42 Pa.C.S. JUDICIARY AND JUDICIAL PROCEDURE
Part VII CIVIL ACTIONS AND PROCEEDINGS
Chapter 71 GENERAL PROVISIONS
§ 7102 Comparative negligence
(a) General rule.–In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
(a.1) Recovery against joint defendant; contribution.
(1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).
(2) Except as set forth in paragraph (3), a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.
(3) A defendant’s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages:
(i) Intentional misrepresentation.
(ii) An intentional tort.
(iii) Where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.
(iv) A release or threatened release of a hazardous substance under section 702 of the act of October 18, 1988 (P.L. 756, No. 108) , known as the Hazardous Sites Cleanup Act.
(v) A civil action in which a defendant has violated section 497 of the act of April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code.
(4) Where a defendant has been held jointly and severally liable under this subsection and discharges by payment more than that defendant’s proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, in any case, any defendant may recover from any other person all or a portion of the damages assessed that defendant pursuant to the terms of a contractual agreement.
(a.2) Apportionment of responsibility among certain nonparties and effect. –For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. A person whose liability may be determined pursuant to this section does not include an employer to the extent that the employer is granted immunity from liability or suit pursuant to the act of June 2, 1915 (P.L. 736, No. 338), known as the Workers’ Compensation Act. An attribution of responsibility to any person or entity as provided in this subsection shall not be admissible or relied upon in any other action or proceeding for any purpose. Nothing in this section shall affect the admissibility or nonadmissibility of evidence regarding releases, settlements, offers to compromise or compromises as set forth in the Pennsylvania Rules of Evidence. Nothing in this section shall affect the rules of joinder of parties as set forth in the Pennsylvania Rules of Civil Procedure.
(b) Deleted by 2011, June 28, P.L. 78, No. 17, § 1, imd. effective.
(b.3) Off-road vehicle riding./para>
(1) Off-road vehicle riding area operators shall have no duty to protect riders from common, frequent, expected and nonnegligent risks inherent to the activity, including collisions with riders or objects.
(2) The doctrine of knowing voluntary assumption of risk shall apply to all actions to recover damages for negligence resulting in death or injury to person or property brought against any off-road vehicle riding area operator.
(3) Nothing in this subsection shall be construed in any way to abolish or modify a cause of action against a potentially responsible party other than an off-road vehicle riding area operator.
(c) Downhill skiing
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1).
(c.2) Savings provisions.–Nothing in this section shall be construed in any way to create, abolish or modify a cause of action or to limit a party’s right to join another potentially responsible party.
(d) Definitions.–As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Defendant or defendants.” Includes impleaded defendants.
“Off-road vehicle.” A motorized vehicle that is used off-road for sport or recreation. The term includes snowmobiles, all-terrain vehicles, motorcycles and four-wheel drive vehicles.
“Off-road vehicle riding area.” Any area or facility providing recreational activities for off-road vehicles.
“Off-road vehicle riding area operator.” A person or organization owning or having operational responsibility for any off-road vehicle riding area. The term includes:
(1) Agencies and political subdivisions of this Commonwealth.
(2) Authorities created by political subdivisions.
(3) Private companies.
“Plaintiff.” Includes counter claimants and cross-claimants.
Cite as 42 Pa.C.S. § 7102
History. 1978, April 28, P.L. 202, No. 53, § 10(89), effective June 27, 1978. Amended 1980, Oct. 5, P.L. 693, No. 142, § 222(a), effective in 60 days; 1982, Dec. 20, P.L. 1409, No. 326, art. II, § 201, effective in 60 days; 2002, June 19, P.L. 394, No. 57, § 2, effective in 60 days; 2004, July 15, P.L. 736, No. 87, § 5, imd. effective; 2011, June 28, P.L. 78, No. 17, § 1, imd. effective.
Stay the Trail Colorado did a great job with these!
Check Out New Smart MVUM Maps for Colorado National Forests!
Stay the Trail Colorado provides a central webpage where the public, organizations and agencies can download all US Forest Service Motor Vehicle Use Maps (MVUM) for National Forests and Grasslands located in Colorado. These maps are kept up to date as the US Forest Service updates their maps. Funding for this effort is provided by Colorado Parks and Wildlife in the form of grant funding that comes from registration of OHVs in Colorado. Stay the Trail and Great Outdoors Consultants have made the MVUMs “smarter” by making sure they all have geospatial information (the map knows where it’s located in the World) and by providing them in multiple formats. Smart MVUMs are provided in the following formats.
Geospatial PDF Files
Some National Forests are publishing PDF versions of MVUMs that are already geospatial which means that you can see map coordinates in Acrobat Reader using the geospatial location tool (found in the analysis toolbar/ menu). These maps can also be imported into some mapping programs such as Global Mapper. MVUMs that did not have geospatial information were processed to add geospatial information using Global Mapper software. All PDF MVUMs were exported in the following coordinate system: UTM – Zone 13 North – NAD1983 – meters
Geospatial PDFs can also be used on Apple and Android smart phones/tablets using Avenza’s free application call PDF Maps. After the PDF MVUM is downloaded on the mobile device, cellular coverage is not needed to use it. This application shows the current GPS location of the user on the map and allows them to perform some basic GPS recording tasks! The application allows you to show the location of geotagged photos you’ve taken with your mobile device right on the MVUM map. PDF Maps has an online map store that allows users of the app to find MVUMs by name or their current location! This app is being used to distribute free maps for the National Park Service, USGS Topo maps and other free maps. The store also allows for sale of commercial maps such as National Geographic maps. All MVUMs found on the Stay the Trail webpage are now also available through the Avenza map store for free!
1. Go to “App Store”, search for “PDF Maps” and install
2. Open “PDF Maps”, select “Store” function from the lower bar
3. Select the search function in top right corner.
4. Search for “Stay The Trail” or “MVUM” or a Ranger District, select from the pins that appear
5. Use the “Free” button to download to the phone.
6. Downloaded maps show up in the “Maps” list on the lower left
7. Select appropriate map for the district’s trails you will be using. Your location appears using GPS sensor.
Note: The android version of the PDF Maps app is a beta version and is not currently linked to the Avenza map store. Maps can be loaded in the Android version by linking to the Stay the Trail webpage MVUMs, by emailing the PDF file or a link to it.
http://staythetrail.org/mvum/index.php – All Colorado PDF MVUMs on one webpage
http://www.avenza.com/pdf-maps – information about the application
http://www.pdf-maps.com/get-maps – search for Colorado MVUMs on your computer – preview only
Google Earth Files
Geospatial PDF MVUM files were rasterized in Global Mapper software and then clipped to the map frame (excluded the legend). The rasterized MVUM files were then exported to Google Earth .kmz files. These files can be loaded into Google Earth desktop and mobile applications. To load a .kmz file on your mobile device, email yourself the appropriate .kmz file or a link to the .kmz file on the Stay the Trail webpage. Google Earth mobile will show your current location on the MVUMs. MVUMs in this format allow the user to load adjacent MVUMs and look at them in 3D. Google Earth also allows the user to add other vector data on top of the MVUM such as trails or other data they have. A brief description of the MVUM file and a link to the Stay the Trail webpage are included in the .kmz files so the user can access the legend and other information that has been removed from the .kmz version of the MVUMs. All Google Earth MVUMs were exported in the following coordinate system: Latitude-Longitude – WGS84 – decimal degrees.
http://www.staythetrail.org/mvum/kmz/ – All Colorado Google Earth MVUMs on one webpage
Geospatial PDF MVUM files were rasterized in Global Mapper software and then clipped to the map frame (excluded the legend). The rasterized MVUM files were then exported to geotiff (.tif) files. Geotiffs are raster files that include geospatial information. These files can be loaded into Arcmap, Global Mapper, Terrasync, Arcpad and other GIS/GPS programs. They can also be loaded into Avenza PDF Maps mobile application! MVUMs in this format allow the user to load adjacent MVUMs and look at them side-by-side. GIS programs allow the user to add other vector data on top of the MVUM such as trails or other data. A brief description of the MVUM file and a link to the Stay the Trail webpage are included as text files so the user can access the legend and other information that has been removed from the .tif version of the MVUMs. All geotiff MVUMs were exported in the following coordinate system: UTM – Zone 13 North – NAD1983 – meters.
http://www.staythetrail.org/mvum/geotiff/ – All Colorado Geotiff MVUMs on one webpage
Check these and to make sure you know where you are and where you should not be when off road in Colorado.
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Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132
C. Gary Lloyd, Plaintiff v. Tom Bourassa, Sugarloaf Mountain Corp., and United States Cycling, Inc. d/b/a National Off-Road Bicycle Association, Defendants
Civil Action Docket No. 01-CV-039
Superior Court of Maine, Hancock County
2002 Me. Super. LEXIS 132
August 20, 2002, Decided
August 21, 2002, Filed and Entered
SUBSEQUENT HISTORY: Affirmed by, Remanded by, Sub nomine at Lloyd v. Sugarloaf Mt. Corp., 2003 ME 117, 2003 Me. LEXIS 131 (Sept. 25, 2003)
DISPOSITION: [*1] Plaintiff’s motion for judgment on pleadings denied. Motions for summary judgment filed by defendants U.S.A. Cycling and Sugarloaf granted. Judgment granted to defendants on Counts II and III of plaintiff’s amended complaint.
CORE TERMS: cycling, membership, summary judgment, sponsor, bicycle, successors, mandatory, off-road, counterclaims, collision, promoter, mountain, collectively, indirectly, genuine, assigns, travel, entities, sport, waive, heirs, wanton negligence, willful, law enforcement agencies, matter of law, own negligence, issue of material fact, legal representatives, successors in interest, property owners
JUDGES: Ellen A. Gorman.
OPINION BY: Gorman
On June 22, 1995, C. Gary Lloyd applied for membership in “USCF . NORBA . NCCA.” After filling in some identifying information on the first page of the application form, Lloyd placed his signature on the second page, under a section entitled “Acknowledgment of Risk and Release of Liability.” That section contained the following language:
Please accept this as my application for membership and a USCF, NORBA and/or NCCA license.
I acknowledge that cycling is an inherently dangerous sport in which I participate at my own risk and that the United States Cycling Federation, Inc. is a non-profit corporation formed to advance the sport of cycling, the efforts of which directly benefit me. In consideration of the agreement of the USCF to issue a license to me, hereby on behalf of myself, my heirs, assigns and personal representatives, I release and forever discharge the USCF, its employees, agents, members, [*2] sponsors, promoters and affiliates from any and all liability, claim, loss, cost or expense, and waive and promise not to sue on any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any negligence, action or omission to act of any such person or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, including travel to and from such event, in which I may participate as a rider, team member or spectator.
On August 11, 1995, with his NORBA membership in hand, Lloyd traveled to Kingfield, Maine to participate in a mountain biking event sponsored by the Sugarloaf Mountain Corporation known as the Widowmaker Challenge. At Kingfield, Lloyd signed the Official Entry Form, which included the following language under the heading of “Athlete’s Entry & Release Form 1“:
I fully realize the dangers of participating in a bicycle race and fully assume the risks associated with such participation including, by way of example, and not limitations, the following: the dangers of collision with pedestrians, vehicles, other racers and fixed or moving objects; the [*3] dangers arising from surface hazards, equipment failure, inadequate safety equipment and weather conditions; and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition.
I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and…. through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . .
I agree, for myself and successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert my claim in contravention of this agreement, I or my successors shall [*4] be liable for the expenses incurred (including legal fees) incurred by the other party or parties in defending, unless the other parties are financially adjudged liable on such claim for willful and wanton negligence.
1 To avoid confusion, the “release” signed in June shall be referred to as the “Membership Release,” and the release signed in August shall be referred to as the “Event Release.”
Lloyd registered to participate in both the cross-country race and the downhill challenge. While completing a mandatory practice run on August 11, 1995, Lloyd was involved in a collision with another participant, Tom Bourassa.
On August 10, 2001, Lloyd filed suit against Bourassa, Sugarloaf Mountain Corporation, and United States Cycling Federation d/b/a National Off-Road Bicycle Association, asserting negligence claims against all three. Soon thereafter, Lloyd learned that he had failed to name the appropriate corporate defendant, and filed a motion to amend the complaint. Over objection, that motion was granted, [*5] and U.S.A. Cycling, Inc. replaced United States Cycling Federation d/b/a National Off-Road Bicycle Association.
In their Answers, both Sugarloaf and U.S.A. Cycling responded that Lloyd’s claims were barred by the releases quoted above. In addition, both asserted Counterclaims against Lloyd for breaching the terms of the releases. Both demanded Lloyd be held liable for any expenses they incurred in defending his suit.
On January 25, 2002, Lloyd filed a Motion for Judgment on the Pleadings with respect to Defendants’ Counterclaims and Affirmative Defenses of Release and Waiver. Sugarloaf Mountain Corporation opposed that motion and filed its own Motion for Summary Judgment on March 11, 2002. U.S.A. Cycling also opposed the plaintiff’s motion, and filed its Motion for Summary Judgment on April 11, 2002. All of the motions requested that the court review the language of the releases and determine whether and how it affected the outcome of this suit. A hearing on all three motions was held on July 3, 2002. Any findings included below are based upon the properly submitted affidavits and statements of material fact. Specifically excluded from that category is the affidavit form Attorney [*6] Greif.
1. Plaintiff’s Motion for Judgment on the Pleadings
The plaintiff argues that he is entitled to judgment on the defendants’ counterclaims and on their affirmative defenses of release and waiver because “the release, 2” by its terms, does not apply to U.S.A. Cycling, does not apply to the facts of this case, does not protect the defendants from their own negligence, and is unenforceable as contrary to public policy.
2 Plaintiff did not address the language of the Membership Release in his motion.
In considering a motion for judgment on the pleadings, the court is required to accept all of the responding party’s pleadings as true, and draw all reasonable inferences in its favor. Judgment is only appropriate if the responding party can prove no set of facts that would entitle it to relief. The plaintiff has failed to meet that burden.
Applicability to U.S.A. Cycling
In support of his first assertion, Lloyd argued that, because the Event Release does not mention U.S.A. Cycling, [*7] that defendant is not within the category of potentially released entities. With its response to this motion, U.S.A. Cycling filed an affidavit by Barton Enoch to establish that NORBA, a named sponsor of the Widowmaker, was the off-road division of U.S.A. Cycling, Inc. The clear language of the Entry Release covers sponsors, including U.S.A. Cycling d/b/a NORBA.
As mentioned above, Lloyd applied for membership in the United States Cycling Federation (USCF) and NORBA in June 1995. Soon thereafter, USCF merged into a new corporation, U.S.A. Cycling, Inc, that assumed all of its rights and responsibilities. By signing the Membership Release, Lloyd released U.S.A. Cycling, Inc. from responsibility for any accidents that might occur during his participation in any race events it sponsored.
Definition of Event
Lloyd has argued that the strictly construed language of the Event Release does not cover accidents that occur during the training run. In support of this argument, he has cited Doyle v. Bowdoin College, 403 A.2d 1206 (Me. 1979.) In that case, the Law Court said “releases absolving a defendant of liability for his own negligence must expressly spell out [*8] ‘with the greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” Doyle, at 1208. Contrary to the plaintiff’s assertions, the language of the Event Release does precisely that:
I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and properties . . . . through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . . (emphasis added)
All parties have agreed that the training run was a mandatory part of the event. To interpret the Event Release in such a convoluted fashion that it excludes a mandatory part of the [*9] event from the term “event” defies logic and is contrary to the intent of the parties as demonstrated by the plain language of the release. Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368.
Although releases of liability are “traditionally disfavored,” in Maine that disfavor has resulted in strict interpretation rather than prohibition. Doyle v. Bowdoin College, Id. The cases cited by plaintiff in support of his contrary argument are from other jurisdictions and do not accurately describe the law in Maine. When asked to consider the issue raised here, both Maine state courts and the First Circuit have consistently enforced the language of releases. See, e.g., Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368; McGuire v. Sunday River Skiway Corp., 1994 WL 505035 (D.Me.)(Hornby, J.), aff’d 47 F.3d 1156 (1st Cir. 1995). Despite his reference to a “contract of adhesion,” Lloyd was not compelled to sign either release. He chose to sign both because he wanted to participate in an inherently risky sport. He is free to make such choices, but must also accept responsibility for what happens as a result [*10] of that choice.
For the reasons stated above, plaintiff’s motion for judgment on the pleadings is denied.
2. Defendants’ Motions for Summary Judgment
The Law Court has addressed motions for summary judgment on many occasions:
In reviewing a summary judgment, we examine the evidence in the light most favorable to the nonprevailing party to determine whether the record supports the conclusion that there is no genuine issue of material fact and that the prevailing party is entitled to a judgment as a matter of law. (citation omitted) In testing the propriety of a summary judgment, we accept as true the uncontroverted facts properly appearing in the record. (citation omitted)
Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, P5, 711 A.2d 842, 844. The issue is not whether there are any disputes of fact, but whether any of the disputes involve a “genuine” issue of “material” fact. See Rule 56(c). After reviewing the record provided with these standards in mind, the court must conclude that there are no genuine issues of disputed fact.
Both Lloyd and the defendants agree that Lloyd was required to complete a practice run in order to participate [*11] in the Widowmaker Challenge. All of them agree that Lloyd signed both releases before he took that mandatory run, and all agree that he was involved in a collision with another bicyclist during that run. As was discussed above, the practice run and any problems encountered during it are covered by the terms of the releases Lloyd signed. The Membership Release contains express language releasing claims arising from negligence. The Entry Release contains express language describing the types of accidents or dangers covered by the release, including “the dangers of collision with … other racers.” The collision between Lloyd and Bourassa was precisely the type of accident contemplated by the parties and waived by Lloyd in both releases.
Lloyd has failed to refer to any evidence in the record that might support his theory that that the Event Release should be seen as a substitution or novation of the Membership Release. Without such evidence, the court may not presume that the parties intended that one contract be substituted for the other.
Lloyd has asserted that the reference in the Event Release to an exception for “willful and wanton negligence” precludes summary judgment. However, [*12] no such tort has yet been recognized in Maine, so no jury could be asked to determine whether the defendants had acted with willful or wanton negligence. That exception is inapplicable in this jurisdiction. In addition, that language refers only to the portion of the Release that discusses the defendants’ right to recover expenses, including legal fees. On the record presented, there are no material issues of disputed fact concerning the language of the releases.
U.S.A. Cycling was a sponsor and Sugarloaf was a promoter of the race. As a matter of law, the court finds that the mandatory practice run was included within the language of the Releases, that the releases are clear and unambiguous, and that the accident Lloyd claims falls entirely within the types of harms contemplated by the parties at the time the releases were signed. There is nothing left to be litigated on either plaintiff’s Complaint against defendants U.S.A. Cycling and Sugarloaf, or on their Counterclaims against him.
For the reasons stated above, the court finds that the releases signed by Lloyd individually and collectively bar any civil action against either U.S.A. Cycling, d/b/a NORBA or against Sugarloaf for [*13] the injuries Lloyd allegedly sustained on August 11, 1995. Summary judgment on plaintiff’s Complaint is granted to U.S.A. Cycling, d/b/a NORBA and to Sugarloaf. In addition, summary judgment against Lloyd on their Counterclaims is granted to both U.S.A. Cycling, d/b/a NORBA and. Within thirty (30) days, counsel for these defendants shall submit proof of expenses, including attorney fees, incurred in defense of this action.
Plaintiff’s motion for judgment on the pleadings is denied. The motions for summary judgment filed by defendants U.S.A. Cycling and Sugarloaf are granted. Judgment is granted to those defendants on Counts II and III of plaintiff’s amended complaint.
The Clerk is directed to incorporate this Order in the docket by reference, in accordance with M.R.Civ.P. 79(a).
DATED: 20 August 2002
Ellen A. Gorman