Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U
Posted: June 4, 2012 Filed under: Assumption of the Risk, Challenge or Ropes Course, Legal Case, New York | Tags: assumption of the risk, challenge course, Mount Sinai, New York, New York City, Plaintiff, Ropes course, Sachem School District Leave a commentLinthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U
[**1] Rebecca Linthwaite, Plaintiff, – against – Mount Sinai Union Free School District and Sachem School District, Defendants. Index No. 09-26360
09-26360
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U
December 28, 2011, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: summary judgment, supervision, industry standards, school district, spotters, adventure, spotting, teacher, rope, certified transcript, entitlement, notice, supporting papers, factual issues, issues of fact, extracurricular activity, citations omitted, participating, supervising, proximately, positioning, photograph, opposing, platform, matter of law, notice of claim, cross claims, issue of liability, claims asserted, prima facie
COUNSEL: [*1] For Plaintiff: GLYNN MERCEP & PURCELL LLP, Stony Brook, New York.
For Mount Sinai UFSD, Defendant: CONGDON, FLAHERTY, O’CALLAGHAN, et al., Uniondale, New York.
For Sachem SD, Defendant: DONAHUE, MCGAHAN, CATALANO, et al., Jericho, New York.
JUDGES: PRESENT: Hon. W. GERARD ASHER, Justice of the Supreme Court.
OPINION BY: W. GERARD ASHER
OPINION
Upon the following papers numbered 1 to 46 read on these motions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers (001) 1-14; Notice of Cross Motion and supporting papers (002) 15-34; Answering Affidavits and supporting papers 35-39; Replying Affidavits and supporting papers 40-41; 42-44; Other 45-46, (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that motion (001) by the defendant, Mount Sinai Union Free School District, pursuant to CPLR 3212 for summary judgment dismissing the complaint on the issue of liability is denied; and it is further
ORDERED that motion (002) by the defendant, Sachem Central School, pursuant to CPLR 3212 for summary judgment dismissing the complaint and cross claims asserted against it on the issue of liability is denied.
In this action, the plaintiff asserts that the defendants, Sachem [*2] School District (“Sachem”) and Mount Sinai Union Free School District (“Mount Sinai”), were negligent in failing to provide proper instruction and safety equipment, and in supervising the plaintiff while she was taking part in a Mount [**2] plaintiff, after having climbed to the top of a ten foot climbing wall in a “challenge by choice” event, tried to help another student over the wail, lost her balance, and fell backwards. The plaintiff asserts that the defendants had actual and constructive notice of the dangerous conditions which caused her to sustain injury.
In motion (001), the defendant, Mount Sinai, seeks summary judgment dismissing the complaint on the basis that it was not negligent in supervising the plaintiff or in failing to provide a safe and padded area and to warn students not to help others over the wall. It further asserts that the plaintiff assumed the risk of the extracurricular activity, that it exercised reasonable care, that the plaintiff’s injuries were not the result of any breach of duty owed to the plaintiff, that the climbing wall was not located on the grounds of Mount Sinai, and that Mount Sinai did not maintain the wall.
In motion (002), Sachem seeks summary [*3] judgment dismissing the complaint and cross claims against it on the basis that it did not breach any duty to the plaintiff, and that its alleged negligence did not proximately cause the injuries claimed by the plaintiff.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 390 N.E.2d 298, 416 NYS2d 790 [1979]; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 144 N.E.2d 387, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N.Y.U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form…and must “show [*4] facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981]).
In support of motion (001), Mount Sinai has submitted, inter alia, an attorney’s affirmation; copies of the notice of claim dated July 2, 2008, summons and complaint, its answer with a cross claim asserted against Sachem, discovery demands, and plaintiff’s verified bill of particulars; a photograph of the wall; copy of the unsigned but certified transcript of the General Municipal Law 50-h hearing of Rebecca Linthwaite dated January 8, 2009; copies of the signed and certified transcript of the examination before trial of Rebecca Linthwaite dated September 21, 2010; the unsigned but certified transcript of Margaret Tuttie on behalf of Sachem dated November 29, 2010; the signed transcript of Karen Blumenthal on behalf of Mount Sinai dated November 29, 2010; and the affidavit of Kenneth R. Demas dated March 15, [*5] 2011, with attendant curriculum vitae.
In support of motion (002), Sachem has submitted, inter alia, two attorney’s affirmations; copies of the notices of claim dated July 2, 2008 with a copy of a photograph of a wall; a copy of the summons and complaint, defendants’ respective answers with cross claims, Mount Sinai’s answer to the cross [**3] claim, plaintiff’s verified bills of particulars: photographs of the wall; a copy of the signed General Municipal Law 50-h transcript of Rebecca Linthwaite dated January 8, 2009; copies of the signed transcript of the examination before trial of Rebecca Linthwaite dated September 21, 2010; Mission Statement by Sachem; the signed and certified transcript of Margaret Tuttle on behalf of Sachem dated November 29, 2010; another copy of the Mission Statement of Sachem with annexed letter from Karen Blumenthal, undated, and a copy of the student accident report signed by Karen Blumenthal; the signed transcript of the examination before trial of Karen Blumenthal on behalf of Mount Sinai dated November 29, 2010; the affidavit of Kenneth R. Demas dated March 15, 2011 with attendant curriculum vitae; and a demand and response to the demand for discovery and [*6] inspection.
Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (Mirand v City of New York, 84 NY2d 44, 637 N.E.2d 263, 614 NYS2d 372 [1994]). The school’s standard of duty to a student is what a reasonable prudent parent would have done under the same circumstances (NY PJI 2:227). “The standard for determining whether a school was negligent in executing its supervisory responsibility is, [w]hether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision” (Mirand v City of New York, 190 AD2d 282, 598 NYS2d 464, aff’d 84 NY2d 44, 637 N.E.2d 263, 614 NYS2d 372 [1994]; see, In the Matter of the Claim of Jane Doe v Board of Education of Penfield School District, et al, 2006 NY Slip Op 51615U, 12 Misc3d 1197A, 824 NYS2d 768 [Sup. Ct. of New York, Monroe County 2006]).
As set forth in Bowles v The Board of Education of the City of New York and the City of New York, 15 Misc. 3d 1110[A], 839 N.Y.S.2d 431, 2007 NY Slip op 50573[U] [Supreme Court of New York, Kings County 2007], “Schools are under a duty to adequately supervise the students [*7] in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision…. To find that a school district has breached its duty to provide adequate supervision, a plaintiff must show that the district had sufficient specific knowledge or notice of the dangerous conduct and that the alleged breach was the proximate cause of the injuries sustained…. Moreover, when an accident occurs in so short a span of time that even the most intense supervision could not have prevented it any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted.” citing, Ronan v School District of the City of New Rochelle, citations omitted, quoting Mirand v City of New York, citations omitted, Nocilla v Middle Country School Dist., citations omitted.
Based upon the evidentiary submissions, it is determined that neither Sachem nor Mount Sinai have established prima facie entitlement to summary judgement dismissing the complaint due to the existence of factual issues in the moving papers which preclude summary judgment.
Kenneth Demas set forth in his affidavit that he has been [*8] in the adventure education field since 1982 and has been certified as a national trainer for Project Adventure for 23 years. He set forth the transcripts and materials reviewed and states that the level of supervision was appropriate and in keeping with the nature of the activity. He stated that the Sachem teacher. Margaret Tuttle, was in a position which enabled her to move to either direction in front of or behind the wall, and permitted her to move to an appropriate position in the event that additional spotting was required. He states that both teachers were placed appropriately. He continues that both teachers responded to the loss of balance of Rebecca [**4] in addition to other spotters being present. He continues that the instructions given by Ms. Tuttle was appropriate and in keeping with the accepted model for instruction on this activity. While explaining the challenge to the group, Ms. Tuttle walked the group to the front and rear of the wall and explained the responsibilities associated with each side. She was clear that students were spotters from beginning to end. Demas continues that instruction in any Adventure Education program never explains how to do a particular challenge, [*9] as students, while working together, are to utilize previously learned concepts and experiences to solve the problem. He continues that the wall is considered a low element, and that spotting is the accepted safety procedure for the activity. The use of helmets, matting, and the belay systems is not consistent with industry standards, Demas continues that level 2 certification, which both Karen Blumenthal of Mount Sinai and Tuttle have, involves both a written test and hands on application of skills, such as quality and clarity of instructions, as well as spotting technique, positioning, and practice.
The affidavit of Mr. Demas is not supported by admissible evidence. Expert testimony is limited to facts in evidence (see Allen v Uh, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 2011]; Hornbrook v Peak Resorts, Inc. 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002]; Marzuillo v Isom, 277 AD2d 362, 716 NYS2d 98 [2d Dept 2000]; Stringile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 1988]; O’Shea v Sarro, 106 AD2d 435, 482 NYS2d 529 [2d Dept 1984]), which evidence has not been provided herein. Neither the expert or either party has submitted a copy of the industry standards for Project [*10] Adventure, [*11] the number and positioning of spotters for the specific activity, the student to adult ratio, the instructions given to spotters, or the instructions to be provided to students participating in the event pursuant to the industry standard. Although Demas avers that teacher training involves spotting technique, positioning and practice, he does not set forth the standards for the same or aver that such was utilized during the event in which the plaintiff sustained injury. The exact number of students participating has not been established, as Ms. Blumenthal stated she had about fifty students in her two classes and was unsure how many students attended the field trip, but thought it was about 40 students. There was only one teacher supervising the students until Ms. Blumenthal arrived at that particular event, immediately prior to the plaintiff’s fall. Although the defendants claim that Project Adventure is an extracurricular activity and that the plaintiff assumed the risk of the activity, the plaintiff testified that this class was taken in place of the usual physical education class. Thus whether the class was for credit or was an extracurricular activity has not been established.
There [*12] was testimony by Ms. Blumenthal that the event in which the plaintiff was injured was “challenge by choice”, meaning each student did not have to participate in the event. However, the plaintiff testified that her understanding of “challenge by choice” was that she could do the activity by her own free will and that no one was to be forced into an activity. However, when it came time for the wall activity, she and her friends were told they had to do it; they were not told that there would be repercussions if they did not do it. Thus, there are factual issues concerning the definition of “challenge by choice”, if the students had a choice as to participating in the event, or whether there was pressure exerted on them to participate.
There are further factual issues concerning whether the students were properly instructed with regard to the presence and the use of the ropes on the back of the wall, and whether the ropes were suitable to stabilize the student and prevent the student from falling off the narrow platform. The [**5] plaintiff testified that on the date of the incident, there were no mats or other safety precautions. The rope that was on the back wall was used for walking down [*13] the wall and was not there to stabilize when up on the platform. She never noticed loops on the ropes. Ms. Tuttle testified that she tells students there are ropes to put a hand in, if needed, and that there will be spoilers to help them walk down. Additional factual issues exist as to whether the supervision and spotting was adequate, whether the spotters were properly trained and instructed, and whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would have provided greater supervision to the students including adequate placement and training of the appropriate number of spotters. Although Mr. Demas averred that the use of helmets, matting, or the belay system is not consistent with industry standards, he does not state what the industry standard is, and whether the failure to provide such safety equipment is inconsistent with industry standards. A further question exists as to whether the platform was constructed pursuant to industry standards.
Since defendants failed to establish their entitlement to judgment as a matter of law, the burden has not shifted to the plaintiff to raise a triable issue of tact (see, Krayn v Torella, 40 A.D.3d 588, 833 NYS2d 406, NY Slip Op 03885 [2d Dept 2007] [*14] ; Walker v Village of Ossining, 18 AD3d 867, 796 NYS2d 658 [2d Dept 2005]).
Accordingly, motions (001) and (002) by Sachem and Mount Sinai for summary judgment dismissing the complaint are denied.
Date: Dec. 28, 2011
/s/ W. Gerard Asher
J.S.C.
Summer Camp, Zip line injury and confusing legal analysis in Washington
Posted: April 16, 2012 Filed under: Minors, Youth, Children, Summer Camp, Washington, Youth Camps, Zip Line | Tags: Defendant, Duty of care, Plaintiff, Ropes course, Summary judgment, Summer Camp, zip line, Zip-line, Zipline Leave a comment
A 200′ Mammoth Deluxe zip line installed over a pond. (Photo credit: Wikipedia)
Facts, no prepared defense and the plaintiff will get to go to trial.
In this case, I think the parents of a child who was attending the summer camp opted to ride the camp zip line. The zip line had two ropes that attached the rider to the haul line. The adult plaintiff when getting ready to ride wrapped one rope around his fingers. When he launched, the rope tightened almost severing his fingers.
The defendant filed a motion for summary judgment. However, the analysis by the court did not read like the normal decisions on motions for summary judgment and started out by denying part of the plaintiff’s argument.
Summary of the case
The plaintiff argued the summer camp, landowner, owed him a duty of ordinary care. The court found this really did not apply to this case, and the duty was a duty to disclose rather than a duty of ordinary care. However, the court allowed this argument to proceed.
Under Washington’s law, the duty of ordinary care is defined as:
a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
The court then argued that the plaintiff was arguing the wrong legal issues because the plaintiff was arguing the plaintiff was a landowner; however, the injury did not occur on the land.
Because the injury the plaintiff received was based on the acts of the plaintiff, wrapping a rope around his hand, there was no violation of a duty by the defendant.
Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:
Q. Did you know that if you wrapped the rope around your fingers, and then you put weight on the rope, that would tighten and cinch around your fingers?
A. The thought did not cross my mind.
Q. Okay. You didn’t think about that correct?
A. Correct.
Q. But if you had thought about it, you would have been able to figure that out, correct?
A. If someone asked me?
Q. Yes.
A. Yes.
Because the plaintiff admitted that if he thought about it, he would have realized that his actions would injure his hand, the defendant did not owe him a greater duty than it had done.
The plaintiff then stretched with two additional causes or claims. The first was the defendant had violated a state statute because the zip line was not inspected by the state. However, the statute that the plaintiff tried to apply, the amusement ride statute, did not include zip lines in its definitions until after the plaintiff’s accident. The statute at the time the plaintiff was injured did not apply to zip lines.
The next argument is farther out there, and exponentially scarier. The plaintiff argued that a zip line should be classified as a common carrier. A common carrier under most state interpretations are airlines, trains, buses, etc. Those types of transportation, carriers for hire, where the customer pays to be moved from one place to the next owe their customers the highest degree of care. The transportation must be for the purpose of movement, not amusement. The scary part is a common carrier owes the highest degree of care to its customers.
This definition means that a common carrier is liable in most situations for any injury to its passengers.
However, the court did not find a zip line was a common carrier. Thankfully.
So Now What?
The obvious issue that was missed, was the camp should have been using a release. An adult is on the property having fun; an injury will occur.
A motion for summary judgment is used when the legal arguments against a claim are sufficient to eliminate that claim. In most cases, this ends the lawsuit as long as all claims are ruled in favor of the defendant. Here the one claim, no matter how sketchy is probably going to allow the plaintiff to recover some amount of money.
Based on the ruling, the plaintiff will get his day in court or be paid not to go to court. A slip when someone is loading a zip line, no release and a traumatic injury add up to a big lawsuit.
What do you think? Leave a comment.
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Summer Camp not liable for injuries of camper inflicted by another camper.
Posted: March 26, 2012 Filed under: Summer Camp | Tags: Camp, first aid, Injury, Medical Care, New York, Plaintiff, Recreation, summer camp Leave a commentMurawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
No advance knowledge of the possible assault does not make camp liable.
The plaintiff was a ten-year-old boy attending a multi-week summer camp. The plaintiff was attached by a smaller camper causing minor injuries and a broken finger. The plaintiff sued for “improper supervision and a failure to provide proper medical care after the assault.”
The defendants were the camp, camp employees and church officials who ran the camp. The defendants raised the defense of a spontaneous altercation that could not have been anticipated, and any delay in medical treatment caused no adverse effect upon the plaintiff.
The plaintiff shared a cabin with the camper who assaulted him. There had been a yelling altercation between the two boys prior to this incident. Generally, the two boys did not get along. The plaintiff was in the cabin looking for something. The smaller camper thought that the plaintiff was holding something of his when the two started yelling. The smaller camper eventually hit the plaintiff with a hockey stick.
The plaintiff did not complain to anyone about the other camper. The camp had no record of any problems and no one who saw the prior exchanges between thought those exchanges amounted to a major problem.
After the assault, the camp nurse splinted the finger of the plaintiff and followed up with the plaintiff twice. Each time the plaintiff informed the nurse his finger was feeling better. Two days later the plaintiff’s mother came to camp and took the plaintiff away for several hours. When she came back she asked the plaintiff’s finger be x-rayed. (For some reason, some reason this seems like a red flag to me.)
So?
For camps, the first hurdle that is always misunderstood by parents, rarely understood by camps and sometimes missed by courts is the standard of care that a camp owes to a camper. That standard is that of a reasonably prudent parent. That standard does not require constant supervision. The court found that constant supervision would not be a desirable situation because it would not foster self-reliance in the campers.
Camps, like schools are not insurers of safety for they cannot reasonably be expected to continuously supervise and control all movements and activities of the campers. . . .. In order to establish a breach of the duty to provide adequate supervision a plaintiff must show that the camp authorities had sufficient specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could have reasonably been anticipated
Because constant supervision is not required, to be liable under New York law, the plaintiff must prove the camp was on notice that there was a problem or that a camper had exhibited dangerous conduct.
….there is no factual basis to conclude either that the camp’s agents had knowledge constituting notice of a particular danger to the infant plaintiff prior to the incident or that the incident that caused the infant plaintiff’s injuries was anything other than a sudden, unanticipated independent act by a fellow camper.
Thus without knowledge of prior bad acts or an intent on the part of the attacking camper, the camp is not liable for the acts of the smaller camper.
The next issue the court reviewed was the medical care. Several issues supported the camps’ defense.
The camper was inspected by a nurse initially and twice with follow ups. Each time the plaintiff told the nurse he was getting better. There was also no long-term damage to the plaintiff’s finger which would give rise to a claim or greater damages. Also, the plaintiff could not prove that the failure to provide immediate care did not cause injury upon the plaintiff.
So Now What?
You cannot rely on courts to inform parents of the standard of care that you must use with their children. That will eventually lead to insurance premiums you cannot afford.
Nor can you tell parents that you will treat their child with the same care they would. Again, parents never do anything that injures their child and any injury will create a problem for you.
What you can do is inform the parents of two things.
· How hard you work to keep kids safe.
· Kids get hurt.
As I have said repeatedly, absent foam rubber on every tree and trial, kids are going to find a way to get hurt. You need to make sure that parents know that the adventures and excitement that draw kids to your camp are the same things that may issue them. Like riding a bike, it takes a few crashes to learn how to ride a bike, and as you get better you push your limits more and crash some more.
If you do not get this idea across to parents, every time a kid is hurt, you may have to have a judge prove to the parent you are not liable. That is costs too much time and money.
The scary aspect of this case is the issue of medical care. Twenty years ago when I first started looking at cases in the outdoor recreation community, I never saw any allegations concerning medical care or first aid. Recently, I’ve written about two cases where it was an issue, and it seems to be a growing issue.
What do you think? Leave a comment.
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Every time someone comes to your business or every time they sign up again they should sign a release. This time it got rid of a major problem.
Posted: March 19, 2012 Filed under: New Jersey, Release (pre-injury contract not to sue), Ski Area | Tags: Adhesion Contract, Exculpatory Agreement, Federal Rules of Civil Procedure, Injury, Mountain Creek, Plaintiff, Pre-injury Release, Release, ski area, skiing, Summary judgment, Unconscionability Leave a commentDearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527
Releases work for future injuries and for injuries that may have all ready occurred.
This is a case where as part of the employment at a ski area, the family of the employee was able to get season passes. A requirement for the season pass was to sign a release.
In this case, the plaintiff was injured skiing on a season pass issued to the family member of an employee. The plaintiff sued the ski resort for his injuries. After the lawsuit had commenced but before trial, the plaintiff got another season pass and signed another release. The second release language was sufficient to stop the lawsuit.
The release was called a post injury release now because it stopped a lawsuit after the injury. Normally, I discuss pre-injury releases. Pre-Injury releases are releases that are signed in case someone is injured in a negligent manner.
Summary of the case
After it was discovered the plaintiff had signed a second release, the defense moved to amend their answer and filed a motion for summary judgment. The trial court granted the motion to amend and add the defense of release and accord and satisfaction. The plaintiff appealed.
“Release” is an affirmative defense. An affirmative defense is one that must be plead immediately in the answer of the defendant or the defense is waived. Release as a defense means that the parties have executed an agreement that releases the defendant from any claims.
“Accord and Satisfaction” are also an affirmative defense. Accord and Satisfaction means the party have come to an agreement, an accord and resolved their differences to the satisfaction of all parties.
The plaintiff argued that the post injury release was unconscionable. The contract should not be enforced because of:
“….inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process.”
An unconscionable contract or a contract of adhesion is one that the terms were offered on a take or leave it basis the terms are unjust to the point the court cannot allow the contract to stand. The contract must be so bad as to shock the conscience of the court. However, the contract cannot just be bad to one party.
Here, there are several factors that would not make the contract unconscionable. The contract is not for a necessary service. The services could be received from the same party in other ways. (Instead of signing a release and getting a season pass, the plaintiff could have purchased daily lift tickets and not signed a release.) The services were available from other providers.
The court found there were no coercion, duress, fraud or “sharp practices” by the defendant. The agreement did not change the duty of care nor did it “incentivize negligence.” Each of the contracting parties gained or gave away something of value.
So Now What?
Here the defendant was lucky. The plaintiff unknowingly signed a release to get his season pass that had the language necessary to stop a claim that had already occurred. There are two important points to bring up from this case.
1 Make sure your release has language to top future claims and past claims.
2. Every single time have every single-person sign a release. Get a new season pass, you sign the release again. Go rafting again, you sign the release. Buy another widget sign the release.
You just never know when a release from the future may stop a claim from the past.
What do you think? Leave a comment.
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Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court.
Posted: January 9, 2012 Filed under: Jurisdiction and Venue (Forum Selection), Massachusetts, Skiing / Snow Boarding | Tags: Due Process, Lawsuit, Litigation, Long-Arm Jurisdiction, Massachusetts, Motion (legal), Plaintiff, Product liability, Salomon North America, Ski binding, Summary judgment Leave a commentLafond v. Salomon North America Inc. et al, Superior Court County of Suffolk, Commonwealth of Massachusetts.
Although not a Precedent setting decision, it is indicative of where the courts are going.
This is a decision in the trial court of Massachusetts over ski bindings. The bindings broke injuring the plaintiff while he was skiing in Utah. He sued Salomon in the US and Salomon SAS, the French parent company based on Annecy France. The retailer, Bob Smith’s Wilderness House was brought in as a third party defendant.
The defendants filed a Motion to Dismiss, or what is referred to as a Rule 12(b)(2) motion. A Motion to Dismiss is granted only if the pleadings of the plaintiff do not state a legal claim or the defendant can’t be sued in this case. No evidence is reviewed by the court; it is purely a simple legal argument based on the laws of procedure.
Salomon SAS argued that it had no business in France, did no business in any country other than with Salomon North America based in Ogden Utah. Therefore, because it did no business in Massachusetts, it should not be brought into the litigation in Massachusetts.
So?
Image via Wikipedia
The plaintiff claimed it went to the Salomon SAS website to research different bindings. The Salomon SAS website directed the plaintiff to the third party defendant Bob Smith’s Wilderness House as a retailer the plaintiff could from whom he could purchase the bindings.
The broken bindings were replaced by Salomon, although it is not known in the motion if it was Salmon SAS or Salomon North America.
The issue is whether court has the legal right to require a defendant to submit to its jurisdiction. The limits or requirements the court must follow are set usually set out in a long-arm statute. That is the name given to the statute that controls whether the long arm of the law can extend outside of the state.
To exercise out of state jurisdiction over a defendant located in another state or country the defendant must have engaged in “purposeful and successful solicitation of business from Massachusetts residents.”
A website alone is not enough to bring a foreign or out of court defendant into the jurisdiction of a Massachusetts court. However, because the plaintiff identified the store where he purchased the bindings based on his actions on the Salomon SAS website that was enough to subject the foreign defendant to the jurisdiction of the Massachusetts court.
There are numerous other tests the court must review to subject a foreign business the jurisdiction of the court. However, this one act of directing the plaintiff to a local retailer was enough to subject the defendant to the jurisdiction of the Massachusetts court.
So Now What?
This is a crap decision. When a website brings you into court, a website alone, the purpose of long arm statutes has faded considerably.
However, this is just the first step in a long line of steps before the case is decided. Rarely is a Rule 12(b)(2) motion granted. Motions for Summary Judgment, other defense motions and a trial are all next, then appeals. Hopefully, an appellate court will look at this say the original decision must be overturned.
What can you do? In this case, maybe not a lot can be done, but there are something’s that might assist in some circumstances.
In every sale or contract, put into the agreement a jurisdiction and indemnification clause. You can use them in retail sales agreements with consumers, to some extent.
You also might consider an indemnification agreement between your US based distributor and yourself if you are a foreign, non US based, manufacture. The agreement would say that you would be 100% indemnified for any US based lawsuits, other than product recalls. This might encourage US plaintiff’s not to drag you into a US court.
Make sure your agreement with your US based distributor is not a big target for lawsuits. Identify when the inventory transfers to the US subsidiary and when payment is owed for the inventory.
Set up a defense program with your US Distributor, Reps and all retailers. The program should incorporate the use of a release. The program should make sure three things happen to help eliminate several of the issues in this case.
1. It requires the use of a release by all parties at all times. You can even put one on your website. Releases are not 100% effective in product liability cases, but their jurisdiction and venue clauses may at least get the suit back to your home state.
2. The agreement identifies who shall be protected who and for what reasons. The manufacture of a product in a product liability claim is going to be holding the bag in most cases so this is not a big deal. More importantly it keeps the retailer in your camp in litigation and prevents the embarrassment of brining in the retailer as a third party defendant, making them mad and making you look bad, that occurred in this case.
3. It requires the retailer to notify you immediately of any problems so you can get ahead of the curve.
4. It puts you in control of your litigation destiny and makes you look like the good guy when you are sued to all distributors and retailers in the industry.
For more cases on Jurisdiction and Venue see:
The legal relationship created between manufactures and US consumers
Four releases signed and all of them thrown out because they lacked one simple sentence!
What do you think? Leave a comment.
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Bossi v. Sierra Nevada Recreation Corporation et al, 2004 Cal. App. Unpub. LEXIS 1992
Posted: October 8, 2011 Filed under: Uncategorized | Tags: Appeal, California, Caving, Defendant, Moaning Cavern, National Cave Associationm, Plaintiff, Sierra Nevada 4 CommentsBossi v. Sierra Nevada Recreation Corporation et al, 2004 Cal. App. Unpub. LEXIS 1992
Vittoria M. Bossi, Plaintiff and Appellant, v. Sierra Nevada Recreation Corporation et al., Defendants and Respondents.
C042558
Court of Appeal of California, Third Appellate District
2004 Cal. App. Unpub. LEXIS 1992
March 4, 2004, Filed
Notice: [*1] not to be published in official reports California rules of court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for the purposes of rule 977.
Prior History: Calaveras. Super. Ct. No. CV25839.
Disposition: Affirmed.
Judges: Davis, J. We concur: BLEASE, Acting P.J., SIMS, J.
Opinion By: Davis
Opinion: Despite executing a comprehensive release and covenant not to sue before rappelling to the floor of Moaning Cavern, attorney Vittoria Bossi brought this action for the injuries she sustained during an uncontrolled descent. The jury returned a verdict in favor of the defendants Sierra Nevada Recreation Corporation and two of its employees (Eric Gutierrez and Bruce Brand). The jury also returned a verdict for over $ 100,000 in damages on Sierra Nevada Recreation Corporation’s cross-complaint for the plaintiff’s breach of her covenant not to sue. The plaintiff filed a timely appeal. n1
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n1 We dismissed the defendants’ purported cross-appeal from certain non-appealable orders.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*2]
On appeal, the plaintiff challenges the exclusion of the deposition testimony of an unavailable witness, the admission of lay testimony interpreting the release and covenant, and the trial court’s refusal to instruct on assumption of the risk. In a conclusory one-paragraph argument, the plaintiff also contends we must reverse the judgment against her for the breach of the covenant not to sue because she has “clearly demonstrated” that the defendants breached their duty toward her. We shall affirm.
BACKGROUND
The plaintiff’s arguments on appeal do not require us to relate the entirety of the testimony in this matter. Center stage in this case is the release and covenant not to sue. It contains acknowledgments that rappelling is an activity with “inherent dangers that no amount of . . . caution . . . can eliminate”; that she “expressly and voluntarily assumes all risk of death[ and] personal injury . . . including the risk of passive or active negligence of the released parties; or . . . defects or hazards in the equipment”; that she “forever releases, waives, discharges and covenants not to sue Sierra Nevada Recreation . . . for any and all loss or damage, or from any [*3] and all liabilities . . . for injuries and damages arising out of participation . . . on the Rappel . . ., including . . . losses caused by the passive or active negligence of the released parties or . . . defects or hazards in the equipment”; that “this Release . . . extends to all acts of negligence by the Releasees . . . and is intended to be as broad . . . as is permitted by the laws of the State of California”; and that “I have read this Release . . ., fully understand its terms, understand that I have given up substantial rights . . ., and intend my signature to be a complete and unconditional release of all liability to the greatest extent allowed by law.”
The plaintiff, a lawyer since 1991, initialed all of the paragraphs except the last one (regarding reading the document and intending an unconditional relinquishment of any negligence claim), and signed it. She had previously rappelled into Moaning Cavern in 1991 and 1994.
On the date of the accident in July 1998, defendant Eric Gutierrez was acting as a belay person on the cavern floor (among other duties). His function was to slow the fall of rappelers. After he helped people who had just descended, Nicole Hamilton relieved [*4] him at the belay post. As Gutierrez walked toward the stairs, he heard the sound of rope sliding rapidly through the rappelling apparatus. He saw the plaintiff descending quickly, bouncing off the rock face. He grabbed the line, which had swung in his direction, and took up the slack. Although this slowed the fall, plaintiff still hit the floor.
In its special verdict, the jury found that the defendants did not intentionally or negligently misrepresent any facts to the plaintiff, that the plaintiff executed a written agreement releasing the defendants from all liability, that the plaintiff breached a contract with Sierra Nevada Recreation Corporation, and that this breach resulted in damages of over $100,000.
DISCUSSION
Before trial, the plaintiff filed a declaration in which she asserted that Nicole Hamilton was no longer available as a witness because she now was living in Oregon and had started a new job, the demands of which precluded her from appearing at trial. The plaintiff moved to admit her deposition testimony pursuant to Code of Civil Procedure section 2025, subdivision (u). In denying the motion, the trial court cited a criterion [*5] for admission pursuant to Evidence Code section 1291, which requires a defendant to have had an interest and motive at the time of the deposition similar to that at trial. It found that the defendants did not have any indication that their employee would be unavailable at the time of trial.
On appeal, the plaintiff focuses solely on whether the witness was unavailable, relying on Chavez v. Zapata Ocean Resources, Inc. (1984) 155 Cal. App. 3d 115, 118, 201 Cal. Rptr. 887 (where the parties stipulated to unavailability) and Nizinski v. State Bar (1975) 14 Cal.3d 587, n2 590, 121 Cal. Rptr. 824 (deponent more than 150 miles from court). The defendants claim the trial court did not abuse its discretion (People v. Waidla (2000) 22 Cal.4th 690, 717) under Evidence Code section 1291 in excluding the deposition.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n2 We note both parties have incorrectly cited this case as appearing at “14 Cal. App. 3d 560.”
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*6]
Evidence Code section 1291, however, is inapplicable. It apples only to depositions taken in another action, not the same action, the use of which is covered “comprehensively” in the discovery statutes. (Recommendation Proposing an Evidence Code, 7 Cal. Law Revision Com. Rep. (1965) p. 250; 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 262, p. 980.)
We need not belabor the question of whether the trial court might have properly exercised its discretion in resolving the criteria of unavailability and diligence (e.g., Code Civ. Proc., § 2025, subds. (u)(3)(B)(iv), (u)(3)(B)(v)); plainly, this was not the basis of its ruling, so we have no way of discerning the result of a properly informed exercise of its discretion. Nor need we determine whether the deposition was admissible as a matter of law under some other provision (e.g., id., subd. (u)(3)(A) [witness more than 150 miles from court]). The short answer is the utter harmlessness of excluding the deposition at trial.
The plaintiff does not at any point suggest the deposition included any evidence relevant [*7] to the validity of the release that she had executed before rappelling. Instead, the plaintiff adverts only to the relevance of the deposition to the issue of whether the defendants had increased the risk of the activity. As we explain subsequently, this issue is relevant only in cases involving an implied assumption of the risk. An effective release that manifests an express assumption of the risk is a complete defense to a negligence action. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372 (Allan).)
II
In her brief, the plaintiff asserts the trial court erred in permitting “several” witnesses “over objection” to testify regarding their opinion of the effect of an unspecified release that they signed before rappelling into Moaning Cavern. Her citation to the record, however, is to the testimony of two witnesses, n3 and the plaintiff does not in either instance voice an objection to the topic.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n3 According to Webster’s Collegiate Dictionary, “several” refers to “an indefinite number more than two and fewer than many.” (Webster’s 10th Collegiate Dict. (2001) p. 1070.)
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*8]
If an appellant does not provide a citation to the record in support of an argument, we are not obliged to independently search through the transcripts to find the facts on which the argument rests. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Here, defendants have represented in their brief that plaintiff never objected. Plaintiff did not file a reply contesting that assertion. Absent any proof that plaintiff registered an objection to this testimony, the issue is waived on appeal. (Evid. Code, § 353, subd. (a).)
III
The plaintiff initially offered an instruction stating the abstractly correct proposition that the defendants had a duty (under the doctrine of “assumption of the risk”) not to increase the risks inherent in a sport. Without providing any citation to the record, the plaintiff contends that the trial court refused to instruct on assumption of the risk (also without providing the basis for the court’s ruling), for which reason she withdrew the proposed instruction. The defendants do not dispute this account. [*9]
The plaintiff’s argument grows out of a misreading of Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, where, in an appeal from summary judgment for the defendant, we first found that the release was ambiguous as to whether it applied on the day that the plaintiff was skiing (id. at pp. 363-364), and then held that there was conflicting evidence about whether the defendant had increased the risk of recreational skiing through a failure to warn recreational skiers that it had modified the ski run with jumps for a racing event later that day (id. at pp. 365-367). Solis does not provide any support for the plaintiff’s proposition that she was entitled to a special instruction on the “increased risk” limit on assumption of the risk where there was a threshold issue of a valid release.
Rather, the plaintiff’s posture is akin to the appellant’s in Allan, supra: “All Allan’s discussion of . . . assumption of the risk . . . is essentially beside the point for one very fundamental reason: Knight v. Jewett[ (1992)] 3 Cal.4th 296 [Knight], and its discussion of . . . assumption of [*10] the risk, referred to implied assumption of the risk. Here, it is beyond dispute that Allan signed an express assumption of the risk, which warned him in no uncertain terms that he could . . . suffer serious injury. Knight itself recognized that express assumption of the risk remains a complete defense in negligence actions.” (51 Cal.App.4th at p. 1372; see also Knight, supra, 3 Cal.4th at p. 308, fn. 4; Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1217-1218; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1729-1730.) Since the jury in the present case upheld the validity of the execution of the release, plaintiff’s complaint about the alleged instructional error is moot.
IV
The entirety of the plaintiff’s attack on the judgment on the cross-complaint against her for breach of the covenant not to sue rests on the viability of her claim of negligence. Having failed to demonstrate any basis for invalidating the judgment enforcing the release, she has failed to provide a basis for reversing the judgment on the cross-complaint.
DISPOSITION
The judgment is affirmed.
DAVIS, J.
We [*11] concur:
BLEASE, Acting P.J.
SIMS, J.
Jim Moss\r\nJHMoss@Earthlink.net\r\n
G-YQ06K3L262
http://www.recreation-law.com
Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.
Posted: February 28, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Child, Church Group, Colorado, Colorado Supreme Court, Information, Insurance, Law, Minor, Parental Responsibility, Parental Rights, Plaintiff, Supreme Court, United States, Youth Group Leave a commentWycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832
The case is a little confusing to read because there was another case that was appealed by the same parties whom this case refers to. Additionally, the act of the trial court in reducing the damages is confusing. However, this case is a very clear example of how a badly written release is going to cost the church and its insurance company millions.
A church group had taken kids to a camp for a “Winterama 2005.” The church had rented the camp for the weekend. The plaintiff was 17 and not a member of the church. Her parents had paid a reduced fee for her to attend the activity. As part of that registration her mother signed a “Registration and information” form. One of the activities was pulling them behind an ATV on an inner tube on a frozen lake.
There was a large boulder embedded in the lake. On the second loop, the plaintiff’s inner tube hit the boulder breaking her back.
The plaintiff’s mother had signed the “Registration and Information” form. On the form was the following sentence.
I will not hold Grace Community Church or its participants responsible for any liability, which may result from participation.
The case went to trial, and the jury returned a $4M verdict in favor of the plaintiff. The defendant and plaintiff appealed after the judge reduced the damages to the limits of the insurance policy of the church, $2M plus interest.
The appellate court first looked at Colorado case law on releases and the legislative history of § 13-22-107(3), C.R.S. 2010. That statute, C.R.S. § 13-22-107(3), was enacted to allow a parent to sign away a minor’s right to sue. The statute, and the decision in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981), has a requirement that the parental decision must be “informed” and with the intent to release the [defendant] from liability. Jones v. Dressel was the first Supreme Court review of releases in the state of Colorado as they applied to recreational activities.
The court looked at the language in the “Registration and Information” form to see if it informed the parents of the activities and risks their child would be undertaking. The court looked at the language and found:
There is no information in Grace’s one-page registration form describing the event activities, nothing describing the associated risks. Stating that the children would participate in “Winterama 2005 and all activities associated with it” does not indicate what the activities would involve and certainly does not suggest they would include ATV-towed inner-tube excursions around a frozen lake.
The court also looked at prior decisions concerning releases and found that “in every Colorado Supreme Court case upholding an exculpatory clause. The clause contained some reference to waiving personal injury claims based on the activity being engaged in.”
The court concluded that:
Grace’s [the defendant’s] form made no reference to the relevant activity or to waiving personal injury claims. The operative sentence (the third one in a paragraph) states only that plaintiff will not hold Grace “responsible for any liability which may result from participation.” Surrounding sentences address other issues: the first gives permission to attend; the second consents to medical treatment; and the fourth agrees to pick up disobedient children.
… nowhere does the form provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. The form is legally insufficient to release plaintiff’s personal injury claims.
The court then looked at the second major issue that has been surfacing in many outdoor recreation cases of late. The plaintiff sued claiming a violation of the duties owed by the landowner, a premises liability claim. That means that the landowner owed a duty to the plaintiff to warn or eliminate dangers, which the landowner failed to do.
The defendant argued that it was not the landowner; it had just leased the land for the weekend. However, the court found this argument lacking. The premise’s liability statute § 13-21-115(1), C.R.S. 2010, defines landowner to include someone leasing the property.
This places two very important burdens on anyone leasing land or using land.
- They must know and identify the risks of the land before bringing their clients/guests/members on the land.
- The release must include premise liability language.
The second one is relatively easy to do; however, the effectiveness is going to be difficult. The first places a tremendous burden on anyone going to a camp, park or other place they do not own for the day, weekend or week.
- Your insurance policy must provide coverage for this type of claim.
- You need to inspect the land in advance, do a due diligence to make sure you know of any risks or dangers on the land.
- You must inform your guests/members/clients of those risks.
The final issue that might be of some importance to readers is the court reviewed the legal concept of charitable immunity. At one time, charities could not be sued because they “did good” for mankind. That has evolved over time so that in most states charitable immunity no longer exists. At present, and with this court decision, the assets of the charity held may not be levied by a judgment. What that means is after someone receives a judgment against a charity, the plaintiff with the judgment then attempts to collect against the assets of the charity. Some of the assets may not be recovered by the judgment creditor because they are part of the charitable trust.
What does that mean? If you are a charity, buy insurance.
Of note in this case is the plaintiffs are the injured girl and her insurance company: The opinion states “Plaintiff and her insurer, intervenor American Medical Security Life Insurance Company (insurer).” Although set forth in the decision, her insurance company is probably suing under its right in the subrogation clause. A subrogation clause in an insurance policy says your insurance policy has the right to sue under your name or its own name against anyone who caused your damages that the insurance company reimbursed.
So?
As I have said numerous times, your release must be written by an attorney that understands two things.
- Release law
- The activities you are going to engage in.
- The risks those activities present to your guests/members/clients.
- Any statutes that affect your activity and/or your guests/members/clients.
Any release should include a good review of the risks of the activities and a description of the activities so adults and parents can read and understand those risks. Any minor who can read and understand the risks should also sign the release as proof the child assumed the risk. Assumption of the risk works to win cases against minors when the release is thrown out or in those cases where a release cannot be used against a minor.
Find a good attorney that knows and understands your activities, those risks and the laws needed to write a release to protect you.
What do you think? Leave a comment.
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People familiar with the legal system are more likely to sue.
Posted: November 15, 2010 Filed under: North Dakota | Tags: Bra, Failure to Warn, Federal Supplement, Inmate, Litigation, North Dakota, Plaintiff, Product liability, Sports Bra Leave a commentHowever, the court found the manufacturer of a sports bra not liable. The plaintiff in this case sued for burns she received while wearing a sports bra. The bases of the claim was burns the plaintiff received allegedly from the chemicals in the materials used to manufacture the bra. However, the plaintiff also laid out in the prison courtyard wearing the black sports bra in over 100-degree heat. She suffered a few burns that were 1 to 3 centimeters in size.
The plaintiff argued failure to warn, negligence, and strict products liability claims.
The court dismissed the failure to warn and negligence claims because the plaintiff did not have any proof, other than her own statements, that there was a duty or a breach of the duty to her. No other witness or more importantly expert witness corroborated her claims. To prove negligent design under North Dakota law the plaintiff must prove “that the defendant failed to use reasonable care in designing the product and that failure resulted in a defective product.” The plaintiff was never able to connect that the design of the bra was the cause of her burns. There was no legal or even reasonable connection between her burns and the fabric, the construction, or design of the bra.
Under a strict liability theory in North Dakota, the plaintiff had to prove.
…by a preponderance of the evidence the product was defective in design or manufacture; the defect rendered the product unreasonably dangerous to the consumer; the defect existed when the product left the manufacturer; and the defect was a proximate cause of the plaintiff’s injuries.
The key is unreasonably dangerous. Simply having a product that produced an injury is not enough to prove a strict liability defect claim. You must supply a connection between the injury and the product AND that the problem with the product was unreasonable. Again, here is where the court said an expert witness was needed to prove the defect and whether that defect was unreasonable.
So?
There is a good discussion of North Dakota product liability law in this case, no matter the facts. The issue to remember, unlike negligence, which is uniformly defined and applied in all 50 states, each state has a slightly different approach to product liability claims.
The information contained here is good, but best only for North Dakota.
However, to win a product liability case you must state a cause of action. Injuries alone are not enough.
Familiar with the legal system usually means lawyers and paralegals. However, in this case, it also included prisoners. Once you understand the legal system, and in this case have a lot of time on your hands, you are more likely to sue.
 |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
Outdoor Recreation Insurance, Risk Management and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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‘TIS THE SEASON FOR INJURIES…. possibly Leading to the season of lawsuits!
Posted: April 29, 2008 Filed under: Skydiving, Paragliding, Hang gliding | Tags: Defendant, Insurance, Lawsuit, Parachuting, Plaintiff Leave a commentSeveral news reports have described lawsuits between skydivers who collide. In one case, one skydiver had logged 1800 jumps when he was hit in midair and injured by another skydiver. The injuries ended his skydiving and work career. A judge ruled the skydiver (and friend) who hit the Plaintiff (the injured skydiver) was negligent and awarded the Plaintiff $748,000. See Skydiver Wins Lawsuit Against Teammate. Yet skydivers hit each other every once in a while. See Skydivers injured in midair collision and YouTube has several videos of skydivers colliding.
The accident occurred when an eight-man team including the Plaintiff and Defendant, ended a formation and broke apart to open their chutes. The Plaintiff and Defendant where both members of the team and had been practicing these maneuvers. The Defendant’s elbow hit the plaintiff in the head, knocking the Plaintiff unconscious and tangling the chutes. The Defendant was able to free himself from the tangled chutes and landed safely. The Plaintiff was not and fell suffering broken bones and brain injuries.
The lawsuit seems to be full of folly. (A politically correct term in this case.) Immediately what comes to mind is that someone with 1800 jumps knows, understands and assumes the risk of an injury. The judge did not see it this way. For this discussion, however, a different point needs to be discussed. Does your release protect your customers from this type of lawsuit?
Your customers can be involved in lawsuits in three ways:
- As the Plaintiff – the person initiating the lawsuit.
- As a witness to the incident which caused the lawsuit.
- Rarely do we think of our customers as a Defendant in the lawsuit. However as rare as we may think it is, it is more common then you would imagine. (Co-participant liability)
Numerous articles have discussed the first case, i.e. as a Plaintiff, previously in this newsletter and it will continue to be our focus, however, the 2nd and 3rd ways your clients can be sued are also important. That your clients may be brought into a lawsuit as either a witness or a defendant is also quite important to you and can have a tremendous impact on your business. Some examples of how your clients can be involved as witnesses or defendants follow.
Having your customers called as witnesses can create significant public relations problems: You have six customers in a boat. One is injured and sues another customer. You have four other customers who are subpoenaed as witnesses. I can foretell that you now have six angry former customers. There is not much you can do which will appease everyone involved, except to end the lawsuit quickly; assuring the other witnesses they are not going to be brought into the suit as parties. (“Parties” is the term that defines Plaintiffs and Defendants).
In the 3rd scenario, your customer could be sued in part because you can’t and the injured person is looking for money: The future plaintiff walks into an attorney’s office and describes his injuries and the accident to an attorney. The attorney, after discovering a release, (and realizing he cannot sue the outfitter) decides to sue the person who caused the injury, your customer. Your customer fell off the raft, knocking the injured person into the water; or started the avalanche while backcountry skiing; or the youth who while playing falls on a tent injuring the occupants inside.
For whatever reason, your customer is now in a precarious situation. They may or may not be liable for the injuries. In the latter instance, they are upset over lost time and money. If they are liable for the injuries, they may be confused as to why someone would sue them for an accident while recreating. Either way, they may be mad at you for not helping them out of a bad situation.
Worse, the defendant/customer may not have insurance to cover the cost of the defense or any judgement. Normally homeowner’s insurance will cover this type of claim, however not all homeowner’s policies may cover this and not everyone has homeowner’s (or condor or renter’s) insurance.
Other than moral support, you cannot provide much help – except from your own pocket. Your insurance policy is only available if you or your employees are the named defendants. No matter what you may want to do, you are paying your own bills for attending the courtroom drama, (which is nothing like TV, in real life, the main problem is always keeping the judge and jury awake!).
However, your insurance company should be paying your attorney to be their. There are probably going to be several issues that could lead to problems if your attorney is not on top of the case.
Bad press is also going to accompany any lawsuit between your clients. The press will jump on this and wonder why you are not involved. The defendant client will bring in the press to ask the question of why you have not been named as a defendant as well. Either way, from the sideline you appear uncaring or apathetic while your clients beat each other up in court.
But this can be prevented. When your release is being written, make sure the “people” covered by the release includes everyone. Not just the employees, but Directors, Officers and Agents of the corporation, employees, managers and owners of the business, and “OTHER PARTICIPANTS.” This is a very simple solution to what can be a disastrous affair.
EXAMPLE
You are running a Mountaineering course and one climber slips, fails to self-arrest and slams into another climber. Besides sixteen puncture wounds from the crampon points, the injured participant has a broken ankle and no insurance. There is a question as to who failed to keep the tension between the falling client and the guide who was first on the rope. Did the guide slow down, did the student speed up or did they both fail to be observant.
You and the client who fell are sued.
In the normal scenarios the insurance company lawyer files a motion. Based on the release, the company is dismissed leaving a very angry student to stand alone for the damages.
In scenario #2, you are not dismissed from the suit. Your defense is to try to blame the client who fell. You now have a very mad student and a bad reputation in the industry.
Scenario #3: The falling client with no money forms an alliance with the injured client to testify against you and leave you holding an empty money bag.
Scenario #4: Your release defends both you and the falling student thus protecting that student from liability. You have a good witness on your side rather than one running to offer their cooperation to the opposition and between the release, assumption of risk, and the guide and client as witnesses you have a good defense.
The simple inclusion of language protecting everyone in the lawsuit can keep your and your clients coming back for more accidents in the wilderness.
Here, the release covering everyone shows the witnesses they are not going to be drug into the suit. Also, the release helps your clients understand the suit should end quickly. However your clients feel, whether the injured party needs money or is wrong, NO ONE wants to be involved in litigation.
It’s Not Money
Posted: February 10, 2008 Filed under: Risk Management, Skiing / Snow Boarding | Tags: Dispute Resolution, Insurance, Lawsuit, Litigation Prevention, Plaintiff, Recreation, Solving Problems Leave a commentMost Plaintiffs in the outdoor recreation industry do not sue for money. However, the end result of all claims, litigation or disputes is money because the system can only provide money. Lawsuits don’t bring people back to life, lawsuits don’t answer questions, lawsuits only move money around. Dealing with a plaintiff with the idea that money is their goal, you will end up in court, or at least writing a check. What research that has been done, has shown that at least seventy percent of the time the customer suing you does not want money. This may vary for some types of Plaintiffs, but for your average “Joe,” (not an MD, JD, Corporation, Business, super high income or experienced plaintiff,) its not money that an angry customer wants.
Money is how we respond to people questions, people who hurt or people who are mad. A classic case of you offering apples and the customer is talking oranges. Specifically, trying solving a problem with a hammer when a kind word and a few minutes of listening might do.
Ten Reasons Why People Sue
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Why: This questions is never answered
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How: No one will Answer this question
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Where: Why won’t they tell me where the accident happened
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Answers: No one will answer my questions
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Justice: I want justice its been promised to me since first grade
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Community: I don’t want anyone else damaged by this company
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Retribution: I want to put them out of business
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Communication: I want them to talk to me
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Acknowledgement: I want them to admit they were wrong
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Revenge: closely aligned with the issue of justice
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Closure: An element of many of the above, but a reality in the US today.
I was a small law practice for fifteen years and was open to any person who walked through the door. Never, in fifteen years did an individual walk through the door and ask me to sue someone for money. What the injured customer wanted fell into several categories, mostly (1) answers to their questions (2) revenge or (3) justice.
Little old ladies who had been taken by a contractor only wanted to make sure no one else was hurt by the contractor. A friend of mine who had been blown up in an explosion and totally disabled, wanted to wait until the last day to see if his old boss might call.
Attorneys and insurance companies have pounded into our heads that if we are involved in potential claim we are to shut up. If you read the back of our automobile insurance cards, it reiterates what we have been trained in the “litigation minded society” to remember. “Say nothing. Only talk to our insurance representatives or law enforcement authorities.” We live in America by this mantra.
Look at this article from the Columbus Dispatch about why a family was suing a camp.
Columbus Dispatch August 16, 2000.
Family sues summer camp over drowning Wednesday, August 16, 2000 Kate Schott, Dispatch Staff Reporter
The uncle said nothing about money. The lawsuit was not started obviously because of money but because of emotional issues.
Fifty-four questions about what happened. How did my child die? Answering the questions might have diffused the lawsuit. However, the article goes on to say the defendants had a lawyer who was protecting them.
Protecting them…………….. Right into a lawsuit.
Answers
The lawyer for the family had this to say:
The lawyer is all ready starting to cross the emotional and question issues with monetary answers. If we do not get answers, we will get money or money will force them to answer our questions. If we get money, that answers your questions.
“Evans said the money was not the point of the suit. ” There is no way to put a price on his life,” he said. Rather, the family wants closure, to know how Shawan could have gone unnoticed by the adults at the pool. ”
Here is a multi-million dollar lawsuit that might be defused with honest answers to the family’s questions. Of course, there is a fine line to walk between honestly answering questions and setting yourself up for a lawsuit. In addition, that needs to be done before the injured party retains an attorney. If you have stalled the participant into hiring an attorney, your better make your defense wall a lot bigger and taller.
The family was asking questions about how their child died. None of those questions seemed to be targeted at gaining information to use in a lawsuit. However, the Camp’s answers, unintentionally, were structured to make sure the lawsuit happens. Not getting any answer to their questions forced them to the next highest step, court. To get money, No. To get the answers to their questions: How did my child die?
Put yourself in place of the parent. You receive a phone call telling you to go to the hospital your child has been injured. You arrive and are informed your child is dead. How? This question is searing through your mind. How did my child die? Can you think of any emotion or need that would overcome that desire to learn how your child died? Yet as attorneys, we feel we have the right to keep that information from someone to protect our clients.
Knowledge
Closure is not a new word in the American language. However, it is a word that is very important for most Americans. Injured people need to know what happened. Survivors want to know how they survived and others died. One hundred years ago, people were hurt and they died and that was life. In the past hundred years we have learned the answers to millions of questions we could not previously answer. That leads Americans to believe that question should have an answer. Everything should have closure. That is not always the case and it takes time to explain that to people. You cannot expect them to have the understanding of your industry and consequently the acceptance of the answer that you provide. You have experience and industry education to help you understand the forces and factors that create the incidents that cause injuries and death. You also understand the unknowns that affect the business. All of these give you insight and perspective that provides you with answers.
How then, based on your experience and knowledge can you expect a novice to your business how an injury or accident occurred. That takes time. Unless you are willing to put in the time, they will not be willing to understand.
Justice
In kindergarten we started to learn about our rights. Our rights have been explained to us each year until graduation as the basic foundation of the United States and one of the pillars of our success. Since that time, we have rights to everything. The right to know. The right to justice. No one lives with injustice any more. If you customer feels that they have been unjustly treated, that education that they received for twelve years rears it ugly head, however perverted that knowledge has become, we want the justice we are do.
Most people have no clude what their rights are, you see them on the news every night screaming their rights have been violated, now knowing that really has happened to them.
That desire for justice, combined with lack of knowledge on the guest part and lack of understanding on the business part leads to litigation. The desire to receive justice, the desire to extract retribution, the desire to protect others from injustice are issues, almost values that are important to our society. Unless you as the business owner understand these issues, you again will be looking at a checkbook at the way to solve your problem.
Emotional Justice is worse for everyone to handle. For years, we have approached lawsuits as being a money issue based on greed. Yet, the people who walk into an attorney’s office are normally the product of poor customer service. Many times there may or may not be a legally recognizable claim. That is the job of the attorney. The attorney will take that anger and turn it into a desire for money over time. The emotions that linger or the desire to hurt the business always heightens that desire.
And justice is not just an American issue based on law. John Rawls in his A Theory of Justice states that for humans, justice is a fundamental part of our makeup. If the value or even intrinsic issue of justice exists, we cannot ignore it when a guest has been injured.
Duty to our Client
Do attorneys do this consciously, No. Or at least I hope not. We honestly feel we are protecting your client. Based on our training and the horror stories of law school we are afraid that our clients will make a fatal mistake that not only starts the suit, but also guarantees a win for the plaintiff. However, that is not the case. If suits were monetary, then the attorney’s fears would be real. Because they are emotional or based on the US theory of rights or justice, these suits are started for reasons that simple curtseys, answers, and honesty can eliminate.
7 Mistakes Made by People who are called Defendant
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Hire and retain Uncaring Employees: Hire Well, Train Well, and Treat Well
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Failing Know Your Customers and why they are buying from you.
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Failing to Treat Your Customers the Way They Want to Be Treated:
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Examining the problem from Your Perspective: Your customer sees the problem differently than you. The customer may not even understand the problem.
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Placing a ridiculous value on principles and pride. Principles & Pride Goeth Before a Lawsuit
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Never know Why you are being sued: Sticking your head in the sand, or passing the problem to a lawyer does not resolve the problem.
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Forgetting What Your Mother Taught You: If you act like your mother taught you, you won’t be sued.
As the emotion drains with time, the attorney refuels the desire for the suit with another emotion – greed. Even if greed itself will not work, the attorney can show the financial impact the greed has on the business. If nothing else, a large monetary judgment can be turned into justice by equating the cost to the business as punishment or revenge
What happened to turn a customer from a client to a litigant?
At a ski resort there is one brief moment in time when a happy guest is converted to an injured guest. After realizing that they are injured, the majority of injured skiers do not start thinking about money. They wantg help. However, in the mind of the ski resort something did change. That person evolved from a happy guest to a potential litigant. The ski resort goes from bending over backward to get that guest into the resort and having fun, to fearful of the person. The resort will rush food and linens to your room and transport you from one place to another with a smile prior to your injury, yet the guest is now left standing outside the clinic with no way to get back to their room or car afterwards.
What did the guest do to change? What thought occurs, that works it way through the pain that says to the guest, you are now different. Or did that evolution only occur in the minds of the people running the resort?
Angry customers do not sue. Angry ex-clients do.
You can stop anger, revenge, or unhappy customers before they turn to a lawyer.
Solutions
Do not give them a reason to go find someone to beat you up.
Work with your clients to help them back to an even emotional level. This may not always be possible if they have lost a loved one; they have suffered life-changing injuries or their financial future. You can show them you should not be the target of their anger. You can help them direct their anger to other persons or at least deal with you on a reasonable basis. You will not always be able to do this in one meeting, it may take days or months, but persistence pays off.
When in doubt compare the cost of the angry customer, attorneys to defend, and your time to the benefit of turning an angry customer into a happy customer again.
Answer questions.
Worse case scenario, you go to court and admit you answered the client’s questions. Do not believe the attorney’s mantra that clients are dumb and going to give away the company by admitting liability. It will be difficult for to answer some questions with no liability because of the ingrained fear we have of talking to injured clients. Trust yourself.
Prepare your answers as you drive over to help. However, prepare answers, not evasion.
Evasion is so evident it does not work. It makes you look like you have something to hide. By evading answers you are sending the guest to someone who will find out the answer. Since kindergarten we have been taught our “rights.” Those rights in most people have evolved into everything possible. People believe they have the right to know. They have that right with governments they therefore feel it must extend to everything else.
At the same time, why not. If a member of your family were injured, you would want to know what happened.
Treat the people as you want or they believe they want to be treated.
How can we solve these issues? We can answer questions and treat people, as we want to be treated. It will scare the living daylights out of every one of us and send our attorneys screaming to their malpractice carriers, but we may avoid a costly battle over the word “why.”
During spring of 2000, a small ski resort had a number of snowstorms. During these storms, lift operators are faced with two decisions when small children load the lift. Clean the chair lift seat or assist young children into their chair. The obvious answer is to assist young people into the lift. The sport is skiing and it is done on snow.
On this particular day, the resort received approximately four inches of snow in a couple of hours. A mother and her 9-year-old son loaded a two-person chair. The lift operator assisted the boy into the chair and consequently did not clean the chair. The mother and son started brushing the snow off the chair seat. Shifting to do so, the son was moving around the chair. The mother told the son either to be careful or not to clean the snow but he continued to do so. The young boy slipped off the chair and fell approximately 15 feet.
The mother rode the chair to the top where a Ski Patroller met her, who took her down to the scene. Upon arrival, she snapped photographs of the scene and the chair. A ski patroller assisted the mother; other patrollers took son down to the clinic and in the process learned, she was an attorney.
I was notified of the lift accident and the fact the mother was an attorney. I met the ambulance at the Clinic and assisted the parties in getting into the clinic. Mother was quite terse and demanding. Normal emotions for a mother concerned about her son. However, if you couple that attitude with her vocation, it brings fear to a risk manager’s heart. No injuries could be found on the boy; however, he was not communicating and complained of pain so he was air lifted to Denver.
Mother was given a map, given telephone numbers to contact me and escorted to her car. She was contacted at the hospital that night to make sure she arrived. She and her son walked out of the hospital that night around midnight and the mother and son checked out the next day.
The son was sent a resort Teddy Bear and a personal card. The mother was also sent a card. Mother responded with a card and thanked the staff for their help.
The mother called fall of 2001 and stated she wanted to come back skiing but her son was afraid of the lifts. In order to assist in this, the resort volunteered to find the perfect instructor to assist the boy for two all days’ private lessons so that mother and son could enjoy skiing.
I met the family the night they arrived and talked to them for two hours about the resort and skiing. Mother is a tax attorney and concerned that son would no longer want to ski, but the son was a quite excited.
After two days of private lessons, the mother and son were skiing intermediate and some expert runs. They hired the ski instructor for a third day of private lessons. They family left after 5 days and are now excited about skiing. Since that first incident they have come back to the resort two more times. Each time they have hired the same private instructor for a day or more. This last time they visited the resort, the mother and son took me out to dinner.
Whether this was ever, a lawsuit is unknown. However, a disgruntled scared guest has been turned into a happy guest. By treating the guest as a guest and not a litigant, a customer with a possible propensity to recover damages was turned into a lifelong customer. In addition, by coming back to the resort, skiing, and riding lift, from which the boy fell; we substantially reduced the chance of a lawsuit. (People who come back to ski have a hard time suing. On the stand, they cannot answer the question, “If the resort is so dangerous, why did you go back and ski there?”)
Mom and Son are happy and will always come back to the resort.
Costs: two private all day lessons, one teddy bear, telephone calls, postage, etc. Less than $700.00.
Return: eleven nights lodging in a one or two-bedroom unit, Twenty-three days of lift tickets, and two all day private lesson, meals.
Possible damages: days in depositions, staff hours responding to discovery, may a win, maybe a loss. Either way, a customer we had spent money on to come to the resort was lost
Results: Happy guests and no lawsuit. I have three cards from the family on my shelf and a free meal.
In this case, I ignored our liability issues. I just concentrated on dealing with the guest, answering questions honestly or honestly saying, “I don’t know,” and getting back to the guest with answers when I learned them. Getting back to the customer and answering their questions establishes credibility.
Every time you say, “I don’t know,” write the question down and research to find the answer. If you can’t find an answer, explain why. Maybe there is no answer, but if you use that statement, there better not be an answer. Coming back and restating the question and answering the question will provide you with an immense amount of respect and trust. As Franklin Covey stated in his 7 Habits of Highly Effective People, talks about the Emotional Bank Account. He states you can only trust someone if they have developed an emotional bank account with the other person. “You make deposits in the emotional bank account through genuine courtesy, respect, and appreciate for that person and for the other point of view.”
When you make the commitment to establish an emotional bank account with another person:
Dr. Covey stresses the idea that a Win/Win situation is achievable when this type of relationship is established. A Win/Win resolution to any issue can work for a monetary or emotional crisis. However his words fit perfectly with the idea that lawsuits start as emotion. Develop a relationship, work to a Win/Win relationship on the emotional basis and you may not need to identify the financial issues
You are probably starting with a negative balance in the guests Emotional Bank Account. You are the person representing the loss of money, income, the injury or even loss of life. Whether or not you had any or all of the responsibility for the crisis, you are the person who must open and Emotional Bank Account and start making deposits.
Work hard at making deposits in to the Emotional Bank Account. You cannot even open an account unless you are sincere, unless you care, unless you have real empathy and a desire to help. “With those guides you can listen and when the opportunity presents itself, start making deposits.
“By listening, you will here the opportunity to establish deposits.” Establish report. Listen for the opportunity to learn about the guest. Learn about what type of deposits they want. To learn how they deal with the different issues they present, by listening to them.
Habit 4 of Dr. Stephen Covey is Win/Win involves mutual learning, mutual influence, and mutual benefits. Relationships built on a Win/Win begin with character and move toward relationships out of which flow agreements.
Compromise is a settlement and for most people settlement has a negative feeling, a negative connotation. Settlement is not the end of a problem, it is the result of what I was really owed, but I settled for something else. I was owed more, but I settled for less. You do not settle for anything in your life, why settle in this emotional issue. Settlement also means money. No emotion, only money. Once money is on the table, then money is the only currency that can be used to settle the issues. For money brings its own emotion, greed. And few, if any other emotions except love can overcome greed.
Who: You. It must be you or someone on your staff who can speak with authority for you and the business. Sending your attorney or risk manager will only raise suspicion that you have something to hide. You are real, you are credible, and you have the connection to the disaster that raises the concerns.
The guest has always dealt with customer service when there was a problem. Again what changed that moved the business response from customer service to risk management. The guest has a problem, deal with it, whether the room is too hot, they are short of towels, they are hungry or they are hurt.
What if the situation still goes bad? You have created several defenses to a lawsuit by being human, by showing kindness and being honest. The mother and son came back to the resort Mountain. The Mother and son rode the chairlift from which the boy had fallen. The defense: If it was so dangerous, why did you come back to the resort and ride the dangerous device. Why did you ride the same chair lift?
To rent equipment and sign up for the ski lesson, mother signed a rental agreement releasing her and son for future and past liability.
The thank-you cards I have from the mother make no allegations of negligence or wrongdoing on the part of the resort. A Plaintiff does not send the defendant thank you cards.
Even catastrophic accidents such as a customer death or accident can be handled to change a customer’s attitude about your company.
Even catastrophic accidents can be handled in a dignified manner providing comfort, support, and answers to your customers.
Your customer is at your business and their spouse dies. Have food delivered. Lots of food. Remember the casserole parade, (as I call it) of the sixties. Someone was hurt and within hours, casseroles were rolling down the sidewalk, some in the hands of mothers, others by kids. Families with problems did not have to cook.
Dealing with the problems, big and small can eliminate anger and many other emotions.
Helping a mourning family receive closure works. Unanswered question nag for years, maybe past the statute – maybe not.
This idea is not something that is person specific, anyone can use this technique. A friend of mine running a community outdoor recreation program had a minor injured on a mountain bike trip to Gunnison County. The program director called the father and told him about the incident and agreed to meet the father at the hospital about the time the ambulance was expected to arrive back to the Front Range.
At midnight, the agreed meeting time, my friend was walking into the hospital dreading what he was going to do. He knew beyond those doors was possibly an angry parent. He walked through the doors and met the father and they talked. The ambulance was two hours late, so both men had plenty of time to get to know one another. By the time the ambulance arrived they had become friends.
No litigation came from the child’s injuries. The program director and the father became such good friends they would meet for lunch.
In another situation, a rafting company in the Grand Canyon had an attorney receive a facial injury on a trip. She was helicoptered out of the grand to the hospital in Flagstaff. The river company managers met her in the hospital and spent time with her while she was there. When she checked out, she, along with an employee hiked down to the canyon and met up the trip and continued on. She later came back and took the entire trip again.
In both of these cases, they fear of dealing with an angry customer and the fear of litigation were put behind the business and the reality of dealing with an injured party was placed in the first priorty. In each case, the results were not successful in preventing litigation, but they had far reaching effects after the injuries had healed.
Money or Emotion
A mild mannered woman comes to the front desk of your business and asks for you by name. As you approach, she smiles and confirms your name. She then hands you several pieces of paper and says, “You’re served.”
Your rush to your attorney’s office with conflicting emotions fighting to surface. Rage that someone could sue you. Anger that you have to waste time over such a stupid issue. Concerned about the financial impact this is going to have on your business. Scared.
Your attorney reads the summons and complaint asks you a few questions and says, “Don’t worry, it is not personal. They only want money.”
Your attorney is wrong. It is personal. It is very personal for the plaintiff. For the consumer or customer listed as the plaintiff, the last issue your customer is thinking about is money. The customer is angry, is walking around with feelings of resentment. Your customer wants justice. He or she wants you and your business to hurt just as they hurt. They want to make sure that what you did to them never happens again.
It should be personnel for you. It is a sign of bad service, unjust treatment, or believing in lawyers and insurance companies too much. The easiest way to start a lawsuit is to protect your self from losing a lawsuit. That seems to be an impossible balancing act; however, it is quite possible and very easy. Worst-case scenario, you appear to be an honest, good-hearted person/corporation on the witness stand.
How you approach this problem, personal, or monetary is irrelevant now, but was critical at the time the problem first started.
References
Recreation Law 