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Words and Phrases Defined in an Articles

Posted: May 9, 2018 | Author: | Filed under: Editorial | Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

The articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.

This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.

Term or Phrase

State

Article that Defines the Term or Phrase
Adhesion Agreement Colorado Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.
Admiralty Law Nevada Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.
Agency New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Amicus Curiae Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
Ambiguity Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Apparent Authority New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Pennsylvania Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company
Assumption of Risk Assumption of the Risk    http://rec-law.us/wMtiET
Assumption of Risk — Checklist
California Assumption of the Risk to be a bar to a claim the defendant must now owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.
Hawaii The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win
Massachusetts Duty of care for a Massachusetts campground is to warn of dangerous conditions.
New York If you have a manual, you have to follow it, if you have rules you have to follow them, if you have procedures, you have to follow them or you lose in court.

Skier assumes the risk on a run he had never skied before because his prior experience.
Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Pennsylvania PA court upholds release in bicycle race.
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
South Carolina Assumption of the risk is used to defeat a claim for injuries on a ropes course.
Express Assumption of risk California BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.
Delaware If you agree to the rules you have to follow the rules
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Implied Assumption of the risk Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Primary Assumption of Risk Delaware If you agree to the rules you have to follow the rules
Minnesota Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

BSA (Cub Scout) volunteer not liable for injuries to cub because cub assumed the risk of his injuries. BSA & Council not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Secondary
Assumption of Risk		 Arkansas Proof of negligence requires more than an accident and injuries. A Spectator at a rodeo needed proof of an improperly maintained gate.
California Most references in case law to assumption of the risk are to this California decision
Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Business Invitee Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Certiorari Colorado Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.
Common Carrier California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
Contracts
Meeting of the Minds North Carolina When is a case settled? When all parties (and maybe their attorneys) agree it is settled
Consideration What is a Release?
Concurring Opinion Utah The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality
Contribution Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Declaratory Judgment New Hampshire What happens if you fail to follow the requirements of your insurance policy and do not get a release signed? In New Hampshire you have no coverage.
Derivative Claim Sign in sheet language at Michigan health club was not sufficient to create a release.
Duty of Care California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Washington Summer Camp, Zip line injury and confusing legal analysis in Washington

Good News ASI was dismissed from the lawsuit
Essential Public Services Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Expert Witness Connecticut Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.
Failure to Warn New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Foreseeability Colorado Be Afraid, be very afraid of pre-printed forms for your recreation business
Illinois When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
Ohio Liability of race organizer for State Park Employees?
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff.
Idaho Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.
Forum non conveniens Kansas If you fall down in a foreign country, and you have paid money to be there, you probably have to sue there.
Fraud Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality
Fraudulent Inducement New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Fraudulent Misrepresentation Georgia Lying in a release can get your release thrown out by the court.
California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Gross Negligence California Release saves riding school, even after defendant tried to show plaintiff how to win the case.
Idaho Statements made to keep a sold trip going come back to haunt defendant after whitewater rafting death.
Maryland Sky Diving Release defeats claim by Naval Academy studenthttp://rec-law.us/1tQhWNN
Massachusetts Colleges, Officials, and a Ski Area are all defendants in this case.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Michigan Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

Allowing climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate release.
Nebraska In Nebraska a release can defeat claims for gross negligence for health club injury
New Hampshire In this mountain biking case, fighting each claim pays off.
New Jersey New Jersey upholds release for injury in faulty bike at fitness club
New York New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
Pennsylvania wrongful death statute is written in a way that a split court determined the deceased release prevented the surviving family members from suing.
Tennessee 75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense
Texas Suit against a city for construction retaining wall in City Park identifies defenses to be employed to protect park patrons.
Utah Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident.

The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality
Inherently Dangerous Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Inherent Risks California This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).
Interlocutory Appeal Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Utah Utah courts like giving money to injured kids
Invitee Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Joint Venture Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Judgment Notwithstanding the Verdict (JNOV or J.N.O.V.) Maryland Skiing collision in Utah were the collision was caused by one skier falling down in front of the other skier
Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Lex loci contractus Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Long Arm Statute Requirements New York To sue a Vermont ski area there must be more than a web presence to sue in New York
Material Breach of a Contract Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Motion to Dismiss Colorado Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligence Georgia Georgia court finds no requirement for employee to interview when higher trained first aid providers are present
Idaho Idaho Supreme Court holds is no relationship between signs posted on the side of the trampoline park in a duty owed to the injured plaintiff
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Indiana Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball.

An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Louisiana Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Maryland Plaintiff failed to prove that her injuries were due to the construction of the water park slide and she also assumed the risk.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Mississippi Mississippi decision requires advance planning and knowledge of traveling in a foreign country before taking minors there.
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Negligence (Collateral) Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Negligence Per Se Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Florida Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Illinois (does not exist) When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligent Misrepresentation New York The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiff
No Duty Rule Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Open and Obvious Michigan The assumption of risk defense is still available when the claim is based on a condition of the land. This defense is called the open and obvious doctrine.
New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Rhode Island
Passive-Retailer Doctrine Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Premises Liability Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Prima facie New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Prior Material Breach Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Product Liability Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.
Tennessee Pacific Cycle not liable for alleged defective skewer sold to plaintiff by Wal-Mart
Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Negligent Product Liability Illinois Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury
Public Policy California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
Oregon Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.

Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Punitive Damages New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Rescue Doctrine South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Recklessness Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Ohio BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Release Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality

Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Oklahoma Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.
New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Pennsylvania Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing

Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.

Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Release Fair Notice Requirement under Texas law Texas Federal Court in Texas upholds clause in release requiring plaintiff to pay defendants costs of defending against plaintiff’s claims.
Remittitur Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
res ipsa loquitur Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Respondeat superior Missouri US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.
New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Restatement (Second) of Torts Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Standard Colorado
California		 Words: You cannot change a legal definition
New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night
Rhode Island Rhode Island, applying New Hampshire law states a skier assumes the risk of a collision.
Standard of Review Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Sudden Emergency Doctrine New York Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit
Summary Judgment Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Superseding or Intervening Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Tort Louisiana Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR
Unconscionable Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
United States Constitution Fourteenth Amendment Buy something online and you may not have any recourse if it breaks or you are hurt
Willful, Wanton or Reckless Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Ohio Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Nebraska Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the cause of the death.
Wyoming Rental agreement release was written well enough it barred claims for injuries on the mountain at Jackson Hole Mountain Resort in Wyoming
Wrongful Death Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.

Last Updated April 24, 2018

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