Although I would guess this is a subrogation claim because the plaintiff is now a quadriplegic.
State: California, United States District Court, C.D. California
Plaintiff: Jill and Scott Kalter
Defendant: Grand Circle Travel
Plaintiff Claims: Negligence
Defendant Defenses: Assumption of the Risk
Holding: for the defendant
The plaintiff fell trying to climb wet stone steps in Machu Pichu. She sued the travel agency she hired to take her there and lost. Climbing wet stones is an open and obvious risk and the doctrine of assumption of the risk prevented the plaintiff’s recovery.
Grand Circle is a tour operator that arranges vacation packages to destinations around the world. Jill Kalter (” Kalter” ) purchased a Grand Circle ” Amazon River Cruise & Rain Forest” tour, along with an optional post-trip extension to visit the Inca ruins at Machu Picchu. Prior to departing on her trip, Kalter received from Grand Circle an itinerary of the Machu Picchu trip extension (the ” Itinerary” ), which stated that her group would visit Machu Picchu on two consecutive days, and that on the second day she would have the option of remaining with a guide or exploring the ruins on her own. The Itinerary also stated: ” [t]hese Inca sites are not like ancient squares in Europe; they are spread out over steep hillsides with large stone steps and uneven surfaces…. In the ruins, there are no handrails some places where you might like one.” Kalter received and read the itinerary prior to departing on her trip. In addition, the tour guide, Jesus Cardenas, distributed a map of Machu Picchu to the tour participants prior to entering the park. The map includes a section entitled ” Visit Regulations,” which states, among other things, ” Do not climb the walls,” and ” Follow only designated routes according to arrows.”
It was raining on both days Kalter was at Machu Picchu. The first day, she remained with Cardenas and walked on the stone paths The second day, she opted to explore on her own, and ventured off the established paths. states that he gave verbal warnings to the group to use caution due to wet and slippery conditions. Kalter states that she did not hear Cardenas give these warnings, but that she ” has no reason to doubt” that he did so. Kalter went to an area known as the ” terraces,” filled with vertical rock walls that contain small stone protrusions called ” floating steps.” Some of these terraces are along paths color-coded by length, and no paths at Machu Picchu require traversing floating steps. Approximately one hour after venturing out on her own, Kalter became lost and disoriented, and was concerned about connecting with her group so that she would not miss the train. In an effort to get a better view of where she was, Kalter stepped up onto the bottom two floating steps of a vertical wall. Kalter did not think this was a dangerous act. As a result, Kalter fell and suffered serious injuries, and is now a quadriplegic.
The defendant moved for summary judgment, which was granted.
Analysis: making sense of the law based on these facts.
The defense raised by the plaintiff’s was assumption of the risk.
The doctrine of primary assumption of the risk applies where ” the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” To determine if primary assumption of the risk applies, courts look to the nature of the activity, and the parties’ relationship to that activity. The question turns on whether the plaintiff’s injury is within the ” inherent” risk of the activity. A risk is inherent to an activity if its elimination would chill vigorous participation in the activity and thereby alter the fundamental nature of the activity. Accordingly, ” the doctrine of primary assumption of risk applies where ‘ conditions or conduct that otherwise might be viewed as dangerous often are an integral part’ of the activity itself.” When primary assumption of the risk applies, a defendant is only liable for a plaintiff’s injuries ” if the defendant ‘ engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity’ or increases the inherent risk involved in the activity.”
If, on the other hand, ” the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty,” the doctrine of secondary assumption of the risk applies, which is analyzed under comparative fault principles.
The court found that inherent in the activity of hiking on uneven terrain among ancient ruins is the risk of falling and becoming injured.
The court then looked at the information the plaintiff received prior to going to Machu Picchu.
The Itinerary Kalter received prior to the tour informed her that the Inca sites at Machu Picchu ” are spread out over steep hillsides with large stone steps and uneven surfaces.” (Itinerary 65.) Eliminating tour participants’ access to these large stone steps and uneven surfaces in an attempt to protect against the risk of falling would eliminate the ability to view the Inca sites, and thus ” alter the fundamental nature of the activity.”
…Kalter did not fall while engaging in the activities condoned by Defendants-she chose to leave the established stone pathway, and further endangered herself by stepping onto the floating steps. Accordingly, the Court finds that primary assumption of the risk applies to Kalter’s injuries from falling while hiking at Machu Picchu.
The defendant would be liable for the plaintiff’s injuries only if the defendant’s conduct was so reckless as to be totally outside the range of the ordinary activity involved in hiking among ancient ruins or uneven terrain.
The plaintiff argued that the defendant was liable for encouraging the plaintiff to roam the ruins on her own.
…Grand Circle’s act of allowing Kalter to explore on her own areas she had not been to with Cardenas was not ” so reckless as to be totally outside the range of ordinary activity” involved in the excursion, nor did it increase the inherent risk of falling and sustaining injury involved in hiking in this region.
The next issue was whether or not the defendant had a duty to warn the plaintiff of the dangers equally obvious to both the plaintiff and others. The plaintiff admitted it was raining and admitted the steps were wet. The map she received told her not to climb the walls.
The court found the risks of the floating steps the plaintiff climbed leading to her fall were open and obvious, and she assumed the risk when climbing on them. “Moreover, numerous courts have held that tour companies and guides have no duty to warn of obvious dangers their customer’s encounter on trips.” Consequently, the defendant had no duty to warn the plaintiff of the dangers of climbing on the steps that lead to her fall.
The court held for the defendant.
As explained above, neither Grand Circle nor Cardenas are liable for Kalter’s injuries because the doctrine of primary assumption of the risk applies, and because neither had a duty to warn her of the open and obvious danger of falling while climbing wet stone steps protruding from a vertical wall.
So Now What?
The plaintiff was a quadriplegic, so I suspect here health or disability insurance carrier started the lawsuit to recover the paid on behalf of the plaintiff. Alternatively, the plaintiff could have started the litigation because so much money was involved if they won that it might have been a lottery.
However the simple fact the plaintiff fell while on her own exploring, a ruin in Peru does not give rise to liability in this case.
What keeps coming to the surface in cases over the past couple of years is the defense of assumption of the risk. Looking at this from a different perspective. The more you educate your client, the less likely you will be sued and the less likely you will lose that lawsuit.
I’ve been saying that for more than thirty years, and it seems to come back with greater defenses and benefits for both the guests and the outfitters.
Copyright 2019 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
By Recreation Law Recfirstname.lastname@example.org James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
Name of Product: Black Diamond, Pieps and POC Brand JetForce Avalanche Airbag Packs
Hazard: The motor can malfunction and prevent the airbag from deploying, increasing the risk of injury or death in the event of a snow avalanche.
Consumers should immediately stop using the recalled airbag packs and contact Black Diamond for instructions on returning the product for a free repair.
Consumer Contact: Black Diamond Inc. at (800) 775-5552 from 8 a.m. to 5 p.m. MT Monday through Friday, or online at http://www.blackdiamondequipment.com, http://www.pocsports.com or http://www.pieps.com and select Customer Service at the top of the page, then click on Product Recalls in the drop down menu. Consumers can also go to http://www.jetforcerecall.com to submit your repair claim. The firm can be reached by email at email@example.com.
Units: About 1,000 units (in addition, 200 were sold in Canada)
Description: This recall involves all first generation JetForce Black Diamond, Pieps and POC model airbag packs manufactured by Black Diamond between October 2, 2014 and March 3, 2015. The manufacture date code ranging from 14275 to 15077 can be found inside the front pocket label. The date codes are listed in a YYDDD format. Date codes on some products are truncated in a YDDD format (ex.4275). The JetForce Technology logo is on the left shoulder strap, and an instruction label is on the inside flap of the back panel. The following models and colors are included in this recall:
Brand Model and Capacity Colors
Black Diamond Pilot 11 Liters
Halo 28 Liters
Saga 40 Liters Black, Fire Red
Pieps Tour Rider 24 Liters
Tour Pro 34 Liters Black w yellow
Black w chili red
POC Thorax 11 Liters Orange
Incidents/Injuries: None reported
Sold at: Specialty outdoor retail stores nationwide and online at http://www.blackdiamondequipment.com from December 2014 to June 2015 for between $1,250 and $1,300.
Importer/Distributor: Black Diamond Inc., of Salt Lake City, Utah and POC Sports, of Salt Lake City, Utah
Manufactured in: USA
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2015 Recreation Law (720) Edit Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, Recall, CPSC, Consumer Product Safety Council, Black Diamond, POC, Pieps, Avalanche Airbag, Avalanche, Pilot, Halo, Saga, tour
2012 amgen tour of california professional cycling race draws more than 2 million spectators during eight-day competition
In its Seventh Year, America’s Greatest Race Continues to Captivate Fans Around the World with Best Field of Cyclists Ever Assembled
LOS ANGELES (May 31, 2012) – The 2012 Amgen Tour of California once again drew more than 2 million spectators during the annual eight-day race, which featured the best field of international and domestic professional cycling teams ever assembled for a U.S. stage race. The cyclists competed over a challenging, nearly 750-mile course from May 13-20. Additionally, just prior to the start of the eighth and final stage, on Sunday, May 20, 10,000 fans, families, residents and cycling enthusiasts participated in the first-ever ‘Nissan Ride Before the Pros,’ a free-to-the-public “mass participation ride” which allowed ‘anyone with a bicycle’ to ride on the same five-mile downtown Los Angeles circuit that the pros would compete on later in the morning.
“The Amgen Tour of California continues to grow in size, stature and international attention year after year, and that’s something we are very proud of,” said Kristin Bachochin, executive director of the race and senior vice president of AEG Sports. “From attendance, sponsorship and internationally ranked competitors, along with the continued economic impact on the state of California and specifically our Host Cities, we have again this year seen growth in every important, measureable category.”
Over the course of eight days, the race partnered with 14 Host Cities for official stage starts, finishes and official activities, including Santa Rosa, San Francisco, Santa Cruz County, San Jose, Livermore, Sonora, Clovis, Bakersfield, Palmdale, Big Bear Lake, Ontario, Mt. Baldy, Beverly Hills and Los Angeles, drawing massive crowds throughout. The race, which ended at L.A. LIVE in downtown Los Angeles on Sunday, May 20, was won by Dutch cyclist Robert Gesink of the Rabobank Cycling Team. Americans and Garmin-Barracuda teammates David Zabriskie and Tom Danielson placed second and third overall.
Broadcast live in HD on NBC and NBC Sports Network, the race was seen in 216 countries and territories worldwide through more than 28 hours of coverage. Also, for the first time in race history, the 2012 Amgen Tour of California aired live for two hours on NBC during the final stage of the race.
The official race website saw nearly one million visitors during race week, and the official race app, the RadioShack Tour Tracker, was downloaded by 36,500 users, compared to 6,726 users in 2011. Additionally, the average rating for iOS App users averaged five (5) stars, based on 504 submitted ratings.
“As we begin to evaluate every aspect of this year’s event and start to plan the 2013 Amgen Tour of California, we remain committed to using all of our resources, input from the cyclists, teams, Host Cities, fans and sponsors to create an even better race experience and overall event for the millions of fans and followers around the world who look forward to the race every year,” Bachochin added.
About the Amgen Tour of California
The largest cycling event in America, the 2012 Amgen Tour of California is a Tour de France-style cycling road race, created and presented by AEG, that challenged the world’s top professional cycling teams to compete along a demanding course from May 13-20, 2012.
Amgen discovers, develops, manufactures, and delivers innovative human therapeutics. A biotechnology pioneer since 1980, Amgen was one of the first companies to realize the new science’s promise by bringing safe, effective medicines from lab to manufacturing plant to patient. Amgen therapeutics have changed the practice of medicine, helping millions of people around the world in the fight against cancer, kidney disease, rheumatoid arthritis, bone disease and other serious illnesses. With a deep and broad pipeline of potential new medicines, Amgen remains committed to advancing science to dramatically improve people’s lives. To learn more about our pioneering science and vital medicines, visit http://www.amgen.com. Follow us on www.twitter.com/amgen.
AEG is one of the leading sports and entertainment presenters in the world. AEG, a wholly owned subsidiary of The Anschutz Company, owns or controls a collection of companies including facilities such as STAPLES Center, The Home Depot Center, Sprint Center, The O2, Nokia Theatre L.A. LIVE and Best Buy Theater Times Square; sports franchises including the Los Angeles Kings (NHL), two Major League Soccer franchises, two hockey franchises operated in Europe, management of privately held shares of the Los Angeles Lakers, the ING Bay to Breakers foot race, and the Amgen Tour of California cycling road race; AEG Live, the organization’s live-entertainment division, is a collection of companies dedicated to all aspects of live contemporary music performance, touring, and a variety of programming and multi-media production. For more information, visit AEG today at www.aegworldwide.com.
# # #
Michael Roth Erin Barrier
Steven Gregory Bram
Associate, Consumer Marketing
T. +1 213.438.8818