USA Pro Challenge Professional Cycling Race Brings an Estimated $130 Million to Colorado!

USA Pro Challenge Professional Cycling Race Brings an Estimated

$130 Million in Economic Impact to the State of Colorado, 12 Percent Increase Over 2013

Largest Spectator Event in Colorado Leaves Lasting Impact on the StateIMG_8572

The 2014 USA Pro Challenge saw 128 of the best professional cyclists in the world compete in the toughest professional cycling race in the U.S.   over the course of seven days, Aug. 18-24. Fans came out in droves to watch the action-packed, heart-pounding racing through the Colorado Rockies. After traveling to 10 host cities for the official stage starts and finishes, and passing through many other notable towns along the way, the estimated economic impact of the race to the State of Colorado is $130 million, according to a study done by Sponsorship Science, a global sports research firm.

The Pro Challenge delivered another strong economic performance in its fourth running, with direct spending by traveling spectators contributing a significant portion of the economic impact. Both those fans from outside the state and Coloradans traveling 50 miles or more to take in an event stage contributed $130 million on lodging, food, transportation and entertainment, an increase of 12 percent year over year. This change was largely driven by a 10 percent increase in the average number of nights stayed and an 11 percent increase in per night average party spend, the result of a 15 percent increase in average per night lodging cost.

“Seeing the enthusiasm and passion from the fans lining the streets during the 2014 USA Pro Challenge really gave a sense of the growing support for the sport of cycling in the U.S.,” said Rick Schaden, owner of the race. “This race showcases Colorado to the world and creates an incredible economic impact locally that can be felt throughout the year. Further, it was great to see an increase in television viewership.”IMG_8230

Following an epic week of racing through picturesque Colorado scenery, America’s most challenging race came to a conclusion in Downtown Denver when Aspen resident Tejay van Garderen (USA) of BMC Racing Team maintained his lead and took the overall win for the second year in a row. The race received unprecedented coverage totaling 30 hours on NBC, NBCSports and Universal Sports in the U.S. Additionally, through 40 hours of international coverage, the race was seen in more than 175 countries and territories around the world.

A draw for Colorado travel, 56 percent of spectators claimed they would not have traveled to the state at this time if it were not for the race. And with that, 70.9 percent stated they are likely to return to watch the race next year.

Additional interesting analysis points include:

· Spectators traveled in groups, with the average party consisting of three people

· The average hotel stay for spectators increased in 2014 to 5.3 nights

· 53 percent of race attendees live in households with income exceeding $85,000 and within that group 32 percent had household incomes in excess of $120,000

· Spectators enjoyed their race experience, with more than 80 percent saying they were very satisfied or satisfied with the race

· More than half of spectators in attendance reported they ride a bike for fitness, with 47 percent saying they engage in road cycling a lot

· This was an audience that appreciates the world-class level of competition at the USA Pro Challenge and watches major cycling events on television, with 83.8 percent stating they watch the Tour de France

About the research studyIMG_8276

The USA Pro Challenge commissioned Sponsorship Science LLC, a global sports marketing & research consultancy firm with more than 50 years of executive experience working with events around the world, to continue conducting quantitative research measuring the change in overall economic impact of the Pro Challenge over time.

“While we conduct these types of studies for sports and entertainment clients around the world, across many platforms and geographies, cycling has always been a core sport, and one where we have a wealth of experience, ” said David Porthouse, SVP of Sponsorship Science, LLC. “Our history with the event and trust in the Pro Challenge management team, as well as the promoter Medalist Sports, has allowed us to develop the data and models used to accurately and fairly evaluate the growth of the race over time and its impact on the state of Colorado.”

Sponsorship Science, LLC designed the study from the outset to deliver consistent, defensible results which address many of the contentious issues surrounding economic impact reporting. Kevin Schott, director of Sponsorship Science notes the multi-year relationship with academia via Dr. Brett Boyle, professor within the sports business program at St. Louis University, has paid enormous dividends in terms of scientific rigor and credibility throughout the duration of this long-term relationship, serving as the foundation for the future. Key areas addressed included:

· Substitution effects – Since local fans will often spend similar amounts on local sports and other entertainment, Sponsorship Science, LLC did not include the local fan spend in the economic impact report, as a net impact, although local participation was thoroughly tracked, and forms a significant part of the appeal

· Time shifting – Colorado is an attractive destination for travel, so Sponsorship Science, LLC deliberately filtered respondents to ensure they were not capturing data from spectators already in Colorado, independent of the Pro Challenge, and also used elimination questions to remove those fans who intended to come to Colorado in the near future independent of the race. Despite these rigorous procedures, the number of dedicated fans travelling to the Pro Challenge has followed a long-term growth trend

· Sample sizes – Large samples were taken at all stages, distributed across the race locations, in order to create samples and sub-samples (by age, income, distance travelled, etc.) that are all statistically significant

 


Velodrome cover will provide year-round training for USA Cycling athletes in Colorado Springs

For Immediate Release
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Velodrome cover will provide year-round training for USA Cycling athletes in Colorado Springs
USA Cycling and the United States Olympic Committee have teamed up to give track cyclists year-round, on-the-track training opportunities in Colorado Springs with the addition of a seasonal dome on the open-air 7-Eleven Velodrome located in Memorial Park. The dome will be put in place for the first time in early 2015.”With the quickly approaching 2016 Summer Olympics in Rio, we are seeking every advantage to adequately prepare our athletes to compete with the best in the world,” said USA Cycling CEO & President Steve Johnson. “However, this significant upgrade of the velodrome in Colorado Springs will not only provide the optimal setting for our track cyclists to live and train throughout the year in the run-up to Rio, but also represents a significant investment in American track cycling that will benefit our growing track community well into the future.”

Andy Sparks, USA Cycling Endurance Track Head Coach and USOC Paracyling Track Head Coach, suggested that the USOC and USA Cycling put a dome over the outdoor track to increase the number of training days at the 7-Eleven Velodrome. USA Cycling received Board of Directors approval, as did the USOC.

“We think this is a tipping point that can be a game changer for our national team programming,” said Jim Miller, USA Cycling Vice President of Athletics. “With the resources accessible at the USOC, we can now manage more robust training and opportunities for our athletes 365 days a year.”

“I believe this improvement will insure not only our sustained competitive success but also our improved success in terms of Olympic medals in 2016 and beyond,” said Sparks.

Up until now, track cyclists living at the Colorado Springs Olympic Training Center were forced to seek alternative training sites during the winter months. The covered velodrome will allow them 12 months of uninterrupted training while utilizing the OTC’s state-of-the-art athlete facilities.

The importance of the upgrade is not lost on athletes like Olympic silver medalist and seven-time world champion Sarah Hammer.

“I think the modernization of the velodrome is going to further kick start the efforts on the track program and will really show what Team USA is capable of moving forward,” Hammer said. “I am super proud of the two medals we won on the track in London and I know that the new velodrome cover will enable us to have more training camps and more quality training days than in previous years. It will be a game changer for our U.S. Olympic and Paralympic programs as well as our local junior and military programs. I would like to thank all of the individuals who have made this project possible and a few individuals from USA Cycling in particular that had a major impact, such as Steve Johnson, Jim Miller and Foundation Development Director Steve McCauley.”

The dome will be removed during the warmer summer months, but the shelter it provides during the winter will save an estimated $10,000 on annual repair work.

With year-round usage, the USOC will be able to add an additional 400 hours of community programs, on top of the 600 hours that are already offered. These will include the “Learn to Ride the Velodrome” program, community training and community races.

“We are excited to be adding a seasonal dome, which will allow our athletes to stay and train in Colorado Springs year-round where they will also have access to other important resources such as nutrition, strength training and sport performance services at the OTC,” said Aron McGuire, director of the Colorado Springs Olympic Training Center. “This upgrade is a win-win, not only for our elite athletes but also for local riders and the greater Colorado Springs community.”

The 333.3 meter cement banked track was built in 1982 to provide high-altitude training for American cyclists leading up to the 1984 Summer Olympics in Los Angeles. In 1986, the velodrome and Colorado Springs hosted the World Cycling Championships with huge crowds filling the stands each night during the weeklong event. Since then, the velodrome has played host to dozens of international competitions for both track cycling and roller sport.

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Altitude is more than you think. Even professional bike racers are worried about the altitude in Aspen

The conversation at the pre-race press conference and the press conference after stage one was the concern about the altitude.

Kiel Reijnen (USA) UnitedHealthcare Pro Cycling Team had this to say about the altitude

“I am by no means a pure sprinter, but this course is a bit of a slap in the face, what a tough way to start a stage race. It’s a really deceptive stage. It’s difficult to control and it’s really unpredictable. I’m still out of breath and it’s been more than an hour since the finish, and I was already at altitude to begin with.”

Alex Howes (USA) Team Garmin-Sharp

“I myself am a victim of the high altitude. It was pretty relaxed for the first third of the race, but that last lap really heated it up and it was just full gas from there on. You see a lot of punch and lift from riders toward the end, and that’s not really something you see at this kind of altitude. It’s pretty exciting to see that out here.”

Colorado Resident Kiel Reijnen Takes Stage 1 of the 2014 USA Pro Challenge

Crowds of Cheering Fans Lined the Streets of Downtown Aspen to Greet the Best Riders in the World

Aspen, Colo. (Aug. 18, 2014) – Set against the beautiful backdrop of Aspen and Snowmass, the 2014 USA Pro Challenge got off to an exciting start with a circuit race of three 22-miles laps that included 2,300 ft. of climbing per lap, creating an aggressive day of racing. Colorado Resident Kiel Reijnen (USA) of UnitedHealthcare Pro Cycling Team took home the stage win, which also puts him in the overall lead heading into the second day of racing.

“This stage was really exciting last year. It was a nail-biter and this year was the same,” said Reijnen. “The USA Pro Challenge is a huge goal for our team. Everyone is here watching and it’s really important to the team we do well here.”

In a close finish, Reijnen took the stage win, followed by Howes in second and Ben Hermans (BEL) of BMC Racing Team in third.

After the conclusion of the first stage of the USA Pro Challenge, Reijnen holds the Smashburger Leader Jersey, Lexus Sprint Jersey and, new for this year, the Colorado National Guard Best Colorado Rider Jersey . Jacques-Maynes has the Sierra Nevada King of the Mountains Jersey and Summerhill was awarded the FirstBank Most Aggressive Rider Jersey. Clement Chevrier (FRA) of Bissell Development Team has the Colorado State University Best Young Rider Jersey heading into Stage 2 tomorrow.

IMG_6199 IMG_6249 IMG_6293

 

 


Everyday Kid Phil Gaimon Rides Off the Couch into a Pro Cycling Contract

Boulder, CO, USA – May 6, 2014 – Professional cyclist Phil Gaimon has written a book telling the true story of his unlikely transformation from fat kid to professional bike racer. Pro Cycling on $10 a Day: From Fat Kid to Euro Pro, is now available in bookstores, bike shops, and online. Preview Gaimon’s debut book at http://www.velopress.com/phil.

Plump, grumpy, slumped on the couch, and going nowhere fast at age 16, Phil Gaimon begin riding a bicycle with the grand ambition of shedding a few pounds before going off to college. He soon fell into racing and discovered he was a natural, riding his way into a pro contract after just one season despite utter ignorance of a century of cycling etiquette. A few hardscrabble seasons later, Gaimon was offered a contract to race in 2014 for Team Garmin-Sharp, an elite cycling team that competes at the sport’s highest level.

Pro Cycling on $10 a Day is a true story, a guide, and a warning to aspiring racers who dream of joining the professional racing circus. Gaimon’s adventures in road rash serve as a hilarious and cautionary tale of frustrating team directors and broken promises. His education in the ways of the peloton, his discouraging negotiations for a better contract, his endless miles crisscrossing America in pursuit of race wins, and his conviction that somewhere just around the corner lies the ticket to the big time fuel this tale of hope and ambition from one of cycling’s best storytellers.

Pro Cycling on $10 a Day chronicles the racer’s daily lot of blood-soaked bandages, sleazy motels, cheap food, and overflowing toilets. But Gaimon also celebrates the true beauty of the sport and the worth of the journey, proving in the end that even among the narrow ranks of world-class professional cycling, there will always be room for a hardworking outsider.

Pro Cycling on $10 a Day: From Fat Kid to Euro Pro Phil Gaimon Paperback with b&w photographs throughout.
6″ x 9″, 312 pp., $18.95, 9781937715243

Phil Gaimon is a professional cyclist for Team Garmin-Sharp, a writer, and an entrepreneur who retired from laziness and computer games in 2004 in favor of riding a bike to lose weight. On a whim, he started racing and soon discovered that he was a natural. Phil advanced rapidly through the amateur ranks and turned professional in his second full year. He slowly learned the rules and clawed his way to the top of the American pro ranks, joining Garmin-Sharp in 2014. He maintains a website, http://www.Philthethrill.net, where he chronicles his ceaseless pursuit of the best cookies and milk in America, and tweets at http://www.twitter.com/philgaimon.

Can’t wait to read it.


2013-2014 In bound ski/board fatalities

It is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of March 10, 2014. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

Are non-skiing/boarding fatalities that occurred inbounds on the slopes

Fatality while sledding at the Resort is in Green

2013 – 2014 Ski Season Fatalities

Date State Resort Where Trail Difficulty How Cause Ski/ Board Age Sex Home Helmet Ref Ref
12/11 CO Telluride Pick’NGad struck a tree 60 M Norwood CO No http://rec-law.us/190al75 http://rec-law.us/1fchteM
12/12 VT Killington Great Northern Trail Found 21 F PA No http://rec-law.us/1csgWCg
12/16 WA Crystal Mountain Resort Tinkerbell Beginner Lost control and veered off the trail Blunt Force Trauma F Yes http://rec-law.us/Jc4MX3
1/1 WV skiing into a tree M Opp, AL http://rec-law.us/1a6nAkQ
12/19 CO Winter Park Butch’s Breezeway Beginner blunt force injury to the head 19 M Yes http://rec-law.us/1f3ekSy
12/21 CA Heavenly Resort colliding with a snowboarder and being knocked into a tree 56 F NV No http://rec-law.us/JRiP4c http://rec-law.us/1a7REMW
1/11 CO Aspen Belisimo Intermediate hitting a tree Skier 56 M CO Yes http://rec-law.us/1hNbHoz http://rec-law.us/JTr7sY
1/11 MT Whitefish Mountain Resort Gray Wolf and Bighorn Found in a tree well Skier 54 M CA http://rec-law.us/1kx1deP
1/11 VT Stratton Mountain Resort Lower Tamarac Sledding Sledding 45 M NJ No http://rec-law.us/19x4mXb http://rec-law.us/1aRlxS5
1/14 NV Mount Charlteston Terrain Park Fall in Terrain Park Blunt Force Trauma Boarder 20 M NV No http://rec-law.us/1dsDW8B http://rec-law.us/1dyT1Hc
1/17 VT Killington Mouse Trap Trail Striking a tree Boarder 23 M NY http://rec-law.us/1dFfY9j http://rec-law.us/1dKUf0v
1/25 NM Ski Apache Intermediate Struck a Tree Skier 23 F TX http://rec-law.us/1n3PCCM http://rec-law.us/M5qA85
1/25 WA Ski Bluewood Country Road run Beginner Found at top of trail blunt force abdominal injury Skier 14 M WA No http://rec-law.us/1eaGBUM http://rec-law.us/1b4oewr
1/28 UT Deer Valley Keno Ski Run Intermediate hit a tree Skier 65 M FL Yes http://rec-law.us/1eg70Ax http://rec-law.us/1hRbIVm
2/1 VT Sugarbush Ski Resort Lower Rim Run and Lower FIS trails went off the trail and hit a trail sign broken neck Skier 19 F http://rec-law.us/1aeVJ3V http://rec-law.us/1j4jIpF
2/4 ME Sugarloaf resort Hayburner Expert skiing off a trail into trees Skier 21 M NY Yes http://rec-law.us/1fQtrMz http://rec-law.us/1b1OkG0
2/4 CA Heavenly Ski resort upper Nevada Woods Expert Closed area blunt force trauma Boarder 18 M Kings Beach, CA Yes http://rec-law.us/1byr68d http://rec-law.us/1b5exDA

2/7 CO Beaver Creek lower section of Beaver Creek suffered trauma injuries Skier 64 M St Louis, Mo http://rec-law.us/1ns4Hvu
2/8 CO Keystone Ski Area Porcupine and Bighorn Intermediate crashed into a tree blunt-force trauma Skier 46 M Yes http://rec-law.us/Nph8Oa
2/16 MT Whitefish Mtn Resort between Hollwood & Silvertip fell into treewell Skier 48 M Calgary, Alberta http://rec-law.us/1nKj8eh http://rec-law.us/1clTCu3
2/17 WA Stevens Pass Corona Bowl Expert hit head on rock major trauma Boarder 31 M No http://rec-law.us/O48FQH http://rec-law.us/1oRNQFT
2/18 VT Stowe Upper Gondolier hit another skier before sliding into trail sign Skier 30 M Brooklyn, NY Yes http://rec-law.us/1fkn5pt
2/19 WA Crystal Mountain Found in tree well Boarder 35 M Seattle, WA http://rec-law.us/1ffs2kY
3/5 PA Heavenly Valley collided with a tree internal bleeding from blunt-force trauma Boarder 21 M Warren, PA Yes http://rec-law.us/PRTn2a http://rec-law.us/1k4m72J
3/10 CO Copper Mountain Vein Glory Beginner striking a tree Boarder 22 M Denver, CO No http://rec-law.us/1kJvtTc
3/16 NY Whiteface Mountain trail and hit a tree Boarder 22 M Hemlock, NY http://rec-law.us/1gFq34F http://rec-law.us/1mfoli0
3/18 CO Snowmass Gunner’s View trail intermediate collided with a tree hemorrhagic shock due to pelvic trauma Boarder 54 M Germany Yes http://rec-law.us/OAM3Hn
3/21 WA Mission Ridge Ski & Board Resort Kiwa run ski dislodged from its binding Ski 47 M Seattle, WA http://rec-law.us/1jreZv1
3/22 VT Stratton Mountain Ski Resort 91 Trail Veered off the trial & crashed into a sign boarding 16 M Boston, MA http://rec-law.us/1jBxxIX http://rec-law.us/1oZzuSX
3/27 CO Keystone Resort intermediate lost control & hit a tree blunt force trauma Skier 60 M Charlotte, NC Yes http://rec-law.us/1dV5lgV http://rec-law.us/O6FJ9R
3/28 CO Snowmass Elk Camp Chairlift at the top of Sandy Park collision with another skier that led to Cohen hitting a tree multiple injuries Skier 45 M Cincinnati, OH Yes http://rec-law.us/1dHi0co http://rec-law.us/1dHi0co
4/1 WY Jackson Hole Pair-a-Chutes ( The Parachutes) collided with a tree significant body trauma Skier 31 M Jackson Hole, WY & PA http://rec-law.us/1dN158G http://rec-law.us/1ebWibv
4/3 CO Snowmass Cirque Headwall multiple chest injuries Skier 47 M Yes http://rec-law.us/PyekPa http://rec-law.us/1lA1H1g
4/6 CA Northstar Rail Splitter Advanced crashing into a tree Skier 67 M Van Nuys, CA Yes http://rec-law.us/1fWUnLK
4/6 NY Lake Placid Excelsior lost control and struck a tree Boarder 22 M Canandaigua, NY No http://rec-law.us/PG1Hls http://rec-law.us/1mUlNpW

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

If you are unable to view the entire table click on the

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12000 Summer Camps in the US 7000 overnight camps. Do you have your child set to make great memories this summer

Between attending as a camper and working as a staff member, my memories of summer camp are some of the greatest I have. Freedom for the summer, learning new things, seeing how long it will take government surplus peanut butter to fall out of a dish……great memories

6 Million kids attend summer camp each summer!

clip_image002

Created by Regpack 

https://www.regpacks.com/blog/infographic-amazing-facts-on-summer-camps-in-the-united-states/

 

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

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Walton v. Oz Bicycle Club Of Wichita, 1991 U.S. Dist. LEXIS 17655 (Dist Kan 1991)

Walton v. Oz Bicycle Club Of Wichita, 1991 U.S. Dist. LEXIS 17655 (Dist Kan 1991)

Eric Walton, Plaintiff, vs. Oz Bicycle Club Of Wichita, Defendant.

No. 90-1597-K

United States District Court For The District Of Kansas

1991 U.S. Dist. LEXIS 17655

November 21, 1991, Decided

November 22, 1991, Filed

COUNSEL: PLAINTIFF COUNSEL: David P. Calvert, Focht, Hughey, Hund & Calvert, 807 North Waco, Suite 300, Wichita, KS 67203

DEFENSE COUNSEL: Don D. Gribble, II, Donald N. Peterson, II, Kahrs, Nelson, Fanning, Hite & Kellogg, 200 West Douglas, Suite 630, Wichita, KS 67202

JUDGES: KELLY

OPINION BY: PATRICK F. KELLY

OPINION: Nearing the end of the sixth lap of the seven-lap bicycle race held in Hutchinson, Kansas on August 12, 1989, Eric Walton began to pull into the lead. Closely pursued by two other racers, Walton approached the intersection of Crazy Horse and Snokomo Streets. The course of the race required the racers traveling east on Crazy Horse to make a left turn at the intersection onto Snokomo.

MEMORANDUM AND ORDER

Leaning into the turn at about 30 miles per hour, Walton cut the northwest corner of the intersection about two feet from the curb. Flying past the corner, Walton was able to see for the first time the car stopped at the stop sign at the intersection and which had been hidden by the crowd of spectators lining Crazy Horse. Walton turned to the right to avoid the car. His bike went off the roadway, striking the open door of the van owned by the race’s referee, Gaylen Medders. As a result of this accident, Walton sustained injuries which have formed the basis for the present action.

The defendant, Oz Bicycle Club of Wichita, Kansas, has moved for summary judgment on the claims advanced by Walton. Oz presents three arguments in support of its motion: (1) that the release signed by Walton bars the present action; (2) that Walton assumed the risk of the injuries received; and (3) that Oz assumed no duty of due care towards Walton.

[HN1] Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). [HN2] In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). [HN3] The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff’s claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

[HN4] In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. “In the language of the Rule, the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). [HN5] One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Walton was an employee of the Continental Cyclery Company in Hutchinson, Kansas, and participated in the race as a member of the Continental Cyclery team. An experienced racer, Walton had participated in 20 to 30 prior races, and had experienced two prior accidents while racing.

The August 12 race in Hutchinson was sponsored by Continental Cyclery, as well as a local pizzeria and mortuary. The race was conducted under the auspices of defendant Oz Bicycle Club of Wichita, which conducts periodic bicycle races as a part of its “Toto Racing Series.” For the August 12 race, local sponsors arranged for standby emergency medical and law enforcement services, planned the course of the race, and arranged for corner marshals along the route. Medders, the chairman of Oz, took participant applications, and served as the official and timer of the race.

Entrants in the race paid an $ 8.00 fee to Oz. In addition, entrants were required to sign a release. This release provides in part:

NOTICE: THIS ENTRY BLANK AND RELEASE FORM IS A CONTRACT WITH LEGAL CONSEQUENCES. READ IT CAREFULLY BEFORE SIGNING.

In consideration of the acceptance of my application for entry in the above event, I hereby freely agree to and make the following contractural [sic] representations and agreements.

I fully realize the dangers of participating in a bicycle race and fully assume the risks associated with such participation including, by way of example, and not limitation, the following: the dangers of collision with pedestrians, vehicles, other racers, and fixed or moving objects; the dangers arising from surface hazards, equipment failure, inadequate safety equipment, and weather conditions; and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition.

I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter accrue to me against the sponsors of this event, the Oz Bicycle Club, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, special districts, and properties (and their respective agents, officials, and employees) through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event.

Similar releases were contained in the registration forms for each of the 20 to 30 prior races in which Walton had participated. Walton was given an opportunity to read the release. Having read similar forms on prior occasions, Walton did not read this release. Walton was aware of what was in the release and understood its terms.

Walton’s participation in the race was not required. However, Walton voluntarily wished to enter the race and knew that signing the release was a requirement for participation. Walton recognized the dangers of participating in a bike race. Walton signed the release.

Prior to the start of the race, Medders had warned the participants that the course of the race was not closed to traffic, and during the course of the race Walton had encountered other cars on the course. However, as he cut the corner at the end of the sixth lap, Walton had not thought of the possibility of a car, hidden by the crowd, laying in his path on the other side of the intersection.

The status of the doctrine of assumption of risk is not clear under present Kansas law. In Shufelberger v. Worden, 189 Kan. 379, 385, 369 P.2d 382 (1962), the court indicated that the doctrine of assumption of risk was generally limited to situations involving an “employment relationship or [a] contractual relationship, express or implied.” By a process of slow osmosis, the Kansas Supreme Court has held most recently that the doctrine of assumption of risk is “limited to cases such as this where a master-servant relationship is involved.” Borth v. Borth, 221 Kan. 494, 499, 561 P.2d 408 (1977). To what extent this evolution, reflected in Smith v. Blakey, 213 Kan. 91, 101, 515 P.2d 1062 (1973); Ballhorst v. Hahner-Forman-Cale, Inc., 207 Kan. 89, 484 P.2d 38 (1971); Perry v. Schmitt, 184 Kan. 758, 339 P.2d 36 (1959); George v. Beggs, 1 Kan.App.2d 356 Syl para. 1, 564 P.2d 593 (1977), is the result of an intentional, conscious modification of the law is uncertain. At no time have the state courts considered the impact of the adoption of comparative fault in relation to the continued validity of the doctrine of assumption of risk. But it is unnecessary to resolve the issue of assumption of risk here, since the court finds that the release signed by Walton is a valid exculpatory agreement which bars the present action.

In his brief in opposition to the motion for summary judgment, Walton presents several arguments in opposition to the application of the release agreement. Walton contends that the agreement reflects “overreaching” by the defendant, and cites the long list of persons protected by the agreement, including property owners in the area, law enforcement officers, and all public entities. This argument might be considered if the defendant were such a party, unconnected with either the race or the release agreement. Here, however, Oz is the bicycle club which helped to organize the race, took the applications of participants, and required the release agreements to be signed by those participants. In inserted, typed language, the agreement specifically lists “Oz Bicycle Club” as one of the parties protected by the release agreement.

Citing several Kansas cases, Walton contends that the law does not favor exculpatory agreements. This is certainly correct. But the cases cited by Walton merely establish that such agreements are disfavored and therefore are to be strictly construed. They do not establish that exculpatory agreements are inherently void as contrary to law. Mid-America Sprayers, Inc., v. United States Fire Ins. Co., 8 Kan.App.2d 451, 660 P.2d 1380 (1979).

It is correct, as Walton notes, that exculpatory agreements are void where they are contrary to established public interests. Hunter v. American Rentals, 189 Kan. 615, 371 P.2d 131 (1962); In re Estate of Shirk, 186 Kan. 311, 350 P.2d 1 (1960). Yet, despite this suggestion, Walton does not attempt to explain how bicycle racing affects important and established public interests.

The position advanced by Walton has been expressly rejected elsewhere. [HN6] Voluntary sporting competitions are not matters of important public interest, as that term is used in considering which matters may not be the subject of exculpatory agreements. “There is no compelling public interest in facilitating sponsorship and organization of the leisure activity of bicycle racing for public participation.” Okura v. United States Cycling Fed., 186 Cal.App.3d 1462, 231 Cal. Rptr. 429 (1986). See also Dobratz v. Thomson, 161 Wis.2d 502, 468 N.W.2d 654 (1991) (water skiing); Barnes v. Birmingham Intern. Raceway, Inc., 551 So.2d 929 (Ala. 1989) (automobile racing); Milligan v. Big Valley Corp., 754 P.2d 1063 (Wyo. 1988) (downhill skiing); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704 (Wyo. 1987) (mock gunfight conducted by gun club); McAtee v. Newhall Land & Farming, 169 Cal.App.3d 1031, 216 Cal.Rptr. 465 (1985) (motorcross racing); Hulsey v. Elsinore Parachute Center, 168 Cal.App.3d 333, 214 Cal.Rptr. 194 (1985) (sky diving); Williams v. Cox Enternrises, Inc., 159 Ga.App. 333, 283 S.E.2d 367 (1981) (10,000 meter foot race). Even the fact that a participant considers the sport to be more than a “hobby” and hopes to someday participate at an Olympic level, will not raise the matter to a compelling public interest. Buchan v. U.S. Cycling Fed., 227 Cal. App.3d 134, 277 Cal. Rptr. 887 (1991).

Walton also argues that the danger herein — an automobile on the course of the race — was not a hazard normally associated with bicycle competitions, and cites the decision of the California Court of Appeals in Bennett v. United States Cycling Fed., 193 Cal.App.3d 1485, 239 Cal. Rptr. 55 (1987), in which the court found that an automobile’s presence on the course of the raceway was found to be a risk not normally associated with bicycle racing, and therefore not within the contemplation of an exculpatory agreement signed by the plaintiff. Unlike Bennett, where the bicycle race involved a “closed race” in which automobiles were not to be permitted on the raceway, the uncontradicted facts herein establish that the presence of automobiles on the course of the Toto race in Hutchinson was not unknown to the participants. Rather, the fact that the course was open to normal traffic was explicitly made known to the participants. Under the factual background of the case, there is no basis for the contention that the plaintiff could not or should not have anticipated the presence of automobiles on the raceway as a danger reflected in the release agreement.

[HN7] Although exculpatory agreements have an inherent potential for abuse and overreaching, and hence are subjected to close scrutiny by the courts, these agreements have a vital role to play in allowing the individual to participate in activities of his own choice. If the individual has entered into an exculpatory clause freely and knowingly, and the application of the clause violates no aspect of fundamental public policy, the individual’s free choice must be respected. Here, public policy supports, rather than detracts from, the application of the exculpatory clause. “Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.” Buchan, 227 Cal.App.3d at 147.

IT IS ACCORDINGLY ORDERED this 21 day of November, 1991, that the defendant’s motion for summary judgment (Dkt. No. 35) is hereby granted.

PATRICK F. KELLY, JUDGE

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And you think your customers are bad…..but is it all the customers fault?

Maybe you need to screen a little better

Mature lady sunbathing at swimming pool. Puert...

These are allegedly actual complaints received by Thomas Cook Vacations from dissatisfied customers:

1.     “I think it should be explained in the brochure that the local convenience store does not sell proper biscuits like custard creams or ginger nuts.”

2.     “It’s lazy of the local shopkeepers in Puerto Vallarta to close in the afternoons. I often needed to buy things during ‘siesta’ time — this should be banned.”

3.     “On my holiday to Goa in India , I was disgusted to find that almost every restaurant served curry. I don’t like spicy food.”

4.     “We booked an excursion to a water park but no-one told us we had to bring our own swimsuits and towels. We assumed it would be included in the price”

5.     “The beach was too sandy. We had to clean everything when we returned to our room.”

6.     “We found the sand was not like the sand in the brochure. Your brochure shows the sand as white but it was more yellow.”

7.     “They should not allow topless sunbathing on the beach. It was very distracting for my husband who just wanted to relax.”

8.     “No-one told us there would be fish in the water. The children were scared.”

9.     “Although the brochure said that there was a fully equipped kitchen, there was no egg-slicer in the drawers.”

10.    “We went on holiday to Spain and had a problem with the taxi drivers as they were all Spanish.”

11.    “The roads were uneven and bumpy, so we could not read the local guide book during the bus ride to the resort. Because of this, we were unaware of many things that would have made our holiday more fun.”

12.    “It took us nine hours to fly home from Jamaica to England . It took the Americans only three hours to get home. This seems unfair.”

13.    “I compared the size of our one-bedroom suite to our friends’ three-bedroom and ours was significantly smaller.”

14.    “The brochure stated: ‘No hairdressers at the resort’. We’re trainee hairdressers and we think they knew and

Beach in Puerto Vallarta, Jalisco, México.

made us wait longer for service.”

15.    “There were too many Spanish people there. The receptionist spoke Spanish, the food was Spanish. No one told us that there would be so many foreigners.”

16.    “We had to line up outside to catch the boat and there was no air-conditioning.”

17.    “It is your duty as a tour operator to advise us of noisy or unruly guests before we travel.”

18.    “I was bitten by a mosquito. The brochure did not mention mosquitoes.”

19.    “My fiancé and I requested twin-beds when we booked, but instead we were placed in a room with a king bed. We now hold you responsible and want to be re-reimbursed for the fact that I became pregnant. This would not have happened if you had put us in the room that we booked.”

Do Something

Who knows if these are true? However I can envision every one of them being true. Working as a whitewater raft guide I hear customers say:

“How do you get the water back upstream?”

“Can I leave my stuff here on shore?” (At the put in thinking we will come back to this spot.)

And the absolute best. A friend had just rowed a boat through a class IV section of the Arkansas River. The customer climbed out of the boat and stated. “I did not see the rails the entire trip.” The customer thought the boat was traveling on a rail, just like WDW.

What do all of these mean? It means someone is not doing a good job of educating customers before they leave on their trip. Or they may be marketing to the wrong group of customers. Either way, it is these minor annoyances that can create a bigger problem if customer does not feel satisfied with your response.

What do you think? Leave a comment.

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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, EMS, Emergency Medical Systems, Customers, Customer Service, Customer Complaints, Thomas Cook Vacations, dissatisfied customers,

WordPress Tags: customers,Maybe,complaints,Thomas,Cook,Vacations,brochure,convenience,biscuits,shopkeepers,Puerto,Vallarta,afternoons,India,restaurant,food,park,swimsuits,beach,room,husband,Although,kitchen,Spain,taxi,drivers,Spanish,roads,resort,hours,Jamaica,England,Americans,size,bedroom,suite,hairdressers,trainee,receptionist,foreigners,boat,operator,guests,mosquito,mosquitoes,fiancé,beds,fact,whitewater,friend,Arkansas,River,customer,Either,annoyances,response,Leave,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Samaritan,Emergency,Medical,Systems,three


Release stops one of the first lawsuits over bicycle racing.

Case explains in detail “Public Policy” or “Public Interest” and whether a release is void because of a public policy or interest.

Okura v. United States Cycling Federation et al., 186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178 (Cal. App. 1986)

Plaintiff: Kevin Okura

Defendants: the South Bay Wheelmen, United States Cycling Federation and the City of Hermosa Beach

Plaintiff Claims: Negligence in the preparation and maintenance of the course.

Defendant Defenses: release

Holding: for the defendants

 

This case covers one of the first lawsuits over a bicycle race in the US. The race was organized by the South Bay Wheelmen, Inc. South Bay Wheelmen, Inc. was a nonprofit affiliate of another defendant, United States Cycling Federation. The final defendant was the city where the race was held, Hermosa Beach, California.

The plaintiff entered a race and fell when his bike hit debris as he was crossing railroad tracks. He slid into a guard rail suffering injuries upon impact.

To enter the race the plaintiff signed a release which was in the Southern California Cycling Federation Standard Athelete’s Entry Blank and Release Form. The form was 3.5 inches by 8 inches. The release language was fairly well-written and quoted; I believe in whole, in the court’s opinion.

The plaintiff argued that he had no chance to inspect the course and that the release was a contract of adhesion and was not sufficient “to put a participant on notice that he is actually signing a release.” The plaintiff did admit he signed release.

The defendants filed a motion for summary judgment, which was granted and this appeal followed.

Summary of the case

The court looked at the general state of releases in California (at that time). Releases that do not involve or affect the “public interest” are valid. Under California law, whether a release affects the public interest is controlled by six issues.

In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics.

[1] It concerns a business of a type generally thought suitable for public regulation.

[2] 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.

[3] 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.

[4] 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.

[5] 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.

[6] 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 went through and further defined each of the six areas that can create a public interest and void a release under California law. The release in question did not meet any of those issues. “This situation does not present a transaction affecting the public interest. Therefore, there is no proscription for the release contained in the entry and release form herein.”

The final issue was whether the release at question was clear, legible and released the defendants from the type of risk, which caused the plaintiff’s injuries.

As previously indicated, the entire form is only three and one-half inches by eight inches and the only printing on the form other than the incidental information relating to the competitor is the release language.  It is not buried in a lengthy document or hidden among other verbiage.  The type is clear and legible and in light of the fact it has no other language to compete with, its size is appropriate.  The language is clear and unambiguous, and the first paragraph concludes with “even though that liability may arise out of negligence or carelessness on the part of the persons or entities mentioned above.

Finally, the court found the release protected all three defendants.

So Now What?

This case provides great information to make sure your activity can use a release under California law or does not violate public policy or a public interest. The list of types of activities or actions that are of a public interest are there and easy to understand. If your business, activity or program does not meet the list, then a release should work to protect you from losing litigation.

This release was small, but contained the necessary language. The release language was not “buried in a lengthy document or hidden among other verbiage.” However, a stronger list of the risks of bicycle racing and a list of any specific issues of this race and/or this course are always valuable. A long list of the risk and possible injuries is always daunting and perhaps a waste of paper. However, in many cases, if the release does fail for some reason, the document can still be used to prove assumption of the risk.

 

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

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Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741

Morgan Kelly; Pamela Kelly; and Terry Kelly, Plaintiffs, v. United States of America, Defendant.

NO. 7:10-CV-172-FL

United States District Court for the Eastern District of North Carolina, Southern Division

2011 U.S. Dist. LEXIS 89741

August 10, 2011, Decided

August 11, 2011, Filed

COUNSEL: [*1] For Morgan Kelly, Pamela Kelly, Terry Kelly, Plaintiffs: Steven Michael Stancliff, LEAD ATTORNEY, James L. Chapman, IV, Crenshaw, Ware and Martin, P.L.C., Norfolk, VA.

For UNITED STATES OF AMERICA, Defendant: R. A. Renfer, Jr., W. Ellis Boyle, LEAD ATTORNEYS, U. S. Attorney’s Office, Raleigh, NC.

JUDGES: LOUISE W. FLANAGAN, Chief United States District Judge.

OPINION BY: LOUISE W. FLANAGAN

OPINION

ORDER

This matter comes before the court on plaintiffs’ motion to strike affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f), or in the alternative, for partial judgment pursuant to Federal Rule of Civil Procedure 12(c) (DE # 20). Plaintiffs’ motion has been fully briefed. Also before the court is the parties’ joint request for hearing on the motion (DE # 24). For the reasons that follow, plaintiffs’ motion to strike is allowed in part and denied in part. The companion joint motion for hearing is denied.

STATEMENT OF THE CASE

This is an action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. (“FTCA”), to recover damages for injuries allegedly suffered by Morgan Kelly, a minor, at United States Marine Corps Base Camp Lejeune (“Camp Lejeuene”). Morgan Kelly’s parents, Pamela Kelly and Terry [*2] Kelly, join their daughter as plaintiffs in this action.

Plaintiffs filed complaint on September 2, 2010. The government filed answer on December 29, 2010, stating several affirmative defenses. The court conducted a telephonic scheduling conference on February 23, 2011, and afterward entered a preliminary case management order providing for an initial period of written discovery to be completed by April 1, 2011, and for all Rule 12 motions to be filed by May 15, 2011. Further discovery in the case was stayed pending resolution of any motions pursuant to Rule 12.

On May 15, 2011, plaintiffs filed the instant motion to strike the government’s affirmative defenses pursuant to Rule 12(f), or in the alternative, for partial judgment pursuant to Rule 12(c). The motion has been fully briefed. On July 1, 2011, the parties filed joint request for hearing on the motion. On July 6, 2011, the government filed motion for judgment on the pleadings pursuant to Rule 12(c). Plaintiffs were granted an extension of time to respond, and that Rule 12 motion is not yet ripe.

STATEMENT OF THE UNDISPUTED FACTS

In July, 2007, Morgan Kelly, then a fifteen-year-old high school student, was a cadet in the Navy Junior [*3] Reserve Officer Training Corps (“NJROTC”) program at her high school. As part of the program, she voluntarily attended an orientation visit to Camp Lejeune. The United States Marines Corps (“the Marines”) required all NJROTC cadets attending the orientation visit to sign a waiver, which was drafted by the Marines, before being allowed to enter Camp Lejeune. 1 The Marines also required the parent or guardian of any cadet who was a minor to sign the waiver. Morgan Kelly and her mother, Pamela Kelly, both signed the waiver, which is dated July 20, 2007.

1 The waiver is entitled “Waiver of Liability and Assumption of Risk Agreement United States Marine Corps” and states that the individual promises to waive all rights and claims for damages and any other actions arising out of participation in the event, or use of any Marine Corps base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with such participation. (Pls.’ Mot., Ex. 1). The waiver further stipulates that the individual assumes the risks involved in the activities and agrees to hold the government harmless for any resulting injury. Id.

The NJROTC group arrived at Camp Lejeune on July 23, 2007. On [*4] July 25, 2007, Morgan Kelly participated in scheduled training activities at the confidence course. On the last obstacle, called the “Slide for Life” (“SFL”), Morgan Kelly fell as she was climbing and suffered unspecified but allegedly serious injuries. Plaintiffs now seek damages in excess of ten million dollars ($10,000,000.00).

DISCUSSION

A. Joint Request for Hearing

Counsel for the parties have suggested to the court that, due to the complexity of the matters at issue in plaintiffs’ motion, oral argument would aid the court in its determination of the motion. On this basis, the parties jointly request a hearing on the motion. [HN1] Local Civil Rule 7.1(i) provides that hearings on motions may be ordered by the court in its discretion, but that motions shall be determined without a hearing unless the court orders otherwise. The court is sensitive to counsel’s request, however, hearing is not necessary on this thoroughly briefed motion. Counsel have been quite articulate in their respective written presentations. Accordingly, the parties’ request for hearing on plaintiffs’ motion is denied. The court turns its attention below to the underlying motion.

B. Motion to Strike or for Judgment on the [*5] Pleadings

1. Standard of Review

Plaintiffs have moved, pursuant to Rule 12(f), to strike the government’s fourth and seventh affirmative defenses. 2 [HN2] Rule 12(f) permits a district court, on motion of a party or on its own initiative, to strike from a pleading an “insufficient defense.” Fed.R.Civ.P. 12(f). “A defense is insufficient if it is clearly invalid as a matter of law.” Spell v. McDaniel, 591 F.Supp. 1090, 1112 (E.D.N.C. 1984). “Rule 12(f) motions are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.” Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (internal citations omitted). Therefore, motions to strike are rather strictly considered, see Godfredson v. JBC Legal Group, P.C., 387 F.Supp.2d 543, 547 (E.D.N.C. 2005), and the court is required to “view the pleading under attack in a light most favorable to the pleader.” Racick v. Dominion Law Associates, 270 F.R.D. 228, 232 (E.D.N.C. 2010). “Nevertheless, a defense that might confuse the issues in the case and would not, under the facts alleged, constitute a valid defense to the action [*6] can and should be deleted.” Waste Management, 252 F.3d at 347 (internal citations omitted).

2 As noted above, plaintiffs move in the alternative for partial judgment pursuant to Rule 12(c). The court, however, will examine the arguments through the lens of Rule 12(f), because [HN3] “a Rule 12(f) motion to strike is more fitting for situations, such as the one at bar, where a plaintiff challenges only some of the defenses raised in a defendant’s pleading.” Bradshaw v. Hilco Receivables, LLC, 725 F.Supp.2d 532, 534 (D.Md. 2010) (noting that “Rule 12(f) serves as a pruning device to eliminate objectionable matter from an opponent’s pleadings and, unlike the Rule 12(c) procedure, is not directed at gaining a final judgment on the merits”).

2. Analysis

Plaintiffs move to strike the government’s fourth affirmative defense, which asserts that the court lacks subject matter jurisdiction to hear plaintiffs’ claims pursuant to [HN4] the Feres doctrine, which provides the government with immunity from tort claims advanced by armed services personnel. See Feres v. U.S., 340 U.S. 135, 146, 71 S. Ct. 153, 95 L. Ed. 152 (1950). It is undisputed that Morgan Kelly has never been a member of the armed forces. Pls.’ Mot., at 5; Govt’s Resp. in Opp’n, [*7] at 1 n. 1. Therefore, as the government concedes, it is not entitled to defend on the basis of the Feres doctrine. 3 Because the fourth affirmative defense does not constitute a valid defense to the action under the facts alleged, see Waste Management, 252 F.3d at 347, plaintiffs’ motion to strike in this part is granted. The government’s fourth affirmative defense is stricken from its answer.

3 The government also informs that it has abandoned this defense. Govt’s Resp. in Opp’n, at 1 n. 1.

Plaintiffs also move to strike the government’s seventh affirmative defense. At issue is whether, under North Carolina law, 4 the liability waiver signed by the minor, Morgan Kelly, on her own behalf, and also by Pamela Kelly on the minor’s behalf, is enforceable. It is well-established [HN5] under North Carolina law that liability waivers are generally enforceable. See Hall v. Sinclair Refining Co., 242 N.C. 707, 709, 89 S.E.2d 396, 397 (1955) (“[A] person may effectively bargain against liability for harm caused by his ordinary negligence in the performance of a legal duty.”). North Carolina courts strictly construe the terms of exculpatory agreements against the parties seeking to enforce them. Id. Nevertheless, [*8] courts will enforce such contracts unless the contract (1) is violative of a statute; (2) is gained through inequality of bargaining power; or (3) is contrary to a substantial public interest. Waggoner v. Nags Head Water Sports, Inc., 141 F.3d 1162 (4th Cir. 1998) (unpublished table decision); see also Strawbridge v. Sugar Mountain Resort, Inc., 320 F.Supp.2d 425, 432 (W.D.N.C. 2004).

4 [HN6] Under the FTCA, the government is liable in tort “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. In such actions, “federal courts apply the substantive law of the state in which the act or omission giving rise to the action occurred.” Myrick v. U.S., 723 F.2d 1158, 1159 (4th Cir. 1983). Because the alleged act or omission giving rise to the action occurred in North Carolina, North Carolina law governs the nature and extent of the government’s liability for plaintiffs’ injuries. The parties further agree that North Carolina law governs the interpretation and enforceability of the waiver. Pls.’ Mot., at 8-9, Govt’s Resp. in Opp’n, at 2, n. 2.

Although liability waivers are generally enforceable, it is beyond dispute that Morgan Kelly’s own waiver [*9] is unenforceable. [HN7] Under North Carolina law, the contract of a minor generally is not binding on him. See Baker v. Adidas America, Inc., 335 Fed.App’x. 356, 359 (4th Cir. 2009); see also Creech ex rel. Creech v. Melnik, 147 N.C. App. 471, 475, 556 S.E.2d 587, 590 (2001) (citing Freeman v. Bridger, 49 N.C. 1 (1956)). The rule is based on the theory that minors do not have contractual capacity. Nationwide Mut. Ins. Co. v. Chantos, 293 N.C. 431, 443, 238 S.E.2d 597, 605 (1977). “[B]ecause a minor lacks legal capacity there cannot be a valid contract in most transactions, unless it is for necessaries or the statutes make the contract valid.” Creech, 147 N.C. App. at 477, 238 S.E.2d at 591. Accordingly, contracts entered into by a minor, except those for necessities or authorized by statute, are voidable at the election of the minor, and may be disaffirmed. Id. (citing Jackson v. Beard, 162 N.C. 105, 78 S.E. 6 (1913)). Having disaffirmed the waiver by filing complaint, Morgan Kelly’s own contract purporting to waive her personal injury claims is not enforceable. Therefore, the seventh affirmative defense, to the extent it reaches the actions of minor plaintiff Morgan Kelly, is clearly invalid [*10] as a matter of law and therefore insufficient. See Spell, 591 F.Supp. at 1112. For this reason, the court allows plaintiff’s motion to strike the seventh affirmative defense as it pertains to any waiver by Morgan Kelly.

The question now turns on whether, under North Carolina law, a liability waiver signed by a parent on behalf of a minor child 5 is enforceable, or whether such a waiver is unenforceable as contrary to a substantial public interest under the third Waggoner factor. 6 The parties agree that there is no controlling precedent, and the court similarly is unaware of any. The court therefore must forecast how the North Carolina Supreme Court would rule on the question. See Liberty Mut. Ins. Co. v. Triangle Indus., 957 F.2d 1153, 1156 (4th Cir. 1992) (holding that [HN8] where state law is unclear, federal courts must predict the decision of the state’s highest court). Because no North Carolina case or statute directly addresses the issue, the court turns to the law of other jurisdictions for persuasive guidance. Each party relies on a series of decisions from other jurisdictions that fall on either side of the issue. The cases indicate the difficulty in reaching the proper balance [*11] between the important interests and policies at stake.

5 In North Carolina, a minor is defined as any person who has not reached the age of eighteen (18) years. N.C. Gen. Stat. 48A-2.

6 Plaintiffs also argue that the liability waiver is unenforceable under the first two prongs of the Waggoner analysis. Plaintiffs first assert that enforcement of the waiver would violate a statute. However, they point to no specific statute that would be violated by enforcement of the waiver, relying instead on legislative history reciting the purposes of the NJROTC program. The court is unwilling to find that the waiver is violative of statute on this basis, where plaintiffs can offer no statute in clear support of their argument.

Plaintiffs also claim that the waiver was obtained through inequality of bargaining power because plaintiffs were not free to negotiate different terms. In Waggoner, plaintiff rented a jet ski from defendant, signed a liability waiver as part of the rental agreement, and was injured while using the rented equipment. The Fourth Circuit rejected plaintiff’s argument that the waiver was obtained through inequality of bargaining power, reasoning that “[i]t is true that Waggoner could [*12] not negotiate the terms of the contract, but either had to sign the exculpatory clause or decline to rent the jet ski; however, this supposed inequality of bargaining power . . . is more apparent than real. It is not different from that which exists in any other case in which a potential seller is the only supplier of the particular article or service desired. [HN9] Only where it is necessary for [the plaintiff] to enter into the contract to obtain something of importance to him which for all practical purposes is not obtainable elsewhere will unequal bargaining power void an exculpatory clause.” Waggoner, 141 F.3d at 1162. In this case as well, the supposed inequality of bargaining power is more apparent than real, where Morgan Kelly was free to forego participation in the voluntary program. The court therefore declines to find the waiver unenforceable based on the second Waggoner factor.

As plaintiffs correctly note, [HN10] the majority rule in the United States is that parents may not bind their children to pre-injury liability waivers by signing the waivers on their children’s behalf. See Galloway v. State, 790 N.W.2d 252, 256 (Iowa 2010) (listing cases and concluding that “the majority of state [*13] courts who have examined the issue . . . have concluded public policy precludes enforcement of a parent’s pre-injury waiver of her child’s cause of action for injuries caused by negligence“); see also Kirton v. Fields, 997 So.2d 349, 356 (Fla. 2003) (listing cases, and stating that “[i]n holding that pre-injury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities, we are in agreement with the majority of other jurisdictions”).

[HN11] Many of the states holding that parents cannot bind children to pre-injury releases have reached that conclusion by relying on legal principles that also are recognized in North Carolina. For example, in many states, a parent may not bind a minor child to a post-injury settlement agreement releasing tort claims without court approval. See Galloway, 790 N.W.2d at 257 (noting that, under Iowa law, parents may not compromise and settle a minor child’s tort claim without court approval, and that therefore it would not make sense to permit a parent to prospectively release a child’s cause of action); see also J.T. ex rel. Thode v. Monster Mountain, LLC, 754 F.Supp.2d 1323, 1328 (M.D. Ala. 2010) (observing [*14] that under Alabama law, a parent may not bind a child to a settlement without court approval); see also Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 494, 834 P.2d 6, 11-12 (1992) (concluding that since, under Washington law, “a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury”).

Similarly, under North Carolina law, a parent cannot bind his minor child by settling a tort claim and executing a release of liability on the minor’s behalf. Sell v. Hotchkiss, 264 N.C. 185, 191, 141 S.E.2d 259, 264 (1965). “The settlement of an infant’s tort claim becomes effective and binding upon him only upon judicial examination and adjudication.” Id. Indeed, “failure to present proof of court approval of a [settlement] contract on behalf of a minor is fatal at any stage of a proceeding seeking to enforce such a contract.” Creech, 147 N.C. App. at 475, 556 S.E.2d at 590. It seems, therefore, that the North Carolina Supreme Court would join those other state courts listed above in holding that, in general, a parent may not bind a child to a pre-injury [*15] liability waiver by signing the liability waiver on the child’s behalf.

[HN12] Although the majority rule is that parents may not bind their children to pre-injury liability waivers, many states recognize an exception where the liability waiver is in the context of non-profit activities sponsored by schools, volunteers, or community organizations. See Monster Mountain, 754 F.Supp.2d at 1327 (noting that “the only published decisions from other jurisdictions that have bound children to pre-injury releases executed by a parent or guardian on the child’s behalf have done so in the context of a minor’s participation in school-run or community-sponsored activities”). 7 For example, courts have upheld liability waivers in the context of school-sponsored fundraising events, high school athletic programs, municipal athletic programs, and voluntary extracurricular programs. See Gonzalez v. City of Coral Gables, 871 So.2d 1067, 1067-68 (Fla. Dist. Ct. App. 2004); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 747 (2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 1998 Ohio 389, 696 N.E.2d 201 (1998); Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal. Rptr. 647 (1990).

7 Indeed, [HN13] where the liability [*16] waiver is in the context of a for-profit activity, it is almost certainly unenforceable. See Monster Mountain, 754 F.Supp.2d at 1327 (stating that “this court is not aware of a single case, that has not been overturned, that has held these clauses to be binding in the context of a for-profit activity”). The many cases cited by plaintiffs overwhelmingly demonstrate the tendency of courts to strike down exculpatory agreements in the context of a commercial activity. See, e.g., Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 634 N.E.2d 411, 199 Ill. Dec. 572 (1994) (horseback riding lessons); Paz v. Life Time Fitness, Inc., 757 F. Supp.2d 658 (S.D. Tex. 2010) (fitness center); Johnson v. New River Scenic Whitewater Tours, Inc., 313 F.Supp.2d 621 (S.D.W.Va. 2004) (whitewater rafting); Kirton v. Fields, 997 So.2d 349 (Fla. 2003) (motor sports park).

In Gonzalez, the parent of a fifteen-year-old high school student signed a liability waiver in order for the student to participate in a school-sponsored training program at the municipal fire station, for which she was to receive class credit. 871 So.2d 1067. In holding that the waiver was enforceable, the court concluded that the program fell “within the [*17] category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child’s litigation rights in authorizing the child’s participation.” Id. Also in the context of school-sponsored extracurricular activities, a California state court and a Massachusetts state court each upheld liability waivers executed in conjunction with high school fundraising events and high school cheerleading practice, respectively. See Hohe, 224 Cal.App.3d at 1563 (noting specifically the voluntary and recreational nature of the activity, which was sponsored by plaintiff’s high school); Sharon, 437 Mass. at 107-08. Finally, apart from the school-sponsored context, the Ohio Supreme Court held that a liability waiver was enforceable in the context of a community-based recreational soccer club. Zivich, 82 Ohio St.3d 367, 1998 Ohio 389, 696 N.E.2d 201. The court in that case held the waiver enforceable to bar the claim of a child who was injured on the soccer field, noting that “the [*18] public as a whole received the benefit of these exculpatory agreements [which allowed the club] to offer affordable recreation and to continue to do so without the risks and overwhelming costs of litigations.” Id. at 372..

Plaintiffs rely heavily on Galloway, wherein the Iowa Supreme Court held a liability waiver unenforceable where it was executed in the context of a high school field trip. 790 N.W.2d at 258-59. In declining to adopt the exception described above, the court noted that the policy concerns justifying the exception were “speculative and overstated,” finding that “the strong public policy favoring the protection of children’s legal rights must prevail over speculative fears about their continuing access to activities.” Id. at 259. This case, however, appears to be an outlier, as the exception is well-established by the majority of state court cases that have discussed the issue, as discussed above.

The court is persuaded by the analysis of those courts that have upheld such waivers in the context of litigation filed against schools, municipalities, or clubs providing activities for children, and concludes that, if faced with the issue, the North Carolina Supreme Court would [*19] similarly uphold a preinjury release executed by a parent on behalf of a minor child in this context.

Applying these principles to the case now at bar, the court observes that the activity at issue here was not commercial in nature, unlike those at issue in Meyer, Paz, Johnson, and Kirton, among others cited by plaintiffs. Here, it is undisputed that the liability waiver was executed on behalf of a fifteen-year-old high school student by her mother in conjunction with the student’s participation in a school-sponsored activity. The facts, therefore, are very similar to those in Gonzalez. As in that case, the court concludes that the activity falls “within the category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child’s litigation rights in authorizing the child’s participation.” Gonzalez, 871 So.2d 1067.

Here, the liability waiver was executed so that Morgan Kelly could participate in a school-sponsored enrichment program that was extracurricular and voluntary. On these facts, the court anticipates that the North Carolina Supreme Court would hold the liability waiver enforceable under the exception for non-commercial [*20] or community-based activities. Therefore, the seventh affirmative defense is not “clearly invalid as a matter of law” as it relates to a waiver of claims by Pamela Kelly, and therefore is not an insufficient defense. See Spell, 591 F.Supp. at 1112. As such, plaintiff’s motion to strike the seventh affirmative defense must be and is denied as to that issue. 8

8 Plaintiffs argue in the alternative that even if the waiver is enforceable to bar Morgan Kelly’s claims, it is not enforceable against the claims of her parents. Plaintiffs argue that “the text of the waiver form envisions an agreement only between the United States and the minor participant.” Pls.’ Mot., at 13. In support, plaintiffs point to language of the waiver which, they claim, emphasizes Morgan Kelly over her parents. For example, the contract refers to “my participation [in the training program]” and the provision that “should I decline to execute this agreement, I will not be permitted to attend the organized event.” Pls.’ Mot., at 13-14. However, the waiver clearly states that “I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, administrators, [*21] legal representatives and any other persons on my behalf, any and all rights and claims for damages” arising out of “my participation in the activities comprising the aforesaid event.” As such, the waiver’s plain language extends not only to Morgan Kelly’s claims but those of her parents as well.

CONCLUSION

For the foregoing reasons, the parties’ joint request for hearing (DE # 24) is DENIED. Plaintiffs’ motion to strike affirmative defenses (DE # 20) is ALLOWED as to the fourth affirmative defense. As to the seventh affirmative defense, plaintiffs’ motion to strike is ALLOWED as to the minor’s waiver of her own claims. Attempted defense on this basis is not supported under law. Affirmative defense persists however, at to the mother’s waiver of the minor’s claims. As discussed at length above, plaintiffs’ motion to strike is DENIED in this remaining part.

SO ORDERED, this the 10th day of August, 2011.

/s/ Louise W. Flanagan

LOUISE W. FLANAGAN

Chief United States District Judge

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Grand Canyon Youth needs Program Director

PROGRAM DIRECTOR JOB DESCRIPTION

Job Title: Program Director, Grand Canyon Youth, Inc.

Location: Flagstaff, Arizona

Salary: $32,000

Benefits: Health, Dental and Retirement

Work Hours: Flexible schedule that varies by season; some nights and weekends; average 40 hour work week

Position Open: July 15-August 15, 2013

To Apply: Please submit a resume, cover letter and references to Executive Director, Emma Wharton

_____________________________________________________________________________________

OVERVIEW

The Program Director for Grand Canyon Youth (GCY) is responsible for the preparation, correspondence and coordination of the programmatic aspects of Grand Canyon Youth’s river education programs. The Program Director must have the ability to develop and maintain professional relationships with GCY staff, youth participants, parents, guides, drivers, volunteers, and community partners.

_____________________________________________________________________________________

ESSENTIAL DUTIES AND RESPONSIBILITIES

Program Development (5%)

• Manage program documents

• Develop and implement educational curriculum/goals

• Collect, create and distribute educational resources

 

Program Preparation (90%)

• Orient the teachers, partnership agencies, and community members who work with Grand Canyon Youth to the goals of Grand Canyon Youth.

• Act as the main point of contact with groups and participants

• Maintain and facilitate on-going communication through email, phone and in-person meetings

• Schedule and lead informational meetings

• Manage the financial aid approval process

• Conduct post-season debriefs and evaluations

 

Other Responsibilities (5%)

• Adhere and be familiar with the GCY risk management policies, procedures, and protocols.

• Coordination of an on-river educational program

 

SKILLS AND KNOWLEDGE

• Enthusiasm for working with middle and high school age youth

• Excellent verbal and written communication skills

• Superior organization skills and ability to formulate efficient systems

• Ability to document and communicate details

• High interest in experiential education & development of educational resources for outdoor and site-based education

• Creative and effective problem-solving skills

• Strong work ethic

• Strong ability to multi-task and prioritize tasks

• Demonstrated ability to innovate, rather than maintain status quo

• Ability to function well in a busy work environment (including a shared office with multiple interruptions)

• Practical knowledge and experience using a variety of office equipment and programs (including, but not limited to, desktop computer, shared documents, printer, fax machine, multi-line telephone, copier, email, word processing, spreadsheets)

• Flexibility

• Sense of humor

 

Minimum Qualifications:

• Bachelor’s degree and/or any combination of education, training and experience which demonstrates the ability to perform the duties of the position

• Clean driving record

• Ability to pass a background check

• Minimum age of 21

 

Preferences:

• At least two years experience working with youth and/or working in nonprofit management

• River experience

• Wilderness First Responder or Wilderness First Aid training

 

NOTES:

• This position is subject to the availability of grant funds.

• This job description may evolve as the needs of the organization change.

• Grand Canyon Youth, Inc. is an equal opportunity employer.

 

Grand Canyon Youth, Inc. is a non-profit organization. Our mission is to provide an experiential education for youth along the rivers and canyons of the Southwest in an effort to promote environmental awareness, community involvement, personal growth, and teamwork among people of diverse backgrounds.

Our ideal candidate will be dependable, trustworthy and able to follow up with and complete tasks in a timely manner. The GCY Program Director must be very organized and whole-heartedly embrace the values outlined in our mission.

 

 

Emma Wharton

Executive Director

Grand Canyon Youth

ph 928.773.7921

fx  928.774.8941

www.gcyouth.org

 

 


Release saves riding school, even after defendant tried to show plaintiff how to win the case.

As an expert you just can’t state facts, you have to prove your facts.

Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218

Plaintiff: Nicole Azad

Defendant: Mill Creek Equestrian Center, Inc.

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: Release

Holding: for the defendant

This is a horseback riding case. The plaintiff was a beginner rider taking lessons from the defendant. The defendant’s instructor placed her in the jumping ring for training. Another horse in the ring spooked, which spooked the horse the plaintiff was riding. The plaintiff’s horse jumped the ring fence. The plaintiff fell off breaking her leg.

The plaintiff had signed a release before starting the lessons. The release was well labeled stating on each page that it was a release. The release also had a notice right above the signature line indicating the signor was giving up their legal rights.

The release, however, specifically stated that it did not prevent claims for gross negligence.

The plaintiff sued for negligence and after getting educated by the defendant, for gross negligence. The trial court dismissed the case after the defendant filed a motion for summary judgment. The plaintiff appealed.

Summary of the case

On appeal the plaintiff claimed:

…there are material issues of fact regarding whether the release was clear and whether it exempted the challenged conduct. She also argues MCEC increased the risk to Azad beyond that inherent in horseback riding.

The court first looked at the validity of the release against a case argued by the plaintiff that found a release was insufficient. The court then only compared the release in this case to the arguments made in the case raised by the plaintiff.

The release was a two-page document. On the first page, it contained a titled, “LIABILITY RELEASE AND INDEMNITY AGREEMENT.” On all other pages, it stated, “RIDING INSTRUCTION AGREEMENT AND LIABILITY RELEASE FORM.” Above the signature line, there was a statement that the signer was aware of the legal issues and acknowledgement of the legal issues.

The court found the release worked to stop claims of ordinary negligence but not gross negligence.

The court then reviewed California law on the duty owed by instructors in sports.

By consenting to participate in a sport that includes risks, a person consents to assume the risks inherent in the sport. A person does not consent to a breach of a duty by another that increases the risks inherent in the sport.  “‘[A] purveyor of recreational activities owes a duty to a patron to not increase the risks inherent in the activity in which the patron has paid to engage. . . .'”

A sports instructor must intentionally injury a student or engages in conduct that is totally outside the range of ordinary activity to be liable. Other than those two issues, the participant assumes the risk of the sport.

… a sports instructor breaches a duty of care only “‘if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity.’

In this case, the plaintiff had not raised any issues or facts, other than statements of the plaintiff’s expert witness who could support a claim of gross negligence. The plaintiff’s expert alleged the actions of the defendant were grossly negligent but did not demonstrate any facts showing an “extreme departure from the ordinary standard of conduct.” The court also pointed out the plaintiff stated the instructor was inadequately trained but not support her statement with proof.

The court in stating there was not proof of gross negligence stated:

Gross negligence is defined as “‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘” This definition is similar to the standard employed in Kahn – conduct totally outside the range of ordinary activity.

The court upheld the dismissal of the plaintiff’s complaint.

So Now What?

This release had 2 great points. The title and the heading on each page said this is a release. I’ve continuously stated that you cannot hide your release in other documents. It must be presented as a release to the signor and must plainly set forth the signor is giving up their legal rights.

However, don’t help the plaintiff sue you? Here the release said this document is no good if you prove I was grossly negligent. So what did the plaintiff need to do, prove gross negligence to win.

The facts of the case were pretty tame, and the injury to the plaintiff was relatively minor.

The court did look at what it would take to prove gross negligence from reviewing other cases. One was having a manual and showing an extreme departure from the manual.

If you write it down as the “way,” you better follow it.

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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Want a job rowing a boat or motor rig in the Grand Canyon?

Hello everyone,

Poster for Grand Canyon National Park, Arizona...

Poster for Grand Canyon National Park, Arizona, USA (Photo credit: Wikipedia)

There are 2 small craft operator (whitewater boat operator) positions now open in Grand Canyon National Park. The positions opened today, June 17th and will be open for applications until July 12th. The positions have a 4 year term. You can access the job posting/descriptions/requirements and apply online at:

https://www.usajobs.gov/GetJob/ViewDetails/345603000

This information came from the Grand Canyon River Guides Association. If you love the Grand Canyon, you should be a member.

 

GCRG BW LOGO High Res (2)


Decisive Supreme Court Decision on the Validity of Releases in Oklahoma

Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)

Case arose as a certified question from the US District Court from Western Oklahoma.

This is a request by the Federal District Court in Western Oklahoma for clarification on a legal point. When a Federal court has to apply state law and there are no decisions for the Federal court to rely upon, it certifies the question to the state Supreme Court for clarification. That is how this case arose.

The plaintiff went for a trail ride at Artillery Hunt Riding Stables at Fort Sill, Oklahoma. Because the stable was owned by the Army that is the reason for the suit to be brought in Federal Court and why the defendant is the USA.

While on the ride, the “ride leader” allegedly rode up behind the plaintiff and frightened her horse causing the horse to throw her. The plaintiff sued saying that the US “(1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader.” Both claims are based in negligence.

The Federal Court could not find case law to rely upon to issue an opinion on the defendant’s defense of release so it sent the case the Oklahoma Supreme Court.

The Oklahoma Supreme Court did not decide the case. The court only used the facts as supplemental information in making its decision concerning releases in Oklahoma.

The Oklahoma looked at the question in two parts:

1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?

2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?

The court responded this way: “

We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy.

We note that exculpatory clauses cannot relieve one from liability for fraud, willful injury, gross negligence or violation of the law.

Summary of the case

This decision is a well-written look at how Oklahoma and many other states look at releases. Generally, releases are upheld in Oklahoma. However, although releases are “generally enforceable” releases are distasteful. The test in Oklahoma on whether a release is valid is:

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

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

(3) enforcement of these clauses must never

(a) be injurious to public health, public morals or confidence in administration of the law or

(b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.

The court then described what clear and unambiguous intent was:

A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall fairly within the contemplation of, the parties. The clause must also identify the type and extent of damages covered — including those to occur in futuro.

The court did differentiate between an exculpatory clause (release) which limits suits and clauses, which limit damages under Oklahoma law.

Bargaining power was described by the court in looking at releases as:

Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services.

The final issue, a release that violates public policy was described as:

While courts may declare void those portions of private contracts which contradict public policy, they must do so only with great caution. Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property.

The court summed up its opinion on what a release must have under Oklahoma law as:

“any agreement having as its purpose the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved.

However, if any single requirement of the three requirements is not met by a release, then the release must fail.

So Now What?

You never find a decision that says this is what you must do to be legal. This decision from the Oklahoma Supreme Court explains step by step what an attorney must do to write a release.

 

Plaintiff: Elizabeth M. Schmidt

 

Defendant: United States of America (Artillery Hunt Riding Stables at Fort Sill, Oklahoma)

 

Plaintiff Claims: Negligence in the original Federal Action

 

Defendant Defenses: Release

 

Holding: Sent to the Federal Court for determination based on the decision here.

What do you think? Leave a comment.

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Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)

Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)

ELIZABETH M. SCHMIDT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 85,545

SUPREME COURT OF OKLAHOMA

1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38

February 27, 1996, FILED

COUNSEL: Alan D. Rosenbaum, Lawton, OK, Reggie N. Whitten, Douglas A. Terry, MILLS & WHITTEN, Oklahoma City, OK, For Plaintiff.

Patrick M. Ryan, United States Attorney, Ronny D. Pyle, Assistant United States Attorney, Western District of Oklahoma, For Defendant.

JUDGES: KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur; WILSON, C.J., concurs in part and dissents in part.

OPINION BY: OPALA

OPINION

[*872] CERTIFIED QUESTIONS FROM A UNITED STATES COURT

Opala, J.

The United States District Court for the Western [**2] District of Oklahoma [certifying court] certified the following questions pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 §§ 1601 et seq.:

“1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?

2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?”

We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy. We note that exculpatory clauses cannot relieve one from liability for fraud, [**3] willful injury, gross negligence or violation of the law. 1

1 See infra notes 8 and 15.

I

ANATOMY OF THE FEDERAL LITIGATION 2

2 The material accompanying the certified questions consists of the parties’ pleadings and motions filed in the certifying court. The factual recitals in the anatomy of the federal litigation were gleaned from this material and from the briefs submitted to this court.

Elizabeth M. Schmidt [plaintiff or Schmidt] went to the Artillery Hunt Riding Stables [Stables] at Fort Sill, Oklahoma 3 to engage in recreational horseback riding. Before participating in this activity she executed a Rental Riding Agreement [contract]. The contract contained the following clause [exculpatory clause or clause]:

“In consideration for being allowed to participate in Horse Rental, I hereby release [**4] the Artillery Hunt Center and its employees and/or ride leaders . . . and the United States Government from any liabilities or claims arising from my participation. I agree that I will never prosecute or in any way aid in prosecuting any demand, claim or suit against the United States Government for any loss, damage or injury to my person or property that may occur from any cause whatsoever as a result of taking part in this activity.” [Emphasis supplied.]

3 The Stables are admittedly an instrumentality of the U.S. Army.

Schmidt claims that, during the ride, a “ride leader” employed by the Stables negligently rode up behind her, frightened her horse and caused it to throw her to the ground, then fall on and injure her.

[*873] Schmidt brought a negligent tort complaint against the United States 4 alleging that the latter (1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader. 5 By its summary [**5] judgment motion the United States interposed the exculpatory clause, by which it sought to defeat Schmidt’s claim.

4 Schmidt’s action invokes the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 2671 et seq. [HN1] By the FTCA’s terms the United States’ liability is measured according to the law of the state in which the wrongful act occurred. 28 U.S.C. § 2674.

5 Schmidt charges the United States with actual notice of the employee’s unfitness to lead the ride.

II

THE NATURE OF THIS COURT’S FUNCTION WHEN ANSWERING QUESTIONS FROM A FEDERAL COURT

[HN2] While the actionability of state-law claims identified in the submitted questions may be tested when answering the queries posed, it is not this court’s province to intrude (by the responses to be given) upon the federal court’s decision-making process. Because this case is not before us for decision,we refrain, as we must, from applying the declared state-law responses to the facts elicited or to be determined in the federal-court litigation (whether [**6] made by evidence adduced at trial or by acceptable probative substitutes, called “evidentiary materials”, for use in the summary adjudication process). 6 The task of analyzing the impact of today’s answers must be and hence is deferred to the certifying court.

6 Brown v. Ford, Okl., 905 P.2d 223, 226 n. 3 (1995); Bonner v. Oklahoma Rock Corp., Okl., 863 P.2d 1176, 1178 n. 3 (1993); Shebester v. Triple Crown Insurers, Okl., 826 P.2d 603, 606 n. 4 (1992).

III

THE PARAMETERS OF THE CLAUSE’S ENFORCEABILITY

[HN3] By entering into an exculpatory agreement of the type dealt with here 7 the promisor assumes the risks that are waived. 8 [*874] While these exculpatory promise based obligations are generally enforceable, 9 they are distasteful to the law. 10 For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant 11 from liability for the sought-to-be-recovered [**7] damages; 12 (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; 13 and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy. 14

7 For a discussion of the difference between a contract clause totally exempting one from culpability and one which merely limits the financial extent of that liability, see Elsken v. Network Multi-Family Sec. Corp., Okl., 838 P.2d 1007, 1008 (1992); Fretwell v. Protection Alarm Co., Okl., 764 P.2d 149, 151 (1988). In both of those cases a burglar alarm company sought to limit its liability for loss due to theft of customers’ property via a liquidated damages provision. The propriety of similar liability-limiting contract clauses is subject to an analysis grounded in contract law that lies outside the realm of tort jurisprudence. See MacNeil, Power of Contract and Agreed Remedies, 47 CORNELL L. Q. 495 (1962).

[**8]

8 [HN4] Express assumption of risk occurs in those cases where the plaintiff expressly contracts with another not to sue for any future injuries which may be caused by that person’s negligence. Thomas v. Holliday by and through Holliday, Okl., 764 P.2d 165, 168 n. 8 (1988); Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1129 (La. 1988); Anderson v. Ceccardi, 6 Ohio St. 3d 110, 451 N.E.2d 780, 783 (1983). The terms of RESTATEMENT (SECOND) OF TORTS § 496B (1965) provide:

[HN5] “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.” [Emphasis added.]

For a discussion of the jurisprudential requisites for determining whether an exculpatory contract violates public policy, see infra Part IIIC. See also in this connection V. SCHWARTZ, COMPARATIVE NEGLIGENCE § 9.1 at 154 (1974). [HN6] Express consent, which might also be called “waiver” or “release”, will usually bar recovery by the plaintiff unless there is a statute or established public policy against it. Murray, supra at 1129. The two statutory provisions cited by Schmidt are inapposite here. The terms of the first, [HN7] 15 O.S.1991 § 212, provide:

“All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another or violation of the law, whether willful or negligent, are against the public policy of the law.” [Emphasis added.]

This section forbids agreements relieving one from liability for fraud, willful injury or violation of the law. Its terms cannot be read to embrace contracts affecting liability for simple negligence. We assume — for want of contrary notice from the federal-court record — that in this case there is no fraudulent or willful conduct.

The terms of the second section, [HN8] 15 O.S.1991 § 212.1, provide:

“Any notice given by a business entity which provides services or facilities for profit to the general public and which seeks to exempt the business entity from liability for personal injury caused by or resulting from any acts of negligence on its part or on the part of its servants or employees, shall be deemed void as against public policy and wholly unenforceable.” [Emphasis added.]

[HN9] This section’s terms apply to promises imposed without the promisor’s adequate knowledge through explanation or sans consideration. That is not the case here because the exculpatory contract in suit clearly amounts to more than a posted notice.

[**9]

9 Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 525 (1994); Colgan v. Agway, Inc., 150 Vt. 373, 553 A.2d 143, 145 (Vt. 1988); Harris v. Walker, 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917, 919 (1988); Rawlings v. Layne & Bowler Pump Company, 93 Idaho 496, 465 P.2d 107, 110 (1970); Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507, 233 N.E.2d 22, 24 (Mass. 1968); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 926, 220 N.Y.S.2d 962 (1961).

10 Gulf C&S Ry. Co. v. Anderson, 120 Okla. 60, 250 P. 500, 502 (1926).

11 Colgan, supra note 9 at 145; Jones v. Dressel, 623 P.2d 370, 378 (Colo. 1981); Anderson, supra note 10 at 502.

12 Anderson, supra note 10 at 502.

13 Salt River Project Agr. v. Westinghouse Elec., 143 Ariz. 368, 694 P.2d 198, 213 (1985); Elsken, supra note 7 at 1010-1111.

14 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984). See also Thomas, supra note 8 at 168 n. 7; Fisk v. Bullard, 205 Okla. 502, 239 P.2d 424, 427 (1951); Anderson, supra note 10 at 502. See also in this connection Harris, supra note 9 at 909; Salt River, supra note 13 at 213; Belger Cartage Serv., Inc., v. Holland Const. Co., 224 Kan. 320, 582 P.2d 1111, 1119 (1978); Ciofalo, supra note 9 at 926. 15

[**10] [HN10]

The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence. 15

15 Wolf supra note 9 at 528; Jones, supra note 11 at 376; Manhattan Co. v. Goldberg, 38 A.2d 172, 174 (D.C. 1944).

A. Clear and Unambiguous Description of Parties and Damages

[HN11] A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall [**11] fairly within the contemplation of, the parties. 16 The clause must also identify the type and extent of damages covered — including those to occur in futuro. 17

16 Anderson, supra note 10 at 502.

17 Anderson, supra note 10 at 502.

B. Bargaining Power’s Parity Level

[HN12] Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services. 18

18 Goldberg, supra note 15 at 174-175. See Trumbower v. Sports Car Club of America, Inc., 428 F. Supp. 1113, 1117 (W.D. Okla. 1976).

[**12] [*875] C. The Element Whose Presence Makes the Exculpation Not Violative of Public Policy 19

19 [HN13] In the context of an exculpatory clause’s validity, “public policy” means that which inhibits anything injurious to the good of all. The term is applied here in a sense broader than that used when scrutinizing for conformity to “public policy” wrongful-termination claims pressed by discharged at-will employees. Cameron & Henderson v. Franks, 199 Okla. 143, 184 P.2d 965, 972 (1947). For cases that deal with claims by discharged at-will employees see Groce v. Foster, Okl., 880 P.2d 902, 904 (1994); Gilmore v. Enogex, Inc., Okl., 878 P.2d 360, 364 (1994); Burk v. K-Mart Corp., Okl., 770 P.2d 24, 28-29 (1989).

[HN14]

While courts may declare void those portions of private contracts which contradict public policy, 20 they must do so only with great caution. 21 Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public [**13] morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property. 22

20 Hargrave v. Canadian Valley Elec. Co-op., Okl., 792 P.2d 50, 59 (1990).

21 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984); Johnston v. J.R. Watkins Co., 195 Okla. 341, 157 P.2d 755, 757 (1945); Camp v. Black Gold Petroleum Co., 189 Okla. 692, 119 P.2d 815, 817-818 (1941).

22 Shepard, supra note 21 at 251; Anderson v. Reed, 133 Okla. 23, 270 P. 854, 856 (1928). An example of an exculpatory clause injurious to public health is afforded by an agreement exonerating a common carrier from liability for negligence. See Pine Belt Lumber Co. v. Riggs, 80 Okla. 28, 193 P. 990, 996-997 (1920).

IV

SUMMARY

[HN15] National jurisprudence teaches that parties may contractually allocate the risk of future harm. The exercise of this power is conditional; any agreement having as its purpose [**14] the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved. The parties must have bargained for their exchange on a level playing field — the level to be measured by the seriousness of the contract’s subject matter and the options available to the person giving up the right to sue. If the clause is to pass the test’s muster, the assumed obligation cannot be deemed to have brought about a result perceived as harmful to the principles of “public policy”. 23

23 See supra note 19.

The validity of the Schmidt/Stables exculpatory clause in suit depends on the outcome of the fact-finding investigation to be conducted in the certifying court. 24 If — under the test we announce today — that court should determine that any single requirement for the clause’s enforceability has not been met, its decision could not uphold the contract and exonerate the United [**15] States.

24 Promise-based obligations of the type dealt with here are treated as the promisor’s risk assumption. See supra Part III. [HN16] The terms of ART. 23, § 6, OKL.CONST., provide in pertinent part:

“The defense of . . . assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.” [Emphasis added.]

[HN17] The terms of ART. 23, § 8, OKL.CONST., provide:

Any provision of a contract, express or implied, made by any person, by which any of the benefits of this constitution is sought to be waived, shall be null and void.” [Emphasis added.]

Today we merely define the parameters of an exculpating clause’s enforceability. Whether, as applied to this case, the provision presents a disputed law question or also a disputed fact question is to be decided by the certifying court.

CERTIFIED QUESTIONS ANSWERED.

KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur;

WILSON, [**16] C.J., concurs in part and dissents in part.

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American Avalanche Association Job Openings

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The American Avalanche Association is currently seeking persons to fill two vacancies on AAA’s Management Team: Executive Director and AVPRO Course Coordinator. AVPRO is the AAA’s Professional Avalanche Worker School. Both positions are part-time paid positions.

The Executive Director runs the daily operations of the AAA and provides support to all AAA committees and The Avalanche Review. Additionally, the Director represents the AAA at avalanche industry events such as the ISSW, NAS, and regional meetings and seminars. This is a part-time year round position. Qualified individuals need not be AAA Members.

The AVPRO Course Coordinator is responsible for all aspects of scheduling and planning one to two AVPRO course per winter. Candidates must be AAA Professional Members and AAA Certified Instructors or have the required experience to become a Certified Instructor.

Complete position descriptions can be found on the AAA Employment Page at this link; http://www.avalanche.org/employment.php

Thank you, the AAA Governing Board


Release for bicycle tour wins on appeal but barely

Travent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)

If the release were written properly, the appeal would not have occurred; maybe the lawsuit would not have occurred.

The decision from the Florida Court of Appeals looks at a release sued by the defendant bicycle tour company. An accident occurred when the front wheel fell off the bike injuring the plaintiff.

There are few facts in the decision. It is not clear if it was purely a bike rental or was a bike tour that included bikes. It appears it was a tour. Nor does the case describe how the wheel fell off or the injuries of the plaintiff.

At the trial court, the case went to trial with a jury decision for the defendant.

The jury found that the agreement signed by the Schecters released Travent from “any acts of negligence,” and that there was no negligence on Travent’s part legally causing damage to the Schecters.

Post-trial the plaintiff filed several motions to have the jury verdict reversed for a new trial. A new judge granted the motion for a new trial finding the release at issue failed to contain specific unambiguous language needed under Florida’s law for a release to be valid.

The defendant appealed.

Summary of the case

The plaintiff’s argument on appeal was the language of the release at issue did not have the necessary language. However, the court found the argument and the cases cited by the plaintiff to not be similar to the release at question.

Releases are valid under Florida’s law: “… waivers or exculpatory clauses are “valid and enforceable in Florida if the intent to relieve a party of its own negligence is clear and unequivocal.”

The release in question used the word negligence and relieved the defendant of all liability.

So Now What?

The entire release quoted by the court consisted of one paragraph. It is not clear if the release was longer or contained any other language; however, based on how the court quoted the release it does not appear to be.

The release squeaked through after spending thousands of dollars to defend and probably three or more years of time.

If you have your release properly written it is going to be much longer than one paragraph. That length may add three or more years to your life that do not contain litigation.

Plaintiff: Mark Schecter and Karen Schecter

 

Defendant: Travent, Ltd.

 

Plaintiff Claims: Negligence

 

Defendant Defenses: Release

 

Holding: For the defendant. The release was sufficient to stop the claims.

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Indiana Equine Liability Statute used to stop litigation

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Issue of failure to post the required notice, not at issue when the plaintiff admitted reading the sign on the other building.

In this case, the plaintiff was an adult leader of a 4-H house club. The plaintiff had helped the kids and participated in the activity for years and owned seven horses. During an event, the plaintiff was moving to assist a child who had lined her horse up in a way that was irritating other horses. While moving to assist the child the plaintiff was kicked by a horse.

The event was held in a building that was only used once a year. Normally, all events were held at the horse building. The horse building had the required Indiana Equine Liability Act signs on all entrances into the building. The plaintiff had been in the Horse Building and admitted seeing the signs.

The defendant filed a motion for summary judgment, which was granted by the trial court based upon the issue that the accident was caused by a horse, and the defendant was protected under the Indiana statute. The motion was granted, and the plaintiff appealed.

Summary of the case

The plaintiff claimed the 4-H club was negligent for having a horse show in premises that were unsuitable for such activities. The plaintiff also argued that there were no warning signs as required by the statute posted around the building were the accidents occurred.

The court reviewed the statute and the required posting of the warning notice. The statute could not be used as a defense, unless there was a sign posted around the building or on the premises.

34-31-5-3.  Warning notices required.

(a)        This chapter does not apply unless an equine activity sponsor or an equine professional posts and maintains in at least one (1) location on the grounds or in the building that is the site of an equine activity a sign on which is printed the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.

(b)        A sign referred to in subsection (a) must be placed in a clearly visible location in proximity to the equine activity.

(c)The warning notice on a sign referred to in subsection (a) must be printed in black letters, and each letter must be at least one (1) inch in height.

The court found that signs on the other building were sufficient to meet the requirements of the statute. It did so not by finding the signs were present, but by finding the plaintiff did not prove the signs were absent. An affidavit of the defendant stating the signs were present shifted the burden of proof to the plaintiff and the plaintiff failed to prove the necessary facts.

The plaintiff then argued that her injury did not arise from an inherent risk of an equine activity. (Really? The number-one  thing’s horses do is kick; number two is bite and number three throw  you off; This from a person who has been kicked, bitten and thrown off horses.)

The court found the plaintiff was injured by an inherent risk of hanging around horses.

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.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn.

So Now What?

The obvious argument of the plaintiff was the injury was not due to the actions of the horse but because of the negligence of the 4-H. This normally is very effective in eliminating the defense of equine liability statutes. The human was liable; the horse was not the cause of the accident, just what was being ridden.

Looking at the argument a different way, the ladder failed not because the ladder broke, but because the person who placed the ladder where he did, caused the ladder to break.

The second issue is always having extra statutorily required warning signs, posting them wherever  there are horses. It would have been easy to post a sign on the entrance with tape just for the event. Better, post a warning sign near the entrance into the grounds and on every building.

Finally, this was a lucky case. Another court could have ruled the club was negligent for creating the situation. Most courts have. Since equine liability acts have been enacted, lawsuits against horses have disappeared, however, suits against horse owners are on the rise.

Like a broken record, having all the participants, youth, parents and adults sign a release would have prevented this action, or at least made it even quicker to dismiss under Indiana’s law.

Plaintiff: Teresa Perry

 

Defendant: Whitley County 4-H Clubs Inc.

 

Plaintiff Claims: Negligence

 

Defendant Defenses: Indiana Equine Liability Statute

 

Holding: For the defendant. The acts that gave rise to the plaintiff’s injuries were protected from suit by the Indiana statute.

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Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Teresa Perry, Appellant-Plaintiff, vs. Whitley County 4-H Clubs Inc., Appellee-Defendant.

No. 92A03-1002-CT-101

Court Of Appeals Of Indiana

931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

August 16, 2010, Decided

August 16, 2010, Filed

PRIOR HISTORY: [**1]

APPEAL FROM THE WHITLEY CIRCUIT COURT. The Honorable James R. Heuer, Judge. Cause No. 92C01-0809-CT-652.

COUNSEL: ATTORNEY FOR APPELLANT: SARAH E. RESER, Glaser & Ebbs, Fort Wayne, Indiana.

ATTORNEY FOR APPELLEE: CARRIE KOONTZ GAINES, Kopka, Pinkus Dolin & Eads, L.L.C., Mishawaka, Indiana.

JUDGES: ROBB, Judge. FRIEDLANDER, J., and KIRSCH, J., concur.

OPINION BY: ROBB

OPINION

[*934] OPINION – FOR PUBLICATION

ROBB, Judge

Case Summary and Issue

Teresa Perry appeals the trial court’s entry of summary judgment in favor of Whitley County 4-H Clubs, Inc. (the “4-H Club”) on Perry’s negligence complaint for personal injuries suffered during a horse competition sponsored by the 4-H Club. For our review, Perry raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment based on the Indiana Equine Activity Statute. Concluding there is no genuine issue of material fact and the Equine Activity Statute bars Perry’s claim for injuries resulting from inherent risks of equine activities, we affirm.

Facts and Procedural History

The undisputed facts and those most favorable to Perry as the non-movant are as follows. At all relevant times, Perry, an adult, was a member of the 4-H Clubs Equine Advisory [**2] Board, which provides guidance and instruction to children participating in the 4-H Club’s horse events, and was herself a regular participant in those [*935] events. Perry was also the owner of seven horses. In July 2007, the 4-H Club held horse practices and competitions at the Whitley County Fairgrounds as part of the Whitley County Fair. These events were generally held in the 4-H Club’s Horse Barn, but one event, the Large Animal Round Robin Competition, was held in the 4-H Club’s Show Barn, located next to the Horse Barn. The Horse Barn is over 100 feet wide but the Show Barn is approximately thirty-six feet wide along its shorter side. Horses were generally familiar with the Horse Barn but unfamiliar with the Show Barn, where they were “not allowed any other time” besides the Round Robin Competition. Appellant’s Appendix at 88. At all entrances to the Horse Barn, the 4-H Club had posted “Equine Activity warning signs” that were “clearly visible.” Id. at 18-19 (affidavit of Bill Leeuw, 4-H Club’s President of the Board).

On July 25, 2007, the Round Robin Competition was held. The Equine Advisory Board and volunteers selected the horses to be shown, and Perry herself selected one of those [**3] horses “at the last minute.” Id. at 93. Perry was present at the Round Robin Competition as an Equine Advisory Board member responsible for the safety of children handling the horses. As part of the event, seven horses were led from the Horse Barn into the Show Barn and lined up approximately two and one-half feet apart along the shorter side of the Show Barn. The horses were then turned over to children who did not normally handle horses but had experience handling animals such as pigs and cows and had received brief instruction on how to handle a horse. After one of the children finished leading a horse through a series of maneuvers, the child left the horse facing away from the center of the Show Barn, in the opposite direction from the neighboring horses and with its rear next to the head of a neighboring horse. The horse facing backwards began sniffing the rear of the neighboring horse, which pinned its ears against its head as a sign it was agitated. Perry realized this situation posed a danger to the child handling the horse facing backwards. Perry therefore approached the child and told the child to turn the horse around. As the child was doing so, the neighboring horse kicked [**4] Perry in the knee. Perry was thrown back and suffered personal injuries.

In September 2008, Perry filed a complaint against the 4-H Club alleging her injuries were caused by the 4-H Club’s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” Id. at 6. As specifically argued by Perry at the summary judgment hearing, she alleged the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn, as the smaller Show Barn “requires horses to be placed close together, increasing the chances that a child near the horse will be injured by one. It’s also an environment the horses aren’t familiar with, which makes it more likely that a horse will get spooked and kick someone.” Transcript at 4. Among the 4-H Club’s affirmative defenses, it alleged in its answer that Perry’s claim was barred by the Indiana Equine Activity Statute.

The 4-H Club filed a motion for summary judgment based in part on the Equine Activity Statute. Following a hearing, the trial court on January 27, 2010, issued its order granting summary judgment to the 4-H Club. The trial court found and concluded in relevant part:

14. [**5] The [4-H Club] was a sponsor of an equine activity when the accident occurred.

15. [Perry] was a participant in the equine activity in her capacity as a safe [*936] keeper when she approached the horses and was kicked.

16. The Equine Activities Act . . . is applicable to this case.

17. Being kicked by a horse is an inherent risk of equine activity.

18. There is no evidence in the designation of material facts that [the 4-H Club] committed an act or omission which constituted a reckless disregard for the safety of [Perry] or that any other conditions set in [Indiana Code section] 34-31-5-2 existed at the time of the accident.

Appellant’s App. at 5. Perry now appeals.

Discussion and Decision

I. Standard of Review

[HN1] We review a summary judgment order de novo. Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997, 1001 (Ind. 2009). In so doing, we stand in the same position as the trial court and must determine whether the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). In making this determination, we construe [**6] the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). Our review of a summary judgment motion is limited to those materials designated by the parties to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). The movant has the initial burden of proving the absence of a genuine factual dispute as to an outcome-determinative issue and only then must the non-movant come forward with evidence demonstrating genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).

Because this case turns on the proper application of the Equine Activity Statute, we also recite our well-established standard of review for interpretation of statutes:

[HN2] 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. [**7] 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.

Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009) (citations omitted).

II. Equine Activity Statute

A. Warning Signs

Perry argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether the 4-H Club complied with the warning sign requirements of the Equine Activity Statute. We address this sub-issue first because it bears on the threshold applicability of the Equine Activity Statute as a bar to Perry’s claim. See Ind. Code § 34-31-5-3(a) (providing [HN3] “[t]his chapter does not apply unless” equine activity sponsor has posted at least one complaint warning sign). In response to Perry’s argument, the 4-H Club initially [*937] contends Perry waived the argument by not raising it to the trial court prior to the summary judgment hearing. We disagree. In general, arguments [**8] by an appellant are waived if not presented to the trial court on summary judgment, see Cook v. Ford Motor Co., 913 N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied, and summary judgment may not be reversed on the grounds of a genuine factual issue “unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court,” T.R. 56(H). However, Perry did argue at the summary judgment hearing that the evidence designated by the 4-H Club was insufficient to establish its compliance with the warning sign requirements of the Equine Activity Statute. Moreover, this issue was already before the trial court based upon the 4-H Club’s motion for summary judgment and designation of material facts.

Proceeding to Perry’s claim, [HN4] 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 [**9] letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c). The warning must state: “Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.” Ind. Code § 34-31-5-5.

The undisputed evidence is that the 4-H Club, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the Horse Barn, and the signs were “clearly visible.” Appellant’s App. at 18-19. The 4-H Club’s equine activities were regularly held inside the Horse Barn, except for the Round Robin Competition held in the Show Barn located next to the Horse Barn. Perry acknowledged in her deposition she had seen “those signs” on the Horse Barn, id. at 114, and did not designate any evidence the signs were absent on the day of the incident or lacked the specific warning required by Indiana Code section 34-31-5-5. Perry argues, in effect, that because the only photographs the 4-H Club properly designated to the trial court do not directly show the signs contained the specific warning required, 1 the 4-H Club did not meet its burden of making a prima facie case of compliance [**10] with the statute. We decline Perry’s invitation to, in effect, interpret the Equine Activity Statute to require an equine activity sponsor to submit such photographic or documentary evidence in order to support its claim of immunity. Rather, we conclude the affidavit the 4-H Club properly designated established its prima facie case that it maintained proper warning signs, such that the burden shifted to Perry to come forward with evidence the signs were deficient. Because she did not do so, there is no genuine issue of fact as to the warning signs, and the trial court [*938] properly concluded the Equine Activity Statute applies to this case.

1 The parties dispute, and it is unclear from the record, whether a photograph identified as Defendant’s Exhibit A at Perry’s deposition, and allegedly included along with the deposition in the 4-H Club’s designation of evidence, was actually part of the designated material submitted to the trial court. That photograph, unlike those included as the 4-H Club’s Exhibit C in support of summary judgment and to which the 4-H Club referred at the summary judgment hearing, shows a warning sign containing the text specified in Indiana Code section 34-31-5-5.

B. [**11] Inherent Risk of Equine Activities

Perry also argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether her injuries resulted from an inherent risk of equine activities. The Equine Activity Statute provides:

[HN5] 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 [HN6] 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 [**12] animal or not acting within the participant’s ability.

Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:

[HN7] 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

[*939] (5) who intentionally [**13] injured the participant.

Ind. Code § 34-31-5-2(b). As Indiana’s Equine Activity Statute has not previously been interpreted in any reported case, 3 we will cite for their persuasive value the decisions of other jurisdictions that have interpreted similar statutes.

2 “Equine activity,” pursuant to its statutory definition, includes among other things “[e]quine shows, fairs, competitions, performances, or parades that involve equines.” Ind. Code § 34-6-2-41(a). “Equine activity sponsor” means “a person who sponsors, organizes, or provides facilities for an equine activity.” Ind. Code § 34-6-2-42. Perry does not dispute that the 4-H Club qualifies as an equine activity sponsor.

3 In Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006), trans. denied, the only reported case citing the Equine Activity Statute, this court affirmed summary judgment for the defendant on the alternative grounds of waiver and release of liability. Id. at 585. We concluded the waiver applied because the plaintiff’s fall from a horse that moved while the plaintiff was attempting to mount it resulted from a risk “inherent in the nature of the activity of horse riding.” Id. at 584. However, [**14] we did not explicitly base that conclusion upon the text of the Equine Activity Statute.

Perry’s argument is that a reasonable trier of fact could find the cause of her injury was not an inherent risk of equine activities, but negligence of the 4-H Club in staging the Round Robin Competition. Perry makes no argument that any of the exceptions to immunity spelled out in Indiana Code section 34-31-5-2(b) (“Section 2(b)”) — faulty equipment or tack, provision of the equine and failure to make reasonable and prudent efforts to match the participant to the particular equine and equine activity, a latent premises defect, reckless disregard, or intentional injury — apply in this case. Therefore, we must examine whether and to what extent, consistent with the Equine Activity Statute, an equine activity sponsor may be liable for simple negligence allegedly causing injury to a participant.

Initially we note that negligence of an equine activity sponsor neither is one of the exceptions to immunity listed in Section 2(b), nor is it included in the non-exclusive list of inherent risks of equine activity under Indiana Code section 34-6-2-69. Thus, Indiana’s Equine Activity Statute, like equine activity [**15] statutes in some states but unlike some others, is silent on the place of sponsor negligence in the overall scheme of equine liability. Compare Lawson v. Dutch Heritage Farms, Inc., 502 F.Supp.2d 698, 700 (N.D. Ohio 2007) (noting Ohio’s Equine Activity Liability Act, like some other states?, is “silent as to simple negligence as an inherent risk”) (quotation omitted); with Beattie v. Mickalich, 486 Mich. 1060, 1060 784 N.W.2d 38, 2010 Mich. LEXIS 1452, 2010 WL 2756979, at *1 (Mich., July 13, 2010) (per curiam) (Michigan’s Equine Activity Liability Act abolishes strict liability for equines but expressly provides liability is not limited “‘if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury?” (quoting Mich. Comp. Laws § 691.1665)). Because it is as important to recognize what a statute does not say as what it does say, City of Evansville v. Zirkelbach, 662 N.E.2d 651, 654 (Ind. Ct. App. 1996), trans. denied, and [HN8] statutes granting immunity, being in derogation of the common law, are strictly construed, see Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994), we conclude the Equine Activity Statute was not intended by the general assembly [**16] to abrogate the cause of action for common-law negligence of an equine activity sponsor. However, pursuant to the clear text of the statute, a negligence action is precluded if the injury resulted from an inherent risk of equine activities and the facts do not fit one of the exceptions to immunity provided by Section 2(b). Stated differently, if none of the Section 2(b) exceptions apply, then an equine activity sponsor is not liable for failing to use reasonable care to mitigate an already inherent risk of equine activities that ultimately resulted in a participant’s injury.

[*940] Turning to Perry’s claim, she was injured when unexpectedly kicked by a horse that became agitated during the 4-H Club’s Round Robin Competition. The horse became agitated because another horse was standing too close nearby and began sniffing its rear, and to remove the danger to the child handling the other horse, Perry intervened. 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 [**17] that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn. See Kangas v. Perry, 2000 WI App 234, 239 Wis.2d 392, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (based on Wisconsin’s similar definition of inherent risks, concluding “horses? propensity to move without warning is an inherent risk of equine activity contemplated by the statute”), review denied. We therefore conclude Perry’s injury resulted from inherent risks of equine activities within the meaning of the Equine Activity Statute.

Perry argues the likelihood of a horse becoming agitated and kicking, and a child becoming endangered and needing to be rescued by a supervisor such as Perry, were unreasonably increased by the 4-H Club’s decision to hold the Round Robin Competition in the Show Barn, a cramped space unfamiliar to the horses. Even if that is true, however, the 4-H Club’s conduct would have contributed to Perry’s injury only by heightening the already inherent risk that a horse might [**18] behave unpredictably and in an injury-causing manner. Thus, Perry’s argument that her injury resulted not from an inherent risk of equine activities, but from the 4-H Club’s negligence in its manner of staging the Round Robin Competition, amounts to hair splitting irrelevant to the Equine Activity Statute. 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. See Ind. Code §§ 34-6-2-69; 34-31-5-1.

Perry also relies on cases from other jurisdictions that, while involving similar statutes, are distinguishable on their facts. In Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633 (Tex. App. 2003), review dismissed, the court held summary judgment for the defendant improper where there was evidence the proximate causes of the rider’s fall included the saddle slipping and the defendant’s negligent failure to secure the saddle. Id. at 639-40. In Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002), [**19] cert. denied, the court held the defendant was not entitled to immunity where the defendant’s wranglers negligently failed to remove a screaming child from a horse, an “obvious danger” the wranglers had notice of well before the horse bolted. Id. at 351-52. Here, by contrast, there is no evidence the 4-H Club ignored an obvious, imminent danger or that Perry’s injury directly resulted from anything other than unpredictable horse behavior.

In sum, the facts viewed most favorably to Perry as the party opposing summary judgment show her injury resulted from inherent risks of equine activities and the 4-H Club was negligent, if at all, only for [*941] failing to mitigate those inherent risks. Therefore, the trial court properly concluded the Equine Activity Statute bars Perry’s claim and properly granted summary judgment to the 4-H Club.

Conclusion

There are no genuine issues of material fact that the 4-H Club complied with the warning sign requirements of the Equine Activity Statute and that Perry’s injury resulted from inherent risks of equine activities. Therefore, Perry’s claim is barred by the Equine Activity Statute and the trial court properly granted summary judgment to the 4-H Club.

Affirmed.

FRIEDLANDER, [**20] J., and KIRSCH, J., concur.


15% OFF American Alpine Club Membership – Today, March 8 Only!

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Fish and Wildlife Service in Vernal – Looking For Whitewater Boatmen

Fish & Wildlife Service – Vernal – Looking For Boatmen

The FWS offices in Vernal and Grand Junction are recruiting people for seasonal work operating boats for fish work. In particular, we are looking for folks with solid whitewater rafting skills who can operate heavy oar rafts. This job is not the same as our seasonal fish tech job, so it focuses on boat operation, although all staff will eventually be proficient on the fish end of things. The link for the announcement is below. The announcement will be open for 2 weeks, starting today.

If you know any boaters looking to have a long season, are maybe a little burned out on taking care of guests, or want to see what’s been living under their boat all these years, please pass this along. There may also be an opportunity for guides looking for early season work before they go to their guiding job for the summer. We really need people in April and May.

From: FWS HR Sent: Friday, January 04, 2013 10:00 AM Subject: Seasonal Small Craft Operator link to USA Jobs

Good morning, below is a link to the Small Craft Operator announcement, which opened today on USA Jobs:

R6-13-813050-D https://www.usajobs.gov/GetJob/ViewDetails/334857400

Outdoor Industry Jobs

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USA Pro Challenge Announces 2013 Route. 8 Colorado Cities get picked

USA PRO CHALLENGE

USA Pro Challenge heads to eight Colorado cities

Third annual edition of race starts in Aspen and expects over 1 million fans to line the route.

Aspen, Colo. – The nation’s most challenging cycling race will call eight Colorado cities home in 2013 when it starts in Aspen on August 19 and ends in Denver on August 25, 2013. The USA Pro Challenge announced its host cities today, naming the communities that will serve as the starts and finishes for the third annual stage race.

After drawing more than 1 million fans in each of the first two years and generating nearly $200 million in cumulative economic impact for the State of Colorado, the USA Pro Challenge will make its debut in Fort Collins and Loveland in 2013 while bringing many of the worlds best riders back to cities like Steamboat Springs, Vail and Denver.

The host cities and stages of the 2013 USA Pro Challenge include:

  • Monday, Aug. 19 Stage 1 Aspen/Snowmass Circuit

  • Tuesday, Aug. 20 Stage 2 Aspen/Snowmass – Breckenridge

  • Wednesday, Aug. 21 Stage 3 Breckenridge – Steamboat Springs

  • Thursday, Aug. 22 Stage 4 Steamboat Springs – Beaver Creek

  • Friday, Aug. 23 Stage 5/ITT Vail Time Trial

  • Saturday, Aug. 24 Stage 6 Loveland – Fort Collins

  • Sunday, Aug. 25 Stage 7 Denver Circuit

“Riders now know that there is no race in America like the USA Pro Challenge, and these host cities help ensure cycling’s world stage returns to Colorado for seven days of grueling competition,” said Shawn Hunter, CEO and Co-Chairman of the USA Pro Challenge. “Each of these communities will be on an international stage as we partner with them to ensure the USA Pro Challenge takes its place as America’s greatest race.”

In just two years, the USA Pro Challenge has established itself as one of the most challenging and competitive races in the world, drawing the best cyclists in the sport and accolades from around the world.

“When you combine the high-altitude climbs, the enthusiasm of the crowds and the level of competition, the USA Pro Challenge is one of my favorite race weeks,” said Christian Vandevelde, the overall winner of the 2012 USA Pro Challenge. “I can’t wait to get back in 2013 and defend the title with my Garmin-Sharp teammates.”

The two new cities joining the 2013 race – Fort Collins and Loveland – offer breathtaking scenery, as well as a unique cycling history, that will add to the overall impact of the race.

“With the addition of Loveland and Fort Collins we are adding two cities that have built a community around the cycling culture,” Hunter said. “We are thrilled to incorporate their enthusiasm as we continue to showcase Colorado as the center of the nation’s cycling spirit.”

Further details of the start and finish line locations, as well as the specific, detailed route, will be announced in the spring. With its consolidated footprint and multiple back-to-back stages, the 2013 race will ensure that spectators in host cities will have many opportunities to root for their favorite rider or team.

A number of criteria were taken into consideration when evaluating potential host cities, including full city services support. The race also considered commitments in the areas of lodging, volunteer recruitment, marketing and local tourism, as well as an ability to host world-class athletes and promote the State of Colorado.

“The USA Pro Challenge has created an entirely new audience for our state,” Colorado Governor John Hickenlooper said. “Not only is it the best American competition, it’s essentially a week-long advertisement for our state with 128 of the best cyclists in the world acting as tour guides.”

About the USA Pro Challenge
For seven consecutive days, the world’s premier cyclists race through the majestic Colorado Rockies, reaching higher altitudes than they’ve ever had to endure – more than two miles in elevation. One of the largest cycling events in United States history, the 2013 race will feature the best of the best in professional cycling, competing on a challenging course through some of America’s most beautiful scenery.

Referred to as “America’s Race,” the third annual USA Pro Challenge will take place August 19-25, 2013. More than 1 million spectators are expected to once again line the route again in 2013, while millions more around the world will watch the race on television and online through the Tour Tracker. The two previous winners of the Pro Challenge were Levi Leipheimer in 2011 and Christian Vandevelde in 2012.

More information can be found on the website www.USAProCyclingChallenge.com and Twitter page @USAProChallenge.

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Kachina Peaks Avalanche Center Fundraiser Orpheum Theater November 16

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The Mission Of Kachina Peaks Avalanche Center, Inc. Is To Provide Support For And To Engage In Avalanche Education, Safety Training And Information Exchange Specific To The San Francisco Peaks In Northern Arizona.

Dear KPAC Friends,

Hope you are all well and enjoying a lovely fall. It’s almost time for our 7th annual fundraiser at the Orpheum Theater, 15 West Aspen St., Friday November 16. Two showings of the new Teton Gravity Research movie ‘The Dream Factory’, 7 and 9 p.m. This is an amazing movie event and we are fortunate to host it here in Flagstaff!

Tickets are $10 at the door. Doors open 30 minutes before each showing. Get there early to take advantage of our gear raffle and silent auction.

KPAC is offering a free ‘Introduction to Avalanches’ seminar December 12th, 6 pm, at the Leaf Auditorium, Coconino County Sheriff’s Office, 911 Sawmill Rd (behind New Frontiers off Butler). Check the website, www.kachinapeaks.org, for our other offerings: ‘Introduction to Avalanche’ seminars in January and February, a free Field Session on the Peaks and Level I Avalanche courses, available for college credit through NAU Outdoors.

We are a local 501c3 non-profit and depend upon your help for our continued success. This event is our main source of funding and we hope to see you there.

Thank you very much. Please contact me with questions, comments, concerns…we’re always interested in new help and ideas. Snow is in the air…safe travels!

Sincerely,

Derik Spice
Kachina Peaks Avalanche Center www.kachinapeaks.org
derik.spice

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If you really are bad, a judge will figure out a way to void your release

Davis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423

Appellate court sends back to trial court on issue that release did not protect against Gross Negligence, and the deceased did not have time to read the release.

I guess I knew that these contests happened. I grew up in a rural community where we had greased pig contests, but nothing like this. The plaintiff entered a contest where he went into a rodeo and stood in a white circle. There were other participants also standing in circles. A bull was released into the ring. The last person standing in a white circle won. Prize money was $50.00. The contest was called the “Ring of Fear.” The bull struck the deceased bursting his liver.

$50.00?

The plaintiff’s spouse sued. The deceased prior to entering the ring signed a release. The release was comprehensive but apparently had all participant signatures on one form. Allegedly, the deceased was not given any time to read the release.

Prior to the bull being released into the ring, the bull was allegedly provoked by jabbing him with a wooden object and beating sticks against the bull’s cage. (I’m guessing PETA is not big in this part of Kentucky…….)

The trial court dismissed the complaint based on the release signed by the deceased. The plaintiff appealed.

Summary of the case

The appellate court first looked at the Kentucky Farm Animals Activities Act (FAAA) KRS 247.401 through KRS 247.4029. The court found the statute was applicable to the facts in this case. The court also found that the warnings found in the act provided immunity to defendants who posted the warnings. Failure to post the warnings did not create a claim of negligence per se or strict liability as the plaintiff argued. Failing to post the warnings simply failed to provide the immunity under the statute.

The court also found that the FAAA allowed farm animal event sponsors to sue the act if they posted the warning signs.

The court found that the FAAA had no duty to reduce or eliminate the inherent risks found in farm animal activities. The court also found that act did not protect sponsors that intentionally mistreat or aggravate a farm animal. That would be the antithesis of the purpose of the act.

The court then looked at the issue of the release and stated,

While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. [Emphasize added]

Although not a definitive statement on the issue, it appears that under Kentucky law, a release will protect a defendant against a claim of gross negligence.

Releases in Kentucky will be upheld if they meet the following tests if:

(1) it explicitly expresses an intention to exonerate by using the word “negligence;” or

(2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or

(3) protection against negligence is the only reasonable construction of the contract language; or

(4) the hazard experienced was clearly within the contemplation of the provision.

From a legal point, this is an extremely broad language about how a release will be interpreted by the courts.

The court then examined the release and found no language the court could interpret that could be used to say the release was going to stop a gross negligence claim. The court also found that intentionally mistreating the bull would “at the very least constitute gross negligence.”

The court followed up by stating that infuriating a bull would constitute willful of wanton conduct which “a party may not contract away any liability through a release.”

Finally, the court looked at a laundry list of additional issues raised by the plaintiff:

..that Appellees should have inquired as to the abilities of the participants to participate in the Ring of Fear. Finally, Susan contends that Charles did not have an opportunity to read the release prior to signing it.

The court stated that those were all factual issues to be resolved by a trier of fact.

So Now What?

Although the issue that a release in Kentucky may protect against gross negligence is great as well as the broad language that can be used in a release in Kentucky, the last two issues mentioned by the court allow numerous ways to void releases in Kentucky and place a burden upon the business or program operating in Kentucky and using a release.

That is requiring an outfitter to see if a guest has the sufficient skills, ability and desire to undertake the activities and making sure the person signing a release has sufficient time to read the release.

Solving the problems of the Defendant

First, I would have raised an assumption of risk argument, although I am not sure of the status of A/R in Kentucky. However, I believe that it is pretty obvious that you can get gored by a bull in a ring. The deceased and the plaintiff were going to the event for a rodeo so it had to have been obvious, to some extent.

Second by having separate releases rather than one sign-up sheet, the argument that the deceased did not have time to read the release could have been diffused if not eliminated. If each person has a sheet of paper, then there is no rush to get all the signatures on one sheet of paper.

Still to be resolved

The issue that the defendant did not enquire as to the ability of the participant to participate in the Ring of Fire is an open-ended opportunity for every lawsuit in Kentucky to go to trial.

How are you going to determine the requirements for a participant to undertake an activity? No matter what system, test or determination you make, you did not do a good job if someone is hurt or injured on your trip. Nor can you use medical information to determine if someone can participate because unless you are a physician, that would require diagnosis which you cannot do.

The only solution you can come up with to create a system so the participants can self-determine if they are able to participate. Show a video or create a checklist.  Make sure your release states that the person has watched the video, seen your website and reviewed the checklist and understands it is their responsibility to determine if they are able to participate in the activity.

This could be a nightmare in Kentucky.

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USA Pro Challenge brought $99.6 million to Colorado!!!!!

This is pretty amazing and backed up by the research done by the Denver Post.

This article by the Denver Post reports about a great bicycle race. However, the article goes beyond that and backs up the press release with additional research. Thanks

MONTROSE, CO - AUGUST 21:  (L-R) Teammates Vin...

Denver Post and Thanks USA Pro Challenge.

Please read the entire article, but here are some of the highlights.

Organizers said the privately funded race stirred $99.6 million in spending, up from $83.5 million last year.

The private firm hired to do the study surveyed 2,000 attendees in host cities and along the route to establish an economic impact of $81.5 million spent on lodging, food, transportation and entertainment. The rest came from race support.

The Denver Post found that visitation was around 5,000 to 7,500 at each of the first few stops of the race in Telluride, Montrose, Crested Butte and Gunnison. Crowds began swelling, with 10,000 to 15,000 in Aspen, Beaver Creek and Breckenridge.

Numbers for the first half of the race fell below expectations. Leaders in some communities said they were prepared for at least twice as many spectators.

The Forest Service was braced for tens of thousands atop Independence Pass outside Aspen and counted fewer than 1,500, (which happens when you make too many rules and make it a bad place to watch the race USFS!)

….all host cities embraced the race, noting the long-term value from the race’s exposure and televised coverage.

Boulder’s Open Space and Mountain Parks counted 10,000 spectators lining Boulder’s climactic finish on Flagstaff Mountain, roughly a third of the number expected for the final 4-mile ascent. (Again, Boulder made the mountain inhospitable (a pain in the butt to get too) so no one went up to watch the race.)

Most host cities across Colorado reported increased sales-tax collections for August.

MONTROSE, CO - AUGUST 21:  (L-R) Teammates Jor...

Durango’s sales and use tax for August 2012 was $1.27 million, a 5.7 percent increase from the previous August. August 2012 sales tax collections for Durango were the highest for the month since 2008.

The Town of Telluride, where local organizers estimated the Pro Challenge drew about 6,000 for the finish of Stage 1 on Monday Aug. 20, saw a 21 percent jump in sales tax revenue in August,….

City of Montrose estimated 5,000 spectators watched the start of Stage 2 on Tuesday, Aug. 21. The city saw its August sales tax climb 0.8 percent over the previous August….

Town of Crested Butte saw its sales tax collections increase 1.7 percent in August 2012,… The local Mountain Express bus service saw a 25 percent increase in ridership on race day.MONTROSE, CO - AUGUST 21:  Thomas Danielson of...

Aspen sold out every one of its 3,200 rentable units in the city on Aug. 22, the afternoon racers finished Stage 3 in Aspen and the night before the downtown Stage 4 start. … August lodging tax collections (2 percent of total lodging spending) climb 23 percent in August….

The Town of Avon saw an 8.4 percent annual bump in its August 2012 sales tax and a 12.2 percent bump

Breckenridge saw spending on retail, restaurant and lodging climb 6 percent in August 2012….

Colorado Springs had 15,000 people gathered in downtown Colorado Springs to watch the race and another 35,000 lined city streets

Denver‘s lodging tax collections reached $6.3 million in August 2012, compared to $5.9 million in August 2011 and $4.7 million in 2010.

That is a substantial jump in tax for municipalities, cities and the state as well as the cause for the taxation, a lot of money flowing into the area.

How this is the number that is surprising! The people who watched the race were from 25 states, and 53 percent of spectators came from outside Colorado. Come on Colorado, you just got your butt kicked by tourists!

Remember this next spring when the RFP goes out to host the race next year. This race brings money and people to Colorado!

Denver Capital building

See USA Pro Challenge saw 1 million spectators and $99.6 million impact

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