Accreditation is marketing. In fact, it may be why you are being sued.

Marketing is not a way to manage risks or stop lawsuits. Marketing Makes Promises that Risk Management Must Pay For.

In an effort to sell services and promote their organization, many trade associations accredit, certify or anoint its members, with various titles, quasi degrees and paper to put on their wall and website. There is always a charge for the program and in many cases; the trade association’s budget is based on selling this program. Many times, these new programs are sold as a cure-all or at least help in risk management or litigation defense.

They are neither. At best, these are training programs; generally, they have little value other than for marketing. Worse, an accreditation can help you lose a lawsuit.

Several trade associations offer this marketing program as a way to show your future clients that you uphold the standards, or whatever of the trade association. (Ignoring the issue that people want to know if you meet their standards, not those of a trade association.) If you pay for the program you will be inspected/reviewed by “trained” members of the association who, then say you have a qualifying program or not. A trade organization will offer the idea that accreditation can provide risk management or better defenses to litigation. Because the program is up to speed on the latest and greatest or at least the tried and true for its industry.

These generally fail for several reasons.

  • Because no trade association represents a large segment of the industry and in most cases, they represent less than half of the trade. Granted, the better programs are usually members of the trade association, but that still does give them the clout or numbers needed to dictate how a member should run its business.
  • There are dozens of instances where a different way is being used, successfully by other members or non-members of the association. Consequently, the association’s way is proved ineffective or just not the only way.
  • State laws and prior litigation have changed the standards, and the trade association has not caught up making their standards look dated.

On top of that, trade associates move by their members. A new idea developed and used by one member needs to float t the surface and be discovered by the group writing the standards. By the time that happens, the standard is written, vetted, reviewed and published several years have passed. You need to react immediately to changes in your industry, not wait for someone to write it down.

Worse no new ideas are created because of fear that the idea will not qualify under the accreditation program creating liability for the member. If you develop a new way to run a program, that is safer but requires less people, you will be liable if you run the program without the required number of people because the association standard requires it. Even if your new idea has that extra person just standing around.

Marketing is not a defense against a lawsuit.

As much as we may wish, showing that an organization may hold itself to a higher standard to prevent litigation or help win a lawsuit, does not work. Standards of care or levels of doing something are not created by trade associations. The issue at trial is whether or not the defendant in litigation is determined by the jury to have met the standard of care proposed by the Expert Witnesses in the trial. Trying does not change that; trying to be good, trying to stay on top of things, trying to be educated does not cause a change.

In reality, it is a minimum two-step process that keeps one from losing in court. The first step is staying current. The second step is staying above the minimum required level of care a jury will accept. However, even these two steps may not be enough with the volume of information that flows today, and the speed which things change. Again the definition of the problem with trade associations and accreditation. The process to create the process is always behind the time curve. As such, the program that received the blessings of the trade association is probably out of date in a courtroom.

Marketing is simply an attempt to influence the decision making of someone. If that person believes that you are a better organization or offer a better program than your competitor, then your marketing was successful. Factors too numerous to discuss and of little relevance to this article go into marketing and how it influences a person’s decision. If you believe the seal on the door or the diploma on the wall going to influence someone to try your program, then take that route, just make sure you understand what you are buying and why.

On a side note, when I had an office, I had art on the walls, Not a single degree or diploma. In twenty years, only one person asked me where my diplomas were. I did not care to look at diplomas; I wanted to look at wildlife and nature scenes. I was spending more time in the office than anyone. Twenty years and only one person cared what diploma I had.

Someone who arrives at your business is going to have higher expectations. The person who sees the promises your marketing makes is going to expect that level or greater service. That expectation will apply, even if the accreditation has nothing to do with the program or the issues of your guests. You are accredited; therefore, I should not have been hurt.

That does not mean you should not tell the world how great you are. It means you must meet the marketing you are promoting.

Marketing also affects and to some extent, shows the world how you think of yourself. A current example is zip lines. For fifty years zip lines were used by the military to train recruits and by movies about the military to thrill viewers. The next twenty years zip lines were used in team building programs as part of a ropes or challenge course. Now zip lines have been used purely as an amusement device. People go out for a day of zip lining like they used to rent go karts or play a round of golf. Your marketing efforts to steer your possible clients back to the idea of team building are going to interfere and have to overcome the general expectations that zip lines are just fun.

Accreditation meets that same issue in the minds of the people coming to your program. Is the certificate on the wall to show me how good you are or on the wall to convince me not to sue? Alternatively, is the certificate proof that you did not take the proper care of me causing my injury. Marketing to cross purposes or marketing to reverse community beliefs is difficult.

Marketing makes Promises that Risk Management has to Pay For.

As stated earlier, the expectations of someone who has researched your diplomas, seals and other marketing accomplishments are going to have a higher expectation that you are not going to injure them. Your commitment to staying current, your efforts to obtain the seal of approval and the paper on the wall are proof, in your guest’s minds, that you are better than your competitors. Better may mean to provide a better program or service. It better definitely means your participants will not be injured.

The American Camp Association (ACA) has an accreditation program that the ACA recognizes for what it is, a marketing program. “ACA Accreditation: Valuable Marketing Tools.” The web page even makes that known. (http://www.acacamps.org/accreditation/marketing). Numerous other instances can be found where accreditation is synonymous with marketing.

  • Private Duty Service Expansion through Accreditation and Marketing Excellence
  • Importance of Accreditation as a Marketing Strategy
  • Use CLE Accreditation as a Marketing Tool

Marketing is not risk management and not good at providing a defense to litigation. The two are opposite in purpose. Marketing is trying to bring people to the program by telling people the program is great and to some extent, safe. If someone is injured, then the program was not safe and the marketing was not true. Having your marketing turn on you while you are a defendant is one of the worst situations to find yourself when involved in litigation. Having your marketing prove that you were a bad operator is the worst.

That does not mean you should not get the best training you can receive in running your business, no matter what the name of the certificate you receive at the end.

Accreditation does have a legal definition and support.

Accreditation from a legal standpoint is defined by Federal Statutes. The Department of Education oversees accreditation of colleges and universities in the United States. A list of accredited college and universities and the agencies that can accredit a college or university can be found at the Department’s website. (There is also a list of those colleges that are no longer recognized.) The department of education also has a statutory scheme for determining how an educational organization will be accredited, which can be found at USC § 1099b. Recognition of accrediting agency or association.

From a legal standpoint, an accredited educational intuition is on that list. It is eligible for federal and state assistance and students of those colleges are eligible for federal financial aid.

Accreditation from any other organization for any other purpose is done to enhance or market the organization seeking the approval and the agency granting the approval. Let’s first look at what this means.

If you are not seeking to offer federal financial aid to your students or receive federal aid, then accreditation can be anything you want. If you want to be accredited, send me $10.00, and I will accredit you. (You have been accredited by James H. Moss) My accreditation has the same legal value and possibly the same marketing value as any other accreditation you can receive. The issues are not. What was done, but what can you hang on your wall and advertise to prospective clients who make you look good? (The $10 will get you a cheap diploma you have to print yourself.)

A good attorney will always look behind the diploma to see what is being covered up. Throw rugs hide spots on carpets, and pictures hide holes on the wall. Attorneys know that paperwork on the wall may be covering up something that the program felt they lacked. In some cases, he or she may only find a hole in the wall. In many cases, he will see that the accreditation is just marketing. Even without an injury that can be associated with a violation of the accreditation requirements, the attorney will use the accreditation against the organization. As the owner proudly runs through his accomplishments on the witness stand, mentioning that his organization is accredited by XYZ trade association the plaintiffs’ attorney will be prepared.

The plaintiff’s attorney will have gone through each of the accreditation requirements that the organization no longer meets or violated and have the owner admit to the problems. If the accreditation is not really based on any real requirements, (like mine), then that will also be pointed out. Either the organization manager or owner will come away looking like they bought the paper to impress guests, or they earned it and then ignored it. A marketing program gone awry.

In many cases, this “accreditation mills” type of accreditation may be probably safer from a legal perspective. There is no list of items or requirements that can be used to show you violated that as an accredited organization, you should not have broken.

You are, in fact, buying marketing when you seek accreditation. This purchase works both ways providing the accrediting agency with value because they can list the organizations that have received accreditation, thus promoting themselves. The organizations that receive accreditation have come to the trade association for its seal of approval boosting the association’s standings the eyes of the industry.

However, accreditation can have a negative side also. Accreditation usually is accompanied by a list of the requirements that must be met. The more the accrediting organization wants to promote itself the longer the list. For an agency that has been accredited, this list then becomes a set of rules which they have agreed to meet. Any failure to meet these rules or regulations cannot be violated. Example:

If the accreditation says you will have one guide per five guests any variation from this at the time of an injury, and the plaintiffs (injured person) attorney has proof that you violated your own rules or standards of operation. In effect, you have provided the plaintiffs with a list of rules which you have agreed not to violate at risk of losing your accreditation.

If accreditation was a true accreditation, it would be removed when an accredited organization fails to continue to meet accreditation. Remember the Department of Education has that list of colleges that no longer are accredited. I’ve never seen a trade association do this (doesn’t mean they don’t).

By providing the plaintiff’s attorney with a list of requirements for accreditation you have also provided the plaintiff’s attorney with the standards that you have breached. The standard is what a reasonable man or organization would do in your situation. Instead of having to dig and hire expects to achieve that information, the plaintiff only has to look up the requirements for accreditation. If the injured guest, the plaintiff’s attorney’s client, was injured when something on that list was not met, then the attorney has proof of a breach of a standard.

It is irritating to see an expert witness report from the plaintiff that goes through each of the points the defendant missed for the diploma hanging on the wall. Most times the plaintiff’s expert witness was trained by the trade association that created the accreditation.

How do you think the Defendant feels watching someone trained by an association he paid money to join and more money to receive their marketing program testify against them?

In the above case, if the accreditation required one guide per five guests and there were twenty guests than the program needs four guides. If one guide stops to look at a flower or slows to tie his shoe, the program now has one guide per 6 or seven guests. If a guest is injured at that moment, the plaintiff’s attorney will argue that the injury could have been prevented with more guides, the standard required a specific number of guides, the defendant organization knew it needed more guides, (it was accredited) and if failed to provide the necessary number of guides.

Accreditation, like any outside review can cost you.

Whenever you have someone come into a program and provide you with a review of your program, that review may come back to haunt you. It is subject to discovery in litigation. Discovery means any document or witness that may have information that may lead to information about the case must be provided to the opposing side. Any document, such as an accreditation review, whether you passed it or not, must be given to the opposing side. Consequently, you want to make sure that any outside review is done in a professional manner and that negative comments and issues are either handled correctly, fixed immediately, or are not part of the written review.

Accreditation has greater value, greater weight for the plaintiff when you have failed to meet the requirements you paid to have reviewed. If the accreditation was so valuable to you, it cost you time and money to receive, how could you, then ignore it without violating the rules?

An example of this that went wrong is the case of Adam Dzialo. (See Marketing is marketing and Risk Management is not marketing, http://rec-law.us/1bPWl1c; Money is important in some lawsuits, but the emotions that start a lawsuit., http://rec-law.us/xbSs4M; Serious Disconnect: Why people sue., http://rec-law.us/wm2cBn, Wow, someone apologized, http://rec-law.us/xEIujw) Adam was enrolled in a summer camp run by Greenfield Community College. The college had just undergone a review to achieve accreditation. The accreditation report stated the number of instructors for the whitewater class was insufficient. Adam suffered a leg entrapment during a whitewater class suffering permanent brain injuries. The number of instructors for the class was below the number required to achieve accreditation, and this became a major issue during the litigation. The review provided in the accreditation process was used by the plaintiff to argue the defendant was negligent.

The defendant was told their program was insufficient, and they ignored that notice. Is the defendant liable?!

Accreditation from the perspective of an advanced degree

If you do not want your program to be marketed as an amusement but something that provides greater benefits, you might align yourself with educational organizations. As such, an “accreditation” may add that aura of validity as an educational organization rather than a summer camp. No matter that most kids would rather go to a fun summer camp than an educational one. (Not that those concepts are totally separate.)

In a courtroom, however, the marketing will be stripped bare and what you are will be laid out in the courtroom. No matter how much money you spend on marketing, if the jury sees you as an amusement park, you are an amusement park, and your marketing program will be exposed as a ruse.

It is easy to strip away an accreditation program. A plaintiff’s lawyer simply goes to the list of developed by the US Department of Education of accreditation agencies and looks for the association that accredited you. As the defendant, you are then in a position of trying to prove the value of your accreditation or diploma on the wall. What did you pay for it and why? What value does it really have? If it is not recognized, isn’t it no more than a marketing program or worse a scam.

The department of education has a statutory scheme for determining how an educational organization will be accredited. USC § 1099b. Recognition of accrediting agency or association. The department of education itself does not accredit educational institutions.

Many times an accrediting association believes that by creating a list of objectives, rules and items to meet the accrediting goals, they have done a good job. In essence, the more rules and paper the better the accreditation. However, as the Department of Education and as most people already know, more does not mean better. The accreditation is based on the “the institution’s mission, goals and objectives, resources and resource allocation, student admission requirements, student support services and the quality of the faculty and educational offerings.” The accreditation is based on the college’s goals as well as the accrediting organizations’ goals.

More may mean very bad.

One of the basic tenets of education is teaching. Helping the student understand, comprehend and be able to use the knowledge gained. One of the tenets of accreditation is the educational organization employs instructors who know the subject matter of what they are teaching but also employs people who have been trained to teach. Very few association accreditation checklists look at whether the instructors have degrees in teaching.

Accreditation at best is just one of many ways an organization can show they strive to be as good as they can and to maintain good practices. It is among a list of things that an organization can do. That other equally important, if not more important items include constant training of employees, maintain professional relationships with trade associations and attending conferences, staying current in the industry. However, the paper on the wall or the seal of approval on the front door, do not prove that this was either effective or provides any protection. The issue is and always has been doing the defendant organization breach a duty of care to the injured plaintiff.

So, what does it mean when you do not meet the standards or accreditation of the trade association when someone was injured?

A legal duty is the duty owed to the plaintiff or what would a reasonable person do in the defendant’s situation. Duty is the first of four steps that the plaintiff must prove to prove negligence. Those steps are:

  • Duty
  • Breach of a duty
  • Injury proximately caused by the breach of duty.
  • Damages from the injury

For the plaintiff to win his or her lawsuit, the plaintiff must prove all four elements of negligence. As you can see, nothing in the definition of negligence is based on the diplomas on the wall or the certificates in a file.

The hardest part of any negligence suit to prove for the plaintiff is, was there a duty and a breach of the duty. Duty is defined as the standard of care of a reasonable person or organization in the same position as the defendant. Normally, the plaintiff and his or her attorney would hire expert witnesses to determine if the duty was breached. However, if there is a written document which the defendant has agreed to abide by in running his or her organization, the written document will be substituted by the plaintiff as the standard of care. Those requirements that you met to be accredited are then transposed by the plaintiff as the standards of care that you agreed to meet. Your agreement to meet those requirements is evidence by you proclaiming them to the guests.

By agreeing to them or by calling them standards, it is a foregone conclusion, almost, that, that is the standard of care you breached.

In effect, once accreditation is obtained, it becomes the level of operation that the organization can never fall below. It becomes a list of requirements the organization must always meet every day.

Accreditation or lack thereof, can also come back to haunt you in another way. Like any misrepresentation, if you claim you have a level of training or skill, and you don’t. That is misrepresentation or fraud. Even if the accreditation has no value as a defense and is only a marketing ploy, failure to have what you claim is fraud, and you are liable for any injury your misrepresentation caused.

A good example of that is you are accredited by XYZ Association on January 1, 2012 for a three-year term. Your accreditation says you have your staff trained in current CPR. In January of 2014, the American Red Cross changes how CPR is taught, and none of your staff are current. In fact, 99% of the people trained in CPR are no longer current. If on January 2, 2014, you have someone have a heart attack on your property who dies, are you liable because you stated and held yourself out as being accredited and yet you were not?

Professional relationships, membership in trade associations, employee training and staying current rarely have the possible kick back that the certificate on the wall may have. Those ways of maintaining professionalism do not come with a list of ways that you have failed to be professional.

Another way that any type of training can come back to haunt an industry is in raising the expectation of the guests of the industry above the normal level of care.

Any value of accreditation that once existed has been diluted by its adoption by numerous other industries. Once the sole domain of higher education, as stated earlier anyone and everyone are now offering accreditation for anything and everything. As such, the term has lost any significance in its value to the public. And that value has always been as a marketing tool rather than a legal defense.

Accreditation to be valuable must occur regularly and be current.

Another major issue is once a program receives accreditation. The program ceases to stay current. The program rests on its laurels on in this case the accreditation. The accreditation provides a false sense of accomplishment and finality, when just the opposite is true.

Staying current in an industry is the only way to stay in the winning column in litigation.

Major Organizations do not offer Accreditation.

Very few trade associations offer accreditation. They know that the cost of keeping the accreditation up to the level it should be along with the risk it subjects its membership too, do not justify the time and expense. Some of the organizations that do not offer accreditation in the outdoor recreation industry are the National Ski Area Association, Boy Scouts of America, Girl Scouts of America and America Outdoors. All of these organizations represent large groups of people. Commercial or business ventures that are serious about their business and represent a large segment of their industry.

Is Accreditation bad?

No accreditation is not a bad thing, unless you are sold on the idea and achieve the accreditation on a mistaken theory that it will assist in either staying out of court or winning in court.

However, like all programs you must know what you are buying. No longer are the days of caveat emptor the rule of the day. That legal pronouncement was created when determining the age of your transportation consisted of looking at the horse’s teeth and walking around the animal. Now days you can look at a car engine for hours and never know if it will run for a day or a lifetime.

The plaintiff is opening your program’s hood and looking forward to seeing if your program runs. You are saying it will because of the paper on the wall or the seal on your website. The trade association went through a checklist of items and issues to hand you a piece of paper. None of those items can guaranty the safety of the guest. All of those items can be used by the guest to prove the program liable and hold you and the trade association accountable.

As it applies to you when you are looking at marketing your program as well as when your clients are looking at your program. If you believe that a marketing program will protect you, you are not studying the program hard enough. Neither will accreditation guaranty the safety of your guests.

  1. Make sure you know what you are accomplishing before you start.
  2. Justify why you are going down that route.
  3. Make sure if your path can be interpreted two ways, that you cover both options to make them good ideas.
  4. If you find problems fix them immediately.
  5. You understand the difference between risk management and marketing.

References:

The Database of Accredited Postsecondary Institutions and Programs

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© 2018 Recreation Law    Rec-law@recreation-law.com    James H. Moss


Legal, Risk Management & Insurance Issues facing the Outdoor Recreation Industry as, I see it.

As 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.

  1. 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.
    1. That increase seems to be proportionally to the activities that advertise their sports, especially those that advertise to families or groups.
      1. Zip Lines
      2. Ropes or Challenge Courses (These first two items have their industry associations working harder to promote litigation against them, still, then to stop it.)
      3. 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.
    2. There are some industries where the number of lawsuits is dropping.
      1. Skiing. There are fewer lawsuits against ski areas, there are more lawsuits between participants at ski areas.
      2. Whitewater rafting, seems to have fewer lawsuits, although that is also probably to a maturing of the sport, there are less people getting injured.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. California Proposition 65 is going to make life miserable for manufacturers.
  7. 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.

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NY determines that falling off a wall is a risk that is inherent in the sport. Plaintiff argued it wasn’t???

Plaintiff also argued the standards of the trade association created a legal liability on the part of the defendant. Trade association standards come back to haunt the business the standards were created to protect.

Ho v Steep Rock Bouldering, LLC, 2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)

State: New York: Supreme Court of New York, New York County

Plaintiff: Min-Sun Ho

Defendant: Steep Rock Bouldering, LLC

Plaintiff Claims: negligence

Defendant Defenses: Assumption of the Risk (although a release was signed it was not raised as a defense)

Holding: For the Defendant

Year: 2018

Summary

This case borders on the absurd because of the plaintiff’s claims and the statements of the plaintiff’s expert.

At the same time, this case borders on the scary because the standards of the trade association were used effectively to put a big dent in the defendant’s defenses.

It came down to simple logic. If you are ten to twelve feet off the ground is there an inherent risk that you could fall? Because it was to the court, the Plaintiff assumed the risk of her injuries, and her case was dismissed.

Facts

The plaintiff took a climbing class as a student in high school. Over a decade later, she signed up online to go bouldering at the defendant’s bouldering facility. She also checked out the defendant’s Facebook page.

She and her roommate went to the gym. At the gym, she realized that this was different from the climbing she had done in high school. She signed an electronic release, which she did not read. She also was questioned by an employee of the gym about her previous climbing experience. When talking with the employee she did not ask any questions.

She started bouldering and understood the grade system of what she was climbing. She had climbed once or twice to the top of the route she chose and down climbed or jumped after coming half-way down.

On her third or fourth climb, she was a few feet from the top of the wall when she fell. She landed on her right arm, tearing ligaments and breaking a bone which required surgery.

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

The decision first goes through the deposition testimony of the manager or the bouldering gym. The testimony was fairly straight forward, even talking about rules the gym had were not covered.

The next discussion was over the plaintiff’s expert witness. I’m just going to quote the decision.

After his review, Dr. Nussbaum opined that Plaintiff should have been provided with the following: a harness, a rope, or some similar safety device; a spotter; an orientation; and an introductory lesson. Dr. Nussbaum opined further that the only time a harness or similar device is not required is “when the wall is low, less than 8 feet[,] and where it is angled so that a [climber] cannot fall directly down[,] but simply slides down the angled wall. Here, the wall was high and not angled, and therefore the safety devices including the harness and rope are required.”

The plaintiff probably would not have fallen off a V1 on a slanted wall, if you can call a slanted wall a V1 or V2. More importantly with holds on the wall you would have not slid off, you have bounced off the holds as you slid down.

Dr. Nussbaum opined further that the reading Steep Rock Bouldering waiver form, which Plaintiff did not, would not mean that the reader understands or assumes the risk. Dr. Nussbaum opined further that the padding “likely” gave Plaintiff a “false sense of security” and “no appreciation of the risk here.”

Judges are responsible of interpreting the law in litigation. An opinion by an expert on a contract would not be allowed into evidence. More importantly, nothing in the background of the expert indicates any training or experience in what someone like the plaintiff would understand in reading a contract.

However, then it circled back around to industry practices. The plaintiff’s expert:

…cited to the Climbing Wall Association’s (“CWA”) Industry Practices § 4.06 and opined further that Defendant’s gym should have provided “a thorough orientation to bouldering and how to mitigate the risk of predictable falls” per the CWA guidelines.

Citing to CWA’s Industry Practices § 4.01, Dr. Nussbaum opined further:

“[Plaintiff’s] ‘level of qualification or access to the climbing should [have been] checked upon entering and prior to climbing in the facility.’ In the absence of demonstrated proficiency in climbing, [Plaintiff] should have been ‘supervised by staff or a qualified climbing partner, or her access to the facility must [have] be[en] limited accordingly.’ In the case at hand, there was a cursory transition from the street into the gym and the commencement of climbing. [Plaintiff] was simply asked if she had previous climbing-experience and essentially told ‘here’s the wall, have at it.'”

Citing to CWA’s Industry Practices § 4.02, Dr. Nussbaum opined further:

“[T]he climbing gym staff should [have] utilize[d] a screening process before allowing potential clients to access the climbing wall/facility. The purpose of the screening is to determine the ‘new client’s ability to climb in the facility’ and ‘to assess the client’s prior climbing experience, knowledge and skills (if any).’ [Plaintiff] was not asked about how long she had been climbing, whether or not she had experience at a climbing gym or facility, how often or how recently she had climbed, and/or the type of climbing she had done. She was not asked if she had knowledge of or experience bouldering. Again, she was simply asked if she had prior climbing experience, reflecting a wholly inadequate screening process.”

The Defendant’s expert did a great job of countering the claims made by the plaintiff’s expert. However, it is difficult to argue the language of a trade association is meant to mean something else when quoted by the plaintiff’s expert.

The court looked at the issue focusing on one main point. Did the plaintiff know and appreciate the risks of falling? This seems absurd to me. One of the basic fears that I think everyone has is a fear of falling. How it manifests itself may be different in different people, but everyone is afraid of falling.

The plaintiff in her testimony and the testimony of the expert witness made this the central point of the litigation and one the court had a difficult time reaching a conclusion on.

The court first looked at the assumption of risk doctrine in New York.

“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity.”

I cannot believe that when you are ten feet from the ground, there is not some form of awareness of the risk of falling.

The court then looked at the necessary elements of risk to determine what was inherent in a sport and what that means to the plaintiff and defendant.

“Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” However, “[s]ome of the restraints of civilization must accompany every athlete onto the playing field. Thus, the rule is qualified to the extent that participants do not consent to acts which are reckless or intentional.” “[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.” In assessing whether a plaintiff had the appropriate awareness to assume the subject risk, such “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.”

Boiled down, when you assume the risks of a sport or recreational activity:

In assuming a risk, Plaintiff has “given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.”

The court was then able to find that the plaintiff had assumed the risk.

The Court finds that injury from falling is a commonly appreciable risk of climbing–with or without harnesses, ropes, or other safety gear–and that Plaintiff assumed this risk when she knowingly and voluntarily climbed Defendant’s gym’s climbing wall for the third or fourth time when she fell. To hold that Defendant could be liable for Plaintiff’s injuries because it allowed her to climb its wall without a rope and harness would effectively make the sport of bouldering illegal in this state.

However, what an agonizing intense effort for the courts to come to what seems to be a fairly simple conclusion. When you are standing 10′ in the air, do you feel apprehension about falling off. If you do and you stay there you assume the risk of falling I think.

So Now What?

I’ve written before about how easy it is to write about New York decisions. They are short and quick. One or two pages. This decision is fifteen pages long, an unbelievable long decision in New York. An unbelievable long decision for what I believe to be an extremely simple and basic concept. Did the plaintiff understand she could get hurt if she fell from the wall?

Yet the plaintiff made the court work hard to decide she assumed the risk. The plaintiff made an argument that the court found compelling enough to take 15 pages to determine if are 10′ in the air are you apprehensive.

There are several take a ways from this decision.

The decision indicates the plaintiff signed a release electronically. However, it was never raised as a defense. Probably because of New York General Obligations Law § 5-326. This law states releases are not valid at places of amusement. There has been one decision in New York were a release for a climbing wall injury was upheld; however, the court specifically distinguished that issues saying the climbing wall was for educational purposes since it was at a university and not a recreational situation. Read Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003).

The industry standards came back to play a role in the decision. There are dozens of arguments in favor of an industry creating standards. There is one argument on why they should not be made. Plaintiff’s use them to attack the people the standards were meant to protect.

No matter how many reasons why it might be a good thing; it fails in all of those reasons when it is used in court to beat a defendant over the head and prove they were wrong. A piece of paper, written by members of the industry, with the industry logo and name on it is proof to any juror that this is the way it must be done. If not, why would the piece of paper be written? Why would the industry and everyone else take the time and energy to create the rule, print it and hand out if that was the way it was supposed to be done.

So, then it is left up to the defense expert to find a way to prove that the piece of paper is wrong. That is impossible in 99% of the cases. As a member of the association, as a person who helped make the piece of paper, you are now saying what you did was wrong? It is not going to fly.

Here the defendant’s expert could not. So, he did not, his opinion walked all around the issue but did not bring up the standards that the plaintiff through at the court. Granted, the plaintiff had taken the standards and twisted them and their meaning in an attempt to apply them to this case, in a way that they were not meant to be. However, it is difficult to say to a judge or juror the plaintiff’s expert twisted the standards, and they don’t mean that. Of course, that is what the judge and jury would expert.

Thankfully, the defendant’s expert was great and just refused to take on the plaintiff’s expert and the far-out statements he made.

Here the plaintiff used the industry standards in an attempt to prove the defendant had breached its duty of care to the plaintiff. Here the name had been changed by the association over the years to lessen their impact and damage in a courtroom from standards to practices. However, they were still used to bludgeon the defendant who had probably paid to help create them.

Standards do not create value in a courtroom for defendants. You cannot say we did everything right, see read this and throw the standards at the judge and jury. However, we all need to learn from our mistakes, and we need ideas on how to get better. Besides there is always more than one way to do everything.

Create ideas, best practices, anything that allows different ways of doing things so the plaintiff cannot nail you down to one thing you did wrong. The simple example is there is no one way to belay. Yet standards for various industries have superficially set forth various ways over the years you “must” belay. Body belays went out decades ago with the introduction of belay devices. Yet when your lead is on a precarious move, and the piece below him might not be able to take the full weight of a fall, a body belay works because it helps absorb the energy and spread the belay over time putting less pressure on the pro.

There is no magic solution to everything and spending hours and dollars trying to tell the world, there is, will only come back to haunt you.

What do you think? Leave a comment.

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When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.

In this case, the national organization was also sued for failing to instruct and enforce the regional organization in the rules, regulations, standards or policies. If you are going to make rules, and you say the rules must be followed you have to make sure you train in the rules and that everyone follows the rules.

If you make a rule you have to enforce it if you are in charge of making rules.
Otherwise, don’t make rules!

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005 

State: Illinois, United States District Court for the Central District of Illinois, Springfield Division

Plaintiff: T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually

Defendant: Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin

Plaintiff Claims: negligence and willful and wanton misconduct

Defendant Defenses: Failure to state a claim upon which relief can be granted filed in a Motion to dismiss

Holding: for the plaintiff

Year: 2017

This case is a federal diversity case. That means the plaintiff(s) and the defendant(s) were legally residents of different states, and the amount claimed by the plaintiff was greater than $75,000.00. In this case, the plaintiff was from California, and the Defendant was located in Illinois.

The plaintiff was in Illinois and attending the Decatur Boys & Girls Club, which was part of the America Boys & Girls Club. America Boys & Girls Club was based in Georgia.

America Boys & Girls Club provided policies, procedures, rules, guidelines and instructions to the Decatur Boys & Girls Clubs, and all other Boys & Girls Clubs. The Boys & Girls Clubs are required to follow the operating policies, procedures, rules, guidelines, and instructions.

While attending the club, the plaintiff was taken to a local farm. Neither of the defendants had permission to transport the minor plaintiff to the farm. While there the plaintiff was riding on a trailer (probably a hay ride)that did not have guardrails, seats, seatbelts or other equipment designed from keeping people from falling off. (But then very few hay rides do.) The tractor and trailer were pulled onto a public highway with 15-20 children on it. While on the highway the plaintiff either jumped or fell off or might have been pushed
off sustaining injuries.

The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor defendant.

The issue that the trailer was not designed to be on a highway and did not have seats, seatbelts or other equipment to keep people from falling off was repeatedly brought up by the court.

The defendants filed a motion to dismiss, and this opinion is court’s response to that motion.

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

A motion to dismiss is a preliminary motion filed when the allegations in the complaint do not meet the minimum requirements to make a legally recognizable claim.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Plausibility means alleging factual content that allows a court to reasonably infer that the defendant is liable for the alleged misconduct. A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” “The required level of factual specificity rises with the complexity of the claim.”

When reviewing a motion to dismiss the court must look at the plaintiff’s pleadings as true and any inference that must be drawn from the pleadings is done so in favor of the plaintiff.

To plead negligence under Illinois’s law the plaintiff must prove “…that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” In Illinois, every person owes all other persons “a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.”

Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm.

It is a legal question to be decided by the court if a legal duty exists.

…the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two  organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions.

The plaintiffs argued the duty of care of the two organizations was breached by:

(1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer.

The plaintiff’s also argued there was a greater responsibility and as such duty on the part of the America Boys & Girls Club to train the Decatur club on its rules, regulations and policies and failing to train on them was  also negligent.

T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club, and that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed.

In this case, the duty of care was created by the rules, regulations, policies and procedures created by the America Boys & Girls Clubs upon the Decatur Boys & Girls Club.

The plaintiff went on to argue, and since it was quoted by the court, accepted by the court that:

Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to  give him a ride on the trailer. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2)
failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway.

The court held this was enough to create a duty of care and proved a possible negligence claim.

Furthermore, of note was a statement that a statutory violation of a statute in Illinois does not create a negligence per se claim.

A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”

The court then looked at the minor plaintiff’s father claims to see if those met the requirements to prove negligence in Illinois.

To state a negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him.

However, the father was not able to prove his claim because it is separate and distinct from the minor’s claim. “The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings.”

It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants, therefore, had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

The father also pleaded a claim for loss of aid, comfort, society and companionship of his child. However, Illinois’s law does not allow for recovery of those emotional damages unless the child’s injury is a fatality.

The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act.

However, the father did have a claim for the medical expenses the father paid on behalf of his minor son for the injuries he incurred.

The plaintiff also pleaded res ipsa loquitur.

Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Accordingly, res ipsa lo-quitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.”

Res ipsa loquitur is a claim that when an incident has occurred, the control of the instrumentality was solely within the control of the defendant.

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.

An example of res ipsa loquitur is a passenger in an airplane that crashes. The pilot is the defendant, and the
control of the airplane is solely with the pilot.

Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.

However, the allegations of the plaintiff did not meet the requirements of res ipsa loquitur in Illinois.

Plaintiff’s final allegation discussed in the opinion was one for willful and wanton misconduct on the part of the defendants. Under Illinois’s law to establish a claim for willful and wanton conduct, the plaintiff must.

…plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.

Generally, this is the same standard to prove willful and wanton conduct in most states. Once the negligence claim is proved, then the allegations only need to support the additional acts as willful and wanton.

Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants.

The court defined willful and wanton conduct.

Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. To meet this standard, the defendant “must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.

With the allegations plead, the court found sufficient information to confirm the plaintiff going forward with willful and wanton claims. Those allegations include:

Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. T.K. further alleges that the trailer was not designed to transport people.

Putting kids on a trailer was a major issue for the court. Kids on a highway on a vehicle not created to transport people were enough to create willful and wanton conduct.

The defendant argued that the allegations that created the negligence claim were also allowed to be the same facts. No new allegations needed to be plead to support the claims for willful and wanton conduct.

Under Illinois’s law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.

The plaintiff had pled enough facts that the court found relevant and substantial to continue with the negligence and willful and wanton claim.

So Now What?

The actual rules, regulations, procedures were not identified by the court in making its decision. However, the continuous restatement of the plaintiff’s allegations in the same order and words. However, the court specifically stated the defendants failed to follow their own rules.

If you have rules, regulations, policies, procedures, or you must abide by such you MUST follow them. There are no loop holes, exceptions or “just this one time” when dealing with rules, policies and procedures that affect safety or affect minors. If you make them, you must follow them.

If you make them, you must make sure everyone is trained on them. One of the big issues the plaintiff pleads and the court accepted was the rules made by the parent organization were not known or followed by the subsidiary organization. The parent organization when making rules is under a requirement to make sure
the rules are understood and followed according to this decision in Tennessee.

The other major issue was transporting the plaintiff away from the location where the parents thought the plaintiff would be without their permission and then transporting the plaintiff on a road without meeting the requirements of state law, seats, seat belts, etc.

When you have minors, especially minors under the age of ten, you are only acting within the realm and space permitted by the parents. The line that makes me cringe every time I hear it on the news is “If I would have known they were going to do ______________, I never would have let me kid go.” Listen and you
will realize you will hear it a lot when a minor is injured.

You need to prepare your program and your parents so that line is never spoken about you.

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

What do you think? Leave a comment.

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#RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding,
#SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, trailer,
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allegations, right to relief, conscious disregard, indifference, speculative,
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& Girls Clubs, Child Care, ACA, American Camping Association, Child Care
Facility, Licensed Child Care, Licensed Child Care Facility,


 

 


T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually, Plaintiffs, v. Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin, Defendants.

Case No. 16-cv-03056

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION

2017 U.S. Dist. LEXIS 87005

June 6, 2017, Decided

June 7, 2017, E-Filed

CORE TERMS: trailer, willful, farm, wanton misconduct, res ipsa loquitur, negligence claims, pleaded, cognizable, exclusive control, wanton, medical expenses, supervision, pulled, negligence per se, public road, legal conclusions, pulling, seat, factual allegations, right to relief, conscious disregard, indifference, speculative, supervise, reckless, notice, owed, public highway, guidelines, transport

COUNSEL: [*1] For T.K., a Minor, By And Through His Natural Father and Next Friend, Timothy Killings, Timothy Killings, Plaintiffs: Christopher Ryan Dixon, THE DIXON INJURY FIRM, St Louis, MO.

For Boys & Girls Club of America, Boys and Girls Club of Decatur, Inc., Defendants: Randall A Mead, LEAD ATTORNEY, DRAKE NARUP & MEAD PC, Springfield, IL.

For Mary K Paulin, Defendant: Daniel R Price, LEAD ATTORNEY, WHAM & WHAM, Centralia, IL.

JUDGES: SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE.

OPINION BY: SUE E. MYERSCOUGH

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

Before the Court are Defendants Boys & Girls Clubs of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint (d/e 32) and Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33). The motion filed by Defendants Boys and Girls Club of Decatur, Inc. (Decatur Boys & Girls Club) and Boys & Girls Clubs of America (America Boys & Girls Club) is GRANTED IN PART and DENIED IN PART. Defendant Paulin’s motion is DENIED. In the Second Amended Complaint, T.K., a [*2] minor, through his father, Timothy Killings, sufficiently pleads negligence and willful and wanton misconduct causes of action against all Defendants. In addition, Mr. Killings pleads cognizable claims for T.K.’s past and future medical expenses against all Defendants. However, the allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable against Decatur Boys & Girls Club or America Boys & Girls Club.

I. BACKGROUND

The following facts come from Plaintiffs’ Second Amended Complaint. The Court accepts them as true at the motion to dismiss stage. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

On July 17, 2015, T.K., a then-eight-year-old resident of California, was a member of Decatur Boys & Girls Club, a corporate citizen of Illinois and a licensed child-care facility. On that same date, Decatur Boys & Girls Club was operating a summer camp through its agents and employees, and T.K. was under the paid care and supervision of Decatur Boys & Girls Club and America Boys & Girls Club. America Boys & Girls Club, a corporate citizen of Georgia, provides operating policies, procedures, rules, guidelines, and instructions regarding how Decatur Boys & Girls Club is to operate. Decatur [*3] Boys & Girls Club is required to follow these operating policies, procedures, rules, guidelines, and instructions.

On July 17, 2015, T.K. was taken from the premises of Decatur Boys & Girls Club in Decatur, Illinois, to property in Clinton, Illinois, owned by Defendant Paulin, an Illinois citizen. Neither Decatur Boys & Girls Club nor America Boys & Girls Club had permission to transport T.K. from Decatur to Defendant Paulin’s property in Clinton. Defendants,1 again without permission, put T.K. on a farm trailer owned by Defendant Paulin and located on Defendant Paulin’s property. The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor Defendant Paulin owned. The trailer was not being used in connection with a parade or a farm-related activity.

1 The use of “Defendants” in this Opinion will refer collectively to Decatur Boys & Girls Club, America Boys & Girls Club, and Mary K. Paulin.

While riding on the trailer, T.K. fell or jumped off the trailer or was pushed off. As a result, T.K. sustained injuries to his head, face, eyes, chest, neck, back, arms, lungs, hands, legs, [*4] and feet. T.K. underwent medical treatment for his injuries and will have to undergo additional treatment in the future. T.K’s father, Timothy Killings, a citizen of California, has incurred expenses related to his son’s medical care and will incur additional expenses in the future for his son’s future medical care.

On March 3, 2016, Plaintiffs filed their Complaint (d/e 1) against Defendants. Plaintiffs subsequently filed their First Amended Complaint (d/e 26) on May 23, 2016, and their Second Amended Complaint (d/e 31) on June 17, 2016. The Second Amended Complaint contains five counts. Counts 1 through 3 allege claims against Decatur Boys & Girls Club and America Boys & Girls Club for, respectively, negligence, negligence based on the doctrine of res ipsa loquitur, and willful and wanton misconduct. Counts 4 and 5 allege negligence and willful and wanton misconduct claims, respectively, against Defendant Paulin.

On June 27, 2016, Decatur Boys & Girls Club and America Boys & Girls Club filed their Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint, asking the Court to dismiss Counts 1 through 3 for failing to [*5] state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint. On June 30, 2017, Defendant Paulin filed her Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint, asking the Court to dismiss Counts 4 and 5 for failing to state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint.

II. JURISDICTION

This Court has original jurisdiction over Plaintiffs’ claims because no Plaintiff is a citizen of the same state as any Defendant and Plaintiffs are seeking damages in excess of $75,000. See 28 U.S.C. § 1332(a)(1); McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009) (“When the jurisdictional threshold is uncontested, we generally will accept the plaintiff’s good faith allegation of the amount in controversy unless it appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.”) (internal quotation marks omitted).

III. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Plausibility means alleging factual content that allows a court to reasonably infer [*6] that the defendant is liable for the alleged misconduct. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016). “The required level of factual specificity rises with the complexity of the claim.” McCauley v. City of Chicago, 671 F.3d 611, 616-17 (7th Cir. 2011).

When faced with a Rule 12(b)(6) motion to dismiss, the Court “accept[s] as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). “[L]egal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth.” McCauley, 671 F.3d at 616. Further, the Court is “not obliged to ignore any facts set forth in the complaint that undermine the plaintiff’s claim.” R.J.R. Servs., Inc. v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989). The Court may “strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. Pro. 12(f).

IV. ANALYSIS

A. Count I and Count IV Sufficiently Plead Negligence and Medical Expense Claims Against All Defendants.

1. T.K. has pleaded cognizable negligence claims against all Defendants.

In a case where federal jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332, “[s]tate substantive law applies, but federal procedural rules govern.” Doermer v. Callen, 847 F.3d 522, 529 (7th Cir. 2017). “To state a claim for negligence under Illinois law, a plaintiff must plead [*7] that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” Allstate Indem. Co. v. ADT LLC, 110 F. Supp. 3d 856, 862-63 (N.D. Ill. 2015) (citing Simpkins v. CSX Transp., Inc., 2012 IL 110662, 965 N.E.2d 1092, 1097, 358 Ill. Dec. 613 (Ill. 2012). In Illinois, “every person owes to all other persons a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.” Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs., 2012 IL 112479, 973 N.E.2d 880, 890, 362 Ill. Dec. 484 (Ill. 2012). Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm. Ryan v. Yarbrough, 355 Ill. App. 3d 342, 823 N.E.2d 259, 262, 291 Ill. Dec. 249 (Ill. App. Ct. 2005). Whether a duty exists is a question of law to be decided by the Court. Simpkins, 965 N.E.2d at 1096.

In support of his negligence claims against America Boys & Girls Club and Decatur Boys & Girls Club, T.K.2 alleges that he was a member of Decatur Boys & Girls Club and was entrusted to the care of both organizations on July 17, 2015. Sec. Am. Complaint, ¶¶ 15-16. America Boys & Girls Club and Decatur Boys & Girls Club agreed to accept the “care, custody, and control” of T.K. for the purpose of providing child care. Id. ¶ 16. T.K. also alleges [*8] that on July 17, 2015, the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions. Id. ¶¶ 42-43.

2 Plaintiffs do not separate T.K’s claims from Mr. Killings’ claims in the Second Amended Complaint. To avoid confusion, the Court will address the allegations of the Second Amended Complaint as those of T.K. when analyzing T.K’s claims and as those of Mr. Killings when analyzing Mr. Killings’ claims.

Further, according to T.K., America Boys & Girls Club and Decatur Boys & Girls Club breached the duty of care they owed him in several ways, including by (1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer. Id. ¶ 45. With respect to America Boys & Girls Club, T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club and [*9] that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed. Id. ¶¶ 46-47. In addition, T.K. claims that the actions of America Boys & Girls Club and Decatur Boys & Girls Club proximately caused his injuries. Id. ¶¶ 33-39, 49.

In support of his negligence claim against Defendant Paulin, T.K. alleges that on July 17, 2015, Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to give him a ride on the trailer. Sec. Am. Complaint, ¶¶ 21, 23. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. Id. ¶¶ 28-29. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2) failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn [*10] him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway. Id. ¶¶ 72-73. In addition, T.K. alleges that the actions of Defendant Paulin proximately caused his injuries. Id. ¶¶ 33-39, 75.

Based on these allegations, T.K. has sufficiently pleaded negligence claims against Decatur Boys & Girls Club, America Boys & Girls Club, and Defendant Paulin. The allegations in Count I and Count IV of the Second Amended Complaint give Defendants notice of the basis for T.K.’s negligence claims against them and are sufficient to establish that T.K. has a plausible, as opposed to speculative, right to relief against Defendants. This is all that is required of a plaintiff under the federal notice pleading regime. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 547.

Defendants do not seem to dispute such a finding. Indeed, their arguments for the dismissal of Count I and Count IV focus on the allegations in the Second Amended Complaint relating to an alleged violation of 625 Ill. Comp. Stat. 5/11-1408, a provision of the Illinois Vehicle Code, and claims that their alleged statutory violations constitute [*11] negligence per se. See Mot. to Dismiss (d/e 32), at 1-2; Memorandum of Law (d/e 21), at 4-6; Mot. to Dismiss (d/e 33), at 1-2; Memorandum of Law (d/e 34), at 1-2. Defendants are correct that Illinois does not recognize statutory violations as negligence per se. See Kalata v. Anheuser-Busch Companies, Inc., 144 Ill. 2d 425, 581 N.E.2d 656, 661, 163 Ill. Dec. 502 (Ill. 1991) (“A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”). But the inclusion of allegations regarding violations of 625 Ill. Comp. Stat. 5/11-1408 and negligence per se do not require the dismissal of Count I or Count IV. As the Court has explained above, T.K. has sufficiently pleaded negligence claims against Defendants without the allegations relating to statutory violations. Cf. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (“[T]he complaint need not identify a legal theory, and specifying an incorrect theory is not fatal.”).

2. Timothy Killings has pleaded cognizable medical expense claims against all Defendants.

Just because T.K. has cognizable negligence claims against Defendants does not mean that Timothy Killings, T.K.’s father, also has such claims. To state a [*12] negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him. Allstate, 110 F. Supp. 3d at 862-63. Mr. Killings has failed to meet his burden. The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings. See Bruntjen v. Bethalto Pizza, LLC, 2014 IL App (5th) 120245, 385 Ill. Dec. 215, 18 N.E.3d 215, 231 (Ill. App. Ct. 2014) (“The criterion in a duty analysis is whether a plaintiff and a defendant stood in such a relationship to each other that the law imposed an obligation upon the defendant to act for the protection of the plaintiff.”). It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants therefore had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. See Sec. Am. Complaint, ¶¶ 38-39. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

But just because Mr. [*13] Killings has not pleaded cognizable negligence claims against Defendants does not mean that he has pleaded no cognizable claims against them. In Illinois, parents have a cause of action against a tortfeasor who injures their child and causes them to incur medical expenses. Pirrello v. Maryville Acad., Inc., 2014 IL App (1st) 133964, 386 Ill. Dec. 108, 19 N.E.3d 1261, 1264 (Ill. App. Ct. 2014). The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act. Id.; see also 750 Ill. Comp. Stat. 65/15(a)(1) (obligating parents to pay for the “expenses of the family”). T.K. has pleaded cognizable negligence claims against Defendants. Mr. Killings alleges that he has been saddled with bills stemming from T.K.’s medical care, some of which he has paid, and that he will incur additional medical bills in the future as a result of the injuries T.K. suffered on account of Defendants’ negligence. Sec. Am. Complaint, ¶¶ 38-39. Mr. Killings is the father of T.K., a minor, and is required by law to pay for T.K.’s medical expenses, Mr. Killings has adequately pleaded claims against Defendants for the recovery of the amounts paid or to be paid for T.K.’s past and future medical expenses stemming from Defendants’ negligence.

One [*14] final point merits a brief discussion. In the Second Amended Complaint, Mr. Killings alleges that he has suffered, as a result of T.K.’s injuries, “loss of aid, comfort, society, companionship, pleasure, and the family relationship.” Sec. Am. Complaint, ¶ 40. However, in Illinois, a parent may not “recover for loss of the society and companionship of a child who is nonfatally injured.” Vitro v. Mihelcic, 209 Ill. 2d 76, 806 N.E.2d 632, 633, 282 Ill. Dec. 335 (Ill. 2004). Therefore, Mr. Killings has no valid claim for loss of society and companionship in this case.

3. The Court strikes paragraph 27 from Plaintiffs’ Second Amended Complaint.

As an alternative to the dismissal of Count I of the Second Amended Complaint, Defendants Decatur Boys & Girls Club and America Boys & Girls Club ask the Court to strike paragraphs 50 through 55 of the Complaint. Mot. to Dismiss (d/e 32), at 2. Similarly, Defendant Paulin asks the Court, as an alternative to the dismissal of Count IV, to strike paragraphs 76 through 81 of the Second Amended Complaint. Mot. to Dismiss (d/e 33), at 1-2. According to Defendants, the Court should strike these paragraphs because they are ultimately used to claim that Defendants’ alleged statutory violations constitute negligence per se.

Additionally, Defendants [*15] Decatur Boys & Girls Club and America Boys & Girls Club request that the Court strike paragraph 27 from the Second Amended Complaint for being duplicative of paragraph 25 and strike paragraphs 42, 43, 44, 48, 68, 69, and 70 because those paragraphs are legal conclusions. Mot. to Dismiss (d/e 32), at 4. But even assuming that the aforementioned paragraphs are legal conclusions, as opposed to factual allegations, that is no reason to strike them from the Second Amended Complaint. Although Plaintiffs are required to plead facts that indicate they have a plausible, as opposed to a speculative, right to relief, see Iqbal, 556 U.S. at 678, they are not prohibited from also pleading legal conclusions that might help to provide Defendants with notice of the claims brought against them or provide context for the factual allegations. See State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989)) (noting that “legal conclusions are an integral part of the federal notice pleading regime” and that Rule 8(b) of the Federal Rules of Civil Procedure requires parties to respond to all allegations contained within a pleading, including legal conclusions). Therefore, the Court strikes only paragraph 27 of the Second Amended Complaint, as it is duplicative of paragraph 25.

B. The Allegations of Plaintiffs’ Second Amended [*16] Complaint Are Insufficient to Render the Doctrine of Res Ipsa Loquitur Applicable Against Decatur Boys & Girls Club and America Boys & Girls Club.

Res ipsa loquitur is a rule of evidence applicable to a negligence claim, not a distinct theory of recovery. Rice v. Burnley, 230 Ill. App. 3d 987, 596 N.E.2d 105, 108, 172 Ill. Dec. 826 (Ill. App. Ct. 1992). Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” Metz v. Cent. Ill. Elec. & Gas Co., 32 Ill. 2d 446, 207 N.E.2d 305, 307 (Ill. 1965). The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Buechel v. United States, 746 F.3d 753, 765 (7th Cir. 2014). Accordingly, res ipsa loquitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.” Britton v. Univ. of Chi. Hosps., 382 Ill. App. 3d 1009, 889 N.E.2d 706, 709, 321 Ill. Dec. 441 (Ill. App. Ct. 2008). Whether the doctrine of res ipsa loquitur applies is a question of law to be determined by the Court. Imig v. Beck, 115 Ill. 2d 18, 503 N.E.2d 324, 329, 104 Ill. Dec. 767 (Ill. 1986).

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.” Avalos-Landeros v. United States, 50 F. Supp. 3d 921, 927 (N.D. Ill. 2014) (citing Heastie v. Roberts, 226 Ill. 2d 515, 877 N.E.2d 1064, 1076, 315 Ill. Dec. 735 (Ill. 2007)). Although, in the past, [*17] a plaintiff had to allege that the “the injury occurred under circumstances indicating that it was not due to any voluntary act or neglect on the part of the plaintiff,” this requirement was removed due to the adoption of comparative fault principles in Illinois. Heastie, 877 N.E.2d at 1076. With respect to the requirement of “exclusive control,” a defendant’s control over the instrumentality “at the time of the alleged negligence is not defeated by lack of control at the time of the injury.” Darrough v. Glendale Heights Cmty. Hosp., 234 Ill. App. 3d 1055, 600 N.E.2d 1248, 1252-53, 175 Ill. Dec. 790 (Ill. App. Ct. 1992). Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.” Id. at 1253.

T.K. alleges that “a minor child under the care and supervision of a registered, licensed professional child care facility does not ordinarily sustain serious injuries when properly supervised in the absence of negligence.” Sec. Am. Complaint, ¶ 60. Further, T.K. claims that at the time he sustained his injuries, the farm trailer that injured him was under the exclusive control of Decatur Boys & Girls Club and America Boys [*18] & Girls Club. Id. ¶ 61. These allegations are not sufficient to render the doctrine of res ipsa loquitur applicable here. See Twombly, 550 U.S. at 545 (noting that “a formulaic recitation of a cause of action’s elements” will not withstand a Rule 12(b)(6) motion to dismiss). And although the Second Amended Complaint contains numerous factual allegations regarding the incident in which T.K. was injured, those allegations do not indicate a plausible right to relief for T.K. under the doctrine of res ipsa loquitur.

Because the facts pleaded in Plaintiffs’ Second Amended Complaint provide no support for the second prong in the res ipsa loquitur analysis–whether an injury was caused by an object within the defendant’s exclusive control–the Court’s res ipsa loquitur analysis will begin and end with that prong. Even assuming that the incident in which T.K. was injured was one that does not ordinarily occur in the absence of negligence, T.K.’s account of the circumstances surrounding the accident indicate that it was Defendant Paulin, not Decatur Boys & Girls Club or America Boys & Girls Club, who had exclusive control of the farm trailer. According to the Second Amended Complaint, the farm trailer that injured T.K. was owned [*19] by Defendant Paulin and located on Defendant Paulin’s property. Defendant Paulin was the one who pulled the trailer onto a public road with T.K. and several other minor children on board. Defendant Paulin owned the tractor with which the trailer was pulled. Although T.K. claims that Decatur Boys & Girls Club and America Boys & Girls Club were responsible for placing him on the farm trailer, he makes the same allegation with respect to Defendant Paulin. See Sec. Am. Complaint, ¶¶ 22-23. In short, there is nothing in the Second Amended Complaint to support T.K.’s allegation that Decatur Boys & Girls Club and America Boys & Girls Club were in exclusive control of the farm trailer at any time.

Based on this analysis, the Court has determined that the factual allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable. In doing so, the Court again notes that res ipsa loquitur is an evidentiary rule, not a distinct theory of recovery. If facts uncovered through the discovery process sufficiently support the application of res ipsa loquitur against any Defendant, the Court will allow T.K. to rely on the doctrine at the summary judgment [*20] stage and will allow the trier of fact to consider and apply the doctrine as to that Defendant.

C. Count III and Count V Sufficiently Plead Willful and Wanton Misconduct Claims Against the Defendants.

To state a claim under Illinois law for willful and wanton misconduct, a plaintiff must plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.” Kirwan v. Lincolnshire-Riverwoods Fire Protections Dist., 349 Ill. App. 3d 150, 811 N.E.2d 1259, 1263, 285 Ill. Dec. 380 (Ill. App. Ct. 2004) (quoting Adkins v. Sarah Bush Lincoln Health Ctr., 129 Ill. 2d 497, 544 N.E.2d 733, 743, 136 Ill. Dec. 47 (Ill. 1989)). As noted above, T.K. has sufficiently pleaded negligence causes of action against all Defendants. T.K. has incorporated the allegations comprising his negligence claims into his willful and wanton misconduct claims against Defendants. Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants. Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. Kirwan, 811 N.E.2d at 1263. To meet this standard, the defendant “must be conscious of his conduct, [*21] and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.” Id.

In the Second Amended Complaint, T.K. alleges that on July 17, 2015, Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. Sec. Am. Complaint, ¶¶ 22, 65. T.K. further alleges that the trailer was not designed to transport people. Id. ¶ 24. T.K claims that Decatur Boys & Girls Club and America Boys & Girls Club failed to take necessary safety precautions and operated their summer camp recklessly or with gross negligence. Id. ¶¶ 64, 68. According to T.K., the actions and inaction of Decatur Boys & Girls Club and America Boys & Girls Club were “willful, wanton, grossly negligent, careless, [and] reckless” and “showed an utter indifference to or conscious disregard for the safety of [T.K.].” Id. ¶ 70.

T.K. also includes several allegations in Count III about what Decatur Boys & Girls Club and America Boys & Girls Club “knew or should have [*22] known.” Specifically, according to T.K., Decatur Boys & Girls Club and America Boys & Girls Club knew or should have known that the farm trailer was unreasonably dangerous, that additional supervision was required for the 15 to 20 children riding on the farm trailer, and that there was no way for the children to be properly seated on the farm trailer. Id. ¶¶ 66-68. Decatur Boys & Girls Club and America Boys & Girls Club also knew or should have known that placing children on the farm trailer and pulling it with a tractor without proper supervision posed a high probability of serious physical harm to T.K. Id. ¶ 69.

With respect to Defendant Paulin, T.K. alleges that Defendant Paulin placed T.K. on a farm trailer that was not designed or intended to transport people and had no guardrails, seats, or seat belts to prevent people from falling off it. Id. ¶¶ 23, 25-26. Further, T.K. claims that Defendant Paulin had no intention of making sure that T.K. was safe when she placed him on the farm trailer and pulled it onto a public road. Id. ¶ 83. T.K. also claims that Defendant Paulin failed to take necessary safety precautions. Id. ¶ 85. Defendant Paulin’s conduct, according to T.K., was “willful, [*23] wanton, grossly negligent, careless, [and] reckless” and showed a “conscious disregard for the safety of [T.K.].” Id. ¶ 87.

As with Decatur Boys & Girls Club and America Boys & Girls Club, T.K. includes allegations in the Second Amended Complaint regarding what Defendant Paulin “knew or should have known.” Specifically, T.K. alleges that Defendant Paulin knew or should have known that the farm trailer was unreasonably dangerous, that pulling children onto a public road while on the trailer was unreasonably dangerous, and that placing children on the farm trailer and pulling the trailer onto a public roadway without proper supervision posed a high probability of serious physical harm or death. Id. ¶¶ 83-84, 86.

T.K.’s allegations are sufficient to plead willful and wanton misconduct claims against Defendants. The Federal Rules of Civil Procedure require that a pleading include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). A plaintiff need not plead enough facts to show that he is likely to prevail on his claim; rather, he is required only to include enough facts to raise his claim from speculative to plausible. See Iqbal, 556 U.S. at 678. The allegations set forth [*24] above are sufficient to make it plausible that Defendants committed willful and wanton misconduct when they put T.K. on an unsafe farm trailer not designed for transporting people, failed to take necessary safety precautions, and either failed to properly supervise T.K. or pulled the trailer, with T.K. on it, onto a public road. See Worthem v. Gillette Co., 774 F. Supp. 514, 517 (N.D. Ill. 1991) (holding that the plaintiff had sufficiently pleaded willful and wanton misconduct claims where she alleged that “willful and wanton acts or omissions [were] committed or omitted with conscious indifference to existing circumstances and conditions” and went on to “enumerate specific instances of willful and wanton conduct”).

Although T.K.’s “knew or should have known” allegations against Defendants may have been insufficient to meet his pleading burden with respect to willful and wanton misconduct claims, see id. (admitting that the court “might agree” with the defendant’s arguments that “knew or should have known” allegations are mere negligence allegations insufficient to merit punitive damages), T.K. does not rely solely on these allegations in his willful and wanton misconduct claims against Defendants. Indeed, as the Court has noted above, Count III [*25] and Count V of the Second Amended Complaint, which incorporate the allegations from the counts preceding them, contain specific factual allegations regarding the actions Defendants took. Further, the Court does not view T.K.’s “knew or should have known” allegations as completely irrelevant to a willful and wanton misconduct claim under Illinois law, which holds that willful and wanton misconduct can be found where there is a failure to discover a danger through carelessness when it could have been discovered through the exercise of ordinary care. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 641 N.E.2d 402, 406, 204 Ill. Dec. 178 (Ill. 1994).

The fact that T.K. bases his willful and wanton claims on the same facts as his negligence claims is of no concern. Under Illinois law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Bastian v. TPI Corp., 663 F. Supp. 474, 476 (N.D. Ill. 1987) (citing Smith v. Seiber, 127 Ill. App. 3d 950, 469 N.E.2d 231, 235, 82 Ill. Dec. 697 (Ill. App. Ct. 1984). Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.” Bastian, 663 F. Supp. at 476 (citing O’Brien v. Twp. High Sch. Dist. 214, 83 Ill. 2d 462, 415 N.E.2d 1015, 1018, 47 Ill. Dec. 702 (Ill. 1980).

V. CONCLUSION

For the foregoing reasons, Defendants Boys & Girls Club of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion [*26] to Strike Portions of Count I of the Second Amended Complaint (d/e 32) is GRANTED IN PART and DENIED IN PART. Count II of Plaintiffs’ Second Amended Complaint is DISMISSED WITHOUT PREJUDICE. Further, the Court STRIKES paragraph 27 of Plaintiffs’ Second Amended Complaint as duplicative. Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33) is DENIED. Pursuant to Rule 12(a)(4)(A) of the Federal Rules of Civil Procedure, Defendants have 14 days from the date they receive a copy of this Order to file an answer to Plaintiffs’ Second Amended Complaint.

ENTER: June 6, 2017.

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE


New Bicycle Standards coming from ISO: ISO 4210:2014

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The New ISO 4210:2014 Safety Standard For Bicycles Coming Soon9bd8773f-de9e-4557-a55b-6d3b2d579dde.jpgThe contents of newly published ISO 4210:2014 Safety requirements for bicycles have been determined by the ISO cycles Technical Committee in collaboration with the CEN cycles Technical Committee. The requirements for bicycles are laid out in nine parts, and classify bicycles for four categories of usage: city and trekking, mountain, road racing and young adult bicycles.

Within the standard’s introduction it states “…that it was developed in response to a demand throughout the world. The aim is to ensure that bicycles manufactured in compliance with the International Standard will be as safe as is practically possible. The tests are designed to ensure the strength and durability of individual parts as well as of the bicycle as a whole.”

ISO 4210:2014 is scheduled to be adopted in more than 30 European countries, including France, Germany, Italy, the Netherlands and the United Kingdom in August of 2015, and highly probable to be adopted by many other ISO participating countries like Japan, China, Israel, and South Africa. More information about the standard may be found by visiting the Online Browsing Platform (OBP) of the ISO website.


Great article about the risks of an organization creating standards for members of the industry – and I did not write it

The article exams the ways that standards can come back and be a liability for the organization that created them.

The Center for Association Leadership is the trade association for non-profit association directors. Its purpose is to provide information and education for non-profit associations, their directors and their boards. Part of that education is articles by attorneys to outline the risk areas of association.

One article was sent to me by one of my trade association clients. It is titled Certification and the Law. The title is a little misleading. The article is really about standards rather than certification. If you read the article you will see the term certification is used interchangeably with standards.

The article talks about the risks of doing so first and discusses the National Spa and Pool Institute litigation in the late 90’s that put the association in bankruptcy. The legal costs alone exceeded the insurance available to pay the claim.

Thankfully, full-scale judicial attacks are relatively rare, but as the cases involving the National Spa and Pool Institute show, such claims can be devastating. NSPI lost a jury trial in 1998 which, inter alia, alleged that NSPI had failed to exercise a duty of using “reasonable care” when it promulgated its swimming pool standards. NSPI’s legal defense costs greatly exceeded its insurance coverage. To avoid being shut down by the jury’s verdict and in order to post a bond for the appeal of the case, NSPI filed for Chapter 11 reorganization.

There are many other legal issues discussed in the article including educational programs etc. but I’ll quote sections concerning creating standards that I think are important.

Antitrust. Certification programs beg antitrust scrutiny, given that the object of standard setting is to bring competitors together to set criteria for, among other things, restricting entry into a field. Antitrust law prohibits anyone from unreasonably creating a barrier to practice in a profession. Therefore, the certification organization must make sure that all of its eligibility requirements are reasonable-that is, relevant to determining the professional’s skill level and not so high as to block the majority of professionals from being eligible to apply for certification.

The article discusses the liability requirements to hold an association liable for its standards.

Third-party reliance. If a customer, patient, or employer is injured by a certified product or professional, it is possible that the certifying organization will be held liable for negligence or negligent misrepresentation. The argument follows that the person relied on the certification as a guarantee of competence; because the certified product or professional did not perform competently, the certification should not have been granted. Thus, it is argued, the standard-setting organization should be liable to the injured person for its mistaken or negligent grant of certification.

In order to find liability, the injured party generally must prove that

    the organization should have known better than to grant certification;

    the organization should have known that its mistake could result in the injury; and

    the injured party was justified in relying on the certification as a guarantee of competence.

There are very few of these types of lawsuits. The article discusses lawsuits that have been filed.

Among those that have arisen, several have held that the organization is not liable in the case of products when it did not manufacture the product that caused the injury and did not exercise control over the manufacturer. Nevertheless, it is clear that liability may be found when certification is negligently granted or maintained. The deciding factor is the degree of control that can be shown that the standard-setting program exercised-or should have exercised-over the product or professional.

As the article points out, lawsuits against trade associations are rare, however, if they do occur, they can be devastating.

See Certification and the Law

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Another trade associations confuses marketing and law: if you don’t understand the legal meaning of a word don’t use it like you do

ATTA article promotes goals for guides worldwide by calling them standards which in the US are the legally lowest possible acceptable level of acting.

The Adventure Travel Trade Association recently posted an article showing their research indicated that no standards existed for guides. Those standards were promoted by the association as needed to promote quality.

We view standards as critical to the future of the adventure travel industry’s success. As it is growing radically in participation numbers, it’s key that the operators expanding and joining the industry be of the best quality.

Their research is slightly flawed. Several states have laws regarding guiding, Colorado, West Virginia, Montana and California. Furthermore, the UIAA control and create guide standards in Europe, the International Climbing and Mountaineering Federation. In Europe, these guide standards are the law in some countries.

The person who promoted the idea for the ATTA gave reasons for the need for standards.

“Why do we need a more universal standard?” asked Moore, “Because the adventure travel sector is growing, because tour operators around the world are demanding it, and because destinations need it to legitimately promote adventure activities”

The idea is to create standards in a proposed group in five areas. Those areas include medical care and technical knowledge.

Based on the article clearly the ATTA is attempting to create qualifications for being a good guide. The unanswered question is, is this being done for safety reasons or for marketing reasons?

No matter the reason, the attempt will create legal problems. Legally, standards are the proof of the poorest quality not the best. A legal standard is the lowest acceptable level of care. If you fall below the legal standard, you have breached a duty of care you may owe to someone. Three examples of this are:

New Jersey Model Jury Instructions state:

5.10A            NEGLIGENCE AND ORDINARY CARE – GENERAL

To summarize, every person is required to exercise the foresight, prudence and caution which a reasonably prudent person would exercise under the same or similar circumstances.  Negligence then is a departure from that standard of care.

The Restatement of Torts is a compendium of the law.

Restatement Second of Torts, section 282, defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”

Colorado Jury Instructions, the law given to a jury when they go to the jury room to make their decisions about a case defines standard as:

CJI-Civ. 9:9 (CLE Ed. 2009)

Jury instructions define “standard of care” as “a duty to use that degree of care which a person of similar age, experience and intelligence would ordinarily use under the same or similar circumstances.”

If you fall below the standard of care and there is an injury you have breached a duty of care to a guest. You are on your way to helping the injured guest prove you are negligent.

Remember negligence is:

·         Duty

·         Breach of that Duty

·         Injury proximately caused by the Breach of Duty

·         Damages

In order to determine if there was a breach of a duty, the jury must determine the standard of care which the defendant fell below. If a trade association lists the requirements for the standard of care, puts them on the Internet or in a book, then the association has helped put its members in a courtroom. The plaintiff instead of struggling to establish the care was below the acceptable level need only to refer to the trade association as proof of the association member’s negligence.

Standards are Not Goals or Minimum Levels of Knowledge or Skill

It is obvious from the article that the association believes the standards will be goals to which its membership will strive for its guides to attain. You can probably post on your door or website that your guides meet the standards as established by your trade association. If that happens, then no matter how much the word safety is thrown out there for proof of the reasoning, the actual reasoning is a marketing program.

Either one will still sink a member.

In effect, you are handing the attorney for an injured guest the keys to open your bank account or insurance policy and take out money by creating or having an association create standards for your industry.

If you want actual examples of this look at the Climbing Wall Association or the Association of Experiential Education. The Climbing Wall Association changed their standards to best practices, and the AEE is about gone. Is the AEE having problems a result of their “standards?” I don’t know. I do know that both organizations were big in creating standards, and their members were sued a lot. See Payouts in Outdoor Recreation

If you don’t have the time or ability or your standards are beat to a pulp in a courtroom then you starting writing meaningless crap for standards. “You should have adequate guides for the number of guests in your group.” That statement has no value and thankfully brings nothing to the courtroom, so why kill a tree by creating it?

Besides can you create one set of standards that work worldwide let along across state lines?

A medical standard is the easiest to use as an example. A standard is created based on US or UK realities. Advanced professional first aid care (EMS) is available within roughly a four-hour window. Your guides are trained in first aid based on that four-hour window.

These standards are then applied to an area where there is no EMS. Transportation to a hospital may take days, and the hospital may not come close to the idea an American may visualize when they think of hospitals.

If a US guest is injured in that area of the world will the standard apply? Yes, you agreed to the standard or the association created the standard. If nothing else the jury will see the standard as what they should use to measure the care the injured guest received.

Are you going to argue to a jury that the standards not to apply because you took the US or EU client to a third-world country? Then the jury may look at you and determine either you should have done something to ensure the safety, which you did not, or you should not have gone there. Why, because you can’t meet the standard of care, your organization created.

Look at a simple cut. On a mountain in Nepal, you would immediately stop the bleeding and bandage the wound. In some jungles of South America or South-East Asia, you may want the wound to bleed a little to help clean the wound of any bacteria or other nasty’s that entered through the cut.

How do you write the standard for Kilimanjaro where the first two days are hiking through a jungle, and the next days are spent on the mountain?

The easiest example was the classic mistake of the AEE’s first set of standards. The standards stated you must pee 100 yards from any water. In the Southwest on river trips, this may get you fined by the federal agency managing the river you are rafting. There you pee in the river. What do you do if your standard violates state or federal law? What if your standard violates a religion?

Time and Upkeep

The biggest issue with standards is upkeep. It takes months, sometimes years to create standards, how do you keep them up to date? You have navigated your way through the difference requirements of different countries, trips and laws and then a law changes, a technique improves or better first aid care becomes available.

How do you go back and re-write the standard? When do you re-write the standard? How do you communicate the new standard? How do you convince your members to change to the new standard after they have spent time training their employees on the old standard and invested money in meeting it?

If you are using the old standard after a new standard comes out do you have a grace period? (No, this was a trick question.)

Just create great ideas. Educate members and guests on what to look for in a good guide. Provide education so guides can get better.

Don’t hang a noose around your member’s necks and call it marketing.

See ATTA Advances Conversation on Adventure Guide Qualification and Performance Standards

For more articles on this topic see:

If you mix up your language, you will be held to the wrong standard in court

Marketing is marketing and Risk Management is not marketing

Can a Standard Impeded Inventions?

If you mix up your language, you will be held to the wrong standard in court

If your organization says you do something and you are a member of the organization you better do it or be able to explain why you did not

Words: You cannot change a legal definition

For articles on Association Standards have been used to sue members see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release

Plaintiff uses standards of ACCT to cost defendant $4.7 million

So if you write standards, you can, then use them to make money when someone sues your competitors

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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

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ANSI, ASTM, PRCA, ACCT & NSAA a mess of acronyms that are fighting each other, taking your industry down and wasting money.

 How much money could have been put into promoting the industry,educating the members and creating great opportunities? Millions I bet.

 The PRCA, (Professional Ropes Course Association) recently announced that they had received approval from ANSI (American National Standards Institute) for its ropes or challenge course standards. The ACCT (Association for Challenge Course Technology) has appealed the issuance of the approval. (See ANSI/PRCA American National Standard).Wasting more time and money, in my opinion.

 In the meantime, the NSAA (National Ski Area Association) received ASTM (American Society of Testing and Materials) approval for their standards. See ASTM Committee Approves Standard For Aerial Adventure Courses

 I have no horses in this race; I have nothing to gain and more to lose with these comments. However, someone has to put it out there again, because the amount of money being wasted is ridiculous. So here goes…..again. (For a prior commentary about this feud see Stop Feuding, I doubt, move forward anyway; I think you can.)

 

 What’s it all mean?

First the “standards” granting organizations.

 ANSI “allows” organizations that meet its requirements to become standards granting organizations. One such organization is the ASTM. However, just because ASTM is granted the “opportunity” to create standards under the ANSI banner it does not mean that ANSI standards are better, more important or more controlling than ASTM.

 ACCT was started 19 years ago to write standards. However, in my opinion, it was more of a good buddy club and the creation of the standards did not follow any known or legally acceptable way of creating them. PRCA was started in 2003 because ACCT would not let them be the “whatever name” to do something with ropes courses or something. Honestly, I’m not 100% clear on this, and I don’t really care.

NSAA is 52 years old and has been working with ANSI and ASTM for decades. The standards for operating ski lifts are ANSI standards and the standards for the rest of the ski industry such as skis, bindings, etc., are ASTM standards. NSAA has one employee who knows more about ANSI and ASTM than I would ever want to know, and consequently, they are fast efficient and done right.

I am a member of the ASTM and on the standards committee for ropes courses, but not active and have not voted for any of the NSAAASTM, standards.

Still with me or have all the acronyms done you in.

Current Status

Right now, there are two organizations that have created standards for the ropes’ course industry, PRCA and NSAAthat follow the procedures and practice’s generally accepted in court for proof of standards by an organization. NSAA has opted to write its standards through the ASTM and the PRCA through ANSI.

ACCT is left out of the mix right now, so that organization is fighting PRCA’s ANSI standards. However, what I find comical, and indicative of the reasons for much of the wasted money in the industry, the ACCT has ignored the NSAA. (PRCA also for that matter.)

Speculation here, but don’t you think that if ACCT seriously thought only its standards were acceptable they would be appealing the NSAA’s standards created under the ASTM.

This leads me to believe that the appeal of the PRCA’s ANSI standards has nothing to do with the standards, just with the PRCA. (This is the third appeal of the PRCA’s ANSI standards; the ACCT lost the first two.)

By that I mean there is more bad blood here than in a blood bank with no power for a month.

So Legally what does that Mean?

Standards are the lowest acceptable level of doing something, which is presented in court to prove someone either met the standard or did not meet the standard of care. The standard of care is the measurement against which the jury determines whether you had a duty and then breached that duty to someone.

If you own a ropes course and someone is injured on the ropes course, the plaintiff now has several different ways to prove that you were negligent (breached the standard of care). Meaning your ropes course was not built correctly, or you operated the course incorrectly.)

First, there are the ACCT standards; however, those can easily be ignored at this point because they have not been approved by either the ANSI or the ASTM. The ACCT standards are getting better, I’ve been told, but basically, they were created in a way that creates credibility issues. That does not mean that they can’t be a way to prove you are negligent.

So now the plaintiff can argue that you failed to meet the PRCA or NSAA standards. If there is a conflict between the two, then the plaintiff has found the stick to beat more money out of you and your insurance company. (And the last thing this industry needs is a way to give more money away. (See: Payouts in Outdoor Recreation.)

Legal Advice (worth what you pay for it)

If you came to me and asked for advice about this situation this is what I recommend.

1.   Today, get a copy of the PRCA and NSAA (ANSI and ASTM) standards and make sure you meet those standards. Yes, both sets. If there is a conflict between the two, justify why you have adopted one over the other in writing now, prior to a problem.

2.   Every year have someone new come see your course. They don’t have to have some designation on their wall, unless it says architect or engineer (see below!). They should have experience to look at your course and your operation and make sure you are not making mistakes. Maybe trade off. You go to their course, and they come to your course.

a.   Don’t have them give you a report, which is just proof you are negligent.

b.   Don’t tell them why you do something, unless they ask.

c.   Listen, listen to everything they suggest, ask questions and then see what you need to do.

3.   Every couple of years have an engineer, architect, or contractor came out and look at your course. These are the people who know how courses should be built and have the education and experience to make sure it was built correctly and is still holding together.

a.   Someone with 12 years in the industry may be able to tell you the testing strength of a bolt and whether the bolt and whatever it is attached to are working still. However, that knowledge is defeated with a degree from a college that says engineer or architect.

Pay attention, (If nothing else for the laughs.) and make sure you know what is going on because you as a ropes course owner or manager are the person that is going to take the beatings and suffer the most when the organizations created to support you spend your money fighting each other.

Good luck.

If nothing else I should get a plug for explaining all the acronyms in the industry!

For more articles on Ropes Courses see:

 $400,000 challenge course settlement for shattered ankle     http://rec-law.us/1lk77Q7

 Architects, Engineers and Recreation, we need the first two, to be successful in the second     http://rec-law.us/1gOSNeT

 Assumption of the risk is used to defeat a claim for injuries on a ropes course       http://rec-law.us/SDZlBt

 Based on the article yes there was going to be a lawsuit         http://rec-law.us/16JD0p3

 Plaintiff raised argument in work/team building situation that they were forced to sign release  http://rec-law.us/XiKRug

 Plaintiff uses standards of ACCT to cost defendant $4.7 million       http://rec-law.us/11UdbEn

 Sad, Arizona school insurance no longer covering ropes courses.               http://rec-law.us/1m5AhAN

 The standard of care for a ropes or challenge course changes based on who is running it and who is using it (30)                                                                                       http://rec-law.us/L2tupe

 When did journalism turn from telling a good factual story to trying to place blame for an accident?            http://rec-law.us/1cNrxMv

 What do you think? Leave a comment.

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

 Copyright 2014 Recreation Law (720) 334-8529

 

 

 

 

Call or Email me if you need legal services around these issues.

 Email: Rec-law@recreation-law.com

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

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Every legal problem does not have to have a legal solution. Sometimes you can just think!

Flag of the Red Cross Suomi: Punaisen Ristin l...

Damned if you do, Damned if you don’t really means you need to think

harder. Don’t make a rule or requirement; create a solution, solve the problem. Incentivize your employees to get training, advanced first aid training, and you avoid the legal problems and create a better work environment. Make a rule live and die by it. Provide training, incentive’s hire right and you don’t need the rule.

An article was posted recently about how outfitters and guides are damned if they do and damned if they don’t.  The issue was whether the outfitter should require their employee/guides to have first aid training. Legally, the answer was a mixed bag; whatever decision you the outfitter made would both increase and decrease your risk. The article was 100% correct………legally.

However, that is not the end of the discussion (it was the end of the article). There are several ways you could have guides who have first aid training without making a rule.

1.   The easiest way is to hire guides with first aid training. It does not have to be a requirement; it is just something you look for in an employee.

2.   You could provide incentives to your employees to go get first aid training. You could provide paid study time, study help or even pay for successfully passing a first aid training course. All are relatively cheap, provide a great benefit to both the guide and the employee, provide your guests with first aid trained guides and not put your neck in a noose.

3.   You can pay guides more who are first aid trained. Simply, the more training you have the more money you can make. Basic first aid provider with an eight-hour card is paid less than an EMT.

4.   You can make first aid training a requirement for promotions or pay raises. If you say that your chances of getting a pay raise or a promotion is greater with first aid training do you think your employees will go get trained?

5.   You can do the training yourself. One ski area I worked at became an EMT instructional organization and twice a week provided free EMT classes to its employees. By the end of the ski season, the number of EMT’s doubled on the ski patrol.

You can take a Red Cross Instructor course and the required first aid courses and quite soon become a Red Cross first aid instructor.

Teaching your guide’s first aid is the best first aid training your guests could ever hope for. Your guides will be trained in the problems your business sees. They will be trained with the equipment you carry and use. (I can’t tell you how many times I’ve come across a problem and dug through someone else’s first-aid kit hoping they had a particular item.)

English: First aid training dummies.

English: First aid training dummies. (Photo credit: Wikipedia)

Your guides trained by you in the real problems they may face with the equipment they will be

using.

Here are five simple solutions to the problem. All solve the problem without creating a damned if you do, damned if you don’t situation. More importantly you have created an incentive in your employees without making rules, to help your employees and your business get better!

Do Something

Remember Marketing makes promises that Risk Management has to pay for? Man times outfitters advertise the first aid training of their guides; that is Marketing. What if you have made the promise that your guides do have first aid training? What if they don’t?

An example of how that could occur?

You advertise that each trip will have at least one EMT on the trip. The trip has four guides; one EMT and three basic first aiders.  Halfway through the trip the EMT is evacuated. The trip can go on with three guides. However, what is going to have if someone is injured after the EMT has left the trip?

Have you not broken one of your own marketing rules? Have you not breached the standard of care you advertised to your guests?

You can always answer your quest’s questions. “Yes, we try to have an EMT on every trip, and all of our guides have first aid training.” Answering a question is not something on your website or brochure that will come back to haunt you.

Solve the problem; don’t legally put yourself in a box to become a target.

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So if you write standards, you can, then use them to make money when someone sues your competitors.

I’m sort of speechless (but I can still type) about this whole thing. The amount of money lost in the lawsuit, the way the lawsuit was lost and now this article. The expert witness for the plaintiff seems not to be interested in protecting the industry.

This article describes a tragedy. A climber failed to clip into an auto belay. At the top of the climb she let go, falling to her death. What is the interesting, the article is not the results of the investigation into her death, it is the statements by the “expert” who is quoted.

“It is a well-known problem in the industry,” said [expert], who is a climbing gym owner in Virginia. He helped write industry safety standards, and provide expert witness testimony for people who are injured in gym accidents.

“My opinion is, yes, a gym has some responsibility to make sure that you’re warned and protected to some degree from yourself,” Hague said.

Maybe he was quoted wrong? However, I doubt it. He was an expert for the plaintiff in Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171 which cost the defendant $4.7 million. I wrote about this case in Plaintiff uses standards of ACCT to cost defendant $4.7 million.

What is going to happen if someone is injured in his gym? Do you believe any other gym owners will line up to testify about any breach of standards?

The expert may be correct about his assessment on whether the standards are breached. However, there are a lot of adages about messing around in your own industry.

His statement about the gym having a responsibility to make sure that you’re warned and protected to some degree from yourself……really? Maybe I don’t want you to protect me?

So how do you know that the person helping you write standards is not there to sue you over the standards that are being written? It happens. The playground industry has created standards so tough and expensive to meet it is cheaper to bull doze a playground than to meet the standards. See Playgrounds will be flat soon. However, that could be better for the kids. See An example of adults and money getting in the way of kids has fun.

This is another way that writing standards comes back to haunt you. You create experts who can then show that you are liable.

See Human error blamed for Grapevine climbing wall death

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If you mix up your language, you will be held to the wrong standard in court

Best practices are not standards

A little piece popped up on an association website to try to convince people to buy into the association standards. Two of the statements, instead of solving problems as the piece was trying to do, will guaranty that members lose lawsuits. The statements that were posted were:

The media calls and asks what set of best practices/standards my camp follows.

I realize it is the professional standard of my profession.

Standards in court are the lowest acceptable level of doing (or not doing something). If you fall below the standard, then you have breached the duty of care that you owe to your guest. Duty is the first of four steps needed to prove you were negligent.

Best Practices are a good way of doing something, maybe not the absolute, but a very good way. Best practices are what you strive to achieve.

 

clip_image002

Best Practices and Standards are different. Different to the point that one is aimed at achieving the best you can and the other is the minimum that must be achieved.

Best Practices imply that there is more than one way to do something. Standards mean it is the way, usually the only way to do something.

That is how this confusion is going to affect a program that mixes these up and ends up in court. There are two possible outcomes from this mix. You write your standards and label them best practices, or you write best practices and label them as standards.

Problem 1: You write you standards and label them best practices

Someone is injured. This is an odd situation where you probably have not acted at the level you say you would. As an example, your best practices say that you want an average of three adults with every group of eight ten-year  olds. You normally have two adults with a group like that, and the industry standard is one adult with a group of eight ten-year  olds.

If a ten-year-old  is injured you will have to show that you did not meet your best practices, but you probably did not fall below the standard.

Problem 2: You write best practices and label them as standards.

This is simple, no matter what you do, you will not be meeting the minimum acceptable level of doing (or not doing) something. Your standards will always be too high, and any injury will be proof that you have violated your own standards.

You must understand the difference between everything and standards from a legal point of view.

New Jersey Model Jury Instructions state:

5.10A            NEGLIGENCE AND ORDINARY CARE – GENERAL

To summarize, every person is required to exercise the foresight, prudence and caution which a reasonably prudent person would exercise under the same or similar circumstances.  Negligence then is a departure from that standard of care.

Restatement Second of Torts, section 282, defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”

These are just examples and when looking at the specific issues and instructions to be given, the law has much more depth. However, your own words will be used against you in the worst way by the opposing side if you are ever sued.

See ACA Standards Aren’t Important . . .

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If you agree to the rules you have to follow the rules

Sanctioning body said you must do XYZ, which creates a standard of care you will be judged by

McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)

Plaintiff: Arthur Mcdonough and Linda Mcdonough, in their own right and as Parents of Bradley Alan Mcdonough, deceased

Defendant: National Off-Road Bicycle Assn. (NORBA), U.S. Cycling Fed., and Delaware Trail Spinners

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the plaintiff, sent back for trial

 

In this case the deceased was racing in an Off Road [Mountain] Bike Race when he died of dehydration. The lawsuit was started by his parents against the organizations that sanctioned the race, NORBA, the race, and the race course owner. The suit alleged failure of the standards created by the sanctioning organization even though race had agreed to follow the standards.

The decedent died racing in a mountain bike race after being discovered along the race course unconscious. This was the deceased second NORBA race. There were no water or aid stations along the course. However the riders had access to their own water bottles on their bikes.

The plaintiffs argued there was no way for a beginner to access their water bottle on the course because it was so difficult unless they stopped riding. The only water available was what the participants brought with them. No physician, ambulance or emergency medical personnel at the race.

As a sanctioned race, NORBA provided defendant Delaware Trail Spinners the race organizer, with a “Pre-Event Planning Checklist.” In order to host the event the defendant Trail Spinners had to go through the checklist and agree to abide or provide the items on the checklist. The race director for Trail Spinners specifically stated that “there would be an ambulance on site and adequate water or fluids for participants and spectators before, during, and after the race.” NORBA also sends an official who according to the checklist will confirm issues and sign off on the checklist. In this case the NORBA representative did not sign off on the checklist.

To be able to race participants had to sign a one day membership to NORBA and sign a release. The court pointed out that no one explained the release to the participants. The back of the trial membership form said that everyone had to carry 8 ounces of water and that if the race exceeded sixty minutes NORBA would provide water to the race participants.

Before the race began one of the Trail Spinners race organizers, spoke to the 80 to 100 race participants. He told them without a bullhorn or PA system that there was no ambulance on site, but that one could be called if needed. He also told the contestants to be “”careful, . . . take their time” and not to “ride over your head, which means going beyond your ability.” McGroerty also told them to “watch their bodies, make sure they didn’t push themselves too hard because it was hot out.” Finally, he told them that “if they felt dizzy or nauseous, to back off, stay cool and keep from going too hard.”

The deceased was found after a search in an unconscious state off the trail. The friend called 911 from his cell phone and went and got assistance back at the race headquarters.  When he arrived back with two people to help him they started CPR. The deceased bike still had a water bottle with water in it. The deceased died of heat stroke fifteen days later.

Summary of the case

Delaware law, the state where the race was held, was the law applied to this case. The defendants filed a motion for summary judgment based on the release and the defense of primary assumption of the risk. Delaware merged secondary assumption of risk with comparative negligence, however Primary or express (written) assumption of risk is still a defense. The court defined the differences as:

Primary assumption, sometimes referred to as express assumption of risk, “involves the express consent to relieve the defendant of any obligation of care while secondary assumption [of risk] consists of voluntarily encountering a known unreasonable risk which is out of proportion to the advantage gained.”

The court quickly concluded that the summary judgment granted by the lower court should be overturned. The court felt that

…genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race.

The court reviewed the record of the case pointing out every place where the requirements set forth by the sanctioning body, NOBA were not met by the race. (Whether those issues would have made a difference was never discussed.)

The court then shifted and wrote that because it could be argued that the deceased did not understand the release was a waiver of the risks that it was a material fact, which voided the release.

In the present case, plaintiffs assert that a genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race. The court agrees.

The court arrived at this decision by stating the law and then interpreting it differently than all other courts had interpreted the law.

However, for the release to be effective, it must appear that the plaintiff understood the terms of the agreement, or that a reasonable person in his position would have understood the terms.

Thus, the understanding of the parties when the release was executed, in light of all the facts and circumstances, is paramount in determining whether the language is clear and unambiguous.

If you don’t understand what you are signing, then the release was not clear and unambiguous. I know of no other case that has argued that before.

So Now What?

The obvious issue here was the written documentation that required water and first aid and the documentation given to the deceased that stated water would be available where not available. Every race, camp, organization needs to develop a checklist or risk management plan so they can operate. However, as in this case, failing to follow any checklist was enough to lose the defenses of Primary Assumption of the Risk and Release and send your case to trial.

ØIf it is written down and you agree to it, you must follow it.

ØIf it is written down by an organization that you belong to or are sanctioned by, then you must agree to it.

ØIf an organization that you belong to writes a standard, then you must meet the standard!

The court then looked at these facts and was not happy. It then applied the facts in such a way that the court could find the release invalid and send it back for trial.

To see other cases where the defendant lost because they violated their trade associations standard of care see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp                                                                             http://rec-law.us/zmKgoi

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp                                                   http://rec-law.us/y7QlJ3

Marketing Makes Promises that Risk Management (or in this case an insurance policy) must pay for.                                                       http://rec-law.us/14MebM4

Plaintiff uses standards of ACCT to cost defendant $4.7 millionhttp://rec-law.us/11UdbEn

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent                                           http://rec-law.us/wszt7N

To Read other articles about standards see:

Can a Standard Impeded Inventions?                http://rec-law.us/yOcca2

Playgrounds will be flat soon                             http://rec-law.us/zGC4DZ

Staying Current                                                  http://rec-law.us/ArdsVk

Stop Feuding, I doubt, move forward anyway, I think you can.   http://rec-law.us/P763zu

This is how a standard in the industry changes          http://rec-law.us/w76X3K

Words: You cannot change a legal definition    http://rec-law.us/AbJ540

 

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

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McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)

McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)

Arthur Mcdonough and Linda Mcdonough, in their own right and as Parents of Bradley Alan Mcdonough, deceased, and Arthur Mcdonough in his own right and as Administrator of the Estate of Bradley Alan Mcdonough, Plaintiffs, v. National Off-Road Bicycle Assn. (NORBA), U.S. Cycling Fed., and Delaware Trail Spinners, Defendants.

C.A. No. 95-504-SLR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

1997 U.S. Dist. LEXIS 8036

June 2, 1997, Decided

NOTICE: [*1] FOR ELECTRONIC PUBLICATION ONLY

DISPOSITION: Defendants’ motion for summary judgment denied.

COUNSEL: For plaintiffs: Donald Eilhu Evans, Esquire, Wilmington, Delaware. Of Counsel: Edwin F. McCoy, Esquire., Philadelphia, Pennsylvania.

For defendants: Mason E. Turner, Esquire, of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Delaware.

JUDGES: Sue L. Robinson, District Judge

OPINION BY: Sue L. Robinson

OPINION

MEMORANDUM OPINION

Date: June 2, 1997

Wilmington, Delaware

ROBINSON, District Judge

I. INTRODUCTION

This case is a wrongful death/survival action filed as a result of Bradley McDonough’s (“McDonough”) death on August 30, 1993. Plaintiffs are Arthur and Linda McDonough, the parents of the decedent (collectively referred to as “plaintiffs”). Defendants are The National Off-Road Bicycle Association (“NORBA”), United States Cycling Federation (“Federation”), and the Delaware Trail Spinners (“Trail Spinners”). The court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Presently before the court is defendants’ motion for summary judgment. (D.I. 66) For the following reasons, defendants’ motion for summary judgment shall be denied.

II. BACKGROUND

[*2] In the summer of 1993, Bradley McDonough developed an interest in off-road bicycle competition. In the spring or early summer of 1993, McDonough acquired an off-road bike (also known as a mountain bike) and rode with his college friends, Randall Blaker (“Blaker”), Michael Odenwald (“Odenwald”), and Kenny Steidle (“Steidle”). (D.I. 71 at A51-A52) On August 8, 1993, McDonough, Blaker, Odenwald and Steidle participated in a NORBA sanctioned event in Windham, New York (“Windham race”). (D.I. 71 at A51) In all NORBA events, participants are required to obtain a permanent membership or a one-day trial membership. The application for the one-day membership contains a section entitled “Agreement and Release of Liability” (“release”). (D.I. 68 at A3)

On the day of the Windham race, McDonough, along with his friends, paid for a one-day trial membership and signed the release. (D.I. 71 at A 54-55; D.I. 68 at A5) In signing the release, Blaker stated that he did not really read it, but simply skimmed through it. (D.I. 71 at A54) Blaker stated that he assumed it was a release “to some degree and we understood that we were involved in a sport.” (D.I. 71 at A54-A55)

The Windham race course was [*3] basically a two lap course. (D.I. 71 at A56) McDonough and Steidle quit after one lap because they were tired. (D.I. 71 at A56) Blaker, who was behind McDonough and Steidle, also stopped after the first lap since his friends had stopped. (D.I. 71 at A56) Odenwald did not complete the race either, because his bicycle broke. (D.I. 71 at A56) All four friends had water bottles on their bikes during the race. (D.I. 71 at A54)

On August 15, 1993, McDonough and Blaker participated in another NORBA sanctioned event in Delaware, called the C & D Canal Classic (“C & D race”). (D.I. 84 at A109) The C & D race consisted of three race levels: (1) Beginners’; (2) Sport; and (3) Pro/Expert. (D.I. 71 at A22) McDonough and Blaker both entered the Beginners’ level. (D.I. 71 at A23 and A59) The Beginners’ course was a 14 mile course “over the local terrain which included steep and gradual hills, open gravel and dirt roads, and wooded trails.” (D.I. 71 at A23) The Sport and Pro/Expert courses also used the same 14 miles designated for the Beginners’ course. (D.I. 71 at A38)

The Beginners’ course was difficult because of its layout. (D.I. 71 at A38) The terrain on the Beginners’ course made it difficult [*4] for riders to access their own water without stopping. (D.I. 71 at A38) Some areas on the course were smoothed out so that riders could stop or ride slowly and access their water bottles. (D.I. 71 at 38) The course, however, did not have any neutral area where water was given out to the race contestants. (D.I. 71 at A38) The only water the race contestants could drink was the water that they brought themselves. (D.I. 71 at A38) No physician was present at the race. (D.I. 71 at A24) There was neither an ambulance nor emergency medical personnel present at the race site. (D.I. 71 at A23) Denise Dowd (“Dowd”), another participant in the Beginners’ level, stated that the course was “difficult due to the heat and humidity and layout.” (D.I. 71 at A87) Although Dowd is an avid biker and had participated in approximately 20 mountain bike races, it took her over an hour and fifteen minutes to complete the course. (D.I. 71 at A87)

Defendant Trail Spinners, a NORBA club member, received sanctioning from NORBA to promote the C & D race. In order to receive sanctioning, defendant Trail Spinners had to complete a “Pre-Event Planning Checklist” (“Checklist”) provided by NORBA. (D.I. 84 at A109-A110) [*5] The Checklist contains several questions relating to the safety precautions taken for the event. Trail Spinners, through its race director William Bowen (“Bowen”), represented on the Checklist that there would be, inter alia, emergency medical assistance on site and adequate water for the participants and spectators. (D.I. 84 at A110) Bowen specifically represented that there would be an ambulance on site and adequate water or fluids for participants and spectators before, during, and after the race. (D.I. 84 at A110) The Checklist also provided that: “A NORBA Official must be present at your event. The NORBA Official will complete their portion of the checklist before allowing the event to proceed.” (D.I. 84 at A109) The Checklist identifies Elizabeth Small (“Small”) as the NORBA Official. Small, however, did not complete her portion of the Checklist and did not sign it. (D.I. 84 at A110)

When McDonough arrived at the race site, he again paid for a one-day trial membership and signed the release. (D.I. 68 at A7) Blaker also paid for a one-day trial membership and signed the release. (D.I. 71 at A59) No one at the race site explained the documents to the race participants. (D.I. [*6] 71 at A41) The release provides in part:

I acknowledge that cycling is an inherently dangerous sport in which I participate at my own risk and that NORBA is a non-profit corporation formed to advance the sport of cycling, the efforts of which directly benefit me. In consideration of the agreement with NORBA to issue an amateur license to me, hereby on behalf of myself, my heirs, assigns and personal representatives, I release and forever discharge NORBA and the United States Cycling Federation, its employees, agents, members, sponsors, promoters, and affiliates from any and all liability, claim, loss, cost or expense, and waive any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any action or omission to act of any such person or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, in which I may participate as a rider, team member or spectator.

(D.I. 68 at A5) On the back of the trial membership and release certain “Racing Regulations” are set forth. (D.I. 68 at A8). At section 4.6, NORBA recommends that each participant carry “at least [*7] 8 ounces of water.” (D.I. 68 at A8) Section 5.6 provides that neutral water will be provided for any race that exceeds 60 minutes in length. (D.I. 68 at A8)

According to James McGroerty (“McGroerty”), the President, Officer, and Co-Founder of Trail Spinners, it is commonly understood by those who participate in races that they are required to sign the release. (D.I. 71 at A45) McGroerty stated that: “Most of [his] friends who are avid racers look at the form as you are signing this paper basically saying yes, I am doing this race at my own risk on the course. If I get hurt, it’s my own fault. It’s basically the way we look at it when we sign these forms and compete in an event.” (D.I. 71 at A45) Dowd, who also signed the release that day, stated that she understood that the release was intended to protect the defendants from liability. (D.I. 71 at A89) Dowd, however, did not believe that the release was intended to relieve the defendants from providing “common sense safety precautions, particularly on site trained medical personnel with an ambulance.” (D.I. 71 at A89) Dowd stated that she would not have signed the release if she had known there was no medical assistance immediately [*8] available. (D.I. 71 at A89)

Before the start of the race, McGroerty addressed the race contestants from the hood of his car. (D.I. 71 at A38 and A42) He addressed the participants without a bullhorn. (D.I. 71 at A37) There were approximately 80 to 100 total participants in the group that raced with McDonough and Blaker. (D.I. 71 at A37 and A62) McGroerty told the race contestants that there was no ambulance on site, but that one could be called. (D.I. 71 at A42) McGroerty did not specifically warn the participants about heat exhaustion. (D.I. 71 at A42) Instead, McGroerty told the contestants to be “careful, . . . take their time” and not to “ride over your head, which means going beyond your ability.” (D.I. 71 at A42) McGroerty also told them to “watch their bodies, make sure they didn’t push themselves too hard because it was hot out.” (D.I. 71 at A42) Finally, he told them that “if they felt dizzy or nauseous, to back off, stay cool and keep from going too hard.” (D.I. 71 at A42) McGroerty did not get any questions after he addressed the participants. (D.I. 71 at A37) McGroerty testified that he does not have Red Cross, CPR or EMT certification of any kind. (D.I. 71 at A43) He [*9] also does not know the signs of exertional heat stroke. (D.I. 71 at A43)

At approximately 9:00 a.m., McDonough and Blaker left the starting line with other contestants. (D.I. 71 at A23 and A62) Both McDonough and Blaker had brought water bottles with them. (D.I. 71 at A61) The temperature on that day was “extremely hot [] with high humidity.” (D.I. 71 at A85) Although McDonough and Blaker began the race together, they were separated because Blaker had a flat tire. (D.I. 71 at A63) After Blaker changed his flat tire, he continued in the race and eventually completed the course. (D.I. 71 at A64) McDonough, however, did not. (D.I. 71 at A64)

McGroerty found McDonough when he went to investigate whether some participants had accidently or deliberately missed the course markings. (D.I. 71 at A44) McGroerty first saw McDonough’s bike. As he approached the bike, he saw McDonough who was about five or six feet from his bike. (D.I. 71 at A44) According to McGroerty, other participants would not have seen McDonough since he was off to the side of the course, but could have seen his bike. (D.I. 71 at A44)

When McGroerty found McDonough, he was on the ground lying on his side and his breathing [*10] was heavy and labored. (D.I. 71 at A44) McDonough appeared to have trouble breathing and was not responsive. (D.I. 71 at A44) According to McGroerty, McDonough appeared to be unconscious. (D.I. 71 at A44) Based on these observations, McGroerty called 911 from his cellular phone. (D.I. 71 at A44) After calling 911, McGroerty went to the start/finish area and sought assistance. (D.I. 71 at A42 and A87) He led two people back to where McDonough was found and they administered CPR until an ambulance arrived. (D.I. 71 at A42 and A87-A88) According to Dowd, one of the two people who administered CPR, no one gave McDonough any water before the ambulance arrived because no water was provided. (D.I. 71 at A88) Blaker, however, testified that when McDonough’s bike was brought back from where McDonough had been found, it still had a water bottle attached to it that was half full. (D.I. 71 at A65)

Dowd stated that the race was “generally disorganized” and that there was a lot of confusion. (D.I. 71 at A86) According to Dowd, the race was delayed for 30 minutes and no maps of the course were given to the participants or posted. (D.I. 71 at A87-A88) Small, the NORBA official on duty at the race, [*11] reported to NORBA that the “race director [Bowen] was ‘light’ in the emergency medical area.” (D.I. 84 at A110) Small also reported that no course maps were available, but that the course was adequately marked. (D.I. 84 at A110) Overall, Small stated that mistakes were made since no water was provided, no emergency medical personnel were on site, and the course was too long. (D.I. 84 at A114)

Dowd stated that it took her about 5 minutes to reach McDonough and that the ambulance arrived 10 to 15 minutes after she began administering CPR. (D.I. 71 at A88) When the ambulance arrived, McDonough was treated by paramedics and helicoptered to the Medical Center of Delaware in Christiana, Delaware. (D.I. 71 at A23) Although hospitalized, McDonough died of heat stroke on August 30, 1993. (D.I. 70 at 1)

III. DISCUSSION

1. Summary Judgment Standard

[HN1] Summary judgment should be granted only if a court concludes that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). [HN2] The moving party bears the burden of proving that no genuine issue of material fact is in dispute. Matsushita Elec. Indus. [*12] Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Once the moving party has carried its initial burden, the nonmoving party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Id. at 587. “Facts that could alter the outcome are ‘material,’ and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.” Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995) (citations omitted). If the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The mere existence of some evidence in support of the nonmoving party will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that factual issue. Anderson v. Liberty Lobby, [*13] Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). This court, however, must “view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995) (citation omitted).

2. Express or Primary Assumption of Risk

[HN3] Since Delaware adopted a comparative negligence statute, 1 it has become necessary to distinguish between primary and secondary assumption of the risk. Koutoufaris v. Dick, 604 A.2d 390, 397 (Del. 1992); cf. Bib v. Merlonghi, 252 A.2d 548, 550 (Del. 1969) Primary assumption, sometimes referred to as express assumption of risk, “involves the express consent to relieve the defendant of any obligation of care while secondary assumption [of risk] consists of voluntarily encountering a known unreasonable risk which is out of proportion to the advantage gained.” Koutoufaris, 604 A.2d at 397-398. With the adoption of the comparative negligence statute in Delaware, secondary assumption of risk became “totally subsumed within comparative negligence.” Id. at 398. Primary assumption of risk, however, still exists as [*14] a complete bar to recovery. See id. (stating that primary assumption of risk “might well constitute a complete bar to recover, as a matter of law, even in a comparative negligence jurisdiction”) (citation omitted); see also Patton v. Simone, 626 A.2d 844, 852 (Del. Super. Ct. 1992); see also Staats v. Lawrence, 576 A.2d 663, 668 (Del. Super. Ct. 1990).

1 In 1984, Delaware adopted a modified comparative negligence statute, which allows a jury to apportion liability where both parties are negligent only if the plaintiff’s negligence is less than fifty percent. 10 Del. C. § 8132 (1984).

Defendants argue that plaintiffs’ action is barred, as a matter of law, because McDonough expressly assumed the risks inherent in an off-road bicycle race when he signed the release. Defendants contend that the release, in plain and unambiguous language, is intended to protect defendants from all liability arising out of any hazards encountered in an off-road bike race. (D.I. 78 at 9) Defendants assert that McDonough, [*15] as a college graduate and former participant in a NORBA event, must have had an understanding of the these inherent dangers when he signed the release. As further support, defendants note that McDonough signed an identical Agreement and Release just one week prior to the C & D race. Based on these facts, defendants assert that summary judgment is appropriate.

In considering the facts and making all reasonable inferences in plaintiffs’ favor, the court finds to the contrary. [HN4] A release will not be set aside if the language is clear and unambiguous. Hallman v. Dover Downs, Inc., 1986 U.S. Dist. LEXIS 15708, Civ. A. No. 85-618 CMW, 1986 WL 535 at *2 (D. Del., Dec. 31, 1986) (citing Chakov v. Outboard Marine Corp., 429 A.2d 984, 985 (Del. 1981); see Bennett v. United States Cycling Federation, 193 Cal. App. 3d 1485, 239 Cal. Rptr. 55, 58 (Cal. Ct. App. 1987). [HN5] Where the language of a release is ambiguous, it must be construed strongly against the party who drafted it. Hallman, 1986 WL 535 at *2; Bennett, 239 Cal. Rptr. at 58. [HN6] In an express agreement to assume a risk, a plaintiff may undertake to assume all risks of a particular relation or situation, whether they are known or unknown to him. [*16] Restatement (Second) of Torts, § 496D, cmt. a, (1965). However, for the release to be effective, it must appear that the plaintiff understood the terms of the agreement, or that a reasonable person in his position would have understood the terms. Bennett, 239 Cal. Rptr. at 58. As the Bennett court stated, “there is little doubt that a subscriber of a bicycle release . . . must be held to have waived any hazards relating to bicycle racing that are obvious or that might reasonably have been foreseen.” Id. These hazards include “collisions with other riders, negligently maintained equipment, bicycles which were unfit for racing but nevertheless passed by organizers, [and] bad road surfaces . . . .” Id. Thus, the understanding of the parties when the release was executed, in light of all the facts and circumstances, is paramount in determining whether the language is clear and unambiguous. Hallman, 1986 WL 535 at *2. The evidence must establish that the parties intended the release to apply to the particular conduct of the defendant which has caused the harm. Restatement (Second) of Torts, § 496B, cmt. d, (1965).

In the present case, plaintiffs assert that [*17] a genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race. The court agrees.

IV. CONCLUSION

For the reasons stated above, the court shall deny defendants’ motion for summary judgment. An order will issue consistent with this memorandum opinion.

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Marketing is marketing and Risk Management is not marketing

Every business wants to increase its presence in the community and its business. One way members of the outdoor recreation industry do this is through marketing programs called accreditation.

Accreditation is a process where your business or program has met the necessary requirements that the trade association has created. The accreditation process usually incorporates meeting requirements or in many cases, standards created by the association to gauge whether the business or program should be accredited. If the business or program meets accreditation, then they can advertise that fact to the general public.

Accreditation also has come to mean that once you have achieved a level or completed the requirements and advertised that fact to the general public, the public has the right to expect that level of accomplishment from at all times. That is where accreditation can be as dangerous as it may be beneficial.

In Lesser v. Camp Wildwood, 282 F. Supp. 2d 139; 2003 U.S. Dist. LEXIS 16170, a camper was injured when the wind blew a branch out of a tree injuring him. The decision is on a motion in liminae. A motion in liminae is a motion where the judge decides what evidence or witnesses will be allowed to testify or in the trial. The plaintiff argues in the motion that the plaintiff will prove the defendant failed to meet the standards of the American Camping Association (ACA). The defendant camp was an accredited member of the ACA.

The accreditation process required the defendant camp to have an emergency plan for severe storms. The plan called for the campers to move as a group to the dining hall. In this case, a storm came up during a firework works display while the campers were at the waterfront. When the campers were told to leave the area and go to their cabins the plaintiff went a different way placing him in a position to be struck by the branch causing his injuries.

The court in the published decision stated that because the defendant camp “repeatedly claimed that they have complied with ACA standards, and that ACA camps are safer, then” other non-ACA camps. It was important for the plaintiff’s expert to prove that the camp had not followed the ACA standards.

The reason why this case is disturbing is because it set a level of care that was much higher than required under New York law. The defendant camp was located in New York, which is also where the suit was filed. Under New York law, the standard of care for camps was:

schools, camps or similar institutions have a duty to exercise the same degree of care as would a reasonably prudent parent under similar circumstances.”

“…camps, like schools, “are not insurers of safety . . . for they cannot reasonably be expected to continuously supervise and control all movements and activities of students.”

“Organizers of recreational events “owe a duty to exercise only reasonable care to protect participants ‘from injuries arising out of unassumed, concealed or unreasonably increased risks”

“…constant supervision is neither feasible nor desirable because one of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy”).”

Because the camp was accredited and held itself out to a higher standard, the court was going to allow testimony that the camp had failed to meet that standard of care that it advertised it met. The camp through its marketing program raised the standard it must meet in court from reasonable supervision and control to constant supervision and control. But for accreditation, the camp would not have been in the position in the lawsuit it found itself.

The definition of accreditation by the Council on Accreditation (COA) is a formal evaluation of an organization against accepted criteria or standards. (http://www.coastandards.org/glossary.php) The COA does not define “standard.” Even if the COA did define standard or if the standards written by the trade association defined the term “standard,” the definition will probably not matter in a court.

The standard of care is the level of acting or not acting that determines if a duty was breached to an injured person. If the duty existed, if the duty was then breached, if there were an injury and damages, a direct result of the breach of duty, then negligence has been proven. Violating a standard of care is then the first step the plaintiff must prove to recover damages from the defendant.

The vast majorities of the lawsuits for injuries are torts, which require the proof of negligence. If the defendants through their marketing program help the plaintiffs prove their cases in lawsuits against them is the marketing program of real value in the long run.

Jury instructions define “standard of care” as “a duty to use that degree of care which a person of similar age, experience and intelligence would ordinarily use under the same or similar circumstances.[1] A reasonable person is not an expert or a committee. It is one person in that situation at that time. That allows the defendant to argue and the jury to understand that no one is perfect and that what may be required in that situation is not the same as you would expect if the world was perfect.

Standards that lead to accreditation create unreasonable expectations that cannot be met or exceed what is legally required on the part of defendants. Lesser is a perfect example of that issue.

How does the jury determine the industry standard? It is presented to the jury by both sides of the litigation. Both the plaintiff and the defendant have the opportunity to argue the appropriate level of care or standard for the situation. This is normally accomplished through expert witnesses. Expert witnesses are people who study or work in the industry that can testify to the standard of care. Although this may seem archaic or costly, it gives the defendant a fighting chance. There is the opportunity to prove that the defendant did not act below the standard of care. It is then up to the jury to apply the facts, decide on the standard and determine if the defendant injured the plaintiff.

In Kearns v. Upper Columbia Conference of Seventh-Day Adventists, CV OC 0500538 4th District, Idaho, the plaintiff hired an expert witness who was an ACA Accreditation Visitor. An ACA Accreditation Visitor is hired by the camp to come to the camp and review the camp to see if the camp qualifies for accreditation. The visitor’s expert witness report listed numerous standards created by the ACA that the defendant camp had violated. The standards the defendant camp allegedly violated in several cases had nothing to do with the claims of the plaintiff. Yet the ACA standards were used to prove the defendant camp had acted in a way that was below the standard of care for a camp.[2]

In Kearns, a person trained by the trade association in its standards, and accreditation process was hired to help defeat a member of the trade association. That was done using the standards created by the association to show the defendant camp was negligent.

Accreditation is not bad if it is understood and used the way it was envisioned: to show that educational institutions have met the minimum requirements to be a good college or university. Accreditation for colleges and universities looks at the facilities, the professors and their degrees and the ratio of professors to students. It evaluates whether or not the college will do a good job of educating students. The accreditation process is not created in a way that a college or university can be held liable to a student if the student is injured on camps. Accreditation done properly does not create a standard of care that a person will be held to in a lawsuit.

In July 1998, Adam Dzialo was permanently injured when he suffered a near drowning in the Deerfield River. He was part of a program fun by the Greenfield Community College. The college had recently undergone an accreditation review by the Association of Environmental Education (AEE). One of the issues the review highlighted was the college did not employ enough instructors in its paddlesports programs. This lack of instructors was a major issue in the lawsuit by the plaintiff to argue the college had not met the standard of care to the plaintiff. The suit settled eventually, but not before litigation was dismissed in state court and filed in federal court and the resulting several years of fees, costs and emotion.

To achieve accreditation, the trade associations have written standards that must be met by the program or business. Standards are the lowest allowable level of acting or not acting that a jury will allow a defendant to do or not do. That means if you act below the standard you have breached a duty of care, if you act above a standard, you have not breached a duty of care. Standards are difficult to write because that level of care changes over time, by location, and by the plaintiff. Standards then are written broadly but interpreted narrowly by the courts.

Standards are also written for all circumstances. Nothing is ever the same, even on paper. The standard of care owed by a program to a five-year-old is different from the standard of care owed to a sixteen-year-old.  The standard of care owed when taking someone down a class, I river is different than the standard of care of taking someone down a Class IV river. However, we all know that river ratings are very subjective.

Think about any outdoor recreation trip or program you have participated in. Has it ever gone exactly as planned? Has everyone shown up exactly on time, arrived at the start when planned and carried all the right gear, and not too much gear? Has the weather always been what was forecasted and never been a problem Have all the participants had a great time, no bad days and no injuries. When you can consistently run your trips exactly as planned then you can apply standards to your trips because you know exactly how things are going to work. Nothing will go wrong that may lower the way the trip is run below the standard of care.

Additionally, the standards created by associations for its members tend to be goals rather than the minimum acceptable level of care. Consider the issues when a defendant is held to a goal as the minimal acceptable level of care in a court. There is no way that any defendant can meet a goal, when sometimes they cannot meet the minimal level of care.

Standards also change. Look at the progression of alpine skis over the past ten years. At one time, a ski 215 centimeters long and slightly wider than your foot was the standard found in most ski shops. Today the longest ski that can be found is 196 centimeters, and some look like water skis rather than skis to be used on snow. Skis used to arc with only the tips and tails touching when the basis of the skis are put together. Now the only part so the skis that touch is the area under the binding and the tips separate by inches. If the ski industry wrote standards for how ski areas are to operate, how fast could they react and update standards for skis that change yearly.

And what if the standard is wrong? Will the trade association show up in court and say they made a mistake the standard is incorrect. A standard that is wrong is still a standard. The plaintiff will argue it is correct, and the defendant will be forced to defend against a standard that they could not meet and is incorrect to begin with.

Research on standards means nothing in court. It does not matter if the standards are written with the best intention, and they are or with the best goals for the members of the association. Courtrooms are not places to test ideas or raise expectations of potential guests. Courtrooms are where decisions about the future of your business or program are made. You do not want some third party group of people, five years in the past, making that decision for you.

Standards don’t allow for experimentation or growth. If the standard does not allow you to try something new or exceeds the standard you are stuck in the past. Many standards soon become the Twilight Zone of an industry because they lag behind the new and better.

Why is accreditation being promoted in an industry? Money. Trade associations are paid a substantial amount of money so that their membership can post their seal of approval in their marketing. This income is a substantial part of the budget, and they will be hard-pressed to replace it. A trade association, that has created standards, is than caught in a financial bind. They must support their standards to maintain their current financial situation.

Litigation is emotional draining, very costly and takes years; and that is if you win. Society seems to be heading towards a situation where any injury should be the responsibility of someone else. If you make that easy for someone to sue you or to win the lawsuit, you have lost the battle before you have opened your doors for business.

Standards are written with no intention of being found in courts of law. However, this brief article points to three cases where the standards created by a trade association are used in court against the people the standards were created to help. It does not matter how much research can be found to support the creation of standards when they become the noose around a trade association member’s neck.

If the defendant is faced with a written standard, the plaintiff says they are violating, the expert witness of the defendant has two issues to prove or maybe the defendant must hire more experts. The first is the standards written by the association are not the standard in the industry. The second then is the standard is different.

Proving the trade association did not write standards is difficult. In most cases, it simply becomes an attack on the association showing it is not everything the association says it is. That the association does not represent the majority of people or business in its industry or that the majority of the membership is not accredited. This is an ugly fight.

Marketing is needed by everyone. On top of that we want our business or program to show we are more than good, that we are the best.

It does not matter how great the benefits of accreditation are, if the program is used to prove you negligent in a court of law. Accreditation may bring you more business; however, the cost of that additional business may not be enough to cover the lost time involved in litigation and increased cost of your insurance. Let alone the time and expense you put into meeting the accreditation.

Marketing makes Promises that Risk Management must pay for.

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[1] CJI-Civ. 9:9 (CLE Ed. 2009)

[2] ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp, www.recreation-law.com


Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release

If the industry says you should and calls it a standard you better

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290 (Mass. Sup 2003)

Plaintiff: Derek A. Lautieri

Defendant: Jorun G. Bae

Third Party Defendants: defendants USA Triathlon, Inc., William Fiske d/b/a Fiske Independent Race Management, the Boys and Girls Clubs of Metrowest, Inc.

Plaintiff Claims: negligence and court added gross negligence

Defendant Defenses: Release

Holding: Holding release released defendants who could not be held to gross negligence.

This decision is from a trial court in Massachusetts. It has limited value in Massachusetts and other states.

If you have read many of these articles, you understand that releases do not bar claims for gross negligence. In this case, the release did not bar the claim for gross negligence, even when the plaintiff did not plead gross negligence.

This is a car/bike accident case during a triathlon. The plaintiff was cycling in a triathlon with several other cyclists. The defendant Bae, driver pulled out in front of the cyclists resulting in a collision. The course was not closed to traffic.

The defendant car driver brought in as third party defendants the race organizer, William Fiske d/b/a Fiske Independent Race Management (Fiske), the race charity Boys and Girls Clubs of Metrowest, Inc. (BGC) and the triathlon association sanctioning body USA Triathlon, Inc., (USTA).

The third party defendants were brought in for “contribution.” Contribution is defined in Massachusetts as:

Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom contribution is sought could have been held liable in tort.”

For the defendant, Bae to enable to enforce contribution against the third party defendants she must show that the third party defendants could be held liable at trial in tort. Any defenses available to the third party defendants against the original plaintiff will also be a defense to the contribution claim of the defendant Bae.

Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred.

Fiske was the person who put the triathlon together. Even though Fiske was operating as Fiske Independent Race Management, the court indicated that Fiske was not a corporation or company (LLC). USTA sanctioned the race, including providing liability insurance and standards, according to the court, on how the race should be run.

The defendant Bae argued that the third party defendants should be liable for failing to “a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred.”

The court determined that USTA was:

…the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.

USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.

In that position, USTA created regulations for running triathlons which the court quoted:

2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.

Fiske did not follow any of the guidelines offered by the USTA.

…it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored.

Summary of the case

The defense raised by the third party defendants was “release.” The plaintiff signed a release to join the USTA and receive a license. The plaintiff also signed an application which contained language similar to that of a release when she entered the race.

Under Massachusetts law, the enforceability of a release is a question (issue) of law to be decided by the court. “Massachusetts law favors the enforcement of releases.”

There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted.

Nor does the word negligence have to be found in the release. Releases, like all other states, do not bar claims of gross negligence. Neither the plaintiff nor the defendant complained of any gross negligence. The court, however, stated that even though not pled, gross negligence could be found later against Fiske. If that was the case, then the releases signed by the plaintiff did not bar the claim against Fiske. “While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.” The court found that the actions of Fiske could rise to the level of gross negligence.

The basis of that finding was Fiske did not follow the guidelines or regulations of the governing body, the USTA in running the race. “As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence.”

To some extent, the court must have thought that Fiske’s failure to follow the standards of the USTA was very egregious to raise the issue of gross negligence in the case.

The court quoted the regulations cited above as evidence that what Fiske did when ignoring the industry standards was sufficient to void the release because it raised the possibility that Fiske was grossly negligent.

…it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored.

The court further defined negligence and gross negligence under Massachusetts law.

Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.

Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.”

The court’s justification for not letting Fiske out of the case and for allowing the possibility of a claim for gross negligence was interesting.

While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against the third-party defendants has been made.

Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants.

The court then looked at the allegations against the USTA.

In order for Lautieri to establish that USTA owed him a duty of care at the time the accident occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” or that USTA voluntarily, or for consideration, assumed a duty of care to Lautieri. This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet.

There was no evidence that showed USTA participated or was supposed to participate in the planning, operation, supervision or running of the race. USTA did not even have a representative of USTA attend the race. Consequently, because there was no duty and USTA created no duty to the plaintiff the release barred the claims of the third party defendant.

The court’s discussion of the Boys and Girls Club was shorter.

A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members.

USTA and the Boys and Girls Club were dismissed from the lawsuit.

So Now What?

The “release” or as identified by the court, application, was extremely weak. If the release had identified the course as being an open course, not closed to cars, this might have changed the outcome of the case for Fiske. No matter, the document was too weak not to create problems rather than resolve them in this case.

However, even if the release was stronger, it might not have gotten Fiske out of the case because of the court raised allegations of gross negligence. The USTA created regulations for running a race. By requesting and receiving sanctioning for the race, Fiske knowingly or unknowingly, became burdened or bound by those regulations. The court called them standards, regulations and guidelines throughout the decision, but the simple fact is they were a noose around the third party defendant’s neck.

You cannot look at your industry and not understand the standard of care in the industry or not find and follow the guidelines the industry is creating.

These “regulations” are fairly simple and appear to be commons sense. However, they substantially increase the cost of running an event. Closing a street requires government paperwork, government employees and usually help from law enforcement. All significantly increase the cost of running the event.

However, the regulations more importantly are proof that if an industry association creates regulations, standards, guidelines or rules, they are the standard of care against which members of the same industry will be judged in court.

For more articles on how standards created by an association are used to harm association members see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Plaintiff uses standards of ACCT to cost defendant $4.7 million

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

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Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

Derek A. Lautieri v. Jorun G. Bae 1

1 The Town of Hudson was also named as a third-party defendant in the complaint. Count IV against the Town has been dismissed. Memorandum of Decision, dated June 7, 2002 (Bohn, J.).

01-4078

SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX

17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

October 29, 2003, Decided

October 29, 2003, Filed

DISPOSITION: Third party defendants’ motions for summary judgment allowed in part and denied in part.

JUDGES: [*1] Kenneth J. Fishman, Justice of the Superior Court.

OPINION BY: Kenneth J. Fishman

OPINION

MEMORANDUM OF DECISION AND ORDER ON THIRD-PARTY DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff, Derek A. Lautieri (“Lautieri”), was injured during a triathlon held in Hudson, Massachusetts. Lautieri brought this action against the defendant/third-party plaintiff, Jorun G. Bae (“Bae”), claiming negligence for Bae’s failure to exercise reasonable care in the operation of her motor vehicle. Bae in turn brought an action against third-party defendants USA Triathlon, Inc. (“USAT”) (Count I of Third-Party Complaint), William Fiske (“Fiske”) d/b/a Fiske Independent Race Management (Count II) 2 and the Boys and Girls Clubs of Metrowest, Inc. (“B&G Clubs”) (Count III), seeking contribution in the event that the plaintiff recovers damages for his alleged injuries. 3 Specifically, Bae claims negligence on part of the third-party defendants for failure to provide a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred. This matter is before this Court on the third-party [*2] defendants’ motions for summary judgment as to all counts. For the reasons described below, the third party defendants’ motions are ALLOWED, in part, and DENIED, in part.

2 Bae’s complaint uses the spelling “Fisk” in the caption. As all the parties, including Bae, have since used the spelling “Fiske”, this Court will use the latter spelling.

3 Bae initially also claimed a duty of indemnification, but has since stipulated that no privity of contract existed between himself and any of the third-party defendants, and, therefore, that no right of indemnification exists.

BACKGROUND

On June 4, 2000, Lautieri participated in an organized triathlon, one leg of which was competitive bicycling. Bae, while operating a motor vehicle, came to the intersection of Main Street and Lewis Street in Hudson. Bae stopped, looked to her left, looked to her right, and then looked to her left again for approaching traffic. Seeing no vehicles approaching, Bae proceeded straight through the intersection. Lautieri, [*3] then approaching the intersection with four or five other bicyclists, turned to avoid Bae’s vehicle but did not have sufficient time to prevent a collision. Lautieri suffered significant injuries as a result of the accident.

On May 12, 2000, prior to the race, Lautieri completed and signed a “USA Triathlon Annual Licence Application Waiver.” That waiver contained the following language in the form duplicated below:

I acknowledge that a triathlon or bisport/duathlon event is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss. I HEREBY ASSUME THE RISKS OF PARTICIPATING IN TRIATHLONS OR BISPORT/DUATHLON EVENTS. I certify that I am physically fit and have sufficiently trained for participating in this event(s), and have not been advised against participating by a qualified health professional. I acknowledge that my statements in this AWRL are being accepted by the USAT in consideration for allowing me to become a member in USAT and are being relied upon by USAT and the various race sponsors, organizers and administrators in permitting me to participate in any USAT sanctioned event . . . (b) I AGREE that [*4] prior to participating in an event I will inspect the race course, facilities, equipment and areas to be used and if I believe they are unsafe I will immediately advise the person supervising the event activity or area; (c) I waive, release, AND DISCHARGE for any and all claims, losses or liabilities for death, personal injury, partial or permanent disability, property damage, medical or hospital bills, theft, or damage of any kid, including economic losses, which may in the future arise out of or relate to my participation in or my traveling to and from a USAT sanctioned event, THE FOLLOWING PERSONS OR ENTITIES: USAT, EVENT SPONSORS, RACE DIRECTORS, EVENT PRODUCERS, VOLUNTEERS, ALL STATES, CITIES, COUNTIES, OR LOCALITIES IN WHICH EVENTS OR SEGMENTS OR EVENTS ARE HELD, AND THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS OF ANY OF THE ABOVE, EVEN IF SUCH CLAIMS, LOSSES OR LIABILITIES ARE CAUSED BY THE NEGLIGENT ACTS OF OMISSIONS OF THE PERSONS I AM HEREBY RELEASING OR ARE CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY; (d) I ACKNOWLEDGE that there may be traffic or persons on the course route, and I ASSUME THE RISK OF RUNNING, BIKING, SWIMMING [*5] OR PARTICIPATING IN ANY OTHER EVENT SANCTIONED BY USAT.

(e) I AGREE NOT TO SUE any of the persons or entities mentioned above in paragraph (c) for any of the claims, losses or liabilities that I have waived, released or discharged herein; (f) I INDEMNIFY AND HOLD HARMLESS the persons or entities mentioned above in paragraph (c) for any and all claims made or liabilities assessed against them as a result of my acts or inactions (ii) the actions, inactions or negligence of others including those parties hereby indemnified (iii) the conditions of the facilities, equipment or areas where the event or activity is being conducted (iv) the Competitive Rules (v) any other harm caused by an occurrence related to a USAT event . . .

Prior to the race, Lautieri also completed and signed a “Wet ‘N’ Wild Triathlon Application,” which contained the following language:

In consideration of the entry being accepted, I do hereby forever waive and release Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action, which I at any time acquire as a result of participation in the event for which this entry relates.

[*6] USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races. The subject triathlon was sanctioned by USTA based upon an application submitted by Fiske. On that application, William Fiske is identified as the Race Director. The Boys and Girls Clubs of Metrowest, Inc. provided a number of volunteers for the event.

DISCUSSION

[HN1] A party is entitled to summary judgment, “if pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material facts and that the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c). The burden of the moving party “is not sustained by the mere filing of the summary judgment motion,” but “must be supported by one or more of the materials listed in rule 56(c) . . .” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714, 575 N.E.2d 734, citing Celotex Corp. v. Catrett, 477 U.S. 317, 328, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). That party may satisfy this burden either by submitting affirmative evidence that negates an essential [*7] element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991); Kourouvacilis, 410 Mass. at 716. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment.” Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989), citing O’Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245, 346 N.E.2d 861 (1976).

General Laws c. 231B, § 1, [HN2] provides in pertinent part: “Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom [*8] contribution is sought could have been held liable in tort.” McGrath v. Stanley, 397 Mass. 775, 781, 493 N.E.2d 832 (1986) (emphasis in original). See also, Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 346-50, 446 N.E.2d 1033 (1983); Liberty Mutual Ins. Co. v. Westerlind, 374 Mass. 524, 526, 373 N.E.2d 957 (1978); O’Mara v. H.P. Hood & Sons, Inc., 359 Mass. 235, 238, 268 N.E.2d 685 (1971). 4 Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred. Each third-party defendant will be discussed separately below.

4 In McGrath, where a plaintiff’s failure to comply with the particular jurisdictional requirements of G.L.c. 258, § 4 was held not sufficient to bar a right of contribution, the SJC noted that the “contribution statute is aimed at eliminating the unfairness of allowing a disproportionate share of a plaintiff’s recovery to be borne by one of several joint tortfeasors.” 397 Mass. at 777-78. The third-party defendants in the instant case, however, are not claiming a lack of jurisdiction, but instead that the plaintiff’s signature on certain waivers releases them from all liability. The SJC has approved the denial of the right of contribution in similar cases. See O’Mara, 359 Mass. at 238 (denying contribution to defendant company from the driver of car in which plaintiff was a passenger when company truck hit driver’s car); Liberty Mutual Ins. Co., 374 Mass. at 526 (denying contribution of plaintiff’s employer for work related injury on grounds that the employer’s contributions to workers’ compensation benefits released the employer from all tort claims that might have resulted from the accident).

[*9] A. William Fiske d/b/a/ Fiske Independent Race Management

Fiske argues that he was released from all liability regarding the Wet ‘N’ Wild Triathlon when Lautieri signed the USA Triathlon Annual Licence Application Waiver and the Wet ‘N’ Wild Triathlon Application. [HN3] Whether the waivers signed by the plaintiff are enforceable to bar any claims in tort against Fiske is a question of law to be decide by this Court.

[HN4] “Massachusetts law favors the enforcement of releases.” Sharon v. City of Newton, 437 Mass. 99, 105, 769 N.E.2d 738 (2002). “There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” Id., quoting Schell v. Ford, 270 F.2d 384, 386 (1st Cir. 1959). While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted. Cormier v. Central Massachusetts Chapter of the National Safety Council, 416 Mass. 286, 288, 620 N.E.2d 784 (1993). [*10]

Thus, in Cormier, the SJC upheld summary judgment against a plaintiff who executed a waiver of liability prior to sustaining injuries while riding on a motorcycle safety course. The Court found the waiver sufficient to bar a claim in negligence, even though the word negligence never appeared in the document. Id. at 288. The SJC also rejected the plaintiff’s claim that she believed that she was only relieving the defendant for liability for any accidental injury, not for any injury caused by the defendant’s negligence, holding that her “subjective intent not to release any claim for negligence, does not furnish a basis for avoiding the release on the ground of mistake.” Id. at 289.

Upon examination of the two releases signed by Lautieri prior to the subject triathlon, it is evident that he executed an unambiguous release of the third-party defendant, William Fiske. The USA Triathlon Annual Licence Application Waiver clearly and unambiguously releases “RACE DIRECTORS” from “any and all claims, losses or liabilities . . .” Fiske is listed as the “Race Director” on the 2000 USA Triathlon Event Sanction Application submitted to USAT. Furthermore, [*11] the Wet ‘N’ Wild Triathlon Application releases “Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action . . .” To the extent that Bae argues that the phrase “agents, representatives, assigns and successors” might refer to the phrase “sponsoring organization,” and that Fiske Independent Race Management–while not a legal entity–does not actually refer to William Fiske, individually, such interpretations are not reasonable given the plain meaning of the waiver language. 5 Nevertheless, even if this Court were to hold that the Wet ‘N’ Wild Triathlon Application was sufficiently ambiguous to render the waiver unenforceable, the language of the USA Triathlon Annual Licence Application Waiver is unambiguous and releases Fiske from liability. Thus, Fiske’s motion for summary judgment, as it relates to Bae’s claim of negligence against him, is well founded.

5 William Fiske used the name “Fiske Independent Race Mgt.” and “F.I.R.M” on the 2000 USA Triathlon Event Sanction Application regarding the Wet ‘N’ Wild Triathlon. Since there is no evidence in the record that “Fiske Independent Race Mgt.” or “F.I.R.M” are incorporated entities, or that William Fiske filed a business certificate in Massachusetts under these names, William Fiske is not afforded any legal protection by virtue of the use of these fictional business entities. See Pedersen v. Leahy, 397 Mass. 689, 691, 493 N.E.2d 486 (1986).

[*12] This analysis, however, does not end the matter. [HN5] Both the SJC and the Appeals Court “have noted that releases are effective against liability for ordinary negligence.” Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct 17, 18, 687 N.E.2d 1263 (1997) (emphasis in original), citing Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 551, 209 N.E.2d 329 (1965). In Zavras, the Appeals Court, citing reasons of public policy, held that the owner of a premises at which organized dirt bike races were held did not exempt itself from liability for gross negligence by requiring participants in races to sign a release as a condition of participating. 44 Mass.App.Ct. at 18-19. See also, Restatement (Second) of Contracts § 195 (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy”). The Zavaras court noted that there is “substantial authority . . . [for] the position that while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross [*13] negligence.” 44 Mass.App.Ct. at 19.

The present case is indistinguishable from Zavras. Here, Lautieri signed two valid waivers releasing Fiske, among others, from any and all liability that might arise from his participation in the subject triathlon race. While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.

Thus, for purposes of determining contribution, the question for this Court becomes whether a finder of fact could find Fiske liable to Lautieri for gross negligence. Based on the summary judgment record viewed in a light most favorable to Bae, a genuine issue of material fact exists concerning whether the accident resulted from Fiske’s gross negligence.

[HN6] Gross negligence is defined as “very great negligence, or the absence of slight diligence, or the want of even scant care.” Zavras, 44 Mass.App.Ct. at 20, quoting Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919). 6 As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence. [*14] ” Fidalgo v. Columbus McKinnon Corp., 56 Mass.App.Ct. 176, 184, 775 N.E.2d 803 (2002), citing Poirier v. Plymouth, 374 Mass. 206, 211, 372 N.E.2d 212 (1978); Resendes v. Boston Edison Co., 38 Mass.App.Ct. 344, 358, 648 N.E.2d 757 (1995). Bae has submitted the USAT 2000 Event Sanctioning Guidelines & Requirements as evidence of the negligence of Fiske and the other third-party defendants. In the section entitled “Bike,” the USAT triathlon regulations state: “2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.” Based on the record before this Court, [*15] it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored. Therefore, this Court cannot say that there is no genuine dispute as to whether a failure to heed any of the triathlon industry guidelines regarding intersections, which left oncoming drivers totally unaware of the possible dangers that awaited them, constitutes gross negligence. See Chiacchia v. Lycott Environmental Research, Inc., 4 Mass. L. Rptr. 399, 1995 WL 1146824, *10 (Mass.Super.) (finding that the multiple ways in which the defendant’s investigation of certain property “failed to conform to established standards in the industry lead the court to conclude that [defendant’s] negligence in this matter [amounted] to gross negligence”).

6 [HN7] “Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.

[HN8] “Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.” Altman, 231 Mass. at 591-92.

[*16] While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against all of the third-party defendants has been made. [HN9] “Under current Massachusetts State practice there is no requirement that a complaint state the correct substantive theory of the case.” Gallant v. Worcester, 383 Mass. 707, 709, 421 N.E.2d 1196 (1981), citing Mass.R.Civ.P. 8(a)(2); Mass.R.Civ.P. 54 (c). Even though it is sound practice to state all possible claims, the SJC has held that “a complaint is not subject to dismissal if it would support relief on any theory of law.” Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d 243 (1979) (emphasis in original), citing Thompson v. Allstate Ins. Co., 476 F.2d 746, 749 (5th Cir. 1973). Thus, courts are generally “obligated to consider each of the alternative theories of law . . . on which [the complaining party’s] action might be maintained.” Id. Several courts in other jurisdictions have permitted a plaintiff to proceed with a claim for gross negligence after having only pled a claim for negligence. [*17] See, e.g., McTavish v. Chesapeake and Ohio Railroad Co., 485 F.2d 510, 512 (4th Cir.1973) (holding that Kentucky law permitted a claim of gross negligence to flow from an allegation of “negligence and carelessness”); Smith v. Hill, 510 F. Supp. 767, 775 (D.Utah 1981) (upon review of pleading and briefs court assumed that plaintiff “intended to plead that the [defendants] were grossly negligent”). Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants. See Altman, 231 Mass. at 593 (holding that a plaintiff has the right to insist that a jury be instructed on the distinction between negligence and gross negligence at trial).

Accordingly, Fiske may be held liable for contribution to any successful claim for gross negligence that Lautieri could have made against Fiske at the time of the accident.

B. USAT

USAT argues that no duty exists between itself and the individuals who choose to participate in the triathlon. [HN10] Neither the SJC nor the Appeals Court has specifically ruled [*18] on whether a duty of care is owned to participants in an athletic event by a sanctioning body of the subject sport when that race takes place on public property.

USAT argues that the reasoning in Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989), compels the application of a recklessness standard in the present case. In Gauvin, the SJC held that “personal injury cases arising out of an athletic event must be predicted on reckless disregard of safety,” on grounds that “vigorous and active participation in sporting events should not be chilled by the threat of litigation.” Id. at 454, citing Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290 (1983). The Gauvin case is not controlling here. Bae is not seeking to hold another participant in the triathlon responsible for Lautieri’s injuries. Instead, he is seeking damages from those who organized and sanctioned the event.

[HN11] Whether a defendant owed a duty of care to the plaintiff is a question of law. O’Sullivan v. Shaw, 431 Mass. 201, 204, 726 N.E.2d 951 (2000). In order for Lautieri to establish that USAT owed him a duty of care at the time the accident [*19] occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629, 536 N.E.2d 1067 (1989), or that USAT voluntarily, or for consideration, assumed a duty of care to Lautieri. Mullins v. Pine Manor College, 389 Mass. 47, 52-53, 449 N.E.2d 331 (1983). This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet. The only involvement of USAT with the subject triathlon was its approval of Fiske’s application, which, in essence, effectively permitted Fiske to be eligible for insurance coverage from the USAT Triathlon liability policy. There is no evidence in the record that suggests that USAT had any obligation or was expected to participate in the planning, operation, or supervision of the race, much less have a representative attend the Wet ‘N’ Wild triathlon. Accordingly, there is no basis on which to conclude that USAT owed Lautieri a duty of care. Assuming, arguendo, that USAT did owe a duty of care to Lautieri, the summary judgment record is devoid of any evidence that would permit a finder of fact [*20] to conclude that USAT acted with gross negligence with regard to Lautieri or the subject triathlon. Therefore, summary judgment in favor of third-party defendant USAT must be allowed.

C. Boys and Girls Clubs of Metrowest, Inc.

A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members. Thus, the waivers are operative to release the B&G Clubs from liability. Accordingly, summary judgment for the third-party defendant B&G Clubs must also be allowed.

ORDER

For the foregoing reasons, USA Triathlon, Inc’s and Boys and Girls Clubs of Metrowest, Inc.’s motions for summary judgment are ALLOWED, and, accordingly, judgment shall enter for the third-party defendants on Counts I and III of the third-party complaint, as they relate to claims of contribution, and on Counts I, II, and III of the third-party complaint, as they relate to indemnification. William Fiske, d/b/a Fiske Independent Race Management’s motion for summary judgment on Count II of the third-party complaint is DENIED as it relates [*21] to a claim for contribution.

Kenneth J. Fishman

Justice of the Superior Court

Date: October 29, 2003

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Marketing Makes Promises that Risk Management (or in this case an insurance policy) must pay for.

The release stopped the claims, which were thought out and tried to exploit the “accreditation” and “standards” created by a third party association.

Squires, v. Breckenridge Outdoor Education Center, 2013 U.S. App. LEXIS 9249 (10th Cir. 2013)

Plaintiff: Kimberly N. Squires

Defendant: Breckenridge Outdoor Education Center

Plaintiff Claims:

(1) The Release is as an invalid exculpatory agreement;

(2) Plaintiff’s decision to sign the Release was not voluntary and informed, as required by Colorado Revised Statute Section 13-22-107;

(3) Release was voidable because it was procured through fraud

Defendant Defenses: Release

Holding: for the defendant, the release was upheld

 

This case has been working its way through the courts for five years. The plaintiff was a legally blind child with cerebral palsy and cognitive delays. Her mother signed the necessary documentation to take a trip west with Camp Fire USA. Camp Fire USA contracted with the Breckenridge Outdoor Education Center (BOEC) to provide five days of skiing, a rope’s course and snow tubing.

The plaintiff was in a bi-ski which has an instructor holding tethers behind the skier. The BOEC instructor and the plaintiff were on their second run of the day. A third party skier lost control and skied into the tethers causing the BOEC instructor to lose the tethers. The plaintiff went down the hill unrestrained into a group of trees sustaining her injuries.

The plaintiff sued in Federal District Court located in Denver. A magistrate based upon a motion filed by the defendant dismissed the plaintiff’s negligence claim based on a release signed by the Plaintiff and her mother. The defendant’s motion also argued there was no evidence to support a gross negligence claim, which the magistrate did not deny.

The case proceeded to trial on the gross negligence claim. The jury returned a verdict for the defendant. The plaintiff then appealed the dismissal of the negligence claim based upon the release.

A magistrate is a quasi-judge. Magistrates in the Federal Court System are not appointed by the President and approved by the Senate, as all federal court judges are; but are appointed by the Chief Judge of the Federal District Court. The magistrate’s powers come from specific powers given to the magistrate by the judge who assigns a case to a magistrate or from an overall order from the Chief Judge of the court. Normally, a judge appoints a magistrate to handle all pre-trial matters. This frees up the judge to handle trials and those issues that may be appealed from the magistrate.

Summary of the case

The plaintiff appealed three issues concerning the validity of the release:

(1) the Release is as an invalid exculpatory agreement;

(2) [Plaintiff’s mother’s] decision to sign the Release was not voluntary and informed, as required by Colorado Revised Statute Section 13-22-107; [statute allowing a parent to sign away a child’s right to sue] and

(3) to the extent the Release is otherwise enforceable; it is, nevertheless, voidable because it was procured through fraud.

The 10th Circuit Court of Appeals went through a fairly in-depth analysis of release law in Colorado in making its decision. The court first looked into the requirements for a release to be valid under Colorado law. Releases are disfavored under Colorado law; however, they are not void. To be valid a Colorado Court must consider four factors:

(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

It was the fourth factor, whether the intent of the parties is set forth in clear and unambiguous language that is usually at issue. That means the language is clear and understandable so that the plaintiff when reading the document knew he or she was giving up their right to sue or recover for their injuries. The factor does not require the specific use of the word negligence and/or breach of warranty under Colorado law. However, the language of the release must express that the “intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.”

Colorado courts look at the actual language of the release for “legal jargon” length, complication any likelihood of confusion or failure of the plaintiff to recognize the full extent of the release provisions. The court found that BOEC’s release met all of the requirements and was valid.

The plaintiff argued that the release failed to tell them that the plaintiff would be using a bi-ski and failed to disclose specific risks of this type of adaptive skiing. The court found that Colorado law did not require releases to refer to the specific activity that injured the plaintiff. Rather a release bars a claim if the release “clearly reflects the parties’ intent to extinguish liability for that type of claim.”

Note: the relaxed language allowed under Colorado law is not the same in other courts.

The plaintiff also developed a novel argument, which I have touched on before.

Plaintiff additionally argues the Release is ambiguous because it does not specifically release claims resulting from the negligence of third parties, such as the skier who collided with Plaintiff, and because it inconsistently allocates risks between herself and Defendant.

Many times a third party or even another participant is the reason for the plaintiff’s injury. I write about injured parties suing other guests or third parties, such as skier v. skier collisions. Although the complaint does not name the outdoor recreation provider, specifically as a defendant, it does bring them in tangentially to a lawsuit. Here, the plaintiff argued the release failed because it did not notice the plaintiff of the risks brought to skiing by third parties.

However, the argument was not properly preserved or argued in the lower court so this court did not look at the argument. Appellate courts only will hear arguments that have been heard or argued in the lower court. Brand new arguments are ignored on appeal. It is important to argue everything you can in the lower court, to preserve all issues for appeal. This works both for claims of the plaintiff or defenses of the defendant.

The next argument, was there was not enough information in the release to satisfy the requirements of the statute which allows a parent to sign away a minor’s right to sue (C.R.S. 13-22-107). The plaintiff argued that because the risks of skiing in a bi-ski were not understood by the mother then the release should fail.

The court looked at two prior cases in Colorado that had looked at this issue: Wycoff v. Grace Cmty. Church of the Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010) and Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 952 (Colo. App. 2011) which I discuss in Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele and Release stops suit for falling off horse at Colorado summer Camp.

Because the release did not state the risks of the activity, the court had to decide if it could look at extrinsic (other) evidence. The court in Hamel, allowed the defendant to show that prior experience of the parent in sending her daughter to camp and knowledge of other people who had been injured horseback riding was enough to show the mother knew the risks.

The court then allowed the knowledge of the mother and the letter sent with the release by BOEC to show the mother knew the general risks of skiing.

The final issue was the Fraudulent Inducement claim. The letter said the following:

(1) “All of [Defendant’s] activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by AEE”; and (3) AEE “independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.

The mother made the following statements concerning what she believed based upon the letter.

Rather, she [plaintiff] relies on her mother’s statements that she “believed that BOEC was an accredited program,” and “that they had an [sic] accredited certified instructors that would manage a safe program.”

(“[T]hey were, you know, accredited and certified and they’d been doing it for a number of years.”), 356 (“That she would be with certified accredited people in a safe program that they could supervise appropriately.”).)

Although BOEC may or may not have been accredited by the AEE, the issue was the AEE did not have standards for skiing or adaptive skiing. The plaintiff argued that the letter, on one side of the release contradicted the release which was on the other side of the paper.

Add to the issue that BOEC admitted that it did not have what it advertised.

BOEC representative and Ski Program Director Paul Gamber testified that on the day of the Accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. Ski Program Director, Jeffrey Inouye, testified that the AEE accreditation related to programs other than the adaptive  [*30] ski program that Ms. Squires attended.

Marketing makes promises that Risk Management has to pay for.

The plaintiff argued that there was fraud in the inducement and because BOEC had advertised standards, BOEC did not have. On top of that the plaintiff argued that because BOEC did not have standards as they advertised BOEC was also misleading the plaintiff.

Ms. Squires argues that based upon the lack of written safety standards, “it is not a stretch to conclude that the adaptive skiing program was not conducted in a manner consistent with the highest standards of the AEE, contrary to the representations made by BOEC in its Greetings Letter.”

The letter and marketing of BOEC were enough to establish a fraud claim.

To establish fraud, a plaintiff has to prove that (1) a fraudulent misrepresentation of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.

The release was presented to the plaintiff’s mother along with a “LETTER TO STUDENTS, PARENTS AND GUARDIANS.” The letter made several statements which the plaintiff brought to the attention of the court, which created legal issues that in many courts in other states, would have found for the plaintiff. Some of the parts of the letter were:

All of our activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE). The BOEC is accredited by AEE, who independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.

Your ski lesson or course will involve risk, which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all risks.

While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation.

The plaintiff could not prove that she had relied on the misstatements of BOEC. On top of the necessary requirement that there be reliance, the fraud or action of BOEC must be intentional.

Ms. Squires has not produced any evidence that BOEC made the alleged misrepresentations with the intent to deceive. For failure to demonstrate this element, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.

Because the fourth element could not be provided the fraud claim was dismissed.

The final argument made by the plaintiff was the actions of BOEC were willful and wanton. The statute Colo. Rev. Stat. § 13-22-107(4) specifically prohibited releases signed by parents based to stop willful and wanton conduct.

Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

Court defined willful and wanton conduct by relating the conduct to gross negligence.

“Gross negligence is willful and wanton conduct; that is, action committed recklessly, with conscious disregard for the safety of others.” “Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness.” (“Conduct is willful and wanton if it is a dangerous course of action that is consciously chosen with knowledge of facts, which to a reasonable mind creates a strong probability that injury to others will result.”)

However, here again the plaintiff failed to show conduct that was purposeful or reckless. The court found the record was “devoid of sufficient evidence to raise a factual issue” at trial. Finding that the court held that claim was not met by the plaintiff.

So Now What?

The release in this case met the requirements of Colorado law. However, most other states, the release would not have been sufficient to stop the claims of the plaintiff. Besides, few states allow a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.

BOEC does great work and does a good job. This like most facts giving rise to litigation are rare, even very rare. However, your release needs to be written to cover everything you possibly can. You can include a prohibition against injuries or claims caused by third parties. Would the outcome of this case been different if the third party who skied into the tethers been another BOEC student or instructor?

Releases can also be used to educate. If you do a good job of describing the risks in the release, then parents cannot make valid decisions, on whether or not they want to risk your kid with them. The defendant should have done a better job of explaining the risks of all activities within the program.

It is risky to rely upon outside information to prove knowledge of a release, unless you can prove the person saw and knew the information and have that proof in the release. This creates a 2-step process. 1.) You must prove you educated the customer or guest and 2.) You must prove the guest or customer was educated. The easiest way is to place this information on your website and then have your release reference the information.

Marketing makes promises that Risk Management must pay for. The advertising and statements made by the defendant in this case in many other jurisdictions would have gone the other way. Seriously, to make statements about awards, accreditation, or standards that do not exist are a great way to void a release and in many states increase the damages you may pay.

Other Cases: Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234 (Dist Colo 2011)

Other articles where standards played a part in the decision in a negative way.

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Plaintiff uses standards of ACCT to cost defendant $4.7 million

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

 

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Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)

Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)

KIMBERLY N. SQUIRES, Plaintiff – Appellant, v. BRECKENRIDGE OUTDOOR EDUCATION CENTER, Defendant – Appellee.

No. 12-1199

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

715 F.3d 867; 2013 U.S. App. LEXIS 9249

May 7, 2013, Filed

PRIOR HISTORY: [**1]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No.1:10-CV-00309-CBS-BNB).
Squires v. Goodwin, 829 F. Supp. 2d 1062, 2011 U.S. Dist. LEXIS 129234 (D. Colo., 2011)

COUNSEL: Michael A. Sink of Perkins Coie LLP, Denver, Colorado (Robert N. Miller and Stephanie E. Dunn of Perkins Coie LLP, Denver, Colorado; Gregory A. Gold of The Gold Law Firm, LLC, Greenwood Village, Colorado; and T. Thomas Metier of Metier Law Firm, LLC, Fort Collins, Colorado, with him on the brief), for Plaintiff – Appellant.
David Werber (John W. Grund, Deana R. Dagner, and Joan S. Allgaier on the brief) of Grund ” Dagner, P.C., Denver, Colorado, for Defendant – Appellee.
JUDGES: Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
OPINION BY: McKAY
OPINION

[*869] McKAY, Circuit Judge.

Plaintiff Kimberly Squires filed this diversity action against Defendant Breckenridge Outdoor Education Center asserting claims for negligence and gross negligence following a ski accident in which she was injured. The magistrate judge granted Defendant’s motion for summary judgment in part, concluding Plaintiff’s mother, Sara Squires, had validly released any claim for negligence against Defendant by signing an acknowledgment of risk and release of liability. Plaintiff now appeals, arguing summary judgment was inappropriate because the Release [**2] is unenforceable for three reasons: (1) the Release is as an invalid exculpatory agreement; (2) Mrs. Squires’s decision to sign the Release was not voluntary and informed, as required by [*870] Colorado Revised Statute Section 13-22-107; and (3) to the extent the Release is otherwise enforceable, it is nevertheless voidable because it was procured through fraud.

Background

In 2008, Plaintiff, a legally blind child with cerebral palsy and cognitive delays, was severely injured while skiing at Breckenridge Ski Resort in Colorado. Plaintiff was in Breckenridge on a ski trip with the group Camp Fire USA, a non-profit organization dedicated to providing children, including children with disabilities, with opportunities and experiences for growth. Camp Fire USA had contracted with Defendant for a five-day wilderness program that included skiing, a ropes course, and snow tubing.

Before the trip, Defendant sent documents regarding the trip to Camp Fire USA, which in turn circulated them to the participants’ parents, including Mrs. Squires. The documents included a “Letter to Students, Parents and Guardians” (App. at 209 (capitalization omitted)) with an accompanying “Acknowledg[]ment of Risk & Release [**3] of Liability” (App. at 210 (capitalization omitted)).1 The Letter states, in pertinent part:

LETTER TO STUDENTS, PARENTS AND GUARDIANS

Greetings from Breckenridge! The BOEC staff looks forward to having you, your child or your family member join us on a course and would like to share the following information about who we are, what we do and the risks involved.

The Breckenridge Outdoor Education Center (BOEC), a non-profit organization in operation since 1976, provides outdoor adventure programs for people of all abilities. We offer programs for groups and individuals. All courses are tailored to the specific goals and abilities of our students.

. . . .

All of our activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE). The BOEC is accredited by AEE, who independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards. All activities offered are designed to pose appropriate challenges for students. These challenges provide a medium for adventure, learning and personal growth. Your ski lesson or course will involve risk, [**4] which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all [*871] risks. It is very important that you follow all directions given by staff and that you ask questions whenever a procedure or activity is unclear to you.

While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation. After you have reviewed the acknowledg[]ment of risk and waiver of liability on the reverse side of this letter and if you understand and agree with its contents, please sign in the appropriate places. If you are the parent or legal guardian of a student, please read both sides of this document to the student, and if you both agree and understand their content, place YOUR signature in the three appropriate places.

If you have any questions or comments, please do not hesitate to contact us. We welcome your suggestions and feedback.

(App. at 209.)

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

1 It is somewhat unclear whether the Release signed by Mrs. Squires was presented to her as a separate document from the Letter or as a single document [**5] with the Letter printed on one side and the Release printed on the reverse. The Letter itself refers to the Release “on the reverse side of this letter.” (App. at 209.) Plaintiff likewise initially represented the Release appeared on the reverse of the Letter. (Appellant’s Opening Br. at 6 (“On the back of the form cover letter, is a standardized “Acknowledg[]ment of Risk & Release of Liability” . . . .).) However, during oral argument, Plaintiff’s counsel maintained this was a disputed issue. (Oral Argument at 4:03-18 (“Some copies of the Release are standalone copies, and one copy happens to have a bleed-over language from the cover letter. It’s not clear . . . that that’s how that actually occurred when the Release was given to [Mrs. Squires] for signature.”) It is undisputed, however, that the Release the director of Camp Fire USA sent to the participants “included the cover letter that explained the waiver” (App. at 207), and that the two documents were sent as a single attachment (App. at 404, 407, 408).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The accompanying Release provides:

ACKNOWLEDGMENT OF RISK AND RELEASE OF LIABILITY (REQUIRED)

In consideration of being allowed to participate in any way in Breckenridge Outdoor [**6] Education Center (BOEC) programs, and related events and activities . . . I, and/or the minor student, . . . the undersigned:

1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that responsibility. I will make my instructors aware to the best of my ability of any questions or concerns regarding my understanding of safety standards, guidelines, procedures and my ability to participate at any point during any activity.

2. Understand that risks during outdoor programs include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical [**7] facilities or while traveling to and from the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.
3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.
4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.

I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.

(App. at 210.)

Plaintiff and her mother signed the Release on January 13, 2008. On that date, Mrs. Squires was admittedly aware that her daughter’s trip to Breckenridge and participation in Defendant’s program [*872] would include skiing, although she claims she was unaware of the precise equipment and methods her daughter would be using. Once in Breckenridge, Plaintiff was [**8] paired with a BOEC instructor and equipped with a bi-ski. On the second run of the first day of skiing, Plaintiff was injured when another, unrelated, skier lost control and skied into the tethers connecting Plaintiff and her instructor. The force of the collision caused the instructor to lose control of the tethers, and Plaintiff continued unrestrained down the trail and into a group of trees. She was injured when her bi-ski collided with a tree.

Following the accident, Plaintiff filed this action claiming Defendant’s negligence and gross negligence caused her injuries. Defendant moved for summary judgment, arguing the Release barred Plaintiff’s negligence claim and there was no evidence to support her gross negligence claim. The magistrate judge granted summary judgment in favor of Defendant on Plaintiff’s negligence claim, concluding Plaintiff’s mother had executed an enforceable exculpatory agreement that clearly and unambiguously expressed the parties’ intent to extinguish Defendant’s liability, and her decision to do so was voluntary and informed. The magistrate judge, however, denied Defendant’s motion on Plaintiff’s gross negligence claim. This claim proceeded to a jury, which [**9] found Defendant not liable. Plaintiff now appeals the grant of summary judgment on her negligence claim.

Discussion

HN1Go to this Headnote in the case.“We review a district court’s decision to grant summary judgment de novo, applying the same standard as the district court.” Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010) (internal quotation marks omitted). Summary judgment is appropriate if “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). Colorado law applies in this diversity case.

I. Enforceability of the Release

Plaintiff argues the Release is unenforceable and, therefore, does not bar her negligence claim. She reasons that the Release is invalid under the four-part test articulated in Jones v. Dressel, 623 P.2d 370 (Colo. 1981), and that her mother did not make an informed decision, as required by Colorado Revised Statute Section 13-22-107.

A. Validity Under Jones

HN2Go to this Headnote in the case.In Colorado, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo. 1989). However, “[e]xculpatory agreements are not necessarily void.” Id. at 784. In [**10] determining whether an exculpatory agreement is valid, Colorado courts consider four factors: “(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.” Jones, 623 P.2d at 376. Plaintiff challenges only the magistrate judge’s conclusion on the fourth factor.

Under the fourth factor, “use of the specific terms ‘negligence’ and ‘breach of warranty’ are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty.” Heil Valley, 784 P.2d at 785. Rather, “[t]he inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Id. In making this determination, [*873] Colorado courts examine “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.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004).

The Release signed by Plaintiff and her [**11] mother clearly and unambiguously waives any negligence claims Plaintiff might have brought against Defendant. The Release begins by indicating it is signed “[i]n consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities.” (App. at 104.) It then warns that “it is impossible for the BOEC to guarantee absolute safety,” and identifies the potential risk of “loss or damage to personal property, injury, permanent disability, [and] fatality.” (Id.) The Release concludes, after only five short paragraphs, by stating in plain terms that the signor “hereby release[s] the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.” (Id. (emphasis added).) We perceive no ambiguity in this language. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1113 (10th Cir. 2002) (“The agreement covers ‘any and all claims I might state . . . including those claims based on negligence or breach of warranty.’ . . . There is nothing ambiguous about this portion [**12] of the agreement.” (first alteration in original)).

Plaintiff, however, contends the Release does not satisfy the fourth Jones factor because it failed to include that Plaintiff would be skiing using a bi-ski and failed to disclose specific risks associated with this form of adaptive skiing. She argues that Colorado law requires the Release to identify the specific activity being engaged in and describe specific associated risks. In support of this position, Plaintiff quotes from several other releases that have been upheld and claims it was their adequate detailing of risks that led the courts to conclude they were valid under the fourth Jones factor. However, even though the releases quoted by Plaintiff contain more detailed descriptions of the associated risks, their validity did not turn on this fact. Notably, none of the cases Plaintiff relies on evaluated the sufficiency of the description of the risks.

Contrary to Plaintiff’s argument, HN3Go to this Headnote in the case.Colorado law does not require that exculpatory agreements refer to the specific activity in which the plaintiff participated and was injured. See Forman v. Brown, 944 P.2d 559, 563-64 (Colo. App. 1996) (concluding a release that did not mention [**13] the specific activity in which the plaintiff was injured was nevertheless valid because it “unambiguously released defendants from liability for injuries occurring during associated scheduled or unscheduled activities”); Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1274-75 (10th Cir. 1997) (concluding a release that did not include the specific activity and referred only to “the activity I am about to voluntarily engage in” was valid under Jones). Nor does it require “that an exculpatory agreement describe in detail each specific risk that the signor might encounter. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim.” Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., No. 96-1438, 1997 U.S. App. LEXIS 11807, 1997 WL 265093 (10th Cir. May 20, 1997) (unpublished) (citation omitted). The Release clearly reflects precisely such an intent—Plaintiff and her mother agreed, “[i]n consideration of being [*874] allowed to participate in . . . [Defendant’s] programs, and related events and activities” to “release [Defendant] from any and all claims . . . and causes [**14] of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a [BOEC] activity.” (App. at 104.)

Plaintiff additionally argues the Release is ambiguous because it does not specifically release claims resulting from the negligence of third parties, such as the skier who collided with Plaintiff, and because it inconsistently allocates risks between herself and Defendant. Plaintiff raises her first theory of ambiguity for the first time on appeal. Because this argument was not properly preserved, we do not consider it. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (HN4Go to this Headnote in the case.“[A] party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”). Turning then to Plaintiff’s second theory of ambiguity, we agree with the magistrate judge’s conclusion that the Release is not reasonably susceptible to her interpretation, which strains logic. Plaintiff specifically argues the portion of the Release that releases Defendant from liability is rendered ambiguous by the following sentence: “I [**15] understand that I share the responsibility for safety during all activities, and I assume that responsibility.” (App. at 104.) She contends that by “discussing two alternate allocations of risk in the same document, the Release does not clearly and unambiguously express the intent of the parties, and thus, is unenforceable.” (Appellant’s Opening Br. at 23.) However, these two provisions create no such ambiguity. The sentence on which Plaintiff relies clearly expresses the participant’s agreement to share in the responsibility of participating in a safe manner, whereas the release provision clearly expresses the participant’s intent to release Defendant from liability. As the magistrate judge concluded, the two are not mutually exclusive, and the first provision makes it no less clear that Plaintiff’s mother intended to release Defendant from liability for any negligence claim.

Because the Release contains clear and unambiguous language demonstrating Plaintiff’s mother intended to release any negligence claims Plaintiff might have against Defendant, it is valid and enforceable under Jones.

B. Informed Decision Under Colorado Revised Statute Section 13-22-107

We turn then to whether Mrs. [**16] Squires’s consent to the Release was voluntary and informed, as required by Section 13-22-107. Plaintiff argues it was not because her mother did not understand the risks involved with adaptive skiing and, specifically, the use of bi-skis.

In 2002, the Colorado Supreme Court held “that Colorado’s public policy disallows a parent or guardian to execute exculpatory provisions on behalf of his minor child for a prospective claim based on negligence.” Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Colo. 2002), superseded by statute, Colo. Rev. Stat. § 13-22-107(3). The following year, the General Assembly superseded Cooper through enactment of Section 13-22-107(3). Under this section,HN5Go to this Headnote in the case. “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Colo. Rev. Stat. § 13-22-107(3). The statute “declare[s] that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff v. Grace Cmty. Church of the Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010). “So long as the decision is voluntary and informed, the decision should be given [**17] the same dignity as decisions [*875] regarding schooling, medical treatment, and religious education . . . .” Colo. Rev. Stat. § 13-22-107(1)(a)(V).

The Colorado Court of Appeals has “assume[d] that the General Assembly was aware of the Jones test when it enacted section 13-22-107(1)(a)(V), but required something more for the waiver of a minor’s prospective negligence claims.” Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 952 (Colo. App. 2011) (citation omitted). In addition to the Jones factors, “[t]he General Assembly required that the consent to waiver by a parent be ‘voluntary and informed.'” Id. “A parent’s decision is informed when the parent has sufficient [*876] information to assess the potential degree of risks involved, and the extent of possible injury.” Id.

Since the enactment of Section 13-22-107, the Colorado Supreme Court has not addressed whether a release satisfies the voluntary and informed requirement of Section 13-22-107(1)(a)(V). We must therefore attempt to predict how Colorado’s highest court would interpret this Section. See FDIC v. Schuchmann, 235 F.3d 1217, 1225 (10th Cir. 2000). In doing so, we “consider . . . cases from the Colorado Court of Appeals only as they may [**18] aid our ability to predict how the Colorado Supreme Court might decide.” Browning v. Am. Family Mut. Ins. Co., 396 F. App’x 496, 502 n.14 (10th Cir. 2010).

The Colorado Court of Appeals has twice considered whether a parent’s consent to release prospective negligence claims on behalf of a minor child was voluntary and informed, as required by Section 13-22-107(1)(a)(V). On the first occasion, the Colorado Court of Appeals determined it “need not set forth . . . precisely how much information is required for a parental release to satisfy the statute” because “[t]here is no information in [the] one-page registration form describing the event activities, much less their associated risks.” Wycoff, 251 P.3d at 1264. There, the plaintiff was injured while being towed in an innertube behind an ATV on a frozen lake as part of her participation in a three-day event called “Winterama 2005.” Id. at 1263. Before attending the event, the plaintiff’s mother signed a one-page registration and information form, which contained a purported release in the following paragraph:

I give permission for my child to participate in . . . Winterama 2005 and all activities associated with it. I further give consent [**19] for any medical treatment necessary to be given to my child in case of injury or sickness. I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation. I also agree to come and pick up my child should they not obey camp rules.

Id. (emphasis and correction in original). Although the plaintiff knew the Winterama activities would include riding on an ATV-towed innertube, her mother did not. The court concluded that the mother’s waiver was not informed because the registration and information form did “not indicate what the activities would involve and certainly d[id] not suggest they would include ATV-towed inner-tube excursions around a frozen lake.” Id. at 1264. As a result, there was no information from which the plaintiff’s parents could “assess the degree of risk and the extent of possible injuries” from her participation in Winterama. Id. at 1265.

Shortly after the Wycoff decision, the Colorado Court of Appeals again addressed whether a parent’s consent to release prospective negligence claims on behalf of her child was informed. Borrowing from the language used in Wycoff, the court began by stating, HN6Go to this Headnote in the case.“A parent’s [**20] decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.” Hamill, 262 P.3d at 952 (citing Wycoff, 251 P.3d at 1265). In addressing the degree of risk, the court concluded the plaintiff’s mother was sufficiently informed about the risks involved in horseback riding, the activity in which the plaintiff was injured, because she “knew her daughter would be riding horses and she was advised that there were risks, known and unknown, associated with the activity.” Id. at 953. In reaching this conclusion, the court first relied on the undisputed fact that the plaintiff’s mother “knew the activities [the camp] offered,” because her daughter “had attended [the camp] and ridden the camp horses for two years before the accident.” Id. at 952. In addition, “[t]he agreement clearly indicated that horseback riding was an activity available to campers.” Id. The agreement further identified some of the “risks associated with participation in any camping activities,” and emphasized that “a complete listing of inherent and other risks is not possible” and there are even “risks which cannot be anticipated.” Id. at 949 [**21] (emphasis omitted). The court finally considered the fact that the plaintiff’s mother “never contacted [the camp] to discuss the release form, and had no questions about the language of the release form when she signed it.” Id. at 953. In light of all of this evidence, the court concluded the plaintiff’s mother was adequately informed of the risks involved with horseback riding. The fact that she “may not have contemplated the precise mechanics of her daughter’s fall d[id] not invalidate the release and d[id] not create a genuine issue of material fact.” Id. The relevant inquiry was whether the plaintiff’s mother was aware the plaintiff would be riding horses and was advised there were risks associated with that activity, which she was.

The court then turned to whether the plaintiff’s mother was provided with sufficient information “to assess the extent of possible injuries to [her daughter].” Id. In making this determination, the court again considered both the language of the release and the plaintiff’s mother’s independent knowledge and experience. The release contained broad language waiving “any claims of liability, for any injury, even death.” Id. (internal quotation marks omitted). [**22] The plaintiff’s mother was further aware that Christopher Reeve, whom she knew personally, had been injured falling off a horse, and was therefore “aware that there were significant risks associated with horseback riding.” Id. The court thus concluded that the agreement adequately disclosed the extent of potential injuries; it “did not need to include an exhaustive list of particularized injury scenarios to be effective.” Id.

Before turning to whether Plaintiff’s mother’s consent to release prospective negligence claims against Defendant was informed, we must first address the scope of the evidence we may consider in making this determination. The Colorado courts have yet to specifically address this issue. In Wycoff, the court “assume[d] for purposes of th[e] case that a facially deficient exculpatory contract could be cured by extrinsic evidence.” 251 P.3d at 1264. Relying on this statement, Plaintiff contends our evaluation under Section 13-22-107(1)(a)(V) must be limited to the four corners of the Release unless we first determine that the Release itself is facially deficient, in which case the Release would be invalid under Jones. Defendant, on the other hand, maintains we may [**23] properly consider the Letter that accompanied the Release as well as Mrs. Squires’s actual knowledge on the day she signed the Release.

[*877] We predict the Colorado Supreme Court would likely follow the approach advocated by Defendant and adopted by the Colorado Court of Appeals in Hamill—in determining whether a parent’s consent to release prospective negligence claims is voluntary and informed, the parent’s actual knowledge and the information provided in connection with the release should be considered in addition to the language of the release itself. Unlike the fourth factor of the common-law Jones test, which focuses on whether the agreement itself expressed the parties’ intention in clear and unambiguous terms, the focus of the voluntary and informed requirement of Section 13-22-107(1)(a)(V) is on the parent’s decision. If we were to limit our review to the language of the Release itself, we would not be in a position to adequately evaluate whether the parent’s decision was informed. HN7Go to this Headnote in the case.To “give[] effect to the General Assembly’s intent in enacting” Section 13-22-107, Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003)—that a parent’s decision to release his or her child’s prospective negligence [**24] claims be honored “[s]o long as the decision is voluntary and informed,” Colo. Rev. Stat. § 13-22-107(1)(a)(V)—we must be able to consider the relevant information the parent had and was provided in order to make that decision. Indeed, were we to limit our review to the language of the Release itself, it would put the General Assembly’s enactment of § 13-22-107 at odds with Jones. Providers of recreational activities would be required to incorporate all relevant information they supplied to parents within the release itself while simultaneously ensuring the release is not “inordinately long or complicated,” Heil Valley, 784 P.2d at 785. To avoid such a result and give the fullest effect to the General Assembly’s intent, we consider not only the language of the Release, but also the information Defendant provided to Plaintiff and Mrs. Squires in connection with the Release as well as Mrs. Squire’s actual knowledge on the date she signed the Release.

Considering this evidence, we conclude Mrs. Squires’s decision to release Plaintiff’s prospective negligence claims against Defendant was informed. Mrs. Squires had sufficient information from which to evaluate the degree of risk Plaintiff [**25] faced. She admittedly knew “when she signed the document . . . that her daughter was going on a ski trip.” (App. at 139.) The Letter addressed to the students and their parents specifically referred to “[y]our ski lesson” (App. at 209), and the accompanying participant application identified “Sit-Down” and “Bi-ski” as among the “Adaptive Ski Method[s]” (App. at 410) offered by Defendant. The Letter further informed Mrs. Squires that Plaintiff’s “ski lesson . . . will involve risk, which may be greater than most people encounter in their daily lives.” (App. at 209.) The Release reaffirmed that “it is impossible for BOEC to guarantee absolute safety,” and warned that in addition to the “risks during outdoor programs,” including “falling,” “there may be other risks not known . . . or not reasonable foreseeable at this time.” (App. at 210.) After receiving this information, Mrs. Squires did not contact Defendant to discuss the Release and did not inquire as to the risks that were going to be involved with the ski trip. Although Mrs. Squires “may not have contemplated the precise mechanics of her daughter’s fall,” including the precise mechanics of skiing with a bi-ski, this fact “does [**26] not invalidate the release.” Hamill, 262 P.3d at 953. Like the mother in Hamill, Mrs. Squires “knew her daughter would be [skiing] and she was advised that there were risks, known and unknown, associated with the activity.” Id.

Mrs. Squires likewise had sufficient information from which to assess the extent [*878] of possible injuries to Plaintiff. The Release contained broad language releasing “any and all claims,” “of every nature,” “whether resulting from negligence or otherwise.” (App. at 210.) The Release additionally specifically warned of the possibility of “injury, permanent disability, fatality . . . and severe social or economic losses that may result from any such incident.” (Id.) Contrary to Plaintiff’s argument, the Release “did not need to include an exhaustive list of particularized injury scenarios,” such as the possibility of colliding with a tree after the instructor lost control of the tethers, “to be effective.” Hamill, 262 P.3d at 953.

We conclude the Release satisfies both the Jones test and the voluntary and informed requirement of Section 13-22-107 and is, therefore, enforceable.

II. Fraudulent Inducement

Plaintiff argues in the alternative that even if the Release is [**27] enforceable, it should nevertheless be set aside because it was procured through fraud.2 HN8Go to this Headnote in the case.“A release is an agreement to which the general contract rules of interpretation and construction apply. Like any contract, a release procured through fraud can be set aside.” Chase v. Dow Chem. Co., 875 F.2d 278, 281 (10th Cir. 1989) (internal quotation marks and citation omitted). To establish fraud, a plaintiff must prove

(1) a fraudulent misrepresentation of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.

Barfield v. Hall Realty, Inc., 232 P.3d 286, 290 (Colo. App. 2010). Furthermore, “[t]he misrepresentation must be made with the intent to deceive.” Club Valencia Homeowners Ass’n, Inc. v. Valencia Assocs., 712 P.2d 1024, 1026 (Colo. App. 1985).

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

2 Plaintiff first alluded to this argument in the hearing on Defendant’s motion for summary judgment. [**28] The magistrate judge then allowed supplemental briefing on the issue. In its response to Plaintiff’s supplemental brief, Defendant argued Plaintiff’s late reliance on the fraud defense “is neither proper nor excusable.” (App. at 378.) In its order, the magistrate judge considered Plaintiff’s fraud defense without discussing its timeliness or procedural propriety. Defendant has not argued on appeal that the magistrate judge erred in considering Plaintiff’s argument. We therefore have no occasion to address whether Plaintiff’s belated fraud defense was properly considered in the first instance.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Plaintiff contends the Letter, which accompanied the Release, contained three fraudulent misrepresentations: (1) “All of [Defendant’s] activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by AEE”; and (3) AEE “independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.” (App. at 209.) However, Plaintiff has offered no evidence that statements two and three were false; that is, Plaintiff has [**29] pointed to no evidence that Defendant, generally, was not accredited by AEE or that AEE does not perform the functions described in statement three. Plaintiff’s argument then, hinges on the allegedly fraudulent misrepresentation in the first statement.

Plaintiff maintains the first statement constitutes a fraudulent misrepresentation because AEE does not have standards for [*879] adaptive skiing, and Defendant’s adaptive ski program is therefore at least one activity that is not “conducted in a manner consistent with the highest standards, as defined by [AEE].” (Id.) Accepting, without deciding, that this statement constitutes a fraudulent material misrepresentation, Plaintiff has failed to provide any evidence that Mrs. Squires relied on this misrepresentation in deciding to sign the Release. Plaintiff points to no evidence that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE standards. Rather, she relies on her mother’s statements that she “believed that BOEC was an accredited program” (App. at 354), and “that they had an [sic] accredited certified instructors that would manage a safe program” (App. at 357). (See [**30] also App. at 353 (“[T]hey were, you know, accredited and certified and they’d been doing it for a number of years.”), 356 (“That she would be with certified accredited people in a safe program that they could supervise appropriately.”).) These statements, even when viewed in the light most favorable to Plaintiff, do not support her position that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE’s standards.3 Notably, Mrs. Squires made no mention of AEE or its standards when discussing her beliefs about Defendant’s program. Because Plaintiff has failed to provide any evidence that Mrs. Squires relied on a material misrepresentation made by Defendant in the Letter, the magistrate judge properly concluded Plaintiff failed to establish Mrs. Squires was fraudulently induced to sign the Release.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

3 While Mrs. Squires’s testimony may suggest she believed that Defendant’s adaptive ski program was accredited by AEE, the Letter made no such representation. Rather, this purported representation was inferred by Mrs. Squires from the three statements listed above in connection with the representation that “all courses are [**31] tailored to the specific goals and abilities of [the] students, all activities offered are designed to pose appropriate challenges for students, and the BOEC maintains rigorous standards.” (Appellant’s Opening Br. at 31 (internal quotation marks and brackets omitted).) Mrs. Squires’s misunderstanding of Defendant’s Letter does not excuse her from the consequences of signing the Release. See Shoels v. Klebold, 375 F.3d 1054, 1070 (10th Cir. 2004) (“Misunderstanding, not misrepresentation, was the basis for Appellants’ acceptance, and so they cannot evade the normal limitations on relief from the consequences of their mistake.”).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Conclusion

For the foregoing reasons, we AFFIRM the magistrate judge’s order granting summary judgment to Defendant on Plaintiff’s negligence claim.

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Stop Feuding, I doubt, move forward anyway, I think you can.

The Challenge/Ropes Course Industry is still fighting after all these years……it is a very sad song.

The challenge course, or as it was known in its beginning, the ropes’ course industry, is still setting itself up to be sued, successfully sued. My calculations show they have had judgments and settlements in excess of $5.1 million. See Payouts in Outdoor Recreation. Not included in those calculations are another $3.1 million that I learned of that was a settlement this past summer (2011). In 10 years, the industry has had $8.2 million in pay outs based upon my research. Who knows how much more has been paid that is confidential settlements or judgments I can’t find.

In my opinion, a major part of the problem is standards. Which is probably why they are losing these suits and why the industry is a mess?

There are two separate groups writing standards for the industry. Neither of those groups is part of the ASTM, both are trying to become ANSI standard setting organizations.

Standards for things; bolts, screws, wood, concrete are already done by the ASTM.  Those are great standards, created correctly and are needed by this industry. Those standards are always going to trump anything the ropes’ course industry does. Consequently, ignoring that is a joke. For things (anything without a personality) refer to and adopt the ASTM standards.

Any standard that recreates or redoes the standards established by the ASTM is 1) a waste of time and 2) only a way to create litigation. The ASTM standard is going to be controlling. If the standard created by an industry association is lower than the ASTM standard or even different, the standard will be violated because the ASTM will be controlling.

For any cables/wire, the European standards for ski lifts control. Those standards on wire have been around for almost 100 years and are great. Again, this is a monster waste of time and energy to create something that does not matter.

For people, get rid of those standards. People make mistakes, not concrete. If it can make a mistake, dump the standard attached to it. For more on this issue see Trade Association Standards sink a Summer Camp when a plaintiff uses them to prove Camp was negligent, Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp, and ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Here is what the National Ski Area Association says about standards: See NSAA and standards. Understand that the lifts have standards but the ski areas do not. The NSAA is like 99% of the rest of the trade associations in the world; they know that writing standards is a legal nightmare.

What you should do.

If you are part of the ropes’ course industry, you need to protect yourself from the problems created by these dual standards. Get both sets of standards and create reasons why you are not following specific ones. That way in advance, you protect yourself. Be specific, not just it does not apply and do not use the word money or cost unless you can show a better way that may be cheaper.

Resolution of the issues for the Standards

There are several options on how to resolve the problem.

1.     One group can get to the ANSI, finish up and have “standards.” However, this will only work if the other group, then drops its standards. One group has indicated they will not. Can you think of this getting any worse that would occur?

2.     Eliminate both sets of “standards” and start gain from scratch. Go to the ASTM and set up a committee to set up standards and adopt all the ASTM ones that are done. What is left can be written at that point. I suspect that will be a short piece of paper.

I believe this alternative has the best legal benefits.

3.     Find six people who are not vested in winning. It is too small of a job for anything less, and I don’t think you can find eight impartial people with respect to the groups.  They should go through each standard and write down the best one and move on. I would give them standards that are not identified as to who created which ones. All they are working with is words on paper, not logos or IDs.

If you want to see where standards can go too far read this article:  Playgrounds will be flat soon. No city can meet the playground standards with the current budgets they have to work with.

Do Something

If you are part of this industry, good luck. There are a lot of great people in the industry; however,  a lot of them have drunk the cool-aid from one group or another and cannot see past their respective “turf.”

Until the standards for operations are gone and there is only one set of standards for the industry, it will be a plaintiff’s playground.

What do you think? Leave a comment.

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Tough fight on a case, release used to stop all but one claim for a CO ski accident

Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234

But for an outrageous expert opinion, the release would have ended this lawsuit.

This case is a lawsuit against Breckenridge Outdoor Education Center (BOEC) and two of its employees by a disabled skier. Also sued was the manufacturer of the bi-ski, a device that allows people with no mobility to experience skiing. BOEC is a non-profit that provides tons of great services for people, most of whom are disabled. In this case, the plaintiff was a “legally blind, cognitively delayed, and physically limited by cerebral palsy” minor.

The plaintiff went to BOEC with a group people from Kansas, the Adventure Fitness Program at Camp Fire USA. Before going on the trip the plaintiff’s mother signed the necessary documents, including a release and reviewed the marketing and other information provided to her. Upon arrival, the plaintiff was taken to Breckenridge Ski Area with two BOEC employees. She was skiing in a bi-ski with the two defendant skiers. One was a lookout or later termed blocker in the case and one held tethers, which controlled the bi-ski.

On the second run, the three were skiing down a blue or intermediate ski run. A third party not part of the suit lost control and skied between the defendant employee and the bi-ski into the tethers. This separated the BOEC employee from the bi-ski. The bi-ski proceeded down the ski slope, out of control hitting a tree. The injuries to the plaintiff were not described.

The plaintiff through her mother sued the bi-ski manufacture, BOEC and the two BOEC employees. The plaintiff claimed four counts of negligence per se because of violations of the Colorado Skier Safety Act against the defendant employee who was holding the tethers. (To see a definition of Negligence Per Se under Colorado law see Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability.) The plaintiff argued another claim sounding in “negligence, willful and wanton, reckless, and/or gross negligence” against BOEC. The remaining claims were against the manufacturer of the bi-ski which was dismissed in another action not the subject of this opinion.

This motion was a motion for Summary Judgment filed by BOEC to eliminate the fifth claim, the negligence, willful and wanton, reckless, and/or gross negligence of BOEC.

Validity of a Release for a minor signed by a parent under the CO Statute

The court first looked at the requirements for a release signed by a parent to be upheld under Colo. Rev. Stat. § 13-22-107, generally that the parent’s signature must be voluntary and informed. Prior to this decision, the only case that has taken a look at this issue was Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo. App. 2010) which I reviewed in Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.

In Wycoff, the release signed by the mother for the child was not upheld. The Wycoff release only had one sentence referring to releasing any claims. Here, the BOEC release had a minimum of six paragraphs informing the plaintiff’s mother that she was waiving her daughter and her legal rights.

Colorado law does not require the specific use of the word negligence in a release. However, all Supreme Court decisions to date had some language referencing waiving personal injury claims based on the activity the release covered.

The court concluded that the plaintiff’s mother signed a document that was clearly identified as a release, and thus she signed it voluntarily.

The court then looked at the release to see if it informed the plaintiff’s mother of the risks of the activity. The release had one full page that explained in detail the degree of risk involved in the BOEC programs. On top of that, the plaintiff’s mother had called and talked to the staff at BOEC as well as the staff of Adventure Fitness Program at Camp Fire USA that was taking her daughter on the trip.

After all of this, the plaintiff’s mother the court concluded was informed of the risks of the trip and the activity.

Validity of the Release

The court started by reviewing the Colorado requirements on how a release will be reviewed under Colorado law. This is fairly standard in all legal decisions.

Exculpatory agreements are construed strictly against the party seeking to limit its liability.” Hamill v. Cheley Colorado Camps, Inc.,     P. 3d    , 2011 Colo. App. LEXIS 495, 2011 WL 1168006, (Colo. App. March 31, 2011) (Reviewed here in Release stops suit for falling off horse at Colorado summer Camp.)

The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998)

Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence” is disfavored, “it is not necessarily void as against public policy . . . as long as one party is not at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004)

To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy. Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093

BOEC bears the burden of proving each of these elements

The court then went through each of the four steps to make sure this release met the requirements.

(i) there must not have been an obvious disparity in bargaining power between the releasor and releasee;

(ii) the agreement must set forth the parties’ intentions in clear and unambiguous language;

(iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and

(iv) the agreement may not violate public policy

Other courts had found that recreation services are not essential services and there is no unfair bargaining advantage in these types of services. Those recreational services in Colorado where courts had made this decision included mountain biking, bicycle rental, skydiving, handicapped downhill ski racing, and rental of ski equipment.

The issue of whether the party’s intentions are clear and unambiguous requires a review of the document. To do that the court looked at the requirements for a contract in general. (A release is a contract, an agreement between two parties with consideration flowing between the parties.) “Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.“

In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.

The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.

Here, the release was written in simple and clear terms that were free from legal jargon, not inordinately long and/or complicated. Finally, the fact that the plaintiff’s mother indicated she understood the release satisfied this requirement.

The third requirement requires that the contract be fairly entered into. That means that one party is not so obviously disadvantaged that they are at the mercy of the other party. Because recreational activities are not essential services, and those services can be found through other parties who offer them this requirement is always met in the recreational setting. Essential services are those necessary for life. Examples are public transportation, utilities or food.

The last requirement is that the release does not violate public policy. This means that the release does not waive a duty of BOEC’s which cannot be waived. Again, recreational services do not make up a public policy or violate a public policy. In fact, under Colorado law, the public policy is to support recreational activities and thus have parent’s sign releases.

The expressed public policy in Colorado is “to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities. Colo. Rev. Stat. § 13-22-107(1)(a)(VI)

Was there a Material Misrepresentation or Fraud in the Inducement in the relationship between the plaintiff and her mother and the defendant BOEC.

or

Marketing makes promises that Risk Management must pay for.

A release is voidable if it was secured based on a material misrepresentation or fraud in the inducement. Here, the plaintiff argued that BOEC claimed it met the highest standards of the Association of Experiential Education (AEE), which it did not. The plaintiff claimed that BOEC claimed that it was accredited by AEE when it was not, and it met the standards of AEE for adaptive ski programs when there was not any standard for that program.

BOEC stated that at the time of the accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. BOEC also admitted that at the time of the accident the accreditation was for other programs of BOEC, and that AEE did not accredit adaptive ski programs.

Based on these two representations, the plaintiff then argued that BOEC misrepresented itself to the plaintiff.

To establish fraud, a plaintiff has to prove that

(1) a fraudulent misrepresentation of material fact was made by the defendant;

(2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false;

(3) the plaintiff relied on the misrepresentation;

(4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and

(5) the reliance resulted in damages.

Here, the plaintiff could not prove that it relied on the misrepresentations of the BOEC and that the reliance was justified. The court did not find that BOEC had not misrepresented itself or its credentials. The court found the plaintiff had not proven reliance the final step needed to prove fraud.

The court also found that BOEC had not misrepresented the facts to the extent needed to be an intentional fraudulent misrepresentation.

At the time, BOEC followed the adaptive ski standards of the Professional Ski Instructors of America, (PSIA). BOEC was accredited by AEE for its other programs. The letter which had the critical information in it about standards, and accreditation was a letter used for all BOEC programs.

Was the conduct of the parties Willful and Wanton rising to the level of Gross Negligence?

This is always an issue when a release is signed because if the actions of the defendant rise to this level than the release cannot be used to stop claims for gross negligence or intentional acts.

“Gross negligence is willful and wanton conduct; that is, action committed recklessly, with conscious disregard for the safety of others.”  

The court then reviewed the opinion of the plaintiff’s expert witness. His report labeled the BOEC program as inherently unsafe and went on from there. (See Come on! Expert’s will say anything sometimes.)

Based on the expert witness report, the court did not dismiss the last claim of the plaintiffs for gross negligence. The opinion of the expert raised enough facts to create an issue that could not be decided by the court.

All but this final claim was dismissed by the court.

A well-written  release in this case almost won the day; it definitely took a lot of fight out of the plaintiff’s case. The only issue the release could not beat was an outrageous opinion by the plaintiff’s expert witness.

So Now What?

1.       Don’t make the court look for a clause to support your release. Put in the release the magic word negligence and that the signor is giving up their legal rights for any injury or claims based on your negligence. Here, the court was able to find six paragraphs that did the same thing. You can eliminate a few paragraphs if you are up front and honest. You are giving up your right to sue me for any claim or loss based on my negligence.

2.      Identify your document as a release. The court based its decision upholding the release based on the language in the release, and because it was labeled a release.

3.      If you communicate with a client in advance of the activity about the risks or the release, make a note of it. This again was important to the court in proving the mother was not misled and knew what she was signing.

4.      Besides specifically informing the signor of the fact they are giving up their right to sue, your release needs to point out the risks of your activity. Here, the court points out the page long list of risks as important in upholding the release. Too many releases do not include the risks.

5.       Make it easy for your guests to contact you and ask questions about your release, your activity and the risks. Again, the court pointed this out as a specific issue that was important in the court finding for the defendant in this case.

6.      The burden on proving that the release meets the requirements needed in a specific state is on the defendant. Consequently, it behooves the defendant recreation provider to place those requirements in the release so the plaintiff, upon signing, helps prove the document is valid.

7.       Marketing sinks more ships in the outdoor recreation industry than injuries. Make sure your marketing matches who you are and what you do, and that you are not misrepresenting who you are and what you can do. In this case, BOEC escaped a disaster with its marketing of standards and accreditation that either did not exist, or that it did not have.

What do you think? Leave a comment.

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ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

This case shows how standards, written by a great organization with good intentions can be used to help, encourage and support lawsuits against its own members.

This case was settled, but it is full of information that everyone who may be a defendant needs to understand.
This case was started by a woman, the plaintiff, more than five years after she had spent a couple of weeks at a summer camp. She was not a camper nor was she working at the camp. She had been invited out by a staff member to give her a break from home. Allegedly, she was (consensually although there may have been statutory issues) sexually assaulted by an older staff member. She sued the staff member and the camp.

The plaintiff, to support her position, hired an expert witness. This is a common practice to support a claim. The expert witness’s job is to prove the defendant camp had acted in violation of the standard of care for camps. The plaintiff’s expert was an ACA standards visitor. The Expert Opinion by the ACA standards visitor was used in the plaintiff’s motion to support a claim that the defendant Camps actions warranted an award of Punitive Damages.

Punitive damages, are damages awarded by the jury above and beyond actual or compensatory damages. The damages are meant to punish the defendant. Punitive damages are not covered by insurance, are not dischargeable in bankruptcy and are in addition to any other damages. The defendant must pay punitive damages, if awarded, no matter what. Consequently, if the court approves the motion to ask for punitive damages in a case, it almost always forces the defendant to settle for fear of having to pay money out of their own pocket. The facts are never thoroughly litigated because they fear of the punitive is overriding. Even if you are 100% right, you may still settle in if punitive damages is a real threat.

The expert for the plaintiff (no relationship to me) was listed as an expert because she was an American Camp Association Accreditation Standards visitor. The experts Resume listed her ACA membership and her ACA Associate Visitor status second only to her education. The “Standards” allegedly violated were the 1998 ACA Accreditation Standards for Camp Programs and Services.

The expert opinion listed five areas that the camp had violated the standard of care for camps. Those areas are listed in the report as Opinion 1 through 5. ACA standards were used to support the expert’s opinion in three of the violations.

The first opinion rendered was the defendant camp violated the then ACA Accreditation Standards – HR-10. HR-10 states no camp staff member is to be under 16 years of age. The plaintiff at the time she was visiting camp was 14.

The first issue is the standard was applied to a fact situation that really had nothing to do with the claim. However, because there was a standard that could be linked to the claim, no matter how remote, the standard was alleged to be violated by the defendant. The plaintiff in this case was not a camp staff member, was not a volunteer, and was not getting paid. She was there for a break from her family. Nevertheless, the standard was applied to show the defendant camp should be held liable for punitive damages.

The second issue is the standard created by the trade association that the camp was a member of, was used to show the camp was negligent. That is just wrong!

Opinion 4 stated that 4 ACA Camp Standards were violated:

HR-11 requires six days of pre-camp staff training of employees.

HR-12 required late hire training for employees.

HR-13 requires implementation of in-service training for employees.

HR-19 requires specific training for staff supervisors to maintain staff performance and address inappropriate staff behavior.

The plaintiff had not received any training. I’ve never seen a camp train any visitor. (Although I’m sure you wish you could sometimes!)

All four “Standards” were violated because the plaintiff did not receive any of the training required by the ACA “Standards”. Again, visitors to camp need to go through training? Late hire camp staff training? Hire usually means someone is employed, consequently, paid, which never occurred here.

Opinion No. 5 stated the defendant camp violated ACA Standard HW-19 and ACA Standard HW-20 on the proper system of health care camp record keeping. This was alleged because a cut the plaintiff received was not recorded in the nurse’s log.

What is so interesting about this issue was there was no allegation that the cut the plaintiff had received was received or treated negligently. Nothing in the lawsuit claimed the way the plaintiff received the cut, the first aid or treatment was negligent. The complaint just stated she received a cut and was taken home by her parents. The suit claimed that an older camp staff employee had sexual relations with the plaintiff.

However, this is a perfect example of how plaintiffs use any violation of the standard, whether or not it has anything to do with the claim, to make the defendant look bad in the eyes of the court and the jury. Good defendants do not violate standards. Here the defendant was obviously bad because the standard was not met.

There is no way that any camp can operate and not violate one of the “Standards” at some time during the camp season! 1998 there were just too many of them. In 2011 there are even more.
 
To support the allegations made in the plaintiff’s expert report copies of the “Standards” were attached to the report. The following pages were attached to the report:

Cover Page
Title Page
Table of Contents vii
Table of Contents viii
Page 92 HR-10 Staff Age Requirements
Page 93 continuation of HR-10 and HR-11
Page 94 continuation of HR-11, HR-12 and HR-13
Page 97 HR-18 and HR-19
Page 98 continuation of HR-19 and HR-20
Page 67 HW-19 Recordkeeping
Page 68 HW-20 and HW-21

Why only those pages? Because those are the important pages the plaintiff wants the judge to see. There are limits to how big motions can be how many pages the judge will read, pages, etc. Those are all valid arguments and are real for only putting in the important documents as exhibits.

However “standards” are written with disclaimers and limitations and definitions, none of which are ever given to the court. The court is never shown that there may be limitations to what the “Standards” mean or how they are applied.

Even if those were supplied, the court must apply the definitions that are in the statute or by law first and then as used in the community or industry second. See Words: You cannot change a legal definition.

Trade Associations write standards with the mistaken believe that the plaintiff’s experts and the court will apply the standards exactly the way the standards are intended to be written. The facts are once the standards are printed the trade association loses all control no matter how many pages of disclaimers are put in the information.

So the judge in this case, who is pressed for time, reads the report and has a list of standards that are violated. A standard is the optimum word. The camp was below the minimum level of acting or not acting that was set by the camps own trade association. That is all that is needed to keep the case moving forward. Standards were violated. Therefore, there may be negligence. That must go to a jury, there must be a trial and the cost to the defendant (and its insurance company) climbs even higher. (Consequently, your premiums increase also. See Insurance 101 if you don’t fully understand this.)

Even if the additional documentation is put into evidence, the legal definition of the words is going to be used, not how the word is defined in the standards book. See Words: You cannot change a legal definition.

Nor does the court have the opportunity to delve into the standards to find out that most of them are not really standards but suggestions, ideas or just good practices. However, by identifying the book as standard there is a legal definition applied to the work that is just as dangerous as it may be helpful.

Some might say that if the camp was bad then lawsuits get rid of bad camps (or other defendants). However, that never works. This camp did not close up. In fact, in my opinion, this camp was sued because it tried to help out a confused young woman. The end effect is there will be no more attempts to help anyone in the future.

The only real consequence of this lawsuit was the amount of time that spent working on the case. Some money might have moved between the parties, and the attorneys and expert witnesses made money.

Let’s look at the opinion no 1 of the plaintiff’s expert witness. The standard says that employees should not be under the age of 16. Most camps are run by families. Many times there may be two or three generations at the camp. If a staff member sends their 15 year old son to the tool shed to get a tool and in the process the son accidentally knocks over a camper, injuring the camper, the camp has violated that standard. No 16 year olds should be hired by a camp. However, he wasn’t hired. Well, we’ve seen how that does not work, and he was working, providing a benefit for the camp.

The camp has a couple of options.

1. Not allow their children at camp until they are 16.

2. Violate the standard.

You are going to take your kids to camp and have them play video games and watch TV or are you going to put them to work. If you put them to work before they reach the age of 16 you are violating a standard created by a trade association for your benefit.

Say you are an organization that works to install leadership, training and teamwork into the youth. It is common in your organization for the youth to be responsible for other members. (Sound like any organization you know?) Your camps are staffed predominantly by youth because of the training and goals of the organization. Every single one of those camps is in violation of the standard HR-10 (as it was in 1998).
If your youth organization is focused in leadership training and does that by helping youth move up to more advanced and important leadership positions, the entire program will fail if you say to the 14 year olds, wait two years until you turn 16 to move up to the next level, camp staff.

These are just two scenarios where the standard set forth in HR-10 (which is almost identical in the latest version) can be used to sue a camp every single day of the year. However, in both scenarios, nothing has been done wrong other than taking your kid to work and following your youth program guidelines.

Are all standards bad? No, standards for things are great. Concrete “acts” the same way every day. A fight with a spouse, traffic on the way to work, rain, none of this affects concrete. It is going to support XX thousands of pounds of weight. Standards for things work. People and how people operate are subject to millions of things, weather and other people. We don’t’ react the same way. We aren’t affected the same way. We don’t respond the same way, who can you write something down that says we will, no matter what.

For other articles about standards see:

This is how a standard in the industry changes…..but….

Can a Standard Impede Inventions?

Playgrounds will be flat soon

Words: You cannot change a legal definition

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

The motion where the expert witness’ report was filed is here.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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