Idaho Businesses are Stingy: at least with the new Outfitter bill
Posted: February 20, 2023 Filed under: Activity / Sport / Recreation, Idaho | Tags: Bill, Guide, Idaho, Inhernet Risk, Legislature, Outfitter, Outfitter and Guide, statute Leave a commentState: Idaho
There is a new law that is trying to get passed in Idaho. The law wants outfitters to be able to use a release. Idaho law currently allows a release to be used to block a lawsuit. See
Plaintiff raised argument in work/team building situation that they were forced to sign release. release. The state is not a stalwart of release law but the few cases, I’ve read support the release.
The bill wants to make the use of a release ONLY for outfitters and guides a law, not just judicial decision. Here is the statute as of 3/16/21.
6-1206. LIABILITY OF OUTFITTERS AND GUIDES. (1) No outfitter or guide licensed under the provisions of chapter 21, title 36, Idaho Code, and acting in the course of his employment shall be liable to a participant for damages or injuries to such participant unless such damage or injury was directly or proximately caused by failure of the outfitter or guide to comply with the duties placed on him by the negligent, reckless, or intentional conduct of the outfitter or guide.
An outfitter or guide has no duty to eliminate, alter, control, or lessen the risks inherent with recreational activities provided by outfitters and guides. A participant who takes part in a recreational activity provided by outfitters and guides assumes all risks inherent in that activity.
Any person may, by express written consent, prospectively waive negligence claims against licensed outfitters and guides. It is the policy of this state that such written liability waivers are enforceable to the same degree as similar waivers for other activities.
Click on the Link Above and Click On Bill Text to see the latest version. Be careful it is written in legislative legalese, which I have cleaned up above.
I’m not sure what prompted this bill. However, there are several issues with it.
You cannot sue for the inherent risks of an activity. The issue in a case like this is was the risk that caused the injury inherent or man-made. This bill does nothing to clarify what an inherent risk is so that is not going to change anything. Plaintiffs are still going to sue; they are just going to argue the outfitter changed the risk or created the risk, and it was not inherent.
If you want to protect yourself from that “what is inherent” lawsuit you need to define them in the statute. There seems to be a reluctance to do this because even the Idaho Ski Safety Act does not define the inherent risks. See Idaho Ski Safety Act.
Most other ski safety acts do. See the Colorado Ski Safety Act which identifies inherent risks in 33-44-103. Definitions. (3.5)
(3.5) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104 (2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.
Avalanches were added to that list by the Colorado Supreme Court in Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.
As such, a skier and skier’s attorney quickly know if they have a case or not. Versus in Idaho where you have to sue to have the judge decided if the risk that caused your injury on the slopes or by an outfitter were inherent. That costs money.
Part of the act outlines how a plaintiff can sue the outfitter or guide. By the “negligent, reckless, or intentional conduct” of the outfitter or guide. Never tell the opposition how to sue you. Besides in this case they already know. That part of the act does not change anything. That is the law in Idaho and every other state.
Consequently, the bill is pretty weak or better has no real value.
On top of that the bill is very narrow. Outfitters and Guides licensed by the state are not the only groups that can be sued because of the risks of an activity. I would think they would gather more support if the included other groups such as:
Youth Groups Youth Camps Sports Activities Coaches Volunteer Youth Leaders
Recreational Activities such as Indoor Climbing Walls, Trampoline parks, etc.
Little League and Youth Football programs alone would bring a lot of additional support.
To get a bill to pass, in most state legislatures, you have to give the legislators a reason not to vote against the bill. Having the outfitters and guides contacting their legislators is probably a small group of legislators since the areas the outfitters and guides are based is pretty sparse.
Having little league coaches in Boise, Moscow and other suburban areas would add a lot of voices in support.
Good luck on passing the bill; however, I think a lot of time; money and energy will be invested with little or no return.
For more about “inherent risks” see:
2015 SLRA – Inherent Risk: Should the Phrase be in your Release?
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Jim Moss
I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry
I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses
What do you think? Leave a comment below.
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Minn. Stat. 184B.20 Inflatable Amusement Equipment (Minnesota Statutes (2022 Edition))
Posted: April 18, 2022 Filed under: Indoor Recreation Center, Minnesota | Tags: Commercial Use, Inflatable, Inflatable Amusement Equipment, Minnesota, Minor, Release, statute Leave a commentMinn. Stat. 184B.20 Inflatable Amusement Equipment (Minnesota Statutes (2022 Edition))
§ 184B.20. INFLATABLE AMUSEMENT EQUIPMENT
Subdivision 1. Definitions.
(a) For purposes of this section, the terms defined in this subdivision have the meanings given.
(b) “Commercial use” means regular use of an inflatable for profit by an owner at a permanently located facility:
(1) to which the general public is invited; or
(2) which the owner makes available at that facility for private parties or other events.
“Commercial use” does not include use of an inflatable (i) at a carnival, festival, fair, private party, or similar venue at a location other than the permanently located facility, or (ii) at a facility where the use of the inflatable is incidental to the primary use of the facility.
(c) “Inflatable” means an amusement device, used to bounce or otherwise play on, that incorporates a structural and mechanical system and employs a high-strength fabric or film that achieves its strength, shape, and stability by tensioning from internal air pressure.
(d) “Owner” means a person who owns, leases as lessee, or controls the operation of an inflatable for commercial use.
(e) “Person” has the meaning given in section 302A.011, subdivision 22.
(f) “Supervisor” means an individual stationed within close proximity to an inflatable during its use, for the purpose of supervising its safe use.
(g) “Trained” means that an individual has received instruction in how to supervise the safe use of inflatables in accordance with industry and ASTM standards.
Subd. 2. Prohibition.
No owner shall provide an inflatable for commercial use in this state by others unless the owner complies with this section.
Subd. 3. Protection against injuries from falls.
An inflatable that is in commercial use must be placed in a manner that complies with ASTM Standard F 2374.07, adopted by the American Society for Testing and Materials, including any future updates to that standard.
Subd. 4. Supervision by trained person required.
No owner of an inflatable shall allow commercial use of the inflatable unless a trained supervisor is present in close proximity to the inflatable and is actively supervising its use. The ratio of supervisors to inflatables must comply with ASTM Standard F 2374.07, as referenced under subdivision 3.
Subd. 5. Insurance required; waiver of liability limited.
(a) An owner of an inflatable that is subject to subdivision 2 shall maintain liability insurance covering liability for a death or injury resulting from commercial use of the inflatable with limits of no less than $1,000,000 per occurrence and $2,000,000 aggregate per year. The insurance shall also include medical payments coverage of no less than $5,000 per occurrence, which may be limited to injuries incurred while using an inflatable, including getting on or off of the inflatable. The insurance must be issued by an insurance company authorized to issue the coverage in this state by the commissioner of commerce, and must be kept in force during the entire period of registration. In the event of a policy cancellation, the insurer will send written notice to the commissioner of labor and industry at the same time that a cancellation request is received from or a notice is sent to the insured.
(b) A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.
Subd. 6. Registration required.
An owner of an inflatable that is subject to subdivision 2 must obtain and maintain a current registration with the commissioner of labor and industry. The registration information must include the name, address, telephone number, and e-mail address of the owner, the street address of each facility at which the owner regularly provides inflatables for commercial use in this state by others, and a current insurance certificate of coverage proving full compliance with subdivision 5. The commissioner shall issue and renew a certificate of registration only to owners who comply with this section. The commissioner shall charge a registration fee of $100 for a two-year registration designed to cover the cost of registration and enforcement. Fee receipts must be deposited in the state treasury and credited to the construction code fund. The registration certificate shall be issued and renewed for a two-year period. The registrant shall promptly notify the commissioner in writing of any changes in the registration information required in this subdivision.
Subd. 7. Enforcement.
The commissioner of labor and industry shall enforce this section and may use for that purpose section 326B.082 and any powers otherwise available to the commissioner for enforcement purposes, including suspension or revocation of the person’s registration and assessment of fines.
Source:
2010 c 347 art 3s 2
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Texas Recreational Use Statute
Posted: November 14, 2014 Filed under: Texas | Tags: Immunity, Limitation of Landowner's Liability, Recreation, Recreational Use Act, statute 2 CommentsCivil Practice and Remedies Code
Title 4. Liability in Tort
Chapter 75. Limitation of Landowners’ Liability
Go to Texas Code Archive Directory
Tex. Civ. Prac. & Rem. Code § 75.001 (2014)
§ 75.001. Definitions
In this chapter:
(1) “Agricultural land” means land that is located in this state and that is suitable for:
(A) use in production of plants and fruits grown for human or animal consumption, or plants grown for the production of fibers, floriculture, viticulture, horticulture, or planting seed;
(B) forestry and the growing of trees for the purpose of rendering those trees into lumber, fiber, or other items used for industrial, commercial, or personal consumption; or
(C) domestic or native farm or ranch animals kept for use or profit.
(2) “Premises” includes land, roads, water, watercourse, private ways, and buildings, structures, machinery, and equipment attached to or located on the land, road, water, watercourse, or private way.
(3) “Recreation” means an activity such as:
(A) hunting;
(B) fishing;
(C) swimming;
(D) boating;
(E) camping;
(F) picnicking;
(G) hiking;
(H) pleasure driving, including off-road motorcycling and off-road automobile driving and the use of all-terrain vehicles;
(I) nature study, including bird-watching;
(J) cave exploration;
(K) waterskiing and other water sports;
(L) any other activity associated with enjoying nature or the outdoors;
(M) bicycling and mountain biking;
(N) disc golf;
(O) on-leash and off-leash walking of dogs; or
(P) radio control flying and related activities.
(4) “Governmental unit” has the meaning assigned by Section 101.001.
§ 75.002. Liability Limited
(a) An owner, lessee, or occupant of agricultural land:
(1) does not owe a duty of care to a trespasser on the land; and
(2) is not liable for any injury to a trespasser on the land, except for wilful or wanton acts or gross negligence by the owner, lessee, or other occupant of agricultural land.
(b) If an owner, lessee, or occupant of agricultural land gives permission to another or invites another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:
(1) assure that the premises are safe for that purpose;
(2) owe to the person to whom permission is granted or to whom the invitation is extended a greater degree of care than is owed to a trespasser on the premises; or
(3) assume responsibility or incur liability for any injury to any individual or property caused by any act of the person to whom permission is granted or to whom the invitation is extended.
(c) If an owner, lessee, or occupant of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:
(1) assure that the premises are safe for that purpose;
(2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises; or
(3) assume responsibility or incur liability for any injury to any individual or property caused by any act of the person to whom permission is granted.
(d) Subsections (a), (b), and (c) shall not limit the liability of an owner, lessee, or occupant of real property who has been grossly negligent or has acted with malicious intent or in bad faith.
(e) In this section, “recreation” means, in addition to its meaning under Section 75.001, the following activities only if the activities take place on premises owned, operated, or maintained by a governmental unit for the purposes of those activities:
(1) hockey and in-line hockey;
(2) skating, in-line skating, roller-skating, skateboarding, and roller-blading;
(3) soap box derby use; and
(4) paintball use.
(f) Notwithstanding Subsections (b) and (c), if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises.
(g) Any premises a governmental unit owns, operates, or maintains and on which the recreational activities described in Subsections (e)(1)–(4) are conducted shall post and maintain a clearly readable sign in a clearly visible location on or near the premises. The sign shall contain the following warning language:
WARNING
TEXAS LAW (CHAPTER 75, CIVIL PRACTICE AND REMEDIES CODE) LIMITS THE LIABILITY OF A GOVERNMENTAL UNIT FOR DAMAGES ARISING DIRECTLY FROM HOCKEY, IN-LINE HOCKEY, SKATING, IN-LINE SKATING, ROLLER-SKATING, SKATEBOARDING, ROLLER-BLADING, PAINTBALL USE, OR SOAP BOX DERBY USE ON PREMISES THAT THE GOVERNMENTAL UNIT OWNS, OPERATES, OR MAINTAINS FOR THAT PURPOSE.
(h) An owner, lessee, or occupant of real property in this state is liable for trespass as a result of migration or transport of any air contaminant, as defined in Section 382.003(2), Health and Safety Code, other than odor, only upon a showing of actual and substantial damages by a plaintiff in a civil action.
(i) Subsections (b) and (c) do not affect any liability of an owner, lessee, or occupant of real property for an injury occurring outside the boundaries of the real property caused by an activity described by Section 75.001(3)(P) that originates within the boundaries of the real property.
§ 75.003. Application and Effect of Chapter
(a) This chapter does not relieve any owner, lessee, or occupant of real property of any liability that would otherwise exist for deliberate, wilful, or malicious injury to a person or to property.
(b) This chapter does not affect the doctrine of attractive nuisance, except:
(1) as provided by Section 75.0022(g); and
(2) the doctrine of attractive nuisance may not be the basis for liability of an owner, lessee, or occupant of agricultural land for any injury to a trespasser over the age of 16 years.
(c) Except for a governmental unit, this chapter applies only to an owner, lessee, or occupant of real property who:
(1) does not charge for entry to the premises;
(2) charges for entry to the premises, but whose total charges collected in the previous calendar year for all recreational use of the entire premises of the owner, lessee, or occupant are not more than 20 times the total amount of ad valorem taxes imposed on the premises for the previous calendar year; or
(3) has liability insurance coverage in effect on an act or omission described by Section 75.004(a) and in the amounts equal to or greater than those provided by that section.
(d) This chapter does not create any liability.
(e) Except as otherwise provided, this chapter applies to a governmental unit.
(f) This chapter does not waive sovereign immunity.
(g) To the extent that this chapter limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under Chapter 101, this chapter controls.
(h) In the case of agricultural land, an owner, lessee, or occupant of real property who does not charge for entry to the premises because the individuals entering the premises for recreation are invited social guests satisfies the requirement of Subsection (c)(1).
§ 75.004. Limitation on Monetary Damages for Private Landowners
(a) Subject to Subsection (b), the liability of an owner, lessee, or occupant of agricultural land used for recreational purposes for an act or omission by the owner, lessee, or occupant relating to the premises that results in damages to a person who has entered the premises is limited to a maximum amount of $ 500,000 for each person and $ 1 million for each single occurrence of bodily injury or death and $ 100,000 for each single occurrence for injury to or destruction of property. In the case of agricultural land, the total liability of an owner, lessee, or occupant for a single occurrence is limited to $ 1 million, and the liability also is subject to the limits for each single occurrence of bodily injury or death and each single occurrence for injury to or destruction of property stated in this subsection.
(b) This section applies only to an owner, lessee, or occupant of agricultural land used for recreational purposes who has liability insurance coverage in effect on an act or omission described by Subsection (a) and in the amounts equal to or greater than those provided by Subsection (a). The coverage may be provided under a contract of insurance or other plan of insurance authorized by statute. The limit of liability insurance coverage applicable with respect to agricultural land may be a combined single limit in the amount of $ 1 million for each single occurrence.
(c) This section does not affect the liability of an insurer or insurance plan in an action under Chapter 541, Insurance Code, or an action for bad faith conduct, breach of fiduciary duty, or negligent failure to settle a claim.
(d) This section does not apply to a governmental unit.
§ 75.007. Trespassers
(a) In this section, “trespasser” means a person who enters the land of another without any legal right, express or implied.
(b) An owner, lessee, or occupant of land does not owe a duty of care to a trespasser on the land and is not liable for any injury to a trespasser on the land, except that an owner, lessee, or occupant owes a duty to refrain from injuring a trespasser wilfully, wantonly, or through gross negligence.
(c) Notwithstanding Subsection (b), an owner, lessee, or occupant of land may be liable for injury to a child caused by a highly dangerous artificial condition on the land if:
(1) the place where the artificial condition exists is one upon which the owner, lessee, or occupant knew or reasonably should have known that children were likely to trespass;
(2) the artificial condition is one that the owner, lessee, or occupant knew or reasonably should have known existed, and that the owner, lessee, or occupant realized or should have realized involved an unreasonable risk of death or serious bodily harm to such children;
(3) the injured child, because of the child’s youth, did not discover the condition or realize the risk involved in intermeddling with the condition or coming within the area made dangerous by the condition;
(4) the utility to the owner, lessee, or occupant of maintaining the artificial condition and the burden of eliminating the danger were slight as compared with the risk to the child involved; and
(5) the owner, lessee, or occupant failed to exercise reasonable care to eliminate the danger or otherwise protect the child.
(d) An owner, lessee, or occupant of land whose actions are justified under Subchapter C or D, Chapter 9, Penal Code, is not liable to a trespasser for damages arising from those actions.
(e) This section does not affect Section 75.001, 75.002, 75.0021, 75.003, or 75.004 or create or increase the liability of any person.
Utah Equine Liability Statutes
Posted: November 6, 2014 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Utah | Tags: Equine, Horse, Immunity, stable, statute, UT, Utah Leave a commentUtah Code Annotated
Title 78B Judicial Code
Chapter 4 Limitations on Liability
Part 2 Limitations on Liability for Equine and Livestock Activities
Utah Code Ann. § 78B-4-201 (2014)
78B-4-201. Definitions.
As used in this part:
(1) “Equine” means any member of the equidae family.
(2) “Equine activity” means:
(a) equine shows, fairs, competitions, performances, racing, sales, or parades that involve any breeds of equines and any equine disciplines, including dressage, hunter and jumper horse shows, grand prix jumping, multiple-day events, combined training, rodeos, driving, pulling, cutting, polo, steeple chasing, hunting, endurance trail riding, and western games;
(b) boarding or training equines;
(c) teaching persons equestrian skills;
(d) riding, inspecting, or evaluating an equine owned by another person regardless of whether the owner receives monetary or other valuable consideration;
(e) riding, inspecting, or evaluating an equine by a prospective purchaser; or
(f) other equine activities of any type including rides, trips, hunts, or informal or spontaneous activities sponsored by an equine activity sponsor.
(3) “Equine activity sponsor” means an individual, group, governmental entity, club, partnership, or corporation, whether operating for profit or as a nonprofit entity, which sponsors, organizes, or provides facilities for an equine activity, including:
(a) pony clubs, hunt clubs, riding clubs, 4-H programs, therapeutic riding programs, and public and private schools and postsecondary educational institutions that sponsor equine activities; and
(b) operators, instructors, and promoters of equine facilities, stables, clubhouses, ponyride strings, fairs, and arenas.
(4) “Equine professional” means a person compensated for an equine activity by:
(a) instructing a participant;
(b) renting to a participant an equine to ride, drive, or be a passenger upon the equine; or
(c) renting equine equipment or tack to a participant.
(5) “Inherent risk” with regard to equine or livestock activities means those dangers or conditions which are an integral part of equine or livestock activities, which may include:
(a) the propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them;
(b) the unpredictability of the animal’s reaction to outside stimulation such as sounds, sudden movement, and unfamiliar objects, persons, or other animals;
(c) collisions with other animals or objects; or
(d) the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability.
(6) “Livestock” means all domesticated animals used in the production of food, fiber, or livestock activities.
(7) “Livestock activity” means:
(a) livestock shows, fairs, competitions, performances, packing events, or parades or rodeos that involve any or all breeds of livestock;
(b) using livestock to pull carts or to carry packs or other items;
(c) using livestock to pull travois-type carriers during rescue or emergency situations;
(d) livestock training or teaching activities or both;
(e) taking livestock on public relations trips or visits to schools or nursing homes;
(f) boarding livestock;
(g) riding, inspecting, or evaluating any livestock belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the livestock or is permitting a prospective purchaser of the livestock to ride, inspect, or evaluate the livestock;
(h) using livestock in wool production;
(i) rides, trips, or other livestock activities of any type however informal or impromptu that are sponsored by a livestock activity sponsor; and
(j) trimming the feet of any livestock.
(8) “Livestock activity sponsor” means an individual, group, governmental entity, club, partnership, or corporation, whether operating for profit or as a nonprofit entity, which sponsors, organizes, or provides facilities for a livestock activity, including:
(a) livestock clubs, 4-H programs, therapeutic riding programs, and public and private schools and postsecondary educational institutions that sponsor livestock activities; and
(b) operators, instructors, and promoters of livestock facilities, stables, clubhouses, fairs, and arenas.
(9) “Livestock professional” means a person compensated for a livestock activity by:
(a) instructing a participant;
(b) renting to a participant any livestock for the purpose of riding, driving, or being a passenger upon the livestock; or
(c) renting livestock equipment or tack to a participant.
(10) “Participant” means any person, whether amateur or professional, who directly engages in an equine activity or livestock activity, regardless of whether a fee has been paid to participate.
(11) (a) “Person engaged in an equine or livestock activity” means a person who rides, trains, leads, drives, or works with an equine or livestock, respectively.
(b) Subsection (11)(a) does not include a spectator at an equine or livestock activity or a participant at an equine or livestock activity who does not ride, train, lead, or drive an equine or any livestock.
78B-4-202. Equine and livestock activity liability limitations.
(1) It shall be presumed that participants in equine or livestock activities are aware of and understand that there are inherent risks associated with these activities.
(2) An equine activity sponsor, equine professional, livestock activity sponsor, or livestock professional is not liable for an injury to or the death of a participant due to the inherent risks associated with these activities, unless the sponsor or professional:
(a) (i) provided the equipment or tack;
(ii) the equipment or tack caused the injury; and
(iii) the equipment failure was due to the sponsor’s or professional’s negligence;
(b) failed to make reasonable efforts to determine whether the equine or livestock could behave in a manner consistent with the activity with the participant;
(c) owns, leases, rents, or is in legal possession and control of land or facilities upon which the participant sustained injuries because of a dangerous condition which was known to or should have been known to the sponsor or professional and for which warning signs have not been conspicuously posted;
(d) (i) commits an act or omission that constitutes negligence, gross negligence, or willful or wanton disregard for the safety of the participant; and
(ii) that act or omission causes the injury; or
(e) intentionally injures or causes the injury to the participant.
(3) This chapter does not prevent or limit the liability of an equine activity sponsor, an equine professional, a livestock activity sponsor, or a livestock professional who is:
(a) a veterinarian licensed under Title 58, Chapter 28, Veterinary Practice Act, in an action to recover for damages incurred in the course of providing professional treatment of an equine;
(b) liable under Title 4, Chapter 25, Estrays and Trespassing Animals; or
(c) liable under Title 78B, Chapter 7, Utah Product Liability Act.
78B-4-203. Signs to be posted listing inherent risks and liability limitations.
(1) An equine or livestock activity sponsor shall provide notice to participants of the equine or livestock activity that there are inherent risks of participating and that the sponsor is not liable for certain of those risks.
(2) Notice shall be provided by:
(a) posting a sign in a prominent location within the area being used for the activity; or
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
(3) The notice provided by the sign or document shall be sufficient if it includes the definition of inherent risk in Section 78B-4-201 and states that the sponsor is not liable for those inherent risks.
(4) Notwithstanding Subsection (1), signs are not required to be posted for parades and activities that fall within Subsections 78B-4-201(2)(f) and (7)(c), (e), (g), (h), and (j).
One winner for equine liability statutes. Indiana statute stops litigation based on horse kick.
Posted: June 30, 2014 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Indiana | Tags: 4-H, Equine Liability Statute, Horse, Horses, Indiana, statute, Whitley County 4-H Clubs Inc. Leave a commentHowever, the plaintiff in this case owned horses and participated as a volunteer in the activities. Equine liability statutes protect horses better than the horse owners.
Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Plaintiff: Teresa Perry
Defendant: Whitley County 4-H Clubs Inc.
Plaintiff Claims: injuries were caused by the 4-H Club‘s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn…
Defendant Defenses: Equine Activity Statute
Holding:
The plaintiff was a volunteer with the defendant 4-H Club serving on its Equine Advisory Board. She also owned seven horses. During an event, the plaintiff walked over to a child to instruct the child to move her horse because she was at risk of being injured. The plaintiff in the process was kicked by a horse.
The plaintiff sued. The trial court dismissed the case based on the Indiana Equine Activity Statute. This appeal followed.
Summary of the case
The court fist looked at its duties when interpreting a statute for the first time.
When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.
The court then looked at the requirements of the statute and whether or not the defendant had met the requirements. First, the protection afforded by the statute does not apply unless at least one warning sign is posted on the premises.
…the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c).
The court found the signs were posted at all entrances to the horse barn and were clearly visible. However, there were no signs on the show barn where the incident occurred. However, the plaintiff admitted that she had seen the signs posted on the horse barn.
The next issue was whether or not the incident and injury the plaintiff suffered were an inherent risk of equine activities. (Really? I grew up with horses; being kicked happens…….a lot.) In this case, the plaintiff tried to argue the language in the statute did not cover the actual incident that caused her injury. Meaning the accident was not caused by an inherent risk but by negligence of the defendants.
Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:
(1) an injury to a participant; or
(2) the death of a participant;
resulting from an inherent risk of equine activities.
Ind. Code § 34-31-5-1(a). 2 The definition of “inherent risks of equine activities” is:
the dangers or conditions that are an integral part of equine activities, including the following:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.
(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.
(3) Hazards such as surface and subsurface conditions.
(4) Collisions with other equines or objects.
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.
Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:
Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:
(1) who:
(A) provided equipment or tack that was faulty and that caused the injury; and
(B) knew or should have known that the equipment or tack was faulty;
(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:
(A) determine the ability of the participant to engage safely in the equine activity; and
(B) determine the ability of the participant to safely manage the particular equine;
(3) who:
(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and
(B) knew or should have known of the dangerous latent condition that caused the injuries;
if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;
(4) who committed an act or omission that:
(A) constitutes reckless disregard for the safety of the participant; and
(B) caused the injury; or
(5) who intentionally injured the participant.
The court’s analysis quasi reversed the plaintiff’s argument. If the injury was caused by an inherent risk of equine activities, then it would not matter if the defendant was negligent.
The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.”
The plaintiff’s injuries were due to an inherent risk of horses.
As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent.
Consequently, the court held the complaint was properly dismissed, and the defendant was not liable.
So Now What?
This is a great case; the statute worked. I now have to change my quote. Equine liability statutes are 100% effective. Since being passed no horse has been sued, but owners of horses are still being sued. And the statute protected one of them.
If you are subject to a statute that requires signs, post them everywhere. Post them in every location where people enter the premises. Post them on every building and every building entrance. Post them inside the building were spectators, and participants will see the signs. The signs are cheap compared to the cost of litigation.
Understand the statute and make sure you fulfill every aspect of the statute and cover all the requirements.
As this case points out, however, the statute still left a lot to lose a lawsuit over. Statutes are rarely written to provide 100% protection. Consequently, unless you want to litigate every word in the statute, use additional defenses.
1. Use a release. As pointed out in this case, if interpreted differently or if a sign had blown away, the best defense to this lawsuit would have been a release.
2. Educate the youth you are working with and the adults working with them. In this case, the adult was there because of her knowledge of the risks of the activity.
One point that stands out in this decision is the knowledge and experience of the plaintiff. It is hard for someone who owns seven horses to argue that getting kicked by a horse is not an inherent risk of horses.
Would this decision be different if the plaintiff had no knowledge or experience with horses?
What do you think? Leave a comment.
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Tennessee Whitewater Rafting Professionals
Posted: April 21, 2014 Filed under: Tennessee, Whitewater Rafting | Tags: statute, Tennessee, Tennessee Whitewater Rafting Professionals, Whitewater Rafting Leave a commentTennessee Whitewater Rafting Professionals
Title 70 Wildlife Resources
Chapter 7 Liability for Activities
Part 2 Whitewater Rafting Professionals
GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY
Tenn. Code Ann. § 70-7-201 (2013)
70-7-201. Part definitions.
As used in this part, unless the context otherwise requires:
(1) “Engages in whitewater activity” means whitewater rafting;
(2) “Inherent risks of whitewater activities” means those dangers or conditions that are an integral part of whitewater activities, including, but not limited to:
(A) Water;
(B) Rocks and obstructions;
(C) Cold water and weather; and
(D) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or other, such as failing to follow instructions or not acting within the participant’s ability;
(3) “Participant” means any person who engages in a whitewater activity;
(4) “Whitewater” means rapidly moving water;
(5) “Whitewater activity” means navigation on rapidly moving water in a watercraft; and
(6) “Whitewater professional” means a person, corporation, LLC, partnership, natural person or any other entity engaged for compensation in whitewater activity.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
70-7-202. Limitations on liability of whitewater professional.
Except as provided in § 70-7-203:
(1) A whitewater professional shall not be liable for an injury to or the death of a participant resulting from the inherent risks of whitewater activities; and
(2) No participant or participant’s representative shall make any claim against, maintain an action against, or re-cover from a whitewater professional, or any other participant for injury, loss, damages, or death of the participant resulting from any of the inherent risks of whitewater activities.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
Section to Section References.
This section is referred to in § 70-7-203.
70-7-204. Warning notice.
(a) Every whitewater professional shall either post and maintain signs that contain the warning notice prescribed in subsection (d) or give the warning in writing to participants. The signs shall be placed in clearly visible locations on or near places where the whitewater professional conducts whitewater activities, if the places are owned, managed, or controlled by the professional.
(b) The warning notice specified in subsection (d) shall appear on the sign in black letters, with each letter to be a minimum of one inch (1”) in height.
(c) Every written contract entered into by a whitewater professional for the purpose of providing professional services, instruction, or the rental of equipment to a participant, whether or not the contract involves activities on or off the location or site of the whitewater professional’s business, shall contain in clearly readable print the warning notice specified in subsection (d).
(d) The signs and contracts described in subsection (a) shall contain the following warning notice:
WARNING
Pursuant to Tenn. Code Annotated title 70, chapter 7, part 2, a whitewater professional is not liable for an injury to or the death of a participant in whitewater activities resulting from the inherent risks of whitewater activities.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
70-7-203. When liability of whitewater professional imposed.
Nothing in § 70-7-202 shall be construed to prevent or limit the liability of a whitewater professional, or any other person if the whitewater professional:
(1) Provided the equipment and knew or should have known that the equipment was faulty, and the equipment was faulty to the extent that it caused the injury;
(2) Owns, leases, rents, or otherwise is in the lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition that was known to the whitewater professional, or person and for which warning signs have not been conspicuously posted;
(3) Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and the act or omission caused the injury; or
(4) Intentionally injures the participant.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
Section to Section References.
This section is referred to in § 70-7-202.
70-7-205. Written waivers, exculpatory agreements and releases.
Nothing in this part shall modify, constrict or prohibit the use of written waivers, exculpatory agreements or releases. This part is intended to provide additional limitations of liability for whitewater professionals, whether or not such agreements are used.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
Release signed for whitewater rafting also works to stop claim for tripping getting out of raft bus. Tennessee release law broad enough to protect items enumerated in the release
Posted: March 10, 2014 Filed under: Paddlesports, Release (pre-injury contract not to sue), Tennessee, Whitewater Rafting | Tags: Bus, Negligence, Public Policy, Raft, Rafting, Rafting Bus, Release, statute, Tennessee, Transportation, Whitewater Rafting Leave a commentHenderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334
Plaintiff: Nathan & Brandy Henderson
Defendant: Quest Expeditions, Inc.
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: for the defendant based on the release
This Tennessee case is quite interesting. The plaintiff was a first-time whitewater rafter. After the raft trip ended, he boarded the bus to ride back to the office. For some reason, not in the record, he was forced to get out of the first bus and board another bus. While disembarking from the first bus he slipped and fell sustaining injuries.
He filed this suit which was dismissed by the trial court based on a Motion for Summary Judgment. The plaintiff appealed arguing the release was barred by public policy and void because it was too excessive in its scope.
Summary of the case
The court looked at all arguments raised by the plaintiff on appeal. Some that I have reviewed and written about before and some new and “novel” theories.
The first issue was the plaintiff stated the release should be thrown out because the plaintiff “had no previous white-water rafting experience, and was given a pre-printed document to sign prior to the excursion which was not reviewed with him by an employee of defendant.”
Can you imagine the pile up in an office if you had to go over each release with each patron who came to purchase a trip from you?
The plaintiff also argued that “he was not advised whether there were any other rafting companies who would allow him to go rafting without having to sign a waiver, or whether he could pay additional money to not have to sign the waiver.”
This is a rare argument, but it has been used to defeat releases in a few cases. See Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2.
The next argument was the release was void because it violated public policy. The court first looked at whether releases were valid in Tennessee. The Tennessee Supreme Court upheld releases.
It is well settled in this State that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. . . . Further, it is not necessary that the word ‘negligence’ appear in the exculpatory clause and the public policy of Tennessee favors freedom to contract against liability for negligence.
Of note is the statement by the court that the word negligence does not need to appear in the release. The Tennessee Supreme Court adopted the requirements of Tunkl v. Regents of University of California, 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (Ca. 1963) to determine if an activity should not be covered by a release.
(a.) It concerns a business of a type generally thought suitable for public regulation.
(b.) The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.
(c.) The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
(d.) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
(e.) In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
(f.) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.
The court then looked at the factors as explained by the Tennessee Supreme Court. Generally, professionals are not allowed to receive a release for their negligence, where tradesmen could.
…not all of the factors had to be present in order to invalidate an exculpatory agreement, but generally, the factors were limited to circumstances involving “a contract with a profession, as opposed to ‘tradesmen in the marketplace’
Whitewater rafting is not a professional trade and as such the defendant could use a release. Whitewater rafting “is not a service of “great importance to the public, which is often a matter of practical necessity for some members of the public.” There is no necessity that one goes whitewater rafting.
The plaintiff then argued that because whitewater rafting was regulated it was of a public interest. Tennessee’s legislature passed 2005 Tenn. Pub. Acts 169 which regulated whitewater rafting in the state. However, the statute specifically allowed the use of releases. T.C.A. 70-7-205. Written waivers, exculpatory agreements and releases.
The final argument was the injury received by the plaintiff, slipping exiting a bus, which not an inherent risk of whitewater rafting and thus of outside the scope of the release. The plaintiff described the busses of the defendant in his complaint as: “…dilapidated school buses.” (Seems like a normal rafting company to me……
However, the court rejected that argument on two grounds. The first was the release was written broadly and covered all negligent acts of the defendant. The second was the release mentioned bus or van transportation. “Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white-water rafting and “bus or van transportation” provided by the defendant.”
The court concluded:
The Contract under consideration is clear and unambiguous, and states that plaintiffs agreed to release defendant from any and all liability, including defendant’s own negligence. Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white water rafting and “bus or van transportation” provided by the defendant. The Contract states that plaintiffs realize that they could be injured due to dangers from the rafting as well as the use of white water equipment, forces of nature, or even due to the negligence of defendant’s employees and other rafters. The Con-tract states that defendant is being relieved of any liability caused by its own negligence in no less than four places, the last of which is in bold print above the signature line. This Contract is plain, and enforceable as written.
So Now What?
First never run the risk of having a release thrown out because it does not include the magic word negligence. Even though the Supreme Court may not require it today, your lawsuit tomorrow may set precedence on that issue. It is easy to put in and should be in every release.
To defeat the argument that you should be able to bargain your way out of the release or that whether there are any other companies offering trips without requiring a release to be signed you should put language in your release advising your clients about those issues. A release that states that the person is signing the release voluntarily and undertaking the activity voluntarily and is free to go, as in this case, whitewater rafting with someone else can eliminate this argument in most states.
To engage or purchase a trip with you without signing a release have your insurance company send you a letter stating how much your insurance would cost if a release is not signed. Then if asked you can show a patron the letter to support charging the normal price plus the increase in your insurance premium to go on a trip without signing a release. A $10,095.00 raft trip is probably not worth it for a day on the water.
If anyone asks if they can go rafting and not sign a release, the easiest way to respond is to send them to a competitor.
Whether or not transportation will be covered by a release will be different for each state. In some states if the transportation is incidental to the activity it may be covered. Here the release was written broadly, and releases are interpreted broadly to allow the scope of the release to cover transportation.
In some states, however, transportation is an activity that cannot be released because it is protected by public policy.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Liability for Activities Whitewater Rafting Professionals
Posted: March 10, 2014 Filed under: Paddlesports, Tennessee, Whitewater Rafting | Tags: Paddling, Raft, Recreation, Release, statute, Tenn, Tennessee, Whitewater Rafting Leave a commentTennessee Whitewater Rafting Statute
TENNESSEE CODE ANNOTATED
Title 70 Wildlife Resources
Chapter 7 Liability for Activities
Part 2 Whitewater Rafting Professionals
GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY
Tenn. Code Ann. § 70-7-204 (2013)
70-7-201. Part definitions.
As used in this part, unless the context otherwise requires:
(1) “Engages in whitewater activity” means whitewater rafting;
(2) “Inherent risks of whitewater activities” means those dangers or conditions that are an integral part of whitewater activities, including, but not limited to:
(A) Water;
(B) Rocks and obstructions;
(C) Cold water and weather; and
(D) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or other, such as failing to follow instructions or not acting within the participant’s ability;
(3) “Participant” means any person who engages in a whitewater activity;
(4) “Whitewater” means rapidly moving water;
(5) “Whitewater activity” means navigation on rapidly moving water in a watercraft; and
(6) “Whitewater professional” means a person, corporation, LLC, partnership, natural person or any other en-tity engaged for compensation in whitewater activity.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
70-7-202. Limitations on liability of whitewater professional.
Except as provided in § 70-7-203:
(1) A whitewater professional shall not be liable for an injury to or the death of a participant resulting from the inherent risks of whitewater activities; and
(2) No participant or participant’s representative shall make any claim against, maintain an action against, or re-cover from a whitewater professional, or any other participant for injury, loss, damages, or death of the participant resulting from any of the inherent risks of whitewater activities.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
Section to Section References.
This section is referred to in § 70-7-203.
70-7-203. When liability of whitewater professional imposed.
Nothing in § 70-7-202 shall be construed to prevent or limit the liability of a whitewater professional, or any other person if the whitewater professional:
(1) Provided the equipment and knew or should have known that the equipment was faulty, and the equipment was faulty to the extent that it caused the injury;
(2) Owns, leases, rents, or otherwise is in the lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition that was known to the whitewater professional, or person and for which warning signs have not been conspicuously posted;
(3) Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and the act or omission caused the injury; or
(4) Intentionally injures the participant.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
Section to Section References.
This section is referred to in § 70-7-202.
70-7-204. Warning notice.
(a) Every whitewater professional shall either post and maintain signs that contain the warning notice prescribed in subsection (d) or give the warning in writing to participants. The signs shall be placed in clearly visible locations on or near places where the whitewater professional conducts whitewater activities, if the places are owned, managed, or controlled by the professional.
(b) The warning notice specified in subsection (d) shall appear on the sign in black letters, with each letter to be a minimum of one inch (1”) in height.
(c) Every written contract entered into by a whitewater professional for the purpose of providing professional services, instruction, or the rental of equipment to a participant, whether or not the contract involves activities on or off the location or site of the whitewater professional’s business, shall contain in clearly readable print the warning notice specified in subsection (d).
(d) The signs and contracts described in subsection (a) shall contain the following warning notice:
WARNING
Pursuant to Tenn. Code Annotated title 70, chapter 7, part 2, a whitewater professional is not liable for an injury to or the death of a participant in whitewater activities resulting from the inherent risks of whitewater activities.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
70-7-205. Written waivers, exculpatory agreements and releases.
Nothing in this part shall modify, constrict or prohibit the use of written waivers, exculpatory agreements or releases. This part is intended to provide additional limitations of liability for whitewater professionals, whether or not such agreements are used.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
WordPress Tags: Activities,Whitewater,Professionals,Chapter,Part,Tenn,Code,Written,waivers,agreements,limitations,HISTORY,Acts,NOTES,Compiler,Preamble,limitation,Former,Tennessee,White,Water,Effective,Dates,exculpatory
State Ski Safe Acts
Posted: November 6, 2013 Filed under: Ski Area, Skiing / Snow Boarding | Tags: ski area, Ski Law, Ski Safety Act, skiing, snowboarding, statute, Winter Sports Act Leave a comment30 States have created statutes that affect regulate skiing. Two states have recreational statutes that apply to skiing.
Those state statutes are listed below along with significant portions of the act.
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State |
Statute |
Ski Area Defined |
Lists Inherent Risks of Skiing |
Misc. |
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AK |
Alaska Ski Safety Act of 1994, Alaska Stat. §§ 05.45.010 et seq. |
“ski area” means all downhill ski slopes or trails and other places under the control of a downhill ski area operator; “ski area” does not include a cross-country ski trail; |
changing weather conditions; snow conditions as they exist or may change, including ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions including bare spots, forest growth, rocks, stumps, streams, streambeds, and trees, or other natural objects, and collisions with natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures, and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including roads and catwalks or other terrain modifications; collision with other skiers; and the failure of skiers to ski within their own abilities |
Sec. 05.45.120. Use of liability releases Releases are void A ski area operator shall prepare a plan of operation for each ski season and shall implement the plan throughout the ski season. A plan of operation must include written provisions for ski patrol, avalanche control, avalanche rescue, grooming procedures, tramway evacuation, hazard marking, missing person procedures, and first aid. |
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AZ |
“Ski area” means all ski slopes and trails or other places within the boundary of a ski area operator’s property, administered as a single enterprise in this state. |
(a) Changing weather conditions. (b) Existing and changing snow surface conditions, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up and machine-made snow. (c) Surface or subsurface conditions, whether marked or unmarked, such as bare spots, forest growth, rocks, stumps, streambeds, trees or other natural objects. (d) Impacts with lift towers, signs, posts, fences or other enclosures, hydrants, water pipes or other man-made structures and their components, whether marked or unmarked. (e) Variations in steepness or terrain, including roads, catwalks and other terrain modifications, whether natural or as a result of slope design, snowmaking or grooming operations. (f) Collisions with other skiers. (g) The failure of skiers to ski within their own abilities. |
§ 5-706. Release of liability In any action brought by a skier against a ski area operator, if the ski area operator proves that the skier signed a valid release, the ski area operator’s liability shall be determined by the terms of the release. |
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CO |
“Ski area” means all ski slopes or trails and all other places within the ski area boundary, marked in accordance with section 33-44-107 (6), under the control of a ski area operator and administered as a single enterprise within this state. |
“Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. |
Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another. |
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CT |
“Ski area operator” means a person who owns or controls the operation of a ski area and such person’s agents and employees. |
(1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (3) of section 29-211 or variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations; (2) bare spots which do not require the closing of the trail or slope; (3) conspicuously placed or, if not so placed, conspicuously marked lift towers; (4) trees or other objects not within the confines of the trail or slope; (5) loading, unloading or otherwise using a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and (6) collisions with any other person by any skier while skiing, except that collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing. |
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GA |
(7) “Ski area” means all snow ski slopes or trails and other places under the control of a ski area operator at a defined business location within this state. (8) “Ski area operator” means an individual, partnership, corporation, or other commercial entity who owns, manages, or otherwise directs or has operational responsibility for any ski area. (9) “Ski slopes or trails” means those areas open to the skiing public and designated by the ski area operator to be used by a skier. The designation may be generally set forth on trail maps and further designated by signage posted to indicate to the skiing public the intent that the areas be used by the skier for the purpose of skiing. Nothing in this paragraph implies that ski slopes or trails may not be restricted for use at the discretion of the ski area operator. |
(A) Changing weather conditions; (B) Surface and subsurface snow or ice conditions as they may exist or change from time to time, including variable conditions such as hard packed powder, packed powder, wind-blown snow, wind-packed snow, corn snow, crust slush, snow modified by skier use, or cut up snow; surface or subsurface snow or ice conditions as they exist or may change as the result of weather changes or skier use; snow created by or resulting from snow making or snow grooming operations; or collisions or falls resulting from such conditions; (C) Surface or subsurface conditions other than those specified in subparagraph (B) of this paragraph, including dirt, grass, rocks, trees, stumps, other forms of forest or vegetative growth, stream beds, or other natural objects or debris; or collisions or falls resulting from such conditions; (D) Collisions with: lift towers; components of lift towers; signs, posts, fences, mazes, or other enclosure devices; hydrants, pipes, or any other portions of snow making or snow delivery systems; snow grooming equipment or other over-snow vehicles marked or lighted as required by this chapter; or collisions with or falls resulting from any such structures or any other manmade structures or their components; (E) Variations in surface, contour, or steepness of terrain, including, but not limited to, moguls, ski jumps, roads, depressions, water bars, and cat walks; other terrain changes or modifications which occur naturally or result from slope design or construction, snow making, snow grooming, maintenance operations, or skier use; or collisions with or falls resulting from such variations; and (F) Collisions with other skiers unless such collisions are caused by the failure on the part of other skiers to conduct themselves in accordance with the provisions of this chapter. |
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ID |
(3) “Ski area” means the property owned or leased and under the control of the ski area operator within the state of Idaho. (4) “Ski area operator” means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, who has operational responsibility for any ski area or aerial passenger tramway. (5) “Skiing area” means all designated slopes and trails but excludes any aerial passenger tramway. |
variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 6-1103, Idaho Code. |
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ME |
§ 15202. Definitions 15. SKI AREA. “Ski area” means the ski slopes and trails, adjoining skiable terrain, areas designated by the ski area operator to be used for skiing as defined by section 15217, subsection 1, paragraph B and passenger tramways administered or operated as a single enterprise within this State. |
§ 15217. (1)(A)…existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, slush and granular, corn, crust, cut-up and machine-made snow; surface or subsurface conditions, such as dirt, grass, bare spots, forest growth, rocks, stumps, trees and other natural objects and collisions with or falls resulting from such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects and their components, and collisions with or falls resulting from such man-made objects; variations in steepness or terrain, whether natural or as a result of slope design; snowmaking or snow-grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities. |
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MA |
“Ski area”, all of the slopes and trails under the control of the ski area operator, including cross-country ski areas, slopes and trails, and any recreational tramway in operation on any such slopes or trails administered or operated as a single enterprise but shall not include base lodges, motor vehicle parking lots and other portions of ski areas used by skiers when not actually engaged in the sport of skiing. |
…know of the existence of certain unavoidable risks inherent in the sport of skiing, which shall include, but not be limited to, variations in terrain, surface or subsurface snow, ice conditions or bare spots |
No action shall be maintained against a ski area operator for injury to a skier unless as a condition precedent thereof the person so injured shall, within ninety days of the incident, give to such ski area operator notice, by registered mail, of the name and address of the person injured, the time, place and cause of the injury. |
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MI |
Ski Area Safety Act of 1962, Mich. Comp. Laws Ann. §§ 408.321 to 408.344 |
“Ski area” means an area used for skiing and served by 1 or more ski lifts. |
…terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment. |
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MT |
“Ski slopes and trails” means those areas designated by the ski area operator to be used by skiers for skiing. |
(2) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including: (a) changing weather conditions; (b) snow conditions as they exist or as they may change, including ice, hardpack, powder, packed powder, wind pack, corn snow, crust, slush, cut-up snow, and machine-made snow; (c) avalanches, except on open, designated ski trails; (d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects; (e) collisions with lift towers, signs, posts, fences, enclosures, hydrants, water pipes, or other artificial structures and their components; (f) variations in steepness or terrain, whether natural or the result of slope design, snowmaking, or snow grooming operations, including but not limited to roads, freestyle terrain, ski jumps, catwalks, and other terrain modifications; (g) collisions with clearly visible or plainly marked equipment, including but not limited to lift equipment, snowmaking equipment, snow grooming equipment, trail maintenance equipment, and snowmobiles, whether or not the equipment is moving; (h) collisions with other skiers; (i) the failure of a skier to ski within that skier’s ability; (j) skiing in a closed area or skiing outside the ski area boundary as designated on the ski area trail map; and (k) restricted visibility caused by snow, wind, fog, sun, or darkness. |
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NC |
All winter sports slopes, alpine and Nordic ski trails, freestyle terrain and passenger tramways, that are administered or operated as a ski area enterprise within this State. |
variations in terrain, snow, or ice conditions, bare spots and rocks, trees and other forms of forest growth or forest debris; |
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ND |
Skiing Responsibility Act N.D. Cent. Code §§ 53-09-01 to 53-09-10 |
3. “Ski area” means property owned or leased and under the control of the ski area operator and administered as a single enterprise within the state of North Dakota. |
Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, or other forms of forest growth or debris, lift towers and components thereof; pole lines; and snowmaking equipment which are plainly visible or are plainly marked in accordance with the provisions of section 53-09-03. |
53-09-10. Effect of modified comparative fault. Notwithstanding section 32-03.2-02, any person is, consistent with the provisions of this chapter, barred from recovery for loss or damage resulting from a risk inherent in the sport of skiing and like-wise is so barred when it is established that a person has knowingly exposed oneself to the real or po-tential hazards of a situation. |
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NH |
“Ski areas” means all passenger tramways and all designated alpine and nordic trails, slopes, freestyle terrain, tubing terrain, and nordic ski jumps under the control of the alpine and nordic ski area operator and any other areas under the operator’s control open to the public for winter sports recreation or competition. |
variations in terrain, surface or subsurface snow or ice conditions; bare spots; rocks, trees, stumps and other forms of forest growth or debris; terrain, lift towers, and components thereof (all of the foregoing whether above or below snow surface); pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph. |
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NJ |
“Ski area” includes all of the real and personal property, under the control of the operator or on the premises of the operator which are being occupied, by license, lease, fee simple or otherwise, including but not limited to all passenger tramways, designated trails, slopes and other areas utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season. |
A skier is deemed to have knowledge of and to assume the inherent risks of skiing, operating toboggans, sleds or similar vehicles created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions. |
As a precondition to bringing any suit in connection with a skiing injury against an operator, a skier shall report in writing to the ski area operator all the details of any accident as soon as possible, but in no event longer than 90 days from the time of the incident giving rise to the suit. |
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NM |
“ski area” means the property owned, permitted, leased or under the control of the ski area operator and administered as a single enterprise within the state; |
variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 |
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NV |
Ski Safety Act, Nev. Rev. Stat. Ann. §§ 455A.060 to 455A.190 |
“Snow recreation area” means the slopes, trails, runs and other areas under the control of an operator that are intended to be used for skiing, snowboarding or for the observation of the sports. |
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28-2-702 Contracts that violate policy of law — exemption from responsibility. |
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NY |
4. “Ski area” means all ski slopes, ski trails and passenger tramways administered as a single enterprise within this state. |
(1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state; |
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OH |
(D) “Ski area” means all the ski slopes, ski trails, and passenger tramways that are administered or operated as a single enterprise within this state. |
(A) (1) The general assembly recognizes that skiing as a recreational sport is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing, which include, but are not limited to, injury, death, or loss to person or property caused by changing weather conditions; surface or subsurface snow or ice conditions; hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; bare spots, rocks, trees, stumps, and other forms of forest growth or debris; lift towers or other forms of towers and their components, either above or below the snow surface; variations in steepness or terrain, whether natural or as the result of snowmaking, slope design, freestyle terrain, jumps, catwalks, or other terrain modifi-cations; any other objects and structures, including, but not limited to, passenger tramways and related structures and equipment, competition equipment, utility poles, fences, posts, ski equipment, slalom poles, ropes, out-of-bounds barriers and their supports, signs, ski racks, walls, buildings, and sheds; and plainly marked or otherwise visible snowmaking and snow-grooming equipment, snowmobiles, snow cats, and over-snow vehicles. |
(5) If the skier is utilizing a tubing park, to assume the risk of collision with others on the course. |
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OR |
(4) “Ski area” means any area designated and maintained by a ski area operator for skiing. |
“Inherent risks of skiing” includes, but is not limited to, those dangers or conditions which are an integral part of the sport, such as changing weather conditions, variations or steepness in terrain, snow or ice conditions, surface or subsurface conditions, bare spots, creeks and gullies, forest growth, rocks, stumps, lift towers and other structures and their components, collisions with other skiers and a skier’s failure to ski within the skier’s own ability. |
(1) A ski area operator shall be notified of any injury to a skier by registered or certified mail within 180 days after the injury or within 180 days after the skier discovers, or reasonably should have discovered, such injury. |
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PA |
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RI |
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TN |
Ski Area Safety & Liability Act, Tenn. Code Ann. §§ 68-114-101 et seq. |
(4) “Ski area” means all the ski slopes and ski trails and passenger tramways administered or op-erated as a single enterprise within this state; |
Except as otherwise specifically provided in this chapter, each skier or passenger is deemed to have assumed the risk of and legal responsibility for any injury to the skier’s or passenger’s person or property arising out of the skier’s or passenger’s participation in Alpine or downhill skiing or the use of any passenger tramways associated with Alpine or downhill skiing. |
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UT |
Utah Inherent Risks of Skiing Act, Utah Code Ann. §§ 78-27-51 to 78-27-54 |
(4) “Ski area” means any area designated by a ski area operator to be used for skiing, nordic, free-style, or other type of ski jumping, and snowboarding. |
…certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks. (1) “Inherent risks of skiing” means those dangers or conditions which are an integral part of the sport of recreational, competitive, or professional skiing, including, but not limited to: (a) changing weather conditions; (b) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow; (c) surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects; (d) variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations, and other terrain modifications such as terrain parks, and terrain features such as jumps, rails, fun boxes, and all other constructed and natural features such as half pipes, quarter pipes, or freestyle-bump terrain; (e) impact with lift towers and other structures and their components such as signs, posts, fences or enclosures, hydrants, or water pipes; (f) collisions with other skiers; (g) participation in, or practicing or training for, competitions or special events; and (h) the failure of a skier to ski within the skier’s own ability. |
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VA |
Va. Code Ann. § 8.01-227.11 (2013) |
“Winter sports area” means all the real and personal property under control of the operator or on the premises of such property that is being occupied by the operator by fee simple, lease, license, easement, permission, or otherwise, including but not limited to any and all trails, freestyle terrain, competition terrain, passenger tramways, or other areas of real property. “Winter sports area” does not include a tubing park except for any passenger tramway serving a tubing park and the immediate vicinity of such a passenger tramway in which individuals embark upon or disembark from the passenger tramway. |
1. Existing and changing weather conditions and visibility; 2. Hazards associated with varying surface or subsurface conditions on a single trail or from one trail to another, including but not limited to hazards such as participant use, snow in any condition and changing snow conditions, man-made snow, synthetic snow, ice, synthetic ice, snow or ice falling from a tree or natural or man-made structure, crust, slush, soft spots, ridges, rollers, knobs, holes, grooves, tracks from winter sports area vehicles, bare spots, rocks, boulders, stumps, logs, and brush or other forest growth or debris, or piles thereof; 3. Variations in difficulty of terrain, whether natural or as a result of slope use, slope design, or both; 4. Trails that have, or fall away or drop off toward, natural or man-made obstacles or hazards, including but not limited to sharp corners, ridges, jumps, bumps, rollers, moguls, valleys, dips, compressions, cliffs, ravines, drop-offs, streams, rivers, ponds, lakes, stream beds, open water or water with thin ice, holes, steep, flat, and uphill sections, and all variants and combinations thereof; 5. The potential for collision with other participants or other individuals, including with winter sports area personnel, whether or not those personnel are on duty or off duty; with wild or domestic animals; or with equipment or objects such as winter sports area infrastructure, snowmaking equipment, buildings and posts, and stationary and moving lit or flagged winter sports area vehicles; 6. The potential for a participant to act in a negligent or reckless manner that may cause or contribute to the injury or death of the participant or other individuals or damage to property; 7. The location, construction, design, layout, configuration, and condition of trails, freestyle terrain, and competition terrain; 8. The fact that use of trails, freestyle terrain, and competition terrain and participation in or being near races or other competitions or events, including but not limited to as a participant, employee at a winter sports area, spectator, or observer, involves the risk of serious injury or death or damage to property; 9. The fact that a helmet may not afford protection in all instances and that failure to wear a helmet that is properly sized, fitted, and secured may increase the risk of injury or death or the risk of more severe injury; and 10. The fact that the use of passenger tramways may be hazardous to passengers, including but not limited to risks resulting from loading or unloading a tramway and the potential for a passenger to fall from a tramway. |
Each operator, upon request, shall provide to a participant a trail map of all trails located in the operator’s winter sports area. The maps shall be available at each ticket sales office and at other locations at the winter sports area such that the maps are easily accessible to participants. All trail maps shall indicate the skill-level designation for each trail at the winter sports area as designated in subsection C of § 8.01-227.12. Each winter sports participant, or the parent or legal guardian of, or adult acting in a supervisory position over, a participant under the age of 18, shall be responsible for determining whether the participant will wear a helmet and whether the helmet is sufficiently protective and properly sized, fitted, and secured. Nothing herein shall prevent a participant or passenger from offering evidence that he did not know the particular inherent risk of winter sports that proximately caused the injury or death or damage to property at issue, did not fully appreciate the nature and extent of such risk, or did not voluntarily expose himself to such risk. |
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VT |
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Notwithstanding the provisions of section 1036 of this title, a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary. |
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WA |
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WV |
Skiing Responsibility Act, W. Va. Code Ann. §§ 20-3A-1 to 20-3A-8 |
“Ski area” means any property owned or leased and under the control of the ski area operator or operators within West Virginia. |
Variations in terrain including freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris; collisions with pole lines, lift towers or any component thereof; or, collisions with snowmaking equipment which is marked by a visible sign or other warning implement in compliance with section three [§ 20-3A-3] of this article. |
When no certified ambulance service is available in the vicinity, have on duty at or near the skiing area, during all times that skiing areas are open for skiing, at least one trained and currently certified emergency medical technician. |
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WY |
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Recreational Statutes that Include Skiing
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State |
Statute |
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WI |
Wis. Stat. Ann. § 895.525 |
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WY |
Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123 |
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Always contact local legal counsel to determine the latest version of any state statute affecting your business.
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Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)
Posted: July 22, 2013 Filed under: Connecticut, Legal Case, Minors, Youth, Children, Summer Camp | Tags: Bicycling, Camp Director, Camp Kenwood, Connecticut, Cycling, Minor, statute, Summary judgment, Summer Camp, Summerland Leave a commentWynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)
John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers v. Summerland, Inc. dba Camp Kenwood et al.
LLICV095006358S
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF LITCHFIELD AT LITCHFIELD
2012 Conn. Super. LEXIS 2684
November 1, 2012, Decided
November 2, 2012, Filed
NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
JUDGES: [*1] John W. Pickard, J.
OPINION BY: John W. Pickard
OPINION
MEMORANDUM OF DECISION
This is a wrongful death action arising out of the death of Hunter E. Brothers (“Brothers”), a thirteen-year-old camper at Camp KenWood, a summer youth camp in Kent, Connecticut. Brothers died while engaged in a mountain biking activity supervised by two counselors from the camp. The defendant, Summerland, Inc. d/b/a Camp KenWood operated the camp. The defendants, David B. Miskit and Sharon B. Miskit (“the Miskits”), are directors of Camp KenWood. All defendants have moved for summary judgment (#152). The plaintiff, John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers, objects (#158). The court heard oral argument on September 17, 2012.
I. Personal Liability of David and Sharon Miskit
The first basis of the motion for summary judgment is stated by the defendants as follows: “There is no genuine issue of material fact that David Miskit and Sharon Miskit, as officers of a corporation, do not incur personal liability for the corporation’s torts merely because of their official position. There is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor is there any evidence [*2] that Summerland served merely as their alter ego. Thus, summary judgment should enter in favor of David Miskit and Sharon Miskit.”
Paragraph 30 of the third count of the plaintiff’s complaint is based on negligence and is directed against the Miskits as follows: “David Miskit, as President of Summerland, and David and Sharon Miskit, as Directors of Camp KenWood, owed a duty of care to Brothers, because Brothers was a minor child who was entrusted to the care of David and Sharon Miskit, and under Section 19-13-B27a(s) of the Regulations of Connecticut State Agencies, which provides as follows: ‘The camp director shall be responsible at all times for the health, comfort and safety of campers.'” Thus, David Miskit is sued as President of Summerland, Inc. and as a director of Camp Kenwood. Sharon Miskit is sued only as a director of Camp Kenwood.
The Miskits claim that there is no genuine issue of material fact that they do not incur personal liability for the corporations’ torts merely because of their official position. The plaintiff argues that the Miskits, as directors of Camp KenWood, owed Hunter a duty of care imposed by the statutes and regulations of the State of Connecticut. The [*3] plaintiff did not present a serious argument that David Miskit owed a duty of care to Brothers merely because he was the President of Summerland, Inc.
Before discussing the Miskits’ basis for summary judgment, it is necessary to distinguish between directors of corporations and directors of youth camps. [HN1] The position of director of a youth camp is one which is provided for in the statutes which regulate youth camps. C.G.S. §19a-422(c) provides: “[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.” C.G.S. §19a-428(a) provides that: “The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff . . .”
The regulations adopted by the Commissioner of Public Health pertaining to youth camps are found in Regs., Connecticut State Agencies §19-13-B27a. Subsection (n) of that regulation provides, in part: [HN2] “(1) No person [*4] shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.” Subsection (s) of that regulation provides [HN3] “Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.”
[HN4] The statutory and regulatory scheme with [*5] respect to youth camps is clear that the director of a youth camp must be an individual, not a corporation. Also, the position of director of a youth camp is distinct from the position of director of the corporation which owns and operates the summer camp. A youth camp director is an employee and/or an agent of the camp when performing his or her duties. In summary, the director of a youth camp functions as the chief on-site official of the camp and is charged with certain responsibilities including to the safety of campers. Therefore, the statutes and regulations create a duty which the director owes to campers who attend the camp.
Turning to the first basis for summary judgment, the defendants are correct that David Miskit, as President of Summerland, Inc., cannot be liable for the negligence of the corporation absent evidence that he used the corporation as his alter ego. The plaintiff has not made the allegations which would be necessary to pierce the corporate veil. The real ground for the liability of the Miskits rests not on their status as directors or officers of Summerland, Inc., or on piercing the corporate veil, but upon their liability as directors of Camp KenWood.
The motion [*6] for summary judgment and the supporting brief never address the real ground of liability alleged by the plaintiff against the Miskits that as directors of Camp Kenwood they breached their statutory and regulatory duty to be responsible for the health, comfort and safety of the campers including Brothers. Instead, the defendants focus on whether the Miskits can be liable based upon their official capacities at Summerland, Inc. The last two sentences of the defendants’ brief on this point reads: “In short, David and Sharon Miskit have been named as party defendants merely because they are officers of Summerland, Inc. Officers of a corporation, however, do not incur personal liability for its torts merely because of their official position. Inasmuch as there is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor any evidence that Summerland served as their alter ego, they are entitled to summary judgment on all of the plaintiff’s claims.”
[HN5] The statutes and regulations of the State of Connecticut create a duty on the part of camp directors to care for the “health, comfort and safety of campers.” As co-directors of Camp KenWood, the Miskits [*7] are alleged to have breached this duty.1 The documentary evidence submitted by the plaintiff creates a genuine issue of material fact about whether, in fact, the Miskits breached their duty. ” [HN6] Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
1 In paragraph thirty-one of the third count the plaintiffs allege that David and Sharon Miskit breached their duty of care to Hunter through their negligence, in that:
a. They failed to adequately supervise and train Summerland employees with respect to the use of mountain bicycles by campers, CPR techniques and emergency first aid skills:
b. They failed to provide adequate instruction to Camp KenWood’s campers, including Brothers, in the safety precautions necessary for mountain bicycle trips over steep [*8] and uneven terrain, including but not limited to the negotiation or avoidance of dangerous hills and curves and the adequate securing of a helmet:
c. they failed to have a policy which pre-screened and approved appropriate areas for mountain bicycle riding for campers of various ages;
d. They failed to have a policy that prohibited Camp KenWood’s employees from taking young campers on off-camp premises mountain bicycle trips that were not safe for young children.”
II. Open and Obvious
The defendants’ second basis for summary judgment is that, because the geography of Bald Hill Road was an open and obvious condition, the defendants had no duty to warn Brothers about it. The defendants argue that, as a matter of law, the court should determine that there is clear and undisputed evidence that the risk of riding a bicycle down Bald Hill Road was so open and obvious to thirteen-year-old Brothers that it would negate any duty to warn on the part of the two counselors who were supervising her. In support of that proposition the defendants have presented the court with portions of deposition transcripts and other documents. They argue that the grade and contours of Bald Hill Road were easily observable [*9] by Brothers. Also, the two counselors testified that they stopped with Brothers at the top of Bald Hill Road and told her that the hill got steeper near the bottom and that she would need to control her speed with her brakes. Based upon this discussion, the defendants argue that Brothers was actually aware of the condition of the road. The defendants have cited the court to various cases in which courts have held that dangerous conditions were open and obvious as a matter of law.
The plaintiff argues that the issue of whether the condition of Bald Hill Road is open and obvious is a genuine question of fact which cannot be decided on a motion for summary judgment. I agree. The documentary evidence about Bald Hill Road presents a genuine issue of fact as to whether the steep part of Bald Hill Road can be seen from the top of the hill. Brothers had never been on Bald Hill Road. Whether the discussion she had with the counselors at the top of the hill was sufficient to alert her to the danger is a question of fact as well.
Furthermore, unlike most of the cases cited by the defendants, this is not a premises liability case. There are nine separate allegations of negligence directed against [*10] Summerland, Inc., only one of which relates to a failure to warn. The defendants have not addressed these other allegations of negligence in the motion for summary judgment.
III. Conclusion
For the reasons given above, the motion for summary judgment is denied.
BY THE COURT,
John W. Pickard
State laws that affect the relationship between a manufacturer and a commissioned independent sales representative
Posted: June 12, 2013 Filed under: Uncategorized | Tags: Commission (remuneration), Contract, Independent Rep, Independent Sales Rep. Independent Sales Representative, Iowa, Lawsuit, Manufacturer, Principal, Rep, Sales, Sales Rep, statute, Termination of employment Leave a commentYou need to make sure you understand the law if you are a manufacturer or an independent sales representative. For this chart, the following definitions shall apply.
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Referenced in a Statute as: |
Referred to Here as: |
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Manufacturer, Principal or Employer |
Mfg. |
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Commissioned Sales Person, Wholesale Sales Representative, Sales Representative, Employee (Iowa) |
Rep |
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Contract |
K |
The Headings used are defined or explained as:
State: This is the state where the law is applicable. Most of the statutes, however, say that a rep can sue for unpaid commissions in this state for money owed by the manufacturer in other states. Eleven states require a written contract between the Mfg. and the Rep. Three states probably require a written contract between a Mfg. and Rep. All states say that a request to pay a person a commission for a sale is a contract.
Statute Name & Number: This is the name of the statute and number of the statute. This is always linked to the statute.
K Required: This means the burden is on the Manufacturer to create a written contract. Many of the statutes require not only a signature of both parties but proof in the form of a receipt that the rep has received a copy of the contract.
Written K Controls (except non-payment issues): If there is a dispute or the written contract is different from the statute the written contract controls the payment of commissions upon termination.
Other K Requirements: Any special or unique issues in the statute that may be of importance.
Pay upon Termination: This is what the statute requires as far as commissions paid upon termination of the contract with the Rep.
Damages: If the Rep is not paid as per the contract or the statute, this sets forth the damages that a rep can recover for non-payment. Most states this is a factor of the commissions owed, which can be as much as four times the commissions owed. Iowa, Michigan, Minnesota and Missouri have more complicated ways of determining damages based upon the time until paid or other ways to calculate the damages.
Most states allow a rep, if successful in a suit to recover unpaid commission’s damages in excess of the commissions owed. In several cases that amount totals four times the commissions owed. If the rep is successful in recovering damages, the rep can also recover attorney fees and court costs.
Eight states allow the Mfg. to recover attorney fees and court costs if the lawsuit filed by the Rep was frivolous. Frivolous in a legal context means there was no basis for the suit. Have a claim and losing it for some reason, is not frivolous.
Most states require commissions that were earned but not due until after the termination of the Contact between the Mfg., and the Rep must be paid to the Rep.
Court Costs & Atty Fees: Either the Rep or in a few cases, the Prevailing party (winner) can recover court costs and attorney’s fees if they successfully sue for unpaid commissions.
Suit brought in a state of Rep Choice: This statute states that even though the Mfg. may not have a business location within the state, which would normally be needed to establish venue and jurisdiction over the manufacturer, the statute provides the necessary venue and jurisdiction. That means the manufacturer can be brought to suit in that state.
K can waive the statute: This means that a contract between the Rep and the Mfg. cannot waive parts of the statute, specifically the requirement on how commissions are to be paid on termination, damages, attorney fees and costs and whether and jurisdiction and venue are established.
Misc.: More unique or important sections of the statute you should know about.
This information is here as a starting point. Contact your attorney for additional information.
Click here to download a copy of this chart
27 state laws and short interpretations are listed below.
| State | Statute Name & Number | K Required | Written K Controls (except non-payment issues) | Other K Requirements | Pay upon Termination | Damages | Court Costs & Atty Fees | Suit brought in state of Rep Choice | K can waive statute | Misc |
| Alabama | Alabama Code Annotated § 8-24-1 | Maybe§ 8-24-2 | Yes§ 8-24-2 | Contract must set forth how commission calculated and to be paid. Mft must provide copy of contract to rep§ 44-1798.01 | 30 Days after termination30 Days post termination§ 8-24-2(c) | Three times damages§ 8-24-3 | Reasonable Attorney fees and Costs§ 8-24-3 | Yes§ 8-24-4 | No§ 8-24-5 | Rep can bring all claims against mfg in this action§ 8-24-5 |
| Arizona | Arizona Revised Statutes § 44-1798.01 | Yes§ 44-1798.01 A | Rep must receive a signed copy of the contract and sign a receipt acknowledging receipt of signed copy§ 44-1798.01 B | Paid within 30 days§ 44-1798.02 A14 days on commissions due after termination§ 44-1798.02 B | Three times the unpaid commissions owed§ 44-1798.02 C | Reasonable attorney fees and costs§ 44-1798.02 D | Final Settlement null & void unless paid in full§ 44-1798.02 F | |||
| Arkansas | Arkansas Code of 1987 4-70-301 |
Yes4-70-302(a) | Method of computation and payment must be in written contract4-70-302(a)Rep must receive copy of contract 4-70-302(b) | If not written contract, all commissions must be paid within 30 days after termination4-70-303 | 3 times damages4-70-306 | Reasonable attorney fees and costs4-70-306 | Yes4-70-302(c)4-70-304 | Waiver of statute is void4-70-305 | ||
| California | California Codes Annotated § 1738.10Independent Wholesale Sales Representatives Contractual Relations Act of 1990§ 1738.11 | Yes§ 1738.13(a) | Commission Rate, Payment dates, Territory, Territory Exceptions, ChargebacksRep must be given a copy of the contract, sign it and sign a receipt acknowledging receipt of the signed contract§ 1738.13(b) | Treble DamagesFailure to pay or Failure to have written contract§ 1738.15 | The Prevailing Party can recover Reasonable Attorney Fees & Costs§ 1738.16 | Yes§ 1738.14 | No§ 1738.13(e) | Rep must receive written info of all orders, customer name and invoice numberCommission rate on each order§ 1738.13(c) | ||
| Colorado | Colorado Revised Statutes 12-66-101 | Probably§ 12-66-103 | Treble damages12-66-103(1) | Prevailing Party receives Reasonable attorney fees and costs | Yes12-66-102 | |||||
| Illinois | Sales Representative Act. Illinois Compiled Statutes Annotated § 820 ILCS 120/0.01. | 13 days after termination and 13 days if commissions become payable after termination§ 820 ILCS 120/2 | Exemplary damages of 3 times commissions owed§ 820 ILCS 120/3 | Reasonable attorney fees and court costs to rep§ 820 ILCS 120/3 | No§ 820 ILCS 120/2 | |||||
| Indiana | Indiana Statutes Annotated 24-4-7-0.1 | Must be paid within 14 days24-4-7-5(a) | Exemplary Damages Three times the commissions owed24-4-7-5(b) | If exemplary damages awarded, the sales rep receives reasonable attorney fees and costs24-4-7-5(c)If suit is frivolous, the mfg can receive reasonable attorney fees and costs 24-4-7-5(c) | Yes24-4-7-6 | No24-4-7-8 | If you make an offer to pay commissions you cannot revoke the offer once the commissions are earned 24-4-7-7 | |||
| Iowa | Iowa Wage Payment Collection Law Iowa Code 91A.1 |
5% per day for every day not paid91A.2 6 | Yes if intentionally failed to pay91A.8 | Only disputed amounts can be withheld, all non-disputed amounts of commissions must be paid91A.7 | ||||||
| Louisiana | Louisiana Revised Statutes § 51:441 | Yes§ 51:442 | A written contract supersedes statute on payment of wages§ 51:442 | Rep must receive a copy of the contract§ 51:442 | Per the contract or On the 30th working day after termination§ 51:443 | Treble damages§ 51:444 | Rep’s Attorney fees§ 51:444 | Yes§ 51:445 A§ 51:445 C | No§ 51:445 B | Sales Rep can sue for all money owed under this statute.Statute does not prohibit other seeking other forms of relief§ 51:445 D |
| Maine | Maine Revised Statutes Annotated § 1341 | Unless otherwise in contract requires 14 days’ notice to terminate§ 1342 | Payment within 30 days of termination§ 1343 | Exemplary damages of 3 times commissions owed§ 1344 1 | Reasonable attorney fees and costs§ 1344 1 | Yes§ 1344 4 | Yes§ 1343 | If action was frivolous mfg can recover actual attorney fees and costs§ 1344 2 | ||
| Maryland | Annotated Code of Maryland § 3-601 |
Commissions must be paid within 45 days of termination§ 3-604 | Can recover up to 3 times the commissions due§ 3-605(a)(1) | Reasonable attorney fees and costs§ 3-605(b) | Yes§ 3-606 | Law cannot be waived§ 3-603 | Rep must give mfg 10 days’ | |||
| Massachusetts | Annotated Laws of Massachusetts Chpt 104 § 7 |
YesChpt 104 § 8 | Commissions must be paid within 14 days of terminationChpt 104 § 8Commissions that come due after termination must be paid within 14 daysChpt 104 § 8 | Willfully or knowingly fails to pay, rep can recover an additional 3 times the amount dueChpt 104 § 9 | Rep can recover reasonable attorney fees and court costsChpt 104 § 9 | Yes104 § 9 | NoChpt 104 § 9 | |||
| Michigan | Michigan Compiled Laws § 600.2961 | YesSec. 2961(e)(2) | Commissions must be paid within 45 days of termination§ 600.2961(e)(4) | Actual damages plus 2 times amount of commissions or $100K or whatever is less§ 600.2961(e)(5)(b) | Rep can recover reasonable attorney fees and costs§ 600.2961(e)(5) | No§ 600.2961(e)(8) | ||||
| Minnesota | Minnesota Statutes 181.13 | Yes§ 407.912 | 3 days after termination181.145 Subd 2 | Penalty of 1/15 per day not to exceed 15 days181.145 Subd 3 | Yes181.171 Subd 3 | Sales made before termination must be paid after termination181.145 Subd 5 | ||||
| Missouri | Missouri § 407.911 | Yes§ 407.912 | Within 30 days of termination§ 407.912 | Based on the time due till paid§ 407.913 | Reasonable attorney fees and costs§ 407.913 | Yes§ 407.914 | No§ 407.915 | Rep to be paid on commissions earned before termination but not due until after termination§ 407.912 2 | ||
| Nebraska | Nebraska Wage Payment and Collection Act Nebraska Revised Statutes Annotated § 48-1229 | 30 days after termination§ 48-1231(1) | Court Costs and attorney fees of not less than 25% of damages§ 48-1231(1) | Damages are increased if case appealed§ 48-1231(1) | ||||||
| New Hampshire | Sales Representatives and Post-Termination Commissions New Hampshire Revised Statutes Annotated 339-E:1 | Yes339-E:2 | Commissions must be paid within 45 days of termination339-E:2 | Exemplary damages of 3 times commission339-E:3 | Reasonable attorney fees and costs339-E:3 | Yes339-E:4 | No339-E:2 & 339-E:6 | Commissions must be paid on orders before termination§ 2A:61A-2If Sales Rep brings frivolous suit mfg. can recover attorney fees§ 2A:61A-3 | ||
| New Jersey | New Jersey Annotated Statutes § 2A:61A-1. |
Must be paid within 30 days§ 2A:61A-2 | Exemplary damages of 3 times amount of commissions owed§ 2A:61A-3 | Actual and reasonable attorney fees and costs§ 2A:61A-3 | Yes§ 2A:61A-5 | No§ 2A:61A-6 | ||||
| New York | New York Consolidated Laws § 190 |
Yes§ 191-b 1 | Yes, K must be signed by both parties and kept on file at mfg. for 3 years§ 191 b | Must be paid within 5 business days§ 191-c 1 | Double damages§ 191-c 3 | Prevailing party receives reasonable attorney fees and costs§ 191-c 3 | Commissions must be paid at least monthly§ 191 cCommissions earned after termination must be paid§ 191-a (b) | |||
| North Carolina | General Statutes of North Carolina § 66-190 | Yes§ 66-190.1 | 30 days after termination unless rep commits malfeasance§ 66-191 | 2 times damages§ 66-192(a) | Attorney fees actually and reasonably incurred and court costs§ 66-192(c) | Yes§ 66-192(c) | No§ 66-193 | Commissions that come due after termination must be paid within 15 days§ 66-191 | ||
| Oklahoma | Sales Representatives Recognition Act Oklahoma Statutes Annotated § 675 | Yes§ 677 1 | 14 days after termination14 days on commissions that come due after termination§ 678 A | Prevailing party reasonable attorney fees and costs§ 678 B | Yes§ 679 A | No§ 679 B | Rep can recover all claims in OK case against mfg§ 679 C | |||
| Pennsylvania | Commissioned Sales Representatives Pennsylvania Statutes Annotated § 1471 | Yes§ 1472 | Yes§ 1475.1 | 14 days after termination§ 147314 days on commissions earned after termination§ 1474 | 2 times the commissions due§ 1475(a)(1) | Cost of the suit and reasonable attorney fees§ 1475(a)(2) | No§ 1476 | If case is frivolous then mfg can recover reasonable attorney fees and costs§ 1475(b) | ||
| South Carolina | Payment Of Post-Termination Claims To Sales Representatives South Carolina Code of Laws § 39-65-10 | Seems to be.§ 39-65-20 | Yes§ 39-65-20 | Paid as terms of the contract§ 39-65-20 | Commissions due plus 3 times damages§ 39-65-30(1) | Actually and reasonably incurred attorney fees and court costs§ 39-65-30(2) | Yes§ 39-65-50 | No§ 39-65-70 | If the suit brought by the Rep is frivolous the mfg may recover attorney fees and costs§ 39-65-40Rep may bring all actions against mfg in SC§ 39-65-60 | |
| Tennessee | Tennessee Code Annotated § 47-50-114 | Yes47-50-114 (b) (1) | Yes§ 47-50-114(b)(1) | 14 days after termination§ 47-50-114(b)(c) | Mfg acting in bad faith liable for exemplary damages of treble the amount of commissions§ 47-50-114(d) | Reasonable attorney’s fees and court costs§ 47-50-114(d) | Yes§ 47-50-114(e) | No§ 47-50-114(f) | Commissions earned after termination must be paid within 14 days§ 47-50-114(b)(c)If action brought by Rep is frivolous mfg can recover attorney fees and court costs47-50-114(d) | |
| Virginia | Code of Virginia § 59.1-455 | Yes§ 59.1-456 | Yes§ 59.1-457 | Per contract but not later than 30 days§ 59.1-457 | No§ 59.1-458 | Post termination commissions must be paid within 30 days§ 59.1-457 | ||||
| Washington | Annotated Revised Code of Washington §49.48.150 | Yes§49.48.160(1) | Yes§49.48.160(1) | Per contract but no later than 30 days§49.48.160(3) | Yes§49.48.180 | No§49.48.160(1) §49.48.190 |
All commissions including commissions earned by not due must be paid upon termination§49.48.160 | |||
| Wisconsin | Wisconsin Statute § 134.93 | Yes§ 134.93(3) | Due upon termination§ 134.93(4) | Exemplary damages 200% of the commission owed§ 134.93(5) | 90 days written notice of termination must be given to rep§ 134.93(3) |
If you are a manufacturer, distributor or importer hiring independent reps, make sure you have a contract that protects you from being sued in 27 other states.
If you are a rep, insist on a contract with every manufacturer you represent.
Either way, you both will be better off.
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Copyright 2013 Recreation Law (720) Edit Law
Email: jim@rec-law.us
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The age that minors become adults.
Posted: May 29, 2013 Filed under: Minors, Youth, Children, State | Tags: Adult, Adulthood, Age of Majority, Age of Minority, Alabama, MISSISSIPPI, Nebraska, statute Leave a commentI am constantly writing about the different legal issues of minors, here you can check on what that means for your state.
The age when a minor becomes an adult is currently 18 in 47 states. Alabama and Nebraska state law says an adult is someone who is 19 or older and Mississippi an adult is 21 or older.
There are exceptions for all the laws on minority in each state. A minor can become an adult if they marry, if they are emancipated or by special statutory exceptions.
Age of Majority
|
State |
Statute |
Age of adulthood |
|
Alabama |
Ala. Code tit. § 26-1-1 (age 19) and § 26-10A-2 § 27-14-25, § 27-14-5 (contract for insurance at age 15), § 30-4-16 (18 to get married). |
19 |
|
Alaska |
Alaska Stat. § 25.20.010(1977). |
18 |
|
Ariz. Rev. Stat. § 1-215 (1973). |
18 |
|
|
Arkansas |
Ark. Stat. Ann. § 57-103 (Supp. 1977). |
18 |
|
California |
Cal. Civ. Code § 25 (West Supp. 1978). |
18 |
|
Colorado |
Colo. Rev. Stat. § 13-22-101 (1973) |
18 |
|
Connecticut |
Conn. Gen. Stat. Ann. § 1-1d (West Supp. 1978) |
18 |
|
Delaware |
Del. Code tit. 6 § 2705 (Revised 1974) |
18 |
|
Florida |
Fla. Stat. Ann. § 743.07 (West Supp. 1978) |
18 |
|
Georgia |
Ga. Code Ann. § 74-104 (Revision 1973) |
18 |
|
Hawaii |
Haw. Rev. Stat. § 577-1 (Supp. 1975) |
18 |
|
Idaho |
Idaho Code § 29-101 (1967), § 32-101 (Supp. 1978) |
18 |
|
Illinois |
Ill. Ann. Stat. ch. 3 § 131 (Smith- Hurd 1978) |
18 |
|
Indiana |
Ind. Code Ann. § 34-1-2-5.5 (Burns Supp. 1977) |
18 |
|
Iowa |
Iowa Code Ann. § 599.1 (West Supp. 1978) |
18 |
|
Kansas |
Kan. Stat. Ann. § 38-101 (1973). |
18 |
|
Kentucky |
Ky. Rev. Stat. Ann. § 2.015 (Baldwin 1975) |
18 |
|
Louisiana |
La. Civ. Code Ann. art. 1782 (West 1952), art. 37 (West Supp. 1978) |
18 |
|
Maine |
Me. Rev. Stat. tit. 1 § 73 (Supp. 1973) |
18 |
|
Maryland |
Md. Com. Law Code Ann. § 1-103(a) (1975) |
18 |
|
Massachusetts |
Mass. Ann. Laws. ch. 4, § 7(48) (Michie/Law Coop Supp. 1978) |
18 |
|
Michigan |
Mich. Comp. Laws Ann. § 722.52 (Supp. 1978) |
18 |
|
Minnesota |
Minn. Stat. Ann. § 645.45(14) (West Supp. 1978) |
18 |
|
Mississippi |
Miss. Code Ann. § 1-3-27 (1972) However in other statutes defines minors as over 18 § 81-5-61 (minors may rent safety deposit boxes), § 93-3-11 (homestead exemption), § 93-19-1 (real estate), § 97-37-13 (illegal to give a minor weapons, under age 18), |
21 |
|
Missouri |
Mo. Ann. Stat. § 431.055 (Vernon Supp. 1978) |
18 |
|
Montana |
Mont. Rev. Codes Ann. § 64-101 (Supp. 1977) |
18 |
|
Nebraska |
Neb. Rev. Stat. § 38-101 (Reissue 1974) |
19 |
|
Nevada |
Nev. Rev. Stat. § 129.010 (1977) |
18 |
|
New Hampshire |
N.H. Rev. Stat. Ann. § 21-B:1 (Supp. 1977) |
18 |
|
New Jersey |
N.J. Stat. Ann. § 9:17B-3 (West 1976) |
18 |
|
New Mexico |
N.M. Stat. Ann. § § 12-2-2 (K); 28-6-1 (1978 Replacement Vol.) |
18 |
|
New York |
N.Y. Gen. Oblig. Law § 3-101 (McKinney 1978) |
18 |
|
North Carolina |
N.C. Gen. Stat. § 48A-2 (1976 Replacement Vol.) |
18 |
|
North Dakota |
N.D. Cent. Code § 14-10-01 (1971 Replacement Vol. Supp. 1977) |
18 |
|
Ohio |
Ohio Rev. Code Ann. § 3109.01 (Page Supp. 1977) |
18 |
|
Oklahoma |
Okla. Stat. Ann. tit. 15 § § 11, 13 (West 1972) |
18 |
|
Oregon |
Or. Rev. Stat. § 109.510 (1977 Replacement Vol.) |
18 |
|
Pennsylvania |
73 Pa. Cons. Stat. § 2021 (Purdon Supp. 1978) |
18 |
|
Rhode Island |
R.I. Gen. Laws § 15-12-1 (Supp. 1977) |
18 |
|
South Carolina |
S.C. Const. art. 17 § 14 (1973, amended 1975) |
18 |
|
South Dakota |
S.D. Codified Laws Ann. 26-1-1 (Revision 1976) |
18 |
|
Tennessee |
Tenn. Code Ann. § 1-313 (Supp. 1977) |
18 |
|
Texas |
Tex. Rev. Civ. Stat. Ann. art. 5923b (Vernon Supp. 1978) |
18 |
|
Utah |
Utah Code Ann. § 15-2-1 (Supp. 1977) |
18 |
|
Vermont |
Vt. Stat. Ann. tit. 1 § 173 (Supp. 1978) |
18 |
|
Virginia |
Va. Code § 1-13-42 (1973 Replacement Vol.) |
18 |
|
Washington |
Wash. Rev. Code § 26.28.015 (1976) |
18 |
|
West Virginia |
W. Va. Code § 2-3-1 (Supp. 1978) |
18 |
|
Wisconsin |
Wis. Stat. Ann. § 990.01(20) (West Supp. 1978) |
18 |
|
Wyoming |
Wyo. Stat. § 8-3-103 (a) (i) & (a) (iv), § 16-3-101 (1977) |
18 |
Like everything, statutes change when legislators decide something needs corrected. Although this list is probably fairly stagnant, you should make sure you are aware of the age of adulthood in each of the states where you operate.
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
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Maryland Sales Representative
Posted: March 17, 2013 Filed under: Maryland | Tags: Commission (remuneration), IC, Independent Sales Rep, MARYLAND, Rep, Sales, statute Leave a commentMaryland Sales Representative
LABOR AND EMPLOYMENT
TITLE 3. EMPLOYMENT STANDARDS AND CONDITIONS
SUBTITLE 6. WHOLESALE SALES REPRESENTATIVES
GO TO MARYLAND STATUTES ARCHIVE DIRECTORY
Md. LABOR AND EMPLOYMENT Code Ann. § 3-601 (2012)
§ 3-601. Definitions
(a) In general. — In this subtitle the following words have the meanings indicated.
(b) Commission. — “Commission” means compensation that:
(1) is due to a sales representative from a principal; and
(2) accrues at:
(i) a specified amount for each order or sale; or
(ii) a rate expressed as a percentage of the dollar amount that a sales representative:
1. takes in orders for the principal;
2. makes in sales for the principal; or
3. earns in profits for the principal.
(c) Principal. — “Principal” means a sales corporation, partnership, proprietorship, or other business entity that:
(1) distributes, imports, manufactures, or produces a product for wholesale;
(2) enters into a contract with a sales representative to solicit a wholesale order for the product; and
(3) pays the sales representative wholly or partly by commission.
(d) Sales representative. —
(1) “Sales representative” means a person who:
(i) enters into a contract with a principal to solicit in the State a wholesale order; and
(ii) is paid wholly or partly by commission.
(2) “Sales representative” does not include a person who:
(i) buys a product or places an order for a product for resale by that person; or
(ii) sells or takes an order for the sale of a product to an ultimate buyer.
§ 3-602. Scope of subtitle
This subtitle does not apply to an individual who is considered under the Maryland Wage Payment and Collection Law to be employed by a principal.
§ 3-603. Void waivers
A provision of a contract that is made between a sales representative and a principal is void if the provision purports to waive any provision of this subtitle by:
(1) an express waiver; or
(2) a contract subject to the laws of another state.
§ 3-604. Payment of commission on termination of contract
Each principal shall pay to a sales representative all commissions that are due under a contract that is terminated, within 45 days after payment would have been due if the contract had not terminated.
§ 3-605. Action by sales representative
(a) Treble damages. —
(1) Subject to the requirement of paragraph (2) of this subsection, if a principal violates § 3-604 of this subtitle, a sales representative whom the violation affects is entitled to bring an action against the principal to recover up to 3 times the amount of all commissions that the principal owes to the sales representative.
(2) At least 10 days before an action is brought under this subsection, the sales representative shall give the principal written notice of intent to bring the action.
(b) Costs. — If a court determines that a sales representative is entitled to judgment in an action under this section, the court shall allow against the principal reasonable counsel fees and court costs.
§ 3-606. Personal jurisdiction
For purposes of personal jurisdiction under § 6-103 of the Courts Article, a principal who contracts with a sales representative to solicit wholesale orders for a product in the State is considered to be transacting business in the State.
§ 3-607. Revocable offer of commission
(a) Entitlement to commission. — If a principal makes a revocable offer of a commission to a sales representative who is not an employee of the principal, the sales representative is entitled to the commission agreed on if:
(1) the principal revokes the offer of commission and the sales representative establishes that the revocation was for the purpose of avoiding payment of the commission; or
(2) (i) the revocation occurs after the sales representative has obtained a written order for the principal’s product because of the efforts of the sales representative; and
(ii) the principal’s product that is the subject of the order is shipped to and paid for by a customer.
(b) Construction of section. — This section may not be construed to:
(1) impair the application of § 2-201 or § 2-209 of the Commercial Law Article;
(2) abrogate any rule of agency law; or
(3) unconstitutionally impair the obligations of contracts.
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Colorado Revised Statute 42-4-1002 (3’ to pass law)
Posted: July 18, 2012 Filed under: Colorado | Tags: 3 Feet to Pass, Colorado, Cycling, statute Leave a commentCOLORADO REVISED STATUTES
TITLE 42. VEHICLES AND TRAFFIC
REGULATION OF VEHICLES AND TRAFFIC
ARTICLE 4.REGULATION OF VEHICLES AND TRAFFIC
PART 10. DRIVING – OVERTAKING – PASSING
GO TO COLORADO STATUTES ARCHIVE DIRECTORY
C.R.S. 42-4-1002 (2011)
42-4-1002. Passing oncoming vehicles
(1) Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and, upon roadways having width for not more than one lane of traffic in each direction, each driver shall give to the other at least one-half of the main-traveled portion of the roadway as nearly as possible.
(2) A driver shall not pass a bicyclist moving in the same direction and in the same lane when there is oncoming traffic unless the driver can simultaneously:
(a) Allow oncoming vehicles at least one-half of the main-traveled portion of the roadway in accordance with subsection (1) of this section; and
(b) Allow the bicyclist at least a three-foot separation between the right side of the driver’s vehicle, including all mirrors or other projections, and the left side of the bicyclist at all times.
(3) Any person who violates any provision of this section commits a class A traffic infraction.
Great article on why helmet laws are stupid
Posted: December 14, 2011 Filed under: Skiing / Snow Boarding | Tags: Helmets, legislation, skiing, statute Leave a commentEither that or we should be wearing helmets at dinner.
Yes I know I write a lot about helmets. However the most important issue I write about is to make people think about what they do and why. In this case you are not solving any problems and you are creating greater liability issues.
The article was written because a new law in Nova Scotia requires skiers and riders to wear helmets. The law carries a $250 fine. On top of that, there “will, indeed, be helmet cops on the slopes. The minimum fine is $250.”
The head injury rate is pretty low. “…since 2000, 11 helmetless skiers and snowboarders have suffered such an injury on the slopes of Nova Scotia.” That is one head injury per year in Nova Scotia from head injuries.
Simply put the article looks at the risks of a head injury in Nova Scotia from skiing based on the injury stats of Canada.
In 2003-04, one in 4,100 Canadians was admitted to hospital for head trauma suffered in a fall, and one in 5,300 for head trauma suffered in a car accident. Bill 131 proposes to offset, by 60%, a risk of roughly one in the population of Nova Scotia, which is 945,000.
If you want to stop head injuries, you would legislate wearing a helmet while driving. That would prevent more head injuries.
The articles intent is to point out there is no logical basis in the way laws are created. Instead of asking “why” they need a new law, legislators are asking “why not.”
Or as I say, what can I do, no matter how stupid, that will put me on the front page of a newspaper to help me get reelected.
It’s a great article. See Why not enact pointless ski helmet law?
What do you think? Leave a comment.
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