Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)
Posted: April 25, 2022 Filed under: Challenge or Ropes Course, Colorado, Release (pre-injury contract not to sue) | Tags: challenge course, Golden Bell Camp and Conference Center, Golden Bell Retreat, Negligence, Release, Ropes Courses, The Colorado District Church of the Nazarene, Waiver 1 CommentSheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)
JODI SHELDON, Plaintiff,
v.
GOLDEN BELL RETREAT d/b/a THE COLORADO DISTRICT CHURCH OF THE NAZARENE,
d/b/a GOLDEN BELL RANCH and GOLDEN BELL CAMP and CONFERENCE CENTER,
CROSS BEARING ADVENTURES, LLC, KENT FIELDEN MCILHANY, an individual,
and JOHN DOE CORPORATIONS 1-10, Defendants.
Civil Action No. 19-cv-01371-REB-NYW
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
April 20, 2020
Judge Robert E. Blackburn
ORDER GRANTING SUMMARY JUDGMENT
Blackburn, J.
The matters before me are (1) the Motion for Summary Judgment on Plaintiff’s Personal Injury Claims Against Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center [#42],1 filed January 21, 2020; and (2) Defendants Cross Bearing Adventures, LLC’s and Kent Fielden McIlhany’s Motion for Summary Judgment [#55], filed March 9, 2020. I grant both motions and dismiss plaintiff’s remaining claims with prejudice as against the named defendants and without prejudice as against the Doe defendants.
I. JURISDICTION
I have jurisdiction over this matter under 28 U.S.C. §1332 (diversity of citizenship).
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of a genuine factual dispute. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999).
III. ANALYSIS
On June 29, 2018, plaintiff Jodi Sheldon was seriously injured while participating in a high ropes course at the Golden Bell Ranch (“Golden Bell”). Ms. Sheldon sued Golden Bell under Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. She also brought a claim of negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany.2
All three defendants claim Ms. Sheldon’s claims are barred by a Waiver, Release and Indemnification Agreement (the “Waiver”) which she signed on May 18, 2018, prior to participating in the high ropes course. The Waiver provided, in relevant part,
I wish to participate in recreational activities to be made available to participants at Golden Bell Camp including activities that may be hazardous or otherwise involve a risk of physical injury or death to the participants (the”Activities”).
I expressly assume any and all risks of injury or death arising from or relating to the Activities including horseback riding, agricultural recreation and waive and release any and all actions, claims, suits or demands of any kind or nature whatsoever against Golden Bell Camp, its corporate affiliates, contractors, vendors, officer, agents, sponsors, volunteers or representatives of any kind (collectively “Releases”) arising from or relating in any way to my voluntary participation in these activities. I understand that this Waiver, Release and Indemnification agreement means, among other things, that if I am injured or die as a result of my participation in these activities, I and/or my family or heirs cannot under any circumstances sue Releases or any of them for damages relating to or caused by my injuries or death.
. . .
I agree to indemnify Releases or any of them and their subrogees, if any, in the event of any loss, damage or claim arising from or relating in any way to my participation in any of the Activities.
. . . .
I have read this Waiver, Release and Indemnification Agreement, have asked and received answers to any questions I had concerning its meaning and execute it freely, without duress, and in full complete understanding of its legal effect, and of the fact that it may affect my legal rights.
(CBA Motion App., Exh. C, Attachment 2.) Ms. Sheldon received the Waiver from her aunt3 after having been given a list of activities offered at Golden Bell and indicating her interest in participating in the high ropes course. (Id., Exh. C, Attachment 1 at 25-26.)
To begin, Ms. Sheldon does not oppose Mr. McIlhany’s motion to dismiss her claims against him personally. The uncontested evidence supports Mr. McIlhany’s assertion that all actions taken by him of which Ms. Sheldon complains were done in his capacity as a member, manager, and operator of CBA and that he never performed any services for Golden Bell in his individual capacity. Ms. Sheldon’s claims against Mr. McIlhany therefore will be dismissed with prejudice.
As for Ms. Sheldon’s claims against Golden Bell and CBA, they are precluded by the Waiver.4 Because this case implicates the court’s diversity jurisdiction, I apply Colorado law. Wade v. EMASCO Insurance Co., 483 F.3d 657, 665-66 (10th Cir. 2007). Exculpatory agreements “stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts,” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Thus, although such agreements are generally disfavored, see B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010), “Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence,” Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d 1150, 1152 (10th Cir. 2016).
Colorado courts have identified four factors which inform the decision whether to enforce an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243, 1250 (10t Cir. 2018) (quoting Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981)) (internal quotation marks omitted).
The first two Jones factors focus on public policy questions – asking whether the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity. Meanwhile, the latter two factors focus on more party – and contract-specific questions – asking whether the release was fairly obtained and clearly and unambiguously expressed.
Patterson v. Powder Monarch, LLC, 926 F.3d 633, 639 (10th Cir. 2019) (internal citations and quotation marks omitted). “[I]f an exculpatory agreement satisfies any of the four factors, it must be deemed unenforceable.” Brigance, 883 F.3d at 1250. The determination of this question is a matter of law for the court. Jones, 623 P.2d at 376. See also Johnson v. Gold’s Gym Rockies, LLC, 2019 WL 1112374 at *3 (D. Colo. March 11, 2019).
The first two factors are generally inapplicable to businesses engaged in recreational activities, Patterson, 926 F.3d at 639; Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004), and the parties do not argue otherwise. See also Brigance, 883 F.3d at 1250-51, 1252-53 (citing cases). Nor is there any argument or evidence to establish that the third factor – whether the contract was fairly entered into – is applicable here. Indeed, because recreational activities are not considered either essential services or practically necessary, “a person is not ‘at the mercy’ of a business’s negligence when entering an exculpatory agreement involving recreational activities.” Brigance, 883 F.3d at 1253 (quoting Hamill v. Cheley Colorado Camps, Inc., 262 P.3d 945, 949-50 (Colo. App. 2011)).
Thus, whether the Waiver is enforceable turns exclusively on the fourth factor, “whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. In analyzing this factor, the court focuses on whether the parties’ intent to “extinguish liability . . . was clearly and unambiguously expressed.” Heil Valley Ranch, 784 P.2d at 785.
To determine whether the intent of the parties is clearly and unambiguously expressed, [Colorado courts] have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions. [They] have even taken into account an injured party’s subsequent acknowledgment that he understood the meaning of the provision.
Chadwick, 100 P.3d at 467 (internal citations omitted).
Ms. Sheldon insists the Waiver is ambiguous as to whether the high ropes course was within the scope of the activities covered. I am not persuaded. Here, the Waiver defined the term “Activities” as “recreational activities . . . including activities that may be hazardous or otherwise involve a risk of physical injury or death to participants.” (Emphasis added.) The use of the term “including” plainly signifies that some – but not all – of the Activities covered by the Waiver will be hazardous or involve a risk of physical injury. Thus, even accepting Ms. Sheldon’s suggestion that a high ropes course is not a hazardous activity,5 her argument fails.
Nor does the Waiver’s failure to refer specifically to the high ropes course render it ambiguous with respect to the type of activities covered.6 Colorado law does not require “an exculpatory agreement describe in detail each specific risk that the signor might encounter.” Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867, 873 (10th Cir. 2013). Read in context, and considering not only its structure and language but also its purpose, the Waiver clearly and unambiguously applies to activities such as the high ropes course. See Patterson, 926 F.3d at 642. In this regard, Ms. Sheldon testified that prior to signing up for the high ropes course, she reviewed a list of activities offered by Golden Bell which, in addition to the high ropes course, also included “horseback riding,” an activity specifically referenced in and covered by the Waiver. (CBA Motion App., Exh. C, Attachment 1 at 25.) Moreover, nothing in the record suggests Ms. Sheldon would have been asked to sign a Waiver had she not requested to participate in the high ropes course. Given those circumstances, it “strains logic,” Squires, 715 F.3d at 874, to suggest Ms. Sheldon was confused or misled as to the fact that she was being asked to waive potential claims of negligence associated with the high ropes course. See also Hamill, 262 P.3d at 952 (exculpatory waiver enforceable against parent who signed on behalf of minor child where parent knew activities that were offered at camp; “An agreement with such plain and unambiguous terms will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of that agreement . . . based on ambiguities not readily apparent within the four corners of the agreement.”).7
Relatedly, the Waiver also clearly bars Ms. Sheldon’s claims against CBA. “A person not a party to an express contract may bring an action on such contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a direct and not merely an incidental benefit of the contract.” E.B. Roberts Const. Co. v. Concrete Contractors, Inc., 704 P.2d 859, 865 (Colo. 1985). The Waiver specifically protects Golden Bell’s “contractors” and “vendors” from claims “arising from or relating in any way to [Ms. Sheldon’s] voluntary participation in these activities.” (CBA Motion App., Exh. C, Attachment 2.) Clearly, the Waiver was intended to cover parties like CBA in precisely the situation presented by this lawsuit. Moreover, the benefit thus conferred is directly related to its purpose – to absolve such parties from liability for claims of negligence.
Ms. Sheldon’s suggestion that the Wavier is ambiguous as to whether contractors and vendors are covered for all purposes or only when they are on site is meritless. The Waiver plainly is intended to have the broadest possible scope, applying to claims “arising from or relating in any way” to Ms. Sheldon’s participation in the covered activities. Clearly, the parties intended to absolve contractors from claims they were negligent in any way in relation to the subject activities, regardless whether that negligence happened on site at the time of the event. I thus find and conclude that the Waiver clearly and unambiguously bars Ms. Sheldon’s claims against CBA as well.
Ms. Sheldon’s remaining arguments attempting to avoid the effect of the Waiver are likewise unavailing. The Waiver does not fail for lack of consideration. Contrary to Ms. Sheldon’s arguments, the mere lapse of time between her payment to participate in the activity and the date the waiver was delivered to Golden Bell is not fatal to its enforcement. Instead, the pertinent question is whether the release of liability was a contract modification or rather is part of the same transaction and thus enforceable without additional consideration. See Patterson, 926 F.3d at 638 (“[E]ven aside from the question of timing, we are persuaded based on the nature and circumstances of the transaction that the payment and exculpatory agreement here . . . are better viewed as part of the same transaction, rather than as a subsequent contract modification.”) (citing Mincin, 308 F.3d at 1109).8
I am similarly unpersuaded by Ms. Sheldon’s suggestion that the Waiver fails due to either unilateral or mutual mistake. The doctrine of mutual mistake permits a party to rescind a contract “if all parties labored under the same erroneous conception of the contract’s terms and conditions.” In re Estate of Ramstetter, 411 P.3d 1043, 1051 (Colo. App. 2016) (citation and internal quotation marks omitted). Ms. Sheldon has failed to prove by clear and convincing evidence that such is the case here. Cabs, Inc. v. Hartford Insurance Group, 151 Fed. Appx. 604, 610 (10th Cir. Aug. 31, 2005); Maryland Casualty Co. v. Buckeye Gas Products Co., 797 P.2d 11, 13 (Colo. 1990).
For one thing, it is not clear that Ms. Sheldon’s asserted mistake – that Golden Bell’s high ropes course had been licensed by the state of Colorado – was sufficiently similar to Golden Bell’s mistake – that it did not require such a license – to warrant application of the doctrine at all.9 Assuming arguendo that it does, however, the doctrine of mutual mistake permits reformation of the contract “where both parties’ understanding of their agreement is contrary to the terms of a written instrument due to a drafting error[.]” Tatonka Capital Corp. v. Connelly, 390 F.Supp.3d 1289, 1294 (D. Colo. 2019), as modified on reconsideration, 2019 WL 5535226 (D. Colo. Oct. 25, 2019), appeal filed, 2019 WL 5535226 (10th Cir. Nov. 25, 2019) (No. 19-1450). See also Casey v. Colorado Higher Education Insurance Benefits Alliance Trust, 310 P.3d 196, 207 (Colo. App. 2012) (“A mutual mistake claim requires a showing that both parties were laboring under the same erroneous conception of the contract’s terms and conditions.”) See also Ranch O, LLC v. Colorado Cattlemen’s Agricultural Land Trust, 361 P.3d 1063, 1066-67 (Colo. App. 2015) (doctrine of mutual mistake applies only to mistakes going to a “basic assumption” underlying the contract).10
No term of the contract here addressed whether Golden Bell had, or was required to have, a state-issued license. Thus, any mistake as to that fact “did not create any ambiguity regarding the terms or substance of the [Waiver].” Shoels v. Klebold, 375 F.3d 1054, 1067 (10th Cir. 2004), cert. denied, 125 S.Ct. 1302 (2005). The Colorado Supreme Court long ago warned that courts “should not sanction, under the guise of reformation, the insertion in [contracts] of a new term or provision which was never even in the minds of the parties, let alone assented to by them.” Segelke v. Kilmer, 360 P.2d 423, 427 (Colo. 1961). “To order reformation under these circumstances is to rewrite, not to reform, the instruments.” Id. Just so here. I thus find the Waiver is not infirm based on mutual mistake.
I likewise reject Ms. Sheldon’s suggestion that she may avoid the waiver’s effect under the doctrine of unilateral mistake. “[A] unilateral mistake by one party to a contract can permit reformation if the evidence demonstrates that, at the time the contract was formed, the non-mistaken party was aware of the mistaken party’s mistake.” Tatonka Capital Corp., 390 F.Supp.3d at 1299. Thus, one party’s unilateral mistake may permit reformation where “the other engaged in fraud or inequitable conduct.” Poly Trucking, Inc. v. Concentra Health Service., Inc., 93 P.3d 561, 563 (Colo. App. 2004). See also RESTATEMENT (SECOND) OF CONTRACTS § 153 (contract may be avoided based on unilateral mistake where “(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or (b) the other party had reason to know of the mistake or his fault caused the mistake”); Shoels, 375 F.3d at 1068 (quoting Powder Horn Constructors, Inc. v. City of Florence, 754 P.2d 356, 364 (Colo.1988) (“[E]quity will not allow a party to knowingly take advantage of a mistake of another.”)).
None of these circumstances pertains here. It cannot be unconscionable to enforce an exculpatory contract which, like this one, is enforceable under Colorado law. Moreover, there is no hint in the record that Golden Bell knew or had reason to know that Ms. Sheldon did not know its high ropes course was not licensed by the state. Nor is there evidence to suggest Golden Bell was required to make its licensing status known to participants or that it purposefully hid its licensing status from Ms. Sheldon. At best, the evidence suggests Golden Bell’s website made it appear the camp’s activities were open to the general public, which if true would have rendered them subject to inspection and licensing by the state.11 Yet there is neither argument nor evidence that Ms. Sheldon even consulted, much less relied on, Golden Bell’s website in deciding to participate in the high ropes course or sign the Waiver.12 I thus find and conclude that the Waiver is not voidable based on unilateral mistake either.
IV. CONCLUSION
For these reasons, the named defendants are entitled to summary judgment, and Ms. Sheldon’s remaining claims against them will be dismissed with prejudice. Although the caption of this case named a number of unknown John Doe defendant corporations who may have had “ownership and control of the subject obstacle activity (Complaint ¶ 10 at 3 [#1], filed May 13, 2019), with discovery now closed, Ms. Sheldon has not identified any such entities. These defendants therefore also should be dismissed, albeit without prejudice.13
See Culp v. Williams, 2011 WL 1597686 at *3 (D. Colo. April 27, 2011) (because Doe designation is not permitted where “plaintiff’s ignorance of the defendant’s true identity is the result of willful ignorance or lack of reasonable inquiry,” Doe defendants dismissed where case had been pending for more than a year and plaintiff failed to show “good reason as to why [it] ha[d] been unable to obtain the true identity of these unnamed Defendants”).
V. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Motion for Summary Judgment on Plaintiff’s Personal Injury Claims Against Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center [#42], filed January 21, 2020, is granted;
2. That Defendants Cross Bearing Adventures, LLC’s and Kent Fielden McIlhany’s Motion for Summary Judgment [#55], filed March 9, 2020, is granted;
3. That plaintiff’s remaining claims against defendants are dismissed as follows:
a. That the remaining claims of plaintiff against defendants, Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center; Cross Bearing Adventures, LLC; Kent Fielden McIlhany, an individual, are dismissed with prejudice; and
b. That the remaining claims of plaintiff against defendants, John Doe Corporations 1 through 10 are dismissed without prejudice;
4. That judgment shall enter as follows:
a. That judgment with prejudice shall enter on behalf of defendants, Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center; Cross Bearing Adventures, LLC; and Kent Fielden McIlhany, an individual, and against plaintiff, Jodi Sheldon, as to all remaining claims for relief and causes of action asserted herein;
b. That judgment without prejudice shall enter on behalf of defendants, John Doe Corporations 1 through 10, and against plaintiff, Jodi Sheldon, as to all remaining claims for relief and causes of action asserted herein;
5. That judgment shall enter further in accordance with my Order Adopting Recommendation of United States Magistrate Judge [#35], filed January 8, 2020;
6. That the combined Final Pretrial Conference and Trial Preparation Conference scheduled for June 11, 2020, at 10:00 a.m., is vacated;
7. That the trial scheduled to commence on June 29, 2020, is vacated;
8. That defendants are awarded their costs, to be taxed by the clerk in the time and manner required by Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and
9. That this case is closed.
Dated April 20, 2020, at Denver, Colorado.
BY THE COURT:
/s/_________
Robert E. Blackburn
United States District Judge
——–
Footnotes:
1. “[#42]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
2. Ms. Sheldon’s claims of negligence and fraudulent concealment against Golden Bell were dismissed previously as preempted by the PLA. (See Order Adopting Recommendation of the United States Magistrate Judge [#35], filed January 8, 2020.)
3. Ms. Sheldon, who is a resident of Illinois, attended Golden Bell as part of a large family reunion.
4. I reject Ms. Sheldon’s suggestion that I should defer ruling on this motion until after Golden Bell’s Rule 30(b)(6) deposition is completed. Pursuant to Rule 56(d), to warrant such action, Ms. Sheldon must “show[] by affidavit or declaration that, for specified reasons, [she] cannot present facts essential to justify [her] opposition.” FED. R. CIV. P. 56(d). No such affidavit or declaration has been submitted in support of Ms. Sheldon’s request. The request also violates D.C.COLO.LCivR 7.1(d), which provides that “[a] motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.” I therefore deny this request and consider the summary judgment motions as submitted.
5. Frankly, however, this argument strains credulity. I would be hard pressed to find that it is not inherently risky to be suspended many feet above the ground, regardless of safety measures taken to mitigate the risk. Moreover, Ms. Sheldon’s subjective belief that the ropes course was not inherently dangerous is irrelevant. See Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1275 n.1 (10t Cir. 1997) (“Plaintiffs’ subjective intent is inadmissible to overcome the parties overt manifestation of intent in the releases because the language in these agreements is clear and unambiguous.”) (citation and internal quotation marks omitted).
6. Ms. Sheldon’s reliance on the district court’s decision in Schlumbrecht-Muniz v. Steamboat Ski & Resort Corp., 132 F.Supp.3d 1310 (D. Colo. 2015), is misplaced. There, although the agreement at issue clearly and unambiguously released the defendant from claims related to the plaintiff’s participation in “the Event” (a ski race), it was not clear that it covered injuries the plaintiff sustained after she finished competing in that event. See id. at 1315. There is no such ambiguity here. Ms. Sheldon was injured while participating in the “activities” which were the subject of the Waiver.
7. I further reject Ms. Sheldon’s argument that her claim of gross negligence against Golden Bell cannot be waived. Assuming such is the case as a matter of law, as a matter of fact, Ms. Sheldon failed to plead such a claim.
8. In reaching its determination, the Mincin court relied on two state court decisions which reached similar conclusions. See Mincin, 308 F.3d at 1109 (citing Beehner v. Cragun Corp., 636 N.W.2d 821, 829 (Minn. Ct. App.2001) (“This court has held that an exculpatory agreement signed after a fee to participate in a recreational activity has been paid is part of the same transaction and is therefore enforceable without additional consideration other than permission to participate in the activity.”), and Hewitt v. Miller, 521 P.2d 244, 248 n.3 (Wash. App. 1974) (concluding that release signed by scuba diving student after payment of fee was an integrated part of the whole transaction and was thus supported by original consideration)).
9. At the time Ms. Sheldon participated in the high ropes course, the course was not licensed by the Colorado Division of Oil and Public Safety (“OPS”) because Golden Bell believed itself subject to a “private event” exception, as its activities were available only to persons staying at the camp or its associated RV park and not open to the general public. However, because Golden Bell charged a separate fee for participation in activities at the camp to groups making use of the RV park, OPS found Golden Bell was not entitled to the benefit of this exclusion. Golden Bell resolved the violation by changing the way in which it offers its activities to guests of the RV park. OPS waived the fine assessed and considered the matter resolved as of August 23, 2019. (See Pl. Resp. App. [#52], Exh. J, Golden Bell Motion App., Exhs. A & B.)
10. Even where the doctrine of mutual mistake is otherwise applicable, however, a party is not entitled to reformation where she was “‘aware, at the time the contract is made, that [she] ha[d] only limited knowledge with respect to the facts to which the mistake relates but treat[ed] [her] limited knowledge as sufficient.'” In re Estate of Ramstetter, 411 P.3d 1043, 1051 (Colo. App. 2016) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 154(b)). Such is arguably the case here as well.
12. These same reasons preclude Ms. Sheldon’s belated assertion that Golden Bell engaged in fraud which would invalidate the Waiver. Otherwise, this argument is so woefully undeveloped and unsupported by citation to any legal authority that I decline to consider it. See Bird v. Regents of New Mexico State University, 619 Fed. Appx. 733, 766 (10th Cir. Aug. 6, 2015) (arguments which re “conclusory, unsupported, and undeveloped” “are insufficient to overcome summary judgment “); Center for Biological Diversity v. Pizarchik, 858 F.Supp.2d 1221, 1230 n.11 (D. Colo. 2012) (court does not consider “cursory, unsupported, or otherwise inadequately briefed arguments”). To the extent Ms. Sheldon believed she required further discovery to make this argument, she has forfeited any such argument. See supra, note 4.
13. Without knowledge as to how any such corporations may be related to or associated with Golden Bell, it is impossible to say whether they would be covered by the Waiver and thus entitled to dismissal with prejudice. Cf. Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996); Bustamante v. Board of County Commissioners of San Miguel County, 2009 WL 10706928 at *5 n.7 (D.N.M. Oct. 2, 2009).
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G-YQ06K3L262
New Regulations have been issued by the CO Department of Labor & Employment for Amusement Rides and Devices
Posted: March 7, 2019 Filed under: Colorado | Tags: #ClimbingWalls, #ExerciseEquipment, #FitnessDevices, #PaddleBoats, #PlaygroundEquipment, #RopesCourses, #TrampolineParks, Climbers, Climbing Walls, Exercise Equipment, Fitness Devices, Paddle Boats, playground equipment, Ropes Courses, Trampoline Parks Leave a commentThat means Trampoline Parks, Ropes Courses, Climbing Walls, Playground Equipment, Climbers, Fitness Devices, Exercise Equipment, Paddle Boats, any amusement ride operated at a private event and the list goes on.
The Amended Regulations can be found here: https://content.govdelivery.com/attachments/CODOPS/2019/03/06/file_attachments/1168134/AmusementRegulationsRedline2019.pdf
DEPARTMENT OF LABOR AND EMPLOYMENT
Division of Oil and Public Safety
AMUSEMENT RIDES AND DEVICES REGULATIONS
7 CCR 1101-12
ARTICLE 1 GENERAL PROVISIONS
Section 1-1 Basis and Purpose
This regulation is promulgated to establish reasonable standards for the construction, inspection, operation, repair and maintenance of amusement rides and devices located in Colorado in the interest and safety of the general public, to establish financial standards for the operation of amusement rides and devices in a public setting and to provide for a registration process for amusement rides and devices.
Section 1-2 Statutory Authority
The amendments to these regulations are created pursuant to C.R.S. § 8-20-1001 through 8-20-1004 of the Colorado Revised Statutes (C.R.S.). All prior rules for amusement rides and devices are hereby repealed.
Section 1-3 Effective Date
This regulation shall be effective June 15, 2019 July 30, 2015. The operators of previously unregistered amusement rides and devices shall have up to three months from the effective date of these regulations to comply with Section 2-3-1 (A) (6).
Section 1-4 Scope
These rules and regulations shall apply to the construction, inspection, operation, repair and maintenance of amusement rides and devices located in Colorado by any individual, corporation, company, firm, partnership, association, or state or local government agency.
These rules and regulations shall not apply to:
(A) Coin operated model horse and model rocket rides, mechanical horse or bull rides, and other coin activated or self-operated devices.
(B) Non-mechanized playground equipment including but not limited to swings, seesaws, stationary spring mounted animal features, rider propelled merry-go-rounds, climbers, slides, swinging gates and physical fitness devices.
(C) Live animal rides or live animal shows.
(D) Climbing walls used for sport and fitness training, located in educational facilities, schools, gymnasiums, sport and public entity recreational facilities, or other facilities solely devoted to sport and recreational activities, training and instruction.
(E) Institutional trampolines used solely for sport and fitness training, located in educational facilities, schools, gymnasiums, sport and public entity recreational facilities or other facilities solely devoted to sport and recreational activities, training and instruction. All training must be conducted by a certified gymnastics or trampoline coach. The facility and coach must carry certifications from a nationally recognized gymnastics or trampoline governing association.
(F) Race-karts owned and operated by individuals who compete against each other, or rental race-karts available for rent at competitive sport race-kart tracks solely used for sanctioned racing where drivers have attended and passed a practical driver safety training test to establish their competency, or hold an applicable valid competition license certification from a recognized motor sport sanctioning body.
(G) Skating rides, arcades, laser paintball games, bowling alleys, miniature golf courses, inflatable devices, ball crawls, exercise equipment, jet skis, paddle boats, air boats, hot air balloons whether tethered or untethered, batting cages, games and side shows.
(H) Any amusement ride or device operated at a private event that is not open to the general public and not subject to a separate admission charge or any amusement ride or device owned and operated by a non-profit organization who meets all the requirements in Sections 2-1 and 2-2 of these regulations and operates their rides less than 8 days in any calendar year.
(I) Any amusement ride or device operator who notifies the Division in writing that his or her ride or device is inspected and licensed certified or issued a permit by one of the following agencies where said agency inspects and issues a license or permit for the ride or device shall be exempt from the requirements of this subsection these regulations, provided that the ride or device requirements of said agency meets or exceeds the requirements of standards adopted in this regulation.
(1) Any municipality or local government within the state of Colorado
(2) Another state agency within the state of Colorado
(3) Any federal government agency
(J) Any local government that has received a temporary or permanent waiver from the Division pursuant to Executive Order D 2011-005. To obtain a waiver the affected local government must demonstrate that the requirements in these regulations conflict with other statutes or regulations (including those of local governments) or are unduly burdensome. A cost benefit analysis or other supporting documentation should be included with the waiver request.
(K) Water slides less than 18 feet in elevation change from point of dispatch to the end of the slide.
Section 1-5 Codes and Standards
(A) The following codes of the American Society for Testing and Materials (ASTM) F24 Committee on Amusement Rides and Devices, National Fire Protection Association (NFPA) and the Association for Challenge Course Technology (ACCT) are incorporated by reference.
(BA) All amusement rides and devices shall comply with the following these standards, including, but not limited to the following unless specifically exempted in these regulations. If there is no applicable standard for an amusement ride or device, operators shall comply with the manufacturer’s recommendations. When adopted standards and manufacturer recommendations differ, the more stringent requirement shall apply. Devices must comply with adopted standards that were effective at the time of manufacture, as applicable.
(1) ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959
(ia) Standard Terminology Relating to Amusement Rides and Devices: F747-06-15
(iib) Standard Practice for Ownership and, Operation, Maintenance and Inspection of Amusement Rides and Devices Designation: F 770-1418
(iii) Standard Practice for Design and Manufacture of Patron Directed, Artificial Climbing Walls, Dry Slide, Coin Operated and Purposeful Water Immersion Amusement Rides and Devices and Air Supported Structures Designation: F 1159-11
(c) Standard Practice for Design and Manufacturing of Amusement Rides and Devices that are Outside the Purview of Other F24 Design Standards: F1159-16
(ivd) Standard Practice for Quality, Manufacture, and Construction of Amusement Rides and Devices Designation: F1193-1418
(e) Standard Test Method for Composite Foam Hardness-Durometer Hardness: F1957-17
(vf) Standard Practice for Design, Manufacture, and Operation of Concession Go-Karts and Facilities Designation: F2007-12
(vig) Standard Practice for Measuring the Dynamic Characteristics of Amusement Rides and Devices Designation: F 2137-1316
(viih) Standard Practice for Design of Amusement Rides and Devices Designation: F 2291-1418
(viii) Standard Practice for Design, Manufacture, Installation and Testing of Climbing Nets and Netting/Mesh used in Amusement Rides, Devices, Play Areas and Attractions: F2375-0917
(ixj) Standard Practice for Classification, Design, Manufacture, Construction, and Operation of Water Slide Systems Designation: F 2376-1317a
(xk) Standard Practice for Special Requirements for Bumper Boats Designation: F 2460-11
(xil) Standard Practice for Special Requirements for Aerial Adventure Courses Designation: F 2959-1418
(xiim) Standard Practice for Permanent Amusement Railway Ride Tracks and Related Devices: F2960-1416
(xiiin) Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts: F2970-1517
(xivo) Standard Practice Guide for Auditing Amusement Rides and Devices: F2974-1318
(p) Standard Practice for Operations of Amusement Railway Rides, Devices, and Facilities: F3054-18
(q) Standard Practice for Classification, Design, Manufacturing, Construction, Maintenance, and Operation of Stationary Wave Systems: F3133-16
(r) Standard Practice for Patron Transportation Conveyors Used with a Water-Related Amusement Ride or Device: F3158-16
(s) Standard Practice for Characterization of Fire Properties of Materials Specified for Vehicles Associated with Amusement Rides and Devices: F3214-18
(2) National Fire Protection Association (NFPA), One Battery march Park, Quincy, MA 02169-7471
(ia) National Electrical Code 2014 Designation: NFPA 70
(3) Association for Challenge Course Technology (ACCT), PO Box 4719797, Deerfield Boulder, IL CO 6001580308
(ia) Challenge Course and Canopy/Zip Line Tour Standards, ANSI/ACCT 03-2016Eighth Edition
(CB) Interested parties may inspect the referenced incorporated materials by contacting the Program Manager, Amusement Rides and Devices, 633 17th Street, Suite 500, Denver, CO 80202.
(DC) This rule does not include later amendments to or editions of the incorporated material.
(D) A device is not required to meet the current edition of the specific standard if it has a service proven design according to the ASTM F2291-18 and this design is approved by the Division.
(E) The Division may grant the use of alternate methods and procedures on a case-specific basis for requirements of the adopted codes or standards listed in this section.
(1) The Division shall require justification of the alternative method or procedure.
(2) The alternate methods and procedures request shall be submitted on a form provided by the Division.
(3) A submitted alternate methods and procedures request shall not relieve an operator from complying with the applicable standards adopted in these regulations unless the Division expressly approves the request.
(4) The Division may deny any request at its discretion.
(F) If the existing amusement ride or device has had a major modification since the last periodic or annual inspection, the post-modification inspection of that ride or device shall be conducted in compliance with ASTM F 2974-18 Section 9 or ANSI/ACCT 03-2016 Chapter 1 Section B for Challenge courses and canopy/zip line tours.
(G) All amusement rides and devices must conform to the current requirements of “Standard Practice for Ownership and Operation of Amusement Rides and Devices” Designation F770-18 or ANSI/ACCT 03-2016 Chapter 2 (as applicable by ride type), regardless of date of manufacture or installation.
(H) Amusement rides and devices of site-specific or prototype construction shall be constructed, maintained and repaired as certified by a Professional Engineer. These certifications must be available for review by the Division.
(I) Bungee Jumping
(1) A system review (structures, cords, harnesses, attachment components, etc.) that includes evaluation and inspection by a Colorado registered Professional Engineer, with his/her certification/stamp that the system design is adequate for the intended application, shall be provided to the Public Safety Section Division.
(2) Where the facility incorporates a crane structure for hoisting customers and/or staff members, the mechanism must conform to national standards. These standards include both the Occupational Safety and Health Administration Standards (OSHA) – 1926.1501 – July 1, 2011, excluding the subsequent addenda incorporated by the code forward, and the American Society of Mechanical Engineers (ASME) B30.5 – 2014. Documentation of this conformity shall be provided to the Division.
(3) Where the facility incorporates a hot air balloon for elevation purposes, copies of the current, valid Standard Airworthiness Certificate and Special Airworthiness Certificate issued by the Federal Aviation Administration (FAA), and records showing that all maintenance and alterations have been performed in accordance with Parts 21, 43, and 91 of the Federal Aviation Regulations excluding the subsequent addenda, shall be provided to the Division.
Section 1-6 Definitions
The following words when used in these rules and regulations shall mean:
AERIAL ADVENTURE COURSE: A patron participatory facility or facilities consisting of one or more elevated walkways, platforms, zip lines, nets, ropes, or other elements that require the use of fall hazard Personal Safety Equipment (PSE). Typically noted as ropes courses, free fall devices and zip lines in the regulation.
AIMS: Amusement Industry Manufacturers and Suppliers International
AMUSEMENT RIDE OR DEVICE: Any mechanized device or combination of devices which carry or convey persons along, around or over a fixed or restricted course for the purpose of giving its passengers amusement, pleasure, thrills, excitement or the opportunity to experience the natural environment.
Amusement rides and devices include but are not limited to, an aggregation of amusement rides and devices in an amusement setting such as amusement parks, carnivals, fairs and festivals. Amusement rides and devices also include but are not limited to, bungee jumping, bungee trampolines, trampolines, climbing walls in amusement settings, concession go-karts, bumper boats devices, gravity-propelled rides and devices, water slides, trackless trains, simulators, stationary wave systems, and traditional amusement rides.
AMUSEMENT RIDE, CLASS A: An amusement ride designed primarily for use by children 12 years of age or younger, typically referred to as a “kiddie ride.”
AMUSEMENT RIDE, CLASS B: Any amusement ride not defined as a Class A amusement ride.
BRAKE, EMERGENCY: A brake located on a zip line that is engaged upon failure of the primary brake, with no input from the zip line participant, in order to prevent serious injury or death resulting from primary brake failure.
BRAKE SYSTEM: An arrangement of primary and emergency brakes that are designed to function together.
BUMPER BOATSDEVICES: Boats Devices that are used to bump into each other intentionally as directed by drivers as a form of entertainment.
BUNGEE TRAMPOLINES: A type of trampoline where the patron is assisted by a harness attached to bungee cords.
CERTIFICATE OF INSPECTION: The documentation of the annual amusement ride inspection conducted by an qualified Third-Party inspector. Certificates of Inspection are valid for 12 months from the date of inspection.
CIRSA: Colorado Intergovernmental Risk Sharing Agency
CLIMBING WALL: An artificially constructed wall with holds for hands and feet used for climbing. Regulated climbing walls include climbing walls located in amusement settings and fixed or portable climbing walls for use by the general public as amusement devices and not for sport or fitness training.
CONCESSION GO-KARTS: A single vehicle which is powered without connection to a common energy source, which is driver– controlled with respect to acceleration, speed, braking and steering, which operates within the containment system of a defined track, which simulates competitive motor sports, and which is used by the general public. Concession go-karts typically operate at speeds of up to 25 miles per hour.
DIVISION: The Director of the Division of Oil and Public Safety of the Department of Labor and Employment, or any designees thereof which may include certain employees of the Division of Oil and Public Safety or other persons.
FREE FALL DEVICE: A component of an aerial adventure course used to control a patron’s intentional decent from an elevated structure and engineered to allow the patron to experience a rapid initial descent while ensuring a comfortable and controlled landing.
IATP: International Association of Trampoline Parks
INFORMATION PLATE: A manufacturer-issued information plate, printed in English, which is permanently affixed to a ride or device in a visible location, and is designed to remain legible for the expected life of a ride or device. The plate shall include, but not be restricted to, the following applicable items:
Ride Serial Number – A manufacturer-issued unique identifying number or code affixed to the ride in a permanent fashion.
Ride Name and Manufacturer – A manufacturer-issued unique identifying ride name, including the name of the manufacturer by city, state, and country.
Ride Model Number – A manufacturer-issued unique identifying number or code assigned to each manufactured type of ride having the same structural design or components.
Date of Manufacture – The date (month and year) determined by the manufacturer that the given ride or device met his required construction specifications.
Ride Speed – Maximum and minimum revolutions per minute, feet per second, or miles per hour, as applicable.
Direction of Travel – When the proper direction of travel is essential to the design operation of the ride, the manufacturer shall designate the direction of travel, including reference point for this designation.
Passenger Capacity by Weight – Maximum total passenger weight per passenger position.
Passenger Capacity by Number – Maximum total number of adult or child passengers per passenger position and per ride.
INJURY: Means an injury that results in death or requires immediate medical treatment administered by a physician or by registered professional personnel under the standing orders of a physician. Medical treatment does not include first aid treatment or one-time treatment and subsequent observation of minor scratches, cuts, burns, splinters, or other minor injuries that do not ordinarily require medical care even though treatment is provided by a physician or by registered professional personnel.
INJURY, REPORTABLE: Any injury (as defined) caused by a malfunction or failure of an amusement ride or device, or any injury (as defined) caused by a ride operator or patron error.
INSPECTION: A procedure to be conducted by an third-party inspector or Division employee to determine whether an amusement ride or device is being constructed, assembled, maintained, tested, operated, and inspected in accordance with the standards adopted by these regulations and the manufacturer’s recommendations, as applicable, and that determines the current operational safety of the ride or device. All inspections shall be documented by a written inspection report to be filed with the operator.
INSPECTOR: A third party qualified by training, such as attainment of Level II certification from the National Association of Amusement Ride Safety Officials (NAARSO), attainment of Level II certification from the Amusement Industry Manufacturers and Suppliers International (AIMS), attainment of a Qualified Inspector certification from the Association for Challenge Course Technology (ACCT), Pennsylvania Department of Agriculture – General Qualified Inspector status or other similar qualification from another nationally recognized organization; or education, such as registration as a Professional Engineer; or experience evaluated and approved in advance, A third-party certified by the Division, to conduct inspections of amusement rides or devices in accordance with the standards adopted by these regulations and the manufacturer’s recommendations and criteria.
MAJOR MODIFICATION: Any change in either the structural or operational characteristics of the ride or device which will alter its performance from that specified in the manufacturer’s design criteria.
NAARSO: National Association of Amusement Ride Safety Officials.
OPERATOR: A person or the agent of a person, corporation or company. An individual, corporation, or company or agent thereof who owns, controls or has the duty to control the operation of an amusement ride or device.
PERMIT YEAR: The time during which an operator is registered that begins on the registration effective date and ends 12 months from the effective date. These dates appear on the signed permit that an operator receives once the registration application has been approved.
QUALIFIED PERSON: An individual who, by possession of a recognized degree, certificate, or professional standing; or who, by possession of extensive knowledge, training, and/or experience in the subject field; has successfully demonstrated ability in design, analysis, evaluation, installation, inspection, specification, testing, or training in the subject work, project, or product, in accordance with the standards adopted by these regulations.
RACE-KARTS: A go-kart designed for competitive sport racing use in either sanctioned racing on tracks or other areas of competition, or in a racing school facility, and not to be used by the general public in an amusement facility. Race-kart drivers must wear approved safety equipment, consisting of a minimum of a Snell or DOT approved helmet and closed-toed shoes. Race-karts regularly reach maximum speeds in excess of 25 miles per hour.
REGISTRATION: The filing of a properly completed application with the Division and approval of the application by the Division.
REPORTABLE INJURY: Any injury (as defined) caused by a malfunction or failure of an amusement ride or device, or any injury (as defined) caused by a ride operator or patron error which impairs the function of an amusement ride or device.
RIDE OPERATOR: The person that has control of the amusement ride or device at all times or is supervising a patron-directed device when it is being operated for the public’s use. This person must be trained in accordance with the standards adopted by these regulations and in accordance with an operator training program or specifications provided by the amusement ride or device designer, engineer or manufacturer.
SERVICE PROVEN: As defined in ASTM F2291-18, “an amusement ride, device, or major modification to an amusement ride or device of which units(s) have been in service to the public for a minimum of five years and unit(s) that have been in service have done so without any significant design related failures or significant design related safety issues that have not been mitigated.”
SIMULATOR: Any amusement ride that is a self-contained unit that uses a motion picture simulation, along with a mechanical movement which requires the use of manufacturer-provided restraints, to simulate activities that provide amusement or excitement for the patron.
SUBSIDIARY RELATIONSHIP: An independent company that is controlled by another company, usually referred to as the parent or holding company.
TRACKLESS TRAIN: An articulated vehicle used for the transport of passengers, comprising of a driving vehicle pulling one or more carriages connected by drawbar couplings. Also known as barrel trains.
TRAMPOLINE, INSTITUTIONAL: A trampoline intended for use in a commercial or institutional facility.
TRAMPOLINE COURT OR TC: A defined area comprising one or more institutional trampolines or a series of institutional trampolines.
TRAMPOLINE COURT FOAM PIT OR TC FOAM PIT: A combination style dismount pit designed with a rebound device, covered with loose impact absorbing blocks.
WATER SLIDES: Rides intended for use by riders in bathing attire where the action of the ride involves possible and purposeful immersion of the rider’s body either in whole or in part in water, and uses circulating water to mobilize or lubricate the rider’s transportation along a purpose built path.
ZIP LINE: A concession, commercial amusement device where participants attached to a pulley traverse by gravity from one point to another by use of a cable or rope line suspended between support structures.
ZIP LINE TOUR OR ZIP LINE COURSE: A guided aerial exploration or transit of a landscape by means of a series of zip lines and platforms generally supported by man-made structures.
ARTICLE 2 GENERAL REQUIREMENTS
Amusement rides and devices may not open to the public within the State of Colorado unless the operator has registered with the Division, received a permit from the Division and has satisfied and is continuing to satisfy the requirements as provided herein.
Section 2-1 Financial Standards
(A) Any person who operates an amusement ride must have currently in force an insurance policy written by an insurance company authorized to do business in this state or by a surplus lines insurer, in an amount of not less than $100,000 per occurrence with a $300,000 annual aggregate for Class A amusement rides and devices and an amount of not less than $1 million per occurrence for Class B amusement rides and devices insuring the owner or operator against liability for injury to persons arising out of the use of the amusement ride.
(B) For governmental entities, insurance or self-insurance in accordance with § 24-10-115 C.R.S. of The Governmental Immunity Act, or participation in a public entity self-insurance pool pursuant to § 24-10-115.5 C.R.S. of The Governmental Immunity Act shall be deemed to meet the financial standards of this section.
Section 2-2 Technical Standards Access to Records and Devices
Amusement rides shall be constructed, maintained, operated and repaired subject to the following standards:
2-2-1 General
(A) Amusement rides or devices or any part thereof shall be constructed, maintained, operated and repaired in accordance with the standards adopted by these regulations and the manufacturer’s recommendations, as applicable, in order to provide for an operation free from recognized safety hazards.
(B) Amusement rides and devices shall be constructed, maintained, operated and repaired in accordance with all otherwise applicable federal, state and local safety, fire, health or building codes or standards.
(C) Amusement rides and devices of site-specific or prototype construction shall be constructed, maintained and repaired as certified by a Professional Engineer. These certifications must be available for review by the Division.
2-2-2 Bungee Jumping
(A) A system review (structures, cords, harnesses, attachment components, etc.) that includes evaluation and inspection by a Colorado registered Professional Engineer, with his/her certification/stamp that the system design is adequate for the intended application, shall be provided to the Public Safety Section.
(B) All elements of the ASTM – Standards on Amusement Rides and Devices (2014 Edition), excluding the subsequent addenda incorporated by the code forward, are to be conformed to as a minimum standard. Documentation of this conformity shall be provided to the Division.
(C) Where the facility incorporates a crane structure for hoisting customers and/or staff members, the mechanism must conform to national standards. These standards include both the Occupational Safety and Health Administration Standards (OSHA) – 1926.1501 – July 1, 2011, excluding the subsequent addenda incorporated by the code forward, and the American Society of Mechanical Engineers (ASME) B30.5 – 2011. Documentation of this conformity shall be provided to the Division.
(D) Where the facility incorporates a hot air balloon for elevation purposes, copies of the current, valid Standard Airworthiness Certificate and Special Airworthiness Certificate issued by the Federal Aviation Administration (FAA), and records showing that all maintenance and alterations have been performed in accordance with Parts 21, 43, and 91 of the Federal Aviation Regulations excluding the subsequent addenda, shall be provided to the Division.
2-2-1 Access
(A) Division representative may enter during normal business hours, without advance notice, the premises where amusement rides and devices are located, including places of storage or use, for the purpose of device inspections and/or examining any records or documents required under these regulations.
2-2-2 Records Requirements
(A) Every amusement ride or device operator shall maintain detailed records relating to the construction, repair and maintenance of its operation, including safety, inspection, maintenance records and ride operator training activities.
(B) Records shall be made available to the Division at reasonable times, including during an inspection upon the Division’s request.
(C) Records of daily inspections must be available for inspection at the location where the ride or device is operated.
(D) All records must be maintained for a period of three years, unless otherwise specified in this regulation.
Section 2-3 Registration
No person shall open to the public and operate any amusement ride or device on property owned or leased by such person until the operator of the amusement ride or device has first registered and obtained a permit for operation from the Division.
2-3-1 Application Submission and Processing
(A) The Amusement Rides and Devices application shall be submitted annually on the form prescribed by the Division and shall include the following registration requirements.
(1) The name and address of the operator.
(2) The trade name of the manufacturer, and the serial number of all rides and devices.
(3) A report of any injury occurring in any state that meets the definition of a reportable injury as defined in this regulation.
(4) A list of the dates and locations of operation of the amusement rides or devices within the state for the upcoming permit year, including the dates at each location. This list may be
updated throughout the permit year, provided that notification is received by the Division prior to operation.
(5) The name of all liability insurance carriers and the insurance policy numbers.
(6) An original amusement ride Certificate of Inspection for each amusement ride or device showing the name, serial number, manufacturer of the ride, the inspector’s name, the owner/operator name and other information as required by 2-4 of these rules.
(7) Any other information reasonably related to the standards set forth in Article 2.
(8) A certificate of liability insurance for the registration period in an amount of not less than $100,000 per occurrence with a $300,000 annual aggregate for Class A amusement rides and devices and an amount of not less than $1 million per occurrence for Class B amusement rides and devices insuring the owner or operator against liability for injury to persons arising out of the use of the amusement ride or device. For governmental entities, insurance or self-insurance in accordance with § 24-10-115 C.R.S. of The Governmental Immunity Act, or participation in a public entity self-insurance pool pursuant to § 24-10-115.5 C.R.S. of The Governmental Immunity Act shall be deemed to meet the financial standards of this section.
(B) Upon receipt of an application, the Division shall review the application, and upon determining that the provisions of these rules have been met, shall approve the application, register the amusement rides or devices and issue a permit to operate.
(C) The submittal of a registration application does not guarantee the registration of any amusement ride or device. The owner/operator must obtain a permit from the Division prior to opening any ride or device to the public.
| 2-3-2 Application Fees Table 2-3-2 | Annual Registration Fees | ||
| Fee Category | Registration Fee Per Amusement Ride or Device Operator | + (and) |
Registration Fee Per Amusement Ride or Device |
| Fee Amount | $500 | + (and) |
$130 |
2-3-3 Incomplete Applications
(A) Upon receipt of an incomplete application or an application requiring additional information, the applicant will be notified of the deficiency or additional requirements.
(B) If the deficiency is not corrected or if the Division does not receive the additional information within 180 days following the date of notification, the application shall be considered abandoned and the Division shall not retain the application.
2-3-4 Aerial Adventure Courses
(A) Each aerial adventure course is generally considered to be one ride or device based on the information plate.
(B) If an information plate is not provided, and the owner/operator registers multiple aerial adventure courses as one device, the following will apply:
(1) All aerial adventure courses registered as one device shall be inspected and listed on the Certificate of Inspection as one device by the Third-Party inspector.
(2) When any one aerial adventure course registered in the device is shut down or inoperative, all other aerial adventure courses included in the device must also be shut down.
(C) It is the responsibility of the aerial adventure course owner/operator to correctly register each device being operated.
2-3-5 Trampoline Courts
(A) Each trampoline court is generally considered to be one ride or device based on the information plate.
2-3-6 Zip Lines
(A) Each zip line is generally considered to be one ride or device based on the information plate.
(B) If an information plate is not provided and the owner/operator registers multiple zip lines as one device, the following will apply:
(1) All zip lines registered as one device shall be inspected and listed on the Certificate of Inspection as one device by the Third-Party inspector.
(2) When any one zip line registered in the device is shut down or inoperative, all other zip lines included in the device must also be shut down.
(C) It is the responsibility of the zip line owner/operator to correctly register each device being operated.
Section 2-4 Inspections
2-4-1 Annual Inspections
(A) An annual inspection by an Third-Party inspector must be conducted on each amusement ride or device.
(1) Each amusement ride or device must have a current Certificate of Inspection prior to opening to the public.
(12) The inspection shall be conducted with the amusement ride or device in an operable state prior to opening to the public and include an evaluation of the ride or device for a minimum of one complete operating cycle, where applicable.
(23) The inspection shall also include a review of the operator’s daily inspection records, inspection and maintenance program records and training records in accordance with the standards adopted by these regulations and the manufacturer’s recommendations, as applicable.
(B) Any amusement ride or device open to the public in the state of Colorado must have a valid Certificate of Inspection on file with the Division.
(1) Each item number on the Certificate of Inspection is considered to represent one ride or device.
(2) The ride owner/operator shall be responsible for submitting a completed and signed Certificate of Inspection to the Division for all rides or devices being opened to the public.
(3) A grace period of 30 days immediately following the expiration date of a Certificate of Inspection shall exist and that Certificate of Inspection shall continue to be valid during that time period.
(4) An inspection report for each amusement ride or device shall be made available to the Division at reasonable times, including during an inspection, upon the Division’s request.
(C) The inspection certificate shall not be submitted to the Division until all discrepancies have been resolved and all necessary repair(s) or replacement(s) required in accordance with the standards of Section 2-2 have been made.
(1) Resolution of discrepancies, repairs and replacements may be documented in writing by the owner/operator and delivered to the inspector.
(2) The inspector may corroborate such letter by review thereof, subsequent re-inspection, receipt of additional documentation or by other means which the inspector deems appropriate.
(3) Corroborated discrepancies, repairs and replacements shall not require further inspection and such resolution shall be deemed to be in accordance with the standards of Section 2-2.
(D) No person shall open to the public an amusement ride or device that has been inspected by an qualified inspector or by the Division according to Section 2-2 of these regulations and found to be unsafe unless:
(1) All necessary repairs and modifications to the ride have been completed and certified as completed by an qualified inspector and
(2) A valid Certificate of Inspection is on file with the Division.
2-4-2 Daily Inspections
(A) In addition to the annual inspection required under this section, the owner/operator who operates an amusement ride or device must perform and record daily inspections of each amusement ride or device.
(B) Records of the daily inspections must be available for inspection at the location where the amusement ride or device is operated, and the records must be maintained with the amusement ride or device for a period of three years.
(C) The daily inspection records must include an inspection of equipment identified for daily inspection in accordance with the applicable codes and the manufacturer’s recommendations.
2-4-3 New Installation and Major Modification Inspections
(A) New ride installations and following major modifications of existing rides, a signed certificate of inspection shall be submitted to the Division before the ride is opened to the public.
(B) The operator shall make available to the Division a written statement, completed by a qualified person or agent thereof, stating that the ride meets the applicable design requirements set forth in Section 1-5 of these regulations. The qualified person or agent thereof shall identify under which standards the ride was evaluated.
(C) Additionally, the operator shall make available to the Division for any new installation or structural change, the following:
(1) An as built document.
(2) A copy of the certificate of occupancy issued by the local building authority, if the local building authority has such a requirement. This requirement may be fulfilled within 90 days following the issuance of the Registration Permit from the Division.
(D) For sub-sections (B) and (C) these documents shall be maintained for the life of the ride or device.
Section 2-5 Ride Operations
2-5-1 General
(A) All operator personnel shall be trained in accordance with these regulations, adopted codes and standards, and any applicable recommendations provided by the amusement ride or device manufacturer.
(AB) Amusement ride and device owners/operators are required to operate each ride or device in accordance with these regulations, adopted codes and any applicable all manufacturers’ recommendations as applicable.
(BC) Consideration shall be given to environmental factors, including humidity, precipitation, temperature and wind effects on patron safety, where applicable.
(CD) Operators shall have a reasonable written plan in place for the management of emergencies, including, but not limited to the following, where applicable:
(1) Prevention strategies;
(2) Emergency preparedness;
(3) Administrative response to emergencies;
(4) Field response to medical emergencies;
(5) Field response to incidents/accidents and fatalities;
(6) Technical rescues;
(7) Activating the emergency medical system;
(8) Evacuations; and
(9) Addressing severe weather.
2-5-2 Zip Lines Aerial Adventure Courses
(A) Operators of aerial adventure courses shall follow the general requirements listed below:
(1) Verify any connection between the patron and the device are properly made.
(2) Document these requirements in the operator’s manual.
(AB) Additionally, For zip line operations, the operator shall:
(1) Have a full understanding of and proficiency in the setup, operation and ongoing monitoring requirements of the braking system in effect when operating zip lines.
(2) Ensure that the departure of patrons from dispatch zones is performed in a controlled manner and only when the zip line is clear of other persons.
(3) Ensure that the deceleration and arrest of patrons arriving at landing zones is performed in a controlled manner.
(4) Ensure that padding used as a protective element in the landing area is not used as a brake component.
(C) Additionally, for free fall device operations, the operator shall:
(1) Utilize a secondary attachment approved by the manufacturer.
ARTICLE 3 RECORDS
Section 3-1 Records Requirements
(A) Every amusement ride or device operator shall maintain detailed records relating to the construction, repair and maintenance of its operation, including safety, inspection, maintenance records and ride operator training activities.
(B) Records shall be made available to the Division at reasonable times, including during an inspection upon the Division’s request.
(C) Records of daily inspections must be available for inspection at the location where the ride or device is operated.
(D) All records must be maintained for a period of three years.
ARTICLE 3 INSPECTOR CERTIFICATION
Section 3-1 General Requirements
(A) This section describes the requirements for the annual Inspector Certification.
(B) The Division may request documentation in addition to that described in the following sections to verify the accuracy of information provided with a Certification application.
(C) The inspector shall not be affiliated by employment or by a subsidiary relationship to the owner/operator or the manufacturer of the amusement ride or device.
(D) To qualify as a professional engineer, applicants must provide a professional engineering license and proof of at least 12 months of experience working in the amusement industry.
Section 3–2 Certification Types
(A) The Division may certify an applicant if the applicant has satisfied Certification requirements listed in Sections 3-1 through 3-3. The Inspector Certification will indicate the type of rides and devices for which the Certification is allowed to inspect per these regulations. The types of rides and devices inspection endorsements are as follows.
(1) Type 1: Traditional Amusement Rides and Devices, that are typically found at carnivals and amusement parks which would include but not be limited to roller coasters, Ferris wheels and bumper cars, and that are not of the types listed in (A)(2) through (3) of this section.
(2) Type 2: Aerial Adventure Courses (Free Fall Devices, Ropes Courses and Zip Lines).
(3) Type 3: Indoor Trampoline Parks.
(4) Type 4: Water Slides.
(5) Type 5: Special devices. Any specialty devices not listed above (i.e., trackless trains).
(B) A person applying for an Inspector Certification shall submit to the Division a completed Inspector Certification application using the form that is provided on the Division’s website.
Section 3-3 Certification Qualifications
(A) Qualifications for licensing are as follows:
(1) Type 1 Inspector Certification qualification shall consist of certification through one of the following:
(a) NAARSO Level 2; or
(b) AIMS Maintenance or Inspector Level 2; or
(c) The Pennsylvania Department of Agriculture – General Qualified Inspector; or
(d) Qualify as a professional engineer per Section 3-1 (D); or
(e) Another nationally recognized organization approved by the Division; or
(f) Experience evaluated and approved by the Division
(2) Type 2 Inspector Certification qualification shall consist of certification through one of the following:
(a) NAARSO Level 2; or
(b) AIMS Maintenance or Inspector Level 2; or
(c) ACCT Level 2 Professional Inspector; or
(d) Qualify as a professional engineer per Section 3-1 (D); or
(e) Another nationally recognized organization approved by the Division; or
(f) Experience evaluated and approved by the Division
(3) Type 3 Inspector Certification qualification shall consist of certification through one of the following:
(a) NAARSO Level 2; or
(b) AIMS Maintenance or Inspector Level 2; or
(c) IATP Service Technician Level 2; or
(d) Qualify as a professional engineer per Section 3-1 (D); or
(e) Another nationally recognized organization approved by the Division; or
(f) Experience evaluated and approved by the Division
(4) Type 4 Inspector Certification qualification shall consist of certification through one of the following:
(a) Those listed in Section 4-2 (A)(1) (Type 1); or
(b) CIRSA certification
(c) AIMS Aquatics Operations Level I
(5) Type 5 Inspector Certification qualification shall consist of certification that complies with (A)(1) of this section.
(B) The Division reserves the right to review an applicant or inspector’s experience and certification status at any time to ensure that the applicant or inspector:
(1) Demonstrates sufficient general knowledge of amusement rides to effectively inspect, evaluate, and identify issues with rides that could or will have an impact on public safety;
(2) Is fully versed in and able to apply Colorado-specific rules and regulations, and
(3) Is able to communicate that information to the amusement ride owners/operators for whom the inspection is being carried out.
Section 3-4 Inspector Certification and Renewal
(A) Inspector Certifications will expire annually on April 15.
(B) The Inspector Certification issued by the Division shall be valid for up to one year. The Division may issue or renew an Inspector Certification, provided the applicant submits the following:
(1) A completed inspector certification application form.
(2) Documentation that the applicant is currently certified as listed in Section 3-2 (A) of this section.
Section 3-5 Revocation, Suspension, or Denial of Inspector Certification
(A) A certification may be denied, suspended, or revoked by the Division because of, but not limited to the following:
(1) Failure to show sufficient proof of required credentials or experience with amusement ride or device inspections;
(2) Non-compliance with an order issued by the Division within the time specified in such order;
(3) Failure to comply with these regulations;
(4) Giving false information or a misrepresentation to the Division in order to obtain or maintain a certification;
(5) Making a false affidavit or statement under oath to the Division in an application or report; or
(6) Other factors which, at the discretion of the Division, indicate an unfitness to hold an inspector certification in compliance with these regulations.
(B) The Division shall deny, suspend, or revoke an inspector certification according to the process described in Article 6 of these regulations.
(C) Upon notice of the revocation or suspension of any permit, the former inspector shall immediately surrender to the Division the certification and all copies thereof.
(D) Any person whose certification has been denied or suspended under Section 3-5 may apply to the Division for a hearing in order to seek relief.
(1) The hearing shall be conducted by the Division or an Administrative Law Judge with the Division of Administrative Hearings on behalf of the Division in accordance with the procedures of 24-4-105 C.R.S.
(2) The Division may grant the relief requested in the hearing if the Division determines that the circumstances regarding the denial, suspension, or revocation, and the applicant’s record and reputation are such that the granting of such relief is not contrary to public safety.
(E) Any person aggrieved by a decision or order of the Division may seek judicial review pursuant to the provisions of 24-4-106 C.R.S.
(F) The period of denial, suspension, or revocation shall be within the sound discretion of the Division.
(G) Any person who has been denied a certification may not reapply to the Division for a certification within one year of the decision, unless exception is made by the Division and the applicant establishes a substantial change in circumstances to indicate fitness to hold an inspector certification in accordance with the requirements of these regulations.
(H) In case of revocation or suspension of an inspector certification, the Division shall notify all certifying associations that have issued said inspector any certifications used for the approval by the Division of such revocation or suspension.
ARTICLE 4 INJURY REPORTING
Section 4-1 Reportable Injury
(A) State of Colorado regulations require that amusement ride and device operators notify the Division of any reportable injury.
(B) A reportable injury is any injury (as defined) caused by a malfunction or failure of an amusement ride or device, or any injury (as defined) caused by an operator or patron error which impairs the function of an amusement ride or device.
(C) A reportable injury as defined must be reported to the Division by:
(1) Calling calling 303-514-3281 or 303-809-9354 within 24 hours of the time that the ride operator or operator becomes aware of the injury; and
(2) Submitting an injury report to the Division within 72 hours of the time that the ride operator or operator becomes aware of the injury
(D) Complete injury reports should be emailed to cdle_amusements@state.co.us or faxed to 303-318-8488.Injury reports shall be maintained and made available to the Division for investigation. Copies must be submitted upon request from the Division.
Section 4-2 Reportable Injury Scene Preservation
If a reportable injury occurs, the equipment or conditions that caused the accident shall be preserved for the purpose of an investigation by the Division unless an investigation is deemed unnecessary by the Division.
ARTICLE 5 PATRON RESPONSIBILITY
Patrons are required to follow any written or verbal instructions that are given to them regarding the use of amusement rides and devices.
ARTICLE 6 ENFORCEMENT
Section 6-1 Enforcement Program
The Division provides these regulations to assist operators and inspectors with safe and proper operation of amusement rides and devices. The Division may inspect the premises and operation of the amusement ride or device to insure that the financial and safety standards in this regulation have been met. When an amusement ride or device is found to be out of compliance with these regulations, the Division will pursue enforcement actions against the operator or inspector who is in violation of these regulations and/or statutes (8-20 C.R.S.).
The enforcement process will include requiring the operator or inspector to make repairs and/or upgrades, perform system tests, provide records and complete other actions to bring the amusement ride or device back into compliance. During and following the enforcement process, the Division will continue to assist the operator or inspector to remain in compliance. The enforcement process may include monetary penalties of up to one thousand dollars ($1,000) per violation per day according to statute (CRS §8-20-104 C.R.S.) if the enforcement obligations are not implemented according to the required schedule.
6-1-1 Notice of Violation
(A) A notice of violation (NOV) may be issued to an operator or inspector when an amusement ride or device is found to be out of compliance with these regulations and/or statutes (C.R.S. §8-20) or the inspector has failed to comply with these regulations and/or statutes. The notice of violation may include fines and/or an order to cease and desist operation of the specific amusement ride or device until all violations are satisfactorily corrected.
A notice of violation (NOV) may be issued to an inspector when the inspector has failed to comply with these regulations and/or statutes. The notice of violation may include fines and/or a suspension of the inspector’s certification.
(B) Within ten working days after an NOV has been issued, the person issued the NOV may file a written request with the Division for an informal conference regarding the NOV. Upon receipt of the request, the Division shall provide the alleged violator with notice of the date, time and place of the informal conference. During the conference, the alleged violator and Division personnel may present information and arguments regarding the allegations and requirements of the NOV. If the person issued the NOV does not request an informal conference within this time frame, all provisions of the NOV shall become final and not subject to further discussion. If the NOV is not resolved within the prescribed time frame, the Division may then seek judicial enforcement of the NOV, or an enforcement order may be issued.
(C) Within 20 days after the informal conference, the Division shall uphold, modify, or strike the allegations within the NOV in the form of a settlement agreement or an enforcement order.
(D) If the alleged violator fails to timely request an informal conference, the terms of the NOV become a binding enforcement order not subject to further review.
6-1-2 Enforcement Order
(A) An enforcement order may be issued when the violations included within an NOV are not resolved within the prescribed time frame or when the schedule set forth in a settlement agreement is not met. The enforcement order may include increased fines of up to one thousand dollars ($1,000) per violation for each day of violation. In addition, the enforcement order may include shut-down of the amusement ride or device.
(B) Within ten working days after an enforcement order has been issued, the operator may file a written request with the Executive Director for an informal conference regarding the enforcement order. If the operator does not request an informal conference within this time frame, all provisions of the enforcement order shall become final and not subject to further discussion. If the enforcement order is not resolved within the prescribed time frame, the Division may then seek judicial enforcement of the enforcement order. An enforcement order may include increased fines of up to one thousand dollars ($1,000) per violation for each day of violation. In addition, the enforcement order may include shut-down of the amusement ride or device and/or suspension or revocation of the permit or inspector certification.
(C) An alleged violator may appeal the enforcement order to the Division for a hearing under 24-4-105 C.R.S. The Division shall then issue a final decision which is subject to judicial review under 24-4-106 C.R.S.
6-1-3 Informal Conference
(A) Upon receipt of the request, the Division shall provide the operator with notice of the date, time and place of the informal conference. The Division shall preside at the informal conference, during which the operator and Division personnel may present information and arguments regarding the allegations and requirements of the NOV or the enforcement order.
(B) Within twenty days after the informal conference, the Division shall issue a settlement agreement in which the violations from the NOV and/or enforcement order will be upheld, modified or stricken. The settlement agreement will include a schedule of required activity for resolution of the violations. If the terms and/or schedule in the settlement agreement are not satisfied, an enforcement order will be issued, re-issued or the Division may seek judicial enforcement.
6-1-3 Procedure on Revocation, Suspension, or Denial of Inspector Certification
(A) In any case where the Division denies a permit or the permittee is subject to suspension or revocation for a violation of Section 3-3 of these regulations, the Division shall notify the applicant or permittee in writing by first-class mail of the grounds for denial for the violation. The notice shall state that the applicant or permittee may request a hearing in accordance with 24-4-104 and 24-4-105 C.R.S.
(B) Upon notice of the revocation or suspension of any permit, the former permittee shall immediately surrender to the Division the permit and all copies thereof. In addition, the former permittee must surrender control of all explosive material in his/her possession to the Division or the law enforcement agency designated by the Division, or in the presence of the Division or the law enforcement agency designated by the Division surrender control of all explosive material in his/her possession to a valid Type II permittee until a final determination on the charges is made.
(C) The period of denial, suspension, or revocation shall be within the sound discretion of the Division.
(D) The Division may summarily suspend a permit if the Division has objective and reasonable grounds to believe that the public health, safety, or welfare requires emergency action. In such case, the Division shall notify the permittee in writing by first-class mail of the grounds for summary suspension and shall state that the permittee may request a hearing in accordance with 24-4-105 C.R.S.
Do Something
You have two options:
- Roll over and take it.
- Get Involved. If you don’t speak up the regulatory bodies will win and that means you are out of business.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Trampoline Parks, Ropes Courses, Climbing Walls, Playground Equipment, Climbers, Fitness Devices, Exercise Equipment, Paddle Boats, #TrampolineParks, #RopesCourses, #ClimbingWalls, #PlaygroundEquipment, #Climbers, #FitnessDevices, #ExerciseEquipment, #PaddleBoats
Legal, Risk Management & Insurance Issues facing the Outdoor Recreation Industry as, I see it.
Posted: February 21, 2018 Filed under: Challenge or Ropes Course, Skiing / Snow Boarding, Zip Line | Tags: Challenge Courses, Lawsuits, Ropes Courses, skiing, Standards, Trade Associations, Whitewater Rafting, Zip Lines Leave a commentAs the industry grows and matures, it is attracting litigation. Additionally, the industry is marketing and attracting more people with no real knowledge of the risk and as such are more willing to sue.
The Outdoor Recreation Industry is facing a lot of new as well as the same-old problems they have in the past. Two components are creating the problems. Most of the industry does not have trade associations looking out after their member’s interests, and the industry keeps shooting itself in the foot.
Overall, here are the big issues I see the industry facing in 2018.
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There has been a substantial increase in the number of lawsuits in the industry. I used to find 20 new lawsuits a year and had another 250 stretching back into the 1930’s I could write about. I figured I could write for about ten years and cover 90% of the issues. Now I’m finding 250 a year. I’m never going to run out of lawsuits to review and write about.
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That increase seems to be proportionally to the activities that advertise their sports, especially those that advertise to families or groups.
- Zip Lines
- Ropes or Challenge Courses (These first two items have their industry associations working harder to promote litigation against them, still, then to stop it.)
- Skiing (but mostly skier v. skier collision cases) If you can’t sue the ski area, sue your friend you were skiing with or someone you never met.
- Zip Lines
-
There are some industries where the number of lawsuits is dropping.
- Skiing. There are fewer lawsuits against ski areas, there are more lawsuits between participants at ski areas.
- Whitewater rafting, seems to have fewer lawsuits, although that is also probably to a maturing of the sport, there are less people getting injured.
- Skiing. There are fewer lawsuits against ski areas, there are more lawsuits between participants at ski areas.
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- The Plaintiff’s are getting more sophisticated and working harder at attacking releases. Prior to 2010 occasionally, you would see plaintiff’s attempting to have the release thrown out of the litigation. Now days you see every lawsuit attacking the release and a few of them winning. Enough plaintiffs are winning that it is encouraging other plaintiffs to sue and try to void the release they signed.
- We still have a large contingent of people attempting to try to make it harder to sue. However, this ultimately making it easy to win a lawsuit against the industry. It’s like building a terrific trench system during WWI. The trench worked perfectly unless you were overran and then your perfect trench becomes the best defense to your arguments or attacks.
- There are more product liability lawsuits, and more lawsuits based on the failure to properly understand or use a harness. Most of these are occurring in the climbing wall industry, a few in the ropes’ course industry.
- Individual sports are having no lawsuits still. However, that will soon change. As a recreational area grows in popularity a trade association or organization believing they can get good PR or increase their membership is creating standards, classes and ways to sue that never existed before. Soon you will have a way to sue a belayer while climbing on a wall or on the rock because a standard was created. The standard is the duty, that if violated by the belayer makes the belayer liable.
- California Proposition 65 is going to make life miserable for manufacturers.
- None of the trade associations are working to help the industry learn and stay away from litigation. No one announced the changes to California Proposition 65. However, that could cost companies in the recreation industry millions if not more. Threatening letters have already started to arrive in manufacturer’s mail boxes demanding money because the manufacturer did not follow or even know the rules.
This is not a complete list, but it is a lot. I’ll expand on some of these ideas through the year.
Hopefully, I’m wrong.
What do you think? Leave a comment.
To Comment Click on the Heading and go to the bottom of the page.
Copyright 2018 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,
New Definition of Via Ferrata will say it is a guided activity. No guide + Injury means via ferrata landowner is liable
Posted: January 10, 2018 Filed under: Climbing | Tags: Aerial Adventure Courses, American Society of Testing and Material, American Society of Testing and Materials, ASTM, Challenge Courses, Rock climbing, Ropes Courses, Via Ferrata Leave a commentThe ASTM committee is voting on adding Via Ferrata to the standards being created by the aerial adventure course committee, F2959-16. As such they are using a dictionary definition of via ferrata that states:
Guided mountain climbing and traversing route(s) equipped with progression aids (footsteps, handholds, ladders, bridges, handrails, etc.) and a wire rope/cable attached to a fixed anchor point.
Via ferrata’s are created to be an unguided activity. In fact, most in Europe and several in the US have no “owners” or guides. They are on federal land in the US and you can take your gear and go climbing on them like you hike on other federal land.
Whether it is owned/not owned or who owns it, the land owner could be liable if a party is injured on the via ferrata and no guide was present. The definition adopted by the standards committee of the ASTM says it is a guided activity, you did not provide me a guide, therefore you breached your duty to me resulting in an injury.
Do Something
If you are associated in any way with a via ferrata: owner, manager, retailer who sells gear, manufacturer who makes the gear or a guide service I urge you to join the ASTM and become involved in this or you may find yourself facing more lawsuits that expected. To find out more or join (for $75.00 a year) go to: https://www.astm.org/MEMBERSHIP/participatingmem.htm
What do you think? Leave a comment.
To Comment Click on the Heading and go to the bottom of the page.
Copyright 2017 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, ASTM, Via Ferrata, Aerial Adventure Courses, Ropes Courses, Challenge Courses, Rock Climbing, American Society of Testing and Material,
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