 466, 467 [2002]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175-176 [2000]; Baschuk v Diver’s Way Scuba, supra at 370). Difficulties arise in this area of law in situations where a person is injured at a mixed-use facility, namely, one which provides both recreation and instruction. In some cases, courts have found that General Obligations Law § 5-326 voids the particular release where the facility provides instruction only as an “ancillary” [*3]function, even though it is a situation where the injury occurs while receiving some instruction (see e.g. Bacchiocchi v Ranch Parachute Club, supra at 175-176; Wurzer v Seneca Sport Parachute Club, 66 AD2d 1002, 1002-1003 [1978]). In other mixed-use cases, courts focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, supra at 99).
Here, plaintiff points out that her enrollment in the class entitled her to a discounted fee rate in the event that she sought use of the climbing wall on nonclass days and, additionally, defendant allowed its students, alumni and graduates of the rock climbing course to use the wall as long as they paid the regular fee and watched the safety video. Consequently, plaintiff, citing Bacchiocchi v Ranch Parachute Club (supra), argues that since this facility is both recreational and instructional, General Obligations Law § 5-326 must apply. While it may be true that defendant’s facility is a mixed use one, given that defendant is unquestionably an educational institution, along with the fact that the brochure and course materials in the record indicate that the purpose of the climbing wall facility was “for education and training in the sport of rockclimbing,” it is apparent that any recreational use of the wall by nonstudents would be ancillary to its primary educational purpose (cf. Bacchiocchi v Ranch Parachute Club, supra). Furthermore, even focusing primarily on plaintiff’s purpose at the facility, it is undisputed herein that she enrolled in the course, paid tuition, not a fee, for lessons and was injured during one of her instructional periods (cf. Scrivener v Sky’s the Limit, supra at 281). Therefore, under all the circumstances, we find that Supreme Court properly found the statute to be inapplicable.
Having found that the release and safety contract were not voided by the statute, we now decide whether they are dispositive in this case (cf. Gross v Sweet, 49 NY2d 102, 107 [1979]). For example, the release unambiguously acknowledges, inter alia, the inherent risks of rock climbing and the use of the climbing wall, including the risk of injury from falling off the wall onto the floor below, which is what plaintiff describes as happening in this case. The release further holds defendant harmless from liability from any negligence, including that related to plaintiff’s supervised or unsupervised use of the wall. Given plaintiff’s signature and initials on these documents, we conclude that dismissal was proper.
Turning to plaintiff’s contention that, even if the statute is applicable, defendant’s motion to dismiss should not have been granted because the release and safety contract, standing alone, would not defeat a claim adequately alleging gross negligence (see Amica Mut. Ins. Co. v Hart Alarm Sys., 218 AD2d 835, 836 [1995]). Significantly, gross negligence is reckless conduct that borders on intentional wrongdoing and is “different in kind and degree” from ordinary negligence (Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, 297 AD2d 430, 431 [2002]; see e.g. Green v Holmes Protection of N.Y., 216 AD2d 178, 178-179 [1995]). Where a complaint does not allege facts sufficient to constitute gross negligence, dismissal is appropriate (see Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, supra at 431). Even assuming that plaintiff’s specific allegations are true, we agree with Supreme Court that they constitute only ordinary negligence and cannot survive the motion to dismiss.
The remaining arguments raised by plaintiff have been examined and found to be either unpersuasive or rendered academic by our decision herein.
Crew III, Carpinello, Rose and Lahtinen, JJ., concur.
ORDERED that the order is affirmed, with costs.
Footnotes
Footnote 1: The incident report form, which plaintiff disputes, states that she “decided to jump down.” Defendant’s employees also assert that the floor was padded and plaintiff was four feet from the ground at the time that she left the wall.
Footnote 2: We note that although defendant’s motion states that it is pursuant CPLR 3211 (a) (1) and (7), it appears from the language therein that it is also premised upon CPLR 3211 (a) (5).
WordPress Tags: Lemoine,Cornell,LEXIS,December,Nadine,Appellant,Respondent,Memorandum,Order,Calendar,Date,October,Cardona,Crew,Carpinello,Rose,Lahtinen,Pinto,Schlather,Solomon,Salk,Ithaca,Raymond,Nelson,Roth,Appeal,Supreme,Court,Mulvey,January,Tompkins,defendant,complaint,Plaintiff,injuries,Lindseth,Wall,session,education,instruction,tuition,procedures,negligence,student,Contract,Policies,equipment,Prior,accident,students,supervision,instructors,instructor,Michael,Gilbert,feet,Thereafter,action,policy,statute,General,Obligation,covenant,agreement,connection,collateral,membership,ticket,admission,owner,operator,gymnasium,amusement,recreation,establishment,user,facilities,compensation,person,agents,servants,employees,parks,clauses,tickets,Supp,McDuffie,Watkins,Glen,Intl,Millan,Brown,Chieco,Baschuk,Diver,Scuba,Meier,Bars,scope,certificate,incorporation,statement,purpose,money,Fusco,Bacchiocchi,Ranch,Parachute,Club,Difficulties,area,situations,Obligations,situation,injury,Wurzer,Seneca,Sport,Scrivener,Limit,Here,enrollment,event,alumni,institution,fact,brochure,lessons,periods,Gross,Sweet,example,Given,signature,dismissal,contention,Amica,Hart,Alarm,degree,Sutton,Park,Corp,Guerin,Agency,Holmes,Protection,Where,allegations,arguments,decision,Footnotes,Footnote,incident,CPLR,alia,upon,pursuant,whether,instructional,supra
Will New York entertain counterclaims for attorney fees and costs to a prevailing defendant?
Posted: July 29, 2013 Filed under: New York, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: assumption of the risk, Hang gliding, Negligence, New York, New York City, Paragliding, Plaintiff, Public Policy, Recreation, Release, Skydiving, Summary judgment, Tandem, Tandem Skydiving 3 CommentsUnderlying claim is dismissed for assumption of the risk. Falling out of the sky is obviously dangerous.
Plaintiff: Lisa Nutley
Defendant: SkyDive the Ranch
Plaintiff Claims: Negligence
Defendant Defenses: Release and Assumption of the risk, counterclaim for attorney fees based on the release
Holding: for the defendant on the claims based on assumption of the risk
This is an interesting case. To understand the case, I’ve also posted the trial court opinion leading to the appeal of this case.
The spouse of the plaintiff bought her a tandem sky dive as a gift. During the jump, the main shoot did not open. The reserve shoot did open. During the jump, the plaintiff broke her third and fourth fingers on her right hand. She sued for negligence.
The defendant filed a motion for summary judgment to dismiss the plaintiff’s claims based on the three releases she had signed and the video and instruction she had watched.
The trial court denied the motion for summary judgment (Nutley v. Skydive The Ranch, 22 Misc. 3d 1122(A); 881 N.Y.S.2d 365; 2009 N.Y. Misc. LEXIS 274; 2009 NY Slip Op 50223(U); 241 N.Y.L.J. 23) and the defendant appealed.
Summary of the case
The basis of the denial of the motion for summary judgment is a New York statute which prohibited the use of a release for recreational activities. New York General Obligations Law (“GOL”) §5-326. The lawsuit was dismissed because the trial court found the defendant operated a sky-diving facility as a recreational business. The Defendant had argued that it was an educational business which does not fall under §5-326.
The appellate court found the releases were void under the New York statute.
The appellate court found that the risks of the activity were fairly obvious, and the plaintiff had assumed the risk of her injuries.
Here, the risk of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant’s negligence, creating unique and dangerous conditions beyond those inherent in the sport
The court then went back to its decision on releases and found the language attempting to release the defendant for negligence was void; however, the rest of the release was still valid.
So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326. Severance of that provision leaves the rest of the contract intact…
Part of one of the releases had included a clause that any suit required the plaintiff to pay the defendant’s damages of attorney fees and costs. The defendant filed a counterclaim against the plaintiff based upon this clause. The court did not rule on this issue finding that the trial court needed to look into whether this clause violated public policy as advanced by the statute that voids releases.
As to defendant’s counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney’s fees and litigation costs might transgress the public policy of promoting recreational activities advanced by § 5-326 does not appear to have been considered by the courts.
The matter was sent back to the trial court to determine if the counterclaim for attorney fees and costs of the defendant violated New York Public policy and for any defenses the plaintiff may have to the defendant’s counterclaims.
So Now What?
The defendant lost on the defense of release, but won on the defense of assumption of the risk. The defendant might win on the opportunity to sue the plaintiff for attorney fees and costs in the assumption of risk agreements (since the releases are void).
This case appears to be fairly clear in its approach and decision. You can get hurt if you fall out of the sky. That is pretty obvious. Therefore, you assume the risk.
The argument about the sky-diving facility being an educational business rather than recreation is discussed in the trial court decision. That argument made by the defendant was based on Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003). In Lemoine, the university was subject to the statute which voids releases in New York, but because it was an educational organization and not one for recreation, the statute did not apply.
What is different is the issue that the court held out the possibility that a demand for attorney fees and costs to a prevailing defendant may be viable in New York.
Four years has passed since this decision, and no other cases have been reported. Consequently, as of this time we do not have a decision to rely upon for this issue.
Even if there is not a valid claim because it violates public policy, there are several other theories on how a defendant can recover attorney fees in situations like this that may survive.
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 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
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Skydiving, Release, Public Policy, Assumption of the Risk, Tandem, Tandem Skydiving,
WordPress Tags: York,attorney,defendant,assumption,Nutley,SkyDive,Ranch,Slip,LEXIS,Appel,Plaintiff,Lisa,Claims,Negligence,Defenses,Release,opinion,spouse,tandem,gift,fourth,judgment,instruction,Misc,Summary,basis,denial,statute,General,Obligations,lawsuit,injuries,Here,fact,injury,event,decision,waiver,Severance,provision,Part,clause,policy,agreements,litigation,Public,argument,recreation,Lemoine,Cornell,Four,theories,situations,Leave,FaceBook,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,counterclaims,counterclaim,appellate,whether,upon
Is a Photo Release valid when it is in a Release?
Posted: July 15, 2013 Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: 10 Kilometer Run, Contract, Inc., Maureen S. Bateman, Model Release, New York, New York Marathon, New York Roadrunners Club, Perrier, Photo Release, Photograph Release, Release, Sport Photo and EMS, Summary judgment 1 CommentNew York court said maybe not.
Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Plaintiff: Maureen S. Bateman
Defendant: Sport Photo and EMS, Inc.
Plaintiff Claims: Violation of New York Civil rights law §§ 50, 51 (misrepresentation of release signed to enter a road race)
Defendant Defenses: release and contract
Holding: for the plaintiff
This case is about a little clause found in numerous releases in the outdoor recreation industry. The clause is the photography release in the release.
In this case, the plaintiff signed the release to enter the New York Roadrunners Club (NYRRC) 10K road race. The plaintiffs photograph was assigned to the defendant who used it to advertise another race. The defendant was in the business of soliciting contestants to buy photographs when they ran a race.
The plaintiff found out about the use of her photograph when the defendant used it to attempt to market the New York Marathon.
Defendants’ employees take photographs of runners as they participate in a race. Thereafter, defendants obtain the names and addresses of the participants from the sponsor of the race, and mail the participants “proof cards” of the photograph along with an offer to sell them a color copy of the photograph. During the course of the Perrier 10K defendants took plaintiff’s photograph, which was subsequently purchased by plaintiff’s husband. Plaintiff does not object to the sending of the proof card or the sale of her photograph to her husband. Rather, plaintiff objects to the use of her photograph as part of an advertisement of defendants’ Special Poster Offer”. Almost 6,000 copies of the Special Poster Offer, including plaintiff’s photograph, were printed and mailed to participants in the 1981 New York Marathon.
The plaintiff sued over the issue. The defendant filed a motion for summary judgment which this court denied.
Summary of the case
The plaintiff argued there were two legal issues at stake:
…“whether plaintiff, by signing the so-called “release”, consented to the use of her photograph for advertising purposes unrelated to the event in which she was running; and second, whether there was a valid assignment by NYRRC to Sportphoto.”
Normally contracts are only interpreted by the language of the contract. No other evidence can be brought into to interpret the contract. Specific words in a contract are given the definition found in the contract, if not defined there, then as used in the industry or as defined by courts in other cases.
At issue was the interpretation of the word in the photo release, legitimate. In this case, however, the court found a different interpretation for the word “legitimate.” The defendants argued the word should be defined as found in a dictionary, which would be the definition that would normally be used.
Plaintiff responds, and the Court agrees, that the phrase should not be construed without reference to the “circumstances under which the entry blank was signed, and the purpose for which it was required – getting a number to run a race.
Releases under New York law are interpreted according to New York contract law.
The law is clear with respect to the interpretation of releases generally that their “meaning and coverage necessarily depend as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did not desire or intend to dispose of.”
The reason why the court stretched was based upon the plaintiff signed a release to race and also gave up her photographic rights.
The ultimate question in this case is whether, in light of all of the surrounding circumstances, the parties could reasonably have intended plaintiff’s signature on her entry blank to signify her consent to the use of her photograph for commercial purposes in connection with a different race a year and a half later; or whether, as plaintiff contends, the only use contemplated was promotional activity in connection with the race plaintiff was then entering.
The plaintiff raised valid issues, bordering on misrepresentation, about how her legal agreement was reached. “…the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace.”
The court could find that whether the plaintiff intended to run a road race or give up her photo rights. “Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.”
The plaintiff also argued that the assignment between the NYRRC, and the defendant was invalid.
In both cases, the court stated that there was a genuine issue of fact that had to be reviewed by a jury.
So Now What
Like any clause in a contract or release, make sure if your guests want to read the release they have the opportunity to read the release.
You may want to identify the photo release with a bold heading so people cannot argue you tried to hide it.
I would also suggest that when you are going to use someone’s photograph you contact them and offer an incentive for using their release; a free trip, a discount, a T-shirt even. Most people if given the opportunity would love to have their photograph used. By providing your guests with some type of consideration (money) post contract you are at least going to find out how they feel and arguing you “paid” for the right to sue their photos.
This case has me wondering.
 |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
G-YQ06K3L262
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
Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2013-2023 Summit Magic Publishing, LLC
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Maureen S. Bateman, Sport Photo and EMS, Inc., 10 Kilometer Run, New York Roadrunners Club, New York Marathon, Release, Photo Release, Photograph Release, Model Release, Perrier,
WordPress Tags: Photo,Release,York,Bateman,Sport,Dist,LEXIS,Plaintiff,Defendant,Claims,Violation,Civil,misrepresentation,road,Defenses,clause,recreation,industry,photography,Roadrunners,Club,NYRRC,plaintiffs,contestants,Marathon,Defendants,employees,runners,Thereafter,participants,cards,Perrier,husband,card,sale,Rather,advertisement,Special,Poster,Offer,Almost,judgment,Summary,purposes,event,assignment,Sportphoto,Specific,definition,interpretation,dictionary,Court,reference,purpose,Releases,coverage,controversy,signature,connection,agreement,athlete,Thus,fact,jury,guests,incentive,shirt,Most,money,photos,Leave,FaceBook,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Kilometer,Photograph,Model,whether,upon
Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Posted: July 15, 2013 Filed under: Legal Case, New York, Racing, Release (pre-injury contract not to sue) | Tags: 10 Kilometer Run, Inc., Maureen S. Bateman, Model Release, New York, New York City, New York Marathon, New York Roadrunners Club, New York Supreme Court, Perrier, Photo Release, Photograph Release, Plaintiff, Release, Sport Photo and EMS, Summary judgment Leave a commentTo Read an Analysis of this decision see: Is a Photo Release valid when it is in a Release?
Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Maureen S. Bateman, Plaintiff, against Sport Photo and EMS, Inc., Defendants.
No. 81 Civ. 4790 (MJL)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1983 U.S. Dist. LEXIS 15461
July 14, 1983
COUNSEL: [*1] J. DENNIS McGRATH, ESQ., 321 East 89th Street, New York, New York 10028, for plaintiff.
ROGERS & WELLS, 200 Park Avenue, New York, New York 10166, for defendants.
OPINION BY: LOWE
OPINION
MEMORANDUM OPINION AND ORDER
MARY JOHNSON LOWE, D. J.
This action, brought pursuant to New York Civil Rights Law Sections 50 and 51, was originally commenced in New York Supreme Court. The action was subsequently removed by the defendants to this Court. Plaintiff alleges that defendants used a photograph of her taken during the 1980 Perrier 10 Kilometer Run in New York Ciry, for advertising purposes, without her written consent, in violation of the above-mentioned statute. 1 Defendants have moved for summary judgment on the ground that plaintiff signed a release on her entry blank which gave the New York Roadrunners Club [“NYRRC”] and its assigns “full permission… to use any photographs, video tapes, motion pictures, recordings, or any other record of this event [the Perrier 10 Kilometer Run] for any legitimate purpose.” Defendants claim that NYRRC assigned the rights, acquired by virtue of plaintiff’s release, to Sportphoto for use in connection with Sportphoto’s business of soliciting [*2] mail order sales of photographs from contestants in competitive foot races.
1 Briefly stated, defendants’ business operates as follows. Defendants’ employees take photographs of runners as they participate in a race. Thereafter, defendants obtain the names and addresses of the participants from the sponsor of the race, and mail the participants “proof cards” of the photograph along with an offer to sell them a color copy of the photograph. During the course of the Perrier 10K defendants took plaintiff’s photograph, which was subsequently purchased by plaintiff’s husband. Plaintiff does not object to the sending of the proof card or the sale of her photograph to her husband. Rather, plaintiff objects to the use of her photograph as part of an advertisement of defendants’ Special Poster Offer”. Almost 6,000 copies of the Special Poster Offer, including plaintiff’s photograph, were printed and mailed to participants in the 1981 New York Marathon. (Evenson Dep. at 55).
Plaintiff argues that there are two major issues of material fact which preclude the granting of summary judgment in favor of defendants; first, whether plaintiff, by signing the so-called “release”, consented [*3] to the use of her photograph for advertising purposes unrelated to the event in which she was running; and second, whether there was a valid assigment by NYRRC to Sportphoto. The Court agrees that there are genuine issues of material fact in this case which render summary judgment inappropriate.
The parties’ dispute concerning the correct interpretation of the “release” centers around the use of the phrase “for any legitimate purpose”. Defendants argue that “legitimate” should be given its dictionary meaning, which would clearly encompass advertising and commercial purposes. Plaintiff responds, and the Court agrees, that the phrase should not be construed without reference to the “circumstances under which the entry blank was signed, and the purpose for which it was required – getting a number to run a race.” Plaintiff’s Op. Memo., at 20.
[HN1] The law is clear with respect to the interpretation of releases generally that their “meaning and coverage necessarily depend as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did [*4] not desire or intend to dispose of”. Cahill v. Regan, 5 N.Y.2d 292, 299, 184 N.Y.S.2d 348, 354, 157 N.E.2d 505, 510, quoted in Tarantola v. Williams, 48 AD 2 552 371 N.Y.S.2d 136, 139. The ultimate question in this case is whether, in light of all of the surrounding circumstances, the parties could reasonably have intended plaintiff’s signature on her entry blank to signify her consent to the use of her photograph for commercial purposes in connection with a different race a year and a half later; or whether, as plaintiff contends, the only use contemplated was promotional activity in connection with the race plaintiff was then entering. 2 The Court is convinced on the record before it that this question should be resolved by the trier of fact.
2 Plaintiff’s affidavit makes clear that if a photograph of her running in the Perrier 10K appeared in an article about that race, or if the sponsor of the race showed a video-tape of the race, in which plaintiff happened to appear she would deem those uses “legitimate” within the meaning of the release. Bateman Aff. P29.
This case is not, as defendants suggest, analagous to cases in which courts have broadly construed releases [*5] entered into by professional models and actors. Unlike the plaintiffs in those cases, who knowingly signed releases for commercial purposes in pursuit of their careers, the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace. What constitutes a “legitimate use” of an individual’s photograph may vary from one context to another. Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.
Plaintiff also claims that there is a genuine issue of material fact with respect to whether defendants were the assignees of whatever rights NYRRC obtained by virtue of the entry blank “release”. Plaintiff acknowledges that there was a verbal agreement in 1979 (and renewed thereafter), between NYRRC and defendants giving defendants the exclusive right to take photographs of runners at the Perrier 10K for subsequent mail order sale. However, she argues that this agreement did not constitute an “assignment” of any rights on the entry blank; nor did it contemplate the use of one runner’s photograph for advertising directed at other runners.
Defendants maintain that [*6] in construing the agreement between NYRRC and defendants, the intent of the parties is controlling. They argue that in this case, the intent of the parties has been explicitly set out in the affidavits of Mr. Lebow, president of the NYRRC, and Mr. Evenson, president of defendants. Both Mr. Lebow and Mr. Evenson state that NYRRC intended to assign defendants the right to use runners’ photographs for all legitimate purposes, including advertising in connection with defendants’ business of selling photographs by mail. It is defendants’ position that in light of these clear expressions of intent, the assignment issue should be resolved as a matter of law.
Plaintiff argues that the rest of the evidence, including portions of Mr. Evenson’s own deposition testimony, contradicts the statements of Mr. Lebow and Mr. Evenson with respect to their intent at the time the agreement was reached, and thus raises a triable issue of fact. For example, Mr. Evenson testified during his deposition that he and Mr. Lebow never discussed the language of the entry blank “release”, the assignment of rights under the entry blank “release”, or the use of a participant’s photograph in the manner challenged [*7] herein, during negotiations for the agreement.Mr. Lebow testified that he could not recall whether these issues had been discussed. Defendants respond that the parties need not have anticipated or discussed every specific application of the agreement so long as the agreement was sufficiently broad to encompass those applications.
We find that the plaintiff has raised questions of credibility and intent which, even where the evidence weighs strongly in favor of one side, are better left to the trier of fact.
For the reasons stated above, defendants’ motion for summary judgment is hereby denied.
It is So Ordered.
WordPress Tags: Bateman,Sport,Photo,Dist,LEXIS,York,Plaintiff,Defendants,STATES,DISTRICT,COURT,SOUTHERN,COUNSEL,DENNIS,McGRATH,East,Street,ROGERS,WELLS,Park,Avenue,OPINION,LOWE,MEMORANDUM,ORDER,MARY,JOHNSON,action,Civil,Rights,Sections,Supreme,Perrier,Kilometer,Ciry,purposes,violation,statute,judgment,Roadrunners,Club,NYRRC,permission,recordings,event,purpose,virtue,Sportphoto,connection,sales,contestants,foot,employees,runners,Thereafter,participants,cards,husband,card,sale,Rather,advertisement,Special,Poster,Offer,Almost,Marathon,Evenson,fact,interpretation,dictionary,reference,Memo,coverage,controversy,Cahill,Regan,Tarantola,Williams,signature,trier,affidavit,article,actors,plaintiffs,pursuit,athlete,context,Thus,agreement,assignment,runner,affidavits,president,Both,testimony,statements,example,participant,manner,negotiations,whether,upon
Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit
Posted: May 6, 2013 Filed under: Cycling, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Central Park, Cycling, Cyclists, Day Camp, New York, New York City, NY, Oasis Children's Services, Recreation, Summer Camp, Summer Enrichment program Leave a commentPavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Cyclists deserved it to.
This is a lawsuit over an injury a cyclist received when he crashed in New York City. He crashed because an eighteen year old summer enrichment program counselor shoved him over with her “Stop Children Crossing” sign when he failed to stop at a light.
A summer enrichment program is a day camp for kids when parents have to work. The kids are taken on tours, programs, exercise and many involve a lot of outdoor recreation. In this case, the kids with two counselors were walking to a swimming pool. The program was run by the defendant Oasis Children’s Services.
While crossing a street only half the students made it across the street before the light changed. The defendant counselor kept her students back until the light changed again. She then proceeded out to the middle of traffic and held up a sign which said Stop Children Crossing. As the students started to cross she noticed a group of cyclists coming towards the crosswalk. All but one of the cyclists stopped. The one who did not stop was the defendant.
As per the protocol of the program, the counselor was supposed to yell at cyclists who look like they are not going to stop. If the cyclists do not stop a counselor it to put their body between the bicycle and the kids. (That is asking a lot of an 18-year-old kid!)
The light was red; the cyclist was not stopping so the counselor put her body between the kids and the cyclists. The cyclists still did not stop. The counselor waived her sign and yelled at the cyclists. At the last moment, she jumped out of the way, and she pushed the cyclists arm with her sign.
He crashed!
The cyclists sued for negligence that he crashed because a girl pushed him with a sign. The defendants raised the defense of the Sudden Emergency Doctrine.
Summary of the case
The sudden emergency doctrine has many different names and variations across the US. You should check your state to determine if it is available as a defense how the defense is defined. Do not rely on the sudden emergency doctrine to save you, it rarely does.
In New York, the Sudden Emergency Doctrine is defined as:
A common law emergency doctrine is recognized in New York and it applies “when an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct. The actor may not be negligent if the actions taken are reasonable and prudent in the emergency context”.
Basically, it says you can be negligent for the greater good. If your negligence is less than the damage or problem that not being negligent will create, then the Sudden Emergency Doctrine provides you a defense to a negligence claim.
In this case, the court found the actions of the defendant counselor in pushing the cyclists saved the children. “The evidence is credible that Marte [Defendant] pushed Pavane [Plaintiff] from his bicycle in order to prevent children from getting injured.”
Application of the Sudden Emergency Doctrine is a balancing test to some extent. The harm created by the negligent act is less than the harm that would have occurred if the defendant had not acted. 99% of the time only a jury will make the decision, whether your actions where worth it.
As a further little hit, the court held “It is the finding of this Court that Mr. Pavane’s own failure to stop at the red light and yield to children crossing the street was the sole proximate cause of the incident.”
So Now What?
The sad thing is the program had so much experience with cyclist’s running lights; they had developed a program to deal with it.
Cyclists of New York, you should be embarrassed!
The classic case of where the Sudden Emergency Doctrine would work is portrayed in “Touching the Void” by Joe Simpson.
Do not rely on the sudden emergency doctrine as a defense in your program or activity.
Plaintiff: Martin Pavane and Merrill Pavane
Defendant: Samidra Marte, Oasis Community Corporation and Oasis Children’s Services
Plaintiff Claims: Negligence
Defendant Defenses: Sudden Emergency Doctrine
Holding: For the Defendant
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 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
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer,Oasis Children’s Services, Summer Enrichment program, Summer Camp, Day Camp, Cyclists, NY, New York City, Central Park,
WordPress Tags: Pavane,Marte,Misc,LEXIS,Slip,Martin,Merrill,Plaintiff,Samidra,Oasis,Corporation,Children,Services,Defendant,SUPREME,COURT,YORK,KINGS,August,NOTICE,OPINION,OFFICIAL,REPORTS,TERMS,judgment,bicycle,street,counselor,doctrine,fact,situation,deliberation,HEADNOTES,Negligence,Emergency,JUDGES,Bernard,Graham,Justice,Decision,lawsuit,complaint,December,plaintiffs,defendants,Samira,action,Central,Park,CPLR,dismissal,Background,enrichment,area,locations,Rachel,Carrion,campers,West,Drive,testimony,sidewalk,guidelines,Richard,Thompson,McKay,supervisor,protocol,counselors,Rodney,Gould,person,path,moment,Discussion,opposition,knowledge,existence,Bello,Transit,Auth,Dept,Here,descriptions,actor,circumstance,context,Caristo,Rivera,Marks,Robb,response,jury,Koenig,Vitale,Levine,determination,Although,Rotuba,Extruders,Ceppos,Sillman,Twentieth,Century,Film,Corp,assertions,example,Leon,Sager,woman,teens,Branham,Loews,Orpheum,Cinemas,conclusion,tort,consequences,intersection,injury,Where,accident,Goff,Goudreau,failure,incident,CountyBottom,Form,crosswalk,triable,cyclist,pursuant,whether
Pavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Posted: May 6, 2013 Filed under: Cycling, Legal Case, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Central Park, Cyclists, Day Camp, Metro Areas, New York, New York City, NY, Oasis Children's Services, Plaintiff, Summary judgment, Summer Camp, Summer Enrichment program Leave a commentPavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Martin Pavane and Merrill Pavane, Plaintiff(s), against Samidra Marte, Oasis Community Corporation and Oasis Children’s Services, Defendant(s).
33473/08
SUPREME COURT OF NEW YORK, KINGS COUNTY
37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
August 9, 2012, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: summary judgment, bicycle, street, crossing, counselor, emergency, crosswalk, walk, emergency doctrine, triable issues of fact, stop sign, deposition, cyclist, annexed, proximate cause, red light, matter of law, emergency situation, party opposing, affirmative defense, traffic light, reasonableness, deliberation, speculative, unexpected, proceeded, favorable, surprise, sudden, pushed
HEADNOTES
[*1216A] Negligence–Emergency Doctrine.
JUDGES: [**1] Hon. Bernard J. Graham, Acting Justice.
OPINION BY: Bernard J. Graham
OPINION
Bernard J. Graham, J.
Decision:
The captioned lawsuit was commenced by filing of a summons and complaint on or about December 8, 2008, by plaintiffs, Martin Pavane and Merrill Pavane, against defendants Samira Marte (incorrectly identified as “Samidra Marte”), Oasis Community Corporation, and Oasis Children’s Services, LLC. Plaintiffs’ claim is a negligence action against defendants stemming from a fall at Central Park and a derivative claim on behalf of plaintiff, Merrill Pavane.
Defendants move for summary judgment pursuant to CPLR § 3212 for dismissal of the plaintiffs’ complaint alleging that there are no triable issues of fact and that defendants are free from liability pursuant to the Emergency Doctrine’.
Background
Defendant Oasis Children’s Services, LLC (“Oasis”) is a company that runs summer enrichment programs for at-risk children in the tri-state area. They have several camp locations in New York City, including one in Central Park.
Defendant Oasis Community Corporation is a named defendant which is ostensibly related to Oasis Children’s Services, LLC.
During the summer of 2008, Oasis hired 18-year-old defendant Samira Marte [**2] (“Marte”) as a camp counselor. On August 22, 2008, Marte and another counselor, Rachel Carrion (“Carrion”), entered Central Park at 96th Street with their campers to reach a swimming pool at 110th Street. Their route required them to cross West Drive.
According to the deposition testimony of Ms. Marte, Rachel Carrion and several children crossed West Drive first. The walk signal changed to “do not walk” before Ms. Marte was able to cross with the rest of the group, so she stayed on the sidewalk with the children to wait for the light to change again. When the signal changed to “walk”, Ms. Marte followed camp guidelines and proceeded to the middle of the crosswalk to hold up her “stop/children crossing” sign. According to the deposition of Richard Thompson McKay, who is an Oasis supervisor and not a named party to the action, Oasis provided protocol training for all camp counselors on how to cross the street. Counselors are instructed to stand in the middle of the street with the stop sign before children may begin to pass. Counselors were also told that if it appears that a cyclist will not stop, then the counselors must first be “loud and verbal” and ask the cyclist to stop. If the [**3] cyclist still does not stop, then counselors must “put [their] body as best as [they] can in between bicyclist and the children that [they] have to protect.” (See Dep. of Richard Thompson McKay, pg. 11-12, annexed as Ex. “H” to the Aff. of Rodney E. Gould in support of motion for summary judgment).
Ms. Marte states that several bicyclists were traveling down West Drive and that all of them stopped for the red light except for “one person that kept going.” (See Dep. of Samira Marte, pg. 60-61, 73-74, annexed as Ex. “F” to the Aff. of Rodney E. Gould in support of motion for summary judgment). Ms. Marte observed the defendant, Martin Pavane (“Pavane”), approaching the red light on his bicycle and alleges that Mr. Pavane did not slow down. Since children were beginning to cross the street, Ms. Marte anticipated that the bicycle would collide with the crossing children and herself. In order to get Mr. Pavane to stop, Ms. Marte first waived her stop sign and yelled for him to stop. When the bicycle still did not stop or slow down, she tried to put herself in between the bicycle and the children by standing in front of the bicycle’s [***2] path. However, Ms. Marte was forced to move aside because [**4] she states that the bicycle was going too fast. She was afraid that the bicycle would run right into her and the children. Ms. Marte states that was the moment she decided to push Mr. Pavane’s arm with the stop sign (Marte Dep. pg. 74-77).
Discussion
In opposition to the defendants’ motion for summary judgment, plaintiffs argue that the defendants failed to include the Emergency Doctrine’ as an affirmative defense in their answer.
However, where the party opposing summary judgment has knowledge of the facts relating to the existence of an emergency and would not be taken by surprise with the use of the emergency defense, the doctrine does not have to be pleaded as an affirmative defense (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 61, 783 N.Y.S.2d 648 (2nd Dept. 2004)). Here, plaintiffs cannot claim that they were taken by surprise by defendants’ emergency defense. The depositions provide full descriptions of facts describing an emergency situation.
A common law emergency doctrine is recognized in New York and it applies “when an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so [**5] disturbed that the actor must make a speedy decision without weighing alternative courses of conduct. [The] actor may not be negligent if the actions taken are reasonable and prudent in the emergency context”. (Caristo v. Sanzone, 96 NY2d 172, 174, 750 N.E.2d 36, 726 N.Y.S.2d 334 (2001) (citing Rivera v. New York City Tr. Auth., 77 NY2d 322, 327, 569 N.E.2d 432, 567 N.Y.S.2d 629 (1991); see also Marks v. Robb, 90 AD3d 863, 935 N.Y.S.2d 593 (2nd Dept. 2011)). The depositions show that Marte was confronted with a sudden and unexpected emergency circumstance that left her with little time for deliberation. The evidence is credible that Marte pushed Pavane from his bicycle in order to prevent children from getting injured.
Ordinarily, the reasonableness of a party’s response to an emergency situation will present questions of fact for a jury, but it may be determined as a matter of law in appropriate circumstances (Bello v. Transit Auth. of NY City, 12 AD3d at 60; see also Koenig v. Lee, 53 AD3d 567, 862 N.Y.S.2d 373 (2nd Dept. 2008); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).
In this case, defendants seek an award of summary judgment dismissing the plaintiffs’ claim which would require a determination by this Court that, as a matter of law, the actions taken by Ms. Marte were reasonable [**6] and did not present a question which should be presented to a jury. Although summary judgment is a drastic remedy, a court may grant summary judgment when the moving party establishes that there are no triable issues of material fact (see Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 N.E.2d 1068, 413 N.Y.S.2d 141 (1978); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957)).
Rachel Carrion, the co-counselor who is not a named party to the action, testified that she saw Pavane ride his bicycle towards the crosswalk where herself and Marte were crossing the street with children from the Oasis summer camp (see Carrion Dep. pg. 8-9 annexed to Gould [***3] Aff. in support of motion for summary judgment). Carrion testified that Pavane was approaching them “at [a] speed” and “would not stop” (Carrion Dep. pg. 10). The testimony of Ms. Carrion is completely consistent and corroborative of Ms. Marte’s testimony. Ms. Marte stated that Mr. Pavane was not going to stop and was about to hit the four children who were crossing in the crosswalk (Marte Dep. pg 61).
The majority of Pavane’s testimony consists of mere speculative and conclusory assertions because he claims to not recall most details. For example, Pavane did not recall [**7] whether he saw children on the street (see Pavane Dep. pg. 17, annexed to the Aff of Leon Sager in opposition to the motion for summary judgment), but states that “it’s certainly possible there were people there.” (Pavane Dep. pg. 17). Carrion testified that there definitely were children on both sides of the crosswalk and some crossing in the middle before Marte pushed Pavane off his bicycle (Carrion Dep. pg. 11). Pavane also does not recall whether Marte was holding a “stop, children crossing” sign or whether she was waving at him, but he does remember Marte being a young woman in her teens (Pavane Dep. Pg. 17), who was “doing something with her hands at the particular time when she stepped in front of [him]” (Pavane Dep. pg. 18).
In reviewing the offered testimony in support of the motion and the opposition to the motion, the evidence submitted must be viewed in the light most favorable to the party opposing the motion (see Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931, 866 N.E.2d 448, 834 N.Y.S.2d 503 (2007)). Even assessing the available evidence in a light most favorable to Mr. Pavane, a neutral reading of the evidence would support a conclusion that Ms. Marte and the children were crossing the street with [**8] the “walk” sign in their favor; that Ms. Marte was positioned with her stop sign at the cross walk; and that Mr. Pavane was cycling into the crosswalk against the traffic light.
While this Court is hesitant to declare the actions of any party in an alleged tort claim to be reasonable as a matter of law, in certain cases, such as this, summary judgment may be appropriate. (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 783 N.Y.S.2d 648 (2004). The actions of the defendant, Marte, must be considered reasonable given the emergency she faced and the potentially harmful consequences to the children she was protecting. It is also apparent that Mr. Pavane proceeded into the intersection against the traffic light and, would fairly be considered to be the proximate cause of his injury. Where it is clear that the plaintiff’s actions were the sole proximate cause of the accident, plaintiff’s mere speculative assertions that defendant may have failed to act properly is insufficient to raise a triable issue of fact to defeat a summary judgment motion. (see Goff v. Goudreau, 222 AD2d 650, 650, 635 N.Y.S.2d 699 (2nd Dept. 1995); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).
Conclusion
It is the finding of this Court that Mr. Pavane’s [**9] own failure to stop at the red light and yield to children crossing the street was the sole proximate cause of the incident. The actions of the camp counselor, Ms. Marte, in the context of crossing the street with young children who she feared would be injured by the cyclist can only be considered reasonable and appropriate in the given circumstances. Mr. Pavane has not offered evidence which would raise a triable issue of fact as to the reasonableness of Ms. Marte’s actions and to subject the defendants here to the expenses of a trial on this matter would be exceedingly unjust.
Accordingly, defendants’ motion for summary judgment is granted and the plaintiff’s complaint is dismissed.
This shall constitute the decision and order of this Court.
Dated: August 9, 2012
/s/
Hon. Bernard J. Graham, Acting Justice
Supreme Court, Kings CountyBottom of Form
WordPress Tags: Pavane,Marte,Misc,LEXIS,Slip,Martin,Merrill,Plaintiff,Samidra,Oasis,Corporation,Children,Services,Defendant,SUPREME,COURT,YORK,KINGS,August,NOTICE,OPINION,OFFICIAL,REPORTS,TERMS,judgment,bicycle,street,counselor,doctrine,fact,situation,deliberation,HEADNOTES,Negligence,Emergency,JUDGES,Bernard,Graham,Justice,Decision,lawsuit,complaint,December,plaintiffs,defendants,Samira,action,Central,Park,CPLR,dismissal,Background,enrichment,area,locations,Rachel,Carrion,campers,West,Drive,testimony,sidewalk,guidelines,Richard,Thompson,McKay,supervisor,protocol,counselors,Rodney,Gould,person,path,moment,Discussion,opposition,knowledge,existence,Bello,Transit,Auth,Dept,Here,descriptions,actor,circumstance,context,Caristo,Rivera,Marks,Robb,response,jury,Koenig,Vitale,Levine,determination,Although,Rotuba,Extruders,Ceppos,Sillman,Twentieth,Century,Film,Corp,assertions,example,Leon,Sager,woman,teens,Branham,Loews,Orpheum,Cinemas,conclusion,tort,consequences,intersection,injury,Where,accident,Goff,Goudreau,failure,incident,CountyBottom,Form,crosswalk,triable,cyclist,pursuant,whether
New York Sales Representative
Posted: March 17, 2013 Filed under: New York | Tags: Employment, IC, Independent Sales Rep, Labour law, New York, New York City, Rep, Wage Leave a commentNEW YORK CONSOLIDATED LAW SERVICE
All rights reserved
LABOR LAW
ARTICLE 6. PAYMENT OF WAGES
Go to the New York Code Archive Directory
NY CLS Labor § 190 (2013)
§ 190. [n1] [n1]Definitions
As used in this article:
1. “Wages” means the earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis. The term “wages” also includes benefits or wage supplements as defined in section one hundred ninety-eight-c of this article, except for the purposes of sections one hundred ninety-one and one hundred ninety-two of this article.
2. “Employee” means any person employed for hire by an employer in any employment.
3. “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency.
4. “Manual worker” means a mechanic, workingman or laborer.
5. “Railroad worker” means any person employed by an employer who operates a steam, electric or diesel surface railroad or is engaged in the sleeping car business. The term “railroad worker” shall not include a person employed in an executive capacity.
6. “Commission salesman” means any employee whose principal activity is the selling of any goods, wares, merchandise, services, real estate, securities, insurance or any article or thing and whose earnings are based in whole or in part on commissions. The term “commission salesman” does not include an employee whose principal activity is of a supervisory, managerial, executive or administrative nature.
7. “Clerical and other worker” includes all employees not included in subdivisions four, five and six of this section, except any person employed in a bona fide executive, administrative or professional capacity whose earnings are in excess of [fig 1] nine hundred dollars a week.
8. “Week” means a calendar week or a regularly established payroll week. “Month” means a calendar month or a regularly established fiscal month.
9. “Non-profitmaking organization” means a corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or individual.
§ 191. Frequency of payments
1. Every employer shall pay wages in accordance with the following provisions:
a. Manual worker.–
(i) A manual worker shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned; provided however that a manual worker employed by an employer authorized by the commissioner pursuant to subparagraph (ii) of this paragraph or by a non-profitmaking organization shall be paid in accordance with the agreed terms of employment, but not less frequently than semi-monthly.
(ii) The commissioner may authorize an employer which has in the three years preceding the application em-ployed an average of one thousand or more persons in this state or has for one year preceding the application employed an average of one thousand or more persons in this state and has for three years preceding the application employed an average of three thousand or more persons outside the state to pay less frequently than weekly but not less frequently than semi-monthly if the employer furnishes satisfactory proof to the commissioner of its continuing ability to meet its payroll responsibilities. In making this determination the commissioner shall consider the following: (A) the employer’s history meeting its payroll responsibilities in New York state or if no such history in New York state is available, other financial information, as requested by the commissioner, which will assist the commissioner in determining the likelihood of the employer’s continuing ability to meet payroll responsibilities; (B) proof of the employer’s coverage for workers’ compensation and disability; (C) proof that there are no outstanding warrants of the department of taxation and finance or the department of labor against the employer for failure to remit state personal income tax withholdings or unemployment insurance contributions; and (D) proof that the employer has a computerized record keeping system for payroll which, at a minimum, specifies hours worked, rate of pay, gross wages, deductions and date of pay for each employee. If the employers’ manual workers are represented by a labor organization, the commissioner shall not grant an employer’s application for authorization under this subparagraph unless that labor organization consents thereto.
Upon notice to the employer and an opportunity to be heard, the commissioner may rescind such authorization whenever the commissioner has determined, based upon the factors enumerated above, that the employer is no longer able to meet its payroll responsibilities as previously authorized.
b. Railroad worker.-A railroad worker shall be paid on or before Thursday of each week the wages earned during the seven-day period ending on Tuesday of the preceding week; and provided further that at the written request and notification of address by any employee, every railroad corporation, with the exception of those commuter railroads under the jurisdiction of the metropolitan transportation authority, shall mail every check for wages of such employee via the United States postal service, first class mail.
c. Commission [fig 1] salespersons.–A commission [fig 2] salesperson shall be paid the wages, salary, drawing account, commissions and all other monies earned or payable in accordance with the agreed terms of employment, but not less frequently than once in each month and not later than the last day of the month following the month in which they are earned; provided, however, that if monthly or more frequent payment of wages, salary, drawing accounts or commissions are substantial, then additional compensation earned, including but not limited to extra or incentive earnings, bonuses and special payments, may be paid less frequently than once in each month, but in no event later than the time provided in the employment agreement or compensation plan. The employer shall furnish a commission [fig 3] salesperson, upon written request, a statement of earnings paid or due and unpaid. The agreed terms of employment shall be reduced to writing, signed by both the employer and the commission salesperson, kept on file by the employer for a period not less than three years and made available to the commissioner upon request. Such writing shall include a description of how wages, salary, drawing account, commissions and all other monies earned and payable shall be calculated. Where the writing provides for a recoverable draw, the frequency of reconciliation shall be included. Such writing shall also provide details pertinent to payment of wages, salary, drawing account, commissions and all other monies earned and payable in the case of termination of employment by either party. The failure of an employer to produce such written terms of employment, upon request of the commissioner, shall give rise to a presumption that the terms of employment that the commissioned salesperson has presented are the agreed terms of employment.
d. Clerical and other worker.–A clerical and other worker shall be paid the wages earned in accordance with the agreed terms of employment, but not less frequently than semi-monthly, on regular pay days designated in advance by the employer.
2. No employee shall be required as a condition of employment to accept wages at periods other than as provided in this section.
3. If employment is terminated, the employer shall pay the wages not later than the regular pay day for the pay period during which the termination occurred, as established in accordance with the provisions of this section. If requested by the employee, such wages shall be paid by mail.
§ 191-a. Definitions
For purposes of this article the term:
(a) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of wholesale orders or sales.
(b) “Earned commission” means a commission due for services or merchandise which is due according to the terms of an applicable contract or, when there is no applicable contractual provision, a commission due for merchandise which has actually been delivered to, accepted by, and paid for by the customer, notwithstanding that the sales representative’s services may have terminated.
(c) “Principal” means a person or company engaged in the business of manufacturing, and who:
(1) Manufactures, produces, imports, or distributes a product for wholesale;
(2) Contracts with a sales representative to solicit orders for the product; and
(3) Compensates the sales representative in whole or in part by commissions.
(d) “Sales representative” means a person or entity who solicits orders in New York state and is not covered by subdivision six of section one hundred ninety and paragraph (c) of subdivision one of section one hundred ninety-one of this article because he or she is an independent contractor, but does not include one who places orders for his own account for resale.
§ 191-b. Contracts with sales representatives
1. When a principal contracts with a sales representative to solicit wholesale orders within this state, the contract shall be in writing and shall set forth the method by which the commission is to be computed and paid.
2. The principal shall provide each sales representative with a signed copy of the contract. The principal shall obtain a signed receipt for the contract from each sales representative.
3. A sales representative during the course of the contract, shall be paid the earned commission and all other monies earned or payable in accordance with the agreed terms of the contract, but not later than five business days after the commission has become earned.
§ 191-c. Payment of sales commission
1. When a contract between a principal and a sales representative is terminated, all earned commissions shall be paid within five business days after termination or within five business days after they become due in the case of earned commissions not due when the contract is terminated.
2. The earned commission shall be paid to the sales representative at the usual place of payment unless the sales representative requests that the commission be sent to him or her through the mails. If the commissions are sent to the sales representative by mail, the earned commissions shall be deemed to have been paid as of the date of their postmark for purposes of this section.
3. A principal who fails to comply with the provisions of this section concerning timely payment of all earned commissions shall be liable to the sales representative in a civil action for double damages. The prevailing party in any such action shall be entitled to an award of reasonable attorney’s fees, court costs, and disbursements.
WordPress Tags: York,Sales,Representative,SERVICE,Matthew,Bender,member,LexisNexis,Group,chapters,LABOR,ARTICLE,PAYMENT,WAGES,Code,Archive,Directory,Definitions,earnings,employee,basis,purposes,person,employer,employment,corporation,association,occupation,industry,agency,Manual,worker,laborer,Railroad,steam,Commission,goods,wares,estate,insurance,Clerical,employees,subdivisions,dollars,Week,calendar,payroll,Month,chest,foundation,shareholder,Frequency,payments,accordance,commissioner,paragraph,determination,history,information,coverage,workers,compensation,department,taxation,failure,income,withholdings,unemployment,contributions,system,hours,deductions,employers,authorization,Upon,factors,notification,exception,commuter,jurisdiction,transportation,States,salespersons,salesperson,salary,account,monies,incentive,bonuses,event,agreement,statement,description,Where,reconciliation,termination,presumption,periods,percentage,dollar,provision,customer,Principal,Manufactures,product,Contracts,Compensates,subdivision,contractor,method,receipt,action,attorney,disbursements,salesman,five,seven,subparagraph,semi,three,thousand
Good record keeping proves defendant ski area did not operate lift improperly
Posted: February 18, 2013 Filed under: Assumption of the Risk, New York, Ski Area, Skiing / Snow Boarding | Tags: American National Standards Institute, lift, lift attendant, New York, Peter Harris, Ski, Ski Resort, skiing, Song Mountain Ski Center, South Slope Development Corp. Leave a commentPlaintiff’s case is hard to prove when two other people exit the lift properly from the same chair.
Plaintiff was riding a triple lift at the defendant’s ski area with her nine-year-old son and her ex-husband. She became entangled with her son’s skis and remained on the lift after her son, and ex-husband exited the lift. She then exited the lift before the lift hit the safety gate, falling and injuring herself.
A safety gate is a trip mechanism which stops the lift because a rider still on the lift trips it. It is designed to stop the lift if someone fails to exit the lift.
The plaintiff was an experienced intermediate skier. She owned her own skis, and boots had skied more than fifty times and had ridden the lift twice the day she was injured.
After the accident, the plaintiff completed and signed an “incident report form.” The form indicated she had stayed on the lift to allow her son to get off the lift. When she jumped she jumped 6 feet and landed on her left hip.
Prior to the accident, the lift was inspected by the New York Department of Labor and found to be in good condition. The lift met all standards as developed by ANSI (American National Standards Institute). The standards say a triple (obviously fixed grip) chair lift can travel a maximum of five hundred feet per minute (5 miles per hour). This lift was traveling between 400 and 500 feet per minute at the time.
The lift attendant’s daily log was up to date and indicated that everything was operating correctly on the lift. The lift
…fully checked on that date to ensure that all systems were working properly. The stops switches and safety gate were working, the ramps were snow covered and at a proper grade, the phones were working properly and the counter weight on the lift was clear and within normal limits.
One key point the court pointed out was simple. The plaintiff’s husband and son exited the lift with no problems. If the lift was not operating correctly they should have had problems getting off the lift also.
Summary of the case
The court reviewed the defenses and found that nothing was wrong with the lift. The plaintiff did not have an expert witness or any witness who could testify that the lift failed to operate properly. The court quickly dismissed the plaintiff’s claims that the lift failed to operate properly, and the ski area failed to operate the lift properly.
The claims were not supported by the plaintiff with any evidence.
The court looked at the New York statutes concerning skiing GOL §18-102 and GOL §18-104. The NY statute GOL §18-102 covers the duties of passengers who requires a passenger to familiarize themselves with the safe use of any lift prior to using it. GOL §18-104 states
A ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, including the risks associated with the use of a chair lift when the participant is aware of, appreciates and voluntarily assumes the risk.
The court found that the plaintiff failed to comply with the requirements of the skiing code by disembarking at the appropriate location and therefore, assumed the risk of her accident.
The plaintiff’s final argument was a prior case that had been sent back to the trial court because the lift attendant had failed to stop the lift when a mother and son’s ski equipment became entangled. In that case, the court found the son had been yelling and was excited. The plaintiff’s expert witness testified that there was time for the lift attendant to see the child in distress and stop the lift.
Here the court found that no one had indicated to the lift attendant that there were in distress so therefore the lift attendant had no obligation to stop the lift.
So Now What?
The ski area followed all standards and kept great records concerning the lift. The records proved that nothing was wrong with the lift at the time of the accident.
The ski area could prove, through records that it exceeded the requirements or standards for training lift attendants.
Finally, the plaintiff simply failed to present any evidence that the defendant had breached any duty to it.
Simply put, if you have a requirement to keep records, you better do an excellent job of keeping records. The resort’s records were up to date and covered every claim the plaintiff argued.
Plaintiff: Christina J. Tone and Steven Tone
Defendant: Song Mountain Ski Center and South Slope Development Corp. and their Agents, Servants and Employees, and Peter Harris, Individually and d/b/a Song Mountain Ski Center, and Individually as a member, officer, share-holder and director of South Slope Development Corp. and Song Mountain Ski Center
Plaintiff Claims: defendant failed to operate the lift correctly and the lift did not operate correctly and the lift attendants were not properly trained.
Defendant Defenses: Lift operated and was designed correctly and plaintiff assumed the risk.
Holding: Summary judgment granted for the defendant.
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: blog@rec-law.us
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Song Mountain Ski Center, South Slope Development Corp., Peter Harris, Song Mountain Ski Center, South Slope Development Corp., Song Mountain Ski Center, skiing, lift, lift attendant,
WordPress Tags: defendant,area,Song,Mountain,Center,Misc,LEXIS,Slip,Plaintiff,husband,gate,mechanism,rider,accident,incident,feet,Prior,York,Department,Labor,ANSI,American,National,Standards,Institute,hour,systems,ramps,Summary,statutes,statute,duties,passengers,operator,participant,requirements,location,argument,equipment,Here,obligation,attendants,requirement,resort,Christina,Steven,South,Slope,Development,Corp,Agents,Servants,Employees,Peter,Harris,member,officer,holder,director,Claims,Defenses,Lift,judgment,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,skis
New York case looks whether plaintiff could read and understand the agreement and held for the defendant.
Posted: October 29, 2012 Filed under: Camping, New York | Tags: American Arbitration Association, Appellate Court, Arbitration, Arbitration clause, camping, Language Barrier, New York Leave a commentAyzenberg v Bronx House Emauel Campus, Inc., etc., 93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396
The court also looked at the arbitration clause in the release and found it required arbitration.
This is another short New York Decision that was decided by the New York Appellate Court. The plaintiffs sustained an unknown injury while attending or staying at the defendant’s camp facility. The plaintiffs filed a complaint, and the defendants moved to compel arbitration as required in the application.
Summary of the case
The lower court denied the defendant’s motion to compel arbitration, and the defendant appealed. The plaintiff argued three theories on why the arbitration clause did not apply to them.
The first was a “language barrier” kept the plaintiffs from understanding what they were signing and that there was an arbitration clause. The court held the parties were bound by the agreement, including the arbitration clause even though they did not understand it.
The second was only the husband signed the agreement. The wife argued the husband could not sign for her. However, the court held the wife was bound by the agreement because the husband at the very least had apparent authority to sign for her. Apparent authority is an agency type of argument where by the actions of one party acting on behalf of the other party the defendant relied on the actions believing the first party had authority to act for the second party. The second party also took advantage of the benefits of the agreement or failed to reject the agreement and therefore, cannot reject the agreement now or say the first party could not sign on their behalf.
If you act like you are responsible and no one questions your authority, including the person you say you are responsible of, you are responsible.
The final argument put forth by the plaintiff was the agreement compelled arbitration by the Commercial Rules of the American Arbitration Association, and the claims of the plaintiffs were personal not commercial. Here the court found the argument failed because the agreement said the parties had to arbitrate any dispute between them.
So Now What?
The first thing that caught my eye was the plaintiffs did not understand the agreement, but understood enough English to get an attorney.
Arbitration is cheaper, faster and normally arbitrators can only award limited damages. Arbitration is usually a great idea. Always combine arbitration with mediation. The parties to an agreement must mediate their dispute first. If that does not work, then they can arbitrate.
Arbitration may have one downfall, and that would be in a state that supports releases. Arbitration is cheaper than a trial; it still usually ends up awarding the plaintiff some money. If your release is solid, you may want to avoid arbitration and rely on your release. It could be faster and probably cheaper. However, it is always a toss-up that you should review with your attorney.
The other point is the plaintiff signed the agreement with a language barrier. This different from signing and not reading the agreement or arguing you did not understand the agreement which courts always throw out. This is a great decision. Whether or not you can rely on it in your state is still, I suspect, up in the air.
However, this is a start.
|
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
G-YQ06K3L262
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
Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Camping, Camp, Arbitration, Language Barrier,
WordPress Tags: York,plaintiff,agreement,defendant,Ayzenberg,Bronx,House,Emauel,Campus,LEXIS,Slip,arbitration,clause,Decision,Appellate,Court,plaintiffs,injury,complaint,defendants,Summary,theories,barrier,husband,wife,Apparent,agency,argument,advantage,person,Commercial,Rules,American,Association,Here,English,attorney,arbitrators,mediation,downfall,money,Whether,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Language,behalf
Ayzenberg v Bronx House Emauel Campus, Inc., etc., 93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396
Posted: October 29, 2012 Filed under: Camping, Legal Case, New York | Tags: American Arbitration Association, Arbitration, camping, Federal Arbitration Act, Mound Cotton Wollan & Greengrass, New York Leave a commentTo Read an Analysis of this decision see: New York case looks whether plaintiff could read and understand the agreement and held for the defendant.
Ayzenberg v Bronx House Emauel Campus, Inc., etc., 93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396
Roza Ayzenberg, Plaintiff-Respondent-Appellant, v Bronx House Emauel Campus, Inc., etc., Defendant-Appellant-Respondent.
7224, 116013/10
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396
March 29, 2012, Decided
March 29, 2012, Entered
NOTICE:
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
COUNSEL: [***1] Mound Cotton Wollan & Greengrass, Garden City (Rodney E. Gould of counsel), for appellant-respondent.
Hill & Moin, LLP, New York (Cheryl Eisberg Moin of counsel), for respondent-appellant.
JUDGES: Mazarelli J.P., Andrias, Moskowitz, Acosta, Abdus-Salaam, JJ.
OPINION
[*607] [**107] Order, Supreme Court, New York County (Milton A. Tingling, J.), entered October 13, 2011, which denied defendant’s motion to stay the proceeding and compel arbitration pending further discovery, unanimously reversed, on the law, without costs, the motion to compel arbitration granted, and the action stayed.
In this action for personal injuries allegedly suffered by plaintiff while she and her husband were guests at defendant’s camp facility, defendant moved to stay the proceeding and compel arbitration based on an arbitration clause contained in the application for defendant’s camp program that was filled out by plaintiff’s husband and bears his signature. We find that the arbitration clause is binding on plaintiff. Irrespective of whether there [**108] was a language barrier that precluded plaintiff and her husband from understanding the content of the application, they are bound by its enforceable terms (see Shklovsky v Kahn, 273 AD2d 371, 372, 709 N.Y.S.2d 208 [2000]). [***2] Although plaintiff’s husband signed the application, which provided for the couples’ joint participation in defendant’s program, plaintiff is bound by it since her husband had, at the very least, apparent authority to sign for her (see Restatement, Agency 2d,§ 8 and § 27).
Plaintiff’s assertion that the arbitration clause does not apply to this personal injury action because it provides for the submission of claims “pursuant to the Commercial Rules of the American Arbitration Association,” is unavailing. The clause provides for arbitration of “any dispute resulting from [their] stay at” defendant’s facility (italics supplied), and thus, this matter is not excluded (see Marmet Health Care Center, Inc., et al. v Brown, US , 132 S Ct 1201, 182 L. Ed. 2d 42 [2012]; see also Remco Maintenance, LLC v CC Mgt. & Consulting, Inc., 85 AD3d 477, 925 N.Y.S.2d 30 [2011]).
Contrary to plaintiff’s argument, we find that the sale/purchase of the services defendant provided constitutes a transaction “involving commerce” within the meaning of the Federal Arbitration Act (see Citizens Bank v Alafabco, 539 U.S. 52, 56, 123 S. Ct. 2037, 156 L. Ed. 2d 46 [*608] [2003]). Thus, we find that to the extent GBL § 399-c may prohibit the subject arbitration clause, it is preempted [***3] by federal law.
We have reviewed plaintiff’s remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 29, 2012
WordPress Tags: Ayzenberg,Bronx,House,Emauel,Campus,LEXIS,Slip,Roza,Plaintiff,Respondent,Appellant,Defendant,SUPREME,COURT,YORK,APPELLATE,DIVISION,DEPARTMENT,March,NOTICE,PAGINATION,DOCUMENT,SUBJECT,CHANGE,RELEASE,FINAL,VERSION,OPINION,REVISION,PUBLICATION,OFFICIAL,REPORTS,COUNSEL,Mound,Cotton,Wollan,Greengrass,Garden,Rodney,Gould,Hill,Moin,Cheryl,Eisberg,JUDGES,Mazarelli,Andrias,Moskowitz,Acosta,Abdus,Salaam,Order,Milton,October,arbitration,discovery,action,injuries,husband,guests,clause,signature,Irrespective,barrier,Shklovsky,Kahn,Although,participation,Restatement,Agency,assertion,injury,submission,Commercial,Rules,American,Association,Marmet,Health,Care,Center,Brown,Remco,Maintenance,Contrary,argument,sale,transaction,commerce,Federal,Citizens,Bank,Alafabco,Thus,extent,contentions,CONSTITUTES,DECISION
NY court explains how it interprets Section 5-326 which disallows releases in NY. Upholds release for a marathon
Posted: October 8, 2012 Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: Brooklyn, General Obligations Law § 5-326, Jim Moss, New York, New York City, New York Roadrunners Club, New York Supreme Court Leave a commentBrookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
Language of General Obligations Law § 5-326 is interpreted
In this case, the plaintiff sued the New York Road Runners Club which puts on the ING New York Marathon. His injuries were not stated in the claim nor were his
claims. A New York statute restricts the use of releases. See States that do not Support the Use of a Releaseand no court has ever clearly defined how they get around the statute when a release is raised as a defense.
The Supreme Court of New York, Appellate Division which wrote this decision held that General Obligations Law § 5-326 did not apply.
General Obligations Law § 5-326 states:
§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
The court then looked at the language of the statute and concluded the release applied in this case because the entry fee for the marathon was not a fee for admission into the streets of New York City. Further the court found the streets of New York City, where the plaintiff was injured were not places of amusement.
…General Obligations Law § 5-326 does not invalidate the release, since the entry fee the plaintiff paid to the NYRRC was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run. Further, the public roadway in Brooklyn where the plaintiff alleges he was injured is not a “place of amusement or recreation”
So Now What?
Although the interpretation by the court could be viewed in another light, clearly most courts in New York want to uphold releases and if given the opportunity will write a decision which does so.
Make sure, if you are based in New York, that when your release is written it takes the statute into consideration. You can have signors of the release agree to the release that you are not a place of amusement, and the fee paid is not for admission.
Other New York Articles:
Electronic Signature on release in NY upheld.
New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
Summer camp supervision issues are always part of any lawsuit and tough to determine in New York.
How to fight a Bicycle Product Liability case in New York. One step at a time
|
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management
Outdoor Recreation Insurance, Risk Management and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
G-YQ06K3L262
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
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2012-2023 Summit Magic Publishing, LLC
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, New York, ING, New York Marathon, Marathon, ING NY Marathon, release,
WordPress Tags: Upholds,Brookner,York,Roadrunners,Club,Slip,LEXIS,Language,General,Obligations,plaintiff,Road,Runners,Marathon,injuries,statute,States,Support,Release,Supreme,Court,Appellate,Division,decision,Agreements,gymnasiums,amusement,recreation,establishments,negligence,covenant,agreement,connection,collateral,membership,ticket,admission,owner,operator,gymnasium,establishment,user,facilities,compensation,person,agents,servants,employees,policy,streets,Further,NYRRC,participation,roadway,Brooklyn,Although,interpretation,Make,Articles,Electronic,Signature,doctrine,Primary,Assumption,Risk,Summer,supervision,lawsuit,Bicycle,Product,Leave,Twitter,LinkedIn,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,unenforceable
Brookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
Posted: October 8, 2012 Filed under: Legal Case, New York, Racing | Tags: New York, New York City, New York Roadrunners Club, Supreme Court Leave a commentTo Read an Analysis of this decision see NY court explains how it interprets § 5-326 which disallows releases in NY. Upholds release for a marathon
Brookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
[*1] Larry Brookner, Appellant, v New York Roadrunners Club, Inc., et al., Respondents. (Index No. 2902/06)
2007-02310, 2007-02712
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
May 20, 2008, Decided
SUBSEQUENT HISTORY: Appeal denied by Brookner v. N.Y. Roadrunners Club, Inc., 11 NY3d 704, 894 NE2d 1198, 2008 N.Y. LEXIS 2654, 864 NYS2d 807 (N.Y., Sept. 9, 2008)
HEADNOTES
Release–Scope of Release
COUNSEL: David A. Kapelman, P.C., New York, N.Y. (Richard H. Bliss of counsel), for appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York, N.Y. (Steven Rosenfeld and Carmen Nicolaou of counsel), for respondents.
JUDGES: ANITA R. FLORIO, J.P., HOWARD MILLER, MARK C. DILLON, WILLIAM E. McCARTHY, JJ. FLORIO, J.P., MILLER, DILLON and McCARTHY, JJ., concur.
OPINION
[**841] [***348]
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 18, 2006, which, in effect, granted that branch of the defendants’ motion pursuant to CPLR 3211 (a) (5) which was to dismiss the complaint insofar as asserted against the defendant New York Roadrunners Club, Inc., and (2), as limited by his brief, from so much of an order of the same court dated February 8, 2007, as, in effect, granted that branch of the defendants’ motion pursuant to CPLR 3211 (a) (5) which was to dismiss the complaint insofar as asserted against the defendant City of New York.
Ordered that the order dated December 18, 2006, is affirmed; and it is further,
[***349] Ordered that the order dated February 8, 2007, is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The plaintiff commenced this action to recover damages after he allegedly sustained injuries while participating in the 2004 ING Marathon in New York City. Prior to the event, the plaintiff signed a waiver and release, which unambiguously stated his intent to release the defendants from [*2] any liability arising from ordinary negligence (see Bufano v National Inline Roller Hockey Assn., 272 AD2d 359, 359-360, 707 NYS2d 223 [2000]; cf. Gross v Sweet, 49 NY2d 102, 109-110, 400 NE2d 306, 424 NYS2d 365 [1979]; Doe v Archbishop Stepinac High School, 286 AD2d 478, 479, 729 NYS2d 538 [2001]). In light of this waiver and release, [**842] the Supreme Court properly granted those branches of the defendants’ motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (5) insofar as asserted against the defendants New York Road Runners Club, Inc. (hereinafter NYRRC) and City of New York (see Fazzinga v Westchester Track Club, 48 AD3d 410, 851 NYS2d 278 [2008]; see also Booth v 3669 Delaware, 92 NY2d 934, 703 NE2d 757, 680 NYS2d 899 [1998]; Lee v Boro Realty, LLC, 39 AD3d 715, 716, 832 NYS2d 453 [2007]; Koster v Ketchum Communications, 204 AD2d 280, 611 NYS2d 298 [1994]).
Contrary to the plaintiff’s contentions, General Obligations Law § 5-326 does not invalidate the release, since the entry fee the plaintiff paid to the NYRRC was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run (see Stulweissenburg v Town of Orangetown, 223 AD2d 633, 634, 636 NYS2d 853 [1996]). Further, the public roadway in Brooklyn where the plaintiff alleges he was injured is not a “place of amusement or recreation” (Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758, 673 NYS2d 181 [1998]; see Fazzinga v Westchester Track Club, 48 AD3d 410, 851 NYS2d 278 [2008]).
The plaintiff’s remaining contentions are without merit. Florio, J.P., Miller, Dillon and McCarthy, JJ., concur.
New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
Posted: July 23, 2012 Filed under: Assumption of the Risk, Cycling, New York | Tags: Bike Club, Cycling, Cycling Club, Mountain biking, New York, Organizations, Pace Line, Paceline, Sport, United States 2 CommentsCotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919
Basically, in New York, for injuries from the path or roadway, you assume the risk of mountain biking, and you probably did not assume the risk of road biking.
The plaintiff was a member of a bicycle club and was on a club ride. The ride was a 72-mile ride, and she was part of the pace line. A pace line is a group of cyclists riding single file. When the lead cyclist starts to tire or slow that cyclist pulls out of the line and drifts to the rear, and the 2nd cyclist takes over the front spot. A pace line allows the cyclists to go faster easily because each is taking a turn at the front doing 100% of the work, and the cyclists in the back a
re conserving energy.
The cyclist in front of the plaintiff went down in a construction area when he was unable to negotiate the lip between paving areas. The plaintiff tried to avoid the downed cyclists sliding into the roadway into a car.
The defendants were the construction company working on the road, the city that owned the road, other government entities, and the cyclists who went down in front of the plaintiff.
The city defendant filed this motion for summary judgment arguing the plaintiff could not sue because of the doctrine of primary assumption of the risk. In New York, Primary Assumption of the Risk prevents suits in sporting or athletic events from “conduct or conditions that are inherent in the sport or activity.”
The trial court denied the motion, and this appeal followed. The appellate court looked at the issue as to whether the plaintiff was engaging in an activity that subjected her to the doctrine. That is, was the plaintiff when riding a bike in this manner engaging in a sporting event or athletic activity.
Appellate Court Analysis
The court did a thorough review of the issues in this case as they applied to the doctrine of primary assumption of the risk. The court defined the doctrine as:
English: An animation of a group of cyclists riding in a chain gang or pace line. (Photo credit: Wikipedia)
…a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity…. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.
The effect of a plaintiff consenting to the risk (even if the plaintiff is not voluntarily or knowingly consenting) is to relieve the defendant of the duty of care that would otherwise exist in the sport or activity.
Accordingly, when a plaintiff assumes the risk of participating in a sporting event, “the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence
The reason for the doctrine is to create free and vigorous participation in athletic activities. If the doctrine did not exist with regard to sporting events, players would not fully participate, not play hard for fear of legal liability for doing so. However, the doctrine does not apply to conduct on the part of a defendant who increases the risk of harm to the plaintiff.
The doctrine not only applies to the other players in the sport or activity; it has been applied to the playing surface, the field. “If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies.”
The court then looked at the facts of the case to see if the plaintiff fell into the purview of the doctrine of assumption of the risk. The court first looked at what the doctrine did not apply to with regard to municipalities.
The doctrine is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition [“the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises”]), and such a result does not become justifiable merely because the roadway in question happens to be in use by a person operating a bicycle, as opposed to some other means of transportation….
The court reviewed mountain biking cases first and found in three situations that other courts had applied the doctrine to issues with the trail. Mountain bikers striking an exposed tree root, riding into holes in the trail, or hitting potholes or ruts in the path were all found to be subject to the doctrine and barred suit by the plaintiff.
The court looked at road biking on streets and found the courts had held in those situations that the doctrine did not apply.
…plaintiffs, who were injured while riding their bicycles on paved pathways in public parks, “cannot be said as a matter of law to have assumed risk of being injured as a result of a defective condition on a paved pathway merely because [they] participated in the activity of bicycling
Consequently, this court could not say that the plaintiff’s activities at the time of her injuries were such that the doctrine of assumption of the risk would bar her suit.
…primary assumption of risk did not apply to a plaintiff who was injured when his bicycle struck a raised concrete mound on a public roadway, even though the plaintiff, like the plaintiff in the instant case, was “an avid bicyclist” and was participating in “a noncompetitive, recreational bicycle ride with about eight or nine other riders
…riding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine. By contrast, mountain biking, and other forms of off-road bicycle riding, can more readily be classified as sporting activity. Indeed, the irregular surface of an unimproved dirt bike path is “presumably the very challenge that attracts dirt bike riders as opposed to riding on a paved surface
One interesting point the court made was differentiating between the doctrine of primary assumption of the risk and comparative negligence which had incorporated a simple assumption of the risk into it. The defendant had argued that the plaintiff assumed the risk of riding too closely behind the defendant who fell in front of her. The court held that was a comparative negligence issue for the jury, not an example of a primary assumption of the risk.
Primary assumption of the risk is the play of the game, the sport, or the surface. If the plaintiff’s injuries arise from how the plaintiff played the game then that is an issue of contributory negligence.
So Now What?
English: Tour de Romandie 2009 – 3rd stage – team time trial Français : Tour de Romandie 2009 – 3e étape – contre-la-montre par équipes (Photo credit: Wikipedia)
Whether or not a government entity would be liable for an injury on the roadway is going to be specific by state. New York has a reputation of allowing suits
against municipalities for such things. As such most other states probably would not. However, that requires a state-by-state review which you should have conducted if needed in your state.
What comes from this lawsuit that you can do if you operate a cycling club or run a ride (such as a retailer) is to have all riders sign a release that protects the club and other riders. The defendant in this case who fell in front of the plaintiff was sued for falling down on a bicycle. That seems absurd to me.
If you run a club, event, or ride, make sure that an injured party cannot come back and sue you or other riders for something that is a part of cycling. If you do not believe that cyclists fall, watch the first 10 days of the 2012 Tour de France!
What do you think? Leave a comment.
|
James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
Connect
If you like this let your friends know or post it on FB, Twitter, or LinkedIn
Facebook Page: Outdoor Recreation & Adventure Travel Law
LinkedIn https://www.linkedin.com/in/recreationlaw/
Threads https://www.threads.net/@recreation_law
X https://twitter.com/RecreationLaw
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2012-2023 Summit Magic Publishing, LLC
G-YQ06K3L262
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, #NY, New York, Cycling,
WordPress Tags: York,Decision,doctrine,Primary,Assumption,Risk,Town,Southampton,Slip,LEXIS,injuries,path,roadway,mountain,road,plaintiff,member,bicycle,energy,construction,area,areas,defendants,government,entities,defendant,judgment,events,bike,manner,event,Appellate,Court,Analysis,person,participation,injury,Risks,consequences,negligence,players,municipalities,roadways,landowner,premises,transportation,situations,bikers,tree,potholes,ruts,streets,plaintiffs,bicycles,pathways,parks,pathway,mound,riders,purposes,dirt,jury,example,Whether,reputation,lawsuit,retailer,Tour,France,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,cyclists
Cotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919
Posted: July 23, 2012 Filed under: Assumption of the Risk, Cycling, Legal Case, New York | Tags: Bike Club, Cycling, Cycling Club, New York, New York Supreme Court, New York Supreme Court Appellate Division, Pace Line, Summary judgment, Supreme Court Leave a commentTo Read an Analysis of this decision see
New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
Cotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919
[*1] Karen Cotty, plaintiff-respondent, v Town of Southampton, et al., defendants-appellants-respondents, Suffolk County Water Authority, defendant-appellant- respondent/fourth-party plaintiff-respondent, Elmore Associates Construction Corp., defendant third-party plaintiff, et al., defendant; Peter Deutch, third-party defendant/fourth-party defendant-appellant, et al., fourth-party defendant. (Index No. 20312/03)
2007-08536
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919
May 19, 2009, Decided
NOTICE:
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
COUNSEL: Thomas C. Sledjeski, PLLC (Anita Nissan Yehuda, P.C., Roslyn Heights, N.Y., of counsel), for defendant-appellant-respondent Town of Southampton.
Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs and Jonathan A. Dachs of counsel), for defendant-appellant-respondent/fourth-party plaintiff-respondent Suffolk County Water Authority and defendant-appellant-respondent CAC Contracting Corp (one brief filed).
Loccisano & Larkin, Hauppauge, N.Y. (Robert X. Larkin of counsel), for third-party [*2] defendant/fourth-party defendant-appellant Peter Deutch.
Rosenberg & Gluck, LLP, Holtsville, N.Y. (Andrew Bokar of counsel), for plaintiff-respondent.
JUDGES: PETER B. SKELOS, J.P., MARK C. DILLON, FRED T. SANTUCCI, RUTH C. BALKIN, JJ. DILLON, SANTUCCI and BALKIN, JJ., concur.
OPINION BY: SKELOS
OPINION
[**252] [***658] APPEAL by the defendant Town of Southampton, in an action to recover damages for personal injuries, as limited by its brief, from so much of an order of the Supreme Court (Robert W. Doyle, J.), dated August 6, 2007, and entered in Suffolk County, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it; SEPARATE APPEAL by the defendants Suffolk County Water Authority and CAC Contracting Corp., as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them; and SEPARATE APPEAL by the fourth-party defendant Peter Deutch, as limited by his brief, from so much of the same order as denied that branch of his separate cross motion which was for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him. Justice Dillon has been substituted for former Justice Lifson (see 22 NYCRR 670.1[c]).
OPINION & ORDER
SKELOS, J.P. [HN1] When a person voluntarily participates in certain sporting events or athletic activities, an action to recover damages for injuries resulting from conduct or conditions that are inherent in the sport or activity is barred by the doctrine of primary assumption of risk. In this case, where the plaintiff was injured while riding a bicycle on a paved public roadway, we confront the threshold question of whether the plaintiff was engaged in an activity that subjected her to the doctrine of primary assumption of risk.
Beginning on July 24, 2002, pursuant to a contract with the defendant Suffolk County Water Authority (hereinafter SCWA), the defendant CAC Contracting Corp. replaced the asphalt in a trench that had been dug along the edge of Deerfield Road in Southampton for the purpose of installing a conduit for a water [**253] main. Two layers of asphalt were to be laid to fill the trench and bring it level with the preexisting roadway, but at the time of the subject accident, only one layer of asphalt had been laid, leaving a “lip” approximately one inch deep, parallel to the length of the road, where the preexisting roadway and the newly paved section met. At the site of the accident, the lip was not marked by any barricades or traffic cones.
On July 27, 2002, the plaintiff, a member of a bicycle club which engaged in long-distance rides, was the last bicyclist in one of several groups of eight riders cycling on Deerfield Road during a 72-mile ride. The plaintiff testified at a deposition that the road “was not perfectly smooth,” and contained potholes. She had previously ridden on the subject road approximately 20 to 30 times, as recently as two to four weeks before the accident, and was aware of construction activity on various portions of the road. The road had no shoulder, and the plaintiff was riding approximately one to two feet from the edge of the road, and approximately 1 to 11/2 wheel lengths behind the fourth-party defendant, Peter Deutch, at a maximum speed of 17 to 18 miles per hour. The bicyclists in the front of the line began a “hopping” maneuver with their bicycles to avoid the “lip” in the road. Deutch unsuccessfully attempted the hopping maneuver, and fell in the plaintiff’s path. Seeking to avoid Deutch, the plaintiff swerved and slid into the road where she collided with an oncoming car, sustaining injuries.
The plaintiff commenced this personal injury action against, among others, the Town of Southampton, the SCWA, and CAC Contracting Corp. (hereinafter collectively the defendants), and the SCWA impleaded Deutch. The defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them, and Deutch cross-moved for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him. The defendants and Deutch (hereinafter collectively the appellants) contended, inter alia, that the plaintiff had assumed the risks commonly associated [***659] with bicycle riding. The Supreme Court denied the appellants’ motions.
[HN2] Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity (see Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49). Risks inherent in a sporting [**254] activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see Morgan v State of New York, 90 NY2d at 484; Turcotte v Fell, 68 NY2d at 439). Because determining the existence and scope of a duty of care requires “an examination of plaintiff’s reasonable expectations of the care owed him by others” (Turcotte v Fell, 68 NY2d at 437), the [*3] plaintiff’s consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist. Accordingly, when a plaintiff assumes the risk of participating in a sporting event, “the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence” (id. at 438, quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed]).
The policy underlying the doctrine of primary assumption of risk is “to facilitate free and vigorous participation in athletic activities” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29). Without the doctrine, athletes may be reluctant to play aggressively, for fear of being sued by an opposing player. [HN3] As long as the defendant’s conduct does not unreasonably increase the risks assumed by the plaintiff, the defendant will be shielded by the doctrine of primary assumption of risk (see Morgan v State of New York, 90 NY2d at 485; Benitez v New York City Bd. of Educ., 73 NY2d at 658; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113).
[HN4] The doctrine also has been extended to the condition of the playing surface. If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport (see Trevett v City of Little Falls, 6 NY3d 884, 849 N.E.2d 961, 816 N.Y.S.2d 738; Sykes v County of Erie, 94 NY2d 912, 728 N.E.2d 973, 707 N.Y.S.2d 374; Ribaudo v La Salle Inst., 45 AD3d 556, 846 N.Y.S.2d 209). If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies (see Fintzi v New Jersey YMHA-YWHA Camps, 97 NY2d 669, 765 N.E.2d 288, 739 N.Y.S.2d 85; Turcotte v Fell, 68 NY2d at 439; Rosenbaum v Bayis Ne’Emon, Inc., 32 AD3d 534, 820 N.Y.S.2d 326; Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526).
The Court of Appeals has had no occasion to expound upon the threshold question of what type of activity qualifies as participation in a sporting event for purposes of applying the doctrine of primary assumption of risk. In Turcotte v Fell, for [**255] example, the Court had little difficulty in concluding that the doctrine applied to the plaintiff, a professional jockey riding in [***660] a horse race at a track owned and operated by the New York Racing Association. Here, had the plaintiff been a professional athlete involved in a bicycle race on a track or a closed course, the doctrine of primary assumption of risk clearly would apply (cf. Morgan v State of New York, 90 NY2d at 486; Joseph v New York Racing Assn., 28 AD3d at 108-109). This case, however, presents different circumstances.
[HN5] In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her consent to the dangers inherent in the activity may reasonably be inferred. In our view, it is not sufficient for a defendant to show that the plaintiff was engaged in some form of leisure activity at the time of the accident. If such a showing were sufficient, the doctrine of primary assumption of risk could be applied to individuals who, for example, are out for a sightseeing drive in an automobile or on a motorcycle, or are jogging, walking, or inline roller skating for exercise, and would absolve municipalities, landowners, drivers, and other potential defendants of all liability for negligently creating risks that might be considered inherent in such leisure activities. Such a broad application of the doctrine of primary assumption of risk would be completely disconnected from the rationale for its existence. The doctrine is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition (see Sykes v County of Erie, 94 NY2d at 913 [“the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises”]), and such a result does not become justifiable merely because the roadway in question happens to be in use by a person operating a bicycle, as opposed to some other means of transportation (see Caraballo v City of Yonkers, 54 AD3d 796, 796-797, 865 N.Y.S.2d 229 [“the infant plaintiff cannot be said, as a matter of law, to have assumed risk of being injured by a defective condition of a pothole on a public street, merely because he was participating in the activity [*4] of recreational noncompetitive bicycling, and using the bicycle as a means of transportation”] [citations omitted]).
In prior decisions involving injuries sustained by bicycle riders, this Court has concluded that the doctrine of primary assumption of risk applies in some situations, but not in others. For example, in Calise v City of New York (239 AD2d 378, [**256] 657 N.Y.S.2d 430), the plaintiff was thrown from a mountain bike, which he was riding on an unpaved dirt and rock path in a park, when the bike struck an exposed tree root. This Court held that the plaintiff’s action was barred by the doctrine of primary assumption of risk, reasoning that “[a]n exposed tree root is a reasonably foreseeable hazard of the sport of biking on unpaved trails, and one that would be readily observable” (id. at 379; see Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d 817, 820-821, 839 N.Y.S.2d 183 [doctrine of primary assumption of risk applied to plaintiff who was injured when his bicycle struck a hole in a dirt trail located in a wooded area]; Restaino v Yonkers Bd. of Educ., 13 AD3d 432, 785 N.Y.S.2d 711 [doctrine of primary assumption of risk applied to plaintiff whose bicycle struck “a pothole or rut in the closed parking lot/driveway area of a public school”]; Goldberg v Town of Hempstead, 289 AD2d 198, 733 N.Y.S.2d 691 [doctrine of primary assumption of risk applied to plaintiff who was injured when her bicycle struck a hole in the [***661] ground as she rode on a dirt base path of a baseball field]).
By contrast, in both Vestal v County of Suffolk (7 AD3d 613, 776 N.Y.S.2d 491) and Moore v City of New York (29 AD3d 751, 816 N.Y.S.2d 131), this Court held that the plaintiffs, who were injured while riding their bicycles on paved pathways in public parks, ” cannot be said as a matter of law to have assumed risk of being injured as a result of a defective condition on a paved pathway merely because [they] participated in the activity of bicycling’” (Moore v City of New York, 29 AD3d at 752, quoting Vestal v County of Suffolk, 7 AD3d at 614-615; see Caraballo v City of Yonkers, 54 AD3d at 796-797; Berfas v Town of Oyster Bay, 286 AD2d 466, 729 N.Y.S.2d 530 [defendant failed to establish, as a matter of law, that action by plaintiff, who was thrown from his bicycle when he hit a rut in a paved road, was barred by primary assumption of risk doctrine]). Significantly, this Court reached the same conclusion in Phillips v County of Nassau (50 AD3d 755, 856 N.Y.S.2d 172), holding that the doctrine of primary assumption of risk did not apply to a plaintiff who was injured when his bicycle struck a raised concrete mound on a public roadway, even though the plaintiff, like the plaintiff in the instant case, was “an avid bicyclist” and was participating in “a noncompetitive, recreational bicycle ride with about eight or nine other riders” (id. at 756).
These decisions recognize that [HN6] riding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine. By contrast, mountain biking, and other forms of off-road [**257] bicycle riding, can more readily be classified as sporting activity. Indeed, the irregular surface of an unimproved dirt-bike path is “presumably the very challenge that attracts dirt-bike riders as opposed to riding on a paved surface” (Schiavone v Brinewood Rod & Gun Club, Inc., 283 AD2d 234, 237, 726 N.Y.S.2d 615).
Of course, the distinction between using a bicycle to engage in a sporting activity and using a bicycle for some other purpose will sometimes be elusive. It is important to draw that line, however, because “[e]xtensive and unrestricted application of the doctrine of primary assumption of risk to tort cases generally represents a throwback to the former doctrine of contributory negligence, wherein a plaintiff’s own negligence barred recovery from the defendant'” (Trupia v Lake George Cent. School Dist., 62 A.D.3d 67, 875 N.Y.S.2d 298, 2009 NY Slip Op 01571, [3d Dept 2009], quoting Pelzer v Transel El. & Elec. Inc., 41 AD3d 379, 381, 839 N.Y.S.2d 84). That tendency is illustrated by the appellants’ briefs in this case, which repeatedly emphasize that the plaintiff was riding too closely behind Deutch. That argument is misplaced, since the issue of whether the plaintiff was following too closely, or otherwise acted negligently, is a matter of [HN7] comparative fault, which must be determined by the factfinder at trial and not as a matter of law at the summary judgment stage (see CPLR 1411; Roach v Szatko, 244 AD2d 470, 471, 664 N.Y.S.2d 101; Cohen v [*5] Heritage Motor Tours, 205 AD2d 105, 618 N.Y.S.2d 387).
In sum, [HN8] it cannot be said, as a matter of law, that merely by choosing to operate a bicycle on a paved public roadway, or by engaging in some other form of leisure activity or exercise such as walking, jogging, or roller skating on a paved public roadway, a plaintiff consents to the negligent maintenance of such roadways by a municipality or a contractor. Adopting such a rule could have the arbitrary effect [***662] of eliminating all duties owed to participants in such leisure or exercise activities, not only by defendants responsible for road maintenance, but by operators of motor vehicles and other potential tortfeasors, as long as the danger created by the defendant can be deemed inherent in such activities. We decline to construe the doctrine of primary assumption of risk so expansively.
For the foregoing reasons, the appellants failed to make a prima facie showing that the primary assumption of risk doctrine is applicable to the activity in which the plaintiff was engaged at the time of her accident. Thus, the Supreme Court properly denied the defendants’ motions for summary judgment dismissing the complaint and all cross claims insofar as asserted [**258] against them and Deutch’s cross motion for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him as barred by the doctrine of primary assumption of risk.
Moreover, the defendants failed to establish as a matter of law that the unbarricaded lip created by the road construction was not a “unique and . . . dangerous condition over and above the usual dangers that are inherent” (Owen v. R.J.S. Safety Equipment, Inc.., 79 N.Y.2d 967, 970, 591 N.E.2d 1184, 582 N.Y.S.2d 998) in the activity of bicycle riding on a paved roadway (see Vestal v County of Suffolk, 7 AD3d 613, 614, 776 N.Y.S.2d 491 [plaintiff did not assume risk of being injured while riding bicycle on defective paved pathway where there were “no signs, chains, or barriers” present “to indicate that it was not suitable for bicycling“]; see also Phillips v County of Nassau, 50 AD3d 755, 856 N.Y.S.2d 172; Berfas v Town of Oyster Bay, 286 AD2d 466, 729 N.Y.S.2d 530).
The appellants’ remaining contentions are without merit.
Accordingly, we affirm the order insofar as appealed from.
DILLON, SANTUCCI and BALKIN, JJ., concur.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.
Camp not liable for soccer injury because camp adequately supervised the game
Posted: July 16, 2012 Filed under: New York, Sports, Summer Camp | Tags: #Soccer, Defendant, Forseeable, Harris, Infant, New York, NY, Standard of Care, Summary judgment, Summer Camp, Supervision Leave a commentHarris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
Both defendants and plaintiffs need to understand the standard of care, and the limit of liability the defendant will be held accountable to.
In this case from New York, a 13-year-old called an infant by the court, sued a summer camp for an injury to his leg. While attempting to kick the ball, he and another camper collided and the other camper fell on the plaintiff’s leg. The plaintiff sued the camp for the injury. The defendant filed a motion for summary judgment, which was denied. The defendant appealed the motion and the appellate court overturned the lower court and dismissed the case.
An infant from a legal perspective is not a baby. An infant is anyone under the age of 18, not an adult.
The sole issue was the standard of care, and the level of supervision the camp owed to the plaintiff. The court held the standard of care a camp or school owed was not an insurer of the safety of the camper but only liable for foreseeable injuries. Even then those foreseeable injuries must be caused by an absence of adequate supervision.
Schools or camps are not insurers of the safety of their students or campers, as they “cannot reasonably be expected to continuously supervise and control all of their movements and activities” Rather, schools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision.
The lack of adequate supervision must relate to the injury. A failure to supervise, which created the foreseeable injury must be the cause of the accident. Additionally, that accident must be one that can be supervised. If the accident occurs in such a manner that supervision cannot intervene, then there can be no liability.
Moreover, even if an issue of fact exists as to negligent supervision, liability does not lie absent a showing that such negligence proximately caused the injuries sustained “Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the … defendant is warranted”
There was also an issue that the expert witness did not discuss all the issues necessary to prove the camp was liable for the injury. The expert report stated the camp should have provided shin guards, and that shin guards were required. However, the expert did not state that the type of game being played by the plaintiff, an informal summer camp game was held to the same rules as high school games.
So
The plaintiff’s complaint did not seem to contemplate the level of supervision required from a camp. Like schools, camps are not required to keep kids safe. They are required to do the following.
· Keep kids safe from foreseeable risks
· Adequately supervise kids.
The first is the hardest. Kids can get hurt any and always. Consequently, foreseeable is very hard. However, the easiest way to see foreseeable and for the plaintiff to prove foreseeable is if the accident had occurred previously at your camp or any camp. If you keep track of injuries and accidents, you better do something about each and every one of the reports. A report is proof of the foreseeability of a risk.
That is a great reason to attend your trade association meeting or conference. You can learn from other members of your industry or your insurance carrier about the accidents they have had. If you have a similar program, you have been given a gift, and you have identified foreseeable before a plaintiff has.
|
James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
G-YQ06K3L262
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
 |
 |
 Threads |
 X (formerly known as Twitter) logo |
 Stimulus |
 Blue Sky |
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2024 Summit Magic Publishing, LLC
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, #Harris, Five Point Mission, Camp Olmstedt, foreseeable, New York NY, Summer Camp, Soccer, Shin Guards, #infant,
WordPress Tags: Camp,injury,Harris,Five,Point,Mission,Olmstedt,LEXIS,Slip,Both,defendants,plaintiff,defendant,York,infant,ball,camper,judgment,perspective,supervision,insurer,injuries,absence,Schools,insurers,students,campers,Rather,failure,accident,manner,Moreover,fact,negligence,Where,complaint,Keep,Kids,accidents,association,conference,industry,insurance,carrier,gift,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Soccer,Shin,Guards
Harris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
Posted: July 16, 2012 Filed under: Legal Case, New York, Sports, Summer Camp | Tags: #Soccer, New York, Summer Camp Leave a commentTo Read an Analysis of this decision see: Camp not liable for soccer injury because camp adequately supervised the game
Harris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
Nikki Harris, Respondent, v Five Point Mission–Camp Olmstedt, Appellant. (Index No. 38156/07)
2009-08327
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
May 25, 2010, Decided
SUBSEQUENT HISTORY: As Amended June 21, 2010.
HEADNOTES
Negligence–What Constitutes.–Defendant was not liable for injuries sustained by infant while playing soccer at sleepaway summer camp operated by defendant; defendant established that it did not negligently supervise infant during soccer game in which he was injured and that it did not negligently maintain soccer field where accident occurred.
COUNSEL: [***1] Molod Spitz & DeSantis, P.C., New York, N.Y. (Salvatore J. DeSantis and Marcy Sonneborn of counsel), for appellant.
Kenneth J. Ready, Mineola, N.Y. (Steven T. Lane of counsel), for respondent.
JUDGES: REINALDO E. RIVERA, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, PLUMMER E. LOTT, JJ. RIVERA, J.P., FLORIO, ANGIOLILLO and LOTT, JJ., concur.
OPINION
[*1127] [**679] In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Schack, J.), dated July 17, 2009, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.
On the morning of July 29, 2006, the then 13 1/2-year-old infant, Devante Harris (hereinafter Devante), allegedly was injured while playing soccer at the sleepaway summer camp operated by the defendant, Five Point Mission–Camp Olmstedt. According to Devante’s deposition testimony, the accident happened over a 15-second period of time. After Devante fell while attempting to kick a soccer ball, another camper, attempting to kick the same ball, made contact with Devante’s [***2] leg and then fell on Devante’s leg. At the time of the accident, there were two counselors supervising the soccer game, while acting as opposing goalies, one of whom was only 12 feet away from Devante when the accident occurred. Furthermore, during the hour before the accident occurred, neither Devante nor anyone else [*1128] fell during the game. According to the deposition testimony of the camp director, Nolan Walker, the camp hired a private landscaping company to maintain the field. Additionally, in the two weeks leading up to the date of the accident, he did not observe any defects in the field.
[HN1] Schools or camps are not insurers of the safety of their students or campers, as they “cannot reasonably be expected to continuously supervise and control all of their movements and activities” (Cohn v Board of Educ. of Three Vil. Cent. School. Dist., 70 AD3d 622, 623, 892 NYS2d 882 [2010]; see Mirand v City of New York, 84 NY2d 44, 49, 637 NE2d 263, 614 NYS2d 372 [1994]). Rather, schools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision (see Mirand v City of New York, 84 NY2d at 49; Doe v Department of Educ. of City of New York, 54 AD3d 352, 353, 862 NYS2d 598 [2008]; [***3] Paca v City of New York, 51 AD3d 991, 992, 858 NYS2d 772 [2008]). Moreover, even if an issue of fact exists as to negligent supervision, liability does not lie absent a showing that such negligence proximately caused the injuries sustained (see Odekirk v Bellmore-Merrick Cent. School Dist., 70 AD3d 910, 895 NYS2d 184 [2010]; Siegell v Herricks Union Free School Dist., 7 AD3d 607, 777 NYS2d 148 [2004]). “Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the … defendant[] is warranted” (Convey v City of Rye School Dist., 271 AD2d 154, 160, 710 NYS2d 641 [2000]; see Odekirk v Bellmore-Merrick Cent. School Dist., 70 AD3d 910, 895 NYS2d 184 [2010]; Paca v City of New York, 51 AD3d at 993; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 385-386, 767 NYS2d 857 [2003]).
The defendant made a prima facie showing of its entitlement to judgment as a matter of law. It established, by way of Devante’s deposition testimony, that it did not negligently supervise him during the soccer game in which he was injured (see Mirand v City of New York, 84 NY2d at 49; Calcagno v John F. Kennedy Intermediate School, 61 AD3d 911, 912, 877 NYS2d [**680] 455 [2009]). It also established [***4] that it did not negligently maintain the soccer field where the accident occurred (see Lopez v Freeport Union Free School Dist., 288 AD2d 355, 356, 734 NYS2d 97 [2001]).
In response, the plaintiff failed to show the existence of a triable issue of fact. Devante’s affidavit submitted in opposition to the motion merely raised a feigned issue of fact designed to avoid the consequences of his earlier deposition testimony, and thus was insufficient to defeat the defendant’s motion for summary judgment dismissing the complaint (see Denicola v [*1129] Costello, 44 AD3d 990, 844 NYS2d 438 [2007]). The affidavit of Devante’s mother, the plaintiff, Nikki Harris, also was insufficient to defeat the defendant’s motion, as she did not have personal knowledge of the facts underlying the claim and relied upon inadmissible hearsay in her averments (see New S. Ins. Co. v Dobbins, 71 AD3d 652, 894 NYS2d 912 [2010]).
The plaintiff’s expert’s affidavit also was insufficient to raise a triable issue of fact as to whether the defendant’s failure to provide Devante with shin guards constituted negligence. The affidavit improperly relies on the version of the events set forth in Devante’s affidavit in opposition to the motion and not upon his deposition testimony. Furthermore, in [***5] concluding that the defendant summer camp was negligent in failing to provide Devante with shin guards during the soccer game, the expert failed to allege that sleepaway summer camps generally provide shin guards to campers during informal soccer games like the one at issue (see Diaz v New York Downtown Hosp., 99 NY2d 542, 545, 784 NE2d 68, 754 NYS2d 195 [2002]; Walker v Commack School Dist., 31 AD3d 752, 820 NYS2d 287 [2006]). Nor does he allege, based upon his personal knowledge or experience, that the rules of college, high school, or youth soccer leagues, which he contends require the use of shin guards, have been implemented by or are the generally accepted practice in informal summer camp soccer games such as the one in which Devante was injured (see Diaz v New York Downtown Hosp., 99 NY2d at 545; Walker v Commack School Dist., 31 AD3d 752, 820 NYS2d 287 [2006]).
Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324-325, 501 NE2d 572, 508 NYS2d 923 [1986]). Rivera, J.P., Florio, Angiolillo and Lott, JJ., concur.
G-YQ06K3L262
The standard of care for a ropes or challenge course changes based on who is running it and who is using it
Posted: June 4, 2012 Filed under: Assumption of the Risk, Challenge or Ropes Course, New York | Tags: #AR, assumption of the risk, challenge course, Expert Witness, New York, Project Adventure, School, School district Leave a commentLinthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U
A school owes a higher degree of care to students then a non-school.
This decision was based on a motion for summary judgment filed by the defendants in this matter. The court denied the motion for summary judgment because there were numerous facts at issue. If there are facts that cannot be resolved or are at dispute a motion for summary judgment cannot be granted. The basis for denial was the motion filed by the defendants was deficient on several grounds.
The plaintiff was a student of the defendant. She was participating in a rope’s course described by the court as a challenge by choice event. She was injured when she fell off a low element wall, a wall, attempting to help another student over the wall. Her complaint alleged the defendants had actual and constructive notice of the dangerous conditions which lead to her injury.
The defendant argued the plaintiff assumed the risk of the activity, that it was not negligent in its supervision, and that it did not fail to provide a safe place.
So?
Because the defendant was a school, the court reviewed the standard of care that a school owed to a student.
Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The school’s standard of duty to a student is what a reasonable prudent parent would have done under the same circumstances. “The standard for determining whether a school was negligent in executing its supervisory responsibility is, whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision”
Schools are under a duty to adequately supervise its students and can be held liable for foreseeable injuries proximately caused by the failure of supervision. The standard of care for a school is higher than the standard of care for a commercial challenge course, meaning the school owes a higher degree of review and supervision to prevent injuries of students.
The plaintiff must show that the school had sufficient specific knowledge or notice of the dangerous condition or conduct and the breach of the duty to supervise was the cause of the injury.
In order to support its motion the defendants presented attorney affidavits, pleadings and a report from its expert witness. The report from the expert witness went through all the issues and said the school met the standard of care for each of those issues. However, the expert witness failed to attach or explain the standards, failed to identify any support or identify any support for his opinions, and the judge ignored the report.
The expert witness just can’t state a fact; the fact or opinion in the report must be substantiated by research, experience or other information in the field. Worse the expert kept referring to the work of a builder in the industry and then never produced any proof from the builder.
Neither the expert or either party has submitted a copy of the industry standards for Project Adventure, the number and positioning of spotters for the specific activity, the student to adult ratio, the instructions given to spotters, or the instructions to be provided to students participating in the event pursuant to the industry standard.
The next issue that the court quickly dismissed was the extension of the assumption of the risk defense labeled challenge by choice. A witness for the defense testified that the plaintiff was informed the event was a challenge by choice activity and what that meant. Meaning the plaintiff did not have to participate in any or all the activities.
However, the plaintiff came back and testified that during the activity she was told she had to undertake the wall. “However, when it came time for the wall activity, she and her friends were told they had to do it; they were not told that there would be repercussions if they did not do it.” This is enough to create a factual issue that defeats a motion for summary judgment.
This is another problem in this type of activity. The challenge by choice theory is usually repudiated by the defendant during the activity.
The court then listed all the issues the plaintiff had introduced that were still at issue.
Additional factual issues exist as to whether the supervision and spotting was adequate, whether the spotters were properly trained and instructed, and whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would have provided greater supervision to the students, including adequate placement and training of the appropriate number of spotters.
The defendant’s expert witness had covered all of these issues; however, he had failed to support his opinion in his report with the standards he constantly referred to:
Although Mr. Demas averred that the use of helmets, matting, or the belay system is not consistent with industry standards, he does not state what the industry standard is, and whether the failure to provide such safety equipment is inconsistent with industry standards.
The defendant’s motion for summary judgment was denied.
So Now What?
A school can rarely use a release to stop lawsuits. In New York, it may or not have worked anyway because of New York laws on releases. See States that do not Support the Use of a Release and New York Law Restricting the Use of Releases.
However, the assumption of risk defense could have been stronger if pre-activity work had been done to support the defense.
Assumption of the risk usually means the person assuming the risk knows about, understands and assumes those risks. See Assumption of the Risk. Those risks can be explained in a way that can be reproduced for the court such as a video. For a great example of how this can be done see the OARSWhitewater Orientation Video Series. These videos cover 90% of the risks of whitewater. A plaintiff would be hard-pressed to argue they did not know and understand the risks if they saw the videos.
To prove the client saw the videos, you can have the client prove it in writing. A written (express) assumption of the risk document is a great way to prove the plaintiff assumed the risk. The document can list the major risks and the ones that occur frequently. A jurisdiction and venue clause can be included as well as a statement saying the client has seen and understood the videos.
Plaintiffs will always argue that they were told incorrectly, did not understand, or as in this case, were told conflicting, things that lead to their injury. If your only defense is assumption of the risk, you must be prepared to prove that your version of what happened as well as well, the plaintiff knew and assumed is the only version.
You also need to make sure your expert witness report will meet the scrutiny of the court.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2012 Recreation Law (720) Edit Law
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Ropes Course, Challenge Course, Climbing Wall, Challenge by Choice, Mount Sinai Union Free School District, Sachem School District, #NY, New York, #AR, Assumption of the Risk,
WordPress Tags: Linthwaite,Mount,Sinai,Union,Free,School,District,Misc,LEXIS,Slip,degree,students,decision,judgment,defendants,basis,denial,plaintiff,student,defendant,event,complaint,injury,supervision,Schools,injuries,absence,prudence,situation,information,failure,knowledge,attorney,affidavits,opinions,fact,opinion,Worse,builder,industry,Neither,Project,Adventure,ratio,instructions,extension,assumption,repercussions,theory,Additional,placement,Although,Demas,helmets,system,equipment,lawsuits,York,laws,States,Support,Release,Releases,person,Risk,example,OARS,Whitewater,Orientation,Video,Series,client,jurisdiction,venue,clause,statement,Plaintiffs,version,scrutiny,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Wall,Choice,Sachem,whether,spotters
Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U
Posted: June 4, 2012 Filed under: Assumption of the Risk, Challenge or Ropes Course, Legal Case, New York | Tags: assumption of the risk, challenge course, Mount Sinai, New York, New York City, Plaintiff, Ropes course, Sachem School District Leave a commentLinthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U
[**1] Rebecca Linthwaite, Plaintiff, – against – Mount Sinai Union Free School District and Sachem School District, Defendants. Index No. 09-26360
09-26360
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U
December 28, 2011, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: summary judgment, supervision, industry standards, school district, spotters, adventure, spotting, teacher, rope, certified transcript, entitlement, notice, supporting papers, factual issues, issues of fact, extracurricular activity, citations omitted, participating, supervising, proximately, positioning, photograph, opposing, platform, matter of law, notice of claim, cross claims, issue of liability, claims asserted, prima facie
COUNSEL: [*1] For Plaintiff: GLYNN MERCEP & PURCELL LLP, Stony Brook, New York.
For Mount Sinai UFSD, Defendant: CONGDON, FLAHERTY, O’CALLAGHAN, et al., Uniondale, New York.
For Sachem SD, Defendant: DONAHUE, MCGAHAN, CATALANO, et al., Jericho, New York.
JUDGES: PRESENT: Hon. W. GERARD ASHER, Justice of the Supreme Court.
OPINION BY: W. GERARD ASHER
OPINION
Upon the following papers numbered 1 to 46 read on these motions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers (001) 1-14; Notice of Cross Motion and supporting papers (002) 15-34; Answering Affidavits and supporting papers 35-39; Replying Affidavits and supporting papers 40-41; 42-44; Other 45-46, (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that motion (001) by the defendant, Mount Sinai Union Free School District, pursuant to CPLR 3212 for summary judgment dismissing the complaint on the issue of liability is denied; and it is further
ORDERED that motion (002) by the defendant, Sachem Central School, pursuant to CPLR 3212 for summary judgment dismissing the complaint and cross claims asserted against it on the issue of liability is denied.
In this action, the plaintiff asserts that the defendants, Sachem [*2] School District (“Sachem”) and Mount Sinai Union Free School District (“Mount Sinai”), were negligent in failing to provide proper instruction and safety equipment, and in supervising the plaintiff while she was taking part in a Mount [**2] plaintiff, after having climbed to the top of a ten foot climbing wall in a “challenge by choice” event, tried to help another student over the wail, lost her balance, and fell backwards. The plaintiff asserts that the defendants had actual and constructive notice of the dangerous conditions which caused her to sustain injury.
In motion (001), the defendant, Mount Sinai, seeks summary judgment dismissing the complaint on the basis that it was not negligent in supervising the plaintiff or in failing to provide a safe and padded area and to warn students not to help others over the wall. It further asserts that the plaintiff assumed the risk of the extracurricular activity, that it exercised reasonable care, that the plaintiff’s injuries were not the result of any breach of duty owed to the plaintiff, that the climbing wall was not located on the grounds of Mount Sinai, and that Mount Sinai did not maintain the wall.
In motion (002), Sachem seeks summary [*3] judgment dismissing the complaint and cross claims against it on the basis that it did not breach any duty to the plaintiff, and that its alleged negligence did not proximately cause the injuries claimed by the plaintiff.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 390 N.E.2d 298, 416 NYS2d 790 [1979]; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 144 N.E.2d 387, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N.Y.U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form…and must “show [*4] facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981]).
In support of motion (001), Mount Sinai has submitted, inter alia, an attorney’s affirmation; copies of the notice of claim dated July 2, 2008, summons and complaint, its answer with a cross claim asserted against Sachem, discovery demands, and plaintiff’s verified bill of particulars; a photograph of the wall; copy of the unsigned but certified transcript of the General Municipal Law 50-h hearing of Rebecca Linthwaite dated January 8, 2009; copies of the signed and certified transcript of the examination before trial of Rebecca Linthwaite dated September 21, 2010; the unsigned but certified transcript of Margaret Tuttie on behalf of Sachem dated November 29, 2010; the signed transcript of Karen Blumenthal on behalf of Mount Sinai dated November 29, 2010; and the affidavit of Kenneth R. Demas dated March 15, [*5] 2011, with attendant curriculum vitae.
In support of motion (002), Sachem has submitted, inter alia, two attorney’s affirmations; copies of the notices of claim dated July 2, 2008 with a copy of a photograph of a wall; a copy of the summons and complaint, defendants’ respective answers with cross claims, Mount Sinai’s answer to the cross [**3] claim, plaintiff’s verified bills of particulars: photographs of the wall; a copy of the signed General Municipal Law 50-h transcript of Rebecca Linthwaite dated January 8, 2009; copies of the signed transcript of the examination before trial of Rebecca Linthwaite dated September 21, 2010; Mission Statement by Sachem; the signed and certified transcript of Margaret Tuttle on behalf of Sachem dated November 29, 2010; another copy of the Mission Statement of Sachem with annexed letter from Karen Blumenthal, undated, and a copy of the student accident report signed by Karen Blumenthal; the signed transcript of the examination before trial of Karen Blumenthal on behalf of Mount Sinai dated November 29, 2010; the affidavit of Kenneth R. Demas dated March 15, 2011 with attendant curriculum vitae; and a demand and response to the demand for discovery and [*6] inspection.
Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (Mirand v City of New York, 84 NY2d 44, 637 N.E.2d 263, 614 NYS2d 372 [1994]). The school’s standard of duty to a student is what a reasonable prudent parent would have done under the same circumstances (NY PJI 2:227). “The standard for determining whether a school was negligent in executing its supervisory responsibility is, [w]hether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision” (Mirand v City of New York, 190 AD2d 282, 598 NYS2d 464, aff’d 84 NY2d 44, 637 N.E.2d 263, 614 NYS2d 372 [1994]; see, In the Matter of the Claim of Jane Doe v Board of Education of Penfield School District, et al, 2006 NY Slip Op 51615U, 12 Misc3d 1197A, 824 NYS2d 768 [Sup. Ct. of New York, Monroe County 2006]).
As set forth in Bowles v The Board of Education of the City of New York and the City of New York, 15 Misc. 3d 1110[A], 839 N.Y.S.2d 431, 2007 NY Slip op 50573[U] [Supreme Court of New York, Kings County 2007], “Schools are under a duty to adequately supervise the students [*7] in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision…. To find that a school district has breached its duty to provide adequate supervision, a plaintiff must show that the district had sufficient specific knowledge or notice of the dangerous conduct and that the alleged breach was the proximate cause of the injuries sustained…. Moreover, when an accident occurs in so short a span of time that even the most intense supervision could not have prevented it any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted.” citing, Ronan v School District of the City of New Rochelle, citations omitted, quoting Mirand v City of New York, citations omitted, Nocilla v Middle Country School Dist., citations omitted.
Based upon the evidentiary submissions, it is determined that neither Sachem nor Mount Sinai have established prima facie entitlement to summary judgement dismissing the complaint due to the existence of factual issues in the moving papers which preclude summary judgment.
Kenneth Demas set forth in his affidavit that he has been [*8] in the adventure education field since 1982 and has been certified as a national trainer for Project Adventure for 23 years. He set forth the transcripts and materials reviewed and states that the level of supervision was appropriate and in keeping with the nature of the activity. He stated that the Sachem teacher. Margaret Tuttle, was in a position which enabled her to move to either direction in front of or behind the wall, and permitted her to move to an appropriate position in the event that additional spotting was required. He states that both teachers were placed appropriately. He continues that both teachers responded to the loss of balance of Rebecca [**4] in addition to other spotters being present. He continues that the instructions given by Ms. Tuttle was appropriate and in keeping with the accepted model for instruction on this activity. While explaining the challenge to the group, Ms. Tuttle walked the group to the front and rear of the wall and explained the responsibilities associated with each side. She was clear that students were spotters from beginning to end. Demas continues that instruction in any Adventure Education program never explains how to do a particular challenge, [*9] as students, while working together, are to utilize previously learned concepts and experiences to solve the problem. He continues that the wall is considered a low element, and that spotting is the accepted safety procedure for the activity. The use of helmets, matting, and the belay systems is not consistent with industry standards, Demas continues that level 2 certification, which both Karen Blumenthal of Mount Sinai and Tuttle have, involves both a written test and hands on application of skills, such as quality and clarity of instructions, as well as spotting technique, positioning, and practice.
The affidavit of Mr. Demas is not supported by admissible evidence. Expert testimony is limited to facts in evidence (see Allen v Uh, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 2011]; Hornbrook v Peak Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002]; Marzuillo v Isom, 277 AD2d 362, 716 NYS2d 98 [2d Dept 2000]; Stringile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 1988]; O’Shea v Sarro, 106 AD2d 435, 482 NYS2d 529 [2d Dept 1984]), which evidence has not been provided herein. Neither the expert or either party has submitted a copy of the industry standards for Project [*10] Adventure, [*11] the number and positioning of spotters for the specific activity, the student to adult ratio, the instructions given to spotters, or the instructions to be provided to students participating in the event pursuant to the industry standard. Although Demas avers that teacher training involves spotting technique, positioning and practice, he does not set forth the standards for the same or aver that such was utilized during the event in which the plaintiff sustained injury. The exact number of students participating has not been established, as Ms. Blumenthal stated she had about fifty students in her two classes and was unsure how many students attended the field trip, but thought it was about 40 students. There was only one teacher supervising the students until Ms. Blumenthal arrived at that particular event, immediately prior to the plaintiff’s fall. Although the defendants claim that Project Adventure is an extracurricular activity and that the plaintiff assumed the risk of the activity, the plaintiff testified that this class was taken in place of the usual physical education class. Thus whether the class was for credit or was an extracurricular activity has not been established.
There [*12] was testimony by Ms. Blumenthal that the event in which the plaintiff was injured was “challenge by choice”, meaning each student did not have to participate in the event. However, the plaintiff testified that her understanding of “challenge by choice” was that she could do the activity by her own free will and that no one was to be forced into an activity. However, when it came time for the wall activity, she and her friends were told they had to do it; they were not told that there would be repercussions if they did not do it. Thus, there are factual issues concerning the definition of “challenge by choice”, if the students had a choice as to participating in the event, or whether there was pressure exerted on them to participate.
There are further factual issues concerning whether the students were properly instructed with regard to the presence and the use of the ropes on the back of the wall, and whether the ropes were suitable to stabilize the student and prevent the student from falling off the narrow platform. The [**5] plaintiff testified that on the date of the incident, there were no mats or other safety precautions. The rope that was on the back wall was used for walking down [*13] the wall and was not there to stabilize when up on the platform. She never noticed loops on the ropes. Ms. Tuttle testified that she tells students there are ropes to put a hand in, if needed, and that there will be spoilers to help them walk down. Additional factual issues exist as to whether the supervision and spotting was adequate, whether the spotters were properly trained and instructed, and whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would have provided greater supervision to the students including adequate placement and training of the appropriate number of spotters. Although Mr. Demas averred that the use of helmets, matting, or the belay system is not consistent with industry standards, he does not state what the industry standard is, and whether the failure to provide such safety equipment is inconsistent with industry standards. A further question exists as to whether the platform was constructed pursuant to industry standards.
Since defendants failed to establish their entitlement to judgment as a matter of law, the burden has not shifted to the plaintiff to raise a triable issue of tact (see, Krayn v Torella, 40 A.D.3d 588, 833 NYS2d 406, NY Slip Op 03885 [2d Dept 2007] [*14] ; Walker v Village of Ossining, 18 AD3d 867, 796 NYS2d 658 [2d Dept 2005]).
Accordingly, motions (001) and (002) by Sachem and Mount Sinai for summary judgment dismissing the complaint are denied.
Date: Dec. 28, 2011
/s/ W. Gerard Asher
J.S.C.
Insurance company release fails, even in the state where the company is located
Posted: April 4, 2012 Filed under: Insurance, Release (pre-injury contract not to sue) | Tags: healthinsurance, Insurance, Insurance policy, Law, Montana, New York, Sports Underwriters, Waiver Leave a commentSport Underwriters.com release has some good points, but overall it has major flaws.
I received this release, which was provided with a quote for insurance. The quote was great. The quote required the insured to have a Waiver and Release System:
Waiver & Release System:
The insured must maintain a system to regularly secure signed Waiver and Release forms from participants. For minor participants, these waiver/release forms should be signed by a parent or guardian. Unintentional error on your part in securing Waiver and Release forms will not void your coverage in the event of a claim by a participant; however, your failure to maintain an adequate system to regularly secure Waiver and Release forms will void your coverage in the event of a claim. All waivers & medical release forms must be approved by underwriters; if you do not have one, we will provide for you.
Overall, that is a good thing. It is also not so different from what most insurance companies want to achieve. However, very few make it such a mandatory issue.
However, I am curious if their system allows for states to not have a system if they are prohibited by law or where releases have no legal value. (See: States that do not Support the Use of a Release.) Montana not only does not allow the use of a release, if an outfitter is found using one, their state license will be yanked, and they will be prohibited from engaging in any business.
Let’s look at the release itself:
This release came from a Sport Underwriters.com. The release also says it is a division of Sport and Special Event Insurance Agency USA which can be found here. That agency is located in New York, which does not allow the use of a release for commercial activities. (See New York Law Restricting the Use of Releases)
The release in its first paragraph states it covers “traveling to and from activity sites in which I am about to engage.”Some states consider transportation to be defined as a “public policy” which is not covered by a release. Some states allow a release to cover transportation if it is incidental to the activity; however, this release does not go deep enough into the issue, in my opinion, to make it effective to stop a suit over a car or bus accident.
The release also states in bold letters that the signor “…will wear approved protective gear as decreed by the governing body of the sport…” Very few outdoor recreation programs have a governing body that decrees safety gear. Some state or federal regulations may require some gear such as PFDs on whitewater for commercial operators, but very little in the rest of the industry.
The release, midway down the page, has a page for the signor to fill in the name of the company or person the release protecting. This is just plain confusing. What if that is skipped, is the release invalid? What if they spell the name wrong or put the wrong name down?
Then the release starts using the term releasees. Releasees is the term applied to the name in the blank. The language is quite broad, but the people being released are, by nature of the way the release is written, very narrowly defined. I generally, in any document being used with the general consumer, avoid using a legal term. It just becomes confusing for the consumer to understand, if they read the document and can make judges and juries mad. Use the name of the company so that everyone knows no matter how confusing, at least who is being protected.
The release also says you are indemnifying the releasee. I’ve not read a single decision that allows indemnification to work in a release. There is a major difference between indemnifying against losses and stopping them to begin with, unless the indemnification language is written very specifically for a specific reason.
The release has two areas for signatures. One area is for adults to sign, and one area is for parents to sign. Consequently, either you are going to have a parent sign twice or signature line that is blank. There is no place for the minor to sign the agreement.
The parental signage line is preceded by a clause.
FOR PARTICIPANTS OF MINORITY AGE: This is to certify that I, as a Parent, Guardian, Temporary Guardian with legal responsibility for this participant, do consent and agree not only to his/her release of all Releasees, but also to release and indemnify the Releasees from any and all liability incident o his/her involvement in these programs for myself, my heirs, assigns and next of kin.
First, the paragraph is directed to the participants in the first line then refers to the parent guardian. I’ve never heard of a Temporary Guardian. My concern with this is, volunteer youth leaders (church groups, Scout groups, etc.) probably believe they are temporary guardians and sign the form. The outfitter will probably accept the form, not knowing that the signature of the adult has no legal value.
Then the telltale clause that makes me think the release was not written by an attorney: “…agree not only to his/her release of all Releasees, but also to release and indemnify the Releasees…” This language says you are releasing the outfitter and releasing and indemnifying the outfitter. In effect, whoever wrote this stuttered.
Then hint two: “…for myself, my heirs, assigns and next of kin.” The person signing is signing away their right to sue, their heirs, which may include their child’s right to sue, and the adults next of kin. If the child is a minor, they have not signed away the child’s right to sue or the right to sue of the child’s heirs or next of kin.
None of the language above conforms to the required language in Colorado or Florida or the language that other statutes and court cases suggest. As far as a release against the claims of a minor this release fails miserably.
Finally, there is no jurisdiction and venue clause. See Four releases signed and all of them thrown out because they lacked one simple sentence!
My Legal Stutter
An attorney has to write your release. Your release must meet your state laws. Your release must meet the requirements of your program.
Free releases cost you a fortune. The amount of time you will spend defending a release given to you by an insurance company or created by someone who does not understand the legal ramifications is not worth it. No trial will cost you less than ten days, and if you are making less than $1500 in profit in ten days, you need to get another job. J
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2012 Recreation Law (720) Edit Law
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, #Insurance, Insurance Company, Sport Underwriters, Sport and Special Event Insurance Agency USA, New York, #NY, #minor, parental rights, #waiver,
WordPress Tags: Insurance,Sport,Underwriters,flaws,Waiver,Release,System,participants,guardian,Unintentional,error,coverage,event,participant,failure,waivers,Overall,States,Support,Montana,Special,Agency,York,Releases,paragraph,Some,transportation,policy,opinion,accident,gear,Very,recreation,PFDs,whitewater,operators,industry,person,Releasees,consumer,juries,decision,difference,areas,signatures,area,adults,parents,signature,agreement,clause,Parent,Temporary,incident,involvement,heirs,youth,leaders,Scout,guardians,attorney,Colorado,Florida,statutes,jurisdiction,venue,Four,Legal,Stutter,laws,requirements,Free,cost,ramifications,worth,Leave,Twitter,LinkedIn,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,Company,outfitter,signor,indemnification
Summer Camp not liable for injuries of camper inflicted by another camper.
Posted: March 26, 2012 Filed under: Summer Camp | Tags: Camp, first aid, Injury, Medical Care, New York, Plaintiff, Recreation, summer camp Leave a commentMurawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
No advance knowledge of the possible assault does not make camp liable.
The plaintiff was a ten-year-old boy attending a multi-week summer camp. The plaintiff was attached by a smaller camper causing minor injuries and a broken finger. The plaintiff sued for “improper supervision and a failure to provide proper medical care after the assault.”
The defendants were the camp, camp employees and church officials who ran the camp. The defendants raised the defense of a spontaneous altercation that could not have been anticipated, and any delay in medical treatment caused no adverse effect upon the plaintiff.
The plaintiff shared a cabin with the camper who assaulted him. There had been a yelling altercation between the two boys prior to this incident. Generally, the two boys did not get along. The plaintiff was in the cabin looking for something. The smaller camper thought that the plaintiff was holding something of his when the two started yelling. The smaller camper eventually hit the plaintiff with a hockey stick.
The plaintiff did not complain to anyone about the other camper. The camp had no record of any problems and no one who saw the prior exchanges between thought those exchanges amounted to a major problem.
After the assault, the camp nurse splinted the finger of the plaintiff and followed up with the plaintiff twice. Each time the plaintiff informed the nurse his finger was feeling better. Two days later the plaintiff’s mother came to camp and took the plaintiff away for several hours. When she came back she asked the plaintiff’s finger be x-rayed. (For some reason, some reason this seems like a red flag to me.)
So?
For camps, the first hurdle that is always misunderstood by parents, rarely understood by camps and sometimes missed by courts is the standard of care that a camp owes to a camper. That standard is that of a reasonably prudent parent. That standard does not require constant supervision. The court found that constant supervision would not be a desirable situation because it would not foster self-reliance in the campers.
Camps, like schools are not insurers of safety for they cannot reasonably be expected to continuously supervise and control all movements and activities of the campers. . . .. In order to establish a breach of the duty to provide adequate supervision a plaintiff must show that the camp authorities had sufficient specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could have reasonably been anticipated
Because constant supervision is not required, to be liable under New York law, the plaintiff must prove the camp was on notice that there was a problem or that a camper had exhibited dangerous conduct.
….there is no factual basis to conclude either that the camp’s agents had knowledge constituting notice of a particular danger to the infant plaintiff prior to the incident or that the incident that caused the infant plaintiff’s injuries was anything other than a sudden, unanticipated independent act by a fellow camper.
Thus without knowledge of prior bad acts or an intent on the part of the attacking camper, the camp is not liable for the acts of the smaller camper.
The next issue the court reviewed was the medical care. Several issues supported the camps’ defense.
The camper was inspected by a nurse initially and twice with follow ups. Each time the plaintiff told the nurse he was getting better. There was also no long-term damage to the plaintiff’s finger which would give rise to a claim or greater damages. Also, the plaintiff could not prove that the failure to provide immediate care did not cause injury upon the plaintiff.
So Now What?
You cannot rely on courts to inform parents of the standard of care that you must use with their children. That will eventually lead to insurance premiums you cannot afford.
Nor can you tell parents that you will treat their child with the same care they would. Again, parents never do anything that injures their child and any injury will create a problem for you.
What you can do is inform the parents of two things.
· How hard you work to keep kids safe.
· Kids get hurt.
As I have said repeatedly, absent foam rubber on every tree and trial, kids are going to find a way to get hurt. You need to make sure that parents know that the adventures and excitement that draw kids to your camp are the same things that may issue them. Like riding a bike, it takes a few crashes to learn how to ride a bike, and as you get better you push your limits more and crash some more.
If you do not get this idea across to parents, every time a kid is hurt, you may have to have a judge prove to the parent you are not liable. That is costs too much time and money.
The scary aspect of this case is the issue of medical care. Twenty years ago when I first started looking at cases in the outdoor recreation community, I never saw any allegations concerning medical care or first aid. Recently, I’ve written about two cases where it was an issue, and it seems to be a growing issue.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2012 Recreation Law (720) Edit Law
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport, managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, summer camp, youth camp, #camper, #kids, #minors, Minor Camper.
WordPress Tags: Summer,Camp,injuries,camper,Murawski,Nageela,Misc,LEXIS,Slip,knowledge,plaintiff,supervision,failure,defendants,employees,officials,altercation,treatment,cabin,boys,incident,hours,parents,situation,self,reliance,campers,Camps,insurers,injury,York,basis,agents,danger,infant,Thus,Several,Also,insurance,premiums,Again,Kids,rubber,tree,adventures,excitement,bike,money,aspect,recreation,allegations,Leave,Twitter,LinkedIn,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,minors,Minor,upon
Murawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
Posted: March 26, 2012 Filed under: Legal Case, Summer Camp | Tags: Camp, Long Island, New York, New York City, Recreation, Summary judgment, Summer Camp Leave a commentMurawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
[***1] Nina Murawski, individually and as parent and Natural Guardian of Adam Murawski, an Infant, Plaintiffs, v. Camp Nageela, Camp Shevtai Yisroel, Jewish Education Program (JEP) of Long Island, rabbi shenker, rabbi glustein, jeffrey y. Arshravan and Eric Arshravan, an infant, Defendants.
01-2959
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
June 10, 2004, Decided
NOTICE: [**1] THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
DISPOSITION: Defendants motion for summary judgment granted; complaint dismissed.
CORE TERMS: infant, supervision, summary judgment, camper, bunkhouse, altercation, personnel, notice, finger, nurse, summer camp, anticipated, fellow, failure to provide, medical care, medical report, counselor, residual, dropped, sworn, mitt
HEADNOTES
[*1025A] Negligence–Duty.
COUNSEL: MALLILO & GROSSMAN, ESQS., Attorneys for Plaintiffs, Flushing, NY.
MOLOD, SPITZ & DeSANTIS, PC, Attorneys for Defendants Camp Nageela, JEP, Rabbi Shenker and Rabbi Glustein, New York, NY.
JUDGES: Denise F. Molia, J.
OPINION BY: Denise F. Molia
OPINION
Denise F. Molia, J.
ORDERED that this motion by defendants Camp Nageela, Jewish Education Program of Long Island, Rabbi Shenker and Rabbi Glustein for summary judgment dismissing the complaint against them is granted.
This is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff, Adam Murawski, then ten years old, when on August 11, 2000, he was assaulted by a fellow camper, defendant Eric Arshravan, in the bunkhouse they shared at defendant Camp Nageela, [**2] a sleep away summer camp operated by defendant Jewish Education Program of Long Island [JEP]. Defendant Rabbi Shenker is the director of JEP and defendant Rabbi Glustein is another employee of JEP. A derivative cause of action is asserted on behalf of infant plaintiff’s mother, plaintiff Nina Murawski.
Plaintiffs seek recovery from the camp defendants on two grounds – improper supervision and a failure to provide proper medical care after the assault. The camp defendants now move for summary judgment dismissing the complaint on the basis that the infant plaintiff’s injuries were the result of a spontaneous altercation that could not have been anticipated by camp officials. Defendants also contend that there was no adverse affect upon the infant plaintiff as a result of any delay in obtaining medical treatment for him. In support, defendants submit, inter alia, copies of the pleadings, a copy of the transcript of the testimony given by the infant plaintiff at his examination before trial, the personal affidavit of defendant Rabbi Shenker, and the sworn medical report of defendants’ examining physician, Dr. Leon Sultan.
At his examination before trial the infant plaintiff Adam [**3] Murawski testified to the effect that he shared a bunkhouse with four or five other boys at the camp, including the infant defendant Eric Arshravan, and a counselor. Adam also testified that Eric was somewhat smaller than him and that the two generally did not “get along well”. Adam stated that he and Eric had once had a previous argument during a kick ball game but that the disagreement did not go beyond Eric’s yelling at him. Adam testified that he that he could not remember whether he had complained about Eric to any of the camp counselors during the two week period prior to the subject incident and that the boys had not engaged in any physical altercations during that time period. Adam further testified that the incident occurred when the two boys were alone in the bunkhouse, that he had gone into the bunkhouse in order to get his baseball mitt and that Eric came in after him. While Adam was looking for his mitt he dropped something and then picked up something of Eric’s because he thought the item he dropped might be underneath or near it. Eric then told Adam to “put it down” and he did so. Adam further testified that the two boys had agreed to share a table and that he thought [**4] Eric became angry because he believed that Adam [***2] had moved one of Eric’s belongings. Shortly thereafter, Eric hit Adam with a hockey stick.
By his personal affidavit, defendant Rabbi Shenker states that at no time prior to the subject incident were the camp personnel advised that Adam had complained of any problems with the infant defendant and that the camp had no written reports of any incidents involving the boys from Adam’s bunkhouse other than the nurse’s report of the subject incident. As for the plaintiffs’ claim that the camp failed to provide proper medical attention for the infant plaintiff, Rabbi Shenker states that Adam was seen by the camp nurse after the incident and she determined that the Adam’s finger should be placed in a splint and that he should be followed, that the camp nurse twice followed up with Adam the next day and was told by Adam that his finger was feeling better. Rabbi Shenker further states that plaintiff Nina Murawski came to the camp two days after the incident to visit Adam and she took him off the camp grounds for several hours. When she brought Adam back to camp, she asked the camp personnel to arrange for an x-ray of Adam’s finger which was later [**5] taken at the emergency room at the local hospital.
The standard of care for persons having children entrusted to their care in a summer camp setting is that of a reasonably prudent parent. In such a setting, constant supervision is neither feasible nor desirable because one of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy (Gustin v Association of Camps Farthest Out, Inc., 267 A.D.2d 1001, 700 N.Y.S.2d 327 [1999]). Camps, like schools are not insurers of safety for they cannot reasonably be expected to continuously supervise and control all movements and activities of the campers (Lesser v Camp Wildwood, 282 F. Supp. 2d 139 [2003]). In order to establish a breach of the duty to provide adequate supervision a plaintiff must show that the camp authorities had sufficient specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could have reasonably been anticipated (see, Mirand v City of New York, 84 N.Y.2d 44, 637 N.E.2d 263, 614 N.Y.S.2d 372 [1994].
Here, viewing the record in a light [**6] most favorable to the plaintiffs (see, J. Rosen Furs, Inc. v Sigma Plumbing & Heating Corp., 249 A.D.2d 276, 670 N.Y.S.2d 596 [1998]), there is no factual basis to conclude either that the camp’s agents had knowledge constituting notice of a particular danger to the infant plaintiff prior to the incident or that the incident that caused the infant plaintiff’s injuries was anything other than a sudden, unanticipated independent act by a fellow camper (see, Mirand v City of New York, supra; Foster v New Berlin Central School Dist., 246 A.D.2d 880, 667 N.Y.S.2d 994 [1998]; Schlecker v Connetquot Central School Dist. of Islip, supra). There is also no evidence that the camp’s agents had any actual or constructive notice that the infant defendant was engaged in a prohibited activity or that they had a reasonable opportunity to prevent its continuance prior to the subject altercation (see, Mirand v City of New York, supra; Totan v Bd. of Educ., 133 A.D.2d 366, 519 N.Y.S.2d 374 [1978] app den 70 N.Y.2d 614, 524 N.Y.S.2d 432, 519 N.E.2d 343). The infant plaintiff, [**7] by his own admission, concedes that he notified none of the camp’s personnel concerning his fears of an impeding confrontation with the infant [***3] defendant. Therefore, even assuming, arguendo, that an issue of fact exists regarding the adequacy of the supervision, the need for additional supervision of the infant defendant prior to the incident could not have been apprehended (see, Nocilla v Middle Country School District, 302 A.D.2d 573, 757 N.Y.S.2d 300 [2003]; Foster v New Berlin Central School Dist., supra; McGregor v City of New York, 197 A.D.2d 609, 602 N.Y.S.2d 669 [1993] app den 84 N.Y.2d 802, 617 N.Y.S.2d 136, 641 N.E.2d 157; Schlecker v Connetquot Central School Dist. of Islip, supra).
In opposition, plaintiffs rely upon counsel’s affidavit and the purported affidavit of another camper. Counsel’s affidavit is without probative value as counsel professes no first hand knowledge of the fact and circumstances relating to plaintiffs’ claims (see, Siagkris v K & E Mechanical, Inc., 248 A.D.2d 458, 669 N.Y.S.2d 375 [1998]). The affidavit by the non party infant witness [**8] is also inadmissible as it has not been signed by him. 1 Plaintiff has thus failed to meet the burden of producing proof in admissible form sufficient to require a trial of material questions of fact (Papadopoulos Gardner’s Village, 198 A.D.2d 216, 604 N.Y.S.2d 570 [1984]). The moving defendants are therefore granted summary judgment dismissing plaintiffs’ improper supervision claims.
1 Nor has the Court has considered the affidavit of another non party infant witness attached to the defendants’ Reply papers as that affidavit is not signed by the affiant.
The moving defendants are also entitled to summary judgment with respect to plaintiffs’ remaining claim the gravamen of which is that defendants’ failure to provide the infant plaintiff with prompt medical care for his injuries has resulted in residual injuries. Dr. Leon Sultan, by his sworn medical report, affirms that he is a board-certified orthopedic surgeon who examined Adam Murawski for the defendants. Dr. Sultan opines [**9] that Adam’s left hand is unremarkable in that he is orthopedically stable and neurologically intact, and that the 5th metacarpal fracture is healed without any residual functional impairment. Plaintiffs having come forward with no medical proof to sustain their enhanced injury claim, defendants are entitled to summary judgment.
Accordingly, the motion by defendants Camp Nageela, Jewish Education Program of Long Island, Rabbi Shenker and Rabbi Glustein for summary judgment is granted and the complaint is dismissed as to these defendants. The Court’s computerized records reflect that the action was previously discontinued as to defendants Arshravan by stipulation filed with the County Clerk on August 28, 2001. In addition, plaintiffs’ failure to move for a default within one year after service of the complaint warrants a dismissal of the complaint as against the sole remaining defendant, Camp Shevtai Yisroel (CPLR 3215[c]). The complaint is therefore dismissed in its entirety.
[***4] X FINAL DISPOSITION NON-FINAL DISPOSITION
This case is a summer camp lawsuit and the decision looks at venue and jurisdiction; however the complaint alleges medical malpractice against a camp!
Posted: February 13, 2012 Filed under: Jurisdiction and Venue (Forum Selection), New York, Pennsylvania, Summer Camp | Tags: American Camp Association, Camp, Lawsuit, Medical Malpractice, New York, parent, Physician, summer camp, United States Leave a commentI really wish I could find out how this case resolved
This case covers a fact pattern that probably occurs weekly during the summer. The camper started suffering some illness. The camper was treated at camp by the camp physician and camp nurse then sent to a local hospital.
The parents sued the camp, camp physician, camp nurse and the treating physicians at the hospital for medical malpractice. The specific claim against the camp and its nurse and physician was a failure to “…timely recognize and properly care for and treat Jordan’s condition.”
In order to enroll the child in the camp, the parents were required to sign a camp contract. The contract covered many different details but was never identified by the court as a release.
The mother sued the camp in New York for the alleged injuries to her son.
So?
The second paragraph of the camp contract gave the camp permission to treat the child for any medical surgical or dental issues.
If it is necessary to obtain off-camp medical/surgical/dental services for the camper, such as expenses shall be paid by the parent except the portion supplied by the camp medical staff. Authority is granted without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper. The parent is responsible for all pre-existing medical conditions, out of camp medical/surgical/hospital/pharmaceutical/allergy expenses and for providing adequate quantities of necessary medications and allergy serums to camp in pharmacy containers with doctor’s instructions. The parent(s) or legal guardian(s) hereby states that the camper is in good, normal health and has no abnormal physical, emotional, or mental handicaps”.
(For other articles looking at the medical issues of camps and outdoor activities see Texas makes it easier to write a release because the law is clear, North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations, ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp, Adult volunteer responsibility ends when the minor is delivered back to his parents.)
The basis of the legal arguments on appeal were the jurisdiction and venue of the lawsuit. (For more articles on venue and jurisdiction see Four releases signed and all of them thrown out because they lacked one simple sentence!, A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit., Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court., The legal relationship created between manufactures and US consumers.). The camp was located in Pennsylvania and the jurisdiction and venue clause required any suit to be in Pennsylvania.
The venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania”
The camp operated out of an office in Pennsylvania in the summer where the camp was located, but it had an office in New York during the winter. When the child was ill, he was taken to a hospital which was located in New York.
The camp, camp nurse and camp physician filed motions to dismiss the complaint based on the jurisdiction and venue clause in the contract. The hospital and other physicians being sued also filed motions to dismiss based on the jurisdiction and venue clause in the contract. The contract stated, “the forum selection clause applies to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party”
To void a jurisdiction and/or venue clause the party opposing it must prove that the clause is:
…unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.
Without proof of such an issue, then jurisdiction and venue clause are valid and enforceable and will not be set aside. The plaintiff did not prove to the court any of the necessary elements to have the clause set aside.
Thus, the contract allowed the court to dismiss the camp, camp nurse and camp physician’s as defendant and force the plaintiff to re-file the lawsuit in the Wayne County Pennsylvania court. “Accordingly, since the forum selection clause addresses jurisdiction and contains mandatory venue language, the clause fixing venue is enforceable…”
Third Parties – non camp employees
The physicians and hospital argued the language in the contact and the relationship between themselves and the camp then extended the jurisdiction and venue of the contact to them. As such they should be sued in the Common Pleas court of Wayne County Pennsylvania. However, the court found the parties to the original contract, the camp and the parents did not foresee the contract extending that far to third parties.
To reach to third parties in such a case the contract must.
…there are three sets of circumstances under which a non-party may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a ‘global transaction’ who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is ‘closely related’ to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by virtue of the relationship between them.
Because the parties to the original contract did not contemplate in their formation of the contract, that hospital and physicians would be part of the agreement, the court could not extend the agreement to them in the suit.
So Now What?
This is a good discussion and points out the importance of having a forum selection clause in your documents and especially your release.
The scary and still unanswered part of the decision is the claims of medical malpractice can still be raised against the camp in Pennsylvania.
Make sure you contact your insurance agent and verify that you would be covered if a medical-malpractice claim is brought against you in a case like this. If you have or employee physicians, nurses or other licensed health care providers, you will need to have specific medical-malpractice coverage to cover them if you are sued. However, coverage for a non-entity such as a camp is rarely written into a policy.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2012 Recreation Law (720) Edit Law
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, camp, summer camp, medical, first aid, medical malpractice, camp nurse, camp physician, camp doctor, jurisdiction, venue, Pennsylvania, New York, PA, NY,
WordPress Tags: lawsuit,decision,venue,jurisdiction,complaint,malpractice,Bernstein,Wysoki,LEXIS,Slip,fact,camper,physician,hospital,parents,physicians,failure,Jordan,York,injuries,paragraph,permission,limitation,injections,surgery,allergy,quantities,medications,pharmacy,instructions,guardian,health,Texas,North,Carolina,Standards,Expert,Plaintiff,Camp,Adult,basis,arguments,Four,Recent,Colorado,Supreme,Court,requirements,Massachusetts,Salomon,France,relationship,consumers,Pennsylvania,clause,agreement,agents,District,Justice,Common,Pleas,Wayne,office,winter,forum,selection,contravention,policy,fraud,purposes,Thus,defendant,Third,Parties,employees,beneficiary,Second,transaction,signatories,agreements,purpose,signatory,enforcement,virtue,formation,discussion,importance,Make,insurance,agent,employee,providers,coverage,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,dental,enforceable
Recreation Law 