States that allow a parent to sign away a minor’s right to sue.

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203. Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 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
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:
www.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act, North Carolina, New York,


States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute Restrictions
Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203.  Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
 

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
 

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 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
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: http://www.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act, North Carolina, New York,

 

 


Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

Aaron S. Morgan, Plaintiff-Appellant, v. Kent State University et al., Defendants-Appellees.

No. 15AP-685

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

June 7, 2016, Rendered

COUNSEL: On brief: David B. Spalding, for appellant.

On brief: Michael DeWine, Attorney General, and Lee Ann Rabe, for appellee Kent State University.

JUDGES: DORRIAN, P.J. BROWN and SADLER, JJ., concur.

OPINION BY: DORRIAN

OPINION

[**1287] (REGULAR CALENDAR)

DECISION

DORRIAN, P.J.

[*P1] Plaintiff-appellant, Aaron S. Morgan, appeals the June 19, 2015 judgment of the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee Kent State University (“KSU”). For the following reasons, we affirm the judgment of the Court of Claims.

I. Facts and Procedural History

[*P2] During the period of time relevant to the present matter, appellant was a student at KSU’s Stark campus. In the fall semester 2012, appellant enrolled in a beginning karate class taught by Edward C. Malecki, an employee of KSU. Appellant had no experience in martial arts before enrolling in the beginning karate class, but had a general idea of what karate entailed through movies and television.

[*P3] The course syllabus for beginning karate listed objectives for the students, including: “[d]emonstrat[ing] basic self defense techniques including release from various holds and counter attacks, joint [***2] locks and throws.” (Apr. 17, 2015 KSU Mot. for Summ. Jgmt., Ex. D.) Additionally, the syllabus listed a variety of fighting techniques, including punches and kicks, that the students were expected to perform. Students enrolled in the class were required to wear a mouth guard and padded gloves.

[*P4] As part of the class, students were required to spar with one another and with the instructor using only “light physical contact.” (Malecki Dep. at 52.) According to Malecki, there was no bodily or facial contact permitted either by the students or the instructor. During the sparring, students practiced guarding themselves using their hands in defensive postures in front of their body. It was not uncommon for students to make mistakes, such as dropping their guard by lowering their hands. When a student would drop his or her guard, the instructor would stop the sparring procedure until the student resumed guarding himself or herself.

[*P5] On October 24, 2012, while appellant was sparring with Malecki, he lost his balance and dropped his guard. When appellant dropped his guard, Malecki punched appellant in the face. According to appellant, Malecki’s palm struck him on the nose. Malecki was not wearing [***3] padded gloves when he struck appellant. Appellant’s nose immediately started bleeding. Malecki and a student employee helped to stop appellant’s bleeding and then filled out an incident report. Appellant later sought medical care and was told that he suffered a nasal fracture.

[*P6] On July 15, 2014, appellant filed a complaint in the Court of Claims asserting claims for negligence and negligent hiring against KSU. On March 31, 2015, appellant filed a motion for partial summary judgment and attorney fees and expenses pursuant to Civ.R. 37(C). On April 17, 2015, KSU filed a motion for summary judgment and a memorandum contra appellant’s motion for partial summary judgment. On April 28, 2015, appellant filed a supplemental brief in support of his motion for attorney fees and expenses. On April 28, 2015, appellant filed a reply brief in support of his motion for summary judgment.

[*P7] On June 19, 2015, the Court of Claims filed an entry granting KSU’s motion for summary judgment and denying appellant’s motion for attorney fees and expenses.

II. Assignments of Error

[*P8] Appellant appeals and assigns the following four assignments of error for our review:

[**1288] [I.] The trial court erred in holding that the broad and general [***4] language contained in the Waiver, which neither Kent State University nor Aaron Morgan intended to apply to academic or physical education classes, effectively released the Appellee from liability resulting from the Appellant being struck in the face by his instructor during a class the Appellant subsequently enrolled in through the University.

[II.] The trial court erred in holding that the Appellant’s claim against Kent State University is barred by the doctrine of primary assumption of risk.

[III.] The trial court erred in failing to grant Plaintiff-Appellant’s Motion for Partial Summary Judgment, as to the issue of liability.

[IV.] The trial court erred by its failure to rule on Plaintiff-Appellant’s Motion for Attorney Fees and Expenses pursuant to Civ.R. 37(C).

For ease of discussion, we consider appellant’s assignments of error out of order.

III. Discussion

A. Second Assignment of Error

[*P9] In his second assignment of error, appellant asserts the Court of Claims erred in holding that his claim for negligence was barred by the doctrine of primary assumption of the risk.

[*P10] [HN1] “[I]n order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury [***5] resulting proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981), citing Feldman v. Howard, 10 Ohio St.2d 189, 193, 226 N.E.2d 564 (1967). “Under the law of negligence, a defendant’s duty to a plaintiff depends on the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position.” Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 11, citing Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645, 1992 Ohio 42, 597 N.E.2d 504 (1992).

[*P11] [HN2] “Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Schnetz v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 207, 2011-Ohio-3927, ¶ 21, 959 N.E.2d 554 (10th Dist.), citing Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10, 924 N.E.2d 906 (10th Dist.). Ohio courts have historically applied the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities. Crace at ¶ 12, citing Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-696, 2008-Ohio-1421, ¶ 8, citing Anderson v. Ceccardi, 6 Ohio St.3d 110, 114, 6 Ohio B. 170, 451 N.E.2d 780 (1983).

[*P12] [HN3] “Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.” Morgan at ¶ 13, citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio- 3656, ¶ 12, 857 N.E.2d 1255 (10th Dist.). See Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), paragraph one of the syllabus. Underlying the doctrine is the rationale that certain risks are [***6] so inherent in some activities that they cannot be eliminated, and therefore a person participating in such activities tacitly consents to the risks involved. Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist. [**1289] 1987). “The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that ‘(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.'” Morgan at ¶ 13, quoting Santho at ¶ 12.

[*P13] “‘To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.), citing Westray v. Imperial Pools & Supplies, Inc., 133 Ohio App.3d 426, 432, 728 N.E.2d 431 (6th Dist.1999). “Where the risk at issue is not inherent, then a negligence standard applies.” Id.

[*P14] [HN4] The Supreme Court of Ohio has explained the applicability of the doctrine of primary assumption of the risk and the rationale underlying it as follows:

Acts that would give rise to tort liability for negligence on a city street or in a backyard are not negligent in the context of a game where such an act is foreseeable and within the rules. For instance, a golfer who hits practice balls in his backyard [***7] and inadvertently hits a neighbor who is gardening or mowing the lawn next door must be held to a different standard than a golfer whose drive hits another golfer on a golf course. A principal difference is the golfer’s duty to the one he hit. The neighbor, unlike the other golfer or spectator on the course, has not agreed to participate or watch and cannot be expected to foresee or accept the attendant risk of injury. Conversely, the spectator or participant must accept from a participant conduct associated with that sport. Thus a player who injures another player in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence because no duty is owed to protect the victim from that conduct. Were we to find such a duty between co-participants in a sport, we might well stifle the rewards of athletic competition.

Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. See also Crace at ¶ 14.

[*P15] [HN5] When considering a defense of primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Crace at ¶ 16, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio- 379, ¶ 9, 802 N.E.2d 1116, citing Ramos v. Countryside, 137 Ill.App.3d 1028, 1031-32, 485 N.E.2d 418, 92 Ill. Dec. 607 (1985). Thus, even persons “‘entirely ignorant [***8] of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game. The law simply deems certain risks as accepted by plaintiff regardless of actual knowledge or consent.'” (Footnotes omitted.) Gentry at ¶ 12, quoting Susan M. Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law, 75 Temple L.Rev. 231, 236 (2002). In accordance with these principles, this court has stated that “‘primary assumption of [the] risk requires an examination of the activity itself and not plaintiff’s conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.'” Morgan at ¶ 15, quoting Gehri v. Capital Racing [**1290] Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997).

[*P16] [HN6] “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” Id. at ¶ 14, citing Crace at ¶ 15, citing Gentry at ¶ 11, citing Prosser & Keeton, The Law of Torts, Section 68, at 496 (5th Ed.1984). [***9] “‘Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.'” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010-Ohio-1390, ¶ 21, quoting Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996). “Because of the great impact a ruling in favor of a defendant on primary assumption of risk grounds carries, a trial court must proceed with caution when contemplating whether primary assumption of risk completely bars a plaintiff’s recovery.” Gallagher at 432.

[*P17] In Crace, this court considered the applicability of the doctrine of primary assumption of the risk. In that case, Angela Crace, a student cheerleader at KSU, asserted a claim for negligence against KSU after she was severely injured during a cheerleading practice. On the day Crace was injured, the KSU cheerleading coach assigned members of the cheerleading squad, including Crace, to various positions in a maneuver known as a the “Big K.” The Big K was essentially a human pyramid that consisted of a base, a middle layer/base, and flyers; the pyramid was two and one-half people high. Spotters were positioned on the ground to catch the flyers when they dismounted the [***10] pyramid.

[*P18] Crace and several other members of the KSU cheerleading squad had successfully performed the Big K during the previous season. However, many other members of the team had neither performed nor seen the maneuver. On the day Crace was injured, the coach assigned Crace to the position of flyer. The first two attempts at the mount failed, resulting in Crace falling from about 15 feet in the air. However, the front spotter caught Crace when she fell. Before the third attempt, the coach substituted as the rear spotter a team member who had neither seen nor participated in the Big K. On the third attempt, the substitute rear spotter failed to catch Crace as she fell from approximately 15 feet in the air. As a result, Crace’s fall was unbroken, and she fell to the ground, resulting in immediate paraplegia.

[*P19] At issue in Crace was whether the doctrine of primary assumption of the risk applied to relieve KSU of liability based on the conduct of the cheerleading coach. Crace argued that the doctrine applied only to co-participants in a recreational activity. We disagreed, finding that [HN7] the doctrine of primary assumption of the risk applies to co-participants and non-participants alike. [***11] In so finding, we noted that the analysis of the doctrine focuses exclusively on the activity itself. Thus, if the activity is one that is inherently dangerous and from which risks cannot be eliminated, primary assumption of the risk is applicable. Id. at ¶ 16, citing Gehri. In so finding, we stated:

A holding to the contrary would likely shift the focus of the analysis away from the activity and its inherent risks. The analysis would then unnecessarily focus upon the extent of the defendant’s involvement and the defendant’s classification [**1291] as a participant, nonparticipant, coach, instructor, official, operator, owner, sponsor, provider, or otherwise. Injured participants would frame their allegations sufficiently to cast a liability net just beyond the reach of Marchetti and Thompson, with no regard for the inherent risks of the activity.

Id. at ¶ 25.

[*P20] We thus rejected Crace’s argument that primary assumption of the risk could not relieve a university of liability for negligence based on the conduct of one of its coaches in a cheerleading practice. Having so concluded, we next determined based on the evidence presented at trial that suffering an injury due to a fall is an inherent risk [***12] of cheerleading. Therefore, we found that the doctrine of primary assumption of the risk applied, and, as such, KSU owed no duty to protect Crace from the inherent risk of injury related to a fall while participating in cheerleading, absent a demonstration of recklessness or intentional misconduct.

[*P21] Here, appellant contends that the trial court erred in applying the doctrine of primary assumption of the risk because “the facts of this case manifestly establish that the injury sustained by [appellant] on October 24, 2012 was * * * not a ‘foreseeable’ consequence of participating in the subject Beginning Karate class.” (Emphasis omitted.) (Appellant’s Brief at 28-29.) Appellant cites the following circumstances in support of his contention: (1) all of the students in the class were “novices in martial arts”; (2) “the students were specifically assured by the instructor that there would be no bodily contact during the class and that facial contact was explicitly prohibited”; (3) “the instructor was required to wear padded, protective gloves as a further safeguard against injury”; and (4) “when a student dropped his or her guard, the instructor was required to stop the session until the [***13] student raised his or her guard.” (Appellant’s Brief at 28.)

[*P22] Appellant suggests the court consider that he had no experience in the martial arts. However, such a suggestion “shift[s] the focus of the analysis away from the activity and its inherent risks.” Crace at ¶ 25. Appellant further suggests the court consider the instructor’s actions. This essentially is a claim that the instructor was reckless. However, appellant’s complaint did not allege reckless or intentional conduct.

[*P23] Therefore, we decline to consider the same and limit our analysis to whether the doctrine of primary assumption of the risk applies to appellant’s claim for negligence. Thus, we consider whether karate is an inherently dangerous activity from which the risks cannot be eliminated. Morgan at ¶ 15; Crace at ¶ 16.

[*P24] The Court of Claims found that “[t]here is no question that the martial arts class was a sports or recreational activity with an inherent risk of injury.” (Jgmt. Entry at 5.) Furthermore, the Court of Claims found that “[p]hysical contact between participants during karate sparring is simply a foreseeable hazard of the activity.” (Jgmt. Entry at 5.) Other courts have found that participating in martial arts involves inherent risk. Levine v. Gross, 123 Ohio App.3d 326, 330, 704 N.E.2d 262 (9th Dist.1997) (finding that the plaintiff [***14] understood the “kind of risk posed by sparring and grappling in the course of a karate lesson”); Barakat v. Pordash, 164 Ohio App.3d 328, 2005-Ohio-6095, ¶ 12, 842 N.E.2d 120 (8th Dist.) (finding in the context of martial arts that “being injured in the course of a hold or maneuver is a risk that is a foreseeable and customary risk of the sport”).

[*P25] Karate is a recreational activity involving physical contact in the form of punches, kicks, and other techniques as [**1292] detailed in the course outline for the beginning karate course in which appellant was enrolled. Thus, by its very nature, karate, as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated. Indeed, the course outline notes that a “mouthguard; sparring gloves; athletic supporter w/cup” are required. (KSU Mot. for Summ. Jgmt., Ex. D.) As danger is inherent in karate, it is common knowledge that such danger exists, and appellant’s injury occurred during the course of participating in the inherently dangerous activity, we find that the doctrine of primary assumption of the risk applies in this case. Morgan at ¶ 13, citing Santho at ¶ 12. Under the doctrine of primary assumption of the risk, KSU owed no duty to protect appellant from the inherent risks of the activity. Id. at ¶ 27 [***15] . As a result, appellant is precluded from establishing a prima facie case of negligence, and the trial court did not err in granting KSU’s motion for summary judgment. Barakat at ¶ 13, citing Gentry (“Because an inherent risk was involved, recovery is dependent upon whether the defendant’s conduct was either reckless or intentional.”); Wolfe at ¶ 21.

[*P26] Accordingly, appellant’s second assignment of error is overruled.

B. First and Third Assignments of Error

[*P27] In his first assignment of error, appellant asserts that the Court of Claims erred by holding that the waiver signed by appellant released KSU from liability for the incident on October 24, 2012. In his third assignment of error, appellant asserts that the Court of Claims erred by failing to grant appellant’s motion for partial summary judgment on the issue of liability. Having overruled appellant’s second assignment of error, appellant’s first and third assignments of error are rendered moot.

C. Fourth Assignment of Error

[*P28] In his fourth assignment of error, appellant asserts that the Court of Claims erred by failing to rule on his motion for attorney fees and expenses pursuant to Civ.R. 37(C). We begin by noting that the Court of Claims in its June 19, 2015 judgment entry granting KSU’s motion for summary judgment did in fact rule on appellant’s March 31, 2015 motion for attorney fees and expenses. [***16] Specifically, the court stated: “The court finds that there was either a good reason for [KSU’s] failure to admit or the admissions sought were of no substantial importance. The court further finds that [appellant] has not suffered prejudice regarding the responses at issue. Accordingly, [appellant’s] motion for attorney fees and expenses is denied.” (Emphasis omitted.) (Jgmt. Entry, fn. 1.)

[*P29] Civ.R. 37(C) provides as follows:

Expenses on failure to admit. [HN8] If a party, after being served with a request for admission under Rule 36, fails to admit the genuineness of any documents or the truth of any matter as requested, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. Unless the request had been held objectionable under Rule 36(A) or the court finds that there was good reason for the failure to admit or that the admission sought was of no substantial importance, the order shall be made.

[*P30] Thus, [HN9] “[a] party may deny a request for admissions, but, upon motion pursuant to Civ.R. 37(C), improper [**1293] denials [***17] may subject the responding party to sanctions.” Salem Med. Arts & Dev. Corp. v. Columbiana Cty. Bd. of Revision, 82 Ohio St.3d 193, 195, 1998 Ohio 248, 694 N.E.2d 1324 (1998). “Whether such denials are subject to Civ.R. 37(C) sanctions depends upon whether the proof at trial contradicts the denial.” Id. The party denying a later-proved matter has the burden of proving that: “(1) the request for admissions was objectionable under Civ.R. 36 (A); (2) there was a good reason for the failure to admit; or (3) the matter was of no substantial importance.” Itskin v. Restaurant Food Supply Co., 7 Ohio App.3d 127, 129, 7 Ohio B. 161, 454 N.E.2d 583 (10th Dist.1982), paragraph one of the syllabus.

[*P31] “The determination of whether to award expenses and the amount thereof, pursuant to Civ.R. 37(C), necessarily involves a matter of discretion and, thus, is a matter lying within the sound discretion of the trial court.” Id. “‘[A]buse of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140 (1983).

[*P32] Here, the Court of Claims found that there was either a good reason for the failure to admit or that the admissions were of no substantial importance. Appellant fails to demonstrate that the Court of Claims abused its discretion by denying the motion. Accordingly, we overrule appellant’s fourth assignment of error.

IV. Conclusion

[*P33] Having overruled appellant’s second and fourth assignments of error [***18] and rendered moot appellant’s first and third assignments of error, we affirm the judgment of the Court of Claims of Ohio.

Judgment affirmed.

BROWN and SADLER, JJ., concur.


You probably are not liable, but the PR cost of not making sure your guests are going to be safe could swamp your business.

Strainer traps several and creates near drowning on Ohio river that is canoed regularly.

I first saw this from a FB post which described more than the article does.

Canoe liveries are big business in Ohio and the Midwest. They provide a great way to all types of people to get on a river and enjoy nature and the water. The Big Darby Creek in central Ohio is one of those rivers.

In this case a strainer stretched most of the way across the river. It caught canoe after canoe which eventually forced one woman under the strainer where she was held for several minutes. CPR brought her back and everyone was saved. However the harrowing minutes on the river, 911 calls and the press reported the story.

The article at the end identifies the canoe livery who had rented the boats.

Whether or not the livery had any knowledge of the problem in advance is not known. However this is a great teaching situation where you can see the bad public relations costing more than possible litigation. Ohio has great release law and even allows a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.

If you owned or ran a canoe livery should you send a boat down in the morning to check things out? Granted the tree could have fallen after the first staff boat went through and before the first rented canoe came down the river. However the odds are better that the tree fell overnight.

The next issue is whether the canoe livery had the right to remove the tree even if they did find it. I don’t remember Ohio water law enough to know.

If you know of the situation, should you inform you guests? Could you have posted a sign upstream of the strainer? What else can you do?

See: 9 canoeists pulled from Big Darby; 1 seriously hurt

What do you think? Leave a comment.

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States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

Sec. 05.45.120 does not allow using a release by ski areas for ski injuries

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

 

Florida

Florida Statute § 744.301 (3)

Florida statute that allows a parent to release a minor’s right to sue

Virginia

Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Allows a parent to sign a release for a minor for equine activities

Utah

78B-4-203.  Limitations on Liability for Equine and Livestock Activities

Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

 

By Case Law

 

California

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

 

Florida

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Allows a release signed by a parent to require arbitration of the minor’s claims

Florida

Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147

Release can be used for volunteer activities and by government entities

Massachusetts

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

 

Minnesota

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

 

North Dakota

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

 

Ohio

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

 

Wisconsin

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

Maryland

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
Kelly , v. United States of America, 2014 U.S. Dist. LEXIS 135289

Ruling is by the Federal District Court and only a preliminary motion
And final decision dismissing the case

What do you think? Leave a comment.

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Strange, camp director/AMGA certified rock guide charged with endangering children, on climbing trip

Obviously, there are some facts missing, this is really dumb, there is an overzealous prosecutor; someone in the family knows someone in county office or the plaintiff’s attorney pushed to have the county sheriff make their case for them.

It’s really sad to see an 11-year-old girl injured. It’s said to have a group of kids scared by the experience. However, there are some things about this that are confusing.

Here are the facts from the article. The defendant & defendant, first in a criminal case and second in a civil case was the camp director of a church summer camp; Camp Otterbein (an affiliate of West Ohio Conference of the United Methodist Church). The defendant took the kids to Hocking Hills Rock Climbing Rappelling to do something.

During the day either a female camper was lowered or rappelled into a hole. (I’m guessing it was a formation, why would you lower someone into a hole?) The rock formations are small and composed of long ago eroded water features. (I grew up in the area and have been there several times.) The article describes her as rappelling, however, when questioned the article states she said she was lowered in when she became stuck.

It is not clear what time she started her descent; however, she was not rescued until 1:30 AM. The girl suffers from compartment syndrome, which allegedly started to occur after she was discharged from the hospital.

The defendant allegedly created a substantial risk to the health or safety of a child, by violating a duty of care, protection, or support, which is the definition of child endangerment. (It’s a 10 page statute, so I’ll not post it. It is a good statute; however, it is also the statute used to hold adults criminally liable when a kid gets in trouble because the adult allowed or left the child in a position to get in trouble.)

The child suffered:

…she suffered injuries including redness and bruising around her thighs due to the harness; bruising and abrasions on the right side of her stomach; abrasions on her back from her neck to her buttocks; abrasions on her right shoulder; bruising in her armpits; and lacerations between her legs where the harness was holding her.

I highlighted the injuries that would come whether you were trapped or not wearing a harness. The severity of those types of injuries might be increased based upon the length of time in the harness. However, if she was wedged, then she might not have had any weight on the harness. Also the injuries under her armpits suggest she was wearing a full body harness, but that is only speculation.

There were two things that did get my attention in the article. The girl admitted to investigators that she had volunteered to go down the hole, and no one had forced her to do so.

The second was that the mother told park rangers that she was going to find an attorney. (My kids stuck in a hole, but I’m going to find an attorney…..)

The defendant camp director was a certified “instructor” through the AMGA.

I’m trying to get more information about this accident/incident. Not much will be forth coming until after a plea bargain or criminal trial and then only what is in the criminal files. The civil case will take longer.

What a mess.

The article is: Camp director charged with endangering children

Please read the article, you might see things differently. Thanks to D. Twilley for sending me the link.

What do you think? Leave a comment.

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Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Ana Maria Andia, M.D., Plaintiff, vs. Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures, a Hawaiian business of unknown structure, Defendants.

CASE NO. 06cv0437 WQH (JMA)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

2007 U.S. Dist. LEXIS 88247

November 29, 2007, Decided

November 29, 2007, Filed

CORE TERMS: hike, lava, station, terrain, falling, rock, summary judgment, hiking, slipping, uneven, duty of care, assumption of risk, cruise, inherent risk, trail, ship, warn, surface, viewing, passenger, excursion, admits, hiker, duty to warn, failure to warn, negating, minutes, causes of action, totally outside, gross negligence

COUNSEL: [*1] For Ana Maria Andia, an individual, Plaintiff: Harold M Hewell, LEAD ATTORNEY, Hewell Law Firm APC, San Diego, CA; Howard M Rubinstein, LEAD ATTORNEY, Law Offices of Howard Rubinstein, Aspen, CO.

For Celebrity Cruises Inc, a foreign corporation, Arnotts Lodge and Hike Adventures, a Hawaiian business of unknown structure Defendants: Gregory Dean Hagen, Tammara N Tukloff, LEAD ATTORNEYS, Drath Clifford Murphy and Hagen, San Diego, CA.

JUDGES: WILLIAM Q. HAYES, United States District Judge.

OPINION BY: WILLIAM Q. HAYES

OPINION

ORDER

HAYES, Judge:

The matter before the Court is Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures. (Doc. # 40).

Background

Defendant Celebrity Cruises, Inc. (“Celebrity”) is engaged in the business of providing passenger cruises to various destinations. 1 UMF 1. Arnott’s Lodge and Hike Adventures (“Arnott’s”) guides transport cruise ship passengers to Volcanoes National Park (“the Park”), and provide knowledge about where the lava flow is each day. UMF 3. In order to view the active lava flow, individuals must hike over cooled lava. This terrain is rugged and natural, consisting of uneven surfaces. Id. at 4; DMF 4. The Hawaii Volcanoes [*2] National Park Rangers (“Rangers”) place reflective markers and cones on the lava to be used by hikers as reference points. UMF 7.

1 The parties each submitted a statement of facts with their submissions in support of and in opposition to the Motion for Summary Judgment. The Court relies upon the facts from Defendants’ Alleged Undisputed Material Facts (“UMF”), which are undisputed by Plaintiff and supported by the cited evidence, and the facts from Plaintiff s Disputed Material Facts (“DMF”), which are undisputed by Defendants and supported by the cited evidence.

In November, 2005, Plaintiff Ana Maria Andia, M.D. was a passenger on Defendant Celebrity Cruises, Inc.’s (“Celebrity”) passenger cruise ship. Plaintiff is an experienced hiker. Andia Depo, 35: 23-25. On November 27, 2005, Plaintiff signed up to participate in a shore expedition known as the HL 15, the Kilauea Lava Viewing Hike, guided by Arnott’s. UMF 8. On November 27, 2005, there was total visibility for many miles in every direction. Id. at 5.

Prior to beginning the hike, Plaintiff read the description of the hike that states: “This tour involves approximately two to six miles of hiking over very sharp and uneven surfaces.” [*3] Id. at 10. Plaintiff also read, understood and executed the “Lava Hike Participant, Release and Acknowledgment of Risk” (“Agreement”), which provides, in relevant part:

I agree not to hold Arnott’s liable for any accident or injury beyond its control. The hike to the Lava is conducted at a brisk pace and requires physically fit participants in good health who can readily hike on varied surfaces and elevation changes for extended periods. I, as a participant, acknowledge that I am taking this activity of my own free will and that I will not hold Arnott’s responsible for any injury incurred while . . . I am hiking on the paved or natural surfaces of the National Park. . . . I understand by reading this waiver that Arnott’s guides will provide only broad direction and safety guidelines and that I remain responsible for the actual path hiked and whether I choose to take the risks with possibly still hot Lava Flows.

Id. at 11. Plaintiff also received and read a document entitled “Arnotts Adventures proudly presents: The Kilauea Lava Hike Adventure” (“Brochure”), which informed Plaintiff that she may need to turn around and head back to the Rangers station alone, and that she did not need [*4] a trail to return safely. Id. at 14.

Prior to beginning the hike, Arnott’s informed Plaintiff that the lava flow had changed and that the hike was going to be longer than anticipated for that day. Id. at 13. Arnott’s also informed all participants in the hike, including Plaintiff, that they had the option of staying at the Rangers station and not going on the hike, and that there would be four decision points during the hike at which hikers could turn around and head back to the Rangers station. Id. at 13, 18.

Prior to beginning the hike, Plaintiff understood that the marked trail was merely a preferred route, and that the trail was not necessary to safely return to the Rangers station. UMF 15; Andia Depo, 63:1-15. Plaintiff also understood that guides would not stay with her during the hike and that she might be returning to the Rangers station unaccompanied. UMF 15, 16; Andia Depo, 63: 1-15, 64:22-24. Plaintiff understood that the hike would be difficult and strenuous. Andia Depo, 52: 17-19

For the first 30 minutes of the hike, and through the first two decision points, the hike proceeded on paved surfaces. UMF 20. During this period, Plaintiff recalls seeing reflective tabs on the [*5] paved surface. Id. Plaintiff’s companion recalls seeing reflective tabs stuck to the rocks for 10-15 minutes of the hike after leaving the paved road. Plaintiff does not recall whether or not the reflective tabs were stuck to the rocks. Id. at 21. Approximately 45 minutes into the hike, and after approximately 15 minutes of walking on unpaved terrain, Plaintiff decided to return, unaccompanied by a guide, to the Rangers station. Id. at 22. About 15 minutes into her return, Plaintiff slipped on one of the rocks. When Plaintiff slipped, she twisted her ankle. Plaintiff then lifted her foot up, and hit the top of her foot on the lava rock. As a result of these events, Plaintiff fractured her foot. Id. at 23. Plaintiff testified that she then proceeded back to the Rangers station. Andia Depo, 86:22-87:14. The fall itself could have caused the fracture to become displaced and surgery may have been required regardless of whether Plaintiff attempted to walk out of the lava fields. UMF 25. Plaintiff was given the option of going to the ship’s doctor or the Hilo emergency room for treatment, and Plaintiff elected to receive treatment with the ship’s doctor. Id. at 24; Andia Depo, 89:15-25; [*6] 90:1-10. Plaintiff testified that, as a result of the fracture, she was confined to a wheel chair for a period of months, had to take time off of work, and suffers impaired balance. Id. 15:13-14.

On February 24, 2006, Plaintiff filed the First Amendment Complaint (“FAC”) against Defendants Full Service Travel, 2 Celebrity and Arnott’s. (Doc. # 3). The FAC alleges causes of action against Arnott’s for (1) negligence, on grounds that Arnott’s breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Arnott’s failed to warn Plaintiff of the known dangers and risks associated with the lava hike. The FAC alleges causes of action against Celebrity for (1) negligence, on grounds that Celebrity breached its duty of care to Plaintiff by failing to to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that Celebrity failed to warn Plaintiff of the dangers and risks associated with the lava hike.

2 On October 5, 2006, Defendant Full Service Travel was dismissed from the case, with prejudice.

On August 18, 2007, Defendants filed the Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. [*7] Defendants claim they are entitled to judgment as a matter of law because (1) Arnott’s owed Plaintiff no duty to protect Plaintiff against the assumed risk of slipping and falling on the lava rock, (2) Arnott’s owed Plaintiff no duty to warn Plaintiff of the obvious risk of injury of slipping and falling on the lava rock, (3) Celebrity did not owe Plaintiff a duty to warn of the obvious risk of slipping and falling on lava rock, (4) the alleged negligence of Defendants did not cause Plaintiff’s injuries, and (5) the claim for punitive damages against Arnott’s is not warranted. After receiving evidence and briefing from the parties, the Court heard oral argument on November 9, 2007.

Standard of Review

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute over a material [*8] fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If the moving party satisfies its initial burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)).

In ruling on a motion for summary judgment, the Court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). “Credibility determinations [and] the weighing of evidence . . . are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255.

Choice of Law

The Court has jurisdiction over this action through diversity of citizenship, 28 U.S.C. section 1331. Federal courts exercising diversity jurisdiction must [*9] apply the substantive law of the state in which they are located, except on matters governed by the United States Constitution or federal statutes, or on procedural issues. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). The Complaint alleges causes of action in negligence for breach of due care and for failure to warn. The elements of the tort of negligence are essentially identical under California and Hawaii law. See White v. Sabatino, 415 F. Supp. 2d 1163, 1173 (USDC Haw. 2006); Ladd v. County of San Mateo, 12 Cal. 4th 913, 917, 50 Cal. Rptr. 2d 309, 911 P.2d 496 (1996). Furthermore, the doctrine of primary assumption of risk is a measure of a defendant’s duty of care, and is essentially identical under both Hawaii and California law. Yoneda v. Andrew Tom, 110 Haw. 367, 379, 133 P.3d 796 (2006); Knight v. Jewett, 3 Cal. 4th 296, 314-15, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992).

Discussion

I. Plaintiff’s Claims Against Arnott’s

Arnott’s contends that the risk of slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking. Arnott’s contends that without this risk, the means of viewing this natural phenomenon would be severely limited to the general public. Arnott’s also contends that the evidence is uncontroverted that [*10] Arnott’s provided Plaintiff with written disclosures concerning the condition of the terrain, that guides would only give broad direction on the actual hike, that Plaintiff may need to turn around and head to the Rangers station alone, and that Plaintiff did not need a trail to return safely. Arnott’s contends that there is no triable issue of fact as to whether Arnott’s is liable for breach of its duty of care because the doctrine of primary assumption of risk applies, negating any duty of Arnott’s to protect Plaintiff against the inherent risk of slipping and falling while lava hiking. Arnott’s contends that Plaintiff has failed to assert facts or introduce any evidence that demonstrates that the conduct of Arnott’s was totally outside the range of ordinary activity or that the conduct of Arnott’s increased Plaintiff’s risk of slipping and falling on the lava rock. Arnott’s also contends that there is no triable issue of fact as to whether Arnott’s is liable to Plaintiff for breach of the duty of Arnott’s to warn because the risk of slipping and falling on the natural terrain was equally obvious to Plaintiff and Arnott’s.

Plaintiff responds that the conduct of Arnott’s constituted [*11] gross negligence for the following reasons: Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn Plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure Plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring Plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided Plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day [*12] of her cruise vacation. 3

3 Plaintiff does not dispute that the doctrine of primary assumption of risk applies, negating Arnott’s’ duty to prevent Plaintiff from slipping and falling on lava rock. Instead, Plaintiff relies solely on her contention that the Agreement itself is either an unenforceable exculpatory agreement or an unenforceable contract of adhesion. Defendants, however, do “not contend, nor have they even asserted, that the [Agreement] relieves them from liability for any alleged negligence, nor gross negligence.” Reply, p. 1-2.

A. Duty of Care

As a general rule, persons have a duty to use due care and avoid injury to others, and may be held liable if their careless conduct injures another person. Cal. Civ. Code § 1714. The doctrine of primary assumption of the risk is an exception to this general rule. Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992). The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” Id. at 315. Whether the doctrine of assumption of risk applies, thereby negating a duty of care, turns on [*13] the “nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” Id. at 309. In reviewing the nature of the activity, the doctrine of primary assumption of risk applies where “conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. Id. at 315. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.” Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 253, 38 Cal. Rptr. 2d 65 (1995).

If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity. Saville v. Sierra College, 133 Cal. App. 4th 857, 866, 36 Cal. Rptr. 3d 515 (4th Dist. 2005); Kane v. National Ski Patrol, 88 Cal. App. 4th 204, 209, 105 Cal. Rptr. 2d 600 (4th Dist. 2001). The relationship between an instructor and student is instructive [*14] on the issue of whether the Arnott’s guides engaged in reckless conduct or increased the inherent risk involved in lava hiking. Kane, for example, involved candidates for a voluntary ski patrol who participated in a skills clinic instructed by Larry Stone, a National Ski Patrol System (“NSPS”) instructor. 88 Cal. App. 4th at 207. Stone led the clinic participants to the most difficult terrain at the resort. When the participants were reluctant to proceed through a portion of the trail, which was icy and spotted with trees, rocks and stumps, Stone asked the clinic participants what they would do “if there was a skier over the side?” Id. at 208. Although both plaintiffs felt uncomfortable with continuing down the terrain, they carried on, following Stone’s direction. Id. One plaintiff ultimately caught an “edge” with his ski, causing him to fall to his death, and the other plaintiff fell and suffered a broken leg. Id. The court granted summary judgment in favor of the defendant, holding that the doctrine of primary assumption of risk applied, negating the defendant’s duty of care. The court reasoned that “an instructor’s assessment errors – either in making the necessarily subjective [*15] judgment of skill level or the equally subjective judgment about the difficulty of the conditions – are in no way ‘outside the range of the ordinary activity involved in the sport.” Id. at 214.

Plaintiff admits that she is an experienced hiker. Andia Depo, 35:23-25. Plaintiff admits that falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain. Id. at 153:8-14. Plaintiff admits that prior to starting the hike she was aware that she would be hiking over “very sharp and uneven surfaces.” Id. at 51:8-13. Plaintiff does not introduce any evidence to refute that hiking across uneven and challenging natural terrain is an inherent risk of hiking to active lava flow, without which the general public would be substantially deprived of viewing this natural phenomenon. The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent Plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

Plaintiff admits that, prior to the hike, Arnott’s provided the following written disclosures, which she understood: that the natural terrain was uneven and challenging; that [*16] during the hike she would be responsible for the path she traveled; that the guides would give only broad direction; that she may have to return to the Rangers station alone; and that the trail was merely a preferred route, and not necessary to safely get back to the Rangers station. Despite these disclosures, Plaintiff asserts that the decision to allow Plaintiff to return to the Rangers station alone and subsequent conduct on the part of the Arnott’s guides constituted gross negligence. The Court finds that the decision to allow Plaintiff to return alone and subsequent conduct on the part of Arnott’s guides at most constituted “assessment errors,” but these “subjective judgment[s] about the difficulty of the condition[s],” were “in no way so reckless as to be totally outside the range of the ordinary activity involved” in the activity of lava hiking. See Kane, 88 Cal. App. 4th at 214. Plaintiff emphasizes that Arnott’s’ conduct, such as permitting her to participate in the hike wearing sneakers instead of hiking boots, was grossly negligent. However, the Court finds that there is no evidence in the record to support Plaintiff’s conclusion that Arnott’s conduct, including permitting [*17] Plaintiff to wear improper footwear, hike over thin lava crust, return to the Rangers station alone and without sufficient water, or return to the ship instead of going to the Hilo emergency room, increased the risk of Plaintiff’s injury. The Court concludes that there is no triable issue of fact as to whether Arnott’s conduct was so reckless as to be totally outside the range of the ordinary activity or otherwise increased the inherent risk involved in the activity of lava hiking.

The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for breach of duty of care.

B. Duty to Warn

“It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” Marshall v. United Airlines, 35 Cal. App. 3d 84, 90, 110 Cal. Rptr. 416 (1973).

Plaintiff admits she is an experienced hiker, that she was aware that falling is always a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover during the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the possibility that Plaintiff would [*18] have to return to the Rangers station alone and nature of the terrain. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to offer any evidence to demonstrate that the risk of slipping and falling on lava rock was any less obvious to Plaintiff than it was to Arnott’s. The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for failure to warn.

II. Plaintiff’s Claims Against Celebrity

Celebrity contends that although Plaintiff alleges separate causes of action in negligence for breach of due care and for failure to warn, both of these claims allege only failure to warn. Celebrity contends that it had no duty to warn Plaintiff of the risk of slipping and falling on lava rock during a hike through a lava field because the risk was patently obvious and equally apparent to Plaintiff and Celebrity.

Plaintiff’s Response in Opposition to the Motion for Summary Judgment on all of Plaintiff’s claims against Celebrity states in full:

[P]laintiff relied on Celebrity to provide her with reasonably safe shore excursions. The dangers of the lava hike with Arnott’s were not readily apparent to her or anyone else who had not [*19] taken the hike. Celebrity’s reliance on Deroche is misplaced.

This was not a scooter ride, which a reasonable person knows poses obvious dangers. It was a hike to a uniquely dangerous place. [Plaintiff] reasonably relied on Celebrity to exercise due care in providing her with a safe guide service, and in offering a potentially life-threatening venture. Celebrity had a duty to ensure that Arnott’ s was a reasonable safe and reliable service. Celebrity is liable for breach of that duty.

Opposition, p. 19-20.

A. Duty of Care

The duty of care of the owner of an excursion ship is a matter of federal maritime law. DeRoche v. Commodore Cruise Line, Ltd., 31 Cal. App. 4th 802, 807, 46 Cal. Rptr. 2d 468 (1994). “That duty is to exercise reasonable care under the circumstances.” Id. at 807-8.

Plaintiff fails to introduce any evidence to support her claim that Celebrity did not exercise due care when it enrolled Plaintiff in “excursion HL 15, the Kilauea Lava Viewing Hike, an unreasonably dangerous and poorly run and operated excursion.” See FAC, P 35-36. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed introduce any evidence demonstrating Celebrity breached its duty [*20] of due care to Plaintiff. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for breach of duty of care.

B. Duty to Warn

“[I]t is generally accepted that where a carrier . . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” DeRoche, 31 Cal. App. 4th at 809. However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.” Id. at 810.

As previously discussed, Plaintiff admits she is an experienced hiker, that she was aware that falling is a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover for the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the challenging nature of the terrain and the possibility that Plaintiff would have to return to the Rangers station alone. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed offer any evidence that demonstrates the risk of falling [*21] on lava rock was any less obvious to her than it was to Celebrity. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for failure to warn.

Conclusion

Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures (Doc. # 40) is GRANTED. The Court directs the Clerk of the Court to enter JUDGMENT for Defendants and against Plaintiff.

DATED: November 29, 2007

/s/ William Q. Hayes

WILLIAM Q. HAYES

United States District Judge


Great photo essay of a Ropes course showing everyone with helmets designed to protect only from above.

Climbing helmets only protect from drops. What falls from the sky?

Ropes Course 2010

A photographer did a great job of showing a group of people having a great time on a rope’s course in Granville, Ohio. The course and setting are beautiful. Everyone is wearing helmets. All the helmets in the photographs are climbing helmets.

Climbing helmets were designed for rock climbing. They were designed to protect you from a rock falling on your head. They are also tested to make sure if you fall and wedge your head in a crack because of your helmet the helmet will come off.

The only things I can see in the photographs that might fall on the people’s heads are trees. If a whole tree falls on you, there is not much you can do. Dependent upon the size of the tree limb, the helmet may or may not help you much.

But why? Why do you wear a helmet on a rope’s course?

Based on this, shouldn’t all groups hiking in the woods wear helmets?

See Common Ground Canopy Tours take you into the treetops near Oberlin, with zip-lines, sky bridges and more (photo gallery)

What do you think? Leave a comment.

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

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Morgan et al., v. Ohio Conference of the United Church of Christ et al., 2012-Ohio-453; 2012 Ohio App. LEXIS 385

Brian Morgan et al., Plaintiffs-Appellants, v. Ohio Conference of the United Church of Christ et al., Defendants-Appellees.

No. 11AP-405

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2012-Ohio-453; 2012 Ohio App. LEXIS 385

February 7, 2012, Rendered

PRIOR HISTORY: [**1]

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 10CVC-03-4516).

DISPOSITION: Judgment affirmed.

COUNSEL: Rourke & Blumenthal, LLP, Kenneth S. Blumenthal and Jonathan R. Stoudt; Cloppert, Latanick, Sauter & Washburn, and Robert L. Washburn, for appellants.

Philipp & Gregory, Ronald D. Gregory and Jeffrey T. Peters, for appellees.

JUDGES: DORRIAN, J. KLATT and SADLER, JJ., concur.

OPINION BY: DORRIAN

OPINION

(ACCELERATED CALENDAR)

DECISION

DORRIAN, J.

[*P1] Plaintiffs-appellants, Brian Morgan (“Morgan”) and his wife Amie Morgan (collectively “appellants”), appeal from the April 4, 2011 judgment of the Franklin County Court of Common Pleas in favor of defendants-appellees, Ohio Conference of the United Church of Christ (“OCUCC”) and Templed Hills Camp and Conference Center (“Templed Hills”) (collectively “appellees”). For the following reasons, we affirm.

[*P2] On November 12, 13, and 14, 2007, Morgan was scheduled to attend the Nature’s Classroom program at Templed Hills as a teacher chaperone for sixth grade students of Worthington City Schools. The school district contracted with the owner of the site, OCUCC, to send the students. The contract set forth a fee of $7,565 for the group’s participation. (Affidavit of Mark Glassbrenner, [**2] ¶4; Exhibit A-A to Affidavit.) On the evening of November 13, Morgan volunteered to act as a chaperone on one of the group’s night hikes. Morgan had chaperoned students annually from approximately 2002 to 2007 and attended the night hike every year. The night hike had originally been scheduled for the evening of November 12, but was postponed to the second evening due to rain. (Affidavit of Kristi Patrick, ¶6; Affidavit of Kathy Mikkelson, ¶6.)

[*P3] The night hike was led by Matthew Marsh (“Marsh”), a Nature’s Classroom instructor. Marsh testified that the purpose of the night hike was to use your other senses when your eyes were not as heightened as during the daylight. Marsh picked the trail and had been using that same trail for the night hikes he had been leading twice a week for the last seven months. It was an established trail and wider than shoulder length. Other trails on the property were harder to traverse. Marsh stated that the evening was a clear night, not cloudy, and the moon was out so the trail could be seen. The adults were also told to bring flashlights.

[*P4] The group met at approximately 7:30 p.m. and started with a game called “Bat & Moth,” where one child is blindfolded [**3] and the children attempt to escape. It is similar to the game Marco Polo. The game lasted approximately 20 to 25 minutes, after which the group entered the woods. After several minutes of hiking, they had to cross a creek bed, but it was a receding creek so there was not much water in it. Marsh stood in the middle of the creek bed on a rock with his flashlight and helped every child cross by holding their hand, and then he helped Morgan cross. While Marsh was counting the kids on the other side of the creek, he saw Morgan shift his weight and fall on his stomach. Marsh tried to call his supervisor on his radio and his cell phone but could not reach her. Then he called 911. When the EMTs arrived, Marsh took the students to an area away from Morgan.

[*P5] Morgan testified to a slightly different version of facts. He had never been on that particular trail and thought it was very overgrown. He was not advised to take a flashlight on the hike and remembered the night being cloudy. Morgan testified that as he approached the creek Marsh was there to help him cross and had a flashlight. Morgan did not remember specifically, but thinks he used Marsh’s shoulder to step on a tree stump or rock as [**4] he took a long stride to cross the creek. After a few seconds, Marsh gave some directions for the next activity and Morgan took a step with his right foot, lost traction and fell. He knew immediately that he was seriously injured. Morgan suffered severe injuries to his left arm and shoulder. Morgan testified he had to ask Marsh to call 911 several times before Marsh called them.

[*P6] Morgan and his wife filed a complaint against OCUCC and Templed Hills as the owners and operators of the site and the employers of Marsh for damages Morgan suffered resulting from Marsh’s negligence, as well as for Amie Morgan’s loss of consortium. A stipulation of dismissal pursuant to Civ.R. 41 was filed.

[*P7] The claim was refiled on March 22, 2010. Appellees filed a motion for summary judgment, contending that appellants’ claims were barred by the affirmative defense of primary assumption of the risk and by the Ohio recreational user statute, R.C. 1533.181. Appellees argued that Morgan assumed the risk of his injury by voluntarily participating in the night hike and that, under the circumstances, appellees owed no duty to protect Morgan from injury. Appellees also argued that Ohio’s recreational statute, R.C. 1533.181, [**5] barred his claims because Morgan was a recreational user and, as such, appellees owed no duty to Morgan as a hiker pursuant to the statute.

[*P8] In opposition to appellees’ motion, Morgan argued that the doctrine of primary assumption of the risk does not bar his cause of action, as the dangers presented by Marsh’s negligence were not inherent to hiking. Also, Morgan argued that the recreational user statute was inapplicable to these facts because the negligence alleged was based on the negligence of an employee, not a theory of premises liability. Additionally, Morgan claimed he was not a recreational user because he was a business invitee.

[*P9] By decision and entry filed April 4, 2011, the trial court granted appellees’ motion for summary judgment finding that the doctrine of primary assumption of the risk barred appellants’ claims. The doctrine removed any duty on appellees’ part to protect Morgan from risks inherent to the activity of night hiking.

[*P10] Appellants assert one assignment of error on appeal:

The trial court erred in granting the motion for summary judgment filed by the Appellees Ohio Conference United Church of Christ and Templed Hills holding that the doctrine of primary assumption [**6] of the risk bars Plaintiffs from recovering on their claims for negligence and loss of consortium.

[*P11] In their assignment of error, appellants challenge the granting of the motion for summary judgment, contending that the doctrine of primary assumption of the risk is inapplicable to these facts. [HN1] By asserting a negligence action, appellants were required to prove by a preponderance of the evidence that appellees owed them a duty of care, that the duty was breached and that the breach proximately caused Morgan’s injuries. Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). Under the law of negligence, a defendant’s duty to a plaintiff depends on the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position. Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645, 1992 Ohio 42, 597 N.E.2d 504 (1992).

[*P12] [HN2] The doctrine of primary assumption of the risk has often been applied to cases involving sporting events and recreational activities. Crace v. Kent State Univ., 185 Ohio App. 3d 534, 2009 Ohio 6898, ¶12, 924 N.E.2d 906, citing Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-696, 2008 Ohio 1421, ¶8, 2008 WL 802722, citing Anderson v. Ceccardi, 6 Ohio St.3d 110, 114, 6 Ohio B. 170, 451 N.E.2d 780 (1983). Whether to [**7] apply the affirmative defense of primary assumption of the risk presents an issue of law for the court to determine. Crace at ¶12, citing Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 435, 1996 Ohio 320, 659 N.E.2d 1232 (1996). We therefore review the trial court’s decision de novo. Crace at ¶12, citing Cleveland Elec. Illum. Co. v. Pub. Util. Comm., 76 Ohio St. 3d 521, 523, 1996 Ohio 298, 668 N.E.2d 889 (1996), citing Indus. Energy Consumers of Ohio Power Co. v. Pub. Utils. Comm., 68 Ohio St. 3d 559, 563, 1994 Ohio 435, 629 N.E.2d 423 (1994).

[*P13] [HN3] Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries. Crace at ¶13, citing Santho v. Boy Scouts of Am., 168 Ohio App. 3d 27, 2006 Ohio 3656, ¶12, 857 N.E.2d 1255. The doctrine is based on the fiction that the plaintiff has “tacitly consented” to the risk of injury inherent in the activity. Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist.1987). The rationale behind the doctrine is that certain risks are so intrinsic in some activities that the risk of injury [**8] is unavoidable. Crace at ¶13, citing Collier. The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.” Santho at ¶12.

[*P14] [HN4] The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages. Crace at ¶15, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 144, 2004 Ohio 379, 802 N.E.2d 1116, citing Prosser & Keeton, Law of Torts (5th Ed.1984) 496, Section 68; see also Gallagher at 431, citing Prosser & Keeton, 496-97, Section 28 (“Primary assumption of risk ‘is really a principle of no duty, or no negligence, and so denies the existence of any underlying cause of action.'”). Primary assumption of the risk serves to negate the duty of care owed by the defendant to the plaintiff. Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010 Ohio 1390, ¶18, 2010 WL 254597. “Because a successful [**9] primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.” Id. at ¶21, citing Gallagher at 431-32.

[*P15] [HN5] With the doctrine of primary assumption of the risk, the injured plaintiff’s subjective consent to and appreciation for the inherent risks of the recreational activity are immaterial to the analysis. Crace, 185 Ohio App. 3d 534, ¶16, citing Gentry at 144. The types of risks inherent to an activity are those risks that are foreseeable and customary risks of the sport or recreational activity. Deutsch v. Birk, 189 Ohio App. 3d 129, 2010 Ohio 3564, ¶12 (937 N.E.2d 638, 12th Dist.), citing Thompson v. McNeill, 53 Ohio St.3d 102, 104-106, 559 N.E.2d 705 (1990). In accordance with these principles, this court held in Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527, 1997 WL 324175 (June 12, 1997), that “primary assumption of [the] risk requires an examination of the activity itself and not plaintiff’s conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.” 1997 Ohio App. LEXIS 2527, [WL] at *4. [**10] “The law simply deems certain risks as accepted by the plaintiff regardless of actual knowledge or consent.” Crace at ¶16. The focus in primary assumption of the risk is on the defendant’s conduct, whether such conduct was reckless or intentional. Gentry at ¶9.

[*P16] In the instant case, the trial court noted that hiking is a recreational activity to which the doctrine applies, and hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated, even more so with hiking at night. (Apr. 4, 2011 Decision, 2.) Appellants argue that primary assumption of the risk does not apply to these facts because the risks which led to the injury in this case could have been eliminated if Marsh had chosen a different trail. However, this is essentially a claim that Marsh’s conduct was reckless. In Marchetti v. Kalish, 53 Ohio St.3d 95, 100, 559 N.E.2d 699 (1990), fn. 3, the Supreme Court of Ohio cited the comments f and g to Section 500 of the Restatement of Torts 2d, 590, which defined the three mental states of tortious conduct, as follows:

f. Intentional misconduct and recklessness contrasted. [HN6] Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act [**11] to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results.

g. Negligence and recklessness contrasted. [HN7] Reckless mis-conduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with [**12] knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

[*P17] Appellants argue that Marsh should have chosen a different path for the hikers that evening. However, appellants did not allege that Marsh was reckless in choosing that path. The trial court specifically found that [HN8] hiking, especially night hiking, involves the risk of tripping, slipping and falling. Hiking does involve these risks. Morgan volunteered to participate in the night hike and assumed these risks. The court in Shaner v. Smoot, 7th Dist. No. 712, 2001 Ohio 3429, 2001 WL 1243920, found that persons involved in recreational activities assume the ordinary risks of the activity and the failure to warn of the ordinary risks does not subject one to liability. In Shaner, the plaintiff was injured [**13] while riding a motorcycle in tall grass with tree stumps scattered throughout the area. The plaintiff was aware that there were tree stumps in the area where he was riding. However, the court found that the risk of hitting a tree stump was an ordinary risk of riding a motorcycle in such a location, and the defendants could not be liable for failure to warn of an ordinary risk assumed by the plaintiff.

[*P18] Appellants concede that there are risks inherent in hiking that cannot be avoided. However, appellants contend that the risks which led to Morgan’s particular injury could have been avoided if Marsh had picked a trail which was better maintained with less-demanding obstacles. Thus, appellants argue, implied assumption of the risk is more appropriate to these facts, which has been merged into Ohio’s comparative negligence statute, R.C. 2315.19. However, these risks were not risks out of the ordinary for night hiking.

[*P19] In California, the courts have addressed similar issues and applied primary assumption of the risk, finding that a defendant is only liable for a plaintiff’s injuries if the defendant’s conduct is reckless or totally outside the range of the ordinary activity involved in the [**14] sport or activity. In Andia v. Full Service Travel, S.D.Cal. No. 06cv0437 WQH (JMA), 2007 U.S. Dist. LEXIS 88247, 2007 WL 4258634 (Nov. 29, 2007), the plaintiff was a passenger on the defendant’s cruise ship and participated in a shore expedition known as the HL 15, the Kilauea Lava Viewing Hike. The plaintiff slipped on one of the rocks and fell, fracturing her foot. She filed a negligence action, and the court found that the doctrine of primary assumption of the risk applied, negating the defendant’s duty to prevent the plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

[*P20] In Kane v. Natl. Ski Patrol Sys., Inc., 88 Cal.App.4th 204, 209, 105 Cal.Rptr.2d 600 (2001), a ski instructor led participants in a skills clinic for a voluntary ski patrol. The participants were reluctant to proceed to the most difficult portion of the trail, which was icy and contained trees, rocks, and stumps, but the instructor encouraged them to go. The two plaintiffs were injured, one fell to his death and the other one suffered a broken leg. The court granted summary judgment in favor of the defendant, holding that the doctrine of primary assumption of the risk applied, negating the defendant’s [**15] duty of care. The court held that [HN9] “an instructor’s assessment errors–either in making the necessarily subjective judgment of skill level or the equally subjective judgment about the difficulty of the conditions–are in no way ‘outside the range of the ordinary activity involved in the sport.'” Id. at 214.

[*P21] Similarly, here, any assessment error in the subjective judgment of the path chosen by the Nature’s Classroom instructor, if any, is not outside the range of the ordinary activity involved in night hiking. As we have said, tripping, slipping, and falling are inherent risks of night hikes, regardless of the trail chosen.

[*P22] In Kalter v. Grand Circle Travel, 631 F.Supp.2d 1253 (C.D.Cal.2009), the plaintiff suffered serious injuries when she fell while hiking at Inca ruins at Machu Picchu. The plaintiff filed a negligence action against the vacation tour operator, but the court applied the primary assumption of the risk doctrine, finding that hiking across uneven and challenging terrain is an inherent risk when hiking in ancient ruins, and inherent in this activity is the risk that one will fall and become injured.

[*P23] This case law from California is similar to our Ohio law. Morgan attempts [**16] to argue that the conditions which led to his injury, attempting to cross a creek up a slippery embankment in dark, wet conditions, were not inherent to hiking. However, Morgan had already crossed the creek when he fell, and the dark is inherent in night hiking regardless of the trail chosen, and the ground was wet because it had been raining the day before. That was the reason the hike had been postponed. Despite Morgan’s attempt to argue that the risks were heightened, we find, under these facts, that these risks were inherent risks to night hiking.

[*P24] Appellants rely on Byer v. Lucas, 7th Dist. No. 08AP-351, 2009 Ohio 1022, 2009 WL 581710, to argue that the risks involved here outweigh the ordinary risks involved in the recreational activity that the plaintiff was engaged. In Byer, the plaintiff filed a negligence action against the owner and driver of a tractor pulling a hay wagon as part of party festivities. The defendant was drinking alcohol at the party. The plaintiff was riding in the wagon. The defendant stopped the wagon at the top of a steep hill and advised the passengers that they could get out of the wagon and either walk down the hill or wait to be picked up by a truck [**17] to return to the party. Apparently, the plaintiff did not hear the warning and remained on the wagon. The defendant lost control of the wagon, and plaintiff was ejected and treated for severe injuries. Plaintiff filed suit alleging negligence and intentional and reckless conduct. On appeal, the court found there were risks that were not ordinary, customary, or foreseeable to a hayride.

[*P25] Ordinary risks for a hayride include “getting scratched by tree braches [sic], being bounced around on a wagon, and even losing one’s balance and falling off the wagon.” Id. at ¶30. In Byer, however, the court found risks that were out of the ordinary for a hayride, including the choice of route, the driver control and severe injuries. The driver chose to drive down the steep hill while another driver took a safer route. The tractor and wagon careened down the hill out of control. Many passengers were thrown from the wagon. Finally, the plaintiff suffered severe injuries including cuts to her head, requiring stitches, and two segments of her tailbone were fractured.

[*P26] The choice of route, down a steep hill, the out-of-control nature of the ride and the injuries the plaintiff received were not risks that [**18] would be expected from a hayride. The court found that “a farm tractor and its wagon cascading down a steep hill out of control and jackknifing to a stop throwing passengers from it is not an inherent risk of a hayride.” Id. at ¶39. Thus, the court found primary assumption of the risk inapplicable. But Byer is distinguishable from the case at hand. The court in Byer found the risks were not inherent to the recreational activity, whereas here, we find the risks were inherent to night hiking. Also in Byer, the plaintiff alleged that the defendant’s conduct was intentional or reckless. Here, the only allegation is that Marsh’s conduct was negligent. Thus, the facts of Byer distinguish it from the facts at hand.

[*P27] Under the doctrine of primary assumption of the risk, appellees owed no duty to protect appellants from the inherent risks of injury related to the night hike. Since the primary assumption of the risk negates the duty element of appellants’ negligence claim, appellants are precluded from making a prima facie case of negligence, and the trial court did not err in granting appellees’ motion for summary judgment. Amie Morgan’s claim also fails because it is dependent upon her husband’s [**19] successful claim. Appellants’ assignment of error is overruled.

[*P28] For the foregoing reasons, appellants’ assignment of error is overruled, and we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

KLATT and SADLER, JJ., concur.

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In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

This decision held that falling down while hiking at night was an inherent risk of hiking, especially at night.

Morgan et al., v. Ohio Conference of the United Church of Christ et al., 2012-Ohio-453; 2012 Ohio App. LEXIS 385

Date of the Decision: February 7, 2012

Plaintiff: Brian Morgan and his wife Amie Morgan

Defendant: Ohio Conference of the United Church of Christ (“OCUCC”) and Templed Hills Camp and Conference Center

Plaintiff Claims: negligence

Defendant Defenses: defendant assumed the risks of hiking at night, falling was an inherent risk of hiking

Holding: for the defendants

Ohio has a statute that requires kids to receive some of their education about the outdoors in the outdoors. This law was passed in the early 70’s. I know I was a camp counselor for one of these trips as a senior in high school.

This case comes from a school group going to a camp for outdoor classroom. The plaintiff had done this for five consecutive years, and for five years had participated as a chaperone on the “night hike.” During the night hike, after crossing a stream the plaintiff fell injuring his shoulder.

The plaintiff sued. The defendant camp filed a motion to dismiss claiming the plaintiff assumed the risk, which was granted by the court and this appeal followed. Due to the evidence presented the appellate court viewed the motion as a motion for summary judgment.

Summary of the case

The Ohio Appellate court extensively reviewed Primary Assumption of the Risk under Ohio Law.

Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries. The doctrine is based on the fiction that the plaintiff has “tacitly consented” to the risk of injury inherent in the activity. The rationale behind the doctrine is that certain risks are so intrinsic in some activities that the risk of injury is unavoidable. The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.”

The effect of a court finding that the plaintiff assumed the risk as defined, by Primary Assumption of the Risk, is a complete bar to the plaintiff’s claims.

The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.

The court then explained how Primary Assumption of the Risk worked to stop a claim by the plaintiff.

Primary assumption of risk ‘is really a principle of no duty, or no negligence, and so denies the existence of any underlying cause of action. Primary assumption of the risk serves to negate the duty of care owed by the defendant to the plaintiff. “Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.”

To prevail at trial, the plaintiff has to make a prima facie case. That means the plaintiff has to plead and prove enough facts to prove their case. If the defendant or the court can show the risks of the activity which caused the injury to the plaintiff were inherent to the activity, then the plaintiff is prevented from even making his or her case.

The risks of the activity that are sufficient to prove Primary Assumption of the Risk are “…types of risks inherent to an activity are those risks that are foreseeable and customary risks of the sport or recreational activity.”

The telling issue, as the court explained, is not of the actions of the parties but of the risk. “If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.”

The court also looked at the defendant’s side of the facts. “The focus in primary assumption of the risk is on the defendant’s conduct, whether such conduct was reckless or intentional.” If the conduct of the defendant was not reckless or intentional, if the defendant did not do anything that increased the risk to the injured plaintiff in a reckless or intentional way than the defense stands.

In the instant case, the trial court noted that hiking was a recreational activity to which the doctrine applies, and hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated, even more so with hiking at night.

The court then looked at how Ohio defines tortious conduct. It came from the plaintiff’s argument that the defendant increased the risk by reckless choosing the trail that the plaintiff fell on.

Intentional misconduct and recklessness contrasted. Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results.

Negligence and recklessness contrasted. Reckless mis-conduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

Because the conduct of the employee, the guide of the night hike, was not intentional or reckless, the plaintiff was prevented from brining his claims because of the defense of Primary Assumption of the Risk.

So Now What?

The issues you need to understand when looking at the risks of outdoor or recreational activities are which risks are of what type. Those risks that are not inherent in the activity are the ones that you are at the greatest risk of losing a lawsuit over unless you can prove the guest knew and assumed the risks or released you from their injury prior to the activity.

This does not mean you should not inform your guests of all the risks. On the contrary, knowledgeable guests are happier guests and usually injury-free guests. Any injury is a problem for you no matter how small and a problem for the entire group all the time.

What this means is when you list the risks of the activity you need to make sure you know which ones may need special attention for your guests. Those they do not recognize or understand which may include some inherent risks, and those that are obvious.

What do you think? Leave a comment.

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

Copyright 2014 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

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Ohio, Primary Assumption of the Risk, Assumption of the Risk, Night Hike, Hike, Chaperone, Stream Crossing,

 

 

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Ohio Zip Line Association meeting to deal with Ohio Department of Agriculture wanting to control Zip Lines in the State

Join now and fight or forever hold your piece

Some of you may know that in the state of Ohio the Department of Agriculture has been discussing creating legislation for zip

English: Zip Line Canopy tour in Jaco Beach. O...

lines.  Some of the owners of Zip Line and Canopy Tours in the state have gotten together and formed the Ohio Zip Line Association.  As a group we have been working with the state to figure out where zip lines may or may not fit with their legislation.

We wanted to send an email notifying all interested parties that we will be holding an open meeting of the Ohio Zip Line Association for anyone who may want an update of what is going on in Ohio, or anyone who may want to become members of our group. 

The next Ohio Zip Line Association meeting, it will be held on:

April 18, 2014 at 1:00 pm

Location: 

3347 McDowell Rd.

Grove City, OH 43123

If you would like to be a part of the meeting, but cannot attend, you can use the following call in number:

Dial +1 (312) 757-3131+1 (312) 757-3131

Access Code: 130-237-621

Audio PIN: Shown after joining the meeting

Meeting ID: 130-237-621

Feel free to email me off-list if you have any questions.

Lori Pingle

Owner

ZipZone Canopy Tours

Board President

Ohio Zip Line Association

Direct: 614-906-5674614-906-5674

http://www.zipzonetours.com

What do you think? Leave a comment.

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

Copyright 2014 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/” />

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Ohio, Ohio Zip Line Association, Zip Lines,

 

 

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Ohio Ski Area Statutes

TITLE 41.  LABOR AND INDUSTRY

CHAPTER 4169.  SKI TRAMWAY BOARD

ORC Ann. 4169.10  (2007)

§ 4169.01. Definitions

As used in this chapter:

(A)“Skier” means any person who is using the facilities of a ski area, including, but not limited to, the ski slopes and ski trails, for the purpose of skiing, which includes, without limitation, sliding or jumping on snow or ice on skis, a snowboard, sled, tube, snowbike, toboggan, or any other device.

(B)“Passenger” means any person who is being transported or conveyed by a passenger tramway.

(C)“Ski slopes” or “ski trails” means those sites that are reserved or maintained and are open for use, as designated by a ski area operator.

(D)“Ski area” means all the ski slopes, ski trails, and passenger tramways that are administered or operated as a single enterprise within this state.

(E)“Ski area operator” means a person or organization that is responsible for the operation of a ski area, including an agency of this state or of a political subdivision thereof.

(F)“Passenger tramway” means a device used to transport passengers uphill, whether on skis or other devices or without skis or other devices, or in cars on tracks or suspended in the air, by the use of steel cables, chains, or belts or by ropes, and that is usually supported by trestles or towers with one or more spans. “Passenger tramway” includes all of the following:

(1)Aerial passenger tramway, a device used to transport passengers in several open or enclosed cars attached to and suspended from a moving wire rope or attached to a moving wire rope and supported on a standing wire rope, or similar devices;

(2)Skimobile, a device in which a passenger car running on steel or wooden tracks is attached to and pulled by a steel cable, or similar devices;

(3)Chair lift, a device on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain, or link belt supported by trestles or towers with one or more spans, or similar devices. Chair lifts need not include foot-rests or passenger restraint devices.

(4)J bar, T bar, or platter pull, devices that pull skiers riding on skis or other devices by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans, or similar devices;

(5)Rope tow, a device with one span and no intermediate towers that pulls skiers riding on skis or other devices as they grasp a rope manually, or similar devices;

(6)Wire rope tow, a device with one span and no intermediate towers by which skiers are pulled on skis or other devices while manually grasping a bar attached to a wire hauling cable.

(7)Conveyor, a flexible moving element, including a belt, that transports passengers on one path and returns underneath the uphill portion.

The operation of a passenger tramway shall not constitute the operation of a common carrier.

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

(H)“Freestyler” means a skier utilizing freestyle terrain marked with signage approved by the national ski areas association.

(I)  “Freestyle terrain” means, but is not limited to, terrain parks and terrain park features, such as jumps, rails, fun boxes, other constructed or natural features, half-pipes, quarter-pipes, and freestyle-bump terrain.

(J)  “Tubing park” means a ski slope designated and maintained for the exclusive use of skiers utilizing tubes to slide to the bottom of the course and serviced by a dedicated passenger tramway.

§ 4169.02. Ski tramway board established

(A)For the purposes of regulating the construction, maintenance, mechanical operation, and inspection of passenger tramways that are associated with ski areas and of registering operators of passenger tramways in this state, there is hereby established in the division of industrial compliance in the department of commerce a ski tramway board to be appointed by the governor, with the advice and consent of the senate. The board shall consist of three members, one of whom shall be a public member who is an experienced skier and familiar with ski areas in this state, one of whom shall be a ski area operator actively engaged in the business of recreational skiing in this state, and one of whom shall be a professional engineer who is knowledgeable in the design or operation of passenger tramways.

Of the initial appointments, one member shall be appointed for a term of one year, one for a term of two years, and one for a term of three years. The member appointed to the term beginning on July 1, 1996, shall be appointed to a term ending on June 30, 1997; the member appointed to a term beginning on July 1, 1997, shall be appointed to a term ending on June 30, 1999; and the member appointed to a term beginning on July 1, 1998, shall be appointed to a term ending on June 30, 2001. Thereafter, each of the members shall be appointed for a term of six years. Each member shall hold office from the date of appointment until the end of the term for which the member was appointed. In the event of a vacancy, the governor, with the advice and consent of the senate, shall appoint a successor who shall hold office for the remainder of the term for which the successor’s predecessor was appointed. A member shall continue in office subsequent to the expiration date of the member’s term until the member’s successor takes office or until a period of sixty days has elapsed, whichever occurs first. The board shall elect a chairperson from its members.

The governor may remove any member of the board at any time for misfeasance, nonfeasance, or malfeasance in office after giving the member a copy of the charges against the member and an opportunity to be heard publicly in person or by counsel in the member’s defense. Any such act of removal by the governor is final. A statement of the findings of the governor, the reason for the governor’s action, and the answer, if any, of the member shall be filed by the governor with the secretary of state and shall be open to public inspection.

Members of the board shall be paid two hundred fifty dollars for each meeting that the member attends, except that no member shall be paid or receive more than seven hundred fifty dollars for attending meetings during any calendar year. Each member shall be reimbursed for the member’s actual and necessary expenses incurred in the performance of official board duties. The chairperson shall be paid two hundred fifty dollars annually in addition to any compensation the chairperson receives under this division for attending meetings and any other compensation the chairperson receives for serving on the board.

The division shall provide the board with such offices and such clerical, professional, and other assistance as may be reasonably necessary for the board to carry on its work. The division shall maintain accurate copies of the board’s rules as promulgated in accordance with division (B) of this section and shall keep all of the board’s records, including business records, and inspection reports as well as its own records and reports. The cost of administering the board and conducting inspections shall be included in the budget of the division based on revenues generated by the registration fees established under section 4169.03 of the Revised Code.

(B)In accordance with Chapter 119. of the Revised Code, the board shall adopt and may amend or rescind rules relating to public safety in the construction, maintenance, mechanical operation, and inspection of passenger tramways. The rules shall be in accordance with established standards in the business of ski area operation, if any, and shall not discriminate in their application to ski area operators.

No person shall violate the rules of the board.

(C)The authority of the board shall not extend to any matter relative to the operation of a ski area other than the construction, maintenance, mechanical operation, and inspection of passenger tramways.

(D)A majority of the board constitutes a quorum and may perform and exercise all the duties and powers devolving upon the board.

§ 4169.03. Registration of passenger tramway operators

(A)Before a passenger tramway operator may operate any passenger tramway in the state, the operator shall apply to the ski tramway board, on forms prepared by it, for registration by the board. The application shall contain an inventory of the passenger tramways that the applicant intends to operate and other information as the board may reasonably require and shall be accompanied by the following annual fees:

(1)Each aerial passenger tramway, five hundred dollars;

(2)Each skimobile, two hundred dollars;

(3)Each chair lift, two hundred dollars;

(4)Each J bar, T bar, or platter pull, one hundred dollars;

(5)Each rope tow, fifty dollars;

(6)Each wire rope tow, seventy-five dollars;

(7)Each conveyor, one hundred dollars.

When an operator operates an aerial passenger tramway, a skimobile, or a chair lift during both a winter and summer season, the annual fee shall be one and one-half the above amount for the respective passenger tramway.

(B)Upon payment of the appropriate annual fees in accordance with division (A) of this section, the board shall issue a registration certificate to the operator. Each certificate shall remain in force until the thirtieth day of September next ensuing. The board shall renew an operator’s certificate in accordance with the standard renewal procedure in Chapter 4745. of the Revised Code upon payment of the appropriate annual fees.

(C)Money received from the registration fees and from the fines collected pursuant to section 4169.99 of the Revised Code shall be paid into the state treasury to the credit of the industrial compliance operating fund created in section 121.084 [121.08.4] of the Revised Code.

(D)No person shall operate a passenger tramway in this state unless the person has been registered by the board.

§ 4169.04. Inspections; report of violation

(A)The division of industrial compliance in the department of commerce shall make such inspection of the construction, maintenance, and mechanical operation of passenger tramways as the ski tramway board may reasonably require. The division may contract with other qualified engineers to make such inspection or may accept the inspection report by any qualified inspector of an insurance company authorized to insure passenger tramways in this state.

(B)If, as the result of an inspection, an employee of the division or other agent with whom the division has contracted finds that a violation of the board’s rules exists or a condition in passenger tramway construction, maintenance, or mechanical operation exists that endangers public safety, the employee or agent shall make an immediate report to the board for appropriate investigation and order.

§ 4169.05. Written complaint alleging violation

Any person may make a written complaint to the ski tramway board setting forth an alleged violation of the board’s rules by a registered passenger tramway operator or a condition in passenger tramway construction, maintenance, or mechanical operation that allegedly endangers public safety. The board shall forward a copy of the complaint to the operator named in it and may accompany it with an order that requires the operator to answer the complaint in writing within a specified period of time. The board may investigate the complaint if it determines that there are reasonable grounds for such an investigation.

§ 4169.06. Emergency order; investigation and order; suspension of certificate

(A)When facts are presented to any member of the ski tramway board that indicate that immediate danger exists in the continued operation of a passenger tramway, any member of the board, after such verification of the facts as is practical under the circumstances and consistent with immediate public safety, may by an emergency written order require the operator of the tramway to cease using the tramway immediately for the transportation of passengers. Any person may serve notice on the operator or the operator’s agent who is in immediate control of the tramway by delivering a true and attested copy of the order, and the operator or the operator’s agent shall furnish proof of receipt of such notice by signing an affidavit on the back of the copy of the order. The emergency order shall be effective for a period not to exceed forty-eight hours from the time of notification.

(B)Immediately after the issuance of an emergency order pursuant to this section, the board shall investigate the facts of the case. If the board finds that a violation of any of its rules exists or that a condition in passenger tramway construction, maintenance, or mechanical operation exists that endangers public safety, it shall issue a written order setting forth its findings and the corrective action to be taken and fixing a reasonable time for compliance.

(C)After an investigation pursuant to division (B) of this section, if the board determines that danger to public safety exists in the continued operation of a passenger tramway, it shall so state in the order, describe in detail the basis for its findings, and in the order may require the operator not to operate the tramway until the operator has taken the corrective action ordered pursuant to this section. If the operator continues to use the tramway following receipt of such order, the board may request the court of common pleas having jurisdiction in the county where the tramway is located to issue an injunction forbidding operation of the tramway.

(D)An operator of a passenger tramway may request a hearing by the board on any order issued pursuant to this chapter and may appeal the results of such a hearing in accordance with Chapter 119. of the Revised Code. An operator may appeal an order suspending the operation of the operator’s tramway without first requesting a hearing.

(E)If an operator fails to comply with an order of the board issued pursuant to this chapter within the specified time, the board may suspend the registration certificate of the operator for such time as it considers necessary to gain compliance with its order.

No operator shall operate a passenger tramway while the operator’s registration certificate is under suspension by the board.

§ 4169.07. Responsibilities of ski area operator and tramway passengers

(A)A ski area operator shall be responsible for any construction that the operator actually performs or has actually performed and for the maintenance and operation of any passenger tramway in the operator’s ski area.

(B)A passenger shall be responsible for: not embarking upon or disembarking from a passenger tramway except at an area that is designated for such purpose; not throwing or expelling any object from a passenger tramway; not performing any action that interferes with the running or operation of a passenger tramway; learning how to use a passenger tramway safely before the time that the passenger desires to embark upon it; not using such a tramway unless the passenger has the ability to use it safely without any on-the-spot instruction from the ski area operator; not engaging willfully or negligently in any type of conduct that contributes to or causes injury to another person; and not embarking upon a passenger tramway without the authority of the ski area operator.

§ 4169.08. Risks assumed by skier; responsibilities of operator and skier

(A)(1) The general assembly recognizes that skiing as a recreational sport is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing, which include, but are not limited to, injury, death, or loss to person or property caused by changing weather conditions; surface or subsurface snow or ice conditions; hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; bare spots, rocks, trees, stumps, and other forms of forest growth or debris; lift towers or other forms of towers and their components, either above or below the snow surface; variations in steepness or terrain, whether natural or as the result of snowmaking, slope design, freestyle terrain, jumps, catwalks, or other terrain modifications; any other objects and structures, including, but not limited to, passenger tramways and related structures and equipment, competition equipment, utility poles, fences, posts, ski equipment, slalom poles, ropes, out-of-bounds barriers and their supports, signs, ski racks, walls, buildings, and sheds; and plainly marked or otherwise visible snowmaking and snow-grooming equipment, snowmobiles, snow cats, and over-snow vehicles.

(2)Provided that the ski area operator complies with division (B)(4) of this section, no liability shall attach to a ski area operator for injury, death, or loss to person or property suffered by any competitor or freestyler using a freestyle terrain, which injury, death, or loss to person or property is caused by course, venue, or area conditions that visual inspection should have revealed or by collision with a spectator, competition official, ski area personnel, or another competitor or freestyler.

(3)Provided the ski area operator complies with division (B)(5) of this section, no liability shall attach to a ski area operator for injury, death, or loss to person or property suffered by any skier using a tubing park, which injury, death, or loss to person or property is caused by course design or maintenance or conditions that visual inspection should have revealed or by collision with another skier.

(B)The legal responsibilities of a ski area operator to a skier with respect to any injury, death, or loss to person or property resulting in any way from an inherent risk of the sport shall not be those of the common law duty of premises owners to business invitees. A ski area operator shall have, however, the following responsibilities:

(1)To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights that shall be in operation whenever the vehicles are working or are moving in the ski area;

(2)To mark with a visible sign or other warning implement the location of any hydrant or similar equipment that is used in snowmaking operations and located anywhere in the ski area;

(3)To mark, at the base of a slope or hill where skiers embark on a passenger tramway serving the slope or hill or at the top of a trail or slope, such slopes, trails, and hills with signs indicating their relative degree of difficulty. The signs must be the type that have been approved by the national ski areas association and are in current use by the industry;

(4)Prior to the use of any portion of a freestyle terrain area made available by the ski area operator, to allow each freestyler or competitor a reasonable opportunity to visually inspect the course, venue, or area of the freestyle terrain;

(5)To allow skiers using a tubing park visible access to the course.

(C)A skier shall have the following responsibilities:

(1)To know the range of the skier’s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier’s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;

(2)To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall;

(3)When involved in a skiing accident in which another person is involved who needs medical or other assistance, to obtain assistance for the person, to notify the proper authorities, and to not depart from the scene of the accident without leaving personal identification;

(4)If the skier is a competitor, freestyler, or user of freestyle terrain, to assume the risk of all course, venue, or area conditions, including, but not limited to, weather and snow conditions; obstacles; course or feature location, construction, or layout; freestyle terrain configuration and conditions; and other courses, layouts, or configurations of the area to be used;

(5)If the skier is utilizing a tubing park, to assume the risk of collision with others on the course.

§ 4169.09. Liability of operator, tramway passenger, freestyler, competitor, or skier

A ski area operator, a tramway passenger, freestyler, competitor, or skier is liable for injury, death, or loss to person or property caused by the operator’s, passenger’s, freestyler’s, competitor’s, or skier’s failure to fulfill any of the responsibilities required by this chapter. A ski area operator, a tramway passenger, freestyler, competitor, or skier is not liable for injury, death, or loss to person or property caused by another’s failure to fulfill any of the responsibilities required of another by this chapter. A ski area operator, a tramway passenger, freestyler, competitor, or skier is not entitled to recover for injury, death, or loss to person or property caused by the operator’s, passenger’s, freestyler’s, competitor’s, or skier’s failure to fulfill any of the responsibilities required by this chapter.

§ 4169.10. Operator’s liability to violators of theft statute

A ski area operator is not liable for any losses or damages suffered by a person who was in violation of section 2913.02 of the Revised Code at the time that the losses or damages occurred.

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Ohio Skier Safety Act

Ohio Skier Safety Act

Page’s Ohio Revised Code Annotated:

TITLE 41.  LABOR AND INDUSTRY 

CHAPTER 4169.  SKI TRAMWAY BOARD

Go to the Ohio Code Archive Directory

ORC Ann. 4169.01  (2013)

§ 4169.01. Definitions

   As used in this chapter:

   (A) “Skier” means any person who is using the facilities of a ski area, including, but not limited to, the ski slopes and ski trails, for the purpose of skiing, which includes, without limitation, sliding or jumping on snow or ice on skis, a snowboard, sled, tube, snowbike, toboggan, or any other device.

   (B) “Passenger” means any person who is being transported or conveyed by a passenger tramway.

   (C) “Ski slopes” or “ski trails” means those sites that are reserved or maintained and are open for use, as designated by a ski area operator.

   (D) “Ski area” means all the ski slopes, ski trails, and passenger tramways that are administered or operated as a single enterprise within this state.

   (E) “Ski area operator” means a person or organization that is responsible for the operation of a ski area, including an agency of this state or of a political subdivision thereof.

   (F) “Passenger tramway” means a device used to transport passengers uphill, whether on skis or other devices or without skis or other devices, or in cars on tracks or suspended in the air, by the use of steel cables, chains, or belts or by ropes, and that is usually supported by trestles or towers with one or more spans. “Passenger tramway” includes all of the following:

      (1) Aerial passenger tramway, a device used to transport passengers in several open or enclosed cars attached to and suspended from a moving wire rope or attached to a moving wire rope and supported on a standing wire rope, or similar devices;

      (2) Skimobile, a device in which a passenger car running on steel or wooden tracks is attached to and pulled by a steel cable, or similar devices;

      (3) Chair lift, a device on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain, or link belt supported by trestles or towers with one or more spans, or similar devices. Chair lifts need not include foot-rests or passenger restraint devices.

      (4) J bar, T bar, or platter pull, devices that pull skiers riding on skis or other devices by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans, or similar devices;

      (5) Rope tow, a device with one span and no intermediate towers that pulls skiers riding on skis or other devices as they grasp a rope manually, or similar devices;

      (6) Wire rope tow, a device with one span and no intermediate towers by which skiers are pulled on skis or other devices while manually grasping a bar attached to a wire hauling cable.

      (7) Conveyor, a flexible moving element, including a belt, that transports passengers on one path and returns underneath the uphill portion.

      The operation of a passenger tramway shall not constitute the operation of a common carrier.

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

   (H) “Freestyler” means a skier utilizing freestyle terrain marked with signage approved by the national ski areas association.

   (I) “Freestyle terrain” means, but is not limited to, terrain parks and terrain park features, such as jumps, rails, fun boxes, other constructed or natural features, half-pipes, quarter-pipes, and freestyle-bump terrain.

   (J) “Tubing park” means a ski slope designated and maintained for the exclusive use of skiers utilizing tubes to slide to the bottom of the course and serviced by a dedicated passenger tramway.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96; 151 v S 61, § 1, eff. 9-26-05.

NOTES:

Section Notes

EFFECT OF AMENDMENTS

151 v S 61, effective September 26, 2005, rewrote (A); in the introductory language of (F), inserted “or without skis or other devices” and made related changes, and added “all of the following” to the end; and added the first paragraph of (F)(7) and (G) through (J).

Related Statutes & Rules

Cross-References to Related Statutes

Standard renewal procedure defined, RC § 4745.01.

Tramway excepted from definition of amusement rides, RC § 1711.50.

OH Administrative Code

Department of commerce, ski tramway board —

Definitions in re new installations and modifications of existing passenger tramways. OAC 4101:14-1-03.

Case Notes

ANALYSIS Go to ReleaseRelease Go to SnowboarderSnowboarder

Return to Topic ListRELEASE.

The rental agreement and release of liability barred recovery for the ski lift injuries: Broome v. Ohio Ski Slopes, 108 Ohio App. 3d 86, 670 N.E.2d 262, 1995 Ohio App. LEXIS 5971 (1995).

Return to Topic ListSNOWBOARDER.

Trial court erred when it determined that, based on the language of the statute, R.C. 4169.08 was inapplicable to collisions between skiers because, by reading § 4169.08(C) in conjunction with R.C. 4169.09, it was evident that the legislature intended that skiers would be liable for injuries caused to others while skiing. Horvath v. Ish, 194 Ohio App. 3d 8, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907, 2011 Ohio 2239, (2011), affirmed by, remanded by 2012 Ohio 5333, 2012 Ohio LEXIS 2872 (Ohio Nov. 20, 2012).

§ 4169.02. Ski tramway board established

   (A) For the purposes of regulating the construction, maintenance, mechanical operation, and inspection of passenger tramways that are associated with ski areas and of registering operators of passenger tramways in this state, there is hereby established in the division of industrial compliance in the department of commerce a ski tramway board to be appointed by the governor, with the advice and consent of the senate. The board shall consist of three members, one of whom shall be a public member who is an experienced skier and familiar with ski areas in this state, one of whom shall be a ski area operator actively engaged in the business of recreational skiing in this state, and one of whom shall be a professional engineer who is knowledgeable in the design or operation of passenger tramways.

Of the initial appointments, one member shall be appointed for a term of one year, one for a term of two years, and one for a term of three years. The member appointed to the term beginning on July 1, 1996, shall be appointed to a term ending on June 30, 1997; the member appointed to a term beginning on July 1, 1997, shall be appointed to a term ending on June 30, 1999; and the member appointed to a term beginning on July 1, 1998, shall be appointed to a term ending on June 30, 2001. Thereafter, each of the members shall be appointed for a term of six years. Each member shall hold office from the date of appointment until the end of the term for which the member was appointed. In the event of a vacancy, the governor, with the advice and consent of the senate, shall appoint a successor who shall hold office for the remainder of the term for which the successor’s predecessor was appointed. A member shall continue in office subsequent to the expiration date of the member’s term until the member’s successor takes office or until a period of sixty days has elapsed, whichever occurs first. The board shall elect a chairperson from its members.

The governor may remove any member of the board at any time for misfeasance, nonfeasance, or malfeasance in office after giving the member a copy of the charges against the member and an opportunity to be heard publicly in person or by counsel in the member’s defense. Any such act of removal by the governor is final. A statement of the findings of the governor, the reason for the governor’s action, and the answer, if any, of the member shall be filed by the governor with the secretary of state and shall be open to public inspection.

Members of the board shall be paid two hundred fifty dollars for each meeting that the member attends, except that no member shall be paid or receive more than seven hundred fifty dollars for attending meetings during any calendar year. Each member shall be reimbursed for the member’s actual and necessary expenses incurred in the performance of official board duties. The chairperson shall be paid two hundred fifty dollars annually in addition to any compensation the chairperson receives under this division for attending meetings and any other compensation the chairperson receives for serving on the board.

The division shall provide the board with such offices and such clerical, professional, and other assistance as may be reasonably necessary for the board to carry on its work. The division shall maintain accurate copies of the board’s rules as promulgated in accordance with division (B) of this section and shall keep all of the board’s records, including business records, and inspection reports as well as its own records and reports. The cost of administering the board and conducting inspections shall be included in the budget of the division based on revenues generated by the registration fees established under section 4169.03 of the Revised Code.

(B) In accordance with Chapter 119. of the Revised Code, the board shall adopt and may amend or rescind rules relating to public safety in the construction, maintenance, mechanical operation, and inspection of passenger tramways. The rules shall be in accordance with established standards in the business of ski area operation, if any, and shall not discriminate in their application to ski area operators.

No person shall violate the rules of the board.

(C) The authority of the board shall not extend to any matter relative to the operation of a ski area other than the construction, maintenance, mechanical operation, and inspection of passenger tramways.

(D) A majority of the board constitutes a quorum and may perform and exercise all the duties and powers devolving upon the board.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v S 162 (Eff 10-29-95); 146 v S 293 (Eff 9-26-96); 146 v H 535. Eff 11-20-96; 153 v H 1, § 101.01, eff. 10-16-09; 2012 HB 487, § 101.01, eff. Sept. 10, 2012.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by § 812.10 of 153 v H 1.

The provisions of 815.10 of 153 v H 1 read as follows:

SECTION 815.10. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the following sections, presented in this act as composites of the sections as amended by the acts indicated, are the resulting versions of the sections in effect prior to the effective date of the sections as presented in this act:

* * *

Section 4169.02 of the Revised Code as amended by both Am. Sub. S.B. 293 and Sub. H.B. 535 of the 121st General Assembly.

* * *

The provisions of § 3 of HB 535 (146 v –) read as follows:

SECTION 3. The Ski Tramway Board is the successor to and a continuation of the Safety in Skiing Board.

EFFECT OF AMENDMENTS

The 2012 amendment substituted “division of industrial compliance” for “division of labor” in the first sentence of the first paragraph of (A).

153 v H 1, effective October 16, 2009, substituted “labor” for “industrial compliance” in the first sentence of the first paragraph of (A).

Related Statutes & Rules

Cross-References to Related Statutes

Penalty, RC § 4169.99.

Ohio Constitution

Appointments subject to advice and consent of Senate, Ohio Const. art III, § 21.

OH Administrative Code

Department of commerce, ski tramway board —

General provisions. OAC ch. 4101:14-1.

Introduction and scope of rules. OAC 4101:14-1-01 et seq.

Notice in the event of a serious accident. OAC 4101:14-1-09.

Notice of public hearings and public meetings. OAC 4101:14-1-08.

Comparative Legislation

SAFETY IN SKIING:

NY–NY CLS Labor § 865 et seq

§ 4169.03. Registration of passenger tramway operators

   (A) Before a passenger tramway operator may operate any passenger tramway in the state, the operator shall apply to the ski tramway board, on forms prepared by it, for registration by the board. The application shall contain an inventory of the passenger tramways that the applicant intends to operate and other information as the board may reasonably require and shall be accompanied by the following annual fees:

   (1) Each aerial passenger tramway, five hundred dollars;

   (2) Each skimobile, two hundred dollars;

   (3) Each chair lift, two hundred dollars;

   (4) Each J bar, T bar, or platter pull, one hundred dollars;

   (5) Each rope tow, fifty dollars;

   (6) Each wire rope tow, seventy-five dollars;

   (7) Each conveyor, one hundred dollars.

   When an operator operates an aerial passenger tramway, a skimobile, or a chair lift during both a winter and summer season, the annual fee shall be one and one-half the above amount for the respective passenger tramway.

(B) Upon payment of the appropriate annual fees in accordance with division (A) of this section, the board shall issue a registration certificate to the operator. Each certificate shall remain in force until the thirtieth day of September next ensuing. The board shall renew an operator’s certificate in accordance with the standard renewal procedure in Chapter 4745. of the Revised Code upon payment of the appropriate annual fees.

(C) Money received from the registration fees and from the fines collected pursuant to section 4169.99 of the Revised Code shall be paid into the state treasury to the credit of the industrial compliance operating fund created in section 121.084 of the Revised Code.

(D) No person shall operate a passenger tramway in this state unless the person has been registered by the board.

HISTORY:

138 v H 775 (Eff 7-1-81); 139 v S 550 (Eff 11-26-82); 141 v H 201 (Eff 7-1-85); 146 v S 162 (Eff 10-29-95); 146 v H 535. Eff 11-20-96; 151 v S 61, § 1, eff. 9-26-05; 153 v H 1, § 101.01, eff. 10-16-09; 2012 HB 487, § 101.01, eff. Sept. 10, 2012.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by § 812.10 of 153 v H 1.

EFFECT OF AMENDMENTS

The 2012 amendment substituted “industrial compliance” for “labor” in (C).

153 v H 1, effective October 16, 2009, substituted “labor” for “industrial compliance” in (C).

151 v S 61, effective September 26, 2005, in the introductory language of (A), deleted “such” preceding “other information”; and added (A)(7).

Related Statutes & Rules

Cross-References to Related Statutes

Industrial compliance operating fund, RC § 121.084.

Penalty, RC § 4169.99.

Ski tramway board established, RC § 4169.02.

Standard renewal procedure defined, RC § 4745.01.

OH Administrative Code

Fees; renewals. OAC 4101:14-1-06.

Registration and inspections. OAC 4101:14-1-05.

§ 4169.04. Inspections; report of violation

   (A) The division of industrial compliance in the department of commerce shall make such inspection of the construction, maintenance, and mechanical operation of passenger tramways as the ski tramway board may reasonably require. The division may contract with other qualified engineers to make such inspection or may accept the inspection report by any qualified inspector of an insurance company authorized to insure passenger tramways in this state.

(B) If, as the result of an inspection, an employee of the division or other agent with whom the division has contracted finds that a violation of the board’s rules exists or a condition in passenger tramway construction, maintenance, or mechanical operation exists that endangers public safety, the employee or agent shall make an immediate report to the board for appropriate investigation and order.

HISTORY:

138 v H 775 (Eff 7-1-81); 145 v H 152 (Eff 7-1-93); 146 v S 162 (Eff 10-29-95); 146 v S 293 (Eff 9-26-96); 146 v H 535. Eff 11-20-96; 153 v H 1, § 101.01, eff. 10-16-09; 2012 HB 487, § 101.01, eff. Sept. 10, 2012.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by § 812.10 of 153 v H 1.

The provisions of 815.10 of 153 v H 1 read as follows:

SECTION 815.10. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the following sections, presented in this act as composites of the sections as amended by the acts indicated, are the resulting versions of the sections in effect prior to the effective date of the sections as presented in this act:

* * *

Section 4169.04 of the Revised Code as amended by both Am. Sub. S.B. 293 and Sub. H.B. 535 of the 121st General Assembly.

* * *

EFFECT OF AMENDMENTS

The 2012 amendment substituted “The division of industrial compliance” for “The division of labor” in the first sentence of (A).

153 v H 1, effective October 16, 2009, substituted “labor” for “industrial compliance” in the first sentence of (A).

OH Administrative Code

Acceptance tests. OAC 4101:14-1-04.

Registration and inspections. OAC 4101:14-1-05.

§ 4169.05. Written complaint alleging violation

   Any person may make a written complaint to the ski tramway board setting forth an alleged violation of the board’s rules by a registered passenger tramway operator or a condition in passenger tramway construction, maintenance, or mechanical operation that allegedly endangers public safety. The board shall forward a copy of the complaint to the operator named in it and may accompany it with an order that requires the operator to answer the complaint in writing within a specified period of time. The board may investigate the complaint if it determines that there are reasonable grounds for such an investigation.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96.

§ 4169.06. Emergency order; investigation and order; suspension of certificate

   (A) When facts are presented to any member of the ski tramway board that indicate that immediate danger exists in the continued operation of a passenger tramway, any member of the board, after such verification of the facts as is practical under the circumstances and consistent with immediate public safety, may by an emergency written order require the operator of the tramway to cease using the tramway immediately for the transportation of passengers. Any person may serve notice on the operator or the operator’s agent who is in immediate control of the tramway by delivering a true and attested copy of the order, and the operator or the operator’s agent shall furnish proof of receipt of such notice by signing an affidavit on the back of the copy of the order. The emergency order shall be effective for a period not to exceed forty-eight hours from the time of notification.

(B) Immediately after the issuance of an emergency order pursuant to this section, the board shall investigate the facts of the case. If the board finds that a violation of any of its rules exists or that a condition in passenger tramway construction, maintenance, or mechanical operation exists that endangers public safety, it shall issue a written order setting forth its findings and the corrective action to be taken and fixing a reasonable time for compliance.

(C) After an investigation pursuant to division (B) of this section, if the board determines that danger to public safety exists in the continued operation of a passenger tramway, it shall so state in the order, describe in detail the basis for its findings, and in the order may require the operator not to operate the tramway until the operator has taken the corrective action ordered pursuant to this section. If the operator continues to use the tramway following receipt of such order, the board may request the court of common pleas having jurisdiction in the county where the tramway is located to issue an injunction forbidding operation of the tramway.

(D) An operator of a passenger tramway may request a hearing by the board on any order issued pursuant to this chapter and may appeal the results of such a hearing in accordance with Chapter 119. of the Revised Code. An operator may appeal an order suspending the operation of the operator’s tramway without first requesting a hearing.

(E) If an operator fails to comply with an order of the board issued pursuant to this chapter within the specified time, the board may suspend the registration certificate of the operator for such time as it considers necessary to gain compliance with its order.

No operator shall operate a passenger tramway while the operator’s registration certificate is under suspension by the board.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96.

NOTES:

Related Statutes & Rules

Cross-References to Related Statutes

Penalty, RC § 4169.99.

Ohio Rules

Injunctions, CivR 65.

OH Administrative Code

Registration and inspections; fine for violation. OAC 4101:14-1-05.

§ 4169.07. Responsibilities of ski area operator and tramway passengers

   (A) A ski area operator shall be responsible for any construction that the operator actually performs or has actually performed and for the maintenance and operation of any passenger tramway in the operator’s ski area.

(B) A passenger shall be responsible for: not embarking upon or disembarking from a passenger tramway except at an area that is designated for such purpose; not throwing or expelling any object from a passenger tramway; not performing any action that interferes with the running or operation of a passenger tramway; learning how to use a passenger tramway safely before the time that the passenger desires to embark upon it; not using such a tramway unless the passenger has the ability to use it safely without any on-the-spot instruction from the ski area operator; not engaging willfully or negligently in any type of conduct that contributes to or causes injury to another person; and not embarking upon a passenger tramway without the authority of the ski area operator.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by section 4 of HB 775.

OH Administrative Code

Mechanical operation and maintenance. OAC 4101:14-1-05.

Case Notes

LIABILITY.

Where there was no evidence to establish whether a ramp was man-made or a natural incline, there were disputed facts from which reasonable minds could conclude that an injury occurred on a ramp which was a part of the passenger tramway constructed for the transport of passengers, and thus, that the owner had violated its responsibility pursuant to R.C. 4169.07(A) to maintain the passenger tramway in its ski area: Graham v. Ohio Ski Slopes, 1998 Ohio App. LEXIS 1283 (1998).

§ 4169.08. Risks assumed by skier; responsibilities of operator and skier

   (A) (1) The general assembly recognizes that skiing as a recreational sport is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing, which include, but are not limited to, injury, death, or loss to person or property caused by changing weather conditions; surface or subsurface snow or ice conditions; hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; bare spots, rocks, trees, stumps, and other forms of forest growth or debris; lift towers or other forms of towers and their components, either above or below the snow surface; variations in steepness or terrain, whether natural or as the result of snowmaking, slope design, freestyle terrain, jumps, catwalks, or other terrain modifications; any other objects and structures, including, but not limited to, passenger tramways and related structures and equipment, competition equipment, utility poles, fences, posts, ski equipment, slalom poles, ropes, out-of-bounds barriers and their supports, signs, ski racks, walls, buildings, and sheds; and plainly marked or otherwise visible snowmaking and snow-grooming equipment, snowmobiles, snow cats, and over-snow vehicles.

   (2) Provided that the ski area operator complies with division (B)(4) of this section, no liability shall attach to a ski area operator for injury, death, or loss to person or property suffered by any competitor or freestyler using a freestyle terrain, which injury, death, or loss to person or property is caused by course, venue, or area conditions that visual inspection should have revealed or by collision with a spectator, competition official, ski area personnel, or another competitor or freestyler.

   (3) Provided the ski area operator complies with division (B)(5) of this section, no liability shall attach to a ski area operator for injury, death, or loss to person or property suffered by any skier using a tubing park, which injury, death, or loss to person or property is caused by course design or maintenance or conditions that visual inspection should have revealed or by collision with another skier.

(B) The legal responsibilities of a ski area operator to a skier with respect to any injury, death, or loss to person or property resulting in any way from an inherent risk of the sport shall not be those of the common law duty of premises owners to business invitees. A ski area operator shall have, however, the following responsibilities:

   (1) To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights that shall be in operation whenever the vehicles are working or are moving in the ski area;

   (2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment that is used in snowmaking operations and located anywhere in the ski area;

   (3) To mark, at the base of a slope or hill where skiers embark on a passenger tramway serving the slope or hill or at the top of a trail or slope, such slopes, trails, and hills with signs indicating their relative degree of difficulty. The signs must be the type that have been approved by the national ski areas association and are in current use by the industry;

   (4) Prior to the use of any portion of a freestyle terrain area made available by the ski area operator, to allow each freestyler or competitor a reasonable opportunity to visually inspect the course, venue, or area of the freestyle terrain;

   (5) To allow skiers using a tubing park visible access to the course.

(C) A skier shall have the following responsibilities:

   (1) To know the range of the skier’s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier’s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;

   (2) To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall;

   (3) When involved in a skiing accident in which another person is involved who needs medical or other assistance, to obtain assistance for the person, to notify the proper authorities, and to not depart from the scene of the accident without leaving personal identification;

   (4) If the skier is a competitor, freestyler, or user of freestyle terrain, to assume the risk of all course, venue, or area conditions, including, but not limited to, weather and snow conditions; obstacles; course or feature location, construction, or layout; freestyle terrain configuration and conditions; and other courses, layouts, or configurations of the area to be used;

   (5) If the skier is utilizing a tubing park, to assume the risk of collision with others on the course.

HISTORY:

138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96; 151 v S 61, § 1, eff. 9-26-05.

NOTES:

Section Notes

EFFECT OF AMENDMENTS

151 v S 61, effective September 26, 2005, rewrote (A); in the introductory language of (B), deleted “Therefore” from the beginning, and inserted “or loss to person or property” and made related changes; and added (B)(4) and (5) and (C)(4) and (5).

OH Administrative Code

Notice in the event of serious accident. OAC 4101:14-1-09.

Case Notes

ANALYSIS Go to Collisions between skiersCollisions between skiers Go to Common law dutiesCommon law duties Go to Maintenance of rampMaintenance of ramp Go to Renting defective equipmentRenting defective equipment

Return to Topic ListCOLLISIONS BETWEEN SKIERS.

Trial court erred when it determined that, based on the language of the statute, R.C. 4169.08 was inapplicable to collisions between skiers because, by reading § 4169.08(C) in conjunction with R.C. 4169.09, it was evident that the legislature intended that skiers would be liable for injuries caused to others while skiing. Horvath v. Ish, 194 Ohio App. 3d 8, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907, 2011 Ohio 2239, (2011), affirmed by, remanded by 2012 Ohio 5333, 2012 Ohio LEXIS 2872 (Ohio Nov. 20, 2012).

Return to Topic ListCOMMON LAW DUTIES.

Former R.C. 4169.08 included fences and precluded claims based on common law principles of premises liability: Stone v. Alpine Valley Ski Area, 135 Ohio App. 3d 540, 734 N.E.2d 888, 1999 Ohio App. LEXIS 5926 (1999).

R.C. 4169.08 does not abrogate the common law duty of ski resort owners to their business invitees, skiers: Shaheen v. Boston Mills Ski Resort, 85 Ohio App. 3d 285, 619 N.E.2d 1037, 1992 Ohio App. LEXIS 6080 (1992).

Return to Topic ListMAINTENANCE OF RAMP.

Where a variation in terrain occurs on a ski ramp approximately two feet from the disembarkation point and the skier must encounter the trouble spot in order to successfully disembark, the maintenance of such ramp is part of the ski operator’s responsibility for the maintenance of his passenger tramway: Graham v. Ohio Ski Slopes, 1998 Ohio App. LEXIS 1283 (1998).

Return to Topic ListRENTING DEFECTIVE EQUIPMENT.

Renting defective equipment is not an inherent risk of skiing. Anticipatory release was valid to absolve defendant for negligence in renting ski equipment, but evidence was sufficient to support finding of willful and wanton misconduct: Otterbacher v. Brandywine Ski Center, Inc., 1990 Ohio App. LEXIS 4582 (9th Dist. 1990).

§ 4169.09. Liability of operator, tramway passenger, freestyler, competitor, or skier

   A ski area operator, a tramway passenger, freestyler, competitor, or skier is liable for injury, death, or loss to person or property caused by the operator’s, passenger’s, freestyler’s, competitor’s, or skier’s failure to fulfill any of the responsibilities required by this chapter. A ski area operator, a tramway passenger, freestyler, competitor, or skier is not liable for injury, death, or loss to person or property caused by another’s failure to fulfill any of the responsibilities required of another by this chapter. A ski area operator, a tramway passenger, freestyler, competitor, or skier is not entitled to recover for injury, death, or loss to person or property caused by the operator’s, passenger’s, freestyler’s, competitor’s, or skier’s failure to fulfill any of the responsibilities required by this chapter.

HISTORY:

138 v H 775. Eff 7-1-81; 151 v S 61, § 1, eff. 9-26-05.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by section 4 of HB 775.

EFFECT OF AMENDMENTS

151 v S 61, effective September 26, 2005, rewrote the section.

Case Notes

ANALYSIS Go to Liability of skiersLiability of skiers Go to Release of liabilityRelease of liability

Return to Topic ListLIABILITY OF SKIERS.

Trial court erred when it determined that, based on the language of the statute, R.C. 4169.08 was inapplicable to collisions between skiers because, by reading § 4169.08(C) in conjunction with R.C. 4169.09, it was evident that the legislature intended that skiers would be liable for injuries caused to others while skiing. Horvath v. Ish, 194 Ohio App. 3d 8, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907, 2011 Ohio 2239, (2011), affirmed by, remanded by 2012 Ohio 5333, 2012 Ohio LEXIS 2872 (Ohio Nov. 20, 2012).

Return to Topic ListRELEASE OF LIABILITY.

The rental agreement and release of liability barred recovery for the ski lift injuries: Broome v. Ohio Ski Slopes, 108 Ohio App. 3d 86, 670 N.E.2d 262, 1995 Ohio App. LEXIS 5971 (1995).

§ 4169.10. Operator’s liability to violators of theft statute

   A ski area operator is not liable for any losses or damages suffered by a person who was in violation of section 2913.02 of the Revised Code at the time that the losses or damages occurred.

HISTORY:

138 v H 775. Eff 7-1-81.

NOTES:

Section Notes

Editor’s Notes

The effective date is set by section 4 of HB 775.

 


Chapple, Et Al., v. Ultrafit Usa, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

Chapple, Et Al., v. Ultrafit USA, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

Roger Chapple, Et Al., Plaintiffs-Appellants -vs- Ultrafit Usa, Inc., Et Al., Defendants-Appellees

Case No. 01-CAE-08037

COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, DELAWARE COUNTY

2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

March 18, 2002, Date of Judgment Entry

PRIOR HISTORY: [*1] CHARACTER OF PROCEEDING: Appeal from the Delaware County, Common Pleas Court, Case No. 00-CVC-06-270.

DISPOSITION: Trial court’s grant of defendants-appellees’ motion for summary judgment was affirmed.

COUNSEL: For Plaintiffs-Appellants: JOHN A. YAKLEVICH, Columbus, Ohio.

For Defendants-Appellees: MARK PETRUCCI, Columbus, Ohio.

JUDGES: Hon. Sheila G. Farmer, P.J., Hon. Julie A. Edwards, J., Hon. John F. Boggins, J. Boggins, J., Farmer, P.J., and Edwards, J. concur.

OPINION BY: John F. Boggins

OPINION

Boggins, J.

This is an appeal from a Summary Judgment ruling of the Delaware County, Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

The facts underlying this case are that appellant Roger Chapple was an employee of the Ohio Department of Natural Resources, Division of Parks and Recreation (O.D.N.R.). Appellee Ultrafit, Inc. through its president, appellee Jeffrey Sheard is engaged in organizing and promoting events such as triathlons. One of these contests was set for June 28, 1998 at Alum Creek State Park. Appellees had made application to the O.D.N.R. to use the facilities, including employees of O.D.N.R. on June 28, 1998 to conduct a triathlon. Appellant signed up per O.D.N.R. procedure to work the event. John Williamson, crew leader for O.D.N.R. set the work schedule which [*2] included appellant’s duties. (Appellant’s deposition at p.14). Appellant had no contact with appellees on 6/28/98 prior to his injury. Due to severe weather, the triathlon’s starting time was delayed until about 9:30a.m. when the weather had improved. Due to the late start, the race was shortened. Near the end of the shortened event, appellant Roger Chapple was rolling a hose on an abandoned leg of the race and was struck by lightning and injured. Appellant, Joyce Chapple, spouse of Roger Chapple is joined on a loss of consortium basis. The issues are whether appellees owed a duty to Roger Chapple, was he an employee of O.D.N.R. or other status, and if a duty of care existed, did it require a postponement or cancellation of the event. Appellees filed a Motion for Summary Judgment on April 11, 2000 which was set for a non-oral hearing with appellants memorandum in opposition filed May 8, 2000, and a reply subsequently filed. After careful consideration of all materials available to the trial court, it sustained appellee’s motion.

ASSIGNMENT OF ERROR

The sole Assignment of Error is:

I.

THE TRIAL COURT ERRED IN RENDERING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS-APPELLEES WHERE [*3] THE DEFENDANT-APPELLEES OWED A DUTY OF CARE TO PLAINTIFFS-APPELLANTS AND GENUINE ISSUES OF FACT EXISTED CONCERNING DEFENDANTS-APPELLEES’ BREACH OF THAT DUTY.

SUMMARY JUDGMENTS

Civ.R. 56(C) states, in pertinent part:

[HN1] Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law…. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.

[HN2] Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. [HN3] In order to survive a motion for summary judgment, the non-moving party must produce evidence on any issue [*4] to which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St. 3d 108, 570 N.E.2d 1095, citing Celotex v. Catrett (1986), 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548. [HN4] Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St. 3d 35, 36, 506 N.E.2d 212. I. As to the Assignment of Error, even though appellants’ Complaint asserts negligence, gross negligence and wanton and wilful misconduct but his Brief relies solely on negligence. (Appellant’s brief at p. 8). Appellant acknowledges that no Ohio case strictly fits the fact pattern in the case sub judice. Other than the cases citing basic propositions of negligence law, none of the cases cited by either party to this appeal are particularly in point, therefore we must, as the trial court did, review the facts which would support or refute the decision from which the appeal is taken. The deposition of appellant, Roger Chapple, indicates that the weather had cleared by the delayed starting time and that [*5] lightning flashes were to the north of the park. (Appellant’s deposition at p. 26). In the reply brief appellant’s counsel attempts to blame a memory loss for the inability of Roger Chapple to remember that lightning was flashing in his vicinity prior to being struck. (Appellant’s reply brief at p. 2). This conclusion is not supported by appellant’s deposition which demonstrates a clear memory except for short term loss. (Appellant’s deposition at p. 46). The essential issue is whether alleged facts were presented to the trial court indicating a breach of duty of appellees to appellants. [HN5] The existence of a duty is an essential element of negligence action. Grover v. Eli Lilly and Company (1992), 63 Ohio St. 3d 756, 591 N.E.2d 696. [HN6] The foreseeability of injury is obviously a factor to consider under appropriate circumstances. An injury is foreseeable if a reasonably prudent person, under like or similar circumstance knew or should have known that an act or nonperformance of an act was likely to result in harm. Simmers v. Bentley Construction Co. (1992), 64 Ohio St. 3d 642, 597 N.E.2d 504. Here, appellants assert that, because appellee had authority to postpone [*6] or cancel the race, that a duty to appellant existed. The defect in this argument is that the weather had cleared considerably at starting time. Lightning flashes were to the north. Appellant did not believe that danger was present. (Appellant’s deposition at p. 47). Also, if such became a concern, he believed policy dictated that he go to a vehicle. (Appellant’s deposition at p. 40-41). Appellant argues that severe electrical storm activity was present, but his deposition does not support this conclusion. Appellee has reviewed certain theories and applicable cases such as injury to subcontractors, and inherently dangerous activity. These are not applicable under the facts and the appellant being a subcontractor has not been argued. The only aspect of appellant’s position which is close to the decisions in this line of cited cases is one of control by appellee. The control asserted is that appellant was included with the use of the facilities and appellees retained the exclusive ability to cancel or postpone the triathlon. However, no direction occurred. It can only be argued that appellee possessed a general authority to cancel or postpone. In this narrow regard the language of Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, 113 N.E.2d 629 [*7] is pertinent even though, it is a subcontractor case. It holds that active participation by the contractor as opposed to a general supervisory role is required. The facts in the case sub judice indicate that Roger Chapple chose to work outside and felt that no danger existed. (Appellant’s deposition at p. 41-42). Roger Chapple believed that park rules provided that he wait in a vehicle if a weather danger existed, (Appellant’s deposition at p. 40-41) even though Mr. Hart disputes the existence of such a policy in his deposition. As stated before, Roger Chapple had no contact with appellees and nothing in any deposition supports direction by appellees. It is asserted that lightning was present during the race and the affidavit of Mr. Williamson is relied on for this assertion. However, such affidavit also places the lightning to the north of the race event. It is also stated that appellees had no access to weather information. However, Mr. Sheard’s deposition indicated that amateur radio operators were at the race and would provide such data if such need arose. (Sheard deposition at p. 38). The facts which the trial court had available is that Mr. Chapple was employed by and paid by [*8] O.D.N.R. His worker’s compensation claim was filed as such rather than as a loaned employee to appellees. It is accurate, however, that [HN7] an employee may institute a third-party negligence action even though a worker’s compensation claim has been filed. George v. City of Youngstown (1942), 139 Ohio St. 591. The essence of appellant’s claim is that appellee had the authority to postpone or cancel the race and that the race was commenced under dangerous weather conditions. We must disagree with the Assignment of Error and conclude, as the trial court did, that there is insufficient support for the existence of a duty, control of the activities of appellant, nor negligence of appellee.

We therefore affirm the decision of the trial court.

By: Boggins, J. Farmer, P.J. and Edwards, J. concur.


Ohio adopts the requirement that a skier assumes the risk of a collision with another skier.

Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872

In order to recover in a collision on the ski slope the plaintiff must prove the defendant’s actions were reckless or intentional.

This case is between an injured adult and a young snowboarder. The snowboarder and his friends were on the same slope as the adult and his friends. The snowboarders went through the terrain park and upon exiting collided with the plaintiff.

The plaintiff sued for his injuries. The trial court dismissed the complaint based on the assumption of the risk. The plaintiff appealed, and the appellate court reversed the trial court agreeing with the plaintiffs that the Ohio statute created liability on the part of skiers and boarders for any collision.

The Ohio Supreme Court also sent the case back to the trial court but only to determine if the actions of the defendant snowboarder were reckless or intentional. The Supreme Court found that the statute in question, Ohio R.C. 4169.08 or 4169.09 only applied to the ski areas and did not apply to skiers and boarders.

So?

Once the Supreme court held that the statute did not apply, the legal issue was easily decided. The statute in question stated that skiing was a hazardous sport regardless of the safety measures that could be taken.

Under Ohio’s law on sports had held that:

[w]here individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional

In Ohio, primary assumption of the risk means that a “defendant owes no duty whatsoever to the plaintiff.” The assumption is limited to those risks directly associated with the activity. “To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.”

The court then held:

Accordingly, we hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

So Now What?

Ohio joins most other states with ski areas that require more than simple negligence on the part of the defendant for the plaintiff to recover for a collision on the slopes.

Without this standard of care, the risk of the sport would be totally removed, and skiers and boarders would enter a turnstile before they could enter the slope.

All sports have risk and if you are not willing to accept the risk of the sport then you should search for a sport that has risks that are what you can deal with. Checkers or chess are what I would suggest, although you could be hit by an angry knight if your opponent loses their temper.

 

Ski Area: Boston Mills Ski Area

Plaintiffs: Angel Horvath and Eugene Horvath

Defendants: David Ish, Tyler Ish and their cousins

Plaintiff Claims: Plaintiff had acted negligently, carelessly, recklessly, willfully, and wantonly in causing the collision with Defendant

Defendant Defenses: Assumption of the Risk

Holding: Reversed and sent back to determine if the defendant acted intentional or recklessly when he collided with the plaintiff.

 

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Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872

Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872

Horvath Et Al., Appellees, v. Ish Et Al., Appellants.

No. 2011-1089

Supreme Court of Ohio

2012 Ohio 5333; 2012 Ohio LEXIS 2872

April 25, 2012, Submitted

November 20, 2012, Decided

NOTICE:

THIS SLIP OPINION IS SUBJECT TO FORMAL REVISION BEFORE IT IS PUBLISHED IN AN ADVANCE SHEET OF THE OHIO OFFICIAL REPORTS.

PRIOR HISTORY: [**1]

APPEAL from the Court of Appeals for Summit County, No. 25442, 194 Ohio App. 3d 8, 2011 Ohio 2239, 954 N.E.2d 196.

Horvath v. Ish, 194 Ohio App. 3d 8, 2011 Ohio 2239, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907 (Ohio Ct. App., Summit County, 2011)

DISPOSITION: Judgment affirmed.

CORE TERMS: skier, skiing, sport, ski-area, collision, ski, inherent risks, tramway, negligence per se, slope, ski area, passenger, reckless, standard of care, statutory duties, statutory schemes, owe, common law, summary judgment, owed, duty of care, personal-injury, refrain, trail, ordinary care, general assembly, reasonable care, recreational, enumerated, sentence

HEADNOTES

Torts–Sport or recreational activity–Skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

SYLLABUS

OF THE COURT

Skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

COUNSEL: Paul W. Flowers Co. and Paul W. Flowers; and Sennett Fischer, L.L.C., and James A. Sennett, for appellees.

Gallagher Sharp, Timothy J. Fitzgerald, and Jeremy V. Farrell, for appellants.

JUDGES: LUNDBERG STRATTON, J. O’CONNOR, C.J., and O’DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. PFEIFER, J., concurs in part and dissents in part.

OPINION BY: LUNDBERG STRATTON

OPINION

Lundberg Stratton, J.

I. Introduction

[*P1] The issue before the court is what duty or standard of care is owed by one skier to another for purposes of determining tort liability. We hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

[*P2] The court of appeals reversed the trial court’s grant of summary judgment in favor of Ish and remanded the case to the trial court [**2] to determine whether Ish had violated any duties under R.C. 4169.08 or 4169.09 and if he did, whether negligence per se applied. The court of appeals also held that a genuine issue of material fact existed whether Ish was reckless. Horvath v. Ish, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 18 (9th Dist). We agree that there is a genuine issue of material fact, but only whether Ish’s actions were more than negligent, that is, whether his actions were reckless or intentional under the common law. Therefore, we affirm the judgment of the court of appeals, albeit on somewhat different grounds, and remand the case to the trial court for proceedings consistent with our opinion.

II. Facts and Procedural History

[*P3] On March 6, 2007, Angel Horvath and Eugene Horvath (the couple were married after the accident but before the complaint was filed) were skiing at Boston Mills ski resort. David Ish was snowboarding at Boston Mills on that same date, with his brother, Tyler, and their cousins. In the early evening, Angel and Eugene were skiing down Buttermilk Hill. David, Tyler, and their cousins were snowboarding on the same hill. David and his relatives proceeded through a terrain park 1 [**3] and then reentered Buttermilk Hill, where David and Angel collided. Angel was injured in the accident.

1 A terrain park is an area where snowboarders and skiers can do tricks or stunts using various features including jumps, rails, and half-pipes. See R.C. 4169.01(I).

[*P4] The Horvaths filed a complaint against David Ish and his parents, alleging that David had acted negligently, carelessly, recklessly, willfully, and wantonly in causing the collision with Angel.

[*P5] The Ishes filed a motion for summary judgment, arguing that skiers are subject to primary assumption of the risk, which means that a defendant owes no duty of ordinary care to plaintiff. Thus, the Ishes argued that in order to recover, the Horvaths were required to prove that David had acted recklessly or intentionally in causing the collision. The Ishes further asserted that there was no evidence that David’s actions were reckless or intentional.

[*P6] In opposing the Ishes’ motion for summary judgment, the Horvaths argued that R.C. 4169.08(C) imposes specific duties on skiers and that breaching those duties is negligence per se. The trial court granted the Ishes’ motion for summary judgment.

[*P7] In a two-to-one decision, the court of appeals [**4] reversed the judgment of the trial court, stating that “[b]y reading R.C. 4169.08(C) in context with 4169.09, we find that it is evident that the legislature intended that skiers would be liable for injuries caused to others while skiing.” Horvath, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 13. The court of appeals remanded the cause to the trial court to determine whether David Ish’s actions violated any of the responsibilities described in R.C. 4169.08(C) and, if so, whether any such violation invoked the doctrine of negligence per se. Id. at ¶ 14.

[*P8] This case is before this court pursuant to the acceptance of the Ishes’ discretionary appeal. 129 Ohio St. 3d 1503, 2011 Ohio 5358, 955 N.E.2d 386.

III. Analysis

R.C. Chapter 4169

[*P9] We begin our analysis by determining whether R.C. 4169.08 and 4169.09 apply to personal-injury litigation between skiers.

[*P10] When interpreting a statute, a court’s paramount concern is legislative intent. State ex rel. United States Steel Corp. v. Zaleski, 98 Ohio St.3d 395, 2003 Ohio 1630, 786 N.E.2d 39, ¶ 12. “[T]he intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express [**5] plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation ” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. However, “[i]n reviewing a statute, a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body.” State v. Wilson, 77 Ohio St.3d 334, 336, 1997 Ohio 35, 673 N.E.2d 1347 (1997). “A court must examine a statute in its entirety rather than focus on an isolated phrase to determine legislative intent.” Massillon City School Dist. Bd. of Edn. v. Massillon, 104 Ohio St.3d 518, 2004 Ohio 6775, 820 N.E.2d 874, ¶ 37.

[*P11] See also R.C. 1.42. With this guidance in mind, we examine R.C. Chapter 4169 in its entirety to determine whether R.C. 4169.08 and 4169.09 apply to personal-injury litigation between skiers.

[*P12] R.C. 4169.02 established a ski-tramway board that is authorized to create rules under R.C. Chapter 119 relating to “public safety in the construction, maintenance, mechanical operation, and inspection of passenger tramways.” 2 R.C. 4169.03 requires that a tramway must be registered [**6] with the board before it can be operated. R.C. 4169.04 provides that tramways must be inspected. R.C. 4169.05 authorizes the board to hear complaints that the construction, maintenance, or mechanical operation of a tramway endangers public safety. R.C. 4169.06 permits a board member to suspend the operation of a tramway if the board determines that an “immediate danger exists.” R.C. 4169.07 provides that ski-area operators are responsible for any tramway they construct and for the maintenance and operation of a passenger tramway in the operator’s ski area. R.C. 4169.07 also states that passengers have certain enumerated responsibilities regarding their use of tramways. R.C. 4169.99 provides that ski-area operators are subject to a monetary fine if they fail to register their tramway with the board, fail to comply with an order from the board, or fail to comply with a rule issued by the board.

2 A “passenger tramway” is “a device used to transport passengers uphill, whether on skis or other devices or without skis or other devices, or in cars on tracks or suspended in the air, by the use of steel cables, chains, or belts or by ropes, and that is usually supported by trestles or towers [**7] with one or two spans.” R.C. 4169.01(F). Chair lifts, rope tows, and conveyors are passenger tramways. R.C. 4169.01(F)(3), (5), and (7).

[*P13] R.C. 4169.08 insulates ski-area operators from liability for injuries that arise from the inherent risks of skiing and otherwise defines certain responsibilities applicable to ski-area operators and ski-area visitors. R.C. 4169.09 addresses the liability of ski-area operators and ski-area visitors for failing to comply with the responsibilities enumerated in R.C. 4169.08(C).

[*P14] And, finally, R.C. 4169.10 immunizes ski-area operators for damages suffered by a person who was committing a theft at the time the person suffered the loss.

[*P15] It is evident that R.C. Chapter 4169, when viewed in its entirety, addresses certain obligations and limitations on liability pertaining to ski-area operators, as well as the relationship between ski-area operators and ski-area visitors. Consequently, neither R.C. 4169.08 nor 4169.09 apply to personal-injury litigation between skiers.

[*P16] Our conclusion is confirmed when we examine R.C. 4169.08 and 4169.09 in greater detail. R.C. 4169.08(A)(1) provides that “the general assembly recognizes that skiing as a recreational sport [**8] is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing.” R.C. 4169.08(A)(1) then provides a nonexhaustive list of conditions (e.g., slush) or objects (e.g., out-of-bounds barriers) that are inherent risks of skiing. R.C. 4169.08(A)(2) and (3) provide that ski-area operators are not liable for the death of or injury to ski-area visitors that occur in a freestyle terrain or tubing park, subject to certain qualifications. Thus, R.C. 4169.08(A) effectively insulates ski-area operators from personal-injury lawsuits that arise from the inherent risks of skiing. See Stone v. Alpine Valley Ski Area, 135 Ohio App.3d 540, 545, 734 N.E.2d 888 (11th Dist.1999); Otterbacher v. Brandywine Ski Ctr., Inc., 9th Dist. No. 14269, 1990 Ohio App. LEXIS 4582, 1990 WL 72327, *4 (May 23, 1990).

[*P17] R.C. 4169.08(B) and (C) also state that ski-area operators and skiers have certain enumerated responsibilities. For example, ski-area operators must mark certain snowmaking equipment, and skiers must ski within the limits of their [**9] ability. R.C. 4169.08(B)(1) and (C)(1). And R.C. 4169.09 states that a “ski area operator * * * or skier is liable for injury, death, or loss to person or property * * * caused by the operator’s * * * or skier’s failure to fulfill any of the responsibilities required by this chapter.” Therefore, reading R.C. 4169.08(B) and (C) in context with R.C. Chapter 4169, we find that the responsibilities of ski-area operators and ski-area visitors are reciprocal. In other words, the General Assembly intended that ski-area operators owe skiers certain enumerated responsibilities, and in return skiers owe ski-area operators certain enumerated responsibilities. Thus, we hold that R.C. 4169.08(C) does not create a duty of care that applies between skiers.

[*P18] Accordingly, we hold that R.C. Chapter 4169, and in particular, R.C. 4169.08 and 4169.09, do not apply to personal-injury litigation between skiers.

Common Law

[*P19] Having determined that R.C. Chapter 4169 does not apply to personal-injury litigation between skiers, we turn to the common law to determine the proper standard of care applicable between skiers. This court has held that “[w]here individuals engage in recreational or sports activities, they [**10] assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional as defined in [2 Restatement of the Law 2d, Torts, Section 500, and 1 Restatement of the Law 2d, Torts, Section 8A (1965)].” Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus; see also Thompson v. McNeill 53 Ohio St.3d 102, 559 N.E.2d 705. “Obviously, without our stating so, in Marchetti and Thompson we applied ‘primary’ assumption-of-risk principles in limiting the defendant’s liability.” Gentry v. Craycraft, 101 Ohio St.3d 141, 2004 Ohio 379, 802 N.E.2d 1116, ¶ 11. Primary assumption of the risk means that a defendant owes no duty whatsoever to the plaintiff. Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431-432, 1996 Ohio 320, 659 N.E.2d 1232 (1996).

[*P20] Clearly, skiing is a sport or recreational activity. However, “only those risks directly associated with the activity in question are within the scope of primary assumption of risk.” Id. at 432, citing Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 3 Ohio Law Abs. 164, 147 N.E. 86 (1925). “To be covered under the [primary-assumption-of-the-risk] doctrine, the risk [**11] must be one that is so inherent to the sport or activity that it cannot be eliminated.” Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005 Ohio 7009, 844 N.E.2d 408, ¶ 19 (6th Dist), citing Westray v. Imperial Pools & Supplies, Inc., 133 Ohio App. 3d 426, 432, 728 N.E.2d 431 (6th Dist.1999). Where the risk at issue is not inherent, then a negligence standard applies. See Gallagher at 432; see also Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005 Ohio 4744, 2005 WL 2179317 (colliding with a truck on a road is not an inherent risk of riding an all-terrain vehicle); Goffe v. Mowell, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308, 1999 WL 55693 (Feb. 5, 1999) (faulty racetrack design is not an inherent risk of go-cart racing).

[*P21] The Supreme Court of Pennsylvania has recognized that “other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions. As anyone who has ever undertaken the sport of skiing is painfully aware, it is a sport in which it is common for the participants to lose control.” Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 511, 762 A.2d 339 (2000). Other courts have also recognized that collisions [**12] between skiers are an inherent risk in the sport of skiing. See Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790, 793 (Minn.App.2007); Cheong v. Antablin, 16 Cal.4th 1063, 1069, 68 Cal. Rptr. 2d 859, 946 P.2d 817 (1997); Gern v. Basta, 809 N.Y.S.2d 724, 725, 26 A.D.3d 807 (2006). We agree that collisions between skiers are an inherent risk of skiing.

[*P22] Accordingly, we hold that skiers assume the ordinary risks of skiing, which include collisions with other skiers, and cannot recover for an injury unless it can be shown that the other skier’s actions were reckless or intentional.

IV. Conclusion

[*P23] The judgment of the court of appeals is affirmed, albeit on somewhat different grounds. We agree that there is a genuine issue of material fact to be considered, but only with regard to whether Ish’s actions were more than negligent, that is, whether he acted recklessly or intentionally. Because a genuine issue of fact remains, the court of appeals was correct in holding that the trial court erred in granting summary judgment. Therefore, we affirm the appellate court’s judgment, and we remand this cause to the trial court for further proceedings in accordance with this opinion.

Judgment affirmed.

O’Connor, C.J., and [**13] O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.

Pfeifer, J., concurs in part and dissents in part.

CONCUR BY: PFEIFER (In Part)

DISSENT BY: PFEIFER (In Part)

DISSENT

Pfeifer, J., concurring in part and dissenting in part.

[*P24] I concur in the majority’s judgment affirming the appellate court’s decision to reverse the trial court’s granting of summary judgment. However, I do not agree with the majority’s baffling interpretation of R.C. 4169.08 and 4169.09. I also do not agree that there is no common-law duty of care between skiers. If legal issues were ski slopes, the one raised in this case would be a bunny hill. Somehow, the majority has careened down the hill and wound up smashed through the wall of the lodge.

A Skier’s Statutory Duties

[*P25] The fact that R.C. Chapter 4169 tends to limit the liability of ski-area operators from liability for injuries suffered by skiers does not mean that it leaves skiers without protection from other skiers. It makes perfect sense that a piece of legislation that shields ski-area operators from liability would also set forth a duty of care between skiers that would leave skiers, not ski facilities, liable for injuries they cause other skiers. Other states-Colorado (Colo.Rev.Stat.Ann. 33-44-109), [**14] Idaho (Idaho Code 6-1106), Maine (32 Maine Rev.Stat.Ann. 15217), Michigan (Mich.Comp.Laws Ann. 408.344), New Mexico (N.M.Stat.Ann. 24-15-10), and West Virginia (W.Va. Code Ann. 20-3A-8), for instance, manage to achieve that balance in their ski-safety statutory schemes. That balance is part of the prevailing view in states with ski statutes:

In a skier collision case, the laws differ from state to state on the duty of care one skier owes to another. The jurisdictions can be divided into two classifications. The prevailing view holds skiers to a standard of reasonable care to avoid injury to another skier. The standard of care is usually founded on a statutory principle obliging a skier to exercise reasonable care and to yield the right of way to the skier below. One skier does not assume the risk of another’s negligence; a skier collision is not a risk “inherent” in the sport as skiing is not a contact sport.

46 American Jurisprudence Proof of Facts 3d 1, Liability of Skier for Collision with Another Skier, Section 2 (1998).

[*P26] The duties between skiers, understood since Norwegians first strapped planks to their feet 4,500 years ago–ski under control and do not run into another skier, among [**15] others–are now part of Ohio statutory law. Those duties are set forth in R.C. 4169.08:

(C) A skier shall have the following responsibilities:

(1) To know the range of the skier’s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier’s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;

(2) To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall.

[*P27] Contrary to the majority’s assertion, it is possible for the General Assembly in one statutory chapter to protect ski-area operators from liability while at the same time providing some protection for skiers. R.C. 4169.08(C)(2) specifically states that skiers have responsibilities to avoid causing injuries to or colliding with another person, but the majority states that [**16] those responsibilities are owed to ski-area operators, not other persons. R.C. 4169.08(C)(3) requires a person who is involved in a ski accident that injures another to identify himself before leaving the scene, presumably so that the person causing the collision can live up to his responsibilities.

[*P28] But it is R.C. 4169.09 that makes it crystal clear that a skier is liable for injuries he causes to other skiers by failing to meet the duties set forth in R.C. 4169.08(C): “A * * * skier is liable for injury, death, or loss to person or property caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter.” How can the majority ignore this simple statutory statement? How can this mean anything other than that a skier is liable for injuries suffered by another person as a result of the skier’s failure to meet his statutory responsibilities? Why does this sentence appear in the statute if it does not establish responsibilities between skiers?

[*P29] If R.C. 4169.08 sets forth only duties between skiers and ski-area operators, the second sentence in R.C. 4169.09 would be sufficient to shield the ski area from liability. The second sentence of R.C. 4169.09 makes [**17] it clear that the ski-area operator is not liable for a skier’s injuries caused by another skier: “A ski area operator * * * is not liable for injury * * * caused by another’s failure to fulfill any of the responsibilities required of another by this chapter.” In blunt terms, an injured person’s only recourse is against the person who caused the injury.

[*P30] Finally, R.C. 4169.09 states that “[a] * * * skier is not entitled to recover for injury * * * caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter.” That is, if a skier’s injuries are caused by his own failure to meet his statutory responsibilities, he has recourse against no one.

[*P31] Read as a whole, R.C. 4169.09 states that if a skier violates his responsibilities, he is liable for injuries caused to another, that the ski-area operator is not liable for those injuries, and that a skier who causes his own injuries is not entitled to recover from another, including a ski-area operator, for his injuries. The statute provides protection from liability for ski-area operators from something they cannot control–the behavior of individual skiers–while at the same time making skiers responsible for [**18] injuries they cause for failing to abide by the basic rules of skiing. Only this interpretation provides meaning to all three of the sentences that make up R.C. 4169.09.

Liability for Breach of Skier’s Statutory Duty in Michigan

[*P32] In Rusnak v. Walker, 273 Mich.App. 299, 729 N.W.2d 542 (2006), the court–a special panel called pursuant to Michigan law to resolve an appellate conflict–addressed whether a skier could sue another skier pursuant to Michigan’s Ski Area Safety Act (“SASA”). The statutory scheme in Michigan is substantially similar to Ohio’s. The Michigan law places duties on skiers to ski safely and not injure other skiers, Mich.Comp.Laws Ann. 408.341 and 408.342, and assigns liability for injuries caused by skiers who violate those duties. (“A skier * * * who violates this act * * * shall be liable for that portion of the loss or damage resulting from that violation”). Mich.Comp.Laws Ann. 408.344.

[*P33] But Michigan’s statutory scheme contains an important provision missing from Ohio’s: it lists “collisions * * * with other skiers” as one of the inherent risks of skiing. Mich.Comp.Laws Ann. 408.342. Such a provision is absent from Ohio’s statutory declaration of the inherent risks [**19] of skiing. R.C. 4169.08(A).

[*P34] Even so, the Michigan court held that despite a statutory recognition that colliding with other skiers is an inherent danger of skiing, a skier could recover for injuries caused by another skier’s failure to live up to the responsibilities set forth in the SASA:

As we have already noted, we hold that the SASA assumption-of-risk provision contains clear and unambiguous language, providing in no uncertain terms that a collision between skiers is an obvious and necessary danger that inheres in the sport of skiing. However, in those cases in which a plaintiff can establish that a defendant violated one of the specific duties imposed by the SASA, the plaintiff can still recover damages to the extent that the defendant’s violations caused the plaintiffs injuries. To state it differently, it is possible, and therefore skiers assume the risk, that a collision can occur between skiers when neither skier is violating his or her duties under the SASA. That is, it is an obvious and necessary danger of skiing that sometimes accidents simply happen. But, again, if it can be shown that the collision resulted from a violation of the act, then the violator is to be held liable [**20] for the damage caused, as provided under [Mich.Comp.Laws Ann.] 408.344.

Rusnak, 273 Mich.App. at 305, 729 N.W.2d 542.

[*P35] The court noted in Rusnak that if it were to hold that there is no liability for injuries to a skier caused by another skier’s failure to meet his or her statutory duties, “the duties and liabilities placed on individual skiers would have no meaning.” Id. at 309. But the majority does in this case what Rusnak warns against, finding that the statutory provision–“A * * * skier is liable for injury, death, or loss to person or property caused by the * * * skier’s failure to fulfill any of the responsibilities required by this chapter”–is meaningless.

Ordinary Care

[*P36] In its remand to the trial court, the court of appeals suggested that the trial court should consider whether David Ish violated any of the duties outlined in R.C. 4169.08(C) and, if so, whether the violation would constitute negligence per se. Horvath v. Ish, 194 Ohio App.3d 8, 2011 Ohio 2239, 954 N.E.2d 196, ¶ 14. Violation of a statutory duty is not necessarily negligence per se, and it is not in this case.

[*P37] To successfully prosecute a claim for negligence, a plaintiff must prove that the defendant owed the plaintiff [**21] a duty, that the defendant breached that duty, and that the breach of the duty proximately caused the plaintiffs injury. Wellman v. E. Ohio Gas Co., 160 Ohio St. 103, 108-109, 113 N.E.2d 629 (1953). “[A] duty may be established by common law, legislative enactment, or by the particular facts and circumstances of the case.” Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565, 1998 Ohio 184, 697 N.E.2d 198 (1998). In certain instances, the failure to perform a statutory duty is negligence per se, meaning that “the plaintiff has conclusively established that the defendant breached the duty that he or she owed to the plaintiff.” Id.

[*P38] But negligence per se does not follow from every violation of a statutory duty; violation of a statute may simply constitute evidence of negligence. “[T]he distinction between the two depends upon the degree of specificity with which the particular duty is stated in the statute.” Sikora v. Wenzel, 88 Ohio St.3d 493, 496, 2000 Ohio 406, 727 N.E.2d 1277 (2000). As this court put it in Swoboda v. Brown, 129 Ohio St. 512, 196 N.E. 274 (1935), paragraph four of the syllabus:

The distinction between negligence and “negligence per se” is the means and method of ascertainment. The former must [**22] be found by the jury from the facts, the conditions, and circumstances disclosed by the evidence; the latter is a violation of a specific requirement of law or ordinance, the only fact for determination by the jury being the commission or omission of the specific act inhibited or required.

That is, when a statute requires performance of specific acts, a jury need only determine whether the specific acts were performed, and if it determines that they were not performed, the defendant is negligent per se; but when the statute instead sets forth general rules of conduct that must be followed, a jury must use its judgment in evaluating the circumstances to determine whether the defendant was negligent. In the latter instance, the typical duty of care for negligence applies:

Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application [**23] and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case.

Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954), paragraph one of the syllabus.

[*P39] In this case, the defendant may have violated several of the responsibilities of R.C. 4169.08(C)(1) and (2): failing to ski “within the limits of [his] ability,” failing to “maintain control of [his] speed and course,” failing to “refrain from acting in a manner that may cause or contribute to the injury of another person,” and failing “to refrain from causing collision with any person or object while skiing.” None of the defendant’s violations could be established from the determination of one fact by a trier of fact; the trier of fact would need to consider “the facts, the conditions, and circumstances disclosed by the evidence.” Swoboda at paragraph four of the syllabus. The responsibilities set forth in R.C. 4169.08(C)(1) and (2) are akin to the “rule of conduct” discussed in Eisenhuth; in those instances, negligence per se does not apply, and liability is “determined by the application of the test of due care as exercised by a reasonably [**24] prudent person under the circumstances of the case.” Eisenhuth at paragraph three of the syllabus.

[*P40] Thus, the General Assembly has set forth a statutory duty of ordinary care for skiers. Ingrained in that ordinary-care standard is the recognition that skiers are on skis, are on a slippery surface, and are engaged in a somewhat dangerous activity. R.C. 4169.08(C)(1) and (2) do not require expert ability by all skiers; they require common sense and an appreciation of very basic safety rules of skiing. When a skier fails to use ordinary care to meet the responsibilities set forth in R.C. 4169.08(C), he is liable for any injuries caused by his failure to live up to those rules of conduct, pursuant to R.C. 4169.09.

Common Law

[*P41] As stated above, I dissent from the majority’s holding that R.C. 4169.09 does not recognize a cause of action between skiers. I also dissent from the majority’s holding that a skier must prove that another skier was reckless to successfully assert a common-law claim against another skier. The crux of the majority’s holding regarding the common law is that skiers owe no duty to each other because collisions between skiers are one of the inherent risks of skiing. I disagree [**25] and instead would follow the reasoned approach adopted by the Supreme Court of Connecticut in Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813 (2004), in which the court held that “the standard of care implicated in the context of the sport of skiing is that of a duty to refrain from unreasonable conduct and that liability may attach for negligent behavior.” Id. at 698.

[*P42] Like many other states, Connecticut has a ski-safety statutory scheme; such statutory schemes are like snowflakes-no two are exactly alike. See, e.g., Frakt & Rankin, Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability, 28 Idaho L.Rev. 227, 230 (1992), fn.12. The Connecticut statute at issue in Jagger did not contain the declaration found in the Ohio and Michigan statutes that a skier is liable to another skier for injuries caused by the skier’s failure to meet his or her statutory responsibilities. The Connecticut statute did state that collisions with other skiers are an inherent risk of skiing, Conn.Gen.Stat. 29-212; the court in Jagger found that that provision did not apply to lawsuits between skiers. Jagger, 269 Conn. at 697, 849 A.2d 813, fn. 21.

[*P43] [**26] In Jagger, the court applied a four-part test “to evaluate the various policy considerations relevant to the determination of the extent of the defendant’s duty.” Id. at 700. The court had developed the test in Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), to determine the standard of care applicable to participants in a soccer game. The elements of the test include

“(1) the normal expectations of participants in the sport in which the plaintiff and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.”

Jagger at 700, quoting Jaworski at 407.

[*P44] As for the first factor, the normal expectations of the participants in the sport, I agree with the Jagger court that although ski collisions can be frequent, skiers expect their fellow skiers to abide by the commonly accepted, fundamental rules of skiing:

While collisions with other skiers are fairly common, frequency of occurrence is not the ultimate touchstone in evaluating the expectations of participants in the sport. [**27] Rather, we perceive the expectations of skiers to be that fellow participants in the sport will conduct themselves in a manner befitting the dangerous potentialities attendant with the sport. Thus, skiers will expect that other skiers will follow the rules and generally accepted practices of the sport of skiing. Indeed, our statutory scheme regarding ski liability confirms that skiers should possess such expectations as they take part in the sport. * * * The normal expectations of skiers will be that fellow skiers will ski in a reasonable and appropriate manner.

Id. at 701-702.

[*P45] Like Connecticut’s, our state’s statutory scheme sets forth responsibilities for skiers that should create in the minds of other skiers the expectation that collisions are not an acceptable part of the sport.

[*P46] Further, skiers are reminded by signs throughout ski areas of appropriate behavior. The Skier’s Responsibility Code, promulgated by the National Ski Areas Association, reminds skiers of common safety rules:

Always stay in control, and be able to stop or avoid other people or objects.

People ahead of you have the right of way. It is your responsibility to avoid them.

You must not stop where you obstruct a trail [**28] or are not visible from above.

Whenever starting downhill or merging into a trail, look uphill and yield to others.

Always use devices to help prevent runaway equipment.

Observe all posted signs and warnings. Keep off closed trails and out of closed areas.

Prior to using any lift, you must have the knowledge and ability to load, ride and unload safely.

http://www.nsaa.org/nsaa/safety/responsibilitycode (accessed Nov. 1, 2012)

[*P47] Unlike in sports like football, basketball, or soccer, in which contact with other participants is part of the very nature of the sport, contact with another individual in skiing is outside the nature of the sport; any contact at all between skiers transforms skiing into an unacceptably dangerous proposition. The expectation among skiers is that their fellow skiers appreciate that safety is essential for everyone’s enjoyment of the sport.

[*P48] As for the second factor-balancing the encouragement of participation in the sport against concern for the safety of participants-I agree with the court in Jagger that encouraging responsible behavior by skiers tends to encourage participation:

As for the second Jaworski factor, we conclude that the balancing of the public policy of [**29] the encouragement of vigorous participation in the sport of skiing and the protection of the safety of its participants weighs in favor of a negligence standard. We believe that requiring skiers to participate in the reasonable manner prescribed by the rules of the sport actually will promote participation in the sport of skiing. Should the threshold for liability be placed at a level that only reckless or intentional misconduct can serve as grounds for liability, many of the potential harms caused by coparticipants in the sport will go unremedied and, therefore, dissuade potential participants from taking part in the sport. Additionally, a standard of reasonableness also operates to protect the safety of participants in the sport of skiing.

Jagger, 269 Conn. at 702-703, 849 A.2d 813.

[*P49] I agree that there is a minimal price to pay, if any, for increased safety on ski slopes. That skiers could feel safer when skiing would tend to inure to the benefit of participation rates. Colorado, whose economy is much more dependent on skiing than Ohio’s, statutorily recognizes the right of skiers to recover damages from other skiers who cause injuries. Colo.Rev.Stat.Ann. 33-44-109 (“a skier is not [**30] precluded under this article from suing another skier for any injury to person or property resulting from such other skier’s acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another”).

[*P50] The third factor, the potential increase in litigation, is a minimal factor in the analysis. Contact with other skiers is not a regular part of skiing; collisions are rare enough that our courts would not be clogged by claims. As the court recognized in Jagger, this situation might be different in other sports:

For instance, in Jaworski we recognized quite correctly that the imposition of a negligence standard in contact sports would result undesirably in the potentiality of a civil action arising out of any foul, any hit batsman, or any clipping penalty. The same potential for undesirable numbers of civil actions is not present in the context of skiing. As discussed previously, abiding by the rules of the sport of skiing will eliminate the overwhelming majority of contact between skiers.

Id. at 703.

[*P51] The fourth element of the Jaworski test is [**31] a consideration of the law in other jurisdictions. We have the benefit of relying on the court’s well-reasoned decision in Jagger. Jagger relied on Novak v. Virene, 224 Ill.App.3d 317, 321, 586 N.E.2d 578, 166 Ill. Dec. 620 (1991), in which the court stated:

As in the individual sports of running and bicycling, there is the possibility of collisions in downhill skiing. But by one’s participation in the sport, one does not voluntarily submit to bodily contact with other skiers, and such contact is not inevitable. Therefore, the concern that the possibility of a negligence lawsuit would damper vigorous participation is inapplicable to downhill skiing. There is no reason to expand the limited contact sports exception to exempt downhill skiers from negligence liability if they negligently collide with other skiers. Many activities in life are fraught with danger, and absent a specific assumption of risk, one may obtain damages when injured by another’s negligence. Defendant’s conduct should be governed by ordinary negligence standards.

Id. at 321.

[*P52] In a Utah case, Ricci v. Schoultz, 963 P.2d 784, 786 (Utah App.1998), the court held that “a skier does have a duty to other skiers to ski reasonably and within [**32] control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty.” Even though there was no negligence in the Ricci case, the case did hold that negligence was the proper legal standard to apply.

[*P53] Interpreting Vermont law in Dillworth v. Gambardella, 970 F.2d 1113, 1123 (2d Cir.1992), the court held that a skier can be liable to another skier for injuries caused by the skier’s negligence, but made clear that not every collision is caused by negligence:

The law is clear. “[T]he standard of conduct needed to discharge a duty of care in any given situation [is] measured in terms of the avoidance of reasonably foreseeable risks to the person to whom such duty is owed.” Green v. Sherburne Corp., 137 Vt. 310, 403 A.2d 278, 280 (1979). Like all others, skiers owe that degree of care an ordinary prudent person would exercise under like or similar circumstances. See La Faso v. La Faso, 126 Vt. 90, 223 A.2d 814, 817-18 (1966). One skier is not the insurer of another skier’s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. See, e.g., LaVine v. Clear Creek Skiing Corp., 557 F.2d 730, 734-35 (10th Cir.1977).

Thus, [**33] a jury might conclude that skiers who lose control even while exercising due care-that is, have breached no duty owed to other skiers-may pose a danger which is inherent, obvious and necessary to participants in the sport of skiing. * * * “If the fall is due to no breach of duty on the part of the defendant, its risk is assumed in the primary sense, and there can be no recovery.” Sunday [v. Stratton Corp], [136 Vt. 293, 302], 390 A.2d 398 [(1978)]. Where the facts on assumption and breach of duty are in dispute and more than one reasonable inference may be drawn from them, the question of negligence is for the jury. See La Faso, 223 A.2d at 819.

Id. at 1122. Although a skier does assume some risks of skiing, as for the behavior of other skiers, “the only risks [a] plaintiff * * * could be said to have assumed are those which defendant in the exercise of reasonable care under the circumstances could have avoided.” Id. at 1123.

[*P54] Further, in Peterson v. Chichester, 157 Vt. 548, 600 A.2d 1326 (1991), the Vermont Supreme Court upheld a jury verdict in a collision-between-skiers case in which the negligence of the defendant and comparative negligence of the plaintiff were at issue. Similarly, [**34] in Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991), the Supreme Court of Idaho decided a case involving the negligence of a skier in a collision between skiers.

[*P55] Applying the four Jaworski factors to the sport of skiing leads to the conclusion reached by the court in Jagger: “the proper standard of care owed by coparticipants in the sport of skiing is that of reasonable care.” Jagger, 269 Conn. at 704, 849 A.2d 813. Even assuming that the majority correctly found that no statutory duty exists between skiers in Ohio, it should have found a common-law duty of reasonable care between skiers, as courts in Connecticut, Illinois, Utah, Vermont, and Idaho have done.

Recklessness

[*P56] I dissent from the majority’s holdings that neither Ohio’s ski statutes nor the common law creates a duty between skiers. An accident like the one in this case is not one that a person would assume would take place when undertaking the pleasant family activity of skiing. Children, seniors, beginners, and handicapped people use ski slopes; to require, as the majority does, no greater standard of care than to refrain from recklessness will make Ohio’s ski areas more dangerous for everyone. “[Contact between skiers [**35] is neither a part of the sport that skiers agree to confront by their participation, nor is it an inevitable byproduct of the sport of skiing.” Jagger at 704.

[*P57] However, the majority admits that the defendant is liable for the plaintiffs injuries if he was acting recklessly on the slopes on the day in question. I agree that if recklessness is the standard of care in this case that there is a genuine issue of fact for a trier of fact to determine. There is testimony establishing that the defendant was uphill of Angel Horvath and merging onto the slope in question, looking backward, and making a sudden change of course when he struck her. Evidence supports the plaintiffs’ contention that the defendant violated numerous statutory responsibilities contained in R.C. 4169.08(C), a statute that sets forth fundamental safety rules for skiers. Those rules are basic and essential for skier safety. The flouting of those rules should be considered by a trier of fact in determining recklessness.

Conclusion

[*P58] The trial judge erred by granting summary judgment in a case that presents factual issues for trial. The case has now snowballed into a case that eviscerates a statutory scheme that has well served [**36] the sport and industry of skiing for a long time. The General Assembly ensured that we owe a greater duty, a duty of ordinary care, to each other. The majority has removed that duty and today has made skiing in Ohio appreciably more dangerous. I trust that Ohio’s skiers will not look to this court, but instead to their common sense, their peers, and information provided by ski areas to determine what is acceptable behavior on Ohio’s ski slopes.

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USA Cycling to roll out the USA Cycling Professional Cyclo-cross Calendar

USA Cycling ready to roll out the USA Cycling Professional Cyclo-cross Calendar

Colorado Springs, Colo. (September 6, 2012) –The United States will host the most cyclo-cross races in the world during the 2012-13 season. The events inscripted by the UCI will be part of the 2012-13 USA Cycling Professional Cyclo-cross Calendar (USACPCXC).In the 2011-12 season, Jeremy Powers (Easthampton, Mass./Team Rapha-Focus), Laura van Gilder (Cresco, Pa./C3 p/b Mellow Mushroom) topped the final pro men’s and women’s standings, respectively. Andrew Dillman (Fairdale, Ky./Red Zone Cycling-Bob’s Red Mill) topped the juniors men’s standings. The points distributionin 2012-13 will be the same as the 2011-12 season.

The 51-event calendar begins with Rohrbach’s Ellison Park Cyclocross in Rochester, N.Y. on Sept. 8 and continues until Cincinnati Kings International in Cincinnati, Ohio, on Jan. 26. The calendar includes nine events inscripted by the UCI as category 1 events. The first of the category 1 events is CrossVegas After Dark in Las Vegas, Nev., on Sept. 19. The remaining category 1 events are: USGP of Cyclocross-Planet Bike Cup (Sept. 22) in Sun Prairie, Wisc., NEPCX Gran Prix of Gloucester 1 (Sept. 29) in Gloucester, Mass., NEPCX Providence Cyclo-cross Festival (Oct. 6) in Providence, R.I., USGP of Cyclocross-New Belgium Cup (Oct. 13) in Fort Collins, Colo., Cincy3 Harbin Park International (Nov. 4) in Cincinnati, Ohio, USGP of Cyclocross-Derby City Cup (Nov. 10) in Louisville, Ky., Jingle Cross Rock (Nov. 18) in Iowa City, Iowa and USGP of Cyclocross-Deschutes Cup (Dec. 8) in Bend, Ore.

The calendar also includes 10 events which will score the juniors men separately. Those 10 events are: Cincy3 Lionhearts International-Cross after Dark in Cincinnati, Ohio on Nov. 3, Cincy3 Harbin Park International in Cincinnati, Ohio on Nov. 4, USGP of Cyclocross-Derby City Cup in Louisville, Ky., on Nov. 10-11, CXLA Weekend-Cross after Dark on Dec. 1-2 in Los Angeles, USGP of Cyclocross-Deschutes Cup on Dec. 8-9 in Bend, Ore., the 2013 USA Cycling Cyclo-cross National Championships in Madison, Wisc., and the Cincinnati Kings International in Cincinnati, Ohio on Jan. 26.

For a complete look at the USACPCXC, click here.

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Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.

Wolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827

More support that the original Zivich decision did not just apply to non-profits or charities.

Many decisions from other states have dismissed Ohio’s court decision upholding the right of a parent to sign away a minor’s right to sue. Several other state courts have dismissed the Ohio decision Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998), decision as “non-persuasive.” These courts have identified the decision as applying only to charities or non-profits to keep insurance costs down.

This decision from an Ohio Appellate court dismisses those ideas and holds a release used by a commercial enterprise signed by a parent on behalf of minor stops the lawsuit by the minor.

This case involved an accident at a cheerleading competition. (Yes, it is outside the normal range of cases I write about; however, it is valuable to the outdoor recreation community.) The plaintiff was 13 years of age and part of a cheerleading team sponsored by a commercial business. This team was not part of a public or private school.

The competition was put on by the defendant. To enter the competition the mother of the plaintiff had to sign a Medical Treatment Authorization and Release of Liability. The language of the release part of the form is included in the decision, but that language barely makes the minimum language necessary to be a release.

The plaintiff was a “base” who supported and lifted other cheerleaders into the air. In this case, the “flyer” fell landing on the plaintiff injuring her. She suffered a T8 spinal compression fracture.

The plaintiff sued based on the:

…wreckless, wanton and complete disregard for the safety of Plaintiff, Defendant failed to provide the proper spotters and coaching, as a result Plaintiff was caused to sustain severe and permanent injuries to her person when her team members fell onto her person.

She claimed the failure of the spotters to be in a proper position was more than negligence it “constituted reckless and wanton disregard for Lindsay’s [the plaintiff] safety.” These allegations would take the issue out of simple negligence, which can be protected by a release, to an issue that must be decided by a jury.

The defendants argued the release and the doctrine of primary assumption of the risk. The trial court granted the defendants motion for summary judgment holding both the release and the doctrine of primary assumption of the risk barred the plaintiff’s claims.

So?

In Ohio, the doctrine of Primary Assumption of the risk is occurs when a plaintiff:

…voluntarily engaged in a recreational activity assumes the inherent risks of that activity and cannot recover for injuries sustained while engaging in that activity unless the defendant acted recklessly or intentionally in causing the injuries

As long as the rules of the game or sport are being followed or someone is acting recklessly or intentionally, a player cannot recover from their injuries.

Negligence is synonymous with:

…with heedlessness, thoughtlessness, inattention, inadvertence, and oversight, and conveys the idea of inadvertence as distinguished from premeditated or formed intention, or a conscious purpose to do a wrong act or to omit the performance of a duty.

Negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.

Contrast negligence with Willful, wanton or reckless conduct which is defined by Ohio’s law as:

….a failure to exercise any care whatsoever by one who owes a duty of care to another, and the failure must occur under circumstances where there is a great probability that harm will result from the lack of care

Evidence of willful, wanton or reckless conduct can be shown by acts of “…stubbornness, obstinacy, or persistency in opposing that which is right, reasonable, correct, or generally accepted as a course to follow in protecting the safety of others.”

Reckless disregard for the safety of another occurs if one does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

The court characterized the cheerleading competition as a sporting event. As such, unreasonable risk by participants at a sporting event must take into account the way the particular game is played, including the rules, customs and foreseeable conduct of the participants.

To continue her claim based on the greater than simple negligence allegations, the complaint and motions of the plaintiff must assert acts or omissions on the part of the defendant that prove the willful, wanton or reckless conduct or misconduct. The court could not find anything in the pleadings or the motions that supported those claims.

These facts do not demonstrate a disposition to perversity on the part of the spotters or a failure to exercise any care whatsoever. Therefore, an issue as to whether the spotters’ conduct was wanton does not exist.

The court upheld the lower court decision. In doing so the court did make one statement, which was quite interesting.

It is unfortunate that Lindsay was seriously injured at the competition, and we realize that, because of the accident, she has suffered a great deal. However, there was no evidence of recklessness or wantonness that renders AmeriCheer [Defendant] liable for damages.

So Now What?

This decision upholds the prior decision in Zivich. Decisions that I’ve written about where Zivich was dismissed will not be changed, but those decisions will have a lesser effect in the future. See Delaware holds that mothers signature on contract forces change of venue for minors claims and Alabama follows the majority of states and does not allow a parent to sign away a minor’s right to sue, (Zivich only applies to charities), Texas follows majority with appellate court decision holding a parent cannot sign away a minor’s right to sue and Iowa does not allow a parent to sign away a minor’s right to sue (Zivich only applies to protect volunteers).

This case also supports the use of a release in Ohio to stop a lawsuit by a minor when a minor is injured and the release is signed by a parent or guardian.

What do you think? Leave a comment.

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Wolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827

Wolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827

Lindsay M. Wolfe, Plaintiff-Appellant, v. AmeriCheer, Inc., Defendant-Appellee.

No. 11AP-550

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2012 Ohio 941; 2012 Ohio App. LEXIS 827

March 8, 2012, Rendered

PRIOR HISTORY: [**1]

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 10CVH-05-7045).

DISPOSITION: Judgment affirmed.

COUNSEL: Plevin & Gallucci Co., LPA, Michael D. Shroge, and Frank L. Gallucci, III, for appellant.

Reminger Co., L.P.A., Martin T. Galvin and Rafael P. McLaughlin, for appellee.

JUDGES: TYACK, J. BROWN, P.J., and DORRIAN, J., concur.

OPINION BY: TYACK

OPINION

(REGULAR CALENDAR)

DECISION

TYACK, J.

[*P1] Plaintiff-appellant, Lindsay M. Wolfe, was seriously injured while competing in a cheerleading event. She appeals from the May 24, 2011 decision and entry granting defendant-appellee AmeriCheer, Inc.’s (“AmeriCheer”) motion for summary judgment. For the reasons that follow, we affirm.

[*P2] Lindsay M. Wolfe, then 13 years old, participated in a cheerleading competition on February 2, 2003 at the Columbus Convention Center. Americheer sponsored the competition known as the 2003 Winter Championship. As a prerequisite to Lindsay being allowed to participate in the competition, Lindsay’s mother, Barbara Wolfe, signed a “Medical Treatment Authorization and Release of Liability” before the competition. The release contained, in pertinent part, the following language:

I further release AmeriCheer and its representatives from any claims for injury [**2] or illness that may be sustained as a result of their participation in this event. I acknowledge and understand that in participating in this event, there is the possibility they may sustain physical illness or injury in connection with his or her participation. I further understand and acknowledge that my daughter [or] [son] and I assume the full risk of physical injury by their participation and I further release the event location, AmeriCheer, Inc., as well as it’s [sic] representatives, from any claims for personal injury, [or] illness that they may sustain during camp.

[*P3] Lindsay was a member of the Xtreme Team Athletics All-Star Cheer & Dance, a private all-star cheerleading team. Xtreme team members trained and competed in a style of cheerleading characterized by gymnastic-type stunts. At the time of her injury, Lindsay was acting as a “base” who, along with others, supported and lifted another cheerleader, the “flyer,” into the air. At a point in the routine where Lindsay had assisted in raising the flyer, the flyer slipped or lost her balance and fell, landing on Lindsay. Lindsay sustained a T8 spinal compression fracture as a result of the fall.

[*P4] Teams use spotters when cheerleaders [**3] are learning new skills, practicing, or performing stunts in which one or more cheerleaders are elevated above the floor. The spotters are there to catch a cheerleader in case of a fall. AmeriCheer provided the spotters used for the 2003 Winter Championship. In her complaint, Lindsay alleged that:

[D]ue to the wreckless [sic], wanton and complete disregard for the safety of Plaintiff, Defendant failed to provide the proper spotters and coaching, as a result Plaintiff was caused to sustain severe and permanent injuries to her person when her team members fell onto her person.

(Complaint, at ¶ 3.)

[*P5] AmeriCheer moved for summary judgment on the grounds that the release signed by Lindsay’s mother barred any negligence claims. Additionally, AmeriCheer argued that the doctrine of primary assumption of risk also acted to bar Lindsay’s claims.

[*P6] Lindsay responded that the spotters’ failure to be properly positioned and failure to move in when the team started the stunt constituted reckless and wanton disregard for Lindsay’s safety, not mere negligence. Therefore, she argued there existed a genuine issue of material fact as to whether the conduct of the spotters was wanton or reckless.

[*P7] The trial [**4] court found that the release signed by Barbara Wolfe on behalf of her daughter was valid, and therefore, the trial court concluded that Lindsay was precluded, by operation of the lease, from bringing any negligence claims against AmeriCheer related to her injuries. The court also agreed with AmeriCheer that the doctrine of primary assumption of risk precluded the negligence claims. Lindsay has not challenged those issues on appeal.

[*P8] The trial court then considered whether there existed a genuine issue of material fact concerning the issue of willful, wanton, or reckless conduct. The court found that Lindsay had failed to present evidence that satisfied the threshold required for a showing of wanton or reckless conduct.

[*P9] On appeal, Lindsay assigns the following as error:

I. The trial court erred in granting Defendant’s Motion for Summary Judgment because material facts of willful, wanton or reckless conduct exist, placing that issue in dispute for a jury to determine.

II. The trial court erred in concluding that Plaintiff set forth no facts other than those alleged by Plaintiff herself. The trial court’s own Order citing statements garnered from the deposition testimony of Defendant’s President [**5] and CEO clearly establishe a question of fact for which a jury is to determine.

[*P10] At the outset, we address the issue of the deposition testimony of Elizabeth Rossetti, the president and CEO of AmeriCheer. Ms. Rossetti’s deposition was not filed with the court of common pleas. AmeriCheer attached a few pages of excerpts from Ms. Rossetti’s deposition as an exhibit to its reply in support of summary judgment, but the deposition itself was never filed with the court of common pleas. Only the following three depositions were made part of the record: 1) Lindsay Wolfe’s deposition taken on Friday, October 10, 2008; 2) Barbara Wolfe’s deposition taken on December 9, 2008; and 3) Lindsay Wolfe’s second deposition taken on March 15, 2011. A copy of Ms. Rossetti’s entire deposition was attached as part of AmeriCheer’s appendix to its appellate brief. However, since the complete deposition was not made part of the record, we will not consider the entirety of Ms. Rossetti’s deposition.

[*P11] Nevertheless, both parties and the trial court relied on the excerpts of Ms. Rossetti’s deposition without objection in the summary judgment proceedings. The trial court could and did rely on those representations [**6] when it quoted some of Ms. Rossetti’s testimony. Sicard v. Univ. of Dayton, 104 Ohio App.3d 27, 30, 660 N.E.2d 1241 (2d Dist.1995), fn. 1. [HN1] “A trial court, however, can consider non-complying documents in adjudicating a summary judgment motion when no objection to the documents is raised.” New Falls Corp. v. Russell-Seitz, 10th Dist. No. 08AP-397, 2008 Ohio 6514, ¶ 12. “Absent an objection, a trial court has the discretion to consider unauthenticated documents when rendering summary judgment.” Columbus v. Bahgat, 10th Dist. No 10AP-943, 2011 Ohio 3315, ¶ 16. Accordingly, we shall consider the deposition excerpts as well since both parties argue that Ms. Rossetti’s deposition supports their respective arguments.

[*P12] Lindsay’s assignments of error challenge the trial court’s ruling on AmeriCheer’s motion for summary judgment. We [HN2] review the trial court’s grant of summary judgment de novo. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41, 654 N.E.2d 1327 (9th Dist.1995). [HN3] Summary judgment is proper only when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds could come to but one conclusion, [**7] and that conclusion is adverse to the party against whom the motion for summary judgment is made, when the evidence is construed in a light most favorable to the non-moving party. Civ.R 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St. 3d 181, 1997 Ohio 221, 677 N.E.2d 343 (1997).

[*P13] [HN4] Under summary judgment motion practice, the moving party bears an initial burden to inform the trial court of the basis for its motion and to point to portions of the record that indicate that there are no genuine issues of material fact on a material element of the non-moving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 1996 Ohio 107, 662 N.E.2d 264 (1996). Once the moving party has met its initial burden, the non-moving party must produce competent evidence establishing the existence of a genuine issue for trial. Id. Additionally, a moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory assertions that the non-moving party has no evidence to prove its case. Id. Rather, the moving party must point to some evidence that affirmatively demonstrates that the non-moving party has no evidence to support his or her claims. Id. “Permitting a nonmoving party to avoid summary judgment by asserting nothing more than ‘bald contradictions [**8] of the evidence offered by the moving party’ would necessarily abrogate the utility of the summary judgment exercise. C.R. Withem Enterprises v. Maley, 5th dist. No. 01 CA 54, 2002 Ohio 5056, at ¶24. Courts would be unable to use Civ.R. 56 as a means of assessing the merits of a claim at an early stage of the litigation and unnecessary dilate the civil process.” Greaney v. Ohio Turnpike Comm., 11th Dist. No. 2005-P-0012, 2005 Ohio 5284, ¶ 16. Bearing this standard in mind, we shall address the two assignments of error as one.

[*P14] Because of the release signed by Lindsay’s mother and the doctrine of primary assumption of risk, Lindsay is precluded from bringing a negligence action against AmeriCheer. [HN5] Under the doctrine of primary assumption of the risk, a plaintiff voluntarily engaged in a recreational activity assumes the inherent risks of that activity and cannot recover for injuries sustained while engaging in that activity unless the defendant acted recklessly or intentionally in causing the injuries. Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), syllabus; Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009 Ohio 6898, ¶ 13, 924 N.E.2d 906 (10th Dist.).

[*P15] In Crace, this court found that the doctrine [**9] of primary assumption of risk barred a negligence claim against a university in connection with a cheerleading injury. Crace, the captain of the Kent State University varsity cheerleading team, was the flyer during a human pyramid stunt. The first two attempts failed, and both times Crace fell from around 15 feet in the air where the spotter at the front of the formation caught her. On the third attempt the stunt failed again. When Crace came down for the third time, the spotter behind her panicked, shielded his eyes and moved out of the way. As a result, Crace’s fall was unbroken, and caused catastrophic injuries. Id. at ¶ 7.

[*P16] As was the case with Crace, Lindsay can only proceed with her personal injury claims if AmeriCheer acted willfully, wantonly, or recklessly. The issue is whether Lindsay has set forth competent evidence establishing a genuine issue of material fact on the issue of willful, wanton, or reckless conduct.

[*P17] [HN6] Ordinarily, the issue of willful, wanton, or reckless conduct is a question for the jury. Matkovitch v. Penn Cent. Transp. Co., 69 Ohio St. 2d 210, 214, 431 N.E.2d 652 (1982). In order to find wanton misconduct, there must be a failure to exercise any care whatsoever by one who [**10] owes a duty of care to another, and the failure must occur under circumstances where there is a great probability that harm will result from the lack of care. Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977). By way of contrast, the term “negligence” is synonymous with heedlessness, thoughtlessness, inattention, inadvertence, and oversight, and conveys the idea of inadvertence as distinguished from premeditated or formed intention, or a conscious purpose to do a wrong act or to omit the performance of a duty. Tighe v. Diamond, 149 Ohio St. 520, 525, 80 N.E.2d 122 (1948). Negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor. Roszman v. Sammett, 26 Ohio St.2d 94, 96-97, 269 N.E.2d 420, (1971), paragraph two of the syllabus. Evidence of a disposition to perversity may be shown by acts of stubbornness, obstinacy, or persistency in opposing that which is right, reasonable, correct, or generally accepted as a course to follow in protecting the safety of others. Id.

[*P18] [HN7] Reckless disregard for the safety of another occurs if one does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know [**11] of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Thompson v. McNeill, 53 Ohio St.3d 102, 104-05, 559 N.E.2d 705 (1990).

[*P19] “What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.” Id.

[*P20] Examining the evidence in the light most favorable to the non-moving party, Lindsay has set forth evidence that two of the three spotters provided by AmeriCheer were not in the positions they should have been at the time of the injury. Whether those actions or inactions create a factual issue as to wanton or reckless misconduct must be determined by applying the evidence to the standards for wanton or reckless disregard for safety. Only one of the spotters was on the mat during the formation of the stunt. The videotape of the competition was not made part of the record, and therefore it is not possible to determine the exact [**12] placement of the spotters during Lindsay’s routine. All that is known is that at least one spotter was standing on the edge of the mat, and two others were observing in the back. (Barbara Wolfe Depo., at 36.) According to Ms. Rossetti’s testimony while watching the video, the middle spotter was moving forward as the team was preparing to execute the mount. Barbara Wolfe estimated the spotters were at the edge of the mat approximately six to eight feet from the cheerleaders. (Barbara Wolfe Depo., at 72.) Lindsay estimated the spotters were 25 feet from where the cheerleaders were forming the stunt. (Lindsay Wolfe Depo., at 165.)

[*P21] Ms. Rossetti testified that spotters were not even necessary at AmeriCheer competitions, but were there to provide additional lines of safety and to help prevent injuries if they were able to do so. (Elizabeth Rossetti Depo., at 17.) When the cheerleaders are about to perform a stunt like the one in which Lindsay was injured, Ms. Rossetti said: “They should be present, near the – – on the mat. If they’re on the mat, they’re close enough to be at a given particular time, if they’re needed.” When asked where on the mat they should be positioned, Ms. Rossetti answered: [**13] “Well, it depends on the routine. It’s hard to point out. But there’s no – – again, it’s judgment on their part. It’s not trained; it’s learned. It’s judgment. If they feel that they can be there or they’re there, then it’s their judgment to make that call. * * * It’s not my judgment to make that call. * * * It’s their judgment to be on the mat and provide an additional level of safety, yes.” (Elizabeth Rossetti Depo, at 52.)

[*P22] In Dresher, 75 Ohio St.3d at 292, the Supreme Court of Ohio explicitly stated that [HN8] when a court receives a properly presented motion for summary judgment, a non-moving party may not rely upon the mere allegations of its complaint, but, instead, must demonstrate that a material issue of fact exists by directing the court’s attention to evidentiary materials of the type listed in Civ.R. 56(C). Id. Here, Lindsay has failed to cite to facts that support her contention. For example, Lindsay argues that there was a great probability that harm would result from lack of care. She claims that the spotters’ failure to move in when Lindsay’s team began the stunt is a perverse act and conscious disregard of their duty to provide safety. These types of statements add nothing [**14] to the analysis required by a court in addressing a motion for summary judgment.

[*P23] There is no evidence in the record that supports these assertions. Cheerleading carries inherent risks to those participants engaging in stunts of the kind performed at the Winter Championship. (Barbara Wolfe Depo., at 36; see Crace at ¶ 34, 35.) There was no evidence that in 2003 there were standards for spotters or even how many spotters were needed. (Elizabeth Rossetti Depo., at 17, 60.) The only evidence put forth was testimony that two of the spotters were not standing on the mat. Ms. Rossetti watched the video during her deposition, and testified that one spotter was moving in. (Elizabeth Rossetti Depo., at 90.) There was no testimony that the spotters had a duty to move closer when the team began the stunt apart from Lindsay’s observation that at every competition she attended the spotters would walk up. (Lindsay Wolfe Depo., at 66-67.) Lindsay claims that when the cheerleaders were practicing or learning stunts that the coaches stood on the mat and spotted for them. While for summary judgment purposes this statement is taken as true, it is somewhat of a red herring. Ms. Rossetti testified that, [**15] at camp, the spotters can be close by, but, in a competition, they cannot always be on top of them because they will interfere with something else going on. (Elizabeth Rossetti Depo., at 91.) Lindsay also testified that the coaches spotted them during practices. She then stated: “Once we were comfortable with, you know, and they were comfortable with us doing it, yes, they would like stand on the edge of the mat and watch.” (Lindsay Wolfe Depo., at 66.) Taken at face value, by the time a team is ready to perform the routine in competition, the coaches, who formerly spotted, would stand at the edge of the mat. Thus, the evidence suggests the spotters were properly positioned. Even if, as Lindsay testified, the spotters should have moved closer in preparation for the stunt, at least one of them did. These facts do not demonstrate a disposition to perversity on the part of the spotters or a failure to exercise any care whatsoever. Therefore, an issue as to whether the spotters’ conduct was wanton does not exist.

[*P24] Similarly, evidence regarding reckless misconduct is lacking. As stated above, in order to show reckless misconduct, one must act or intentionally fail to act when it is his duty [**16] to the other to do so, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Thompson, 53 Ohio St.3d at 104-05.

[*P25] The [**17] unrefuted evidence is that in 2003 AmeriCheer was under no duty to provide spotters at its competitions, but did provide them to create an additional layer of safety. There was testimony that the spotters were, themselves, trained cheerleaders from AmeriCheer’s summer camp. There was no evidence that AmeriCheer inadequately trained its spotters. According to Lindsay, the spotters were in a location where coaches would stand after they were comfortable with how the cheerleaders were performing the routine. Lindsay testified that she had no opportunity to catch the flyer as she was falling. Lindsay’s mother believed that if the spotters had been doing their job the accident probably would not have been as severe or have happened. She also acknowledged that it was possible that the spotter could have been right there and not have been able to stop the accident.

[*P26] There is no evidence that the spotters themselves recognized any facts that would lead them to believe that their conduct could or did create an unreasonable risk of harm to another. There was no evidence at all from the spotters at the event. At best, their actions could be considered negligent. Therefore, Lindsay has failed to [**18] establish a genuine issue of material fact with regard to recklessness.

[*P27] The first assignment of error is overruled. The second assignment of error is also overruled since all parties relied on the deposition testimony of Ms. Rossetti and, as discussed above, it was not error for the trial court to rely on the excerpts. Since our review is de novo and we considered all the evidence that was in the record, there was no error.

[*P28] It is unfortunate that Lindsay was seriously injured at the competition, and we realize that, because of the accident, she has suffered a great deal. But there was no evidence of recklessness or wantonness that renders AmeriCheer liable for damages.

[*P29] Accordingly, appellant’s assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

BROWN, P.J., and DORRIAN, J., concur.


Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

696 N.E.2d 201

ZIVICH ET AL., APPELLANTS, v. MENTOR SOCCER CLUB, INC., APPELLEE, ET AL.

No. 97-1128

Supreme Court of Ohio.

Submitted April 21, 1998 –

Decided June 29, 1998.

APPEAL from the Court of Appeals for Lake County, No. 95-L-184.

In May 1993, appellant Pamela Zivich registered her seven-year-old son, appellant Bryan Zivich, for soccer with Mentor Soccer Club, Inc. (“Club”), appellee, for the 1993-1994 season. The Club is a nonprofit organization that provides children in the greater Mentor area with the opportunity to learn and play soccer. The Club is primarily composed of parents and other volunteers who provide their time and talents to help fulfill the Club’s mission. The Club’s registration form, signed by Mrs. Zivich, contained the following language:

“Recognizing the possibility of physical injury associated with soccer and for the Mentor Soccer Club, and the USYSA [United States Youth Soccer Association] accepting the registrant for its soccer programs and activities, I hereby release, discharge and/or otherwise indemnify the Mentor Soccer Club and the USYSA, its affiliated organizations and sponsors, their employees, and associated personnel, including the owners of the fields and facilities utilized by the Soccer Club, against any claim by or on behalf of the registrant as a result of the registrant’s participation in the Soccer Club * * *.”

On October 7, 1993, Bryan attended soccer practice. During practice, the boys participated in an intrasquad scrimmage. Bryan’s team won. After the scrimmage, Bryan ran to his father, who was standing on the sidelines and talking with the coach. Excited about the win, Bryan, unsupervised, jumped on the goal and swung back and forth on it. The goal, which was not anchored down, tipped backward. Bryan fell, and the goal came down on his chest, breaking three of his ribs and collarbone, and severely bruising his lungs.

In January 1995, Bryan’s parents, Philip and Pamela Zivich, appellants, sued the Club[fn1] for injuries sustained by Bryan. The complaint alleged negligence and reckless misconduct.[fn2] The Club moved for summary judgment on the ground that the release executed by Bryan’s mother barred the claims. The trial court agreed and granted the Club’s summary judgment motion.

The court of appeals affirmed, albeit partly on different grounds. In Judge Nader’s majority opinion, in which Judge Christley “reluctantly” joined, he said that the exculpatory agreement was effective against Mr. and Mrs. Zivich, but not against Bryan. Thus, while the trial court was correct to grant summary judgment, Bryan still had a cause of action which a guardian could bring on his behalf or which he could assert once he gained the age of majority. Judge Nader acknowledged the public policy in favor of enforcing the agreement against Bryan, but found that that decision was best left to the General Assembly or this court. Additionally, Judge Nader’s majority opinion found no evidence to support the willful and wanton misconduct claim. Concurring in the result only, Judge Ford opined that the public policy of Ohio favors enforcement of the agreement against Bryan as well as his parents. Judge Christley “wholehearted[ly] endorse[d]” the policy advocated by Judge Ford, but agreed with Judge Nader that the issue should be resolved by the General Assembly or this court.

The cause is now before this court pursuant to the allowance of a discretionary appeal.

[fn1] Appellants also sued the city of Mentor, which owned the park where practice was held. The city settled with appellants, and this court dismissed it from the lawsuit in December 1997. 80 Ohio St.3d 1474, 687 N.E.2d 471.

[fn2] Other claims were asserted, but they are not at issue here.

Svete, McGee & Carrabine Co., L.P.A., and James W. Reardon, for appellants.

Reminger & Reminger Co., L.P.A., George S. Coakley, Laura M. Sullivan and Brian D. Sullivan, for appellee.

FRANCIS E. SWEENEY, SR., J.

We are asked to decide whether the exculpatory agreement[fn3] executed by Mrs. Zivich on behalf of her minor son released the Club from liability for the minor child’s claims and the parents’ claims as a matter of law. We find that the exculpatory agreement is valid as to all claims. Summary judgment was appropriately entered in the Club’s favor. The judgment of the court of appeals is affirmed.

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.

Appellants argue that since practice had concluded, the injury occurred outside the scope of the exculpatory agreement. We find this contention meritless. We quote, with approval, Judge Nader’s majority opinion rejecting this argument: “It should not come as any great surprise for a parent to learn that, during a period of inactivity at a soccer practice, his or her child fiddled with loose equipment, climbed on nearby bleachers, or scaled the goal. It should be equally clear that coaches supervising the practices will not be able to completely prevent such unauthorized activity, as some degree of bedlam is unavoidable, when children of tender years are brought together to play a game, and when their emotions are aroused. The risk of a seven[-]year[-]old child climbing on a goal shortly after winning an intrasquad scrimmage is, therefore, a natural incident of his participation in soccer practice. Thus, Bryan’s injuries fall within the ambit of the release.”

We next consider whether the release is valid. With respect to adult participants, the general rule is that releases from liability for injuries caused by negligent acts arising in the context of recreational activities are enforceable. Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 90, 585 N.E.2d 384, 390; Simmons v. Am. Motorcyclist Assn., Inc. (1990), 69 Ohio App.3d 844, 846, 591 N.E.2d 1322, 1324; Cain v. Cleveland Parachute Training Ctr. (1983), 9 Ohio App.3d 27, 9 OBR 28, 457 N.E.2d 1185. These holdings recognize the importance of individual autonomy and freedom of contract. Here, however, the exculpatory agreement was executed by a parent on behalf of the minor child.

Appellants contend that the release is invalid on public policy grounds. In support of their argument, they refer to the general principle that contracts entered into by a minor, unless for “necessaries,” are voidable by the minor, once the age of majority is reached, or shortly thereafter. Restatement of the Law 2d, Contracts (1979), Sections 7, 12, and 14, and Comment f to Section 12. Appellants urge us to apply the seminal case of Wagenblast v. Odessa School Dist. No. 105-157-166J (1988), 110 Wn.2d 845, 851-852, 758 P.2d 968, 971, where the Washington Supreme Court relied upon Tunkl v. Regents of Univ. of California (1963), 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, and set forth a six-part test to determine whether a particular release violates public policy. The Club, however, argues that the proper focus is not whether the release violates public policy but rather that public policy itself justifies the enforcement of this agreement. This is also the position advocated by Judge Ford in his concurring opinion. We agree with the Club and Judge Ford.[fn4]

The General Assembly has enacted statutes designed to encourage landowners to open their land to public use for recreational activities without fear of liability. Moss v. Dept. of Natural Resources (1980), 62 Ohio St.2d 138, 142, 16 O.O.3d 161, 164, 404 N.E.2d 742, 745. See R.C. 1533.18 and 1533.181, which together provide that private entities that hold land open for recreational use without charge are immune from tort liability for any injury caused by a recreational user. Then, in 1996, R.C. 2305.381 and 2305.382[fn5] were enacted, effective January 27, 1997. Together, these statutes accord qualified immunity to unpaid athletic coaches and sponsors of athletic events. Hence, the General Assembly has articulated its intent of encouraging the sponsorship of sports activities and protecting volunteers. However, R.C. 2305.381 and 2305.382 were enacted after this cause of action arose. Thus, our role is to render a decision that fills the gap left open before the effective date of the statutory enactments.

It cannot be disputed that volunteers in community recreational activities serve an important function. Organized recreational activities offer children the opportunity to learn valuable life skills. It is here that many children learn how to work as a team and how to operate within an organizational structure. Children also are given the chance to exercise and develop coordination skills. Due in great part to the assistance of volunteers, nonprofit organizations are able to offer these activities at minimal cost. In fact, the American Youth Soccer Organization pays only nineteen of its four hundred thousand staff members. The Little League pays only seventy of its 2.5 million members. See King, Exculpatory Agreements for Volunteers in Youth Activities – The Alternative to “Nerf” Tiddlywinks (1992), 53 Ohio St.L.J. 683, 759, fns. 208 and 209. Clearly, without the work of its volunteers, these nonprofit organizations could not exist, and scores of children would be without the benefit and enjoyment of organized sports. Yet the threat of liability strongly deters many individuals from volunteering for nonprofit organizations. Developments in the Law – Nonprofit Corporations – Special Treatment and Tort Law (1992), 105 Harv.L.Rev. 1667, 1682. Insurance for the organizations is not the answer, because individual volunteers may still find themselves potentially liable when an injury occurs. Markoff, Liability Threat Looms: A Volunteer’s Thankless Task (Sept. 19, 1988), 11 Natl.L.J. 1, 40. Thus, although volunteers offer their services without receiving any financial return, they place their personal assets at risk. See Developments, supra, 105 Harv.L.Rev. at 1692.

Therefore, faced with the very real threat of a lawsuit, and the potential for substantial damage awards, nonprofit organizations and their volunteers could very well decide that the risks are not worth the effort. Hence, invalidation of exculpatory agreements would reduce the number of activities made possible through the uncompensated services of volunteers and their sponsoring organizations.

Therefore, we conclude that although Bryan, like many children before him, gave up his right to sue for the negligent acts of others, the public as a whole received the benefit of these exculpatory agreements. Because of this agreement, the Club was able to offer affordable recreation and to continue to do so without the risks and overwhelming costs of litigation. Bryan’s parents agreed to shoulder the risk. Public policy does not forbid such an agreement. In fact, public policy supports it. See Hohe v. San Diego Unified School Dist. (1990), 224 Cal.App.3d 1559, 1564, 274 Cal.Rptr. 647, 649. Accordingly, we believe that public policy justifies giving parents authority to enter into these types of binding agreements on behalf of their minor children. We also believe that the enforcement of these agreements may well promote more active involvement by participants and their families, which, in turn, promotes the overall quality and safety of these activities. See King, supra, 53 Ohio St. L.J. at 709.

Another related concern is the importance of parental authority. Judge Ford’s concurring opinion also embraces this notion. Citing In re Perales (1977), 52 Ohio St.2d 89, 96, 6 O.O.3d 293, 296-297, 369 N.E.2d 1047, 1051, fn. 9; In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, 1171; and State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 8, 15 O.O.3d 3, 4-5, 399 N.E.2d 66, 67, Judge Ford found that the right of a parent to raise his or her child is a natural right subject to the protections of due process. Additionally, parents have a fundamental liberty interest in the care, custody, and management of their offspring. Further, the existence of a fundamental, privacy-oriented right of personal choice in family matters has been recognized under the Due Process Clause by the United States Supreme Court. See Meyer v. Nebraska (1923), 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.

Based upon these protections, Judge Ford believes that many decisions made by parents “fall within the penumbra of parental authority, e.g., the school that the child will attend, the religion that the child will practice, the medical care that the child will receive, and the manner in which the child will be disciplined.” He found it notable that the law empowers a parent to consent to medical procedures for a minor child (R.C. 2317.54[C]), gives a parent the general authority to decide to decline medical treatment for the child, and destroys the child’s cause of action for battery when consent is given. See Lacey v. Laird (1956), 166 Ohio St. 12, 19, 1 O.O.2d 158, 161, 139 N.E.2d 25, 30 (Hart, J., concurring). Thus, Judge Ford believes that invalidating the release as to the minor’s claim is inconsistent with conferring other powers on parents to make important life choices for their children.

Nor is it appropriate to equate a preinjury release with a postinjury release. As one commentator aptly explains:

“The concerns underlying the judiciary’s reluctance to allow parents to dispose of a child’s existing claim do not arise in the situation where a parent waives a child’s future claim. A parent dealing with an existing claim is simultaneously coping with an injured child; such a situation creates a potential for parental action contrary to that child’s ultimate best interests.

“A parent who signs a release before her child participates in a recreational activity, however, faces an entirely different situation. First, such a parent has no financial motivation to sign the release. To the contrary, because a parent must pay for medical care, she risks her financial interests by signing away the right to recover damages. Thus, the parent would better serve her financial interests by refusing to sign the release.

“A parent who dishonestly or maliciously signs a preinjury release in deliberate derogation of his child’s best interests also seems unlikely. Presumably parents sign future releases to enable their children to participate in activities that the parents and children believe will be fun or educational. Common sense suggests that while a parent might misjudge or act carelessly in signing a release, he would have no reason to sign with malice aforethought.

“Moreover, parents are less vulnerable to coercion and fraud in a preinjury setting. A parent who contemplates signing a release as a prerequisite to her child’s participation in some activity faces none of the emotional trauma and financial pressures that may arise with an existing claim. That parent has time to examine the release, consider its terms, and explore possible alternatives. A parent signing a future release is thus more able to reasonably assess the possible consequences of waiving the right to sue.” Purdy, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of a Minor’s Future Claim (1993), 68 Wn.L.Rev. 457, 474.

These comments were made in a law review article criticizing the Washington Supreme Court’s decision in Scott v. Pacific W. Mountain Resort (1992), 119 Wn.2d 484, 834 P.2d 6. In that case, the court found that a release, signed by the mother so that her son could take ski-racing lessons, was invalid as to the minor’s claim. In Scott, the court had reasoned that it made no sense to treat a child’s preinjury and postinjury property rights differently. Id. at 494, 834 P.2d at 11-12. The article criticized this decision, noting that when the mother signed the release, she gave her son the opportunity to ski. She gained no financial advantage for herself, nor did she suffer from fraud or collusion. She was under no financial or emotional pressure when she signed. The article states that “while she may have misjudged the risk to her son, Mrs. Scott did not mismanage or misappropriate Justin’s property. She did her best to protect Justin’s interests, and the court need not step in to do so.” Id., 68 Wn.L.Rev. at 474-475.

We agree with Judge Ford’s concurring opinion and the reasoning contained in the foregoing law review article. When Mrs. Zivich signed the release she did so because she wanted Bryan to play soccer. She made an important family decision and she assumed the risk of physical injury on behalf of her child and the financial risk on behalf of the family as a whole. Thus, her decision to release a volunteer on behalf of her child simply shifted the cost of injury to the parents. Apparently, she made a decision that the benefits to her child outweighed the risk of physical injury. Mrs. Zivich did her best to protect Bryan’s interests and we will not disturb her judgment. In fact, the situation is more analogous to Ohio’s informed consent law than to the law governing children’s property rights. See R.C. 2317.54(C), which gives parents the authority to consent to medical procedures on a child’s behalf. In both cases, the parent weighs the risks of physical injury to the child and the attendant costs to herself against the benefits of a particular activity.

Therefore, we hold that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport activities where the cause of action sounds in negligence. These agreements may not be disaffirmed by the child on whose behalf they were executed.

Having upheld the release agreement against Bryan’s claims, we find it also valid as to Mr. and Mrs. Zivich’s claims for loss of consortium. Mrs. Zivich, the signatory on the agreement, acknowledged that she had read its contents and did not ask any questions about them. Parents may release their own claims growing out of injury to their minor children. See, e.g., Simmons v. Parkette Natl. Gymnastic Training Ctr. (E.D.Pa. 1987), 670 F. Supp. 140, 142; Childress v. Madison Cty. (Tenn.App. 1989), 777 S.W.2d 1, 6; Scott, supra, 119 Wn.2d 484, 834 P.2d 6. We adopt this rule of law, finding it consistent with principles of freedom of contract. Thus, we hold that parents may release their own claims arising out of the injury to their minor children. Accordingly, we find that Mrs. Zivich is barred from recovery as to her claims.

We further find that Philip Zivich’s[fn6] loss of consortium claim is also barred as a matter of law. Although Mr. Zivich did not personally sign the release agreement, he accepted and enjoyed the benefits of the contract. In fact, when the injury occurred, Mr. Zivich was the parent who was at the practice field that evening. Thus, Mr. Zivich’s conduct conveys an intention to enjoy the benefits of his wife’s agreement and be bound by it. Under the doctrine of estoppel by acquiescence, Mr. Zivich may not assert his rights against the Club. Natl. Football League v. Rondor, Inc. (N.D.Ohio 1993), 840 F. Supp. 1160, 1167.

As a separate ground for recovery, appellants also contend that the injury was caused by the Club’s willful and wanton misconduct. In McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 31 OBR 449, 451, 510 N.E.2d 386, 388-389, this court defined “willful” misconduct as conduct involving “`an intent, purpose or design to injure.'” Id., quoting Denzer v. Terpstra (1934), 129 Ohio St. 1, 1 O.O. 303, 193 N.E. 647, paragraph two of the syllabus. “Wanton” misconduct was defined as conduct where one “`fails to exercise any care whatsoever toward those to whom he owes a duty of care, and [t]his failure occurs under circumstances in which there is a great probability that harm will result.'” McKinney, 31 Ohio St.3d at 246, 31 OBR at 451, 510 N.E.2d at 388-389, quoting Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 4 O.O.3d 243, 363 N.E.2d 367, syllabus. We have held that while a participant in recreational activities can contract with the proprietor to relieve the proprietor from any damages or injuries he may negligently cause, the release is invalid as to willful and wanton misconduct. Bowen, supra, 63 Ohio St. 3d at 90, 585 N.E.2d at 390.

To support this claim, appellants assert that the Club’s former president, David Bolsen, attended a seminar just before his term of office ended. It was at the seminar that he learned of the need to anchor the goals and to post warning labels on them. Bolsen testified that because his term expired two weeks later, he had time to relay the information only to a few persons. However, no action was taken to secure the goals.

Appellants argue that Bolsen’s failure to take more affirmative steps to ensure that the Club and the city implemented the safety recommendations amounts to willful and wanton misconduct. Like the court of appeals, we reject this argument.

There is no evidence that the former president intended that Bryan should be injured. Nor did the former president utterly fail to exercise any care whatsoever. Even accepting as true the appellants’ claim that club officials knew about the safety problems but failed to act, this action does not amount to willful and wanton misconduct. As noted by the appellate court, “Park officials testified that the City never had anchored the goals in the past, and, apparently, of the thousands of young boys and girls playing soccer in the youth league throughout the years, no other child had been injured in this manner.” Thus, reasonable minds could not conclude that the risk posed by the unanchored goal was so great as to require immediate remedial action.

Moreover, the evidence established that the city, not the Club, was responsible for the upkeep of the soccer fields and the purchase, storage, maintenance, and placement of the soccer goals.

We find that appellants failed to produce sufficient evidence to present a jury question on the claim of willful and wanton misconduct.

Accordingly, we affirm the court of appeals’ judgment, albeit on somewhat different grounds. We uphold its decision that the release is valid as to the parents’ claims. However, we hold that the release is also valid as to the minor child’s claim.

Judgment affirmed.

MOYER, C.J., RESNICK, COOK and LUNDBERG STRATTON, JJ., concur.

DOUGLAS and PFEIFER, JJ., concur in judgment only.

[fn3] The words “release,” “waiver” and “exculpatory agreement” have been used interchangeably by the courts. These defenses are based on contract principles. “Exculpatory agreements, also called `releases’ or `waivers,’ are basically written documents in which one party agrees to release, or `exculpate,’ another from potential tort liability for future conduct covered in the agreement.” King, Exculpatory Agreements for Volunteers in Youth Activities – The Alternative to “Nerf” Tiddlywinks (1992), 53 Ohio St. L.J. 683.

[fn4] The majority opinion stated that an intermediate appellate court was not the appropriate forum to decide public policy. However, in a common-law system, a judicial decision declaring the rights of the parties can be based on several grounds, one of which is public policy. Hopkins, Public Policy and the Formation of a Rule of Law (1971), 37 Brooklyn L.Rev. 323, 330. Therefore, public policy is an appropriate device to be used by an appellate court to decide a case.

[fn5] Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867, 3931. Our statutory law is in line with the many “volunteer statutes” passed by other states. See McCaskey and Biedzynski, A Guide to the Legal Liability of Coaches for a Sports Participant’s Injuries (1996), 6 Seton Hall J. of Sport L. 7, 62-63 (citing statutes).

[fn6] In the court of appeals, Mr. Zivich also argued that summary judgment was improper as to his claim for negligent infliction of emotional distress. However, he does not raise this claim here. Accordingly, we do not address this issue.

COOK, J., concurring.

I join in the well-reasoned majority opinion. I write separately only to point out that today’s decision is firmly grounded in the public policy of the General Assembly, as evinced by the legislative enactments cited by the majority.


Four releases signed and all of them thrown out because they lacked one simple sentence!

Releases have to be written correctly and they have to be written in conjunction with all of the possible defendants to a suit.

This is a sad case stemming from the death of young man who had traveled from Ohio

Photograph of girls performing synchronized tr...

Photograph of girls performing synchronized trampoline at WAGC in Quebec November 2007. Trampqueen 21:52, 15 November 2007 (UTC) (Photo credit: Wikipedia)

to Tennessee to participate in a gymnastic event, the John Macready Flip Fest Invitational in Knoxville. The deceased was an experienced participant on the trampoline. During the event, he fell off the trampoline hitting the concrete floor with his head.

His parents sued the organizer of the event, Top Flight Gymnastics, the sanctioning organizations, USA Gymnastics (USAG) and the United States Gymnastics Federation (USGF). These three defendants, Top Flight, USAG and USGF as well as the booster club for Top Flight had releases that were signed by the deceased and or his mother or father.
The deceased mother stated she signed the release for the event in Kentucky. (No explanation was given why she signed the release in Kentucky.) The USGF and USAG releases were part of membership applications and probably signed in Ohio. It was not stated where the Top Flight release was signed.
The deceased and the plaintiffs lived in Ohio. USAG and USGF were based in Indiana but sanctioned events all over the US. Top Flight was located in Tennessee where the accident occurred.
The defendants filed a motion for summary judgment arguing that the release should be reviewed under Ohio’s law. The reason for this is because Ohio upholds a release signed by a parent. (See States that allow a Parent to Sign away a Minor’s right to sue.) The court fist had to determine what law applied, Ohio or Tennessee. No one was arguing for Kentucky or Indiana. Neither of those states allows a parent to sign away a minor’s right to sue.
The plaintiffs sued for negligence “in that they sanctioned an event which failed to provide a safe environment, utilized untrained spotters, failed to ensure sufficient floor matting, failed to require experienced and trained spotters, and failed to require sufficient safety matting.”

Summary of the case

This case was brought in Federal District Court as a diversity case. That means that one or more of the parties is located outside of the state of where the lawsuit is filed and the amount being asked for is in excess of $75,000.  
The Federal Court had to decide which law would be applied to the case. This is called a “Choice of Laws” issue, meaning the court has to decide which state law will be used to decide the case. Step one in this decision, is to decide which states have a relationship with the lawsuit. How that decision is made is based on the law of the state where the court is. The case was filed in the United States District Court for the Eastern District of Tennessee, so Tennessee’s law was used to decide which state law would be used to the Choice of Law question which then would be used to decide which state law would be applied to the case.
In Tennessee, the test to decide which state law is to be applied is the “the most significant relationship” test.
In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, to which event the local law of the other state will be applied.
The court ruled that because the accident occurred in Tennessee, Tennessee had the most significant relationship to the case. The court applied the four-part Tennessee test to make that decision. The court looked at the following questions to determine what state law would be applied:
(1) the place where the injury occurred,
(2) the place where the conduct causing the injury occurred,
(3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(4) the place where the relationship, if any, between the parties is centered.
Tennessee was where the injury occurred, the place where the conduct causing the injury occurred. Tennessee “was the only mutual and central contact these parties had with one another.”
The court then looked at Tennessee’s law concerning releases and held all four releases void. Tennessee does not recognize a parent’s right to sign away a minor’s right to sue. Childress v. Madison County, 777 S.W.2d 1 (Tenn.App. 1989). The decision, on what state law to apply, decided the real legal issue in one sentence.
Of the four states in question, Tennessee, Indiana, Kentucky and Ohio, only if the choice of a law’s question had found Ohio, the place where two releases had been signed, would the case end. Simply put, the case would have ended if the court could have applied Ohio’s law to the facts.
The court then took on an interesting turn. The court stated, on its own, that the release also failed because the allegations of the complaint pleaded intentional conduct recklessness or gross negligence. Under Tennessee law gross negligence and reckless conduct are not protected by a release. The court then said, “defendants’ failure to provide a safe environment, failure to utilize trained spotters, and failure to ensure sufficient safety matting, all constitute gross negligence and reckless conduct.”
Rarely do courts look at the facts and then develop claims or defenses for one side or the other. Here, the court did just that. The court created additional claims for the plaintiff. Nowhere else in the decision did the court allude to allegations on the part of the plaintiffs whom any of the defendants acted a grossly negligent way.

So Now What?

I’ve written about it several times before about jurisdiction and venue. See A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit, The legal relationship created between manufactures and US consumers and Shark Feeding Death triggers debate. Jurisdiction is the term applied to the law that is to be applied to the case. This case is a legal argument over jurisdiction. Venue is the legal term used to describe where, what city and state the court that hears the case will be.
Releases must first have the correct language to make the release effective in barring claims and lawsuits. It must have a well written negligence clause.
However, if your release does not have a jurisdiction and venue clause, just like this case, your release is worthless a lot of the time. If anyone can change the venue to another state, and/or change the jurisdiction to another state you have just wasted paper.
As I repeat over and over again.
1.      Your release must be written by an attorney who is familiar with your activities and the law concerning releases.
2.    Your release must have a well written negligence clause. It must, according to the state law of the jurisdiction you decide, meet the requirements to be upheld.
3.    Your release must have a jurisdiction and venue clause. Period!
If you wrote your release I now it fails the first and second parts of the test. I suspect even if an attorney wrote your release, it might fail the third part of the test.

What do you think? Leave a comment.

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