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You cannot assume the risk of a recreational activity if the defendant alters the activity and adds risk that he does not inform the guest about.

If you run PVC pipe across the slope that blends in with the slope, a skier coming down the hill does not assume the risk of hitting PVC pipe. PVC does not fall from the sky, is not  natural, and in 50 years of skiing it not something I’ve ever seen on a slope.

Zhou, et al., v. Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

State: New York

Plaintiff: Judy Zhou, et al

Defendant: Tuxedo Ridge, LLC, et al.

Plaintiff Claims: negligence

Defendant Defenses: assumption of the risk and the mother should have watched her daughter more closely

Holding: for the defendant

Year: 2017

Summary

There are two defenses in this case. The first is assumption of the risk. The standard defense used for injuries arising from activities in outdoor recreational activities. The second is not discussed by the court but one we have all wanted to argue at least once. 

The defendant makes several arguments in support of summary judgment, including that the mother of the plaintiff should have supervised her daughter more closely and assumption of risk.

The defendant is not at risk because the mother let the child do what the child wanted and did not supervise the child. Ski areas are not baby sitters. If you buy a minor a lift ticket, the ski area knows the lift ticket allows access by the minor to whatever lift the minor wanted to ride and to come down any hill the minor wants to ride.

However, if that child is injured, the ski area should not have allowed that child on the lift because it was too dangerous.

That argument is a landmine to make in court. Mothers of injured children are liked by juries because they feel for the pain the mother is suffering. And who in their right mind would say that a mother is doing a bad job of raising their kids.

The other defense assumption of the risk would have won the case if the defendant had not laid down PVC pipe on the slope in a way that no one could see the pipe. The pipe was there to create a coral to lead skiers back to the lift. However, when you can’t see it, don’t know it’s there, and hit it, it is hard to argue that PVC is a natural risk of skiing.

Facts 

The facts are quite simple. 

…the defendants cut a portion of the Bunny Hill slope by installing white PVC plumbing pipes to create a corral line leading to the  chairlift. The PVC pipes were as hard as metal plumbing pipes and, at the same time, blended into the slope’s white snow and were not clearly visible to a skier in motion, let alone a novice skier such as the plaintiff infant. These obstructions blocked a portion of the snowy slope and were in the path of a skier’s descent. Although the defendants maintained nylon netting at the site, it did not place a fence or netting on the slope above the area to prevent and catch children and novice skiers from coming into contact with the corral line’s PVC posts. 

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

The court started its analysis of the case with the famous Cardozo quote that created the defense of assumption of the risk.

The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 NY 479, 483, 166 N.E. 173 (1929)

However, the court quickly shifted its analysis to whether the injured minor plaintiff could have assumed the risk.

A seven-year-old skier could not assume the risk of a risk she was not properly educated about. Unless the risk is inherent, part of skiing, or known, understood and accepted by the plaintiff, or part of the risk of the sport, the plaintiff cannot assume the risk. 

So Now What? 

If the PVC pipe were visible; fenced, painted red, behind warning signs, this case would have gone the other direction. However, when you hide a risk not only do you lose the assumption of risk defense, but you might also set yourself up for a reckless or willful charge that could lead to greater damages. 

Seriously, don’t be stupid is the bigger thing to learn from this case. 

What do you think? Leave a comment.

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Zhou, et al., v.Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

Zhou, et al., v.Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

[**1] Judy Zhou, et al., Plaintiff, against Tuxedo Ridge, LLC, et al., Defendants.

1229/2014

SUPREME COURT OF NEW YORK, QUEENS COUNTY

54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

February 3, 2017, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: summary judgment, skier’s, chairlift, slope, daughter, novice, pipes, assumption of risk, belt, ski, plumbing, netting, corral

HEADNOTES

Negligence–Assumption of Risk.

JUDGES: [*1] Honorable Salvatore J. Modica, J.S.C.

OPINION BY: Salvatore J. Modica

OPINION

SALVATORE J. MODICA, J.:

The defendant moves for summary judgment in this case where the plaintiff, a nine-year-old child, making her maiden ski trip was injured.

The defendant makes several arguments in support of summary judgment including that the mother of the plaintiff should have supervised her daughter more closely and assumption of risk. Almost ninety years ago, Chief Judge Cardozo stated: “The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 NY 479, 483, 166 N.E. 173 (1929) (one stepping on moving belt of amusement device accepts obvious and necessary dangers).

The law has moved from assumption of risk to comparative negligence. As plaintiff’s counsel, Souren A. Israelyan, Esq., cogently and aptly states in his affirmation in opposition to the defense motion, the defendants cut a portion of the Bunny Hill slope by installing white PVC plumbing pipes to create a corral line leading to the chairlift. The PVC pipes were as [*2] hard as metal plumbing pipes and, at the same time, blended into the slope’s white snow and were not clearly visible to a skier in motion, let alone a novice skier such as the plaintiff infant. These obstructions blocked a portion of the snowy slope and were in the path of a skier’s descent. Although the defendants maintained nylon netting at the site, it did not place a fence or netting on the slope above the area to prevent and catch children and novice skiers from coming into contact with the corral line’s PVC posts.

Under the foregoing facts, the provident course is to deny the defendants’ motion for summary judgment. See, De Lacy v. Catamount Dev. Corp., 302 AD2d 735, 755 N.Y.S.2d 484 (3rd Dept. 2003) (genuine issue of material facts existed as to whether seven-year-old novice skier with limited skiing ability was properly instructed regarding use of chairlift, whether owner/operator of ski facility violated its own policies, and whether chairlift’s design was faulty, precluding summary judgment for owner/operator in negligence action brought by mother and her daughter, seeking to recover damages for injury daughter sustained when she fell from chairlift); accord, Finn v. Barbone, 83 AD3d 1365, 921 N.Y.S.2d 704 (3rd Dept. 2011) (fact issues precluded summary judgment on issue of skier’s assumption of the risk).

This Court, [*3] therefore, denies the motion for summary judgment in its entirety.

The parties are required to appear in the Trial Scheduling Part on February 15, 2017, for trial.

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: Jamaica, New York

February 3, 2017

Honorable Salvatore J. Modica

J.S.C.


2013-2014 In bound ski/board fatalities

It is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of January 13, 2014. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

2013 – 2014 Ski Season Fatalities

#

Date

State

Resort

Where

How

Cause

Ski/ Board

Age

Sex

Home town

Helmet

Reference

 

 

1

12/11 CO Telluride Pick’N Gad Left the ski run, struck a tree and suffered fatal injuries 60 M Norwood, CO No http://rec-law.us/190al75 http://rec-law.us/1fchteM

2

12/12 VT Killington Great Northern Trail Found 21 F PA No http://rec-law.us/1csgWCg

3

12/16 WA Crystal Mountain Resort Tinkerbell Lost control and veered off the trail Blunt Force Trauma F Yes http://rec-law.us/Jc4MX3
4 1/1/14 WV skiing into a tree M Opp, AL http://rec-law.us/1a6nAkQ
5 12/21 CA Heavenly Resort colliding with a snowboarder and being knocked into a tree 56 F NV No http://rec-law.us/JRiP4c http://rec-law.us/1a7REMW
6 12/19 CO Winter Park Butch’s Breezeway blunt force injury to the head 19 M Yes http://rec-law.us/1f3ekSy
7 1/11 CO Aspen Bellisimo hitting a tree Ski 56 M CO Yes http://rec-law.us/1hNbHoz http://rec-law.us/JTr7sY
8 1/11 MT Whitefish Mountain Resort Gray Wolf and Bigho Found in a tree well Ski 54 M CA http://rec-law.us/1kx1deP

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

What do you think? Leave a comment.

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blog@rec-law.us

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An example of adults and money getting in the way of kids has fun

If more playgrounds were like this, more kids would be outside and more adults would be happier.

What happens when adults tell kids how to have fun. You get structure, organization, injuries and lawsuits. You get budgets and planning and rules. What do

Two playground sets at Hudson Springs Park in ...

Two playground sets at Hudson Springs Park in Hudson, Ohio. \

kids get…..not much!

Read this article. Tear Down the Swing Sets

It looks at what happens when you allow kids to play with each other without structure, without rules, without “equipment.” Some of the studies looked at kids playing with sand or foam blocks and having more fun than any kids have with playground equipment.

When was the last time you looked at kids playing on a playground and came up with a thought like this? “These children are intent, they are cooperative, they are resourceful.”

However, with so much “adult,” community planning and legal involvement we ended up with this.

Then the grownups got skittish. Down came the merry-go-rounds and the jungle gyms, and in their place, a landscape of legally-insulated, brightly-colored, spongy-floored, hard-plastic structures took root. Today, walking onto a children’s playground is like exiting the interstate: Regardless of where you are, you see the exact same thing.

The article also looks at keeping kids safe and finds that does not work. 1. It is not possible and 2 it does not help kids to grow and mature. Kids need to know, experience and understand risk. The head of England’s Royal Society for the Prevention of Accidents said, “…children should be exposed to a certain degree of risk, not because an activity is risky per se but because it is fun, exciting, and challenging.”

This is awesome.” Kids who are bored stay inside and staying inside is ultimately far worse for your health than a broken arm.”

Kids need to be kids to learn about risks, to have fun and to grow. That does not require the intervention, direction or control of adults.

English: Kids playground

English: Kids playground (Photo credit: Wikipedia)

For Similar Articles about this:

This article takes a real look at the risks parents allow their children to face http://rec-law.us/Zwk2yp

What do you think? Leave a comment.

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

#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, Kids, Swing sets, Minors, Playgrounds, Organized Sports,


UIAA Event Schedule

Here is the current UIAA Even Calendar

12 Jan 2013 to 13 Jan 2013

Ice climbing

Ice Climbing World Cup (Lead, Speed) & World Championship (Lead)
Cheongsong, Korea

12 Jan 2013 to 13 Jan 2013
Ice Climbing World Youth Championship
Saas-Grund, Switzerland (lead, speed)

18 Jan 2013 to 19 Jan 2013
Ice Climbing World Cup
Saas-Fee, Switzerland (lead, speed)

26 Jan 2013 to 27 Jan 2013
Ice Climbing World Cup
Rabenstein, Italy (lead, speed)

07 Feb 2013 to 09 Feb 2013
Ice Climbing World Cup
Busteni, Romania (lead, speed)

08 Mar 2013 to 10 Mar 2013
Ice Climbing World Cup (Lead, Speed) & World Championship (Speed)
Kirov, Rusia

The schedule is online at UIAA Calendar

What do you think? Leave a comment.

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Is being overprotective putting our kids at risk?

Studies show that kids need to experience life and the risks of life to live a long life.

If you are not a fan of Ted Talks, you should be. Ted Talks are brilliant minds putting together short intense talks in their area of expertise. I mentioned several in

English: Kids playground on the corner of Bard...

my posts in the past: Great Ted Talks for all Businesses This is an old Ted talk that I believe is the start to understand about being overprotective. This is a great talk about why kids need to experience risks by Gever Tulley 5 dangerous things you should let your kids do. Another one is Bruce Schneier’s talk. The security mirage. He talks about learning to make decisions about risks. Those animals that do, survive, those that don’t are called lunch for another animal.

The talks raise the question “Are we not putting our kids at greater risk by being overprotective?

There has been a recent study that supports this idea. How well done is this study I’ll leave to those of you that understand the correct parameters of a study like this; however, on the surface it portrays some interesting facts.

Let your children cross the road, or risk them being run over say new figures

This study compares the number of parents who do not allow their children to cross the road to the number of children who are hit by cars in the UK. The study was basic; more parents are preventing their children from crossing the road and more kids, when they do cross the road get hit.

The increase in parents who won’t allow their children to cross the road is stunning.

Department of Transport research found last year that, almost half of parents with children aged 7-10 (49 per cent) said they never allowed them to cross the road on their own compared to 41 per cent in 2002.

An eight percent increase in parents who for whatever reason didn’t allow their kids to cross the road.

Combination playground equipment (plastic)

Over the same period of time, the number of kids who were killed as pedestrians by vehicles increased.

Over the same period, the number of child pedestrians killed in that age range rose from 10 to 18. The overall rate of road deaths for children under 16 rose by 20 per cent between 2005 and 2006, from 141 to 169.

Granted the overall numbers are small; however, the numbers are still numbers that are thought provoking if not disturbing.

I’ll ready written about the issues in playgrounds. New standards are impossible for cities to meet so it is cheaper to bulldoze the playgrounds. See Playgrounds will be flat soon. We have trained our parents to believe that any injury on a playground is a problem and a payout.

Are we doing a similar thing with children? By being protective, we are not giving them the skills to save their own lives?

What do you think? Leave a comment.

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It’s that time of year, release stops lawsuit against ski club

Logo of Indianhead Mountain

Masciola, v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603

Illinois‘s decision holds that the release in question covered the issue complained of by the plaintiff who caused his injuries.

The plaintiff in this case was a member of the Chicago Metropolitan Ski Council, a ski club. The plaintiff entered a race put on by the defendant ski council at Indianhead Mountain, Michigan. To enter the race the plaintiff had to sign a release.

While racing the plaintiff hit a compression area in the race course which caused him to be thrown into telephone poles that marked the finish line. The plaintiff’s injuries were never specified in the decision.

The plaintiff alleged the unsafe conditions of the race course were not contemplated by the release, and the parties were acting under a mutual mistake of fact.

Summary of the case

English: Near the top of the PomaLift at India...

A mutual mistake of fact is usually a way to void a contract. Remember a contract, which a release is, requires a meeting of the minds. Normally, with a release, you write the release so the meeting of the minds is agreed to when the guest signs the agreement.

If the parties do not agree on the specific issues of a contract, the reasons for a contract, then a contract is void. An example would be party A wants to sell his beat up second car. Party A tells party B that his car is for sale. Party B has never seen the second car and assumes party A is selling his good car; the only one party B, thinks party A, owns.

The contract between party A and party B would be void because of mistake of fact. Party A and Party B never had a meeting of the minds on what was being bought/sold so there was no contract.

Under Illinois’s law, like in most states, releases are disfavored, but upheld if there is no fraud, willful and wanton conduct [on the part of the defendant] or legislation prohibiting releases. If those requirements are met the court next looks at the position of the parties to make sure there is no disparity in the bargaining power between the parties. Here because skiing and ski racing is recreational and the plaintiff did not have to race, there was no disparity.

The next requirement is different.

…the question of whether or not an exculpatory clause will be enforced depends upon whether or not defendant’s conduct and the risk of injury inherent in said conduct was of a type intended by the parties to fall within the scope of the clause.

The risk which caused the injury must not be set out specifically in the release; the release must just show that the risk was contemplated by the parties to the release. The court found the release covered the problems the plaintiff claimed injured him.

So Now What?

English: The base of the Nastar course at Indi...

Simply put make sure your release has a broad description of the risk intended to be covered by the release. First start with the life-changing  events, death, quadriplegia, and work your way done to those things that although not of high severity do occur with high frequency.

If you do keep accident reports (see Why accident reports can come back to haunt you.) go through the reports to identify the risks that should be in your release. Always include the loss of property. Dropped phones while riding a ski lift and lost sunglasses whitewater rafting are probably the number one issue that irritates guests. Cover those issues, other minor issues and major problems in your release.

What do you think? Leave a comment.

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