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

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

Ropes Course 2010

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

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

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

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

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

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

What do you think? Leave a comment.

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Copyright 2014 Recreation Law (720) Edit Law

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Whitewater rafting, 13 injuries one death and release in WV are upheld. Management-level employees of DC health care company rafted river in allegedly high water causing injuries.

West Virginia Supreme court holds that admiralty or maritime law does not apply to whitewater rafting.

River Riders, Inc., v. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

Date of the Decision: December 10, 2008

Plaintiff on Appeal, Defendants at the trial court: River Riders, Inc., and Matthew Knott, Petitioners

Defendant: The Honorable Thomas W. Steptoe

Third parties on appeal: plaintiff’s at the trial court: Executor of the estate of the deceased and the 13 injured plaintiffs

Plaintiff Claims: failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code

Defendant Defenses: release

Issue on Appeal: Whether the trial court had improperly held the whitewater rafting trip was subject to federal admiralty law.

Holding:

This is an interesting case from a procedural perspective as well as a factual one. The issue on appeal is not a review of a complete ruling by the trial court but of a ruling that the defendants, and the court felt would influence the final decision. Meaning the defendant could convince the appellate court that the trial court’s ruling was probably wrong and unless corrected now, the entire trial would have to be done again.

The facts are people went rafting on the Shenandoah River in West Virginia. Before embarking on the trip each person signed a “Release, Assumption of Risk and Indemnity Agreement.” The water was higher than average on the day of the raft trip; 12.5 feet compared to an average of 2 to 4 feet. During the raft trip four of the rafts dumped, sending several people into the water, including the deceased and thirteen other rafters into the river.

Two separate lawsuits were filed over the incident. The first was by the estate of the deceased. The second lawsuit was filed by the other thirteen injured rafters.

The complaints of the plaintiff allege several issues:

…River Riders failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code §20-3B-3(b) (1987).

…that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater expedition on that day because of the river’s high and turbulent waters caused by a recent hurricane that had swept through the area.

…failing to call off or postpone the trip until conditions were safe to go out on the river, by failing to recognize that the operating capabilities of its rafts with the inexperienced customers would be unsafe and hazardous in high, swift and rough water conditions; and by wrongfully electing to navigate the Shenandoah River and in particular the Shenandoah Staircase.

The complaint for the wrongful death included the following claims:

two separate counts: one for negligence, gross negligence, reckless and wanton conduct; the other for negligence per se. Citing fifteen alleged acts or omissions, Count One alleges that the duties owed by River Riders to Mr. Freeman included the duty to conform to the standard of care expected of members of their profession, the duty to conform to safety and other requirements set forth in the West Virginia Code, the duty to conform to rules promulgated by the commercial whitewater advisory board, and the duty not to act in a reckless or wanton manner. Count Two alleges two additional acts or omissions constituting negligence per se, including citations by the West Virginia Division of Natural Resource for failure to mark a commercial water craft and failure to have a valid CPR card as required by W. Va. Code §20-2-23a

Prior to trial, the plaintiff’s filed a motion in limine to exclude the release agreement which the court granted. The court relied upon a prior West Virginia Supreme Court case that held since there was a statute supporting and providing defenses for the whitewater rafting industry, a release was no long available as a defense. Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991)

Another motion in limine was filed by the plaintiff’s arguing that assumption of risk could not be a defense because the case was governed by maritime law.

Finally, the plaintiff’s filed a motion to consolidate both lawsuits into one and have one trial. This motion was also granted by the court.

The defendants then filed motions with the West Virginia Supreme court arguing that the motions of the trial court were wrong, and the court had to intervene for a fair trial to occur. This motion was called a Writ of Prohibition.

The West Virginia Supreme Court granted the Writ but only as to the issue of whether or not maritime law applied to a whitewater rafting case in West Virginia.

This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency.

The court declined to review the other issues because a writ of prohibition was not the proper way to argue the issues and timing of those issues were best left to the appeal of the case.

Summary of the case

To be subject to Federal maritime law a two-prong test must be met, “whether the rafting mishap and ensuing tort claims arising therefrom satisfied both prerequisite conditions of 1) location on the navigable waters and 2) connection with maritime activity.”

In determining whether or not the accident occurred on navigable waters the trial court should have included an analysis of “…whether the incident constituted “a potentially disruptive impact on maritime commerce” and that it had a “substantial relationship to traditional maritime activity” and determined the “the activity of whitewater rafting does not constitute traditional maritime activity and is therefore, not governed by maritime law.”

…given the fact that the Shenandoah River maintains average depths of two feet, 18 it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce, to  the extent that this area was unlikely a highly traveled thoroughfare over which trade and travel is conducted.

Nor could the court find any decision where admiralty law had been applied to whitewater rafting.

Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raftin rapidly moving whitewater streams and rivers. Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity.

The appellate court sent the case back down with two of the rulings intact.

So Now What?

Admiralty law is a separate area of the law. It was developed prior to the formation of the United States for commerce between countries. It has very different rules for liability, worker’s compensation and other legal issues. In the US, admiralty law also applies to travel on major rivers and waterways. When and how admiralty law is applied is dependent upon the federal statute and the type of admiralty activity. As an example there are more than a dozen different definitions of navigable for different maritime activities.

Admiralty law came from commerce. Admiralty law has been applied to recreational activities in the past, such as using personal water craft, however, in all of those cases; the activity was on the ocean or large bodies of water.

Admiralty law could be used in some states on some rafting rivers as a defense, if handled by a law firm knowledgeable in admiralty law. If the jurisdictional issues are met, a defendant can go to court within six months of an accident and file a notice (open a case) and post a bond. The reason for doing this is, under admiralty law, the damages available to the plaintiff’s is limited to the value of the vessel and its contents after the accident. However, by doing this the raft company may be admitting liability and must prove it was an admiralty issue.

This law as created to limit the damages of a ship owner to not bankrupt the owner or the industry. A $10,000 raft, frame and gear are a relatively cheap and easy way to get out from under a potential claim. However, if you fail to meet the requirements but are still subject to admiralty law, you do not have several defenses normally relied upon to stop claims: releases and assumption of the risk.

To some extent, we are left hanging by the decision on whether a release is valid as a defense in a rafting accident in West Virginia. However, the decision on whether the federal maritime law is applicable is valuable.

What do you think? Leave a comment.

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West Virginia Whitewater Responsibility Act.

West Virginia Whitewater Responsibility Act. 

Chapter 20.  Natural Resources.

Article 3B. Whitewater Responsibility Act.

GO TO WEST VIRGINIA STATUTES ARCHIVE DIRECTORY

W. Va. Code Ch. 20, Art. 3B Notes (2014)

Article 3B. Whitewater Responsibility Act. Notes

A.L.R. references.

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 A.L.R.5th 513.

§ 20-3B-1.  Legislative purposes.

Every year, in rapidly increasing numbers, the inhabitants of the State of West Virginia and nonresidents are enjoying the recreational value of West Virginia rivers and streams. The tourist trade is of vital importance to the State of West Virginia and the services offered by commercial whitewater outfitters and commercial whitewater guides significantly contribute to the economy of the State of West Virginia. The Legislature recognizes that there are inherent risks in the recreational activities provided by commercial whitewater outfitters and commercial whitewater guides which should be understood by each participant. It is essentially impossible for commercial whitewater outfitters and commercial whitewater guides to eliminate these risks. It is the purpose of this article to define those areas of responsibility and affirmative acts for which commercial whitewater outfitters and commercial whitewater guides are liable for loss, damage or injury.

Exemption from tort liability.

Section 20-3B-3 imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

Quoted in

River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).

Cited in

Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

W. Va. Law Review.

Fahey, “Landlord Liability in West Virginia for Criminal Acts on the Premises,” 98 W. Va. L. Rev. 659 (1996).

§ 20-3B-2.  Definitions.

Unless the context of usage clearly requires otherwise:

(a) “Commercial whitewater outfitter” means any person, partnership, corporation or other organization, or any combination thereof, as defined in section twenty-three [§ 20-2-23], article two of this chapter.

(b) “Commercial whitewater guide” means any person as defined in section twenty-three [§ 20-2-23], article two of this chapter.

(c) “Participant” means any person using the services of a commercial whitewater outfitter or commercial whitewater guide on any river, portions of rivers or waters of the State.

Quoted in

Murphy v. North Am. River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

§ 20-3B-3.Duties of commercial whitewater outfitters and commercial whitewater guides.

(a) All commercial whitewater outfitters and commercial whitewater guides offering professional services in this State shall provide facilities, equipment and services as advertised or as agreed to by the commercial whitewater outfitter, commercial whitewater guide and the participant. All services, facilities and equipment provided by commercial white-water outfitters and commercial whitewater guides in this State shall conform to safety and other requirements set forth in article two [§§ 20-2-1 et seq.] of this chapter and in the rules promulgated by the commercial whitewater advisory board created by section twenty-three-a [§ 20-2-23a], article two of this chapter.

(b) In addition to the duties set forth in subsection (a) of this section, all commercial whitewater guides providing services for whitewater expeditions in this state shall, while providing such services, conform to the standard of care expected of members of their profession.

Exemption from tort liability.

This section imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

Whitewater rafting not governed by maritime law.

In consolidated actions involving wrongful death and negligence arising from a commercial white water rafting accident against a commercial white water rafting outfitter and a guide (defendants), defendants’ petition for a writ of prohibition was granted to the extent of vacating the trial court’s determination that maritime law applied to the case. The trial court erred by determining that maritime law applied to the case as white water rafting, as a matter of law, did not constitute traditional maritime activity and was, therefore, not governed by maritime law. River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).

Cited in

Pingley v. Perfection Plus Turbo-Dry, LLC, 2013 W. Va. LEXIS 422 (Apr 26, 2013).

§ 20-3B-4.Duties of participants.

(a) Participants have a duty to act as would a reasonably prudent person when engaging in recreational activities offered by commercial whitewater outfitters and commercial whitewater guides in this State.

(b) No participant may:

(1) Board upon or embark upon any commercial whitewater expedition when intoxicated or under the influence of nonintoxicating beer, intoxicating beverages or controlled substances; or

(2) Fail to advise the trip leader or the trip guide of any known health problems or medical disability and any prescribed medication that may be used in the treatment of such health problems during the course of the commercial whitewater expedition; or

(3) Engage in harmful conduct or willfully or negligently engage in any type of conduct which contributes to or causes injury to any person or personal property; or

(4) Perform any act which interferes with the safe running and operation of the expedition, including failure to use safety equipment provided by the commercial whitewater outfitter or failure to follow the instructions of the trip leader or trip guide in regard to the safety measures and conduct requested of the participants; or

(5) Fail to inform or notify the trip guide or trip leader of any incident or accident involving personal injury or illness experienced during the course of any commercial whitewater expedition. If such injury or illness occurs, the participant shall leave personal identification, including name and address, with the commercial whitewater outfitter’s agent or employee.

§ 20-3B-5.Liability of commercial whitewater outfitters and commercial whitewater guides.

It is recognized that some recreational activities conducted by commercial whitewater outfitters and commercial whitewater guides are hazardous to participants regardless of all feasible safety measures which can be taken.

(a) No licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by article two [§§ 20-2-1 et seq.] of this chapter, by the rules of the Commercial Whitewater Advisory Board, or by the duties placed on such commercial whitewater outfitter or commercial whitewater guide by the provisions of this article.

(b) The limitations on liability created by this article apply only to commercial whitewater outfitters li-censed under the provisions of article two of this chapter and to commercial whitewater guides who are agents or employees of licensed commercial whitewater outfitters, and only when the commercial whitewater outfitter or commercial whitewater guide is acting within the course of his employment.

Exemption from tort liability.

Section 20-3B-3 imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

Whitewater rafting not governed by maritime law.

In consolidated actions involving wrongful death and negligence arising from a commercial white water rafting accident against a commercial white water rafting outfitter and a guide (defendants), defendants’ petition for a writ of prohibition was granted to the extent of vacating the trial court’s determination that maritime law applied to the case. The trial court erred by determining that maritime law applied to the case as white water rafting, as a matter of law, did not constitute traditional maritime activity and was, therefore, not governed by maritime law. River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).

 

 

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The Young Professional Call for Contributing Columnists & Student Research Article Submissions

Call for Contributing Columnists & Student Research Article Submissions

The Young Professional is a quarterly publication aimed at providing information specifically for young professionals and students in the parks, recreation, and leisure field. Articles may be testimonials, interviews, opinion, research, best practices highlights or simply informational in nature. The Young Professional will be distributed digitally to all young professionals and students in NRPA’s Young Professional Network, through NRPA Connect, as well as through other social media platforms.

The Young Professional Network seeks students (undergraduate and graduate) to contribute professional columns and research briefs for publication in The Young Professional. Columns may be diverse in style and content, but must be beneficial for young professionals and students in the parks and recreation field. Research briefs are usually slightly longer than columns and are overviews of the research. Research briefs must be beneficial for young professionals and students in the parks and recreation field.

Potential contributors are encouraged to send inquiries to Michael J. Bradley (michael.bradley) or Iryna Sharaievska (sharaievskai).

Upcoming submission deadlines:

July 15, 2014

January 15, 2015

Michael J. Bradley, Ph.D.

Assistant Professor

Recreation & Park Administration

Eastern Kentucky University

405 Begley Building

521 Lancaster Avenue

Richmond, Kentucky 40475-3102

Telephone: 859.622.1834

E-mail: michael.bradley

Twitter: @RecKnowledge

 


A climbing wall or a rope’s course are structures. The components already have ASTM standards the sole issue is whether or not they were put together properly.

Operations need special reviews, but the structure is nothing that different from the building it is in or close too.

I’m always asked to recommend a person to check out a ropes course or a climbing wall. These people are looking for someone who may be self-appointed, maybe knowledgeable, (or maybe not) a person who makes a living check these.

I rarely refer them to someone with that title in the industry. I first ask them if a local contractor or engineer as ever looked at their course.

The structures have a different purpose than the carpenter or engineers are used to, but the construction should not be.

We keep forgetting that climbing walls and rope’s courses are just structures no different from a building.  Each of the components has an ASTM standard. An Engineer or contractor can check to see if it was constructed properly and what needs to be done to get it up to speed.

We forget that the foundation of any building or anything attacked to the building is engineering.

By whom and how often should you have your course inspected?

Any time you feel insecure about your course or wall or your insurance company requires it.

Who should inspect your course or wall?

An engineer or contract should inspect your course at least every couple of years or as the engineer or contractor tells you. You can bring in someone with the industry credentials in the other years or with them. You can have someone come in and look at your operation anytime.

I tell my clients to find another operator and trade days. Go check out their course on one day and have them check out your course on another day. That will spot issues you may have, and you probably will learn some new ideas. No use having “inspectors” only who knows new ways of doing things.

I would suspect that if you are part of a larger organization, a college, university or camp that the company or college engineer will tell you when and how often they want the structure inspected.

A bolt is a bolt, whether it holds up a wall or a climbing wall.

What do you think? Leave a comment.

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

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

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

Date of the Decision: February 7, 2012

Plaintiff: Brian Morgan and his wife Amie Morgan

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

Plaintiff Claims: negligence

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

Holding: for the defendants

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

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

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

Summary of the case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

What do you think? Leave a comment.

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

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

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

 

 

WordPress Tags: Ohio,Primary,Assumption,Risk,injuries,decision,Morgan,Conference,Church,Christ,LEXIS,Date,February,Plaintiff,Brian,wife,Amie,Defendant,OCUCC,Hills,Camp,Center,Claims,negligence,Defenses,defendants,statute,education,counselor,classroom,judgment,Summary,Appellate,Under,doctrine,event,injury,rationale,events,danger,knowledge,principle,existence,action,argument,Intentional,misconduct,actor,particulars,inadvertence,incompetence,failure,precautions,difference,degree,employee,lawsuit,guest,guests,attention,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,AdventureTourism,AdventureTravelLaw,AdventureTravelLawyer,AttorneyatLaw,BicyclingLaw,Camps,ChallengeCourse,ChallengeCourseLaw,ChallengeCourseLawyer,CyclingLaw,FitnessLaw,FitnessLawyer,HumanPoweredRecreation,JamesHMoss,JimMoss,OutdoorLaw,OutdoorRecreationLaw,OutsideLaw,OutsideLawyer,RecLaw,RecLawBlog,LawBlog,RecLawyer,RecreationalLawyer,RecreationLawBlog,RecreationLawcom,Lawcom,RiskManagement,RockClimbingLawyer,RopesCourse,RopesCourseLawyer,SkiAreas,SkiLaw,SummerCamp,Tourism,TravelLaw,YouthCamps,ZipLineLawyer,Hike,Stream,five,prima,facie,ones

 


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

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

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

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

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

Release stops suit for falling off horse at Colorado summer Camp

Florida

Florida Statute § 744.301 (3)

New Florida law allows a parent to sign away a child’s right to sue for injuries

 

By Case Law

 

California

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

 

Delaware

Hong v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

Delaware decision upholds a release signed by a parent against a minor’s claims

Delaware holds that mothers signature on contract forces change of venue for minors claims.

Florida

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

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

Florida

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

Release can be used for volunteer activities and by government entities

Maryland

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

Release upheld for injury to 5 year old in chair care area of store while parents shopped.

Massachusetts

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

 

Minnesota

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

Minnesota decision upholds parent’s right to sign away a minor’s right to sue.

North Dakota

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

North Dakota decision allows a parent to sign away a minor’s right to sue

Ohio

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

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

Wisconsin

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

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

 

On the Edge, but not enough to really rely on

 

North Carolina

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

Ruling is by the Federal District Court and only a preliminary motion

North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations

What do you think? Leave a comment.

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

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

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

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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #minor, #release, #ParentSignature, #NC, #NorthCarolina,#Alaska, #AK, #AZ, #Arizona, #CO, #Colorado, #Florida, #FL, #CA, #California, #MA, #Massachusetts, #Minnesota, #MN, #ND, #NorthDakota, #OH, #Ohio, #WI, #Wisconsin, #Hohe, #SanDiego, #SanDiegoUnifiedSchoolDistrict, #GlobalTravelMarketing, #Shea, #Gonzalez, #CityOfCoralGables, #Sharon, #CityofNewton, #Moore, #MinnesotaBaseballInstructionalSchool, #McPhail, #BismarkParkDistrict, #Zivich, #MentorSoccerClub, #Osborn, #CascadeMountain, #Atkins, #SwimwestFamilyFitnessCenter, Delware, Maryland, Retail Store, Child Care,

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ANNOUNCING THE ACADEMY FOR PARK & RECREATION ADMINISTRATION BEST DISSERTATION AWARD ANNUAL COMPETITION

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The Academy (AAPRA) is an organization of distinguished practitioners and scholars committed to the advancement of the park and recreation field. We have three primary purposes:

1.       The purpose of the Academy is to advance knowledge related to the administration of public parks and recreation.

2.       To encourage scholarly efforts both by practitioners and educators to enhance the practice of public parks and recreation administration, and to promote broader public understanding of the importance of public parks and recreation to the public good.

3.       To conduct research, publish scholarly papers, and/or sponsor seminars related to the advancement of public parks and recreation administration.

 

DESCRIPTION: In light of the Academy’s focus, we host an annual competition that alternates yearly between best paper and best doctoral dissertation.  In even numbered years (e.g. 2014) we host the BEST DOCTORAL DISSERTATION AWARD.

TIMELINE: The Call for Papers goes out to colleges and universities that have known parks and recreation degree programs each year. In March, students submit abstracts/executive summaries for consideration. The Selection Committee narrows down the submissions to the top three entries and, in May those students are invited to submit a copy of the dissertation. Competition participants are notified in early July as to the status of their entry. A presentation to the awardee is made at the AAPRA Annual Business meeting, which is held in conjunction with the National Recreation and Park Association Annual Congress each fall.

THE AWARD:

The Best Dissertation Award Winner receives $1,000 and up to $500 to assist with travel expenses to the Annual Meeting. In addition, the Academy works to have the executive summary published in a professional publication. The two Runners-Up receive public recognition and Certificates of Merit for their outstanding work.

 

 

 

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BEST PAPER/BEST DISSERTATION 
AWARD COMPETITION

 

ELIGIBILITY

1.       For the dissertation award, the submission must have been written as a dissertation in partial fulfillment of the requirements for a doctoral degree.

2.       The paper must have been completed in the previous two (2) calendar years (2012 or 2013).

3.       The paper should make a contribution to scholarly literature and have clear implications for the improved practice of park and recreation administration.

4.       The writer of the winning paper must personally attend the Academy’s annual meeting during the National Recreation and Park Association’s Annual Congress and present a five (5) minute synopsis of the paper.

ENTRY PROCEDURE

1.       An electronic copy of an executive summary of the paper, not exceeding 1000 words is be submitted to the Chair of the Academy’s Best Paper Award Committee (Chris Nunes, Ph.D, CPRE Director of Parks and Recreation, The Woodlands Township, Texas at cnunes@thewoodlandstownship-tx.gov).  Summaries exceeding this word limit will not be considered.  Submittals are due no later than March 14, 2014.

2.       Only the title of the paper should appear on the executive summary (no personally identifying information). Include a separate cover page that identifies the: student’s name, current email address and phone number; guiding professor’s name, current email address and phone number; date on which the paper was completed; and title of the paper.

3.       The Academy’s Best Paper Award Committee will undertake a blind review of the executive summary.

4.       Writers of the three (3) executive summaries that receive the highest ratings will be requested to submit a full electronic copy of their paper to the Committee Chair. The committee will then review each paper and select the winner.

REVIEW CRITERIA

A committee of Academy members will evaluate the executive summaries and the invited full papers using the following weighted scoring system:

1.       RELATIONSHIP TO PARK AND RECREATION ADMINISTRATION (15 pts)

        The subject matter must relate to park and recreation administration in some way. While it may use a separate disciplinary approach – for example, management, marketing, economics, financing, evaluation, or social psychology – it must have relevance to park and recreation administration in the broad context. Given these parameters, is the topic timely and of importance?

2.       QUALITY OF THE PROBLEM DEVELOPMENT (25 pts)

        The methodology should be clearly presented and demonstrate knowledge of techniques appropriate to the research and its objectives (research questions, hypotheses). Methodological quality should be judged in the context of the discipline and appropriateness to the study. For example, economic studies are likely to utilize a different methodology from those pertaining to management. Similarly, ease study, quantitative, historical, and phenomenological studies will adopt different methodologies.

3.       CREATIVE APPROACH (20 pts)

        The study should make a creative contribution to the discipline and/or profession. Does the study examine a new problem? Does the study make a creative contribution to the knowledge of park and recreation administration? Does the study use new techniques to examine an old problem? Does the study extend the topic beyond our present understanding?

4.       USEFULNESS AND APPLICABILITY (20 pts)

        While the development of theory is important, the study should have implications for the improved practice of park and recreation administration. This criterion is concerned with measuring the application to practice.

5.       QUALITY OF PRESENTATION (20 pts)

        The quality of the writing, including readability and use of graphics, is measured by this criterion. Although technical jargon may be necessary, practitioners should understand the writing. Overall organization, continuity and clarity, along with the quality of the style and grammar fall within this criterion.

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Liability for Activities Whitewater Rafting Professionals

Tennessee Whitewater Rafting Statute

TENNESSEE CODE ANNOTATED

Title 70           Wildlife Resources

Chapter 7      Liability for Activities

Part 2  Whitewater Rafting Professionals

GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY

Tenn. Code Ann. § 70-7-204         (2013)

70-7-201. Part definitions.

As used in this part, unless the context otherwise requires:

(1) “Engages in whitewater activity” means whitewater rafting;

(2) “Inherent risks of whitewater activities” means those dangers or conditions that are an integral part of whitewater activities, including, but not limited to:

(A) Water;

(B) Rocks and obstructions;

(C) Cold water and weather; and

(D) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or other, such as failing to follow instructions or not acting within the participant’s ability;

(3) “Participant” means any person who engages in a whitewater activity;

(4) “Whitewater” means rapidly moving water;

(5) “Whitewater activity” means navigation on rapidly moving water in a watercraft; and

(6) “Whitewater professional” means a person, corporation, LLC, partnership, natural person or any other en-tity engaged for compensation in whitewater activity.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

70-7-202. Limitations on liability of whitewater professional.

Except as provided in § 70-7-203:

(1) A whitewater professional shall not be liable for an injury to or the death of a participant resulting from the inherent risks of whitewater activities; and

(2) No participant or participant’s representative shall make any claim against, maintain an action against, or re-cover from a whitewater professional, or any other participant for injury, loss, damages, or death of the participant resulting from any of the inherent risks of whitewater activities.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

Section to Section References.

This section is referred to in § 70-7-203.

70-7-203. When liability of whitewater professional imposed.

Nothing in § 70-7-202 shall be construed to prevent or limit the liability of a whitewater professional, or any other person if the whitewater professional:

(1) Provided the equipment and knew or should have known that the equipment was faulty, and the equipment was faulty to the extent that it caused the injury;

(2) Owns, leases, rents, or otherwise is in the lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition that was known to the whitewater professional, or person and for which warning signs have not been conspicuously posted;

(3) Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and the act or omission caused the injury; or

(4) Intentionally injures the participant.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

Section to Section References.

This section is referred to in § 70-7-202.

70-7-204. Warning notice.

(a) Every whitewater professional shall either post and maintain signs that contain the warning notice prescribed in subsection (d) or give the warning in writing to participants. The signs shall be placed in clearly visible locations on or near places where the whitewater professional conducts whitewater activities, if the places are owned, managed, or controlled by the professional.

(b) The warning notice specified in subsection (d) shall appear on the sign in black letters, with each letter to be a minimum of one inch (1”) in height.

(c) Every written contract entered into by a whitewater professional for the purpose of providing professional services, instruction, or the rental of equipment to a participant, whether or not the contract involves activities on or off the location or site of the whitewater professional’s business, shall contain in clearly readable print the warning notice specified in subsection (d).

(d) The signs and contracts described in subsection (a) shall contain the following warning notice:

WARNING

Pursuant to Tenn. Code Annotated title 70, chapter 7, part 2, a whitewater professional is not liable for an injury to or the death of a participant in whitewater activities resulting from the inherent risks of whitewater activities.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

70-7-205. Written waivers, exculpatory agreements and releases.

Nothing in this part shall modify, constrict or prohibit the use of written waivers, exculpatory agreements or releases. This part is intended to provide additional limitations of liability for whitewater professionals, whether or not such agreements are used.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

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2014 Exhibitor Registration for National Get Outdoors Day Denver or Your City I suspect

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Planning for the 7th Annual National Get Outdoors Day

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We are committed to providing an amazing day of free outdoor experiences and discovery at Denver City Park for all of our visitors. We hope you and your organization will join us again.

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NATIONAL GET OUTDOORS DAY 2014 EXHIBITOR PLANNING CALENDAR

April 23rd, 2pm

All Partners Meeting

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May 12th

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MANDATORY Exhibitor Walk-Thru

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Playground East of Ferril Lake, 11 a.m.

We hope to again host a partners BBQ after the walk-thru.

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12000 Summer Camps in the US 7000 overnight camps. Do you have your child set to make great memories this summer?

Between attending as a camper and working as a staff member, my memories of summer camp are some of the greatest I have. Freedom for the summer, learning new things, seeing how long it will take government surplus peanut butter to fall out of a dish……great memories

6 Million kids attend summer camp each summer!

 

 

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Created by Regpack 

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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

This case was brought to my attention because of the suit for the ski buddy fatality in Canada in the news recently. (See Canadian suit would hold you liable for your ski buddy’s death.)Are you liable for your buddy’s death if you are participating in a sport together. The issue pivots on whether or not there is an expected responsibility (duty) on behalf of the buddies.

Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

Plaintiff: Cully, Adam, and Brandy Jo Rasmussen, children of the deceased and the estate of the deceased

Defendant: Eugene L. Bendotti, husband of the deceased

Plaintiff Claims: negligence

Defendant Defenses: there was no negligence

Holding: for the defendant

This is one of a few cases where a co-participant or in this case dive buddy is held liable for the injuries or deaths of the other participant. In this case, a husband and wife were diving together to recover a snowmobile 100’ deep in a lake. On the fourth dive of the day, the husband realized he had not attached his power inflator to his buoyance compensator. He dropped his weight belt and ascended, leaving his spouse, dive buddy, below.

The wife was found drowned after becoming entangled in a rope.

The buoyance compensator is a PFD (personal floatation device) designed for diving. It is inflated and deflated as you dive to keep your body at the level or depth in the water you want. Many divers will deflate and inflate the buoyance compensator (BC) several times during a dive as they descend, stay at a level and descend or ascend again.

A trial was held to the court which held that the husband did owe a duty to the spouse. However, that duty was terminated once the husband’s emergency occurred. The court also found that the husband’s failure to act as a proper dive buddy was too distant from the cause of death of the spouse to be the proximate cause of her death.

The plaintiff’s appealed.

In this case, the plaintiff’s appealed the errors; they felt the court made in its decision. Those are called “assignment of error(s).” The plaintiff argued that the court came to the incorrect conclusion in the determination of the facts and the application of the law.

Summary of the case

The court accepted several conclusions of fact and law from the trial court that are necessary to understand its analysis and, which are critical legal issues. The first was a dive buddy owes a duty of care to his or her dive buddy. Consequently, a failure to exercise this duty, which results in an injury to the dive buddy, can be negligent.

The existence of a duty is a question of law. Whether the defendant owed the plaintiff a duty, however, turns on the foreseeability of injury; that is, whether the risk embraced by the conduct exposes the plaintiff to injury. “The hazard that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.”

The trial court found the defendant had not breached his duty because his personnel emergency ended any duty he owed to his dive buddy. The trial court labeled this as the emergency doctrine. However, the appellate court defined the emergency doctrine as:

The emergency doctrine was developed at common law and states the commonsense proposition that a person faced with an emergency should not be held to the same standards as someone given time for reflection and deliberation.

A defendant is entitled to the benefit of the emergency doctrine when he or she undertakes the best course of action given an emergency not of his or her own making.

The appellate court did not hold the emergency doctrine did not apply; however, its statements indicate such because it went on to discuss proximate cause.

Proximate cause is the term defined to relate the breach of the duty to the injury.

Proximate cause has two discreet elements. The first, cause in fact, requires some physical connection between the act (the failure to connect the power inflator) and the injury (Bonny’s death). The second element of proximate cause involves legal causation. Id. And that is a policy consideration for the court. The consideration is whether the ultimate result and the defendant’s acts are substantially connected, and not too remote to impose liability. Id. It is a legal question involving logic, common sense, justice, policy, and precedent.

The court ruled that the cause of the plaintiff’s death was the plaintiff’s own acts, not caused by the defendant. The court questioned, “…if Gene had properly connected his power inflator, would Bonny be alive today?” The trial court stated, and the appellate court accepted that the act of the defendant descending was not the cause of the plaintiff’s death.

An expert witness opined that the cause of the plaintiff’s death was her failure to have a dive knife with her.

There was too much between the ascension of the defendant and the entanglement which caused the drowning to be linked. The ascension was not the proximate cause of the plaintiff’s death.

So Now What?

The decision in the Canadian court on whether a ski buddy owes a duty of care to another skier will probably not end with the jury’s decision. See Canadian suit would hold you liable for your ski buddy’s death. Ski buddy meaning the guy you don’t know skiing next to you. However, here we have a definitive decision that a dive buddy in a scuba diving owes a duty to their dive buddy.

This is a very different legal relationship than found in competitive sports where someone may be injured due to another participant and the nature of the game. See Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case. Here one participant in the sport is legal responsible, as defined by the sport or activity or sometimes the two people, for the other person.

If you agree to watch or take care of someone in a sport, you may be accepting liability for that person. Be aware.

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Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

Cully C. Rasmussen, as Personal Representative, ET AL., Appellants, v. Eugene L. Bendotti, Respondent.

No. 19464-7-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE, PANEL ONE

107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

August 21, 2001, Filed

SUBSEQUENT HISTORY: [***1] Order Denying Motion and Reconsideration September 26, 2001, Reported at: 2001 Wash. App. LEXIS 2165.

SUMMARY: Nature of Action: The children and the estate of a diver who drowned during a scuba diving excursion sought damages from the diver’s diving partner based on the diving partner’s failure to perform a self-equipment check prior to commencing the dive. The failure to perform the equipment check caused the diving partner to make an emergency ascent during the dive. While the diving partner was ascending to the water’s surface, the diver’s equipment became entangled in a rope which led to the diver’s drowning.

Superior Court: After denying the defendant’s motion for a summary judgment, the Superior Court for Chelan County, No. 98-2-00754-5, Lesley A. Allan, J., on June 30, 2000, entered a judgment in favor of the defendant.

Court of Appeals: Holding that there was sufficient evidence to support the trial court’s conclusion that the defendant’s failure to perform an equipment check prior to the dive was not a proximate cause of the decedent’s death, the court affirms the judgment.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Appeal — Findings of Fact — Failure To Assign Error — Effect Unchallenged findings of fact are verities before a reviewing court.

[2] Appeal — Conclusions of Law — Review — Standard of Review An appellate court reviews a trial court’s conclusions of law in a civil action by first determining whether the trial court applied the correct legal standard to the facts under consideration. The trial court’s legal conclusions flowing from its findings, or the ultimate facts of the case, are reviewed de novo.

[3] Negligence — Duty — Question of Law or Fact — Review The existence of a duty of care is a question of law that an appellate court reviews de novo.

[4] Negligence — Duty — Breach — Resulting Emergency — Termination of Duty — Question of Law or Fact — Review Whether an emergency created by the breach of a duty of care terminates the duty is a question of law that an appellate court reviews de novo.

[5] Negligence — Duty — Determination — Scope A cause of action for negligence is grounded on the existence of a duty owed specifically to the plaintiff or to a class or group of people to which the plaintiff belongs.

[6] Negligence — Elements — In General A negligence action is comprised of four elements: (1) duty, (2) breach, (3) proximate cause, and (4) injury.

[7] Negligence — Duty — Scope — Foreseeability — In General The scope of a duty of care turns on the foreseeability of injury; i.e., it turns on whether the risk embraced by the conduct exposes the claimant to injury.

[8] Negligence — Duty — Scope — Foreseeability — Test An injury is foreseeable if it is among the dangers to be perceived reasonably and with respect to which the defendant’s conduct is negligent.

[9] Sports — Scuba Diving — Duty to Diving Partner — Reasonable Prudence A scuba diver owes a duty to a diving partner to act in the manner of a reasonably prudent diver.

[10] Negligence — Duty — Breach — Question of Law or Fact — In General Whether a legal duty of care has been breached is a question of fact.

[11] Sports — Scuba Diving — Duty to Diving Partner — Breach — Failure To Perform Equipment Check A scuba diver breaches the duty of reasonable prudence in relation to a diving partner by failing to perform a self or buddy equipment check prior to commencing a dive.

[12] Negligence — Emergency Doctrine — In General The emergency doctrine is a common law rule by which a person faced with an emergency is not held to the same standards as a person who has time for reflection and deliberation.

[13] Negligence — Emergency Doctrine — One’s Own Making — Effect The emergency doctrine does not apply to excuse a party’s negligence if that negligence contributed to the emergency.

[14] Negligence — Emergency Doctrine — One’s Own Making — Evaluation of Conduct For purposes determining whether an actor’s own negligence prevents application of the emergency doctrine, the actor’s conduct is evaluated as of the time of the negligent act or omission, not when the actor later discovers the negligent act or omission and reacts to it.

[15] Negligence — Proximate Cause — Elements Proximate cause is divided into two elements: cause-in-fact and legal causation. A cause-in-fact is based on the physical connection between an act and an injury. Legal causation is grounded in a policy determination made by the court. The focus in the legal causation analysis is whether, as a matter of policy, the connection between the defendant’s act and the ultimate result is too remote to impose liability. A determination of legal causation depends on mixed considerations of logic, common sense, justice, policy, and precedent.

[16] Negligence — Proximate Cause — Question of Law or Fact — Deference to Trial Court The issue of proximate cause in a negligence action presents a mixed question of law and fact. Insofar as a trial court’s determination of proximate cause necessarily entails factual considerations of “but-for” causation, it is accorded deference by a reviewing court.

[17] Negligence — Proximate Cause — Proof — Speculation Speculation is insufficient to establish proximate cause in a negligence action.

COUNSEL: Douglas J. Takasugi (of Jeffers, Danielson, Sonn & Aylward, P.S.), for appellants.

Thomas F. O’Connell (of Davis, Arneil, Dorsey, Kight), for respondent.

JUDGES: Author: DENNIS J. SWEENEY. Concurring: STEPHEN M. BROWN & KENNETH H. KATO.

OPINION BY: DENNIS J. SWEENEY

OPINION

[**58] [*950] Sweeney, J. [HN1] — To hold a defendant liable for negligence, the plaintiff must show that the defendant proximately caused the plaintiff’s injury. Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998). [HN2] Proximate cause is generally a question of fact. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Here, the trial court, sitting as the fact finder, found that any negligence on the part of Eugene Bendotti (Gene) was “too attenuated” from Bonny Jo Bendotti’s death to hold Gene legally liable. Gene was Bonny’s scuba diving buddy. He failed to properly attach a power inflator to his buoyancy compensator. This required an emergency ascent. Bonny then drowned after her equipment became [***2] entangled in a rope. We conclude that the trial court’s finding is adequately supported by the evidence, and affirm the judgment dismissing Cully, Adam, and Brandy Jo Rasmussen’s wrongful death suit.

FACTS

Our factual summary here follows the trial court’s unchallenged findings of fact, including those denominated as conclusions of law. Hagemann v. Worth, 56 Wn. App. 85, 89, 782 P.2d 1072 (1989). We refer to Mr. and Mrs. Bendotti as Gene and Bonny. We intend no disrespect by doing so. We use their first names simply for clarity and ease of reference.

Bonny and Gene were married in 1990. They got interested in scuba diving and completed [**59] the necessary scuba certification in April 1996. Their training included an open water dive course and an advanced open water dive course.

In the fall of 1996, the Bendottis were asked to help recover a snowmobile from Lake Wenatchee. They agreed to [*951] help. On October 4, they made one or two dives, located the snowmobile in approximately 100 feet of water, and marked it with a 50-foot line.

The Bendottis returned to Lake Wenatchee on November 2. At first they were unable to locate the snowmobile or marker line. They located [***3] the snowmobile during the second dive and marked it with a longer line and buoy. They then broke for lunch and refilled their air tanks. After the third dive, the Bendottis and others with them decided to try to attach a line to the snowmobile to drag it from the lake. Both descended for their fourth dive.

Gene had, however, inadvertently failed to reconnect his power inflator to his buoyancy compensator. A power inflator inflates a buoyancy compensator which then allows the diver to rise to the surface. And “[b]ecause he and Bonny did not adequately perform buddy and self-equipment checks, it was not discovered.” Clerk’s Papers (CP) at 561. Once in the water, Gene discovered the equipment problem and immediately surfaced. Bonny, however, became entangled in a rope at the 40-foot level “perhaps while ascending herself.” CP at 561. She was unable to disentangle herself and drowned.

Cully, Adam, and Brandy Jo Rasmussen are Bonny’s children. They sued Gene on behalf of themselves and Bonny’s estate. The court denied Gene’s motion for summary judgment and heard the matter without a jury.

The court concluded that Gene owed a duty to Bonny as her scuba [***4] diving “buddy.” Left unstated, but easily inferable given the court’s other conclusions, is the finding that Gene breached that duty by failing to reconnect his power inflator. The court then goes on to conclude that because Gene’s failure to reconnect his power inflator was an emergency, he acted as a reasonably prudent diver when he ditched his weight belt and ascended. It also concluded that Gene’s duty to Bonny terminated because of this emergency. The court then held that the Rasmussens “failed to prove by a preponderance of the evidence any breach of duty by Gene to Bonny occurring prior to Gene facing his own personal [*952] emergency.” CP at 562. The court dismissed the Rasmussens’ claims with prejudice.

The Rasmussens moved for reconsideration. The court denied the motion, but supplemented its original conclusions of law. It concluded that both Gene and Bonny should have checked Gene’s scuba equipment prior to their fourth dive. But their failure to do so placed only Gene at risk. In its supplemental conclusions, the court further reiterated that a diver’s primary duty is to himself, or herself, and that Bonny became entangled only after Gene faced his own emergency. And Gene’s [***5] duty to Bonny terminated once he faced his own emergency.

Finally, the court concluded that Gene’s failure to attach his power inflator was “too attenuated” from Bonny’s subsequent entanglement in the rope to hold him legally responsible for her death. CP at 435.

The Rasmussens appeal the judgment dismissing their claims. Gene appeals the denial of his pretrial motion for summary judgment.

ASSIGNMENTS OF ERROR

The Rasmussens assign error to a number of the court’s conclusions of law. And those assignments of error delineate the issues before us.

The Rasmussens assign error to the following original conclusions of law, which we paraphrase:

. That Gene’s legal duty to Bonny terminated when he was faced with his own emergency during the fourth dive. Conclusion of Law 4.

. The Rasmussens did not prove any breach of duty by Gene to Bonny prior to Gene’s facing his own personal emergency. Conclusion of Law 5.

[**60] The Rasmussens assign error to the following supplemental conclusions of law, which we also paraphrase:

[*953] Failure to perform equipment checks, their own and their buddy’s, put Gene solely at risk. Supplemental Conclusion of Law 3.

. If Gene had improperly loaded a spear gun [***6] which discharged and struck Bonny, his conduct at the surface would have increased the risk to Bonny. But that did not occur. Supplemental Conclusion of Law 4.

. Gene’s failure to check his equipment did not put Bonny at an increased risk of harm. Supplemental Conclusion of Law 5.

. When Gene surfaced, he acted reasonably and his duty to his dive buddy terminated. Supplemental Conclusion of Law 7.

. The connection between Gene’s failure to attach his power inflator on the surface and Bonny’s subsequent entanglement (and death) is too attenuated to hold Gene legally responsible. Supplemental Conclusion of Law 9.

. To hold Gene responsible would make him a guarantor of Bonny’s safety. Supplemental Conclusion of Law 10.

From these assignments of error, the Rasmussens make four basic arguments:

(1) After concluding that Gene owed a duty of care to Bonny (a duty owed by all dive buddies), the court then inconsistently goes on to conclude that Gene did not breach that duty–despite the fact that Gene negligently failed to reconnect his power inflator and perform adequate equipment checks before the fourth dive, contrary to standard diving practices.

(2) After concluding that Gene owed a duty [***7] to Bonny, the court then goes on to conclude that that duty terminated when Gene was faced with his own emergency. The Rasmussens argue that the duty should not have terminated because the emergency Gene was responding to was one of his own making. Brown v. Spokane County Fire Prot. Dist. No. 1100 Wn.2d 188, 197, 668 P.2d 571 (1983); Pryor [*954] v. Safeway Stores, Inc., 196 Wash. 382, 387-88, 83 P.2d 241 (1938), overruled on other grounds by Blaak v. Davidson, 84 Wn.2d 882, 529 P.2d 1048 (1975).

(3) The court concluded that Gene’s failure to perform a self-equipment check did not put Bonny at any increased risk of harm. The Rasmussens urge that if Gene had a duty, as the court found, then Bonny was certainly within the class of people that the duty was intended to protect.

(4) Finally, the court concluded that the connection between Gene’s negligence and Bonny’s death was too attenuated for the death to proximately flow from the breach of duty. Again, the Rasmussens argue that the very purpose of diving with a buddy, a standard obligatory diving practice, is so one diver is available to assist another who encounters difficulty underwater.

[***8] STANDARD OF REVIEW

[1] The Rasmussens challenge only the court’s conclusions of law. The findings of fact are therefore verities on appeal. Nordstrom Credit, Inc. v. Dep’t of Revenue, 120 Wn.2d 935, 941, 845 P.2d 1331 (1993).

[2] [HN3] We review the court’s conclusions of law by first determining whether the court applied the correct legal standard to the facts under consideration. Our review is de novo. See State v. Williams, 96 Wn.2d 215, 220, 634 P.2d 868 (1981) (appellate court determines questions of law). Every conclusion of law, however, necessarily incorporates the factual determinations made by the court in arriving at the legal conclusion (or ultimate fact). See Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir. 1981) (the logical flow is evidence to basic facts to ultimate facts). For example, the fact that a driver ran a red light is clearly a finding of fact and, therefore, a decision which would demand our deference. But the court’s conclusion of law from that finding that the defendant ran the light and was therefore negligent would be a conclusion (running a red light is negligent), which we [***9] would review de novo.

[**61] [*955] [3] [4] To be more specific, and address the questions raised here, the question of whether Gene had a duty to Bonny as her diving buddy is a question of law which we review de novo. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Likewise, [HN4] the question of whether an emergency created by a breach of that duty (failure to check his equipment) terminated that duty to his buddy (Bonny) is also a question of law, which we review de novo. Mains Farm Homeowners Ass’n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).

But [HN5] the question of the proximal relationship between any breach of Gene’s duty and Bonny’s subsequent death is a mixed question of law and fact, and so requires our deference. See Bell v. McMurray, 5 Wn. App. 207, 213, 486 P.2d 1105 (1971) [HN6] (proximate cause is a mixed question of law and fact, and “is usually for the trier of facts”).

NEGLIGENCE

[5] [6] We begin with the hornbook statement of elements for a cause of action in negligence. [HN7] Negligence requires a duty specifically to the plaintiff or to the class or group of people which includes the plaintiff. See Rodriguez v. Perez, 99 Wn. App. 439, 444, 994 P.2d 874, [***10] [HN8] (“When a duty is owed to a specific individual or class of individuals, that person or persons may bring an action in negligence for breach of that duty.”), review denied, 141 Wn.2d 1020 (2000); Torres v. City of Anacortes, 97 Wn. App. 64, 73, 981 P.2d 891 (1999), review denied, 140 Wn.2d 1007, 999 P.2d 1261 (2000). The plaintiff must then prove that a breach of the duty proximately caused the injury complained of. Hertog, 138 Wn.2d at 275; Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998); Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). Finally, of course, there must be some injury. Hertog, 138 Wn.2d at 275. But injury is not at issue here.

DUTY

[7] [8] [HN9] The existence of a duty is a question of law. Hertog, [*956] 138 Wn.2d at 275. Whether the defendant owed the plaintiff a duty, however, turns on the foreseeability of injury; that is, whether the risk embraced by the conduct exposes the plaintiff to injury. Rikstad v. Holmberg, 76 Wn.2d 265, 268, 456 P.2d 355 (1969). “The hazard [***11] that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.” Id.

[9] And on this question, the trial judge’s conclusions of law, while a bit inconsistent, are nonetheless reconcilable.

First, and foremost, the court concluded unequivocally that:

. “[A] scuba diver owes a duty to his buddy . . . .” Conclusion of Law 2, CP at 562.

. “Because Gene and Bonny were dive buddies on November 2, 1996, Gene owed a duty to Bonny to act in the manner of a reasonably prudent diver.” Conclusion of Law 3, CP at 562.

The court’s conclusions are based on its unchallenged factual finding that: “Bonny and Gene received instruction to always dive with a buddy. One reason for this was safety, as a buddy can assist a diver who encounters difficulties underwater.” Finding of Fact 8, CP at 546.

BREACH OF A DUTY OF CARE

[10] [11] [HN10] Whether a duty of care has been breached is a question of fact. Hertog, 138 Wn.2d at 275. And the court’s findings of fact on this question are instructive. The court found that “[s]tandard diving practices [***12] include performing a buddy check and self equipment check prior to each dive. If these checks had been performed, any problem with Gene’s power inflator would likely have been discovered.” Finding of Fact 25, CP at 555. The court also found that Gene and Bonny did not perform a buddy check before the fourth and fatal dive. Findings of Fact 26 and 47.

Given the duty owed by one diver to his or her buddy and the court’s unchallenged finding of fact that those duties were not performed, the legal conclusion that Gene [*957] breached his duty to Bonny is inescapable. [**62] See Williams, 96 Wn.2d at 221 [HN11] (“Where findings necessarily imply one conclusion of law the question still remains whether the evidence justified that conclusion.” (emphasis omitted)). [HN12] Duties are not owed in the abstract. Nor are duties owed to oneself. Here, the duty owed was to that population intended to be protected by the buddy checks. And that population obviously includes a diver’s buddy–here, Bonny.

Emergency Doctrine

Having concluded that Gene owed a duty to Bonny as her dive buddy, the court then went on to conclude that that duty terminated with Gene’s [***13] own personal emergency. Conclusion of Law 4. The issue raised by the Rasmussens’ assignment of error to this conclusion is whether a duty of care ends with an emergency when the emergency is the result of the defendant’s breach of a duty?

[12] [HN13] The emergency doctrine was developed at common law and states the commonsense proposition that a person faced with an emergency should not be held to the same standards as someone given time for reflection and deliberation. Sandberg v. Spoelstra, 46 Wn.2d 776, 782, 285 P.2d 564 (1955).

The trial judge here concluded that “when Gene was required to so act [because of his personal emergency], his legal duty to Bonny was terminated.” Conclusion of Law 4, CP at 562.

[13] [14] The emergency here was Gene’s discovery of the results of his earlier omission. That is, he discovered that he had failed to properly connect his power inflator to his buoyancy compensator. But that emergency was of his own making. And because of that, he is not entitled to the benefit of the emergency doctrine. McCluskey v. Handorff-Sherman, 68 Wn. App. 96, 111, 841 P.2d 1300 (1992) [HN14] (“It is a well-established principle that the emergency doctrine [***14] does not apply where a person’s own negligence put him in the emergency situation.”), aff’d, 125 Wn.2d 1, 882 P.2d 157 (1994).

[HN15] [*958] A defendant is entitled to the benefit of the emergency doctrine when he or she undertakes the best course of action given an emergency not of his or her own making. Brown, 100 Wn.2d at 197. So, for example, if Gene, or for that matter Bonny, had inadvertently disconnected Gene’s power inflator while diving and Gene reacted to the emergency by immediately ascending, his conduct could be judged based on the emergency. But here, the court had already found that he had inadvertently, i.e., negligently, failed to perform his self and buddy checks. His conduct must then be evaluated at that time (when he was obligated to check his equipment) and not when he later discovered his negligent omission and reacted to it.

The court then erred by concluding that Gene’s emergency cut off any duty he owed to Bonny. Brown v. Yamaha Motor Corp., 38 Wn. App. 914, 920, 691 P.2d 577 (1984) (emergency doctrine is applicable only if the defendant’s negligence did not contribute to the emergency).

PROXIMATE CAUSE [***15]

The court concluded that “the connection between Gene Bendotti’s failure to attach his power inflator on the surface and Bonny Bendotti’s subsequent entanglement is too attenuated a connection to hold Gene Bendotti legally responsible for Bonny Bendotti’s death[.]” Suppl. Conclusion of Law 9, CP at 435.

[15] [16] [HN16] Proximate cause has two discreet elements. The first, cause in fact, requires some physical connection between the act (the failure to connect the power inflator) and the injury (Bonny’s death). Meneely v. S.R. Smith, Inc., 101 Wn. App. 845, 862-63, 5 P.3d 49 (2000). The second element of proximate cause involves legal causation. Id. And that is a policy consideration for the court. Id. at 863. The consideration is whether the ultimate result and the defendant’s acts are substantially connected, and not too remote to impose liability. Id. It is a legal question involving logic, common sense, justice, policy, and precedent. Id.

[HN17] The question of proximate cause then is a mixed question [*959] of law and fact. Bell, 5 Wn. App. at 213. We must then defer to the trial judge’s determination [***16] of proximate cause because it necessarily [**63] entails factual considerations of “but-for” causation. Here, the question simply put is, if Gene had properly connected his power inflator, would Bonny be alive today? The court held that the connection between Gene’s breach and Bonny’s death was too attenuated to say that had he connected his power inflator she would still be alive. The evidence amply supports this fact.

Jon Hardy, a scuba diving expert, testified that there was no connection between Gene’s failure to attach his power inflator and Bonny’s subsequent entanglement. Nor did he believe there was a connection between the loss of buddy contact and Bonny’s death. He further stated that he believed the proximate cause of Bonny’s death was her failure to carry a dive knife.

[17] How Bonny became entangled and why she was not able to free herself is not known. Also unknown is whether Gene could have saved her in any event. So, whether Gene could have saved her is speculation. And [HN18] speculation is not sufficient to establish proximate cause. Jankelson v. Sisters of Charity, 17 Wn.2d 631, 643, 136 P.2d 720 (1943) [HN19] (“‘The cause of an accident may be said to be speculative when, [***17] from a consideration of all the facts, it is as likely that it happened from one cause as another.'”) (quoting Frescoln v. Puget Sound Traction, Light & Power Co., 90 Wash. 59, 63, 155 P. 395 (1916)).

CONCLUSION

We affirm the trial court’s judgment in favor of Gene because its conclusion that the result (Bonny’s death) was too attenuated from Gene’s breach of his duty (failure to properly attach his power inflator) is amply supported by the evidence.

Brown, A.C.J., and Kato, J., concur.

Recinsideration denied September 26, 2001.

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12000 Summer Camps in the US 7000 overnight camps. Do you have your child set to make great memories this summer

Between attending as a camper and working as a staff member, my memories of summer camp are some of the greatest I have. Freedom for the summer, learning new things, seeing how long it will take government surplus peanut butter to fall out of a dish……great memories

6 Million kids attend summer camp each summer!

clip_image002

Created by Regpack 

https://www.regpacks.com/blog/infographic-amazing-facts-on-summer-camps-in-the-united-states/

 

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Snowshoe.com has a great handout to promote snowshoeing and help beginners and experts enjoy the sport. On top of that, it provides a few safety tips.

www.snowshoes.comSnowshoe.com 2014_02_05_13_41_590002

Laminated card is easy to keep in a pocket or next to your snowshoes so you can review it before each snowshoe trip.

This is a great idea for beginners and will help people get into snowshoeing a little easier. But what I really like is the few simple safety tips.Snowshoe.com

The checklist has safety gear listed as Essential and then a section on Optional Safety Gear.

On the back is just a few reminders to keep beginners safe and as a reminders to experts.

Good job Snowshoe.com

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The Wilderness Medical Society has issued new practice guidelines for Treatment of Exercise-Associated Hyponatremia and Spine Immobilization in the Austere Environment

WMS

The Wilderness Medical Society has issued new practice guidelines for Treatment of Exercise-Associated Hyponatremia and Spine Immobilization in the Austere Environment

If you have medical protocols (and why would you?) they just WMS Poster 1changed. If you run wilderness programs, a new guideline that you will be judged against has been created.

The Wilderness Medicine Society is the organization for writing guidelines for outdoor recreation and SAR community, besides being a great organization for meeting the experts in the field of wilderness medicine. If you are involved in the outdoors you should be a member! Join today.

The Wilderness Medicine Society is the First Aid Organization

The new guidelines have been developed over years of research by experts in the field. These experts include both the SAR personnel who find people and the physicians who treat the injured victims once they arrive at a hospital.

Join today and find out what these new guidelines are and how to implement them in your program.

More Recreation Law Legal Articles:WMS Poster 2

10 First Aid Myths                                                                                                    http://rec-law.us/ySaAwO

Another Way to Teach CPR                                                                                  http://rec-law.us/xEEaRo

CPR is not fool proof                                                                                               http://rec-law.us/w4PrpE

Everyone should write first aid protocols…. Or you could just buy a first aid book!http://rec-law.us/wguXEW

First Aid has its Limits. By law!                                                                              http://rec-law.us/xS1IEk

Letter to the Editor: Wilderness and Environmental Medicine                        http://rec-law.us/AjxzNj

Not a final decision, but I believe an indication of where the law of AED’s is heading however the basis for WMS Poster 3the decision is nuts!                                                                                          http://rec-law.us/yKC5te

Seriously, you have to send a memo about this, the issue is not what they are doing, it is who you are allowing to instruct.                                                                                                 http://rec-law.us/Ap1bRu

Stopping a rescue when someone is willing to perform may create liabilityhttp://rec-law.us/xuMtOt

 

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#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, WMS, Wilderness Medical Society, Practice Guidelines, Medical Protocols, First Aid, SAR, Treatment, Exercise-Associated Hyponatremia, Spine Immobilization in the Austere Environment, Spine Immobilization,

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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?

Is our focus on safety an excuse allowing us to ignore safety? Safety is not in a helmet, padding or rules. Safety is knowing what to do, how to do something and what not to do. Education is safety.

jeremy swanson aspen 66

jeremy swanson aspen 66

It takes time to teach a kid how to ride a bike. It takes a long time to learn how to rock climb and place

protection. It takes a lifetime; sometimes short, to be a successful mountaineer.

A lot of climbers are taking shortcuts, it is easier to buy experience rather than gain it. However that is at least experience, time, someone to critique, lend support and at the right moment scream “don’t do that!”

You can’t buy a helmet and a safe bicycle and expect a child to not be injured.

You can’t rent a helmet and skis and expect your child to be safe on the slopes.

You can’t point to the summit and say, the top is up there.

Successful recreation takes time, not from the participants but from the parents, friends, mentors, teachers and instructors. It takes one on one learning what you need to teach to your student.

As educators and guides in the outdoor recreation arena, we need to point out the difference between the safety provided by gear and the safety of experience.

As outdoor recreation manufacturer’s we need to point out that the gear we are selling will help after all else has failed. Protection is not a replacement for skills, education and experience.

As parents, friends and people on the planet, we need to explain that outdoor recreation safety can’t be based on a credit card but is based on time. Get out there with a friend, relative or young ones and spend the time not just money.

What do you think? Leave a comment.

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American Alpine Club Journal is Looking for your Stories

theclubhouse.png
AAJ_Contribute_Graphic.6.jpgHi James,This year we will be delivering the American Alpine Journal in July, a month earlier—and that means our deadlines are approaching fast!

The AAJ is a collaborative effort, built by climbers and contributors like you from around the world. This means we depend on you and your friends to contribute your eyes and ears.

Get involved: Did you or someone you know do a new route in 2013? Did you climb or hear about a new route that’s regionally significant? Even if it’s only a few pitches long, we want to know about it. Maybe you discovered a new climbing area or did a first free ascent? Foreign expedition? Huge alpine climb? A new big-wall route? Well, the AAJ is the place to document it. Contribute to the 2014 AAJ.

We look forward to building this year’s AAJ with your input. Please contact us no later than January 31.

TELL US YOUR STORY


Would there be a lawsuit in this headline if the camp adults had handled this differently?

Kissing is a $600000 offense at this camp.

This is the headlines form the article “Lawsuit: Girl kicked out of camp over kissThe result of being thrown out of

Kissing Black-tailed Prairie Dogs (Cynomys lud...

camp is a lawsuit by the girl’s parents for “$600,000 in damages, alleging negligent infliction of emotional distress, defamation and other claims.”

The camp, Camp Emerson had an activity called “court time”. This activity “which is held on the basketball court and provides time for male and female campers to interact.” The camper was thrown out when she, and a boy went behind the arts and crafts building and had a kiss.

This is where it gets interesting.

But Arnold said the girl was publicly humiliated and expelled from the camp the next morning by the camp director, Sue Lein. Her parents were called and told to pick her up at the edge of camp, where she was escorted by an armed and uniformed police officer, Arnold said.

The camp allegedly …falsely accused her and the boy of sexually provocative behavior.” A fifteen-year-old girl has that accusation levied at her? That is just nasty, even if true.

Allegedly, the “camp’s director yelled at the girl for being promiscuous in front of everyone….”

The family spent $6,450 for the four-week camp, which was not refunded, said Rosemarie Arnold, attorney for the family.” Blow number two to the egos and feelings of the family. Your daughter is escorted off camp property by an armed guard, and then you don’t even get a refund.  Someone was sitting in a law office may want to suggest a different way of dealing with these issues.

Do you think anyone will learn anything about this, other than young girls realizing that kissing a boy is bad and can lead to mental trauma and embarrassment? Isn’t high school for teenagers bad enough?

This suit was withdrawn a few days after it was filed.

Is this any way to treat any fifteen year old kid? Is this any way to deal with budding hormonal and emotional changes? Is this any way to treat anyone other than criminals?

Is there anything from this description that would tell you as a parent to not sue the camp for what they did to your child?

See Girl Suing Summer Camp After Expulsion For Kiss

What do you think? Leave a comment.

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

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New York Skier Safety Act

New York Skier Safety Act

General Obligations Law 

ARTICLE 18.  SAFETY IN SKIING CODE

NY CLS Gen Oblig Article 18 Note  (2012)

Gen Oblig Article 18 Note

HISTORY:

Add, L 1988, ch 711, § 1, eff Nov 1, 1988 (see 1988 note below).

NOTES:

Laws 1988, ch 711, § 4, eff Nov 1, 1988, provides as follows:

§ 4. This act shall take effect on November first, nineteen hundred eighty-eight; provided that section 18-106 of the general obligations law, as added by section one of this act, shall take effect on the first day of October, nineteen hundred eighty-nine; and provided further that the commissioner of labor, effective immediately, is authorized and directed to promulgate any and all rules and regulations necessary to the timely implementation of the provisions of this act on their effective dates.

Research References & Practice Aids:

3 NY Jur 2d Amusements and Exhibitions § 30

§ 18-101.  Legislative purpose. 1

§ 18-102.  Definitions. 4

§ 18-103.  Duties of ski area operators. 5

§ 18-104.  Duties of passengers. 9

§ 18-105.  Duties of skiers. 10

§ 18-106.  Duties of skiers and ski area operators with respect to inherent risks. 12

§ 18-107.  Construction.. 15

§ 18-108.  Severability. 16

§ 867.  Safety in skiing code. 16

 

§ 18-101.  Legislative purpose

The legislature hereby finds that alpine or downhill skiing is both a major recreational sport and a major industry within the state of New York. The legislature further finds: (1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state; (2) that downhill skiing, without established rules of conduct and care, may result in injuries to persons and property; (3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry.

§ 18-102.  Definitions

The following words and phrases when used in this article shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:

1. “Lift ticket” means any item issued by a ski area operator to any skier that is intended to be affixed to the outerwear of the skier, or otherwise displayed by a skier, to signify lawful entry upon and use of the passenger tramways or ski slopes or trails maintained by the ski area operator.

2. “Passenger tramway” means a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails as defined by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.

3. “Passenger” means a person in or on or being transported by a tramway.

4. “Ski area” means all ski slopes, ski trails and passenger tramways administered as a single enterprise within this state.

5. “Ski area operator” means a person, firm or corporation, and its agents and employees, having operational and administrative responsibility for any ski area, including any agency of the state, any political subdivision thereof, and any other governmental agency or instrumentality.

6. “Skier” means any person wearing a ski or skis and any person actually on a ski slope or trail located at a ski area, for the purpose of skiing.

7. “Ski slopes and trails” mean those areas designated by the ski area operator for skiing.

§ 18-103.  Duties of ski area operators

   Every ski area operator shall have the following duties:

1. To equip all trail maintenance vehicles with such warning implements or devices as shall be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law. Such implements or devices shall be present and operating whenever the vehicle is within the borders of any slope or trail.

2. To post in a location likely to be seen by all skiers signs of such size and color as will enable skiers to have knowledge of their responsibilities under this article.

3. To hold employee training sessions at least once before the beginning of each season, the contents of which shall be specified by the commissioner of labor upon the recommendation of the passenger tramway advisory council, as follows:

      a. for operators of trail maintenance equipment concerning the safe operation of such vehicles in the ski area;

      b. for passenger tramway attendants concerning the safe operation of passenger tramways;

      c. for ski personnel charged with the responsibility of evacuating passengers from passenger tramways concerning proper evacuation techniques; and

      d. for all other personnel charged with on-mountain maintenance, inspection or patrol duties as to methods to be used for summoning aid in emergencies.

4. To conspicuously mark with such implements as may be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law, the location of such man-made obstructions as, but not limited to, snow-making equipment, electrical outlets, timing equipment, stanchions, pipes, or storage areas that are within the borders of the designated slope or trail, when the top of such obstruction is less than six feet above snow level.

5. To maintain in a central location at the ski area an information board or boards showing at a minimum the following:

      a. the location of tramways, slopes or trails;

      b. the status of each trail–open or closed;

      c. the location of emergency communications or medical equipment and sites designated by the ski area operator for receipt of notice from skiers pursuant to subdivision thirteen of this section;

      d. the relative degree of difficulty of each slope or trail (at a minimum easier, more difficult, most difficult); and

      e. the general surface condition of each slope and trail as most recently recorded in the log required to be maintained by subdivision six of this section.

6. To inspect each open slope or trail that is open to the public within the ski area at least twice a day, and enter the results of such inspection in a log which shall be available for examination by the commissioner of labor. The log shall note:

      a. the general surface conditions of such trail at the time of inspection (powder, packed powder, frozen granular, icy patches or icy surface, bare spots or other surface conditions);

      b. the time of inspection and the name of the inspector;

      c. the existence of any obstacles or hazards other than those which may arise from:

         (i) skier use;

         (ii) weather variations including freezing and thawing; or

         (iii) mechanical failure of snow grooming or emergency equipment which may position such equipment within the borders of a slope or trail.

7. To develop and maintain a written policy consistent with the regulations of the commissioner of labor upon the advice of the passenger tramway advisory council for situations involving the reckless conduct of skiers, which shall include, but not be limited to:

      a. a definition of reckless conduct; and

      b. procedures for approaching and warning skiers of reckless conduct and procedures for dealing with such skiers which may include the revocation of the lift tickets of such skiers.

8. To designate personnel to implement the ski area’s policy on reckless conduct.

9. To report to the commissioner of labor by telephone within twenty-four hours any fatality or injury resulting in a fatality at the ski area.

10. To conspicuously post and maintain such ski area signage, including appropriate signage at the top of affected ski slopes and trails, notice of maintenance activities and for passenger tramways as shall be specified by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.

11. To post in a conspicuous location at each lift line a sign, which shall indicate the degree of difficulty of trails served by that lift with signs as shall be specified by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.

12. To ensure that lift towers located within the boundaries of any ski slope or trail are padded or otherwise protected and that no protruding metal or wood objects, such as ladders or steps, shall be installed on the uphill or side portion of lift towers within the borders of a ski slope or trail, unless such objects are below the snow line, at least six feet above it, or padded or otherwise protected with such devices as, but not limited to, the following:

      a. commercially available tower padding;

      b. air or foam filled bags;

      c. hay bales encased in a waterproof cover; or

      d. soft rope nets properly spaced from the tower.

13. To, within a reasonable amount of time after the inspection required by subdivision six of this section, conspicuously mark with such implements as may be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law and to provide sufficient warning to skiers by such marking or remove such obstacles or hazards which are located within the boundaries of any ski slope or trail and were noted pursuant to paragraph c of subdivision six of this section; and to also conspicuously mark with such implements and provide such warning or remove such obstacles or hazards within a reasonable amount of time after receipt of notice by the ski area operator from any skier as to the presence of such obstacles or hazards when notice is given at sites designated by the ski area operator for such receipt and the locations of which are made known to skiers pursuant to paragraph c of subdivision five of this section.

14. To have present at all times when skiing activity is in progress, individuals properly and appropriately trained for the safe operation of on-slope vehicles; trail maintenance equipment; tramways; tramway evacuations; implementation of the reckless skier policy; first aid and outdoor rescue; and, to have present according to a schedule posted for access by skiers, by the ski area operator, personnel appropriately trained in the instruction of skiers and passengers in methods of risk reduction while using ski slopes and passenger tramways and the instruction of skiers with respect to the risks inherent in the sport.

§ 18-104.  Duties of passengers

   All passengers shall have the following duties:

1. To familiarize themselves with the safe use of any tramway prior to its use;

2. To remain in the tramway if the operation of a passenger tramway, as defined pursuant to section two hundred two-c of the labor law, is interrupted for any reason, until instructions or aid are provided by the ski area operator;

3. To board or disembark from passenger tramways only at points or areas designated by the ski area operator;

4. Not to eject any objects or material from a passenger tramway;

5. To use restraint devices in accordance with posted instructions;

6. To wear retention straps or other devices to prevent runaway skis;

7. Not to interfere with the operation of a passenger tramway;

8. Not to place or caused to be placed on the uphill track of a surface lift any object which may interfere with its normal operation; and

9. Not to wear loose scarves, clothing or accessories or expose long hair which may become entangled with any part of the device.

§ 18-105.  Duties of skiers

   All skiers shall have the following duties:

1. Not to ski in any area not designated for skiing;

2. Not to ski beyond their limits or ability to overcome variations in slope, trail configuration and surface or subsurface conditions which may be caused or altered by weather, slope or trail maintenance work by the ski area operator, or skier use;

3. To abide by the directions of the ski area operator;

4. To remain in constant control of speed and course at all times while skiing so as to avoid contact with plainly visible or clearly marked obstacles and with other skiers and passengers on surface operating tramways;

5. To familiarize themselves with posted information before skiing any slope or trail, including all information posted pursuant to subdivision five of section 18-103 of this article;

6. Not to cross the uphill track of any surface lift, except at points clearly designated by the ski area operator;

7. Not to ski on a slope or trail or portion thereof that has been designated as “closed” by the ski area operator;

8. Not to leave the scene of any accident resulting in personal injury to another party until such times as the ski area operator arrives, except for the purpose of summoning aid;

9. Not to overtake another skier in such a manner as to cause contact with the skier being overtaken and to yield the right-of-way to the skier being overtaken;

10. Not to willfully stop on any slope or trail where such stopping is likely to cause a collision with other skiers or vehicles;

11. To yield to other skiers when entering a trail or starting downhill;

12. To wear retention straps or other devices to prevent runaway skis;

13. To report any personal injury to the ski area operator before leaving the ski area; and

14. Not to willfully remove, deface, alter or otherwise damage signage, warning devices or implements, or other safety devices placed and maintained by the ski area operator pursuant to the requirements of section 18-103 of this article.

§ 18-106.  Duties of skiers and ski area operators with respect to inherent risks

   It is recognized that skiing is a voluntary activity that may be hazardous regardless of all feasible safety measures that can be undertaken by ski area operators. Accordingly:

1. Ski area operators shall have the following additional duties:

      a. To post at every point of sale or distribution of lift tickets, whether on or off the premises of the ski area operator, a conspicuous “Warning to Skiers” relative to the inherent risks of skiing in accordance with regulations promulgated by the commissioner of labor pursuant to subdivision four of section eight hundred sixty-seven of the labor law, and to imprint upon all lift tickets sold or distributed, such text and graphics as the commissioner of labor shall similarly specify, which shall conspicuously direct the attention of all skiers to the required “Warning to Skiers”;

      b. To post at every point of sale or distribution of lift tickets at a ski area notice to skiers and passengers that this article prescribes certain duties for skiers, passengers and ski area operators, and to make copies of this article in its entirety available without charge upon request to skiers and passengers in a central location at the ski area;

      c. To make available at reasonable fees, as required by subdivision thirteen of section 18-103 of this article, instruction and education for skiers relative to the risks inherent in the sport and the duties prescribed for skiers by this article, and to conspicuously post notice of the times and places of availability of such instruction and education in locations where it is likely to be seen by skiers; and

      d. To post notice to skiers of the right to a refund to the purchaser in the form and amount paid in the initial sale of any lift ticket returned to the ski area operator, intact and unused, upon declaration by such purchaser that he or she is unprepared or unwilling to ski due to the risks inherent in the sport or the duties imposed upon him or her by this article.

2. Skiers shall have the following additional duties to enable them to make informed decisions as to the advisability of their participation in the sport:

      a. To seek out, read, review and understand, in advance of skiing, a “Warning to Skiers” as shall be defined pursuant to subdivision five of section eight hundred sixty-seven of the labor law, which shall be displayed and provided pursuant to paragraph a of subdivision one of this section; and

      b. To obtain such education in the sport of skiing as the individual skier shall deem appropriate to his or her level of ability, including the familiarization with skills and duties necessary to reduce the risk of injury in such sport.

§ 18-107.  Construction

   Unless otherwise specifically provided in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law.

§ 18-108.  Severability

   If any provision of this article or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this article that can be given effect without the invalid provision or application, and to this end the provisions of this article are declared to be severable.

§ 867.  Safety in skiing code

   1. The [fig 1] commissioner, on the advice of the passenger tramway advisory council as created pursuant to section twelve-c of this chapter, shall promulgate rules and regulations, consistent with article eighteen of the general obligations law, intended to guard against personal injuries to downhill skiers which will, in view of such intent, define the duties and responsibilities of downhill skiers and the duties and responsibilities of ski area operators.

2. The commissioner shall enforce all the provisions of this article and the regulations adopted pursuant hereto and may issue such orders against any entity, public or private, as he finds necessary, directing compliance with any provision of this article or such regulations. The commissioner may also investigate any fatality or injury resulting in a fatality at a ski area.

3. The passenger tramway advisory council shall conduct any investigation necessary to carry out the provisions of this [fig 1] article.

4. The passenger tramway advisory council shall conduct public hearings on any rules and regulations proposed under this section prior to their promulgation by the [fig 1] commissioner. The passenger tramway advisory council shall fix a time and place for each such hearing and cause such notice as it may deem appropriate to be given to the public and news media prior to such a hearing. Testimony may be taken and evidence received at such a hearing pursuant to procedures prescribed by the passenger tramway advisory council.

5. Upon advice of the passenger tramway advisory council, the commission shall, on the fifteenth day of March, nineteen hundred eighty-nine, promulgate rules which shall set forth specifications for the uniform textual and graphic content, physical description, and conspicuous posting of a “Warning to Skiers” regarding the risks inherent in the sport as set forth in section 18-101 of the general obligations law, which shall be posted and provided to skiers by ski areas operators in accordance with subdivision one of section 18-106 of the general obligations law, and shall promulgate rules which shall set forth textual and graphic specifications designed to occupy not more than twenty-five percent of the imprintable surface area of the face side nor more than eighty percent of the imprintable surface area of the reverse side or backing paper of all lift tickets sold or distributed in the state, as defined by section 18-102 of the general obligations law, which shall uniformly serve to direct the attention of all skiers to the “Warning to Skiers” herein directed to be promulgated and required by section 18-106 of the general obligations law.

  

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Oregon Skier Safety Act

Oregon Skier Safety Act

OREGON REVISED STATUTES

TITLE 3 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS 

Chapter 30 – Actions and Suits in Particular Cases 

SKIING ACTIVITIES 

GO TO OREGON REVISED STATUTES ARCHIVE DIRECTORY

ORS § 30.970 (2011)

30.970 Definitions for ORS 30.970 to 30.990.

    As used in ORS 30.970 to 30.990:

(1) “Inherent risks of skiing” includes, but is not limited to, those dangers or conditions which are an integral part of the sport, such as changing weather conditions, variations or steepness in terrain, snow or ice conditions, surface or subsurface conditions, bare spots, creeks and gullies, forest growth, rocks, stumps, lift towers and other structures and their components, collisions with other skiers and a skier’s failure to ski within the skier’s own ability.

(2) “Injury” means any personal injury or property damage or loss.

(3) “Skier” means any person who is in a ski area for the purpose of engaging in the sport of skiing or who rides as a passenger on any ski lift device.

(4) “Ski area” means any area designated and maintained by a ski area operator for skiing.

(5) “Ski area operator” means those persons, and their agents, officers, employees or representatives, who operate a ski area.

HISTORY: 1979 c.665 § 1

NOTES OF DECISIONS

Where plaintiff did not argue to trial court that her injuries were caused by combination of inherent risk of skiing and operator negligence which would have made doctrine of comparative fault applicable, trial court did not err in instructing jury that if plaintiff’s injury was caused by inherent risk of skiing, plaintiff could not recover. Jessup v. Mt. Bachelor, Inc., 101 Or App 670, 792 P2d 1232 (1990), Sup Ct review denied

Vicarious liability of ski area operator for negligence of its employee is not removed solely by fact that employee is skier. Nolan v. Mt. Bachelor, Inc., 317 Or 328, 856 P2d 305 (1993)

CASE NOTES

1. When both an inherent risk and a ski area operator’s negligence contribute to a skier’s injury, the questions of liability and apportionment of fault are for the trier of fact. Nolan v. Mt. Bachelor, Inc., 115 Ore. App. 27, 836 P.2d 770, 1992 Ore. App. LEXIS 1681 (1992), affirmed by, remanded by 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

2. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

3. Given statute’s reference to Or. Rev. Stat. § 31.600, the comparative negligence statute, the legislature contemplated the possibility that skier’s injury might result in part from and inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

4. Skier is barred from recovery against ski area operator for injury caused solely by an inherent risk of skiing, but if injury is caused by a combination of inherent risk of skiing and operator negligence, doctrine of comparative fault would apply. Jessup v. Mt. Bachelor, Inc., 101 Ore. App. 670, 792 P.2d 1232, 1990 Ore. App. LEXIS 526 (1990), review denied by 310 Ore. 475, 799 P.2d 646 (1990).

5. Or. Rev. Stat. § 30.970 shields ski area operators from liability for collisions between customers, not from accountability for a collision caused by an employee’s negligence. Nolan v. Mt. Bachelor, Inc., 115 Ore. App. 27, 836 P.2d 770, 1992 Ore. App. LEXIS 1681 (1992), affirmed by, remanded by 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

30.975 Skiers assume certain risks.

    In accordance with ORS 31.600 and notwithstanding ORS 31.620 (2), an individual who engages in the sport of skiing, alpine or nordic, accepts and assumes the inherent risks of skiing insofar as they are reasonably obvious, expected or necessary.

HISTORY: 1979 c.665 § 2

NOTES OF DECISIONS

Where plaintiff did not argue to trial court that her injuries were caused by combination of inherent risk of skiing and operator negligence which would have made doctrine of comparative fault applicable, trial court did not err in instructing jury that if plaintiff’s injury was caused by inherent risk of skiing, plaintiff could not recover. Jessup v. Mt. Bachelor, Inc., 101 Or App 670, 792 P2d 1232 (1990), Sup Ct review denied

[Former] ORS 18.470 allows jury to consider comparative negligence of skier’s own or another’s negligence as well as inherent risk of skiing. Nolan v. Mt. Bachelor, Inc., 115 Or App 27, 836 P2d 770 (1992), aff’d 317 Or 328, 856 P2d 305 (1993)

Collision between skier and ski instructor employed by ski area operator was not collision with another skier that skier accepts as inherent risk of skiing. Nolan v. Mt. Bachelor, Inc., 317 Or 328, 856 P2d 305 (1993)

Assumption of risk defense is available only to ski area operators. Stiles v. Freemotion, Inc., 185 Or App 393, 59 P3d 548 (2002), Sup Ct review denied

CASE NOTES

1. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part form the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

2. Or. Rev. Stat. § 30.975 insulates a defendant ski operator from liability resulting from the inherent risks of skiing and bars a plaintiff’s claim only if the injury is due solely to those inherent risks; to the extent that injury is due to negligence of a ski operator’s employees, this section does not bar a plaintiff’s recovery. Pierce v. Mt. Hood Meadows Oregon, Ltd., 118 Ore. App. 450, 847 P.2d 909, 1993 Ore. App. LEXIS 262 (1993), review denied by 317 Ore. 583, 859 P.2d 540 (1993).

3. Skier is barred from recovery against ski area operator for injury caused solely by an inherent risk of skiing, but if injury is caused by a combination of inherent risk of skiing and operator negligence, doctrine of comparative fault would apply. Jessup v. Mt. Bachelor, Inc., 101 Ore. App. 670, 792 P.2d 1232, 1990 Ore. App. LEXIS 526 (1990), review denied by 310 Ore. 475, 799 P.2d 646 (1990).

30.980 Notice to ski area operator of injury to skier; injuries resulting in death; statute of limitations; informing skiers of notice requirements.

    (1) A ski area operator shall be notified of any injury to a skier by registered or certified mail within 180 days after the injury or within 180 days after the skier discovers, or reasonably should have discovered, such injury.

(2) When an injury results in a skier’s death, the required notice of the injury may be presented to the ski area operator by or on behalf of the personal representative of the deceased, or any person who may, under ORS 30.020, maintain an action for the wrongful death of the skier, within 180 days after the date of the death which resulted from the injury. However, if the skier whose injury resulted in death presented a notice to the ski area operator that would have been sufficient under this section had the skier lived, notice of the death to the ski area operator is not necessary.

(3) An action against a ski area operator to recover damages for injuries to a skier shall be commenced within two years of the date of the injuries. However, ORS 12.160 and 12.190 apply to such actions.

(4) Failure to give notice as required by this section bars a claim for injuries or wrongful death unless:

(a) The ski area operator had knowledge of the injury or death within the 180-day period after its occurrence;

(b) The skier or skier’s beneficiaries had good cause for failure to give notice as required by this section; or

(c) The ski area operator failed to comply with subsection (5) of this section.

(5) Ski area operators shall give to skiers, in a manner reasonably calculated to inform, notice of the requirements for notifying a ski area operator of injury and the effect of a failure to provide such notice under this section.

HISTORY: 1979 c.665 § 3

CASE NOTES

1. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by and inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

30.985 Duties of skiers; effect of failure to comply.

    (1) Skiers shall have duties which include but are not limited to the following:

(a) Skiers who ski in any area not designated for skiing within the permit area assume the inherent risks thereof.

(b) Skiers shall be the sole judges of the limits of their skills and their ability to meet and overcome the inherent risks of skiing and shall maintain reasonable control of speed and course.

(c) Skiers shall abide by the directions and instructions of the ski area operator.

(d) Skiers shall familiarize themselves with posted information on location and degree of difficulty of trails and slopes to the extent reasonably possible before skiing on any slope or trail.

(e) Skiers shall not cross the uphill track of any surface lift except at points clearly designated by the ski area operator.

(f) Skiers shall not overtake any other skier except in such a manner as to avoid contact and shall grant the right of way to the overtaken skier.

(g) Skiers shall yield to other skiers when entering a trail or starting downhill.

(h) Skiers must wear retention straps or other devices to prevent runaway skis.

(i) Skiers shall not board rope tows, wire rope tows, j-bars, t-bars, ski lifts or other similar devices unless they have sufficient ability to use the devices, and skiers shall follow any written or verbal instructions that are given regarding the devices.

(j) Skiers, when involved in a skiing accident, shall not depart from the ski area without leaving their names and addresses if reasonably possible.

(k) A skier who is injured should, if reasonably possible, give notice of the injury to the ski area operator before leaving the ski area.

(L) Skiers shall not embark or disembark from a ski lift except at designated areas or by the authority of the ski area operator.

(2) Violation of any of the duties of skiers set forth in subsection (1) of this section entitles the ski area operator to withdraw the violator’s privilege of skiing.

HISTORY: 1979 c.665 § 4

CASE NOTES

1. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part form the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

30.990 Operators required to give skiers notice of duties.

    Ski area operators shall give notice to skiers of their duties under ORS 30.985 in a manner reasonably calculated to inform skiers of those duties.

HISTORY: 1979 c.665 § 5

1. It was error for trial court to submit jury instruction from in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

1. 36 Willamette L. Rev. 83, COMMENT: CLEANING UP THE OREGON REVISED STATUTES: A MODEST PROPOSAL ON PUBLIC BODIES.

 


Summer Outdoor Retailer 2013 Review

Most Exhibitors had a good show despite the fact many slept on floors

Summer Outdoor Retailer 2013 is over. Overall attendance was down (no matter what the reports) but the majority of exhibitors I talked to had a good show. Some a great show.

It does not matter how many people attend, as long as the right people attend.

Attendance did jump around 4:30 Pm every day when the free beer would flow. It was sort of comical to be standing in an empty aisle and see the aisle fill up slowly, all with people holding beer.

New Stuff

GCI Outdoors

Ever thought you would take a rocking chair with you. GCI Outdoors Figured it out.

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The rocker rests on a flat base and works off a pivot. The control is based on two shock absorbers on the back. It was very comfortable, and hard to get out of. You sat down and started to rock and relax!

Thule

The Thule booth looked like it belonged at Interbike. Besides a lot of bike accessory bags Thule had 2 new bike “boxes.” Both used an integrated bike stand to hold the bike. When you got to your destination you could pull out the stand and use it to put your bike together and tune your bike.

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Mountaineers Books

Mountaineers Books had a display of the Legends and Lore series. If you can read and love great mountaineering literature pick up these books. Mountaineers has grabbed and republished some of the greatest books of our time.

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Mad Water

Mad Water has a waterproof bag that zips. I’ve owned one for a year and fell in love with it. The zipper is tight and tough but not so tough you are worried about tearing the bag apart. The bags also have a purge value which makes getting the air out easy. Right now the bags with zippers are small but the line is getting bigger.

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Rola

Ever heard of Rola? Me either but one thing caught my eye, their hitch mount. Every state has a law that says anything extending beyond the back of the taillights by more than 36 inches must have a light or a red flag. All those bike racks, cages, boxes, etc., except this one will set you up for a ticket. Rola integrated taillights into their box. Really smart move.

I suspect a lot more people are going to know Rola in the future.

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Sawyer

Sawyer has done it again. Sawyer was the first company to make a water filter using kidney dialysis technology. Nothing is a smooth, slick or safe as Sawyer’s filters. They have a new filter that is smaller and even easier to use. It will wear out after 100000 gallons…..

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The beautiful girl does not come with the filter. You are on your own for that.

Blue Ridge Chair Works

The best item at the show for those of us more attuned to football and beer, or softball and beer, or just beer. Blue Ridge Chair Works has integrated a bottle opening on the bottom side of their chair seats. Sit in a very comfortable chair, reach under the seat and your beer is open. Slick. I have one of the older models which is too comfortable. I got a hand held model….bottle opener.

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Here are some other things which I’m not sure how to comment on……

Float down the river or on the lake and relax…

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Rowing frame for SUP’s that moves your feet not your butt?

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Over all a good show if you had a hotel room. If you did not, the show was a nightmare. But then any time you are in Utah and part of the outdoor recreation industry you are not sure how the world turns backwards.

Support the Southern Utah Wilderness Alliance to help offset Outdoor Retailer putting money into the pockets of people opposed to outdoor recreation.

What do you think? Leave a comment.

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

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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

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

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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, EMS, Emergency Medical Systems, SUWA, Southern Utah Wilderness Alliance, Blue Ridge Chair Works, Sawyer, Rola, Mad Water, Mountaineers Books, Legends and Lore, GCI Outdoors, Thule, Rocking Chair,

 

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Will New York entertain counterclaims for attorney fees and costs to a prevailing defendant?

Underlying claim is dismissed for assumption of the risk. Falling out of the sky is obviously dangerous.

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)

Plaintiff: Lisa Nutley

Defendant: SkyDive the Ranch

Plaintiff Claims: Negligence

Defendant Defenses: Release and Assumption of the risk, counterclaim for attorney fees based on the release

Holding: for the defendant on the claims based on assumption of the risk

 

This is an interesting case. To understand the case, I’ve also posted the trial court opinion leading to the appeal of this case.

The spouse of the plaintiff bought her a tandem sky dive as a gift. During the jump, the main shoot did not open. The reserve shoot did open. During the jump, the plaintiff broke her third and fourth fingers on her right hand. She sued for negligence.

The defendant filed a motion for summary judgment to dismiss the plaintiff’s claims based on the three releases she had signed and the video and instruction she had watched.

The trial court denied the motion for summary judgment (Nutley v. Skydive The Ranch, 22 Misc. 3d 1122(A); 881 N.Y.S.2d 365; 2009 N.Y. Misc. LEXIS 274; 2009 NY Slip Op 50223(U); 241 N.Y.L.J. 23) and the defendant appealed.

Summary of the case

The basis of the denial of the motion for summary judgment is a New York statute which prohibited the use of a release for recreational activities. New York General Obligations Law (“GOL”) §5-326. The lawsuit was dismissed because the trial court found the defendant operated a sky-diving  facility as a recreational business. The Defendant had argued that it was an educational business which does not fall under §5-326.

The appellate court found the releases were void under the New York statute.

The appellate court found that the risks of the activity were fairly obvious, and the plaintiff had assumed the risk of her injuries.

Here, the risk of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant’s negligence, creating unique and dangerous conditions beyond those inherent in the sport

The court then went back to its decision on releases and found the language attempting to release the defendant for negligence was void; however, the rest of the release was still valid.

So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326. Severance of that provision leaves the rest of the contract intact…

Part of one of the releases had included a clause that any suit required the plaintiff to pay the defendant’s damages of attorney fees and costs. The defendant filed  a counterclaim against the plaintiff based upon this clause. The court did not rule on this issue finding that the trial court needed to look into whether this clause violated public policy as advanced by the statute that voids releases.

As to defendant’s counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney’s fees and litigation costs might transgress the public policy of promoting recreational activities advanced by § 5-326 does not appear to have been considered by the courts.

The matter was sent back to the trial court to determine if the counterclaim for attorney fees and costs of the defendant violated New York Public policy and for any defenses the plaintiff may have to the defendant’s counterclaims.

So Now What?

The defendant lost on the defense of release, but won on the defense of assumption of the risk. The defendant might win on the opportunity to sue the plaintiff for attorney fees and costs in the assumption of risk agreements (since the releases are void).

This case appears to be fairly clear in its approach and decision. You can get hurt if you fall out of the sky. That is pretty obvious. Therefore, you assume the risk.

The argument about the sky-diving  facility being an educational business rather than recreation is discussed in the trial court decision. That argument made by the defendant was based on Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003). In Lemoine, the university was subject to the statute which voids releases in New York, but because it was an educational organization and not one for recreation, the statute did not apply.

What is different is the issue that the court held out the possibility that a demand for attorney fees and costs to a prevailing defendant may be viable in New York.

Four years has passed since this decision, and no other cases have been reported. Consequently, as of this time we do not have a decision to rely upon for this issue.

Even if there is not a valid claim because it violates public policy, there are several other theories on how a defendant can recover attorney fees in situations like this that may survive.

 

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

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

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Lawsuit over drowning of summer camper

Lawsuit asking for $13 million for death of 15 year old boy.

I don’t know any more about this than what the article says and the articles are limited in their facts (and probably wrong.) The article states the teen drowned when he was encouraged to walk behind a waterfall and fell in.

A counselor also drowned who tried to save the camper. The issue is camper did not have a PFD (life jacket) on.

Along with the camp four churches are being sued.

The amount seems a little excessive. This is going to be an interesting lawsuit to follow.

See http://rec-law.us/17FVwkx and http://rec-law.us/1385oUH

What do you think? Leave a comment.

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

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Connecticut statute allows Camp Director to be personal liable for injuries of camper

Connecticut has been moving towards the defendant is liable no matter what attitude.

Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)

Plaintiff: John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers

Defendant: Summerland, Inc. dba Camp Kenwood, David B. Miskit and Sharon B. Miskit, Camp Directors

Plaintiff Claims: negligence

Defendant Defenses: individuals not personally liable and dangers were open and obvious to the plaintiff.

Holding: For the plaintiff, Connecticut statute creates personal liability for the camp directors and the open and obvious argument is a genuine issue of material fact to be determined by the jury.

Another case with good information, however, the case is probably not decided yet and the basis for the decision could be different than first reported.

The facts are spotty in this decision. The deceased was a thirteen-year-old  girl attending the defendant Camp Kenwood. As part of the camp, the plaintiff was mountain biking on Bald Hill Road. The road gets steeper as it descends.

The camper was biking on the road and seems to have run off the road which caused her fatality. The administrator of her estate sued the camp and the camp directors individually.

Summary of the case

This appeal was of a denial of a motion for summary judgment. The motion looked at two issues. The first was the individual camp directors should not be personally liable for the plaintiff’s claims. The second was the case should be dismissed because the risks of the riding a bike on that road is open and obvious.

The individual liability issue was the first examined by the court. Connecticut has several statutes regulating summer camps for minors. One of those statutes C.G.S. §19a-422(c) states:

[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.

Another statute C.G.S. §19a-428(a) states:

“The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff….

The regulations adopted by the Commissioner of Public Health, included Regs., Connecticut State Agencies §19-13-B27a which states:

(1) No person shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.

Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.

The plaintiffs argued that because the statutes and regulations created a duty on the part of the directors to care for the “health, comfort and safety of camps” any injury to a camper created personal liability on the part of the camp director.

The defendant argued that liability for actions of a corporation, which owned the camp, could not be imputed to an individual, which is the law in most jurisdictions. That is the argument normally made in this situation where the employee is only acting on behalf of the employer or corporation and as such the corporation has the liability. However, the statutory scheme of Connecticut eliminated that defense.

Consequently, the court easily found that the statutory and regulatory framework in Connecticut created personal liability on the camp director.

The Open and Obvious argument was easier for the court to decide. Even though two camp counselors had warned the deceased of the risks of the road, and the road’s risks were discernible to any rider, the court found that whether or not a thirteen-year-old camper recognized and understood the risks was a decision for a jury.

So Now What?

Part of any plan to develop a business must look at any statutes that apply to the business. At the same time, when the legislature is making laws that may apply to your business you need to become involved and make sure the laws will not make your business life miserable or create liability.

If the statutes or regulations create liability either for the organization, business or program which you do not want to deal with or personal liability, make sure you want to deal with that state. In the alternative make sure can afford the insurance you will need.

Here what could probably appear to be a harmless statute created personal liability for the camp director. Normally, this is a “play” made by the plaintiff to try to increase the value of the case.

However, one issue that should be explored by any camp or outfitter is if the insurance coverage of the corporation provides a defense to individuals for actions of the individual who create statutory liability.

Absent that protection, the individual defendants could be personally liable for any damages. Their homeowner’s insurance would not provide coverage for the liability that occurs because of work. Whether or not their corporate documents, articles and bylaws, provide for indemnification of employees or the board of directors is willing to pay for the damages, the employees could be stuck with the bill personally. Dependent upon how the damages are paid; this could also create a tax liability for the individuals. The final issue is whether the insurance policy provides coverage for employees liable individually.

Whenever you are dealing with kids 12-14 years of age and younger, it is fairly impossible to prove assumption of the risk or the sub-set defense of open and obvious. Unless you have a record of prior experience, a video proving the training, you are going to have a difficult time with this defense.

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

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

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