New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


Wethington v. Swainson, d/b/a/ Pegasus Airsport Center, 2015 U.S. Dist. LEXIS 169145

Wethington v. Swainson, d/b/a/ Pegasus Airsport Center, 2015 U.S. Dist. LEXIS 169145

Holly Wethington and Makenzie Wethington, Plaintiffs, v. Robert Swainson, d/b/a/ Pegasus Airsport Center, Defendant.

Case No. CIV-14-899-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

2015 U.S. Dist. LEXIS 169145

December 18, 2015, Decided

December 18, 2015, Filed

SUBSEQUENT HISTORY: Sanctions allowed by, in part, Sanctions disallowed by, in part Wethington v. Swainson, 2015 U.S. Dist. LEXIS 171126 (W.D. Okla., Dec. 23, 2015)

Motion granted by Wethington v. Swainson, 2016 U.S. Dist. LEXIS 7421 (W.D. Okla., Jan. 22, 2016)

COUNSEL: [*1] For Holly Wethington, individually, Mackenzie Wethington, Plaintiffs: James E Weger, LEAD ATTORNEY, Jones Gotcher & Bogan, Tulsa, OK; Robert E Haslam, Haslam & Gallagher, Fort Worth, TX.

Robert Swainson, doing business as Pegasus Airsport Center, Defendant, Pro se.

Robert Swainson, Third Party Plaintiff, Pro se.

Joseph Wethington, Third Party Defendant, Pro se.

Robert Swainson, Counter Claimant, Pro se.

For Holly Wethington, individually, Counter Defendant: James E Weger, LEAD ATTORNEY, Jones Gotcher & Bogan, Tulsa, OK; Robert E Haslam, Haslam & Gallagher, Fort Worth, TX.

JUDGES: TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

OPINION BY: TIMOTHY D. DEGIUSTI

OPINION

ORDER

The determinative issue before the Court concerns the authority of a parent to bind their minor child to an exculpatory agreement, which functions to preclude a defendant’s liability for negligence, before an injury has even occurred. Holly and Makenzie Wethington, mother and daughter (“Plaintiffs”), bring this action against Defendant Robert Swainson, d/b/a/ Pegasus Airsport Center, for injuries suffered by Makenzie while skydiving.1 Under theories of negligence and breach of contract, Plaintiffs contend Defendant (1) provided inadequate training to [*2] Makenzie in preparation for the parachute jump, (2) selected a person to provide radio assistance who had no prior experience, (3) provided old equipment that malfunctioned during Makenzie’s jump, and (4) permitted Makenzie to use a parachute she was ill-prepared to use and which was inappropriate for her skill level. Before the Court is Defendant’s Motion for Summary Judgment [Doc. No. 24], to which Plaintiffs have filed their response in opposition [Doc. No. 30]. The matter is fully briefed and at issue.

1 At the time this action was brought, Makenzie was a minor. She has since become eighteen and will thus be referenced by name.

BACKGROUND

The following facts are undisputed. On January 24, 2014, Makenzie, who was then sixteen years old and accompanied by her parents, went to Defendant to learn how to skydive. As part of the registration process, Makenzie executed a Registration Form and Medical Statement. Near the bottom of the document, Makenzie initialed a disclaimer which read:

I FURTHER UNDERSTAND THAT SKYDIVING AND GLIDING ARE VERY SERIOUS AND HAZARDOUS SPORTS IN WHICH I COULD SUSTAIN SERIOUS AND PERMANENT INJURIES OR EVEN DEATH

Makenzie underwent an instruction course that included [*3] determining the condition of the parachute after deployment, gaining control and resolving any deployment problems and, if necessary, activating her emergency parachute. In connection with her registration and training, Makenzie and her parents both signed and/or initialed an accompanying document entitled “Agreement, Release of Liability and Acknowledgment of Risk” (the Release). The Release contained numerous exculpatory provisions, which stated in pertinent part:

1. RELEASE FROM LIABILITY. I hereby RELEASE AND DISCHARGE [Defendant] from any and all liability claims, demands or causes of action that I may hereafter have for injuries and damages arising out of my participation in parachuting and other aviation activities, including but not limited to LOSSES CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF THE RELEASED PARTIES.

2. COVENANT NOT TO SUE. I further agree that I WILL NOT SUE OR MAKE A CLAIM AGAINST [Defendant] for damages or other losses sustained as a result of my participation in parachuting and other aviation activities.

* * *

5. ACKNOWLEDGMENT OF RISK. I understand and acknowledge that parachuting activities have inherent dangers that no amount of care, caution, instruction or [*4] expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ACKNOWLEDGE ALL RISK OF DEATH OR PERSONAL INJURY SUSTAINED WHILE PARTICIPATING IN PARACHUTING AND OTHER AVIATION ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF THE RELEASED PARTIES, including but not limited to equipment malfunction from whatever cause or inadequate training.

* * *

9. ENFORCEABILITY. I agree that if any portion of this Agreement, Release of Liability and Acknowledgment of risk is found to be unenforceable or against public policy, that only that portion shall fall and all other portions shall remain in full force and effect. . . . I also specifically waive any unenforceability or any public policy argument that I may make or that may be made on behalf of my estate or by anyone who would sue because of injury, damage or death as a result of my participation in parachuting and other aviation activities.

10. LEGAL RIGHTS. It has been explained to me, and I expressly recognize that this Agreement, Release of Liability and Acknowledgment of Risk is a contract pursuant to which I am giving up important legal rights, and it is my intention to do so.

(Emphasis added).

Near the bottom of the form, Makenzie [*5] read and rewrote the following statement: “I hereby certify that I have read this Agreement, Release of Liability and Acknowledgment of Risk, that I fully understand the contents of this contract, that I wish to be bound by its terms, and that I have signed this contract of my own free will.” This statement was signed and dated by Makenzie and initialed by her mother. At the bottom of the Release, under the heading, “RATIFICATION BY PARENT/GUARDIAN if participant is under 18-years-of-age,” both parents attested that they had read the agreement, understood its terms, and agreed to be bound thereby.

Makenzie received four hours of training and instruction. She was assigned a used parachute based on her size and weight. Defendant employed the assistance of Jacob Martinez to act as radio controller. Mr. Martinez’s duty was to help guide the jumpers onto the landing area and it was his first time to assist with the radio. Upon Makenzie’s jump, her chute malfunctioned, causing her to spin with increasing rapidity towards the ground. Makenzie landed at a high speed and impact, causing her to sustain serious injuries.

STANDARD OF DECISION

“Summary judgment is proper if, viewing the evidence in [*6] the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Bonidy v. U.S. Postal Service, 790 F.3d 1121, 1124 (10th Cir. 2015) (citing Peterson v. Martinez, 707 F.3d 1197, 1207 (10th Cir. 2013)). The Court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter asserted, but to determine whether there is a genuine issue for trial. Tolan v. Cotton, U.S. , 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014). An issue is “genuine” if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). An issue of fact is “material” if under the substantive law it is essential to the proper disposition of the claim. Id. Once the moving party has met its burden, the burden shifts to the nonmoving party to present sufficient evidence in specific, factual form to establish a genuine factual dispute. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991).

The nonmoving party may not rest upon the mere allegations or denials of its pleadings. Rather, it must go beyond the pleadings and establish, through admissible evidence, there is a genuine issue of material fact that must be resolved by the trier of fact. Salehpoor v. Shahinpoor, 358 F.3d 782, 786 (10th Cir. 2004). Unsupported conclusory allegations do not create an issue of fact. Finstuen v. Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007).

DISCUSSION

Defendant contends the Release absolves him from all liability [*7] for any injury suffered by Makenzie. Plaintiffs respond that Defendant’s motion should be denied because (1) Makenzie was a minor when she signed the Release, rendering it invalid under Oklahoma law,2 (2) Defendant is clearly liable under the theories asserted, and (3) this Court had a duty to protect Makenzie as a minor.

2 In Oklahoma, a minor is any person under eighteen (18) years of age. 15 Okla. Stat. § 13.

“An exculpatory clause releases in advance the second party for any harm the second party might cause the first party after the contract is entered.” Arnold Oil Properties LLC v. Schlumberger Tech. Corp., 672 F.3d 1202, 1206-07 (10th Cir. 2012) (citation omitted). While generally enforceable, such clauses are considered “distasteful to the law.” Schmidt v. United States, 1996 OK 29, P 8, 912 P.2d 871, 874 (emphasis in original).3 Exculpatory clauses are enforceable only if they meet the three following criteria:

(1) Their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;

(2) At the time the contract was executed, there must have been no vast difference in bargaining power between parties; and

(3) Enforcement of the clause would not (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual [*8] rights vis-a-vis personal safety or private property as to violate public policy.

Schmidt, 912 P.2d at 874. “The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence.” Id. at 874 (citations omitted, emphasis in original); Satellite System, Inc. v. Birch Telecom of Okla., Inc., 2002 OK 61, P 11, 51 P.3d 585, 589 (“Oklahoma has a strong legislative public policy against contracts which attempt ‘to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another.'”) (citing 15 Okla. Stat. § 212).

3 Notwithstanding this admonition, courts should void contract clauses on public-policy grounds “rarely, with great caution and in cases that are free from doubt.” Union Pacific R. Co. v. U.S. ex rel. U.S. Army Corps of Engineers, 591 F.3d 1311, 1321 (10th Cir. 2010) (quoting Shepard v. Farmers Ins. Co., 1983 OK 103, P 3, 678 P.2d 250, 251).

Oklahoma courts, and others, have upheld exculpatory contracts similar to the present Release, i.e., contracts that exculpate the defendant from injuries suffered by plaintiffs while skydiving. See Manning v. Brannon, 1998 OK CIV APP 17, PP 15-17, 956 P.2d 156, 158-59 (exculpatory contract relieving defendant from any liability for injuries to plaintiff from parachuting activities was valid and enforceable); see also Scrivener v. Sky’s the Limit, Inc., 68 F. Supp. 2d 277, 280 (S.D.N.Y. 1999); Paralift, Inc. v. Superior Court, 23 Cal.App.4th 748, 756, 29 Cal.Rptr.2d 177, 181 (1993); Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). This Court, likewise, finds the Release is generally valid on its face.

First, the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused [*9] by Defendant’s negligence, equipment failure, or inadequate instruction. Plaintiffs signed and initialed several clauses containing the headings, RELEASE FROM LIABILITY, COVENANT NOT TO SUE, and ACKNOWLEDGMENT OF RISK. Mrs. Wethington and her husband signed a ratification stating they had read the Release, understood its terms, and agreed to be bound thereby. Second, there is no evidence of unequal bargaining power. “Oklahoma courts consider two factors in determining parties’ relative bargaining power: ‘(1) the importance of the subject matter to the physical or economic wellbeing of the party agreeing to the release, and (2) the amount of free choice that party could have exercised when seeking alternate services.'” Arnold Oil, 672 F.3d at 1208 (quoting Schmidt, 912 P.2d at 874). There is no evidence that skydiving was necessary or important to Plaintiffs’ wellbeing. In fact, when asked why she wanted to skydive, Makenzie answered, “It’s on my bucket list.” Moreover, Plaintiffs do not contend Makenzie had no choice but to agree to be trained by and jump with Defendant as opposed to going elsewhere. Third, as noted, Oklahoma courts have upheld such releases as not against public policy. See Manning, 956 P.2d at 159 (“we find a exculpatory contract in the [*10] context of a high-risk sport such as sky diving not against the public policy of this state.”).

Plaintiffs nevertheless maintain the Release is voidable because Makenzie was a minor when she signed it and her subsequent suit disaffirmed the agreement. It is also true that as a matter of public policy, courts have protected minors from improvident and imprudent contractual commitments by declaring the contract of a minor is voidable at the election of the minor after she attains majority. See 15 Okla. Stat. § 19. “A release is a contract.” Corbett v. Combined Communications Corp., 1982 OK 135, P 5, 654 P.2d 616, 617. Under Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent. Gomes v. Hameed, 2008 OK 3, P 26, 184 P.3d 479, 489 (citing Gage v. Moore, 1948 OK 214, P 8, 200 Okla. 623, 198 P.2d 395, 396).

In this case, however, Makenzie’s parents also knowingly signed the Release on her behalf, ratifying and affirming its exculpatory content, and agreeing to be bound thereby. Nevertheless, Defendant refers this Court to no controlling authority that permits the parent of a minor to, on the minor’s behalf, release or waive the minor’s prospective claim for negligence. The Court is unaware of any such authority, and therefore must predict how the Oklahoma Supreme Court would rule on the question. Ortiz v. Cooper Tire & Rubber Co., No. CIV-13-32-D, 2015 U.S. Dist. LEXIS 41544, 2015 WL 1498713, at *5 (W.D. Okla. Mar. 31, 2015) (“A [*11] federal court sitting in diversity must apply state law as propounded by the forum’s highest court. Absent controlling precedent, the federal court must attempt to predict how the state’s highest court would resolve the issue.”) (quoting Royal Maccabees Life Ins. Co. v. Choren, 393 F.3d 1175, 1180 (10th Cir. 2005)).

Although the cases are split on the issue, it is well-recognized that the majority of state courts considering the issue have held a parent may not release a minor’s prospective claim for negligence. See Fedor v. Mauwehu Council, Boy Scouts of Am., 21 Conn. Supp. 38, 143 A.2d 466, 467-68 (Conn. 1958); Kirton v. Fields, 997 So.2d 349, 356 (Fla. 2008) (pre-injury release executed by parent on behalf of minor is unenforceable against minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 386 (N.J. 2006) (New Jersey public policy prohibits parents of a minor child from releasing a minor child’s potential tort claim arising out of the use of a commercial recreational facility); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. Ct. 1994) (“[I]n the absence of statutory or judicial authorization, a parent cannot waive, compromise, or release a minor child’s cause of action merely because of the parental relationship . . . . This rule has also been extended to render ineffective releases or exculpatory agreements for future tortious conduct by other persons where such releases had been signed by parents on [*12] behalf of their minor children.”); Galloway v. State, 790 N.W.2d 252, 256 (Iowa 2010) (public policy precluded enforcement of parent’s pre-injury waiver of her child’s cause of action for injuries caused by negligence); Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n. 3 (Me. 1979) (“a parent, or guardian, cannot release the child’s or ward’s, cause of action.”); Childress v. Madison County, 777 S.W.2d 1, 6-7 (Tenn. Ct. App. 1989); Woodman v. Kera, LLC, 280 Mich. App. 125, 760 N.W.2d 641, 655-56 (Mich. Ct. App. 2008) (pre-injury waivers effectuated by parents on behalf of their minor children are not presumptively enforceable); Apicella v. Valley Forge Military Acad. & Junior Coll., 630 F.Supp. 20, 24 (E.D. Penn. 1985) (“Under Pennsylvania law, parents do not possess the authority to release the claims or potential claims of a minor child merely because of the parental relationship.”); Munoz v. II Jaz Inc., 863 S.W.2d 207, 209-10 (Tex. App. 1993) (statute which empowered parents to make legal decisions concerning their child did not give parents power to waive child’s cause of action for personal injuries); Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 11-12 (Wash. 1992) (“A parent does not have legal authority to waive a child’s own future cause of action for personal injuries resulting from a third party’s negligence”).4

4 Of the cases enforcing pre-injury releases executed by parents on behalf of minor children, most involve state-enacted legislation permitting such waiver or the minor’s participation in school-run or community-sponsored activities. See, e.g., Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 874 (10th Cir. 2013); Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1564, 274 Cal. Rptr. 647, 649-50 (1990); BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714, 80 A.3d 345, 362 (Md. 2013); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 746-47 (Mass. 2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 205 (Ohio 1998).

These decisions have invalidated such agreements on the grounds that (1) parents have no [*13] such power, or (2) the agreements violate public policy. The underlying rationale employed by many is that courts, acting in the role as parens patriae, have a duty to protect minors. Oklahoma recognizes its duty to protect minor children. Baby F. v. Oklahoma County District Court, 2015 OK 24, P 23, 348 P.3d 1080, 1088. In Oklahoma, a parent or guardian may not settle a child’s claim without prior court approval. See 30 Okla. Stat. § 4-702 (“A guardian, with the approval of the court exercising jurisdiction in the suit or proceeding, may compromise and settle any claim made by, on behalf of or against the ward in such suit or proceeding.”). As aptly summarized by the Washington Supreme Court in Scott:

Since a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury. In situations where parents are unwilling or unable to provide for a seriously injured child, the child would have no recourse against a negligent party to acquire resources needed for care and this is true regardless of when relinquishment of the child’s rights might occur.

Scott, 834 P.2d at 11-12 (emphasis added).

Based on the case law in Oklahoma and other jurisdictions, the Court is led to the conclusion [*14] that (1) Makenzie’s acknowledgment and execution of the Release is of no consequence and does not preclude her claims against Defendant, and (2) the Oklahoma Supreme Court would find that an exculpatory agreement regarding future tortious conduct, signed by parents on behalf of their minor children, is unenforceable. Accordingly, to the extent the Release purports to bar Makenzie’s own cause of action against Defendant, it is voidable. Plaintiffs correctly argue that commencement of this lawsuit constitutes a disaffirmance of the Release (see, e.g., Gage, supra; Ryan v. Morrison, 1913 OK 598, 40 Okla. 49, 135 P. 1049), and the contract is void ab initio. Grissom v. Beidleman, 1912 OK 847, P 8, 35 Okla. 343, 129 P. 853, 857 (“The disaffirmance of a contract made by an infant nullifies it and renders it void ab initio; and the parties are returned to the same condition as if the contract had never been made.”). The ratification signed by Makenzie’s parents is likewise unenforceable as a bar to Makenzie’s claims. The Release, however, is otherwise conspicuous and clear so as to bar the parents’ cause of action based upon injury to their child. Therefore, Mrs. Wethington’s causes of action, individually, are barred.5

5 As noted, exculpatory clauses cannot excuse one for, inter alia, gross negligence. The statutory definition [*15] of gross negligence is “want of slight care and diligence.” 25 Okla. Stat. § 6. Under Oklahoma law, “gross negligence” requires the intentional failure to perform a manifest duty in reckless disregard of consequences or in callous indifference to life, liberty, or property of another. Palace Exploration Co. v. Petroleum Dev. Co., 374 F.3d 951, 954 (10th Cir. 2004). Plaintiffs expressly plead in their Complaint only causes of action for negligence and breach of contract. Moreover, although Plaintiffs’ Complaint seeks punitive damages based on Defendant’s alleged “gross, willful, and intentional acts,” Compl., P 8, Plaintiffs neither argue nor present any evidence indicating Defendant’s actions constituted anything beyond ordinary negligence.

CONCLUSION

Defendant’s Motion for Summary Judgment [Doc. No. 24] is GRANTED IN PART and DENIED IN PART. Defendant’s motion is granted as to Plaintiff Holly Wethington’s claims and denied as to Plaintiff Makenzie Wethington’s claim for negligence. Since the skydiving contract is rendered void ab initio by means of Makenzie’s lawsuit, her breach of contract claim cannot proceed as a matter of law.

IT IS SO ORDERED this 18th day of December, 2015.

/s/ Timothy D. DeGiusti

TIMOTHY D. DeGIUSTI

UNITED STATES DISTRICT JUDGE


New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.

Plaintiff’s claims were dismissed because the plaintiff failed to present enough evidence to support any elements of his claim for his injuries skydiving.

Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155

State: New Jersey, Superior Court of New Jersey, Appellate Division

Plaintiff: Joseph Dare and Patricia Dare

Defendant: Freefall Adventures, Inc., John Ed-Dowes, Warren Acron and Eric Keith Johnson, Defendants-Respondents.

Plaintiff Claims:

Defendant Defenses:

Holding:

Year: 2002

The plaintiff was injured when he attempted to avoid colliding with another sky diver. The co-participant had left the airplane first and was lower than the plaintiff; therefore, the co-participant had the right of way.

The plaintiff had been jumping from this site with the defendant for two years, which totaled 137 jumps, including every week the six months before the accident.

Prior to jumping the plaintiff signed a release. The release was five pages long and included an indemnity agreement. The plaintiff also signed a release for Cross Keys Airport, Inc.

The plaintiff sued his co-participant sky diver, as well as the jump facility for his injuries.

The plaintiff denied that it was the cause of his injury; however, he had made arrangements to have his wife photograph him during the jump. In order to allow his wife the opportunity to photograph him, he had to steer through buildings towards the concession trailer where his wife was located.

The defendants filed a motion for summary judgment, which was granted because the plaintiff failed to establish a prima facie case of negligence.

Prima facie, Latin for first look, which legally means the plaintiff, could not establish any facts or sufficient facts to support its claims. A plaintiff must show enough to the court to establish the very basics supporting the elements in its claim.

The defendant had argued that based on the release it should be awarded its attorney fees and costs also; however, the trial court did not grant this motion.

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

The court first looked at the standard of care between participants in a sporting event.

…the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” The Court’s determination was grounded on two policy considerations; the promotion of vigorous participation in athletic activities, and the avoidance of a flood of litigation generated by voluntary participation in games and sports.

The reckless standard is a greater standard than the negligence standard. That means the acts of the co-participant to be liable for the injuries of another participant must be beyond negligent acts.

The applicability of the heightened standard of care for causes of action for personal injuries occurring in recreational sports should not depend on which sport is involved and whether it is commonly perceived as a “contact” or “noncontact” sport. The recklessness or intentional conduct standard of care articulated in Crawn was not meant to be applied in a crabbed fashion. That standard represented the enunciation of a more modern approach to our common law in actions for personal injuries that generally occur during recreational sporting activities.

Another reason for the application of the reckless standard rather than the negligence standard is the concern that the lower standard would create a flood of lawsuits for any sporting injury.

Recklessness under New Jersey law “entails highly unreasonable conduct, involving “an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”

“The standard is objective and may be proven by showing that a defendant ‘proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position.'”. “Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.”

The court also felt that a failure on the part of the plaintiff to provide expert testimony as to what standard of care was for skydiving doomed the plaintiff’s claims.

   skydiving requires the training and licensing of participants. According to the record, it involves knowledge and conduct peculiar to the activity, including an understanding of wind direction and velocity, proper diver spacing, control of descent, and avoidance of ground hazards.

The appellate court upheld the trial courts dismissal of the plaintiff’s claims against the other co-participant sky diver. The court then looked at the plaintiffs’ claims against the defendant sky diving operation. The court found that the recklessness standard did not apply to the facility.

Consequently, the question here was whether, under the ordinary duty owed to business invitees, considering the nature of the risks associated with skydiving and the foreseeability of injury, plaintiff’s risk of injury was materially increased beyond those reasonably anticipated by skydiving participants as a result of the manner by which Freefall operated its facility. Plaintiffs failed to demonstrate such a material increase in risk.

For the plaintiff to make a claim against the defendant facility, he would have to prove that facility materially increased the risks over that of a normal sky-diving facility. Again, the plaintiff failed to prove that or provide enough evidence to proceed with his claims.

There was absolutely no evidence presented that Freefall failed to supervise the divers on the day of plaintiff’s accident. The record established that the loading of the aircraft, its operation, and the jumps themselves, were uneventful. Nothing suggests that Freefall personnel knew or should have known that plaintiff, or any other diver, was in peril because of the conduct of other participants. Moreover, Freefall had no way of controlling plaintiff’s, Johnson’s, or any other jumper’s maneuvering of their parachute canopies during the descent. Both plaintiff and Johnson were trained and licensed sky-divers. It is undisputed that once airborne, it was their duty alone to proceed with due care.

Plaintiff also claimed the landing zone of the defendant facility was not in accordance with regulatory minimums; however, he never stated what those minimums were or how the defendant’s facility failed to meet those minimums.

The appellate court upheld the dismissal of the plaintiff’s claims.

We conclude that the recklessness standard applied to Johnson and the ordinary negligence standard applied to Freefall, and, based on the evidentiary material submitted, summary judgment was properly granted to all defendants.

The court then looked at the indemnification provisions in the release which the court called “fee shifting provisions.”

The court looked at how other states had handled fee shifting provisions in sky-diving cases. New Jersey had not looked at the issue in skydiving, but had examined the issue in other cases, which had found the provisions were void.

The court reiterated that the plaintiff’s claim had been dismissed based on the plaintiff’s failure to present a prima facie case, not based on the release. The fee shifting provisions were part of the release. Under New Jersey law, “that sound judicial administration is best advanced if litigants bear their own counsel fees.” Even when fee shifting provisions are allowed, they will be strictly construed.

Essentially, the fee-shifting clause in Freefall’s release/waiver may be construed as an indemnification agreement, whereby plaintiff has agreed to pay counsel fees incurred by Freefall in defending plaintiffs’ suit, even if the cause of plaintiff’s injuries was Freefall’s own negligence. Such agreements, of course, must also be strictly construed against the indemnitee.

Reviewing construction law and finding no recreational case law where a fee shifting provision had been upheld the court determined the provisions were void as a violation of public policy.

Against this backdrop, we conclude that the fee-shifting provision in Freefall’s agreement is void as against public policy. It obviously runs counter to our strong policy disfavoring fee shifting of attorneys’ fees.

The deterrent effect of enforcing such a fee-shifting agreement offends our strong policy favoring an injured party’s right to seek compensation when it is alleged that the injury was caused by the tortious conduct of another.

The court also justified its decision by saying that because skydiving was regulated boy by the FAA and the New Jersey Department of Transportation it would be wrong to allow recovery of attorney fees by the defendant when the plaintiff argued the regulations had been violated, Even though the plaintiff’s arguments had no proof.

The defendant also attempted to argue the plaintiff’s complaint was frivolous which under a New Jersey statute would have allowed the defendant to recover their attorney fees defending a frivolous claim. However, the court found there were enough bases in the plaintiff’s complaint that it did not meet the frivolous claim threshold.

So Now What?

As stated in several other cases, indemnification clauses, even when well written, as you might assume from a five-page release, rarely result in recovery of attorney fees.

This also shows that the length of the release is not a deterrent, whether the release is effective in some court. Some people balk at a release over one page. However, when stopping a multi-million dollar claim a few pieces of paper are not a big issue.

Have your release written so that it protects you and all possible co-defendants and maybe includes a well-written indemnification clause.

What do you think? Leave a comment.

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

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

Nutley v SkyDive the Ranch, 2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999 (N.Y. Appel. First 2009)

Plaintiff: Lisa Nutley

Defendant: SkyDive the Ranch

Plaintiff Claims: Negligence

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

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

 

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

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

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

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

Summary of the case

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

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

 

What do you think? Leave a comment.

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