Lawsuit because a ski helmet failed to protect a plaintiff from concussion.

Is this, the beginning of an avalanche of lawsuits for concussions from people wearing helmets?

Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEIS 217233

State: Wisconsin: United States District Court for the Western District of Wisconsin

Plaintiff: Steven Scott Rogers, by his guardian, Tracy Rogers, Tracy Rogers, Samba Health Benefit Plan, Blue Cross Blue Shield of Wisconsin, and State of Wisconsin Department of Health Services

Defendant: K2 Sports, LLC, Lexington Insurance Company, and AIG Europe Limited

Plaintiff Claims: negligence, strict product liability, and breach of warranty

Defendant Defenses:

Holding: Mostly for the Plaintiff

Year: 2018

Summary

This appears to be the first lawsuit over a ski helmet not protecting the skier from a brain injury. This is just a motion hearing. However, it provides some insight into the claims and defenses that will spring up in the future if people continue to believe that human-powered recreation helmets are going to protect against concussions and fatal head injuries.

Facts

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

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

This was a motion’s decision. A Motion for summary judgment was filed by the defendant who was denied and motions to exclude witnesses, expert witness testimony, etc., which were denied in part and granted in part for both parties.

The main issue is, it is a lawsuit against the manufacturer of a human-powered recreation helmet manufacturer for a concussion.

The motions covered a broad range of topics; this discussion will look at the important points from an outdoor recreation perspective.

The court started by looking at the Wisconsin Product Liability statute.

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages.

The substantial change requirement is interesting. That reasoning provides a defense for the manufacturer if the retailer makes modifications to the helmet for a sale. At the same time, it is how all people in the chain of custody of a product are held liable for a product liability claim. Any of the people in the chain of custody, manufacture, distributor, retailers could have identified the defect and prevented the defective product from reaching the consumer.

Generally, product liability claims are one of three types: “design defects, manufacturing defects, and warning defects.”

Design defects are levied when the product is designed badly from the beginning. Although there are a lot of design defect claims, there are rarely judgments based on design because most manufacturers understand safety issues.

One area that does pop up in design defects is when a product is used differently from what it was originally designed. If the manufacturer leans about the misuse of the product, then the manufacturer may be held liable for injuries due to the misuse of the product.

Manufacturing defects are simply a failure of quality control. Although in this day, you would think, manufacturing defects would be rare, they occur constantly. A manufacturing defect is usually the reason for a recall of a product.

The final defect, warning defects, are the easiest and toughest at the same time. Making sure the information on how to use a product and any warnings on how not to use the product are critical. At the same time, it is difficult for manufacture to envision how their product could be used and all the risks from those different uses.

As an example, when I’m design manuals and warnings, I want the product. After I have examined it thoroughly and tried every possible way to use it improperly, I ask someone who has no understanding of the product to use it. A sixteen-year-old kid can do amazing things that no one ever envisioned with some products.

Many times, a product liability lawsuit will include a negligence claim. Here the court compared the issues of proving a product negligence claim and a product liability claim.

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects.

The bold issue is another point you rarely know about. Your duty to design is just step one. Step two is you must test your product to make sure that it meets the intended purpose and the limits of your design. You design a product to do something. Once manufactured you must test the product initially and sometimes ongoing to make sure it still does what you say it will within the parameters you say it will operate.

This duty to test is increased if the duty arises from labeling or marketing. If you say the product contains X ounces of Sample or only breaks under loads greater than XX pounds you have to make sure each of your products meets that test.

The issue in ski helmets is not what the manufacturer says it can or cannot do. The issue is what the consumer believes the product will do. The consumer/plaintiff believes the ski helmet is designed to protect against a concussion, where, in reality; the design is just to slightly minimize the injury potential.

In this case, the plaintiff was claiming the helmet was defective. The plaintiff had to prove:

…a product is defective in design if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer, and the omission of the alternative design renders the product not reasonably safe.”

The helmet manufacturer, K2 brought up the fact that the helmet met the ASTM standards for ski helmets. That standard required the helmet to “keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.” If you look at that standard, it is minimal.

However, the ASTM helmet is not a 100% defense to a claim. It only shifts the burden to the plaintiff to prove the helmet was defective, more so since all helmet standards are voluntary.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim.

Voluntary standards, which most standards are identified as, are really only a sword and not a shield. If you don’t meet a standard, then it is proof you don’t care, and you had a cheap product. Failing to meet a standard is better in the plaintiff’s hands to proof you were bad, rather than in the defendant’s hands as a shield.

Under Wisconsin law, the court set forth the issues needed to prove a defect based on inadequate warnings on the product or provided to the consumer.

Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. There is a presumption that any missing instructions would have been read, and therefore a presumption of causation.

Here again, warnings are another weak shield for the defendant and a better sword for the plaintiff in litigation. Warnings show you tried to inform the consumer, or you told the consumer not to do something and they consumer did it anyway. The lack of a warning is a major sword to the plaintiff who can show the jury the lack of care and concern on the part of the manufacturer that should have and could have warned the consumer of the risk.

You can see the difference in the value of some arguments between the plaintiff and the defendant. If the defendant had the warning, it really does not matter except to hope you can argue it was written in a way that the consumer had to have seen it. If the manufacturer fails to have a warning, then the presumption is the consumer would have read the warning and not been hurt. But for the failure to have a warning, there would be no injury. If you are a manufacturer believing that since you have met the standards you are safe, you are soon to be renamed “Defendant.”

Even the voluntary part of the term “voluntary standard” can come back to haunt a manufacturer. If the manufacturer decides not to meet the standard, it is easy for the plaintiff’s attorney to argue the manufacturer did not meet the standard to save money, or because they did not care about their customers. Consequently, once a standard is created, voluntary or not, every manufacturer must meet the standard.

Worse, any standard then restricts research and development because of the fear of not meeting the standard and looking bad in court.

The motion did not look at the issues, we would like some clarification or the facts. What happened to cause the head injury that turned the plaintiff into a vegetable and more importantly, what did the plaintiff believe when they purchased the helmet.

So Now What?

The decision had a few interesting points. However, the greatest issue is the floodgates are now probably open for head injuries that occur to skiers and other recreationists while wearing a helmet. It will be interesting to see how this decision progresses through the courts and whether the issues of the amount of protections afforded versus the expectations of the consumer becomes an issue.

As the decision states. Ski helmets have limited ability to protect. The ASTM standard quoted in the decision requires the helmet to meet a simple test.

Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.

Human-powered recreation helmets, ski, bike, rollerblading, scooters, etc., only protect against minor scalp injuries, nothing more. If the NFL cannot protect football players with helmets costing thousands of dollars why to you think the piece of plastic you paid $100 is going to protect you from a concussion.

More articles about helmets

A helmet manufacture understands the issues (Uvex, Mouthguards)    http://rec-law.us/xpxX6n

A new idea that makes sense in helmets: the Bern Hard Hat    http://rec-law.us/yPerOd

Are we using safety as an excuse not to spend time with people? Is here, “wear your helmet” taking the place of let me show you how to ride a bike?    http://rec-law.us/1fqwlpV

Do you really want to sell helmets this way? Does this article promote the industry?    http://rec-law.us/NfoMTs

Does being safe make us stupid? Studies say yes.    http://rec-law.us/Ao5BBD

Great article on why helmet laws are stupid    http://rec-law.us/zeOaNH

Great editorial questioning why we need laws to “protect” us from ourselves.    http://rec-law.us/Ayswbo

Helmets do not increase risk of a neck injury when skiing    http://rec-law.us/wPOUiM

Helmets: why cycling, skiing, skateboarding helmets don’t work    http://rec-law.us/RVsgkV

Law requires helmets, injuries down fatalities up?    http://rec-law.us/YwLcea

Mixed emotions, but a lot of I told you so.    http://rec-law.us/ysnWY2

More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour    http://rec-law.us/z4CLkE

The helmet issue is so contentious people will say the stupidest things    http://rec-law.us/zhare9

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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




If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

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

helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed


Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

 Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

United States District Court for the Western District of Wisconsin

December 28, 2018, Decided; December 28, 2018, Filed

17-CV-534-JDP

Reporter

2018 U.S. Dist. LEIS 217233 *

STEVEN SCOTT ROGERS, by his guardian, Tracy Rogers, TRACY ROGERS, SAMBA HEALTH BENEFIT PLAN, BLUE CROSS BLUE SHIELD OF WISONSIN, and STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES, Plaintiffs, v. K2 SPORTS, LLC, LEXINGTON INSURANCE COMPANY, and AIG EUROPE LIMITED, Defendants.

Core Terms

helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed

Counsel: [*1] For Steven Scott Rogers, By his Guardian Tracy Rogers, Tracy Rogers, Blue Cross Blue Shield of Wisconsin, doing business as Athem Blue Cross and Blue Shield, Lexington Insurance Company, Plaintiffs, Counter Claimant, Counter Defendants: Charles M. Bye, Robert A. Parsons, LEAD ATTORNEY, Brian F. Laule, Bye, Goff, & Rohde, Ltd, River Falls, WI.

For Samba Health Benefit Plan, Plaintiff, Cross Claimant: Matthew Robert Falk, LEAD ATTORNEY, Falk Legal Group, Milwaukee, WI.

For State of Wisconsin – Department of Health Services, Involuntary Plaintiff, Plaintiff: Jesus Gabriel Garza, State of Wisconsin Department of Health Services, Madison, WI.

For K2 Sports, LLC, f/k/a K-2 Corporation, Defendant, Cross Defendant: Anne Marie Ellis, Gary A Wolensky, Michael Preciado, LEAD ATTORNEYS, Buchalter Nemer, Irvine, CA; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI; Leslie Gutierrez, LEAD ATTORNEY, Milwaukee, WI; Christopher Hossellman, Buchalter, APC, Irvine, CA.

For AIG Europe Limited, Defendant, Cross Defendant: Charles W. Browning, Sara D. Corbello, LEAD ATTORNEYS, Plunkett Cooney, Bloomfield Hills, MI; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI.

Judges: JAMES D. PETERSON, [*2] District Judge.

Opinion by: JAMES D. PETERSON

Opinion

OPINION & ORDER

Plaintiff Steven Scott Rogers fell while skiing and suffered a serious brain injury. Scott and his wife, plaintiff Tracy Rogers, contend that Scott’s helmet, made by defendant K2 Sports, was defectively designed and that the defect was a cause of his injury. They have sued K2 for negligence, strict product liability, and breach of warranty. Dkt. 32. Tracy also claims loss of consortium as a result of her husband’s injuries.1 K2 denies that the helmet was defective, contending instead that the helmet was the wrong size and that Scott had not properly fastened it, and that he was injured by direct contact with the ground.

K2 moves for summary judgment on all of plaintiffs’ claims. Dkt. 102. Plaintiffs oppose, and they move to strike defendant’s experts’ opinions that the helmet moved out of position when Scott fell. Dkt. 139.

At the heart of this case is a straightforward dispute about the role of the helmet in Scott’s injury. The court will limit the testimony of K2’s experts about how the injury occurred because some of those opinions are too speculative. But that still leaves genuine disputes about the fit of the helmet and whether it was [*3] properly designed, so K2’s motion for summary judgment will be denied.

UNDISPUTED FACTS

The following facts are undisputed except where noted.

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

The parties sharply dispute what happened to the helmet when Scott fell. K2 contends that the helmet was improperly fit and not properly fastened. K2’s theory is that as Scott fell, his helmet shifted out of place and the left posterior region of his head was exposed and directly hit the ground. Dkt. 144, ¶ 38. K2 contends that the helmet only partially protected Scott’s head, and that the point of impact on the helmet was below the “test line,” which is the lower limit of the area that is supposed to be protected under ASTM standards. K2 also contends that pictures from the [*5] day of the accident show that Scott failed to tighten the helmet’s chinstrap. Id., ¶ 39.

Plaintiffs contend that the helmet did not actually meet ASTM standards. Plaintiffs’ theory is that the bottom rear of the helmet was excessively tapered at the test line. As a result of the tapering, the helmet did not afford sufficient protection against a blow such as the one Scott suffered. Plaintiffs also contend that the helmet was the right size for Scott.

ANALYSIS

K2 moves for summary judgment on the grounds that plaintiffs cannot prove that Scott’s K2 helmet was defective or that it caused Scott’s injuries. In connection with their opposition to K2’s motion, plaintiffs move to strike parts of K2’s expert evidence. The court begins with plaintiffs’ challenge to the expert evidence.

A. Plaintiffs’ motion to exclude expert evidence

Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the court must serve as a gatekeeper to ensure that proffered expert testimony meets the requirements of Federal Rule of Evidence 702. Essentially, the gatekeeping function consists of a three-part test: the court must ensure that the expert is qualified, that the expert’s opinions are based on reliable methods and reasoning, and that the expert’s opinions will assist the jury in [*6] deciding a relevant issue. Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The proponent of expert evidence bears the burden of establishing that the expert’s testimony is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

Plaintiffs move to strike aspects of the expert reports of P. David Halstead and Irving Scher. Although plaintiffs dispute Halstead’s qualifications, the main question is whether Halstead and Scher used reliable methodologies and reasoning. The admissibility inquiry undertaken by the court “must be ‘tied to the facts’ of a particular case.” Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). The “critical inquiry” for admissibility is whether the opinion is rationally connected to the underlying data or “connected to the existing data ‘only by the ipse dixit of the expert.'” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781, 732 Fed. Appx. 484 (7th Cir. 2017). Expert testimony that merely asserts a “bottom line” or provides testimony based on subjective belief or speculation is inadmissible. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).

1. P. David Halstead

P. David Halstead is the Technical Director of Southern Impact Research Center. Halstead conducted a series of drop tests to try to replicate the damage on Scott’s helmet, and thereby to determine the amount of force that the helmet and Scott experienced at the time of Scott’s fall. Dkt. 110, at 6. Halstead offers two main opinions: (1) [*7] that the helmet was not defective, and (2) that the helmet was out of place at the time of the accident. Plaintiffs move to strike three aspects of Halstead’s report. Dkt. 137, at 6-7.

First, plaintiffs move to strike Halstead’s opinion that the helmet was out of position at the time of the accident. Halstead expresses that opinion in various forms:

• “It is my opinion that Mr. Rogers’ injuries were caused by complex fall kinematics that resulted while his helmet was out of position (rotated slightly to the left and possibly higher on the right) exposing his temporal bone in the area he sustained the mastoid fracture.” Dkt. 110, at 7.

• “Mr. Rogers sustained his injuries when his partially helmeted head, with the mastoid area of the temporal bone exposed, made contact with a somewhat compliant surface such as snow substantially similar to the snow measured at Afton Alps.” Id. at 9.

• “The skull fracture is a result of functionally direct contact with the impact surface to the mastoid area.” Id.

• “Given the test results had the helmet been in position the skull fracture almost certainly would not have occurred.” Id.

The court agrees with plaintiff that Halstead has not shown that this opinion is [*8] rationally connected to underlying data.

Halstead conducted a series of drop tests using K2 Phase 08 helmets, the same model as Scott’s helmet. Id. at 6. Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less. Dkt. 124-13, at 3. Although these drop tests were not testing for ASTM compliance, Halstead used 300 g as a threshold for the helmet’s effectiveness. Halstead conducted eleven tests by dropping helmets on to a modular elastomer programmer (MEP), a rubber pad that is somewhat harder than packed snow. Dkt. 110, at 6. None of the drops resulted in an acceleration of more than 181 g or damaged the helmet in a way that resembled the damage to Scott’s helmet. So Halstead conducted three more tests using a harder, steel anvil. Id. at 6. One of these drops did crack the helmet, but the damage was still not as severe as Scott’s helmet.

Halstead opined that because his tests could not replicate the damage to Scott’s helmet, Scott’s helmet must not have been in place on Scott’s head at the time of the accident. Id. at 8-9. Halstead did not conduct any follow-up testing; he [*9] did not, for example, try dropping the helmet while it was out of place on the headform or try dropping the helmet without using a full-sized headform. Instead, Halstead scanned both the accident helmet and the most severely damaged test helmet with a laser. Id. After eyeballing the results of the laser scan, Halstead again concluded that the damage did not match and that therefore the helmet was not in place at the time of the accident. He opined specifically that the helmet rotated to the left, exposing the area where Scott’s skull was fractured.

Two factors that a court may consider regarding the admissibility of expert testimony are whether the expert “unjustifiably extrapolated from an accepted premise to an unfounded conclusion” and whether “the expert has adequately accounted for obvious alternative explanations.” Gopalratnam, 877 F.3d at 788 (quoting Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005)). Both factors support striking Halstead’s opinion here. When Halstead’s test results failed to re-create the damage to Scott’s helmet, Halstead had a basis for concluding that Scott’s fall was in some way atypical. But he had no foundation to then extrapolate from these results that the helmet was therefore out of position. And he was even less justified [*10] in hypothesizing on the helmet’s exact orientation during the accident. Halstead did not confirm his hypothesis through additional testing, nor did he address alternative explanations for the damage to Scott’s helmet, such as the existence of a manufacturing defect or a weakening of the helmet through multiple impacts. And his use of laser scanning provided no additional details to support his hypothesis. Halstead simply picked one possible explanation for the test results and then assumed it was true. Halstead concedes that he is not an expert in the “full body kinematics” that are critical to understanding how Scott was injured. Dkt. 110, at 7.

Second, plaintiffs move to strike Halstead’s opinion regarding the speed and force of impact on Scott’s head at the time of the accident:

Based on biomechanical testing the likely impact speed of his head to the surface was 13-14 mph or higher, head accelerations were in the range of 170 g — 220 g with angular acceleration between 7000-8000 rad/sec2.

Dkt. 110, at 7. The court will strike this opinion. Rule 702 places the responsibility on the expert to explain how his methodologies support his opinions. Metavante, 619 F.3d at 761. Although not explicitly stated, Halstead appears [*11] to have adopted these numbers from the results of his tests on the MEP pad. Dkt. 110, at 6. But as Halstead emphasized in his report, the tests on the MEP pad were unable to replicate Scott’s accident. It is not clear why the speeds and forces of impact must nonetheless be correct, and Halstead does not provide an explanation.

Third, plaintiffs move to strike Halstead’s opinion regarding the helmet’s ability to protect against high-speed impact:

“As the biomechanical testing shows the helmet, at its thinnest, well below the test line is able to take an impact at nearly 14 miles per hour with a hemi anvil and still remain under 300g.”

Id. at 7. The court will not strike this opinion, which is based on the test results. Plaintiffs suggest that Halstead is not qualified to provide “biomechanical engineering opinions,” but in their reply brief, plaintiffs concede that Halstead is an experienced technician who is qualified to conduct the type of drop testing he performed. Dkt. 151, at 2.

The bottom line is that the court will consider Halstead’s drop testing analysis, but it will not consider his testimony that the helmet was out of place at the time of the accident.

2. Irving Scher, Ph.D., P.E

Irving [*12] Scher is a biomechanical engineer at Guidance Engineering and Applied Research. Scher’s report includes two separate sets of conclusions that are relevant to summary judgment. First, Scher used computer models to determine the fit and looseness of the helmet that Scott wore. Second, Scher conducted a biomechanical engineering analysis to determine the “kinematics” of the accident—the movement of Scott’s body and ski equipment according to the laws of physics. Plaintiffs move to strike both sets of conclusions. Dkt. 137, at 7-8.

a. Helmet fit

Scher opines that the helmet was poorly fit and that it was loose enough to move out of place:

• “Mr. Roger’s head circumference at the hat line is approximately 57 centimeters. Because the head size recommended for the subject helmet ranges from 59 to 62, Mr. Rogers’ head was at or below the lower end of the subject helmet’s size.” Dkt. 107, ¶¶ 10-12.

• “At the level of the helmet brim there was at least 2 to 4 centimeters of free space between Mr. Rogers’ head and the helmet in the anterior-posterior direction, and the helmet had space to rotate 20 degrees clockwise and counter-clockwise.” Id. ¶ 13.

• “The subject helmet was not snugly fitted to Mr. [*13] Rogers’ head.” Id. ¶ 14.

These opinions are rationally connected to the reasonably reliable data that Scher considered; the court will not strike them.

Scher created a 3D computer model of Scott’s head from the CT scans on the night of Scott’s accident. Dkt. 112, at 15. Using this model, Scher calculated circumference of Scott’s head as 57 centimeters. Because the helmet that Scott purchased was recommended for head circumferences of 59 to 62 centimeters, Scher opined that Scott’s helmet was one size too large. Scher scanned an exemplar K2 helmet of the same size as Scott’s helmet. Within his computer modeling software, Scher placed the 3D model of the helmet on the 3D model of Scott’s head. Scher determined that there was at least 2.25 centimeters of free space between Scott’s head and the interior of the helmet, and that with this extra space the helmet could freely rotate 20 degrees clockwise and counterclockwise. Finally, Scher viewed photographs of Scott on the day of the accident and determined that Scott’s chin strap was “loose.” Id. at 16. Scher’s analysis of the helmet’s fit led Scher to conclude that it was possible for the helmet to move out of position and expose a portion of the [*14] posterior region of Scott’s head.

Plaintiffs contend that Scher’s analysis is unreliable because Scott’s head actually has a circumference of 60 centimeters, not 57 centimeters. Plaintiffs’ measurement comes from Tracy’s declaration that she measured Scott’s head with a tape measure. Dkt. 123, ¶¶ 7-8.3 Neither party adduces evidence showing that the other party’s measurement is manifestly incorrect, so the size of Scott’s head is a matter of genuine dispute.4 Such a dispute does not render Scher’s opinion inadmissible.

b. Kinematics analysis

Scher also offered opinions about how Scott fell and how he was injured, which Scher refers to as a “kinematics” analysis. He expresses those opinions as follows:

• “Mr. Rogers likely caught his ski edge, fell forward and leftward while rotating clockwise and continuing downhill, and contacted the left, posterior region of his helmeted head on his acromioclavicular joint and proximal humerus, a very rigid area of hard-packed snow, or both.” Dkt. 112, at 36.

• “Because the helmet was not snug on Mr. Rogers’s head and he did not adjust appropriately the chin strap, the subject helmet was able to (and did) move out of position during Mr. Rogers’s fall [*15] and subsequent head impact.” Id.

• “No snowsport helmet would be able to prevent the injuries sustained by Mr. Rogers in the subject accident.” Id.

• “The subject helmet rotated axially counterclockwise and rightwards on Mr. Rogers’ head during his fall such that his helmet was out of place and exposed a portion of the left posterior region of his head just prior to impact.” Dkt. 107, ¶ 9.

• “Mr. Rogers failed to properly tighten the subject helmet’s chin strap, which allowed the subject helmet to move out of position as he fell.” Id. ¶ 15.

• “Immediately before Mr. Rogers’ head contacted the ground, the subject helmet moved out of position, causing the point of impact to be below the helmet’s test line.” Id. ¶ 18.

• “In my professional opinion, any snow sport helmet with a similar fit and loose chin strap on Mr. Rogers’ head would have similarly moved relative to his head in the subject fall.” Id. ¶ 20.

The court will not consider these opinions because they are too speculative: there is simply not enough information about how Scott fell to support this analysis.

Based on the assumption that “catching an edge” is a common occurrence among skiers, and the location and severity of Scott’s [*16] injuries, Scher created a computer simulation using the computer program MADYMO. Scher ran several simulations in MADYMO, using different estimates for Scott’s speed and the conditions on the ski slope. Id. at 29. He tweaked the variables in the simulation until he was able to create a simulation that could result in injuries similar to Scott’s injuries. Then based on that simulation, he opined on Scott’s body movements as he fell, and the forces that Scott experienced when he hit the ground. Scher opines both that Scott’s helmet hit the ground below the test line, and that Scott hit the ground with such force that no helmet could have prevented Scott’s injuries.

Scher’s simulation, and the opinions based on it, are inadmissible because they are based on guesswork rather than the facts of Scott’s accident. An expert must show that he has sufficient data to use the methodology employed. See Gopalratnam, 877 F.3d at 781 (Rule 702 requires the underlying data to be both qualitatively and quantitatively sufficient to conduct the analysis). Opinions that are based on speculation are inadmissible. Metavante, 619 F.3d at 761. Here, there was no witness who could describe the moments leading up to the fall, no measurement or even estimate of Scott’s speed at the [*17] time of the fall, and no reliable evidence of Scott’s skiing abilities or style. The court will exclude the opinions expressed on pages 21 through 31 of Scher’s report. Dkt. 112.

Scher is free to testify that the helmet was loose and that it might have moved out of position. And he can testify that based on Halstead’s testing, and based on the literature regarding head injuries and ski accidents, it seems unlikely that a typical fall could have caused the injuries that occurred. But Scher cannot speculate that the helmet actually moved or opine on the exact location of the helmet at the time of impact.

B. K2’s motion for summary judgment

Plaintiffs bring claims under theories of strict product liability, negligence, breach of warranty, and loss of consortium. K2 moves for summary judgment on all of plaintiffs’ claims. The court will grant summary judgment on only the breach of warranty claims, which plaintiffs waive. Genuine disputes of material fact preclude summary judgment on the other claims.

1. Summary judgment standard

Summary judgment is appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views all facts [*18] and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment will not be granted unless “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

2. Strict Product liability claim

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages. Wis. Stat. § 895.047(1). K2 contends that they are entitled to summary judgment because plaintiffs cannot show that the helmet had a defect that rendered it unreasonably dangerous and because plaintiffs cannot show that the alleged defect caused Scott’s injuries.

There are three different categories of defects under the statute: design defects, manufacturing defects, and warning defects. Plaintiffs concede that they do not have evidence of a manufacturing defect, but they bring alternative claims for defective design if the helmet was in place during the accident and [*19] defective warning if the helmet fell out of place before the impact. Under the first theory, plaintiffs must show that the helmet had a design defect that caused Scott’s injuries to be worse than they would have been without the defect. Under the second theory, plaintiffs must show that the helmet’s instructions did not warn users to tighten the chinstrap. K2 seeks summary judgment as to both theories.

a. Defective design

Defendants contend that plaintiffs cannot adduce evidence of a design defect and that, even if a defect exists, plaintiffs cannot show that it caused Scott’s injuries. The court will address each element in turn.

i. Unreasonably dangerous defect

Summary judgment is inappropriate when resolution of a claim requires the court to choose between opposing expert testimony. See Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008) (explaining that “in a case of dueling experts . . . it is left to the trier of fact . . . to decide how to weigh the competing expert testimony”). That is the case here. Both parties hired experts to test K2 helmets according to ASTM standards, but the experts disagree on the testing procedures and achieved different results.6

Under Wisconsin’s product liability statute, a product is defective in design [*20] if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a).

K2 contends that plaintiffs have not shown any evidence of a design defect. But plaintiffs’ expert, Mariusz Ziejewski, provides evidence sufficient to support a reasonable jury verdict that a foreseeable risk of harm could have been reduced by the adoption of a reasonable alternative design. Ziejewski’s report states that due to tapering at the edge, the K2 helmet does not provide the protection required by ASTM standards when struck in the lower back. Dkt. 116; Dkt. 124-7. Ziejewski further states that other helmets without this tapering do provide the protection required by ASTM. This makes the K2 helmet more dangerous than helmets from K2’s competitors.

K2 argues that Ziejewski’s report is insufficient to establish a design defect because the report does not specifically opine that the design of the K2 helmet rendered it “not reasonably safe” or “unreasonably dangerous.” Dkt. 103, at 12. But an expert does not need to parrot the exact language [*21] used in the statute. See In re Zimmer NexGen Knee Implant Prods. Liab. Litig., 218 F. Supp. 3d 700, 725 (N.D. Ill. 2016), aff’d sub nom. In re Zimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746 (7th Cir. 2018) (“Plaintiffs are not required to put forth an expert to say the magic words . . . But Plaintiffs must provide sufficient evidence to allow a jury to reach that conclusion without resorting to speculation”) (applying Wisconsin law). A jury could use the evidence in the report to find that the increased danger posed by the K2 helmet’s tapering is unreasonable.

K2 also contends that to establish a design defect, plaintiffs must show that the K2 helmet failed the ASTM standards that were in effect at the time of manufacturing. K2 argues that Ziejewski instead tested the K2 helmet according to current ASTM testing procedures. Ziejewski concedes that he used the updated procedures, but he argues that it is more accurate than the old testing standard. Dkt. 124, ¶¶ 22-23. Plaintiffs need to show only that a reasonable alternative design would have eliminated the risk of harm. Ziejewski tested multiple helmets using the same test methods and concluded the K2 helmet failed where alternative designs did not.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled [*22] to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim. See Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992, 997 (W.D. Wis. 2006) (citing Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326 (1st Cir. 2004)). So, at trial, K2 can raise this defense in response to plaintiffs’ negligence claim. But it is only a piece of evidence that the jury may weigh when deciding whether defendants met their duty to exercise reasonable care. Id.

ii. Causation

K2 also contends that it is entitled to summary judgment because the helmet was out of place at the time of impact, so plaintiffs cannot show that any alleged defect caused Scott’s injuries. The location of the helmet at the time of the accident is sharply and genuinely disputed, so that theory provides no basis for granting summary judgment to K2.

Nevertheless, K2 contends that even if the helmet was in place, it is still entitled to summary judgment because no helmet could have prevented Scott’s injury because preexisting injuries made him particularly vulnerable. This theory provides no basis for granting summary judgment to K2 either.

K2 adduces some evidence that Scott had suffered [*23] previous head injuries. Dkt. 144, ¶¶ 45-50. But K2 has scant evidence that the prior injuries were serious ones. More important, K2 does not adduce any evidence to support the outlandish statement in its brief that “no helmet would have been able to prevent the injuries he sustained on December 31, 2015.” Dkt. 103, at 10. K2’s own proposed findings of fact undermine this idea:

Had Mr. Rogers not been wearing a helmet, his brain injury would have been at least as severe if not more severe than it was on December 331, 2015, leaving him with worse permanent residuals or traumatic brain injury, or could have even adversely impacted his survival.

Dkt. 144, ¶ 51. K2 also says that plaintiffs’ expert Ziejewski “concedes that an alternative design would not have prevented Mr. Rogers from suffering a traumatic brain injury or a subdural hematoma in the subject incident.” Dkt. 103, at 11 (citing Dkt. 144, ¶ 28). As plaintiffs point out, K2 has grossly misstated the substance of Ziejewski’s deposition testimony in this proposed fact. Ziejewski testified that a properly designed helmet would have prevented a subdural hematoma, a level 4 injury. Ziejewski acknowledged that even with a properly designed [*24] helmet, “mild traumatic brain injury” was still a possible or likely outcome. Dkt. 122, at 28:21-29:25.

b. Defective Instructions

Plaintiffs’ alternative theory is that if the helmet slipped out of place before impact, it slipped because of defective instructions. Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. Michaels, 411 F. Supp. 2d at 1006 (citing Tanner v. Shoupe, 228 Wis. 2d 357, 596 N.W.2d 805, 817-18 (Ct. App. 1999)). There is a presumption that any missing instructions would have been read, and therefore a presumption of causation. Id.

Throughout its briefing, K2 contends that the looseness of Scott’s chinstrap was a factor that caused the helmet to slip out of place. Plaintiffs contend [*25] that any mistake by Scott in tightening his chinstrap was caused by the fitting instructions included with the helmet. The helmet’s instructions state that the helmet should be snug and that after adjusting the straps and pads, “the skin on your forehead should move with the helmet.” Dkt. 145, ¶ 10. The instructions do not include specific directions on the tightness of the chinstrap. A reasonable jury could find that this instruction does not warn consumers that they need to tighten the chinstrap in addition to adjusting the pads and comfort liner.

K2 contends that plaintiffs are required to adduce expert testimony regarding the effectiveness of product warnings. Dkt. 103, at 15. But K2 cites no case in which expert testimony was required to show that a warning was defective. Under Wisconsin law, expert testimony is required only if the court finds that “the underlying issue is not within the realm of the ordinary experience of mankind.” State v. Kandutsch, 2011 WI 78, ¶ 28, 336 Wis. 2d 478, 799 N.W.2d 865 (internal quotations omitted). And Wisconsin courts have declined to require expert testimony in cases involving much more complex issues than these fitting instructions. See Lindeman v. Mt. Olympus Enterprises, Inc., No. 14-cv-435, 2015 U.S. Dist. LEXIS 105756, 2015 WL 4772925, at *3 (W.D. Wis. Aug. 12, 2015) (collecting cases). [*26] Here, the instructions are written in plain language, and the act of reading and following instructions is well within the ordinary experience of mankind.

The court denies K2’s motion for summary judgment on the defective instructions claim.

3. Negligence claim

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. Smaxwell v. Bayard, 2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects. Wis. Civil Jury Instructions § 3200(2).

K2 contends that plaintiffs have not adduced evidence of “specific acts of negligence.” Dkt. 103, at 17. But plaintiffs can rely on the same evidence used to establish their product liability claims. Although negligence and product liability are alternative theories of liability, there is significant overlap between the two. See Krien v. Harsco Corp., 745 F.3d 313, 317 (7th Cir. 2014) (“[A] [*27] claim of strict products liability is much like a negligence claim because it requires proof either that the product was unreasonably dangerous or, what amounts to the same thing, that it was defective”). Plaintiffs’ expert testimony from Ziejewski is sufficient to create a material dispute regarding whether K2 breached its duty to design a product that was safe for skiers.

4. Breach of warranty claim

K2 moves for summary judgment on plaintiffs’ claims for breach of warranty on two grounds. Dkt. 103, at 17-18. First, K2 contends that under Austin v. Ford Motor Co., claims for breach of warranty cannot be brought when the plaintiff has a tort claim. See 86 Wis.2d 628, 273 N.W.2d 233, 240 (1979) (“[I]t is inappropriate to bring an action for breach of warranty where a tort remedy is sought”). Second, K2 contends that there is no privity of contract between plaintiffs and K2. See St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623, 626 (7th Cir. 2008) (Wisconsin law requires privity of contract between parties before liability can be founded on breach of express or implied warranty).

Plaintiffs have not substantively responded to either of these arguments. Dkt. 137, at 52-53. Failure to respond to an argument can result in waiver or forfeit of a claim. Nichols v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D. Wis. 2007) (collecting cases). Because plaintiffs did not [*28] respond to K2’s arguments regarding privity or the ability to bring warranty claims in a tort case, the court will grant summary judgment for K2 on plaintiffs’ claims for breach of warranty.

5. Loss of consortium claim

K2 moves for summary judgment on Tracy’s loss of consortium claim because it is derivative of Scott’s injuries. Because the court denies summary judgment on Scott’s product liability and negligence claims, it will also deny summary judgment on Tracy’s claim for loss of consortium.

K2 also moves to dismiss Tracy’s claim on the ground that plaintiffs have not properly pleaded loss of consortium in their amended complaint. Plaintiffs’ amended complaint does not include “loss of consortium” as an independent cause of action, but it does include allegations that “Plaintiff Tracy Rogers . . . has been deprived of the services, society, companionship and consortium of Scott Rogers as a proximate result of his enhanced injuries.” Dkt. 32, ¶ 23. K2 contends that this is insufficient under the plausible pleading standard of Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

Plaintiffs’ allegations are sufficient to state a claim. Even post-Iqbal, Federal Rule of Civil Procedure 8 requires only “adequate notice of the scope of, and basis for” the asserted claims. [*29] Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir. 2015) (citing Vincent v. City Colleges of Chi., 485 F.3d 919, 923 (7th Cir.2007)). Here, K2 had adequate notice that Tracy was seeking relief for loss of consortium as a result of the enhanced injuries caused by the K2 helmet.

C. Additional motions and requests for relief

As a final matter, plaintiffs ask the court to deny certain requests by K2 that plaintiffs contend were improperly included in K2’s summary judgment reply. Dkt. 149. Some of the “motions” to which plaintiffs refer are objections to allegedly inadmissible evidence—objections that K2 is allowed to raise during summary judgment. For example, K2 objects that the declarations from Tracy and Ziejewski, first produced with plaintiffs’ summary judgment opposition, are untimely expert testimony. Dkt. 143, at 3-10. There is nothing improper about K2 making these objections in its summary judgment reply. (The court has overruled the objection to Tracy’s declaration, and it has not considered the Ziejewski declaration. Whether the Ziejewski evidence will be allowed at trial will be addressed later at the final pretrial conference.)

But K2 requests two additional forms of relief in its reply brief. First, K2 contends that plaintiffs should be sanctioned for spoliation because Tracy adjusted the helmet’s [*30] comfort liner and therefore altered it from its condition at the time of the accident. Dkt. 143, at 7-8 fn. 7. Second, K2 contends that plaintiffs did not disclose the existence of Scott’s ski goggles and must be ordered to turn them over. Id. at 8.

A party may not raise new issues in a reply brief. See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). In any event, both of K2’s requests for additional relief are undeveloped. The spoliation arguments are relegated to a footnote. And both requests misconstrue the history of this case. K2’s own experts previously removed the helmet’s comfort lining at issue. Dkt. 112, at 10-11. And K2 was already aware of Scott’s goggles, Dkt. 130 (Tracy dep. 33:9-17), and Halstead included a pair of goggles as a factor in his testing. Dkt. 110, at 4. The court will deny K2’s requests for additional relief, thus granting plaintiffs’ request.

ORDER

IT IS ORDERED that:

1. Plaintiffs motion to exclude the opinion testimony of K2’s experts, Dkt. 139, is GRANTED in part and DENIED in part, as provided in this opinion.

2. Defendant K2’s motion for summary judgment, Dkt. 102, is DENIED for the most part. The motion is GRANTED only with respect to plaintiffs’ claims for breach of warranty.

3. Plaintiffs Scott Rogers and [*31] Tracy Rogers’ motion, Dkt. 149, for summary denial of K2’s motions is GRANTED in part. The court denies defendant K2’s motions to produce ski goggles and to sanction plaintiffs for spoliation.

4. Pursuant to the parties’ stipulation, Dkt. 250, all claims as to defendants Lexington Insurance Company and AIG Europe Limited are DISMISSED without prejudice.

Entered December 28, 2018.

BY THE COURT:

/s/ JAMES D. PETERSON

District Judge


Words and Phrases Defined in an Articles

The articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.

This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.

Term or Phrase

State

Article that Defines the Term or Phrase

Adhesion Agreement Colorado Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.
Admiralty Law Nevada Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.
Agency New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Amicus Curiae Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
Ambiguity Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Apparent Authority New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Pennsylvania Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company
Assumption of Risk Assumption of the Risk    http://rec-law.us/wMtiET
Assumption of Risk — Checklist
California Assumption of the Risk to be a bar to a claim the defendant must now owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.
Hawaii The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win
Massachusetts Duty of care for a Massachusetts campground is to warn of dangerous conditions.
New York If you have a manual, you have to follow it, if you have rules you have to follow them, if you have procedures, you have to follow them or you lose in court.

Skier assumes the risk on a run he had never skied before because his prior experience.

Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Pennsylvania PA court upholds release in bicycle race.
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
South Carolina Assumption of the risk is used to defeat a claim for injuries on a ropes course.
Express Assumption of risk California BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.
Delaware If you agree to the rules you have to follow the rules
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Implied Assumption of the risk Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Primary Assumption of Risk Delaware If you agree to the rules you have to follow the rules
Minnesota Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

BSA (Cub Scout) volunteer not liable for injuries to cub because cub assumed the risk of his injuries. BSA & Council not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Secondary
Assumption of Risk
Arkansas Proof of negligence requires more than an accident and injuries. A Spectator at a rodeo needed proof of an improperly maintained gate.
California Most references in case law to assumption of the risk are to this California decision
Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Business Invitee Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Certiorari Colorado Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.
Common Carrier California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
Contracts
Meeting of the Minds North Carolina When is a case settled? When all parties (and maybe their attorneys) agree it is settled
Consideration What is a Release?
Concurring Opinion Utah The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality
Contribution Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Declaratory Judgment New Hampshire What happens if you fail to follow the requirements of your insurance policy and do not get a release signed? In New Hampshire you have no coverage.
Derivative Claim Sign in sheet language at Michigan health club was not sufficient to create a release.
Duty of Care California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Washington Summer Camp, Zip line injury and confusing legal analysis in Washington

Good News ASI was dismissed from the lawsuit

Essential Public Services Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Expert Witness Connecticut Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.
Failure to Warn New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Foreseeability Colorado Be Afraid, be very afraid of pre-printed forms for your recreation business
Illinois When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
Ohio Liability of race organizer for State Park Employees?
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff.
Idaho Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.
Forum non conveniens Kansas If you fall down in a foreign country, and you have paid money to be there, you probably have to sue there.
Fraud Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality
Fraudulent Inducement New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Fraudulent Misrepresentation Georgia Lying in a release can get your release thrown out by the court.
California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Gross Negligence California Release saves riding school, even after defendant tried to show plaintiff how to win the case.
Idaho Statements made to keep a sold trip going come back to haunt defendant after whitewater rafting death.
Maryland Sky Diving Release defeats claim by Naval Academy studenthttp://rec-law.us/1tQhWNN
Massachusetts Colleges, Officials, and a Ski Area are all defendants in this case.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Michigan Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

Allowing climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate release.

Nebraska In Nebraska a release can defeat claims for gross negligence for health club injury
New Hampshire In this mountain biking case, fighting each claim pays off.
New Jersey New Jersey upholds release for injury in faulty bike at fitness club
New York New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
Pennsylvania wrongful death statute is written in a way that a split court determined the deceased release prevented the surviving family members from suing.
Tennessee 75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense
Texas Suit against a city for construction retaining wall in City Park identifies defenses to be employed to protect park patrons.
Utah Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident.

The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality

Inherently Dangerous Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Inherent Risks California This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).
Interlocutory Appeal Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Utah Utah courts like giving money to injured kids
Invitee Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Joint Venture Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Judgment Notwithstanding the Verdict (JNOV or J.N.O.V.) Maryland Skiing collision in Utah were the collision was caused by one skier falling down in front of the other skier
Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Lex loci contractus Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Long Arm Statute Requirements New York To sue a Vermont ski area there must be more than a web presence to sue in New York
Material Breach of a Contract Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Motion to Dismiss Colorado Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligence Georgia Georgia court finds no requirement for employee to interview when higher trained first aid providers are present
Idaho Idaho Supreme Court holds is no relationship between signs posted on the side of the trampoline park in a duty owed to the injured plaintiff
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Indiana Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball.

An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.

Louisiana Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Maryland Plaintiff failed to prove that her injuries were due to the construction of the water park slide and she also assumed the risk.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Mississippi Mississippi decision requires advance planning and knowledge of traveling in a foreign country before taking minors there.
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Negligence (Collateral) Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Negligence Per Se Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Florida Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Illinois (does not exist) When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligent Misrepresentation New York The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiff
No Duty Rule Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Open and Obvious Michigan The assumption of risk defense is still available when the claim is based on a condition of the land. This defense is called the open and obvious doctrine.
New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Rhode Island
Passive-Retailer Doctrine Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Premises Liability Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Prima facie New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Prior Material Breach Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Product Liability Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.
Tennessee Pacific Cycle not liable for alleged defective skewer sold to plaintiff by Wal-Mart
Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Negligent Product Liability Illinois Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury
Public Policy California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
Oregon Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.

Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?

Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Punitive Damages New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Rescue Doctrine South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Recklessness Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Ohio BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Release Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality

Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.

New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Oklahoma Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.
New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Pennsylvania Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing

Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.

Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Release Fair Notice Requirement under Texas law Texas Federal Court in Texas upholds clause in release requiring plaintiff to pay defendants costs of defending against plaintiff’s claims.
Remittitur Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
res ipsa loquitur Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Respondeat superior Missouri US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.
New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Restatement (Second) of Torts Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Standard Colorado
California
Words: You cannot change a legal definition
New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night
Rhode Island Rhode Island, applying New Hampshire law states a skier assumes the risk of a collision.
Standard of Review Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Sudden Emergency Doctrine New York Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit
Summary Judgment Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Superseding or Intervening Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Tort Louisiana Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR
Unconscionable Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
United States Constitution Fourteenth Amendment Buy something online and you may not have any recourse if it breaks or you are hurt
Willful, Wanton or Reckless Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Ohio Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Nebraska Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the cause of the death.
Wyoming Rental agreement release was written well enough it barred claims for injuries on the mountain at Jackson Hole Mountain Resort in Wyoming
Wrongful Death Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.

Last Updated April 24, 2018


275 cases have been reviewed on Recreation-Law.com

That means more than 275 articles have been written looking at the legal issues of Outdoor Recreation for Outfitters, Guides, Manufacturers, College & University for credit and non-credit programs and many other

Here are the cases I’ve reviewed:

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527    http://rec-law.us/2hVLLhm

Albert v. Ober Gatlinburg, Inc., 2006 U.S. Dist. LEXIS 100150    http://rec-law.us/1hRlKFP

Alexander v. The Sports Authority, Inc., et al., 2007 U.S. Dist. LEXIS 43317    http://rec-law.us/1idHb4V

Allison v. Charter Rivers Hospital, Inc, 334 S.C. 611; 514 S.E.2d 601; 1999 S.C. App. LEXIS 43    http://rec-law.us/1fpUgtf

Almquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79261    http://rec-law.us/2b7Ik5b

Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198    http://rec-law.us/2l0IwXz

Alvero v. Allen, Jr., 262 A.D.2d 434; 692 N.Y.S.2d 116; 1999 N.Y. App. Div. LEXIS 6634        http://rec-law.us/1ROrCW3

Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819    http://rec-law.us/1npYR0s

Anderson v Boyne USA, Inc., 2012 Mich. App. LEXIS 1725    http://rec-law.us/ICcr07

Angland v. Mountain Creek Resort, Inc., 2011 N.J. Super. Unpub. LEXIS 2542    http://rec-law.us/Hc9ZqD

Atcovitz v. Gulph Mills Tennis Club, Inc, 571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832    http://rec-law.us/1mslAfq

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2    http://rec-law.us/12c3Ha1

Ayzenberg v Bronx House Emauel Campus, Inc., etc., 93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396    http://rec-law.us/VK2ocE

Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218    http://rec-law.us/18IFVV8

Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080    http://rec-law.us/1neytrW

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994    http://rec-law.us/1xvOs9u

Barnes & a. v. New Hampshire Karting Association, Inc, 128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254    http://rec-law.us/2jSMvAl

Barnes v. Dungan et al., 261 A.D.2d 797; 690 N.Y.S.2d 338; 1999 N.Y. App. Div. LEXIS 5556    http://rec-law.us/1c6hxjp

Bastable v. Liberty Tree Mall Limited Partnership, 6 Mass. L. Rep. 217; 1996 Mass. Super. LEXIS 64    http://rec-law.us/2dmBqnE

Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)    http://rec-law.us/1aIBzyQ

Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998)    http://rec-law.us/2uRbdd1

Becker v. Hoodoo Ski Bowl Developers, Inc., 269 Ore. App. 877; 346 P.3d 620; 2015 Ore. App. LEXIS 319    http://rec-law.us/1lHMjET

Benavidez v. The University of Texas — Pan American, 2014 Tex. App. LEXIS 11940    http://rec-law.us/1vgi4sa

Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312    http://rec-law.us/YBTceE

Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212    http://rec-law.us/261enbO

Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90    http://rec-law.us/1nqJGny

Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43    http://rec-law.us/GYdiUr

Bishop vs – Nelson Ledges Quarry Park, Limited, et al., 2005-Ohio-2656; 2005 Ohio App. LEXIS 2504    http://rec-law.us/2aTyYE2

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897    http://rec-law.us/1bpyPHR

Blackwell, v. Sky High Sports Nashville Operations, LLC. 2017 Tenn. App. LEXIS 6    http://rec-law.us/2rY5rlU

Boisson v. Arizona Board of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7    http://rec-law.us/2enLvnY

Bonne, et al., v. Premier Athletics, LLC, et al., 2006 U.S. Dist. LEXIS 77802    http://rec-law.us/HeFemi

Bossi v. Sierra Nevada Recreation Corporation et al, 2004 Cal. App. Unpub. LEXIS 1992    http://rec-law.us/RaqgkN

Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53    http://rec-law.us/1pi97g5

Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662    http://rec-law.us/2D24cYv

Brookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393    http://rec-law.us/1fzWlPL

Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204        http://rec-law.us/11KEUsP

Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141    http://rec-law.us/GYcpew

Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638    http://rec-law.us/1s09gqA

Burgad v. Jack L. Marcus, Inc., 345 F. Supp. 2d 1036; 2004 U.S. Dist. LEXIS 24491; CCH Prod. Liab. Rep. P17,226    http://rec-law.us/1eA9Uwn

Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344    http://rec-law.us/11JYZdA

Camire v. The Gunstock Area Commission, 166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60    http://rec-law.us/1IuciVx

Camp Illahee Investors, Inc., v. Blackman, 870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672    http://rec-law.us/Hb6hjG

Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709    http://rec-law.us/1jWsf0S

Carrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251    http://rec-law.us/1bBuCex

Chapple, Et Al., v. Ultrafit Usa, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366    http://rec-law.us/1cyVosh

Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989)    http://rec-law.us/2sdIhMr

Choi and Keane v. Hunterdon County YMCA, Inc., et. al., 2017 N.J. Super. Unpub. LEXIS 2737    http://rec-law.us/2Af0j3S

Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563    http://rec-law.us/1WEeFwT

Cole v. Boy Scouts of America, 2011 S.C. LEXIS 383    http://rec-law.us/GXvqum

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183    http://rec-law.us/2y9JMge

Colony Insurance Company v. Dover Indoor Climbing Gym & a., 158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51    http://rec-law.us/2sNyfi8

Colyer v. First United Methodist Church of New Albany, 2016 Miss. App. LEXIS 160    http://rec-law.us/23ORxmL

Conning v. Dietrich, 2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481    http://rec-law.us/1jOJhZh

Cottom v. USA Cycling, Inc, 2002 U.S. Dist. LEXIS 6745 (W.D. Mich. 2002)    http://rec-law.us/173kQld

Cotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919    http://rec-law.us/MWodNV

Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386    http://rec-law.us/Xm7L53

Cunningham v. Jackson Hole Mountain Resort Corporation, 2016 U.S. App. LEXIS 22608    http://rec-law.us/2qDmlWL

D’Amico, v. Great American Recreation, Inc., 265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499    http://rec-law.us/1UrOYl3

Davis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423    http://rec-law.us/XjgsZB

De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297    http://rec-law.us/1UYtPiD

Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527    http://rec-law.us/1eA8RfR

Derienzo v. Trek Bicycle Corporation, 376 F. Supp. 2d 537; 2005 U.S. Dist. LEXIS 14402; 57 U.C.C. Rep. Serv. 2d (Callaghan) 863    http://rec-law.us/1dwyqyE

DeWitt, Jr. v. Felt Racing, LLC et al., 2017 Conn. Super. LEXIS 235    http://rec-law.us/2gMwDAg

DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695    http://rec-law.us/2q7fJ5O

Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584    http://rec-law.us/1Hp65Pn

Doe v. Cedars Academy, LLC, 2010 Del. Super. LEXIS 559    http://rec-law.us/JsT2yI

Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412    http://rec-law.us/2mGxOkY

Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807    http://rec-law.us/LwaCmb

Duncan, et al., v. Ryba Company, 1999 U.S. Dist. LEXIS 12424    http://rec-law.us/1hwbulZ

Elliott, v. Carter, 2016 Va. LEXIS 151    http://rec-law.us/2eNYr3F

Espinoza, Jr., v. Arkansas Valley Adventures, LLC, 2016 U.S. App. LEXIS 39    http://rec-law.us/1WxAdLI

Fecke v. The Board of Supervisors of Louisiana State University, 2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357    rec-law.us/1MSWIsZ

Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603    http://rec-law.us/2iSOd75

Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185    http://rec-law.us/1aOOz1H

Fleury v. IntraWest Winter Park Operations Corporation, 2014 Colo. App. LEXIS 242    http://rec-law.us/M6gByP

Fleury v. IntraWest Winter Park Operations Corporation, 2016 CO 41; 2016 Colo. LEXIS 532    http://rec-law.us/1Us5zjP

Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27    http://rec-law.us/1cw5KZA

Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)    http://rec-law.us/11pcuzl

Galloway v. State of Iowa, 790 N.W.2d 252; 2010 Iowa Sup. LEXIS 109    http://rec-law.us/MsfCcE

Galvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257    http://rec-law.us/GYhrrF

Gamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)    http://rec-law.us/17Xyy90

Ganz vs. United States Cycling Federation, 1994 Mont. Dist. LEXIS 756    http://rec-law.us/1fzW8vM

Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768     http://rec-law.us/20lYdSj

Geographic Expeditions, Inc., v. The Estate Of Jason Lhotka, 599 F.3d 1102; 2010 U.S. App. LEXIS 6606    http://rec-law.us/1xtn908

Gibbud et al., v Camp Shane, Inc., 30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075    rec-law.us/2k7MWZ1

Giebink v. Fischer, 709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791    http://rec-law.us/1cyS6Fg

Gillette v. All Pro Sports, LLC., 2013 Fla. App. LEXIS 19432; 38 Fla. L. Weekly D 2573    http://rec-law.us/1UhpKkZ

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454    http://rec-law.us/14ywoyb

Gomes v. Boy Scouts of America, et al., 2013 N.Y. Misc. LEXIS 4622; 2013 NY Slip Op 32453(U)    http://rec-law.us/28K5ylz

Gomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)    http://rec-law.us/28K5ylz

Great American Alliance Insurance Company, Plaintiff, v. Windermere Baptist Conference Center, Inc., et al., 2017 U.S. Dist. LEXIS 103148    http://rec-law.us/2wWhuSQ

Gregorie v. Alpine Meadows Ski Corporation, 2011 U.S. Dist. LEXIS 20275    http://rec-law.us/HayvH7

Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90    http://rec-law.us/2oChhjb

Grotheer v. Escape Adventures, Inc., et al., 14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764    http://rec-law.us/2yCMGar

Gwinner, v. Michael Matt, et al., 2012 U.S. Dist. LEXIS 108827    http://rec-law.us/2cE86vU

Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995        http://rec-law.us/1fR7z6Q

Hamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495    http://rec-law.us/wHui4x

Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500    http://rec-law.us/177o3Fp

Harris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547    http://rec-law.us/1hA7aGR

Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126; 1999 Mo. App. LEXIS 315    http://rec-law.us/1LSY6fX

Hellweg v. Special Events Management, 956 N.E.2d 954; 2011 Ill. App. LEXIS 725; 2011 IL App (1st) 103604; 353 Ill. Dec. 826    http://rec-law.us/XLyHuF

Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622    http://rec-law.us/1lo1eCo

Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334    http://rec-law.us/1fjsSvW

Herbst v. L.B.O. Holding, Inc., 2011 DNH 72; 783 F. Supp. 2d 262; 2011 U.S. Dist. LEXIS 46977; 85 Fed. R. Evid. Serv. (Callaghan) 285    http://rec-law.us/HdbOY9

Hiett v. Lake Barcroft Community Association, Inc., et al., 244 Va. 191; 418 S.E.2d 894; 1992 Va. LEXIS 69; 8 Va. Law Rep. 3381    http://rec-law.us/2swyKQk

Hines v. City of New York, Korff Enterprises, Inc., 2016 N.Y. Misc. LEXIS 1015; 2016 NY Slip Op 30504(U)    http://rec-law.us/2cnsDBE

Hogan v. Pat’s Peak Skiing, LLC, 2015 N.H. LEXIS 74    http://rec-law.us/1Qg0COq

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)    http://rec-law.us/17yfgqr

Hong v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340    http://rec-law.us/PiKdFq

Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133    http://rec-law.us/2yLQquv

Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335    http://rec-law.us/2h6YRFJ

Horvath Et Al., v. Ish Et Al., 2012 Ohio 5333; 2012 Ohio LEXIS 2872    http://rec-law.us/UIMpde

In re Aramark Sports and Entertainment Services, LLC, 2014 U.S. Dist. LEXIS 121565    http://rec-law.us/2nvOQGK

J.T., Jr., a minor v. Monster Mountain, LLC, 2010 U.S. Dist. LEXIS 130407; 78 Fed. R. Serv. 3d (Callaghan) 182    http://rec-law.us/woiI3i

Jimenez et al., v. 24 Hour Fitness USA, Inc., 237 Cal. App. 4th 546; 188 Cal. Rptr. 3d 228; 2015 Cal. App. LEXIS 494    http://rec-law.us/1VS6X3L

Jiminy Peak Mountain Report, LLC, v. Wiegand Sports, LLC, 2016 U.S. Dist. LEXIS 34209    http://rec-law.us/1TrBYsS

John v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)    http://rec-law.us/2hDTEpb

Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696    http://rec-law.us/2fEuzvg

Johnson v. Gibson, 358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129    http://rec-law.us/2la8bMy

Johnson v. Recreational Equipment, Inc., 2011 Wash. App. LEXIS 351    http://rec-law.us/N0zzbe

Johnson v. Royal Caribbean Cruises, Ltd., 2011 U.S. Dist. LEXIS 28128; 2011 AMC 1171    http://rec-law.us/1fAiSMm

Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937    http://rec-law.us/Zp7LME

Karlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746    rec-law.us/1RYr5wT

Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011    http://rec-law.us/2mSLhLP

Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171    http://rec-law.us/11Udj6C

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741    http://rec-law.us/GUF3hI

Kendall v. USA Cycling, Inc. et al., 2005 Cal. App. Unpub. LEXIS 5025    http://rec-law.us/2elZ8kV

Ketler v. PFPA, LLC, 2016 Del. LEXIS 19    http://rec-law.us/1QbozXZ

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440    http://rec-law.us/GVtgOF

King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511    http://rec-law.us/1lo1yB2

Kirton vs. Fields, No. SC07-1739, No. SC07-1741, No. SC07-1742 (FL 2008)    http://rec-law.us/1fqhT37

Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351    http://rec-law.us/2a3ZCuv

Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870    http://rec-law.us/1fCbn5G

Kopeikin v. Moonlight Basin Management, LLC, 90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348    http://rec-law.us/1T9bmfp

Kosok v. Young Men’s Christian Association of Greater New York, 24 A.D.2d 113; 264 N.Y.S.2d 123; 1965 N.Y. App. Div. LEXIS 3042    http://rec-law.us/1c6hzI2

LaFond v. Salomon North America, Inc. et al., 2011 Mass. Super. LEXIS 344    http://rec-law.us/HeyzbL

Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194    http://rec-law.us/2eXqBKZ

Lathrop vs. Century, Inc., 2002 Iowa App. LEXIS 1136    http://rec-law.us/2dIphMp

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290    http://rec-law.us/1iPsNm3

Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)    http://rec-law.us/1ba9zQc

Lesser v. Camp Wildwood, 282 F. Supp. 2d 139; 2003 U.S. Dist. LEXIS 16170    http://rec-law.us/1lkld3V [53]

Lewis v. Habitat for Humanity of Greater New Haven, Inc., 2012 Conn. Super. LEXIS 146    http://rec-law.us/MvlsmW

Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421    http://rec-law.us/VZUmgk

Lhotka v. Geographic Expeditions, Inc., 181 Cal. App. 4th 816; 104 Cal. Rptr. 3d 844; 2010 Cal. App. LEXIS 114    http://rec-law.us/1vqetEp

Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182    http://rec-law.us/2hytohk

Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U    http://rec-law.us/OjBp2d

Littlejohn v. Timberquest Park at Magic, LLC, et. al., 2015 U.S. Dist. LEXIS 96443    http://rec-law.us/1P0r5gf

Lizzol v. Brothers Property Management Corporation, Et. Al., 2016 DNH 199; 2016 U.S. Dist. LEXIS 150427    http://rec-law.us/2rAjfn7

Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132    http://rec-law.us/MzwDm8

Lloyd v. Sugarloaf Mountain Corp. et al. 2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131        http://rec-law.us/OcE1R7

Lombard v. Colorado Outdoor Education Center, Inc., 2011 Colo. App. LEXIS 1401    http://rec-law.us/1cNrWyz

Lucas v Norton Pines Athletic Club, Inc., 2010 Mich. App. LEXIS 1066    http://rec-law.us/GY61Vq

Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671    http://rec-law.us/ZFsVuR

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479    http://rec-law.us/2hX2Mq3

Marshall v Boyne USA, Inc., 2012 Mich. App. LEXIS 928    http://rec-law.us/OgqM2J

Masciola, v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603    http://rec-law.us/Zp876f

Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51    http://rec-law.us/1mvvHRv

Mazza v. Ski Shawnee Inc., 2005 Pa. Dist. & Cnty. Dec. LEXIS 113; 74 Pa. D. & C.4th 416    http://rec-law.us/10dXBVq

Mcclure, et al., v. Life Time Fitness, Inc., 2014 U.S. Dist. LEXIS 167483    rec-law.us/1OD31l1

Mcdonald v. Whitewater Challengers, Inc., 2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232    rec-law.us/1O3TXVW

McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)        http://rec-law.us/1bXtzet

Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767    http://rec-law.us/1JSr1dz

McGowan et al v. West End YMCA, 2002 Cal. App. Unpub. LEXIS 3018    http://rec-law.us/1k7VxqQ

McGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45    http://rec-law.us/10OjjNo

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3    http://rec-law.us/1jSNEWi

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576    http://rec-law.us/2s1sLD0

Merten v. Nathan, 108 Wis. 2d 205; 321 N.W.2d 173; 1982 Wisc. LEXIS 2740    http://rec-law.us/1fpNXpz

Miglino, Jr., etc., v Bally Total Fitness of Greater New York, Inc., et al., 2011 NY Slip Op 9603; 2011 N.Y. App. Div. LEXIS 9478    http://rec-law.us/GUrhNZ

Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822    http://rec-law.us/2vgP1GF

Moore v. Boy Scouts of America Los Angeles Area Council, Inc., 2004 Cal. App. Unpub. LEXIS 11180        http://rec-law.us/XjoxuY

Moore v. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299    http://rec-law.us/1haHVX7

Moore v. Sitzmark Corporation and Salomon North America, Inc., 555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523    http://rec-law.us/XFdhcm

Moore v. Waller, et al., 930 A.2d 176; 2007 D.C. App. LEXIS 476    http://rec-law.us/2syDySk

Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160    http://rec-law.us/2eLmS3l

Morrison, v. Northwest Nazarene University, 273 P.3d 1253; 2012 Ida. LEXIS 82    http://rec-law.us/VEUrmX

Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320    http://rec-law.us/2arVDrM

Murawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U    http://rec-law.us/GTzlJq

Myers v. Lutsen Mountains Corporation, 587 F.3d 891; 2009 U.S. App. LEXIS 25825    http://rec-law.us/2ngLDKL

N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)    http://rec-law.us/1aueWYS

Nageotte v. Boston Mills Brandywine Ski Resort, et al., 2012 Ohio 6102; 2012 Ohio App. LEXIS 5266 (Ohio App 2012)    http://rec-law.us/1aK5zeS

Neustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584    http://rec-law.us/HgiwI5

Nutley v SkyDive the Ranch, 2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999 (N.Y. Appel. First 2009)    http://rec-law.us/1kd4DzQ

O’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74    http://rec-law.us/1bXtnvD

Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337    http://rec-law.us/2u0tzVB

Okura v. United States Cycling Federation et al., 186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178    http://rec-law.us/1feOLcP

Oldja v.Warm Beach Christian Camps and Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966    http://rec-law.us/Lv1I4V

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1    http://rec-law.us/1n1g5xY

Pagel v. Marcus Corporation, 2008 WI App 110; 313 Wis. 2d 78; 756 N.W.2d 447; 2008 Wisc. App. LEXIS 423    http://rec-law.us/wLWXQJ

Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62    http://rec-law.us/ZlrDDY

Pavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U    http://rec-law.us/1hRs5kC

Paz v. Life Time Fitness, Inc., et al., 2010 U.S. Dist. LEXIS 133058    rec-law.us/1OOun6d

Pearce v. Utah Athletic Foundation, 2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16    http://rec-law.us/1dQJeXn

Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525    http://rec-law.us/2wgH4ml

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501    http://rec-law.us/11EpBfs

Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973    http://rec-law.us/1f2kDmp

Powers v. Mukpo et al., 12 Mass. L. Rep. 517; 2000 Mass. Super. LEXIS 566    http://rec-law.us/1hQzwN9

Powers v. The Superior Court Of Sacramento County, 196 Cal. App. 3d 318; 242 Cal. Rptr. 55; 1987 Cal. App. LEXIS 2330    http://rec-law.us/18XIUsc

Raup, v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 11499    http://rec-law.us/1ZKGTYn

Ravey v. Rockworks, LLC, Et Al. 12-1305 (La.App. 3 Cir. 04/10/13); 2013 La. App. LEXIS 720 (La. App. 2013)    http://rec-law.us/1kd4rR4

Reardon v. Windswept Farm, LLC, et al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330    http://rec-law.us/2eo4X4G

Redmond v. Sirius International Insurance Corporation, 2014 U.S. Dist. LEXIS 5089    http://rec-law.us/1jKRtgb

Reed v. National Council of the Boy Scouts of America, Inc., 2010 DNH 18; 706 F. Supp. 2d 180; 2010 U.S. Dist. LEXIS 9236    http://rec-law.us/R6Y8QO

Ricci v. Schoultz, M.D., 963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745    http://rec-law.us/1VM4DsO

Rice, Et Als, vs. American Skiing Company, Et Al, 2000 Me. Super. LEXIS 90    http://rec-law.us/1ff8r0a

Rich et. al., vs. Tee Bar Corp. et. al., 2013 U.S. Dist. LEXIS 10682    http://rec-law.us/YTaTj6

River Riders, Inc., and Matthew Knott, v. The Honorable Thomas W. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157    http://rec-law.us/1nEaoen

Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121    rec-law.us/1TeD8F7

Robinette v. Aspen Skiing Company, L.L.C., 363 Fed. Appx. 547; 2010 U.S. App. LEXIS 1543    http://rec-law.us/1iPWrHS

Rogatkin v. Raleigh America Inc., 69 F. Supp. 3d 294; 2014 U.S. Dist. LEXIS 164154    rec-law.us/1QjdYGe

Roy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88    http://rec-law.us/2xdRsLf

Rubenstein, v. United States of America, 488 F.2d 1071; 1973 U.S. App. LEXIS 6958    http://rec-law.us/1kcBBQA

Rumpf v. Sunlight, Inc., 2016 U.S. Dist. LEXIS 107946    http://rec-law.us/2vjm7J2

Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2506    http://rec-law.us/16mpY3U

Sanchez v. Project Adventure, Inc., 12 A.D.3d 208; 785 N.Y.S.2d 46; 2004 N.Y. App. Div. LEXIS 13184    http://rec-law.us/2bvoniY

Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)    http://rec-law.us/19l5IUq

Sanny, v. Trek Bicycle Corporation, 2013 U.S. Dist. LEXIS 65559    http://rec-law.us/1feLZ7o

Santho et al., v. Boy Scouts of America et al., 168 Ohio App. 3d 27; 2006-Ohio-3656; 857 N.E.2d 1255; 2006 Ohio App. LEXIS 3606    http://rec-law.us/2eyw5jq

Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468    http://rec-law.us/1dRY4ND

Schlumbrecht-Muniz v. Steamboat Ski & Resort Corporation, 2015 U.S. Dist. LEXIS 30484    http://rec-law.us/2alW5Kv

Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)    http://rec-law.us/1lo696e

Schoeps v. Whitewater Adventures LLC; 136 Fed. Appx. 966; 2005 U.S. App. LEXIS 13181    http://rec-law.us/1w1K9xj

Schoonbeck v. Kelly, 2015 Mich. App. LEXIS 223    rec-law.us/1MAHh8E

Schorpp et al., Respondents, v Oak Mountain, LLC, et al., 143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932    http://rec-law.us/2sckXOu

Scott v. Altoona Bicycle Club, d/b/a the Tour de-Toona, 2010 Pa. Commw. Unpub. LEXIS 513    http://rec-law.us/1o4tTZk

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384    http://rec-law.us/12HioNa

Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942    http://rec-law.us/1kIJhgw

Son v. Kerzner International Resorts, Inc., et al., 2008 U.S. Dist. LEXIS 67482    http://rec-law.us/R0QXOB

Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)    http://rec-law.us/1dako4v

Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234    http://rec-law.us/HerasW

Stephenson v. Food Bank for New York City, 2008 NY Slip Op 52322U; 21 Misc. 3d 1132A; 875 N.Y.S.2d 824; 2008 N.Y. Misc. LEXIS 6704; 240 N.Y.L.J. 82    http://rec-law.us/1o4zFKp

Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572    http://rec-law.us/265Iwqn

Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358    http://rec-law.us/2yVbEGT

Stone v Neustradter, 129 A.D.3d 1615; 2015 N.Y. App. Div. LEXIS 5188; 2015 NY Slip Op 05327; 12 N.Y.S.3d 450    rec-law.us/1EL21rH

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829    http://rec-law.us/2hA8Owr

Strawbridge, Jr., v. Sugar Mountain Resort, Inc., 328 F. Supp. 2d 610; 2004 U.S. Dist. LEXIS 18644    http://rec-law.us/MlJsjF

SW, a minor v. Towers Boat Club, Inc., 2012 COA 77; 2012 Colo. App. LEXIS 642    http://rec-law.us/Nt2vGe

Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126    http://rec-law.us/1RvYL3c

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005    http://rec-law.us/2uzF1eN

Taylor v. L.A. Fitness International, 2010 Phila. Ct. Com. Pl. LEXIS 252; 16 Pa. D. & C.5th 491    http://rec-law.us/1c8YEWD

Tedesco et al., v. Triborough Bridge and Tunnel Authority, 250 A.D.2d 758; 673 N.Y.S.2d 181; 1998 N.Y. App. Div. LEXIS 5801    http://rec-law.us/17BHwJT

The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179    http://rec-law.us/2oFChGq

Tone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U    http://rec-law.us/ZmNWuZ

Travent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)    http://rec-law.us/191FT95

Trinidad v. Capitol Indemnity Corporation, 2009 WI 8; 315 Wis. 2d 324; 759 N.W.2d 586; 2009 Wisc. LEXIS 3    http://rec-law.us/1guahzE

Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49; 2000 U.S. LEXIS 3767; 68 U.S.L.W. 4458    http://rec-law.us/2s4vsAX

Tunkl v. The Regents of the University of California, 60 Cal. 2d 92; 383 P.2d 441; 32 Cal. Rptr. 33; 1963 Cal. LEXIS 226; 6 A.L.R.3d 693    http://rec-law.us/1fzKfpB

Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375    http://rec-law.us/1U9Iiau

Valentino v. Philadelphia Triathlon, LLC, 2016 PA Super 248; 2016 Pa. Super. LEXIS 663    http://rec-law.us/2pjl6ua

Vinson v. Paramount Pictures Corporation et al., 2013 Cal. App. Unpub. LEXIS 3380    http://rec-law.us/190yupL

Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428    http://rec-law.us/2rUpRyE

Walker v. UME, Inc. d/b/a Camp Huaco Springs, 2016 Tex. App. LEXIS 5934    http://rec-law.us/2mhbFdI

Walker vs. Virgin Islands Waste Management Authority, Government of the Virgin Islands, 2015 V.I. LEXIS 8; 62 V.I. 109    http://rec-law.us/2e6v8dG

Walton v. Oz Bicycle Club Of Wichita, 1991 U.S. Dist. LEXIS 17655 (Dist Kan 1991)    http://rec-law.us/1bXuv2i

Weinrich v. Lehigh Valley Grand Prix Inc, 2015 Pa. Dist. & Cnty. Dec. LEXIS 7    http://rec-law.us/1OVPnFi

West Coast Life Insurance Company. Hoar, 558 F.3d 1151; 2009 U.S. App. LEXIS 5266        http://rec-law.us/1fc6RRz

Wethington v. Swainson, d/b/a/ Pegasus Airsport Center, 2015 U.S. Dist. LEXIS 169145        http://rec-law.us/1Y02f2r

Wheelock v. Sport Kites, Inc, 839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050    http://rec-law.us/MleV50

Whitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505    http://rec-law.us/1nRYU2y

Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663    http://rec-law.us/2wqzeWC

Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592    rec-law.us/2cMikHq

Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216    http://rec-law.us/2ddGzBI

Winiecki v. Wolf, 147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127    rec-law.us/1BssHLI

What do you think? Leave a comment.

To Comment Click on the Heading and go to the bottom of the page.

Copyright 2017 Recreation Law (720) 334 8529

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





If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:
www.recreation-law.com

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

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

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



Under Indiana’s law, you cannot sue based on a product liability claim for what is actually a service. Meaning Wind tunnels and Climbing Walls provides a service in Indiana, they are not products sold to the public.

Product liability claims are difficult to defend against because they have fewer or more limited defenses. Product Liability claims also award more damages than simple negligence claims. Consequently, if you provide a service and thus are not subject to a product liability claim your risk, and exposures are much lower.

That issue saved the defendant in this case because the release used by the defendant was written poorly and did not protect the defendant from the claims.

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15, 479

State: Indiana, Court of Appeals of Indiana, Fifth District

Plaintiff: Jason C. Marsh and Rhonda Marsh

Defendant: Kirk Dixon, Dyna Soar Aerobatics, Inc.,

Plaintiff Claims: negligence (or gross negligence) and product liability

Defendant Defenses: Release and the Indiana Product Liability statute

Holding: for the plaintiff on the release and the defendant on the product liability claim.

Year: 1999

The plaintiff paid to ride in the defendant’s wind tunnel. The wind tunnel was owned by Dyna Soar Aerobatics, Inc., which was owned by Kirk Dixon. Kirk Dixon was the sole owner and officer of Dyna Soar, Inc.

Before riding the plaintiff was told when turned on he would soar 3-4 feet upward in the air. The plaintiff also signed a release before riding the wind tunnel. When the wind tunnel was turned on he shot 15’ in the air and broke his ankle when he landed.

The plaintiff sued for negligence and product liability claims. The trial court granted the defendant’s motion for summary judgment based on the release, and the plaintiff appealed.

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

The first issue the court tackled was a procedural issue. The plaintiff sued for gross negligence and not simple negligence. The defendant argued that because they did not plead negligence and appealed a negligence claim and plead gross negligence but did not appeal a gross negligence claim they should be stopped from arguing a negligence claim of any type.

However, the court found through various arguments that those issues were moot and not at issue.

The next argument was the plaintiff’s claim the release was not sufficient under Indiana’s law to prevent a negligence claim. The court agreed.

Indiana generally supports releases, but requires the language of the release be sufficient to deny the claims being made.

It is well settled in Indiana that exculpatory agreements are not against public policy. Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.”

The language in the release must clearly and unequivocally state what the release is preventing and who is being protected for those claims.  Meaning the release is void if it does not clearly and unequivocally states the release is to protect the defendant from the defendant’s negligence.

This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” We note, however, that an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence.

The release stated the plaintiff “fully discharged and released” the defendant from all “liability, claims, demands, actions, and causes of action.” Nowhere did it state the release, released D S from its own negligence. Nor would the court interpret the language of the release to cover that. The specific language was needed for the release to work.

We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

The next issue was the product liability claim. The Indiana Products Liability Act defines a manufacturer as the seller of a product, “a person engaged in the business of selling or leasing a product for resale, use, or consumption.”

Ind. Code § 33-1-1.5-2(5). 2 A product is defined as follows:

Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Personality is another name for something owned that is not attached to the land.

The plaintiff argued that the defendant created a machine, which was a product and sold what the machine did. However, the court found that what the plaintiff bought was a service.

A service is not subject to the Indian Product Liability Act.

The case was sent back to the trial court to go forward on the negligence claim of the plaintiff.

So Now What?

Simply put this lawsuit is based on a poorly written release. I repeat myself, but have someone who understands you and your business or program write a release based upon the law where the release will be applied.

Let me put it another way. Unless you wrote a check or paid money for your release, you would probably end up in court. Attorneys provide free releases not as a service, but knowing there are flaws in the document that will allow them to make a lot more money defending against the lawsuit.

If you got your release from a competitor, how do you know, the competitor gave you a good release? If you got your release from the Internet, how do you know it is for your activity, in your state and covers your law?

And if you think, it is not worth your money; figure that you will lose thirty (30) days of work the first year you are sued, 15-30 days each year until trial and probably 45-days the year of the trial. A good release can keep you at work and out of depositions and courtrooms.

The defendant got lucky on the product’s liability claim. Most states have a broader definition of a product. Put in the release that you are providing a service not selling a product if you have any doubts.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

clip_image002What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2017 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

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

 


Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Jason C. Marsh and Rhonda Marsh, Appellant-Plaintiffs, vs. Kirk Dixon, Dyna Soar Aerobatics, Inc., Appellee-Defendants.

No. 49A05-9803-CV-146

COURT OF APPEALS OF INDIANA, FIFTH DISTRICT

707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

March 12, 1999, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Richard H. Huston, Judge. Cause No. 49D10-9610-CT-1378.

DISPOSITION: Affirmed in part and reversed in part.

COUNSEL: For APPELLANT: JAMES F. LUDLOW, Indianapolis, Indiana.

For APPELLEE: MICHAEL A. ASPY, Landau, Omahana & Kopka, Carmel, Indiana.

JUDGES: ROBB, Judge. BAKER, J., and GARRARD, J., concur.

OPINION BY: ROBB

OPINION

[*999] OPINION

ROBB, Judge

Case Summary

Appellants-Plaintiffs, Jason C. Marsh and Rhonda Marsh (collectively referred to as “Marsh”), appeal the trial court’s order granting summary judgment in favor of Appellees, Kirk Dixon and Dyna Soar Aerobatics, Inc. (collectively referred to as “Dyna Soar”) on Marsh’s gross negligence and products liability claim. We affirm in part and reverse in part.

Issues

Marsh raises two issues for our review which we restate as:

I. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the release signed by Marsh was valid; and

II. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the facts of this case do not support a products liability claim.

Facts and Procedural [**2] History

The facts most favorable to the judgment show that on October 9, 1994, Marsh decided to ride in a wind tunnel (“Dyna Soar Machine”) constructed by Kirk Dixon (“Dixon”) for Dyna Soar Aerobatics, Inc. Dixon is the sole officer of this company. The Dyna Soar Ride simulates the experience of free-fall by projecting columns of air through a cable trampoline upon which patrons of the ride levitate. Marsh signed a release which discharged Dyna Soar, its director, and its employees from liability in the event of an accident. While on the Dyna Soar ride, Marsh fell off of a column of air and fractured his ankle. Marsh sued Dyna Soar, bringing both a negligence claim and a products liability claim. The trial court entered summary judgment in favor of Dyna Soar finding that “the facts do not support a products liability claim or a misrepresentation claim.” (R. 159). This appeal ensued.

Discussion and Decision

Before we reach Marsh’s first issue, we note that Dyna Soar argues in their brief that Marsh waives the issue regarding the validity of the release for two reasons. First, Dyna Soar argues that Marsh failed to make a negligence claim in his original complaint. In [**3] his original complaint, Marsh filed a claim under a gross negligence theory. Second, Marsh failed to raise the same issue in his Motion to Correct Errors.

First, we find that Dyna Soar has waived their argument regarding the fact that Marsh made a gross negligence claim rather than a negligence claim. In their brief, they cite no cases and outline no argument developing this position. [HN1] Ind. Appellate Rule 8.3 requires Dyna Soar to support each contention with an argument, including citations to the authorities, statutes, and record for support. App.R. 8.3(A)(7); Burnett v. Cincinnati Ins. Co., 690 N.E.2d 747, 749 (Ind. Ct. App. 1998). Failure of a party to [*1000] present a cogent argument in his or her brief is considered a waiver of that issue. Id.

Second, we conclude that a party does not waive their right to appeal a claim by omitting the same from its Motion to Correct Errors. Marsh raised two issues in its Motion to Correct Errors. He argued that he presented sufficient evidence to create a genuine issue of material fact as to whether Dyna Soar was grossly negligent, and he argued that he had a viable products liability claim. He did not raise the issue of whether the release [**4] was valid. Indiana Trial Rule 59(A) provides that only two issues must be addressed in a Motion to Correct Errors before they may be appealed to this court: newly discovered material evidence and claims that a jury verdict is excessive or inadequate. T.R. 59(A)(1) and (2). The trial rule states that any other issues that are “appropriately preserved during trial may be initially addressed in the appellate brief.” Id. Trial Rule 59(D) states that a Motion to Correct Errors “need only address those errors found in Trial Rule 59(A)(1) and (2). Id. Based on the plain language of Trial Rule 59, therefore, we conclude that [HN2] a party does not waive its right to appeal a trial court’s decision if it fails to raise an issue in its Motion to Correct Errors which was properly preserved at trial. Dyna Soar’s claims to the contrary are based on cases referring to Trial Rule 59 before it was amended. Accordingly, we conclude that the following issue is properly before this court.

I.

Marsh argues that the trial court erred when it entered summary judgment on his negligence claim. In particular, he argues that the release he signed exculpating Dyna Soar was not sufficient to release [**5] Dyna Soar for its own negligence. We agree.

[HN3] It is well settled in Indiana that exculpatory agreements are not against public policy. Powell v. American Health Fitness Center, 694 N.E.2d 757, 760 (Ind. Ct. App. 1998). Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.” 694 N.E.2d at 761. In Powell, the clause at issue stated that Powell released the defendant “from ‘any damages’ and placed the responsibility on Powell for ‘any injuries, damages or losses.” Id. The Powell court concluded:

As a matter of law, the exculpatory clause did not release [the defendant] from liability resulting from injuries she sustained while on its premises that were caused by its alleged negligence. Therefore, the exculpatory clause is void to the extent it purported to release [the defendant] from [**6] liability caused by its own negligence.

694 N.E.2d at 761-62 (emphasis added). This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” Indiana State Highway Commission v. Thomas, 169 Ind. App. 13, 346 N.E.2d 252, 260 (Ind. Ct. App. 1976) (emphasis in original). We note, however, that [HN4] an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. See Powell, 694 N.E.2d at 761-62. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence. See 694 N.E.2d at 761.

In this case, we are presented with a similar exculpatory clause as in Powell. The release states in pertinent part:

I hereby fully and forever discharge and release [**7] . . . Dyna-Soar Aerobatics, Inc. and all of the partners, directors, officers, employees, and agents for the aforementioned companies from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of any damages, [*1001] both in law and in equity, in any way resulting from personal injuries, conscious suffering, death or property damage sustained while flying Dyna-Soar.

(R. 275). Obviously, the release fails to specifically and explicitly refer to Dyna Soar’s own negligence. The injury sustained by Marsh was not allegedly derived from a risk which was inherent in the nature of the ride. Dixon instructed Marsh that he would only levitate three to four feet from the ground. When the ride started, however, Marsh was allegedly shot fifteen feet in the air and subsequently dropped to the ground. Such a risk is not inherent in the nature of a wind tunnel ride. Thus, if, indeed, the accident occurred as Marsh describes, the injury must have resulted from the negligence of Dyna-Soar. We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this [**8] exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

Dyna Soar argues that the Powell decision should not be applied retroactively. In support of this argument, Dyna Soar cites Sink & Edwards, Inc. v. Huber, Hunt & Nichols, Inc., 458 N.E.2d 291 (Ind. Ct. App. 1984). In Sink, the court held that ” [HN5] pronouncements of common law made in rendering judicial opinions of civil cases have retroactive effect unless such pronouncements impair contracts made or vested rights acquired in reliance on an earlier decision.” Id. at 295 (emphasis added). Dyna Soar argues that Powell changed the common law, and therefore, it should not apply to exculpatory agreements made prior to said decision. We disagree. Before the Powell decision, Indiana courts had never decided whether an exculpatory clause required specific language. In fact, in Powell, this court was careful to distinguish other cases which have upheld exculpatory clauses similar to the clause used by Dyna Soar:

Although [**9] we have upheld exculpatory clauses which have used similar language, those cases can be distinguished. In Shumate [v. Lycan, 675 N.E.2d 749 (Ind.Ct.App.1997), trans. denied] and Terry v. Indiana State University, 666 N.E.2d 87 (Ind.Ct.App.1996), the nonspecificity of the language in the exculpatory clauses was not put at issue nor addressed. In Marshall [v. Blue Springs Corp., 641 N.E.2d 92 (Ind.Ct.App.1994)], the focus of the appeal was that there was a genuine issue of material fact as to whether the releases were signed “willingly” or under economic or other compulsion. The nonspecificity of the language used to effect release for the defendant’s own negligence was not presented as an issue nor addressed. In LaFrenz [v. Lake Cty. Fair Bd., 172 Ind. App. 389, 360 N.E.2d 605 (1977)], we noted “the form and language of the agreement explicitly refers to the appellees’ [party released] negligence.” Therefore, had the issue been raised, the language contained the specific and explicit reference to negligence we now hold to be necessary.

Powell, 694 N.E.2d at 762 (citations omitted). From the language of the Powell decision itself, we [**10] conclude that Powell did not change Indiana common law. Thus, Dyna Soar can not show that they relied on earlier Indiana decisions when drafting its exculpatory agreement.

II.

Marsh also argues that the trial court erred when it entered summary judgment on his products liability claim. In particular, he argues that the Dyna Soar machine is a product for purposes of the Indiana Products Liability Act. 1 We disagree.

1 The Indiana Products Liability was codified at Ind. Code § 33-1-1.5-1 et seq. Since the inception of this litigation, however, the Act has been recodified at Ind. Code § 34-20-1-1 et seq. Hereinafter, we shall refer to the Indiana Products Liability Act using its former citation.

[HN6] In order to be subject to liability under the Indiana Products Liability Act, Dyna Soar must be defined as the seller of a product. The Act defines a seller as “a person engaged in the business of selling or leasing a product for resale, use, or consumption.” [*1002] Ind. Code § 33-1-1.5-2(5). 2 A product [**11] is defined as follows:

” [HN7] Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Ind. Code § 33-1-1.5-2(6). 3 Marsh claims that Dixon created a machine, a product, and provided a service. He argues that his claim should not be barred just because a service was provided in this case. In support of his argument, he points this court to Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379 (Ind. Ct. App. 1990). In Ferguson, a worker fell off of a ladder that was attached to a grain bin. The plaintiffs sued the manufacturers of the grain bin and its component parts under a products liability theory. In determining that the Indiana Products Liability Act applied to the plaintiffs’ claims, the Ferguson court stated: “the legislature did not contemplate a distinction between movable and nonmovable property, but rather sought to exclude transactions which relate primarily to the act of providing a service, such as that provided by an accountant, attorney, or physician.” 555 N.E.2d at 1384-85. [**12] Marsh claims that no such service was provided in his case. We do not find Ferguson dispositive. The crucial issue in Ferguson concerned whether the real estate improvement statute of limitations or the products liability statute of limitations applied to the plaintiffs’ products liability claim. Thus, the Ferguson court discussed whether property affixed to real estate constitutes a product. Such is not the issue in the present case.

2 See now Ind. Code § 34-6-2-136

3 See now Ind. Code § 34-6-2-114

We find Hill v. Rieth-Riley Const. Co., Inc., 670 N.E.2d 940 (Ind. Ct. App. 1996) more applicable to the set of facts presented here. In Hill, the defendants removed and reset guardrails to facilitate the resurfacing of U.S. 31. The plaintiff struck one of these guardrails and brought suit against the defendants under the Indiana Products Liability Act. This court held that the contract between the Indiana Department of Transportation and the plaintiffs was predominantly a contract for [**13] services. The Hill court stated: “even if it were true that 31 new concrete plugs were installed and some rusted rails replaced, the [plaintiffs] have presented no evidence that this contract was not “for the most part” about the service of resurfacing the roadway.” 670 N.E.2d at 943. In this case, the transaction between Marsh and Dyna Soar wholly involved a service. By purchasing a ticket from Dyna Soar, Marsh received the limited right to ride the Dyna Soar machine. He did not receive an interest in any property. In fact, Dyna Soar retained all rights to operate and control the machine in question. We conclude that the trial court did not err by entering summary judgment against Marsh on his products liability claim.

Affirmed in part and reversed in part.

BAKER, J., and GARRARD, J., concur.


Defendant loses an interesting product liability case. Usually, the replacement of a component by the owner of the product after the sale is an intervening act which releases the manufacture from harm. In this case, the change was not enough to overcome the initial negligent design.

The Zip Line was designed with bungee cord that was used to break the ride. The owner of the zip line replaced the bungee cord with another bungee cord that was allegedly shorter than the initial cord in the design by the plaintiff.

Sanchez v. Project Adventure, Inc., 12 A.D.3d 208; 785 N.Y.S.2d 46; 2004 N.Y. App. Div. LEXIS 13184

State: New York, Supreme Court of New York, Appellate Division, First Department

Plaintiff: Benjamin Sanchez, Also Known as Gerard Sanchez

Defendant: Project Adventure, Inc., Appellant-Respondent and Third-Party Plain-tiff-Appellant. Bedford Central School District, Third-Party Defend-ant-Respondent, et al., Third-Party Defendant

Plaintiff Claims: Product Liability Claim

Defendant Defenses: Intervening change in the product

Holding: For the Defendant

Year: 2004

The facts are simple. The plaintiff, a 15-year-old, was on a school trip to a challenge course. A bungee cord was used on the “zip wire” as a braking system. The bungee failed, hitting the plaintiff in the eye blinding him.

The then-15-year-old plaintiff, while on a school field trip to a challenge course located at a facility operated by third-party defendant Bedford Central School District (Bedford), was standing in line for an elevated “zip wire” ride, when the bungee cord used as a braking device on the “zip wire” snapped and hit his right eye. The injury produced by the impact of the bungee cord caused plaintiff to go blind in that eye.

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

The course was designed by the defendant Project Adventure. The design incorporated a bungee cord to break the zip line. The owner of the zip line replaced the original bungee cord with another bungee cord, which was shorter.

The defendant admitted liability for the accident. However, they argued the owner of the zip line who had replaced it was the party with principal liability for the injuries.

The “zip wire” had been designed and inspected by defendant, which conceded liability for the accident, but, citing evidence that the bungee cord used on the “zip wire” had been replaced before the accident by a Bedford employee, contended that Bedford was principally responsible for plaintiff’s harm.

Normally, an intervening, act, such as replacing the cord, in many types of negligence claims is enough to shift the liability of the defendant to a third party.

Here the appellate court agreed with the jury and found that the design was negligent, and the shortness of the replacement bungee was not the cause of the accident. The use of a bungee as a breaking device was the cause of the accident, no matter the length.

Defendant urges that this finding was contrary to the weight of the evidence. We disagree. The evidence fairly interpreted permitted the jury to conclude that while Bedford had been negligent in utilizing a replacement bungee cord that was too short, this negligence merely echoed a design defect for which defendant was responsible, and thus did not appreciably augment the injury-producing risk.

The appellate court agreed with the jury and held the designer of the course liability for the injuries of the plaintiff.

So Now What?

As stated above, this is an odd case because of the intervening act. However, a bad or negligent design, no matter what the intervening act, will not release the defendant from liability.

Product liability cases are hard to win if the design is found to be negligent.

Retailers need to be aware that any act that modifies or changes a product in any way, other than how it arrived from the manufacturer may place them in the same position as a manufacture.

Examples of this are bindings that are mounted on skis or scuba tanks that are filled. In both cases, the general liability policies of ski shops and scuba shops usually understand and have coverage for this. Make sure if you are modifying a product other than how the manufacturer suggested that you understand the risks and have the coverage you need.

clip_image002What do you think? Leave a comment.

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

 

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

 

 

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

 

 

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