Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


Whitewater rafting case where one of the claims is the employer should have provided eye protecting during the rafting trip.

Plaintiff was injured during a corporate team building exercise when she ended up with a small rock in her eye after the whitewater rafting trip.

Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631

State: Florida, United States District Court for the Middle District of Florida, Tampa Division

Plaintiff: Carmen Elena Monteilh Chavarria

Defendant: Intergro, Inc., Timothy Dolan, Felix Renta

Plaintiff Claims: negligence, for intentional infliction of emotional distress, and for breach of contract

Defendant Defenses:

Holding: Mostly for the Defendants

Year: 2018

Summary

A whitewater rafting trip in Honduras booked as a team-building event ended up in litigation in the US. The allegations were the corporation that booked the team building for its employees failed to provide the necessary safety equipment for whitewater rafting.

The allegations may be taken to allege there is a higher duty owed to employees of a corporation partaking in a sport or recreation event then to other participants. The duty of the raft company appears to remain the same. Only employers are argued to have a requirement of higher standards of care.

Facts

Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. The plaintiff alleges that both Intergro and Seproma3 “conduct-ed” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”

After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye.

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

There were legal discussions about what law applied and other items that won’t be discussed here. It is unclear how a Honduran corporation, and a raft trip in Honduras ended up in a Florida Federal District Court.

The court was succinct in its analysis of the law and facts. The plaintiff argued the defendants were negligent.

To state a claim for negligence, a plaintiff must allege that the defendant owed the plain-tiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage.

According to the plaintiff, there was a duty of the employer, Integro not to select the rafting event and to: “provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.”

The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; that the breach caused her injury; and that she has suffered actual damages as a result of the defend-ants’ negligence. The plaintiff states a claim for negligence.

The next argument made by the plaintiff was a claim for intentional infliction of emotional distress.

To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. The standard for outrageous conduct is distinctly high

The court dismissed this claim finding the plaintiff failed to allege any instances of outrageous, extreme or atrocious conduct.

The plaintiff also sued for breach of contract. “To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach.”

The court dismissed the breach of contract claims against the individual defendants and granted the plaintiff’s motion to amend her complaint against the corporate defendant to clarify or restate her breach of contract claim.

So Now What?

Simple case, right? Well maybe. In the negligence complaint which survived the motion to dismiss, the plaintiff’s allegations stated:

The plaintiff alleges that both Intergro and Seproma “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”

Two issues surface here. The first is the allegation that white-water rafting requires you to have eye protection. However, the second has possibly greater results. The complaint of not providing enough safety gear is not against the raft company, but against the plaintiff’s employer who booked the trip. The allegation is the employer who booked the trip had a duty to provide proper gear for the trip.

This shifts the burden away from the people who understand the risks, rafting companies, to people who do not understand the risks, companies, churches, groups that book raft trips. Every raft company might be able to argue successfully, that the standards in the industry are to provide a PFD.

However, the company will have to rely on the industry standards of whitewater rafting (or any other sport or recreational activity) but then check to see if there is a higher standard of care owed to employees.

Here the plaintiff seemed to lose most of here employment law claims. The decision indicates she was denied worker’s compensation for her injuries. However, if the activity was argued to be part of her employment, then this may create a greater duty and a greater reluctance on the part of corporations to do team building events.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

 


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


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

As the industry grows and matures, it is attracting litigation. Additionally, the industry is marketing and attracting more people with no real knowledge of the risk and as such are more willing to sue.

The Outdoor Recreation Industry is facing a lot of new as well as the same-old problems they have in the past. Two components are creating the problems. Most of the industry does not have trade associations looking out after their member’s interests, and the industry keeps shooting itself in the foot.

Overall, here are the big issues I see the industry facing in 2018.

  1. There has been a substantial increase in the number of lawsuits in the industry. I used to find 20 new lawsuits a year and had another 250 stretching back into the 1930’s I could write about. I figured I could write for about ten years and cover 90% of the issues. Now I’m finding 250 a year. I’m never going to run out of lawsuits to review and write about.
    1. That increase seems to be proportionally to the activities that advertise their sports, especially those that advertise to families or groups.
      1. Zip Lines
      2. Ropes or Challenge Courses (These first two items have their industry associations working harder to promote litigation against them, still, then to stop it.)
      3. Skiing (but mostly skier v. skier collision cases) If you can’t sue the ski area, sue your friend you were skiing with or someone you never met.
    2. There are some industries where the number of lawsuits is dropping.
      1. Skiing. There are fewer lawsuits against ski areas, there are more lawsuits between participants at ski areas.
      2. Whitewater rafting, seems to have fewer lawsuits, although that is also probably to a maturing of the sport, there are less people getting injured.
  2. The Plaintiff’s are getting more sophisticated and working harder at attacking releases. Prior to 2010 occasionally, you would see plaintiff’s attempting to have the release thrown out of the litigation. Now days you see every lawsuit attacking the release and a few of them winning. Enough plaintiffs are winning that it is encouraging other plaintiffs to sue and try to void the release they signed.
  3. We still have a large contingent of people attempting to try to make it harder to sue. However, this ultimately making it easy to win a lawsuit against the industry. It’s like building a terrific trench system during WWI. The trench worked perfectly unless you were overran and then your perfect trench becomes the best defense to your arguments or attacks.
  4. There are more product liability lawsuits, and more lawsuits based on the failure to properly understand or use a harness. Most of these are occurring in the climbing wall industry, a few in the ropes’ course industry.
  5. Individual sports are having no lawsuits still. However, that will soon change. As a recreational area grows in popularity a trade association or organization believing they can get good PR or increase their membership is creating standards, classes and ways to sue that never existed before. Soon you will have a way to sue a belayer while climbing on a wall or on the rock because a standard was created. The standard is the duty, that if violated by the belayer makes the belayer liable.
  6. California Proposition 65 is going to make life miserable for manufacturers.
  7. None of the trade associations are working to help the industry learn and stay away from litigation. No one announced the changes to California Proposition 65. However, that could cost companies in the recreation industry millions if not more. Threatening letters have already started to arrive in manufacturer’s mail boxes demanding money because the manufacturer did not follow or even know the rules.

This is not a complete list, but it is a lot. I’ll expand on some of these ideas through the year.

Hopefully, I’m wrong.

What do you think? Leave a comment.

To Comment Click on the Heading and go to the bottom of the page.

Copyright 2018 Recreation Law (720) 334 8529

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

   

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:
www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,



Statements made to keep a sold trip going come back to haunt defendant after whitewater rafting death.

Never forget, Marketing makes promises risk management has to pay for. Statement made about the water level dropping by the time a certain rapid was to be reached at issue in litigation but allows the plaintiff to add claims for punitive damages.

The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

State: Idaho, United States District Court for the District of Idaho

Plaintiff: The Estate of Joseph R. Kane, deceased; Stacie Kane, individually, and as guardian of Joseph P. Kane; and Thomas Kane, individually,

Defendant: Epley’s Inc.

Plaintiff Claims: Motion to add punitive damages to the complaint

Defendant Defenses: Evidence does not support the motion

Holding: Plaintiff’s motions were granted

Year: 2017

This case concerns statements made prior to a Whitewater rafting trip in Idaho on the Lower Salmon River. A group of Boy Scouts and their adult volunteers booked this trip with the defendant. The majority of the Boy Scouts on the trip did not have any Whitewater experience.

The deceased was ejected from the raft in this section of the lower Salmon River known the slide wrap. Idaho has an outfitters and guide’s statute that says an outfitter is liable if they breach the standard of care for their industry.

Through this action, Plaintiffs (to include the estate of Mr. Kane, his wife Stacie Kane, and sons Thomas and Joseph P. Kane) claim that Epley’s conduct — in particular, its decision to run the Slide Rapid at flows above 23,000 cubic feet per second (“cfs”) — breached the standard of care applicable to outfitters and guides under chapter 12, Title 6, Idaho Code and that said breach was a direct and proximate result of Mr. Kane’s death.

The issue for the plaintiffs when they arrived at the defendant’s office was the volume of water flowing on the river. It is slightly confusing, but it seems the Bureau of Land Management or the outfitting association on the river had set a cutoff of 23,000 CFS as the maximum level, the river could be rafted. There was discussion at the time Boy Scouts arrived as to what the actual river flow was and what the flow would be in a few days when the group reached the big rapid.

The plaintiffs argued to the appellate court that the defendant intentionally misrepresented the flow of the river and whether not the flow would go up or down. This misrepresentation made by the defendant was the basis for the plaintiff’s motion to amend their complaint and add a claim requesting punitive damages.

According to Plaintiffs, Epley’s not only ignored and misrepresented to the group the extreme risks presented by the water levels forecasted to be encountered at Slide Rapid on June 27, 2014 (thus permitting the trip’s June 24, 2014 launch in the first instance), its later decision to actually continue through Slide Rapid on June 27, 2014 at flows in excess of 23,500 cfs represented an extreme deviation from industry standards.

The arguments made by the plaintiffs are that the manager for the defendant misled them on the river volume and what the volume of the river would be on the date when the group encountered slide wrap. The plaintiffs also argued that the defendants had an opportunity to avoid slide rapid by taking out or going on a different trip.

As of this date, this case has not gone to trial. This is only a preliminary motion’s hearing. What it takes to prove the plaintiff’s case at trial may be totally different than what the facts in this decision are. There is also higher likelihood that the case will settle now.

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

The court first looked into the requirements under Idaho statutes add a claim for punitive damages and what punitive damages were in Idaho.

In any action seeking recovery of punitive damages, the claimant must prove, by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted.

To prove a claim and receive punitive damages in Idaho the plaintiff must prove by clear and convincing evidence that the defendant made fraudulent misstatement or engaged in outrages conduct. There is a high standard of proof to build a case to recover punitive damages.

That definition includes a defendant acting in such a way that is extreme deviated from the reasonable standard of care or acted maliciously fraudulently or outrageously.

Ultimately, an award of punitive damages requires a bad act and a bad state of mind. The defendant must (1) act in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences, and must (2) act with an extremely harmful state of mind, described variously as with malice, oppression, fraud, or outrageousness.

However, that requirement of proof set out above does not need to be met to allege punitive damages in the complaint. To add a claim for punitive damages in the complaint, plaintiff needs only prove a reasonable likelihood of proving facts at trial to support a claim.

However, for purposes of a motion to amend, the party seeking to add a claim for punitive damages does not need to meet this high burden; rather, the party need only show “a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.”

These requirements are balanced by the theory that under Idaho law, punitive damages were not favored and should only be awarded in most unusual compelling circumstances.

As a matter of substantive law, it is well established in Idaho that punitive damages are not favored and should be awarded only in the most unusual and compelling circumstances, and are to be awarded cautiously and within narrow limits.

The plaintiff’s argument centered on the river flows on the dates of the trip. The defendant argued that by the time the party reached the slide rapid the water levels would have decreased. The plaintiff argued that the opposite occurred, that the water levels had increased. The Plaintiff also argued that the guides could have called or should have called for more help.

Still, Defendant decided to proceed through Slide Rapid with allegedly unqualified guides, foregoing options to use an available satellite phone to discuss potentially safer options for the relatively inexperienced group, portage around Slide Rapid, or altogether exit the river on land at Eagle Creek (the last place where the group could have readily done so).

The court found the plaintiff had produced enough evidence to prove there was a likelihood that they could prevail on their punitive damages claim at trial.

Viewing the evidence in the light most favorable to Plaintiffs, and giving Plaintiff the benefit of all legitimate inferences without assessing credibility, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Defendant acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding (as an experienced outfitter) of — or disregard for — the likely consequences of those actions.

The court then looked at the plaintiff’s claim that the defendant acted with the bad state of mind court or an extremely harmful state of mind. They argued that the manager of the defendant’s river operation purposely misled them about the river levels.

In other words, Plaintiffs argue that Mr. Blackner purposely misled Ms. Schaefer and, thus, the group by failing to inform them of actual (as of the June 24, 2014 launch date) and projected (for the anticipated encounter with Slide Rapid on June 27, 2014) river flows — that is, it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid on June 27, 2014 was 17,000 cfs, when, in actuality, it was much higher.

Again, even though the defendant disputed the allegations. There was enough evidence in addition to the witness statements to support the claim. In fact, the court found that there was more enough evidence to support the claim and that the defendant had acted with the bad state of mind.

In other words, Plaintiffs argue that Mr. Blackner purposely misled Ms. Schaefer and, thus, the group by failing to inform them of actual (as of the June 24, 2014 launch date) and projected (for the anticipated encounter with Slide Rapid on June 27, 2014) river flows — that is, it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid on June 27, 2014 was 17,000 cfs, when, in actuality, it was much higher.

Consequently, the plaintiff’s motion to amend the complaint and add a claim for punitive damages was upheld by the court.

So Now What?

Honestly, it is hard to believe that the river outfitter intentionally misled the plaintiffs in this case. I do suspect that the river outfitter was making statements an attempt to hold onto the trip without either checking the facts or understanding what was really going on with river flows.

Water levels are a constant source of discussion between River outfitters. You want the water levels high enough to attract clients and low enough not to hurt anyone. The best River outfitters figure out, which claims to market to which groups for river levels they are expecting.

Things always change when a fatality occurs. Whatever the trip leader says about what is going to be expected will be adopted by the clients. So if river guides say the rivers okay, clients know the river is okay.

Never forget, marketing makes promises that risk management has to pay for. Here, in an attempt to hold onto a group of clients for a multi-day whitewater rafting trip, marketing might’ve taken over when risk management might’ve been the road.

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

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

The Estate of Joseph R. Kane, deceased; Stacie Kane, individually, and as guardian of Joseph P. Kane; and Thomas Kane, individually, Plaintiffs, vs. Epley’s Inc., an Idaho corporation, Defendant.

Case No.: 3:15-cv-00105-EJL-REB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

2017 U.S. Dist. LEXIS 48179

March 28, 2017, Decided

March 28, 2017, Filed

PRIOR HISTORY: Estate of Kane v. Epley’s Inc., 2016 U.S. Dist. LEXIS 170316 (D. Idaho, Dec. 5, 2016)

COUNSEL:  [*1] For Estate of Joseph R Kane, deceased, Stacie Kane, individually, and as guardian of Joseph P Kane, Joseph P Kane, Thomas Kane, individually, Plaintiffs: Theron A Buck, LEAD ATTORNEY, Frey Buck, P.S., Seattle, WA; Thomas Daniel Frey, LEAD ATTORNEY, PRO HAC VICE, Frey Buck, P.S., Seattle, WA.

For Epley’s, Inc., an Idaho corporation, Defendant: Caitlin Elizabeth O’Brien, LEAD ATTORNEY, Winston & Cashatt, Lawyers, Coeur d’Alene, ID; Patrick J Cronin, LEAD ATTORNEY, Winston & Cashatt, Lawyers, Spokane, WA.

JUDGES: Honorable Ronald E. Bush, Chief United States Magistrate Judge.

OPINION BY: Ronald E. Bush

OPINION

MEMORANDUM DECISION AND ORDER RE:

PLAINTIFFS’ MOTION TO AMEND COMPLAINT TO ASSERT PUNITIVE DAMAGE CLAIM

(Docket No. 17)

 

PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S “SUR REPLY” TO PLAINTIFFS’ MOTION TO AMEND COMPLAINT TO ADD PUNITIVE DAMAGES

(Docket No. 39)

Now pending before the Court is Plaintiffs’ (1) Motion to Amend Complaint to Assert Punitive Damage Claim (Docket No. 17), and (2) Motion to Strike Defendant’s “Sur Reply” to Plaintiffs’ Motion to Amend Complaint to Add Punitive Damages (Docket No. 39). Having carefully considered the record, heard oral argument, and otherwise being fully advised, the Court enters the [*2]  following Memorandum Decision and Order:

I. BACKGROUND

Joseph R. Kane died after being ejected from a raft on a section of the Lower Salmon River known as “Slide Rapid.” Mr. Kane was part of a Boy Scouts of America (“BSA”) group, composed of minors and other adults — the majority of whom had no “whitewater” experience whatsoever. The group booked their trip with Defendant Epley’s Inc. (“Epley’s”), a licensed outfitter in the state of Idaho that offers guided rafting tours on the Salmon River and Snake River.

Through this action, Plaintiffs (to include the estate of Mr. Kane, his wife Stacie Kane, and sons Thomas and Joseph P. Kane) claim that Epley’s conduct — in particular, its decision to run the Slide Rapid at flows above 23,000 cubic feet per second (“cfs”) — breached the standard of care applicable to outfitters and guides under chapter 12, Title 6, Idaho Code and that said breach was a direct and proximate result of Mr. Kane’s death. See generally Pls.’ Compl., ¶¶ 4.1-4.12 (Docket No. 1). Plaintiffs specifically allege:

Defendant’s conduct was wrongful and otherwise breached its standard of care by taking Joseph R. and Thomas down the river and through the Slide when they knew or [*3]  should have known that the river’s flow was in excess of 23,500 cfs, and knowing that these extreme conditions would produce incredibly dangerous Class V or Class VI rapids. Defendant’s guides’ decision to run these rapids not only ignored the rafter’s inexperience, it was also contrary to the express written recommendations of the BLM’s published handbook for rafting the Lower Salmon River. Defendant’s actions were wrongful in the face of a known, significant risk that was unknown to the Plaintiffs.

Id. at ¶ 4.5. Since the action’s inception, the above-referenced breach-of-the-standard-of-care allegations have further evolved into the bases for Plaintiff’s at-issue Motion to Amend Complaint to Assert Punitive Damage Claim.1

1 Even so, these allegations were preliminarily tested in the context of Defendant’s intervening Motion for Summary Judgment. See MSJ (Docket No. 16). U.S. District Judge Edward J. Lodge denied that Motion, concluding that questions of fact populated the interwoven issues of (1) the proper standard of care involved, (2) whether Defendant breached such standard of care, and (3) whether Defendant’s conduct proximately caused Plaintiffs’ injury and/or any actual loss or damage. See generally 12/6/16 MDO, pp. 16-30 (Docket No. 44).

According to Plaintiffs, Epley’s not only ignored and misrepresented to the group the extreme risks presented by the water levels forecasted to be encountered at Slide Rapid on June 27, 2014 (thus permitting the trip’s June 24, 2014 launch in the first instance), its later decision to actually continue through Slide Rapid on June 27, 2014 at flows in excess of 23,500 cfs represented an extreme deviation from industry standards. See generally Mem. in [*4]  Supp. of Mot. to Am., pp. 5-17 (Docket No. 17, Att. 1). Plaintiffs argue:

Despite the dangerous conditions produced by the high flow levels, Defendant authorized the trip to commence as planned on June 24, 2014. Defendant’s manager [(Blackner)] admits that he told the group that the river level would slacken by the time they reached the Slide on the fourth day of the trip, a fact admitted by Blackner and reflected in pre-trip emails by group members. Notably, Blackner told the group he expected the river would be down to 17,000 cfs by the time they hit the Slide. Blackner asserts he was relying on on-line river forecasts by the National Weather Service (“NWS”) vis-a-vis [National Oceanic and Atmospheric Administration] (“NOAA”) and [U.S. Geological Survey] (“USGS”), in making this claim.

In fact, however, the water level forecasted by the NWS model as of the morning of the trip launch (June 24) for June 27 — the day the group was scheduled to hit the Slide — was not 17,000; it was approximately 21,000 cfs, Class V-VI water. Moreover, while earlier forecast modeling had predicted that the flow levels might recede below 20,000 cfs, the actual flow measurements taken by the . . . USGS show [*5]  that the river had remained steadily above 23,000 cfs for the four days before launch date, flatly belying the earlier forecast models. Defendant’s manager and guides were aware of this flow before the trip began. Moreover, rain was forecast for the area during the trip. In short, there was no earthly reason to believe the water level would decrease significantly from the 23,400 cfs level on launch date by the time the Boy Scouts hit the Slide; all extant evidence and forecasts unequivocally established the Slide would be Class V water on June 27. Notwithstanding the extreme water level, the inexperienced, unfit passengers and the want of cause to believe the river volume would drop, Defendant launched the excursion.

Prior to launch, the Defendant prepared no plan whatsoever to avoid or safely transit the Slid should the water level remain at ClassV level. There were several options available. Defendant could have arranged to take the group off the river at Eagle Creek, the last overnight stop before the Slide. It could have arranged for a larger, motorized raft to transit the group. It could have arranged for jet boat transit at the Slide. Defendant took none of these prudent steps. [*6]

On June 26,2014, the scout group landed and took out at Eagle Creek to spend the night. This was the group’s last overnight location before reaching the Slide. Eagle Creek was also the last place where the group could have readily exited the river on land. The guides were aware that the river had not changed appreciably since the launch level of 23,400 cfs. Indeed, on the morning of June 27, after spending the night at Eagle Creek, Epley’s guides could see with the naked eye that the river flow had actually increased overnight. Defendant’s guides knew that these extreme flows would produce Class V or VI rapids at the Slide. Despite this knowledge, prior to and after reaching Eagle Creek, the Defendant’s agents made no plan to avoid the Slide in the event the water level did not recede, no plan to remove the group at Eagle Creek, and no plan to bring extra assets to the area of the Slide to relieve the obvious risk posed by the rapid. The guides had access to a satellite phone, but they opted to not use it to verify water levels or explore options for avoiding the Slide, notwithstanding that it had “constantly” rained following the June 24 launch. . . . .

Id. at pp. 5-6 (internal citations omitted, [*7]  italics in original, underlining added); see also id. at pp. 14, 16 (“Based on the evidence presented here, it can be inferred that Blackner intentionally or with gross negligence misled the group (and possibly his lead guide) to believe the Slide would be safely navigable by June 27. . . . . There [was] no rational justification for allowing this group to launch on June 24, other than for financial gain.”); id. at p. 16 (“Simply put, once the group left on June 24, Epley’s plan was to send the group through the Slide regardless of conditions, risk of injury or death to riders, or industry standards. . . . . The decision by the guides to authorize the trip to continue through the Slide after reaching Eagle Creek on June 26 also constitutes an extreme deviation from industry standards. The trip should have unquestionably been terminated when the guides recognized that the flows had not dropped since June 24.”).2

2 Plaintiffs also claims that Epley’s use of inexperienced and inadequately trained guides contributes to the milieu of conduct auguring in favor of a punitive damages claim against Epley’s. See Mem. in Supp. of Mot. to Am., pp. 14, 16 (Docket No. 17, Att. 1) (“There is no dispute that the guides selected by lead boatman Mike Cornforth for the trip had never transited the Slide at levels near 23,000 cfs. Accordingly, they lacked any training or experience whatsoever to manage the extreme conditions presented by the Slide at that level. . . . . Epley’s decision to permit commencement of the trip on June 24, with minors as young as 14 and unfit 50-year-olds, at flows in excess of 23,000 cfs, under the supervision of inexperienced and unqualified guides, with no alternative safety plan in place, constituted an extreme deviation from the standard of care.”).

Epley’s disputes these claims outright, but alternatively argues that, even if true, they operate only to support claims that it was grossly negligent or reckless. See generally Opp. to Mot. to Am., pp. 12-19 (Docket No. 22). In short, attacking the quantum of Plaintiffs’ proffered evidence, Epley’s argues [*8]  that, “[t]he mere fact of a tragic death during a high risk recreational activity does not create the necessary fraud, malice, outrage, or oppression” to warrant a claim for punitive damages. Id. at p. 12; see also id. at p. 15 (“Ultimately, even Plaintiffs’ evidence regarding the water levels do not rise to any necessary level of proof that Epley’s acted maliciously, outrageously, fraudulently, or oppressively.”); id. at p. 17 (“The Plaintiffs’ evidence fails to rise to the level of reasonable likelihood of proving fraud, oppression, malice, or outrage.”); id. at p. 19 (“[Plaintiffs’] evidence in this motion at best claims that [Epley’s] was grossly negligent or reckless, but nowhere explains or establishes fraud, oppression, malice, or outrage necessary to amend to add punitives.”).

II. DISCUSSION

A. Punitive Damages: Legal Standard

Claims for punitive damages are governed by Idaho Code § 6-1604, which provides:

In any action seeking recovery of punitive damages, the claimant must prove, by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted.

I.C. § 6-1604(1).

Whether to allow a claim of punitive damages is a substantive question controlled by Idaho law. See Windsor v. Guarantee Trust Life Ins. Co., 684 F. Supp. 630, 633 (D. Idaho 1988). Ultimately, [*9]  an award of punitive damages requires a bad act and a bad state of mind. See Todd v. Sullivan Const. LLC, 146 Idaho 118, 191 P.3d 196, 201 (Idaho 2008). The defendant must (1) act in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences, and must (2) act with an extremely harmful state of mind, described variously as with malice, oppression, fraud, or outrageousness. See Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 95 P.3d 977, 983 (Idaho 2004); see also I.C. § 6-1604.3

3 The Idaho Supreme Court has recognized that, since the enactment of Idaho Code § 6-1604 in 1987, gross negligence or deliberate or willful conduct is not sufficient for an award of punitive damages. See Cummings v. Stephens, 157 Idaho 348, 336 P.3d 281, 296, n.5 (Idaho 2014) (“Since the enactment of the statute, gross negligence or deliberate or willful conduct is not sufficient for an award of punitive damages.”). Accordingly, the undersigned disagrees with Plaintiffs’ to the extent they ask the Court to infer that a harmful state of mind can be satisfied by a defendant’s gross negligence. See, e.g., Mem. in Supp. of Mot. to Am., p. 10 (Docket no. 17, Att. 1); compare with Opp. to Mot. to Am., p. 10 (Docket No. 22) (“A party seeking punitive damages must prove defendant’s action constituted an extreme deviation from reasonable standards of conduct, which was done with knowledge of the likely consequences, and an ‘extremely harmful state of mind.’ However, that ‘extremely harmful state’ can no longer be termed gross negligence or recklessness.”) (internal citations omitted, emphasis in original).

At trial, the party alleging punitive damages must satisfy this standard by clear and convincing evidence. See I.C. § 6-1604(1). However, for purposes of a motion to amend, the party seeking to add a claim for punitive damages does not need to meet this high burden; rather, the party need only show “a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.” See I.C. § 6-1604(2). Therefore, although FRCP 15(a) encourages the trial court to liberally grant motions to amend pleadings, this policy is substantially tempered by the requirements under Idaho law. That is, plaintiff may add a claim for punitive damages only if they establish a reasonable likelihood of proving, by clear and convincing evidence, that the defendant’s conduct was oppressive, fraudulent, [*10]  malicious, or outrageous.

Since plaintiffs are only required to demonstrate a “reasonable likelihood” of establishing their entitlement to punitive damages, on motions to amend to assert a claim for punitive damages under Idaho Code § 6-1604(2), courts apply the same standard it would apply in resolving an FRCP 50 motion at the close of plaintiffs’ case. See Bryant v. Colonial Sur. Co., 2016 U.S. Dist. LEXIS 22414, 2016 WL 707339, *3 (D. Idaho 2016). That is, evidence is viewed in the light most favorable to plaintiffs, with the benefit of all legitimate inferences without assessing credibility. See id. (citing E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009)).

It is in the trial court’s discretion to decide whether to submit the punitive damages issue to the jury. See Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 830 P.2d 1185, 1190 (Idaho 1992). As a matter of substantive law, it is well established in Idaho that punitive damages are not favored and should be awarded only in the most unusual and compelling circumstances, and are to be awarded cautiously and within narrow limits. See id. at 1185; see also Jones v. Panhandle Distribs., Inc., 117 Idaho 750, 792 P.2d 315 (Idaho 1990); Soria v. Sierra Pac. Airlines, Inc., 111 Idaho 594, 726 P.2d 706 (Idaho 1986); Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 665 P.2d 661 (Idaho 1983); Linscott v. Rainier Nat’l Life Ins. Co., 100 Idaho 854, 606 P.2d 958 (Idaho 1980).

B. Plaintiffs May Assert a Claim for Punitive Damages Against Epley’s

This lawsuit and the instant Motion to Amend are focused on the decisions surrounding the events leading up to June 27, 2014 — the day Mr. Kane, his son, and the rest of the rafters in their group encountered Slide Rapid. The evidentiary record about such decisions [*11]  (viewed in light most favorable to Plaintiffs), gives rise to a reasonable likelihood of proving, by clear and convincing evidence, that Epley’s engaged in a bad act, with a bad state of mind, so as to warrant a claim for punitive damages.

1. Bad Act: Extreme Deviation From Reasonable Standards of Conduct

Plaintiffs point out that, in the days leading up to, and including, the June 24, 2014 launch, Defendant’s manager and guides were aware that water levels on the Salmon River consistently measured higher than 23,000 cfs and that, on June 24, 2014, the water level forecasted for June 27, 2014 (the day the group was scheduled to reach Slide Rapid) was approximately 21,000 cfs. See Mem. in Supp. of Mot. to Am., pp. 2-6, 11, 14 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 96) to Frey Decl. (Docket No. 17, Att. 3); Ex. F (Cornforth Dep. at p. 21) to Frey Decl. (Docket No. 17, Att. 3); Ex. L (USGS Discharge Data), to Frey Decl. (Docket No. 17, Att. 4); Ex. M (Northwest River Forecast Center (“NWRFC”) River Flow Forecast), to Frey Decl. (Docket No. 24)).4 Still, Epley’s decided to proceed with the trip and, according to Plaintiffs, did so with “no plan whatsoever” to address the [*12]  anticipated flow levels at Slide Rapid in the event water flow volumes remained dangerously high. See Mem. in Supp. of Mot. to Am., pp. 6-7, 15-16 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at pp. 107-08) to Frey Decl. (Docket No. 17, Att. 3)).5

4 It is undisputed that, at levels over 20,000 cfs, Slide Rapid represents either Class V (expert) or Class VI (extreme and exploratory) waters. See Mem. in Supp. of Mot. to Am., pp. 4, 7, 14 (Docket No. 17, Att. 1) (citing Ex. B (BLM Guide) to Frey Decl. (Docket No. 17, Att. 3); Ex. D (Blackner Dep. at p. 86) to Frey Decl. (Docket No. 17, Att. 3); Ex. Q (Ranck Dep. at pp. 16-17) to Frey Decl. (Docket No. 17, Att. 6); Ex. E (Estes Dep. at pp. 18-19) to Frey Decl. (Docket No. 17, Att. 3)).

5 According to Defendant’s lead guide, Mr. Cornforth, “regardless of the height of the river when [the party] got to Slide [Rapid],” his only plan was “to try to stay river left and go through it.” Ex. F (Cornforth Dep. at p. 22) to Frey Decl. (Docket No. 17, Att. 3).

Flow levels did not appreciably change over the course of the trip and, on the morning of June 27, 2014, Defendant’s guides could see that the river flow had actually increased overnight as the party camped at Eagle Creek (the last overnight location before reaching Slide Rapid). See Mem. in Supp. of Mot. to Am., p. 7 (Docket No. 17, Att. 1) (citing Ex. F (Cornforth Dep. at pp. 59-60) to Frey Decl. (Docket No. 17, Att. 3); Ex. G (Sharp Dep. at pp. 34-36) to Frey Decl. (Docket No. 17, Att. 4); Ex. P (Sharp Witness Statement) to Frey Decl. (Docket No. 17, Att. 6)). Still, Defendant decided to proceed through Slide Rapid with allegedly unqualified guides, foregoing options to use an available satellite phone to discuss potentially safer options for the relatively inexperienced group, portage around Slide Rapid,6 or altogether exit the river on land at Eagle Creek (the last place where the group could have readily done so). See Mem. in [*13]  Supp. of Mot. to Am., pp. 6-7, 15-16 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 154) to Frey Decl. (Docket No. 17, Att. 3; Ex. F (Cornforth Dep. at pp. 22, 29-30) to Frey Decl. (Docket No. 17, Att. 3); Ex. O (Sears Expert Report, p. 6) to Frey Decl. (Docket No. 17, Att. 6); Ex. W (Nicolazzo Report, p. 3), to Frey Decl. (Docket No. 17, Att. ).

6 Plaintiffs claim that another outfitter, Exodus River Adventures, ran the Lower Salmon River during the same time frame and, on June 26, 2014, portaged around Slide Rapid rather than running it at similar flows. See Mem. in Supp. of Mot. to Am., p. 7 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 154) to Frey Decl. (Docket No. 17, Att. 3)); but see Ex. Q (Ranck Dep. at p. 30) to Frey Decl. (Docket No. 17, Att. 6) (testifying that portaging Slide Rapid was not a viable option: “It is a steep slope with sharp rocks. Lots of ledges. Loose rocks. Having middle-aged parents. Some of which were overweight. They would have been more than capable to do so on maybe a beach or a smaller rock outcropping. But they wouldn’t have been able to get safely over that rock slide by themselves. Especially carrying gear.”).

For its part, Epley’s disputes Plaintiffs’ contentions about forecasted flows for Slide Rapid in the days leading up to June 27, 2014, believing them to be lower. See Opp. to Mot. to Am., pp. 4-5, 14 (Docket No. 22) (“Despite Plaintiffs’ incorrect assertions, the Northwest River Forecast website continued to predict that the Lower Salmon River water level would drop to below 20,000 cfs by the time the group was to reach the Slide.”) (citing Ex. L (National Oceanic and Atmospheric Administration’s National Weather Service, Northwest River Forecast Center River Flow and Stage Forecasts) to Cronin Decl. (Docket No. 22, Att. 3). Consistent with this, the BLM officials present at the launch site on June 24, 2014, neither warned the group not to go, nor stated any concern about the water levels whatsoever. See Opp. to Mot. to Am., [*14]  p. 6 (Docket No. 22) (citing Ex. A (Blackner Dep. at p. 113) to Cronin Decl. (Docket No. 22, Att. 2). And, as to precautions taken before hitting Slide Rapid itself, Epley’s notes that its guides (who it contends were state-licensed and experienced) conducted a safety talk on the morning of June 27, 2014 and, before reaching the rapids, pulled the group’s rafts to shore to scout and pick the safest line to run — the “Sneak” down the left bank, with identified spots to “eddy out” at the bottom of the run “in case any individuals fell out during the rapid and they needed to perform a rescue.” Opp. to Mot. to Am., pp. 6, 15-17 (Docket No. 22) (citing Ex. P (Ranck Dep. at pp. 29-31) to Cronin Decl. (Docket No. 22, Att. 3)).

The extent to which the parties’ above-referenced arguments define the standard of care orbiting Defendant’s actions leading up to Mr. Kane’s death is clearly disputed. Judge Lodge stated as much when considering Defendant’s Motion for Summary Judgment, discussing the relevant standard of care as follows:

A question of fact exists, however, concerning what the standard of care is in this case; i.e., what ordinary care Epley’s, as an outfitter, owed to Plaintiffs, as its [*15]  customers/participants. The parties dispute the testimony of the expert witnesses offered to opine regarding the standards of the profession and the use/relevance of certain public information and industry publications to define the standard of care — in particular the standard of care in the profession for outfitters running the Slide Rapid above 20,000 cfs.

Each sides’ expert witnesses offer differing opinions concerning the standard of care applicable to the circumstances presented in this case. In his report, the Defendant’s expert, Gary Lane, states that he used a 25,000 cfs cut-off for running commercial trips at the Slide Rapid but that “it has long been the standard practice and is the practice today for commercial outfitters on the Lower Salmon River to take commercial trips down the Lower Salmon, including the Slide Rapid, at flows up to and exceeding 25,000 cfs” and concludes that Epley’s conformed to the standard of care expected of outfitters and guides rafter the Lower Salmon at the Slide Rapid with this group, gear, and at water levels higher than 20,000 cfs. Plaintiffs’ expert, on the other hand, conclude the Defendant violated the standard of care with regard to running [*16]  the Slide Rapid above 20,000 cfs under the circumstances of this case. Resolving the disputed questions presented by the experts’ testimonies requires the weighing of evidence and credibility determinations which must be done at trial.

12/6/16 MDO, pp. 19-20 (Docket No. 44) (internal citations omitted).7 And, whether these same arguments reflect Defendant’s breach of any duty owed to Plaintiffs is also disputed, with Judge Lodge similarly ruling:

For the same reasons discussed above with regard to duty, the Court finds a genuine issue of material fact exists as to whether Defendant breached the standard of care applicable in this case. This case presents the classic example of a battle of experts where both sides have presented contradicting testimony from experts concerning whether the Defendant breached a duty of care owed to Plaintiffs. Further, the facts surrounding events in question relevant to the breach issue are in dispute. For instance, the conditions presented on the day in question; what the guides knew regarding the water flow level of the Slide Rapid; whether there was a rescue plan and if that plan was followed; and any safety procedures in place and used by the guides. [*17]  The jury, as the finder of fact, must consider all of the disputed facts, the credibility of the witnesses, and the weight of the evidence in order to determine whether Defendant breached its duty. Therefore, summary judgment is denied on this question.

Id. at p. 23.

7 Judge Lodge also considered the “public information and industry publications” for the purposes of determining the appropriate standard of care for Idaho outfitters running commercial trips on the Lower Salmon River generally, and when Slide Rapid experiences high flows. See 12/6/16 MDO, pp. 20-22 (Docket No. 44). This examination included the BLM’s Lower Salmon River Boater’s Guide, the American Whitewater Safety Code, outfitter websites, and industry blogs (including one by Defendant’s expert, Gary Lane). However, they also didn’t highlight the standard of care as a matter of law. See id. at p. 22 (“While these materials do not, in and of themselves, define the standard of care, and their admissibility and/or use at trial is not decided here, the materials do show a genuine issue of material fact is present in this case concerning the applicable standard of care.”).

Viewing the evidence in the light most favorable to Plaintiffs, and giving Plaintiff the benefit of all legitimate inferences without assessing credibility, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Defendant acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding (as an experienced outfitter) of — or disregard for — the likely consequences of those actions. See, e.g., Morningstar Holding Corp. v. G2, LLC, 2012 U.S. Dist. LEXIS 12355, 2012 WL 287517, at *14 (D. Idaho 2012) (“It is true that ‘[w]here evidence is conflicting, and where it can be said that if one theory of the case is correct there may be ground for the imposition of exemplary damages, the matter is properly submitted to the jury’ to determine the correct theory.”) (quoting Williams v. Bone, 74 Idaho 185, 259 P.2d 810, 813 (Idaho 1953)). As already indicated by Judge Lodge, it will be for the jury to resolve the issue of the actual standard of care involved and, relatedly, whether Epley’s breached [*18]  that same standard in the days and moments leading up to Mr. Kane’s death. See supra.

2. Bad State of Mind: Acting With An Extremely Harmful State of Mind

Plaintiffs assert that Epley’s, through its manager, Mr. Blackner, told Marelene Schaefer, who organized the event for the BSA, that (1) Defendant followed “BLM criteria” in determining whether to launch on the Lower Salmon Rive, and (2) they would not launch if the water was above 20,000 cfs. See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at pp. 25-28, 30) to Buck Decl. (Docket No. 21, Att. 3)). Plaintiffs also contend that Mr. Blackner assured Ms. Schaefer that he was monitoring river flows, even expressing concern that they might not be able to launch on the date planned and that they may have to “take an alternative trip if the water was over 20,000 cfs.” See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at pp. 27-29) to Buck Decl. (Docket No. 21, Att. 3)).

But, according to Plaintiffs, at the June 24, 2014 launch Mr. Blackner did not tell Ms. Schaefer (who was also present with the inspection team at the launch) that the water level was above 23,000 cfs, but [*19]  did say that the water levels would be dropping to 17,000 cfs at Slide Rapid and, if they did not drop in time, they could alter the plan and take out at Eagle Creek or run a different route. See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at p. 46) to Buck Decl. (Docket No. 21, Att. 3);8 Ex. D (Blackner Dep. at pp. 91- 93) to Frey Decl. (Docket No. 17, Att. 3)). Mr. Blackner allegedly made these representations despite the fact that river level forecasts for June 27, 2014 (the day the group was scheduled to reach Slide Rapid) was, in reality, approximately 21,000 cfs. See Reply in Supp. of Mot. to Am., pp. 2-3 (Docket No. 27) (“Blackner admitted that he checked the USGS website that provided actual and forecasted river levels; consequently, he knew his statement that the river would be at 17,000 cfs by June 27 was false.”) (citing Ex. D (Blackner Dep. at pp. 91-93) to Frey Decl. (Docket No. 17, Att. 3); Ex. M (NWRFC River Flow Forecast), to Frey Decl. (Docket No. 24)). In other words, Plaintiffs argue that Mr. Blackner purposely misled Ms. Schaefer and, thus, the group by failing to inform them of actual (as of the June 24, 2014 launch date) and [*20]  projected (for the anticipated encounter with Slide Rapid on June 27, 2014) river flows — that is, it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid on June 27, 2014 was 17,000 cfs, when, in actuality, it was much higher.

8 Whether Ms. Schaefer actually understood if Defendant would either take out at Eagle Creek or cancel the as-planned trip altogether is unclear, with Ms. Schaefer testifying:

Q: Okay. And that if [the river levels did not drop], according to what you’ve testified earlier, they could alter the plan and take out before they got to the Slide?

A: Yes.

Q: Okay.

A: Well, their alternate plan was to run a different route, not to pull out before the Slide. There’s a place to pull out I think.

Ex. B (Schaefer Dep. at p. 46) to Buck Decl. (Docket No. 21, Att. 3). Even so, the gist of this testimony is that Ms. Schaefer understood that, at certain flows, there would be no launch. See id. at p. 63 (“Well, I’m saying you saw where [Mr. Blackner] had an alternative if they could not launch and run the river the way that we had planned.”). The Court understands that the alternative trip was from Vinegar Creek to Pine Bar. See Ex. D (Blackner Dep. at pp. 92-93) to Frey Decl. (Docket No. 17, Att. 3).

Again, Epley’s takes issue with Plaintiffs’ representation of what was actually forecasted for Slide Rapid as of June 24, 2014. See supra. Epley’s does acknowledge the dueling factual accounts of what was said between Mr. Blackner and Ms. Schaefer surrounding the circumstances in which the group would (or would not) proceed with the as-planned trip, in the face of dangerous high river flow levels. See Reply in Supp. of MSJ, p. 3 (Docket No. 25) (“While it is disputed what Roger Blackner may have told Marlene Schaefer regarding what level he would run the Slide Rapid at prior to the June 24, 2014 trip, nothing [*21]  that the Plaintiffs cite establishes that Roger, or any other Epley’s personnel, testified the water was over the Epley’s limit, or the industry standard.”).

And, as before, such evidence and inferences must be viewed to Plaintiffs’ benefit when considering Plaintiffs’ efforts to amend their Complaint to assert a claim for punitive damages. When doing so, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Epley’s not only acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences of those actions (see supra), but also did so with a harmful state of mind when viewing Mr. Blackner’s statements to Ms. Schaefer as fraudulent and/or outrageous. See Morningstar, 2012 U.S. Dist. LEXIS 12355, 2012 WL 287517 at *14 (discussing role of jury to resolve conflicting evidence in context of exemplary damages). Whether Epley’s actually acted with such a harmful state of to support an award of punitive damages is therefore a question for the jury, and not the subject of this Memorandum Decision and Order.9

9 To be clear, the undersigned is granting Plaintiffs’ Motion to Amend Complaint to Assert Punitive Damages Claim. However, the fact of doing so does not guarantee the claim will go to the jury. Judge Lodge will preside over the trial of the case and it will be within Judge Lodge’s province to decide, after hearing the evidence, whether the jury should decide the issue of punitive damages at trial. See, e.g., Clark v. Podesta, 2016 U.S. Dist. LEXIS 103637, 2016 WL 4179851, at *8 (D. Idaho 2016) (Judge Lodge stating on that facts of that case: “It is premature for the Court to make a binding decision on punitive damages until the close of evidence. Only then can the Court determine if evidence has been presented that Podesta acted with the requisite state of mind to allow punitive damages to be considered by the jury. Accordingly, the Court will allow the motion to amend the Complaint but will reserve ruling on whether such claim will be decided by the jury. . . .”).

III. ORDER

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiffs’ Motion to Amend Complaint to [*22]  Assert Punitive Damage Claim (Docket No. 17) is GRANTED; and

2. Plaintiffs’ Motion to Strike Defendant’s “Sur Reply” to Plaintiffs’ Motion to Amend Complaint to Add Punitive Damages (Docket No. 39) is DENIED as moot.

DATED: March 28, 2017

/s/ Ronald E. Bush

Honorable Ronald E. Bush

Chief U. S. Magistrate Judge

 


Summer 2016 Commercial Fatalities

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 December 1, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Ref 2

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

 

Whitewater Rafting

ME

Dead River

Fell out

52

M

 

http://rec-law.us/22B3zeY

http://rec-law.us/1U0HrbU

North Country Rivers

5/22

Whitewater Rafting

CO

Arkansas River

Fell out

61

F

Parkdale

http://rec-law.us/1r4zOp3

http://rec-law.us/1O75mWC

Echo Canyon River Expeditions

6/4

Whitewater Rafting

AK

Lowe River

Fell out

48

F

 

http://rec-law.us/1Yemxbd

 

 

6/15

Whitewater Rafting

CO

Roaring Fork

Flip

50

M

Slaughterhouse section

http://rec-law.us/1WOcnyo

http://rec-law.us/1UkzCwI

Aspen Whitewater Rafting

6/15

Whitewater Rafting

AK

Kongakut River

Flip

69

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/15

Whitewater Rafting

AK

Kongakut River

Flip

67

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

63

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

 

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/24/16

Whitewater Rafting

CO

Green River

 

63

F

Disaster Falls

http://rec-law.us/295dJ7a

http://rec-law.us/290uTwS

Adrift Adventures

7/2/16

Whitewater Rafting

CO

Arkansas River

Fell out

51

F

Zoom Flume

http://rec-law.us/29h5oxj

http://rec-law.us/29hYin3

River Runners

7/17

Inflatable Kayak

OR

Rogue River

Fell out & trapped unwater

57

M

Wildcat Rapid

http://rec-law.us/2a9iiKF

 

 

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

39

F

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

13

M

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/23

Mountain Climbing

WY

Grand Teton National Park

Fell

42

M

Valhalla Canyon near the Black Ice Coulier

http://rec-law.us/2a88grE

http://rec-law.us/2as4s9f

Exum

9/12

Whitewater Rafting

AZ

Grand Canyon NP

Guide walked out of camp with inflatable

34

M

Pancho’s Kitchen

http://rec-law.us/2cIc9JI

 

OARS

If you would like a PDF of this chart please click here.

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.

What do you think? Leave a comment.

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

Copyright 2016 Recreation Law (720) Edit Law

What do you think? Leave a comment.

 

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

Author: Outdoor Recreation Insurance, Risk Management and Lawclip_image002_thumb.jpg

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Avalanche, Cat Skiing, Oregon, Whitewater Rafting,

 

 


Summer 2016 Commercial Fatalities

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 September 1, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Ref 2

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

 

Whitewater Rafting

ME

Dead River

Fell out

52

M

 

http://rec-law.us/22B3zeY

http://rec-law.us/1U0HrbU

North Country Rivers

5/22

Whitewater Rafting

CO

Arkansas River

Fell out

61

F

Parkdale

http://rec-law.us/1r4zOp3

http://rec-law.us/1O75mWC

Echo Canyon River Expeditions

6/4

Whitewater Rafting

AK

Lowe River

Fell out

48

F

 

http://rec-law.us/1Yemxbd

 

 

6/15

Whitewater Rafting

CO

Roaring Fork

Flip

50

M

Slaughterhouse section

http://rec-law.us/1WOcnyo

http://rec-law.us/1UkzCwI

Aspen Whitewater Rafting

6/15

Whitewater Rafting

AK

Kongakut River

Flip

69

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/15

Whitewater Rafting

AK

Kongakut River

Flip

67

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

63

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

 

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/24/16

Whitewater Rafting

CO

Green River

 

63

F

Disaster Falls

http://rec-law.us/295dJ7a

http://rec-law.us/290uTwS

Adrift Adventures

7/2/16

Whitewater Rafting

CO

Arkansas River

Fell out

51

F

Zoom Flume

http://rec-law.us/29h5oxj

http://rec-law.us/29hYin3

River Runners

7/17

Inflatable Kayak

OR

Rogue River

Fell out & trapped unwater

57

M

Wildcat Rapid

http://rec-law.us/2a9iiKF

 

 

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

39

F

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

13

M

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/23

Mountain Climbing

WY

Grand Teton National Park

Fell

42

M

Valhalla Canyon near the Black Ice Coulier

http://rec-law.us/2a88grE

http://rec-law.us/2as4s9f

Exum

If you would like a PDF of this chart please click here. 2016 Commercial Fatalities 9.1.16

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.

What do you think? Leave a comment.

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

Copyright 2016 Recreation Law (720) Edit Law

What do you think? Leave a comment.

clip_image002 

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Avalanche, Cat Skiing, Oregon, Whitewater Rafting,

 

 


Summer 2016 Commercial Fatalities

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 July 20, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Ref 2

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

 

Whitewater Rafting

ME

Dead River

Fell out

52

M

 

http://rec-law.us/22B3zeY

http://rec-law.us/1U0HrbU

North Country Rivers

5/22

Whitewater Rafting

CO

Arkansas River

Fell out

61

F

Parkdale

http://rec-law.us/1r4zOp3

http://rec-law.us/1O75mWC

Echo Canyon River Expeditions

6/4

Whitewater Rafting

AK

Lowe River

Fell out

48

F

 

http://rec-law.us/1Yemxbd

 

 

6/15

Whitewater Rafting

CO

Roaring Fork

Flip

50

M

Slaughterhouse section

http://rec-law.us/1WOcnyo

http://rec-law.us/1UkzCwI

Aspen Whitewater Rafting

6/15

Whitewater Rafting

AK

Kongakut River

Flip

69

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/15

Whitewater Rafting

AK

Kongakut River

Flip

67

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

63

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

 

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/24/16

Whitewater Rafting

CO

Green River

 

63

F

Disaster Falls

http://rec-law.us/295dJ7a

http://rec-law.us/290uTwS

Adrift Adventures

7/2/16

Whitewater Rafting

CO

Arkansas River

Fell out

51

F

Zoom Flume

http://rec-law.us/29h5oxj

http://rec-law.us/29hYin3

River Runners

7/17

Inflatable Kayak

OR

Rogue River

Fell out & trapped unwater

57

M

Wildcat Rapid

http://rec-law.us/2a9iiKF

 

 

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

39

F

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

13

M

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

 

 

 

 

 

 

 

 

 

 

 

If you would like a PDF of this chart please click here.

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.

What do you think? Leave a comment.

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

Copyright 2016 Recreation Law (720) Edit Law

What do you think? Leave a comment.

clip_image002 

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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Summer 2016 Commercial Fatalities

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 June 30, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Ref 2

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

 

Whitewater Rafting

ME

Dead River

Fell out

52

M

 

http://rec-law.us/22B3zeY

http://rec-law.us/1U0HrbU

North Country Rivers

5/22

Whitewater Rafting

CO

Arkansas River

Fell out

61

F

Parkdale

http://rec-law.us/1r4zOp3

http://rec-law.us/1O75mWC

Echo Canyon River Expeditions

6/4

Whitewater Rafting

AK

Lowe River

Fell out

48

F

 

http://rec-law.us/1Yemxbd

 

 

6/15

Whitewater Rafting

CO

Roaring Fork

Flip

50

M

Slaughterhouse section

http://rec-law.us/1WOcnyo

http://rec-law.us/1UkzCwI

Aspen Whitewater Rafting

6/15

Whitewater Rafting

AK

Kongakut River

Flip

69

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/15

Whitewater Rafting

AK

Kongakut River

Flip

67

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

63

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

 

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/24/16

Whitewater Rafting

CO

Green River

 

63

F

Disaster Falls

http://rec-law.us/295dJ7a

http://rec-law.us/290uTwS

Adrift Adventures

7/2/16

Whitewater Rafting

CO

Arkansas River

Fell out

51

F

Zoom Flume

http://rec-law.us/29h5oxj

http://rec-law.us/29hYin3

River Runners

If you would like a PDF of this chart please click here.

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.

What do you think? Leave a comment.

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

Copyright 2016 Recreation Law (720) Edit Law

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clip_image002 

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Avalanche, Cat Skiing, Oregon, Whitewater Rafting,

 

 


2016 Commercial Fatalities

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 May 5, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

 

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche, hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

If you would like a PDF of this chart please click here.

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.

What do you think? Leave a comment.

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

Copyright 2016 Recreation Law (720) Edit Law

What do you think? Leave a comment.

clip_image002 

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Avalanche, Cat Skiing, Oregon, Whitewater Rafting,

 

 


Summer 2015 Commercial Fatalities

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 December 31, 2015. Thanks.

Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

 

Company

3/2

Backcountry Skiing

AK

Chugach Mountains

Calving Glacier

28

M

 

http://rec-law.us/1CpcDtI

 

Chugach Powder Guides

5/22

Whitewater Rafting

CO

Clear Creek

Raft Flipped

47

F

M258.5

rec-law.us/1I3HWx7

 

All American Adventures

5/31

Whitewater Rafting

MT

Gallatin River

Raft Flipped

43

M

House Rock

rec-law.us/1GhQpwm

 

Geyser Whitewater Expedition

6/5

Whitewater Rafting

UT

Colorado River, Westwater

Raft Flipped

50

M

Funnel Falls

rec-law.us/1HduOnS

 

 

6/10

Whitewater Rafting

CO

Arkansas River, Brown’s Canyon,

Raft high sided

11

M

Big Drop

rec-law.us/1GwG51X

 

The Adventure Company

6/11

Zip Line

NC

Camp Cheerio

 

12

F

 

rec-law.us/1FdpyKX

 

YMCA

 

Whitewater Rafting

CO

Arkansas River

 

52

M

Salt Lick

rec-law.us/1KRwN2b

 

 

 

Whitewater Rafting

CO

Animas

 

 

M

 

 

 

Mild to Wild

6/13

Whitewater Rafting

CO

Roaring Fork River

 

44

F

 

rec-law.us/1OgnuIj

rec-law.us/1Kfi2aH

Blazing Adventures

6/22

Hiking on Whitewater Rafting Trip

AZ

Colorado River

Missing after hike

22

M

Pumpkin Springs, Swamper on trip

rec-law.us/1efzCNB

rec-law.us/1VspmmX

Tours West

6/23

Wakeboarding

GA

Carters Lake

 

23

M

 

rec-law.us/1e3wdBF

 

Cohutta Springs Youth Camp

 

Whitewater Rafting

NM

Rio Grande

 

52

M

 

rec-law.us/1LDliwP

 

 

7/4

Whitewater Rafting

CO

Clear Creek

 

20

M

 

rec-law.us/1LWmk7l

 

Mile High Rafting

7/6

Whitewater Rafting

CO

Poudre River

Medical

76

M

 

rec-law.us/1NPBLeT

rec-law.us/1HQm6M7

A1 Wildwater Rafting

7/13

Ropes Course

SC

Freebird

 

16

F

 

rec-law.us/1OdEFep

 

Carolina Point Young Life Camp

7/14

Zip Line

UT

Zip line

Fell off platform

54

M

Grabbed guest who pulled him off

rec-law.us/1CE8fIS

 

Kanab Zipline

7/18

Whitewater Rafting

CO

Dizzy Lizzy

Fell out of raft

35

M

 

rec-law.us/1LkODwd

 

 

9/25/15

Zip Line

MI

Huron County

Fell from zip line

85

M

 

rec-law.us/1R93WYF

 

Bay Shore Camp

9/27

Cycling Time Trial

CA

Yolo County

Hit by car

57

M

County Road 19, west of Interstate 505 near Esparto

rec-law.us/1L1om4S

 

Northern California Nevada Cycling Association

If you are unable to read the chart, you can download a copy of this as a PDF here.

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.

What do you think? Leave a comment.

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

Copyright 2016 Recreation Law (720) Edit Law

What do you think? Leave a comment.

clip_image002 

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Summer, 2015, Whitewater Rafting, Glacier, Calving, Flipped, Chugach Powder Guides, All American Adventures, Geyser Whitewater Expedition, Colorado River, Westwater Canyon, Funnel Falls, Bay Shore Camp

 

 


10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.

Plaintiff’s approach was a unique way of attempting to circumvent the legal protection afforded by the release. Claims of negligence per se and fraud were pled to beat the release.

Citation: Espinoza, Jr., v. Arkansas Valley Adventures, LLC, 2016 U.S. App. LEXIS 39

State: Colorado, United States Court of Appeals for the Tenth Circuit

Plaintiff: Jesus Espinoza, Jr.

Defendant: Arkansas Valley Adventures, LLC

Plaintiff Claims: Negligence per se and fraud

Defendant Defenses: release

Holding: Defendant

Year: 2016

There is a quasi-third party in this case, the Colorado Trial Lawyers Association (CTLA). The CTLA filed an Amicus Curiae brief with the appellate court. An amicus curiae brief is a written argument with legal support saying there are issues in this case that may or may not be brought out by one of the parties that are important to people other than the named parties.

In this case, the CTLA probably wanted to influence the court in favor of the plaintiff.

The plaintiff’s mother went whitewater rafting with the defendant raft company. Upon arrival the plaintiff received “the usual guidance,” signed a release and headed down the river. “The next day(?)” while rafting through Seidel’s Suck Hole the raft flipped. Everyone was “fished out of the river” except the deceased who was swept into a “log jam” (a strainer).

Brown’s Canyon, including Seidel’s Suck Hole is an all-day river trip. However, a few companies run two-day trips on the river stopping mid-way and camping for the night. That is the confusion on what day, relative to the date the deceased signed the release the fatality occurred. 99.9% of the trips are just one-day trips.

Her son brought suit against the raft company for negligence per se and fraud. The trial court agreed with the defendant and granted its motion for summary judgment. The appeal to the Tenth Circuit and this decision followed.

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

The court distilled the plaintiff’s major argument down to one sentence. “…whether Colorado law permits private parties to enforce a contract like this.”

The court first looked at the requirements for a release to be valid in Colorado as set out by the Colorado Supreme Court.

…the Colorado Supreme Court has instructed courts to weigh four factors when deciding whether to give effect to agreements along these lines: “(1) the existence [or nonexistence] of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.

The court then analyzed the four different factors breaking them down into sub-groups. The first two factors the court found to be public policy questions.

…asking whether “[t]he party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity [and] . . . [a]s a result of the essential nature of the service . . . the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.”

The last two questions of the four focus on whether the release, as a contract met the requirements to be a contact:

…whether the release was fairly obtained and clearly and unambiguously expressed. If the release satisfies both sets of questions — the more general and the more particular — it may be enforced.”

Generally, the Colorado Supreme Court has held that businesses that perform recreational services are not engaged in essential public services. Essential public services or referred to by other courts as necessities are those are you cannot live without. “So while businesses providing, say, water, electricity, or sanitary services usually may not shield themselves from claims of negligence; recreational service providers often can.”

Under Colorado law, private parties are free to assume the risks associated with recreational activities.

The court then looked at how this test applied to the plaintiff’s argument that the raft company was liable because it was negligent per se. However, the court rejected the negligence per se argument finding that creation of a statute covering a particular business does not therefore create negligence per se actions on all aspects of the statute.

And because whitewater rafting is a recreational activity, a statute could not turn a recreational activity into a necessity.

And the distinction the Jones factors draw between essential and recreational services would break down pretty quickly if the presence of some state regulation were enough to convert an otherwise obviously “recreational” service into a “practically necessary” one.

On top of that, Colorado law has always allowed parties to contract away negligence claims and there is almost no difference between the common law of negligence, and the duty required of a negligence per se claim.

Colorado law has long permitted parties to contract away negligence claims in the recreational context. And negligence per se claims often differ very little from their common law cousins: they usually just substitute a common law duty or standard of care with one prescribed by statute, and all other elements remain the same. In fact, in the case before us, it’s not even clear what duty of care CROA adds to the common law.

Nor did the plaintiff point out how the statute created a new duty that was violated by the defendant. And the court cannot create a new duty. “Indeed, courts generally will not assume that the General Assembly means to displace background common law principles absent some clear legislative expression of that intent.”

He contends that the rafting company misrepresented the nature of the trip to Ms. Apolinar. He points for support to testimony suggesting that, when Ms. Apolinar first made her reservation, she was told by company representatives and read on its website that the trip was appropriate for beginners and involved at most only class III rapids.

However, the court found the deceased was provided information on the risks of the rafting trip.

Whatever the rafting company said about the trip earlier on, when Ms. Apolinar arrived at the outfitter’s office she received a vivid description of the risks she could face. The rafting company provided — and Ms. Apolinar signed — a document titled in part “RAFTING WARNING” explaining that rafting can be “HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH.”

The release also had a clause that voided all other statements or sales pitches and stated only the representations in the release were valid. “The document provided, too, that its representations and warnings about the trip superseded any prior “communications or representations…

The court then restated that in Colorado, courts had consistently upheld releases signed by “competent and reasonably educated” people.

Colorado courts have repeatedly emphasized that individuals engaged in recreational activities are generally expected to read materials like these, and because recreational businesses do not provide “essential” services of “practical necessity” individuals are generally free to walk away if they do not wish to assume the risks described.

Nor would the court allow the claim for fraud to proceed.

To make out a claim for fraud in Colorado, a plaintiff must establish actual and reasonable reliance on a false statement; a party cannot — as a matter of law — continue to rely on a previously expressed false statement after the truth is aired. And, of course, we have just found that the rafting company’s written warnings accomplished just that — adequately airing the truth about the nature of the risks Ms. Apolinar faced.

Here again, the court could not find a false statement that was in the documents, and any false statement made prior to the signing of the release was null and void based on the superseding statement clause in the release.

The court upheld the release and the dismissal of the lawsuit by the trial court.

So Now What?

The issue with the most concern is the dispute between the American Whitewater Association whitewater difficulty rating of the section of river (International Scale of River Difficulty). For decades, the Arkansas River running through Brown’s Canyon was considered a Class III section.

Outfitters believing they could receive one of two benefits; either could receive some marketing value or lawsuit protection, started advertising the section as Class IV yet still marketed it as a beginner section.

A couple of books were published about the river and those books in an effort to protect someone (First Amendment is pretty strong though) also rated the river as a Class IV section.

Now an outfitter almost loses a decision because there is enough contention over the rating of the river that one judge thinks it should go to trial.

THINK people. Your actions today may come back to bite you somewhere in the future.

You can’t say something is a beginner run and then give it a Class IV rating to cover your legal butt. An AWA Class IV rating is advanced. Advanced is not Beginner.

The second issue is how hard the plaintiff’s and the plaintiff’s bar worked to overcome the release. Your release must be written correctly (See Think your release will survive a lawsuit? Test your Release and Find out.) If you stole your release from a competitor, cut and pasted yours from the web or was there when you bought the place you are going to lose a lawsuit.

Releases must fit the experience you are attempting to provide your guests. Your release must not be contradicted by your marketing or your website. Your release must be understood by you and your staff so you don’t void your release by your actions. Finally, your release must meet the legal requirements for a release for your industry and pursuant to your state law.

You then must make sure the information you provide to your guests before during and after their experience does no invalidate your release. Finally deal with the issues a disaster creates, just don’t hide.

Finally, the release was relied upon not only as a release, but as proof of the risks of the activity, for a superseding statement clause to eliminate fraud claims and failure to inform claims.

A well written release work.

Remember!

Marketing makes promises Risk Management must pay for.

Here the marketing was it was a beginner raft trip; however, someone died on it and there was enough controversy over whether the trip was really for beginners that this case was a close call.

clip_image002What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Tenth Circuit Court of Appeals, 10th Circuit Court of Appeals, 10th Circuit, Whitewater Rafting, Arkansas River, Brown’s Canyon, Strainer, Seidel’s Suck Hole, Fatality

 


Espinoza, Jr., v. Arkansas Valley Adventures, LLC, 2016 U.S. App. LEXIS 39

Espinoza, Jr., v. Arkansas Valley Adventures, LLC, 2016 U.S. App. LEXIS 39

Jesus Espinoza, Jr., Plaintiff – Appellant, v. Arkansas Valley Adventures, LLC, Defendant – Appellee. Colorado Trial Lawyers Association, Amicus Curiae.

No. 14-1444

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

2016 U.S. App. LEXIS 39

January 5, 2016, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:13-CV-01421-MSK-BNB).

Espinoza v. Ark. Valley Adventures, LLC, 2014 U.S. Dist. LEXIS 136102 (D. Colo., Sept. 26, 2014)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The deceased’s son unsuccessfully argued that, while his mother signed a release, it should be still be held to violate state public policy as it ran afoul of the first two Jones factors because his is claim was one for negligence per se rather than common law negligence; [2]-The argument mistook the nature of the inquiry called for by the first two Jones factors; [3]-His argument suggested a firmer analytical line could be drawn between claims of negligence and negligence per se than the circumstances in the case would fairly allow; [4]-His interpretation of the Colorado River Outfitters Act would require the court to read into that statute a good deal more than it said; [5]-The disclosure and release sufficed to satisfy the third and fourth Jones factors.

OUTCOME: Judgment affirmed.

CORE TERMS: rafting, recreational, common law, trip, claim of negligence, warning, negligence per se, public policy, equine, river, common law, private parties, recreational activities, misdemeanor, outfitter’s, provider, Colo Law, civil liability, purporting, raft, ski, matter of law, negligence claims, matter of practical necessity, public services, great importance, mean to suggest, horseback riding, standard of care, civil claims

COUNSEL: William J. Hansen of McDermott & McDermott, LLP, Denver, CO (George E. McLaughlin of Warshauer McLaughlin Law Group, P.C., Denver, CO, with him on the briefs), for Plaintiff-Appellant.

Alan Epstein (Ryan L. Winter and Conor P. Boyle, with him on the brief), of Hall & Evans, L.L.C., Denver, CO, for Defendant-Appellee.

Russell R. Hatten and Evan P. Banker of Chalat Hatten Koupal & Banker PC, Denver, CO, on the brief for amicus curiae Colorado Trial Lawyers Association, in support of Plaintiff-Appellant.

JUDGES: Before KELLY, HARTZ, and GORSUCH, Circuit Judges.

OPINION BY: GORSUCH

OPINION

GORSUCH, Circuit Judge.

This case arises from a summer rafting trip gone tragically wrong. It began when Sue Ann Apolinar hired a guide for a family adventure in the Colorado Rockies: an overnight rafting and camping excursion on a popular stretch of the Arkansas River running through Brown’s Canyon. After she arrived at the outfitter’s office, Ms. Apolinar and the other rafters received the usual guidance, made the usual preparations, and signed the usual release before heading down river. The next day, while maneuvering around [*2] a rapid known locally as Seidel’s Suck Hole, the raft capsized. Everyone else was fished out of the water soon enough. But in a heartbreaking turn of events, the current swept Ms. Apolinar into a logjam where, despite repeated efforts to save her, she drowned. Eventually, Ms. Apolinar’s son, Jesus Espinoza, Jr., brought a lawsuit against the rafting company alleging negligence per se and fraud (and other claims no longer in dispute). In reply, the company sought summary judgment, arguing that the release Ms. Apolinar signed shielded it from liability. With this the district court agreed and proceeded to enter judgment for the company. It’s the propriety of this ruling that we’re asked to assess in this appeal.

No one before us doubts that Ms. Apolinar signed a release. Or that the release purported to absolve the rafting company from any claim of negligence. The only question in this appeal is whether Colorado law permits private parties to enforce a contract like this. [HN1] Under Colorado common law, it’s long settled that courts will not give effect to contracts purporting to release claims for intentional, knowing, or reckless misconduct. See, e.g., Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010). But claims of negligence are a different [*3] matter. Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence. Instead, and at the most general level, the Colorado Supreme Court has instructed courts to weigh four factors when deciding whether to give effect to agreements along these lines: “(1) the existence [or nonexistence] of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981).

Even more specifically, [HN2] the Colorado Supreme Court has explained that the first two Jones factors focus on public policy questions — asking whether “[t]he party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity [and] . . . [a]s a result of the essential nature of the service . . . the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.” Id. (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444 (Cal. 1963)). Meanwhile, the latter two factors focus on more party- and contract-specific questions — asking whether the release was fairly [*4] obtained and clearly and unambiguously expressed. Id. at 378. If the release satisfies both sets of questions — the more general and the more particular — it may be enforced. (Provided, of course, that it is otherwise a valid contract, involving, for example, mutual assent and consideration, matters not in dispute here).

[HN3] When it comes to the first two Jones factors, the Colorado Supreme Court has offered even more specific guidance yet. Though some businesses perform essential public services and owe special duties to the public, the court has held that “businesses engaged in recreational activities” generally do not. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004); see also Boles, 223 P.3d at 726 (“More than a quarter century ago, this court rejected the assertion that any agreement purporting to shield a party from liability for its own tortious conduct” in the provision of recreational services “would violate . . . public policy . . . .”). So while businesses providing, say, water, electricity, or sanitary services usually may not shield themselves from claims of negligence, recreational service providers often can. Though, of course, they must still face and satisfy the latter two case-specific Jones factors.

This relatively permissive public policy toward [*5] recreational releases may not be unique to Colorado common law but it does seem to be one of its distinguishing features. We don’t doubt other states may rationally choose to pursue different lines when it comes to recreational releases: certainly the parties before us cite an array of cases from other jurisdictions taking an array of views. But [HN4] in our federal system, states are usually permitted (and encouraged) to pursue their own paths on policy matters like these. And it’s clear enough that Colorado allows private parties to assume some of the risks associated with their recreational pursuits. It’s a policy choice that, no doubt, means some losses go uncompensated but one that also promotes the output and diversity of recreational services consumers may enjoy. Of course, the Colorado Supreme Court and the Colorado General Assembly may change their judgment on this score at any time. And maybe someday they will prefer a policy that shifts the burden of loss to the service provider, ensuring compensation in cases like this even if also impairing to some degree individual choice and output. But that decision is their decision to make, not ours, and their current policy is clear. Indeed, [*6] following the Colorado Supreme Court’s guidance in this area, this court and many Colorado courts have upheld many releases in many recreational activities over many years. Only some examples of which we include in the margin.1

1 See, e.g., Lahey v. Covington, 964 F. Supp. 1440, 1444-46 (D. Colo. 1996) (whitewater rafting), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997); Forman v. Brown, 944 P.2d 559, 563-64 (Colo. App. 1996) (same); Robinette v. Aspen Skiing Co., No. 08-cv-00052-MSK-MJW, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093, at *3-5 (D. Colo. Apr. 23, 2009) (skiing), aff’d, 363 F. App’x 547 (10th Cir. 2010); Fullick v. Breckenridge Ski Corp., No. 90-1377, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3 (10th Cir. Apr. 29, 1992) (same); Potter v. Nat’l. Handicapped Sports, 849 F. Supp. 1407, 1409-11 (D. Colo. 1994) (same); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474-75 (D. Colo. 1992) (same); Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1113 (10th Cir. 2002) (mountain biking); Chadwick, 100 P.3d at 468-70 (horseback riding); B & B Livery, Inc. v. Riehl, 960 P.2d 134, 137-38 (Colo. 1998) (same); see also William R. Rapson & Stephen A. Bain, Recreational Waivers in Colorado: Playing at Your Own Risk, 32 Colo. Law. 77, 77 (2003) (noting that “Colorado law generally supports waivers of liability in connection with recreational activities”); James H. Chalat, Colorado Ski Law, 27 Colo. Law. 5, 14 (1998) (noting that “courts generally hold [ski racing] waivers to be enforceable”); Jordan Lipp, Horse Law — A Look at the Equine Statute and Liability Law, 41 Colo. Law. 95, 99 (2012) (“Releases have been upheld in a number of horseback riding cases.”).

Still, Mr. Espinoza submits, his case is categorically different. Yes, Ms. Apolinar signed a document purporting to release the rafting company from all claims of negligence. Yes, Colorado public policy generally permits the release of claims of negligence in recreational pursuits like the one here. But, Mr. Espinoza argues, the release Ms. Apolinar signed should still be held to violate state public policy — it should [*7] still be held to run afoul of the first two Jones factors — because his claim is one for negligence per se rather than common law negligence. He observes that the Colorado River Outfitters Act (CROA) makes it a misdemeanor for rafting companies to operate any raft in a “careless or imprudent manner.” Colo. Rev. Stat. § 33-32-107(2)(b). And from this, he reasons, negligence by rafting companies has become a matter of public concern and a public service within the meaning of the first two Jones factors.

We find ourselves unable to agree for a number of related reasons.

First, we think this argument mistakes the nature of the inquiry called for by the first two Jones factors. [HN5] By their terms, those factors don’t ask whether the activity in question is the subject of some sort of state regulation. Instead, they ask whether the service provided is of “great importance to the public,” a matter of “practical necessity” as opposed to (among other things) a “recreational” one. 623 P.2d at 376-77. And the distinction the Jones factors draw between essential and recreational services would break down pretty quickly if the presence of some state regulation were enough to convert an otherwise obviously “recreational” service into a “practically necessary” [*8] one. After all, state law imposes various rules and regulations on service providers in most every field these days — including on service providers who operate in a variety of clearly recreational fields. See, e.g., Colo. Rev. Stat. § 33-14-116 (snowmobiling); id. § 33-44-104(2) (skiing); id. § 13-21-119(4)(b)(I) (equine activities).

Second, Mr. Espinoza’s argument suggests a firmer analytical line can be drawn between claims of negligence and negligence per se than we think the circumstances here will fairly allow. As we’ve seen, [HN6] Colorado law has long permitted parties to contract away negligence claims in the recreational context. And negligence per se claims often differ very little from their common law cousins: they usually just substitute a common law duty or standard of care with one prescribed by statute and all other elements remain the same. See Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 573 (Colo. 2008). In fact, in the case before us it’s not even clear what duty of care CROA adds to the common law. Mr. Espinoza says the rafting company violated the statutory duty to avoid operating a raft in a “careless or imprudent manner.” Mr. Espinoza points as well to implementing regulations that suggest a company should offer things like a “basic orientation” for rafters and help when accidents occur. [*9] But Mr. Espinoza does not suggest how these provisions create any distinctly new duty of care. Indeed, they appear to be more or less coextensive with [HN7] the preexisting common law standard of care, which requires parties to act with “reasonable care . . . i.e., that which a person of common prudence would use under the circumstances.” Christensen v. Hoover, 643 P.2d 525, 529 (Colo. 1982). And given this it seems hard to see a rational basis on which the law might treat such similar (identical?) claims so differently based merely on how they are pleaded, rewarding the crafty but penalizing the pedestrian pleader.2

2 Though we do not rely on the fact in our analysis above, Colorado authorities did conduct an investigation of the accident in this case pursuant to CROA and ultimately decided not to pursue any sanction.

Third, Mr. Espinoza’s interpretation of CROA would require us to read into that statute a good deal more than it says. [HN8] CROA imposes criminal misdemeanor sanctions for violating the duties it prescribes. It does not speak, one way or the other, to the question of civil liability — let alone suggest that private parties are forbidden from contractually releasing potential negligence claims. Neither [HN9] is it obviously irrational that the [*10] General Assembly might choose to pass legislation about public (criminal) liability but leave private (civil) liability to preexisting common law principles. Indeed, courts generally will not assume that the General Assembly means to displace background common law principles absent some clear legislative expression of that intent. See Robbins v. People, 107 P.3d 384, 387 (Colo. 2005). The General Assembly, too, has shown that — when it wishes — it well knows how to displace background common law norms and preclude the release of civil claims. See, e.g., Stanley v. Creighton Co., 911 P.2d 705, 707-09 (Colo. App. 1996). Given all this, we do not think it our place to adorn the General Assembly’s handiwork with revisions to the common law that it easily could have but declined to undertake for itself.

Finally, we find it noteworthy that Colorado courts faced with similar challenges seem to have resolved them much as we resolve this one today. For example, the General Assembly has adopted a statute holding that “equine professional[s]” may not be held civilly liable for “the inherent risks of equine activities.” Colo. Rev. Stat. § 13-21-119(3). But that statute goes on to state that the immunity it provides does not extinguish civil liability in cases where the equine professional supplied equipment or tack it should have known was faulty or [*11] failed to make reasonable efforts to determine the ability of the rider before the excursion began. Id. § 13-21-119(4)(b)(I). And despite the General Assembly’s express solicitude toward these latter classes of claims, the Colorado Supreme Court has allowed private parties to contract away claims of negligence on both fronts. B & B Livery, 960 P.2d at 135, 137-38. Maybe even more pointedly still, [HN10] since the enactment of CROA and its misdemeanor criminal penalties, various Colorado courts have enforced releases of civil negligence claims obtained by whitewater rafting companies. See, e.g., Lahey, 964 F. Supp. at 1444-46; Forman, 944 P.2d at 563-64. This court has upheld, too, a release a snowboarder gave to a ski area absolving its employees of negligence even when the area’s employee allegedly operated a snowmobile in a negligent manner and a state statute made that very behavior a misdemeanor. See Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093, at *3-5.

In saying this much, we take care to emphasize what we do not mean to say. We do not mean to suggest that some future statute could not — or even that some other current statute might not — preclude the enforcement of releases like the one here. Neither do we mean to suggest that the Colorado Supreme Court could not alter its common law policy with respect to recreational releases. In particular, we [*12] do not pass on the question whether the General Assembly’s enactment of the Colorado Consumer Protection Act (CCPA), Colo. Rev. Stat. §§ 6-1-101 to 6-1-1001, might preclude the enforcement of recreational releases when the plaintiff pleads a valid claim under that statute. See Rapson & Bain, supra, at 77-78 (noting that while Colorado law “generally supports” recreational waivers, it’s an open question whether a statutory CCPA claim can be waived). In this case, we merely hold that the CROA provisions cited to us do not satisfy and do not overrule the first two factors of the common law Jones test.

Of course, that takes us only half way. Having decided that the release survives Jones‘s public-policy factors, we must still consider its case-specific factors. [HN11] The third Jones factor requires us to ask whether “the circumstances and the nature of the service involved indicate that the contract was fairly entered into.” Chadwick, 100 P.3d at 467. Relatedly, the fourth Jones factor addresses the terms of the contract itself, inviting us to “examine[] the actual language of the [release] for legal jargon, length and complication” and any other evidence that a party might not “recognize the full extent of the release provisions.” Id. The district court held that the release before us [*13] satisfied both of these conditions — that it was fairly entered into and clear in its terms. And in the end we find we agree with its assessment on this score too.

Mr. Espinoza trains most of his attention on the third factor. He contends that the rafting company misrepresented the nature of the trip to Ms. Apolinar. He points for support to testimony suggesting that, when Ms. Apolinar first made her reservation, she was told by company representatives and read on its website that the trip was appropriate for beginners and involved at most only class III rapids. He points as well to his expert witness who testified that Seidel’s Suck Hole is really a class IV rapid, not a class III rapid, according to the “International Scale of River Difficulty.”3 But at the same time Mr. Espinoza must acknowledge that another of his witnesses — a state ranger charged with overseeing the stretch of river in question — testified that he believes the trip is indeed appropriate for families with children. So the facts Mr. Espinoza himself offers are mixed at best on whether the rafting company actually ever made a material misstatement about the nature of the trip.4

3 That scale describes class III rapids [*14] as requiring (among other things) “[c]omplex maneuvers in fast current and good boat control in tight passages or around ledges” and notes that “[i]njuries while swimming are rare.” The scale describes class IV rapids as involving “[i]ntense, powerful but predictable rapids requiring precise boat handling in turbulent water. . . . [and] fast maneuvers under pressure” and notes that the “[r]isk of injury to swimmers is moderate to high.”

4 On appeal, Mr. Espinoza offers another theory why the circumstances surrounding the release were unfair. He alleges that the rafting company refused to reschedule the trip and might have refused to refund Ms. Apolinar’s deposit if she declined to sign the release. And this, he says, imposed unfair pressure on her to sign the release. But Mr. Espinoza’s argument along these lines before the district court consisted of only two sentences so it’s not surprising or improper that the district court declined to pass upon it. Neither will we pass on this argument for the first time now, leaving its development instead to future cases where it might prove relevant and more fully presented. See generally Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011).

Still, even if we might assume (without deciding) that the facts here are enough to create [*15] a material dispute of fact regarding whether the rafting company initially misrepresented the nature of the trip, it’s still hard to see how we could say the release was unfairly secured or unclear in its terms — at least within the meaning Colorado law gives to the third and fourth Jones factors. That’s because of what happened next. Whatever the rafting company said about the trip earlier on, when Ms. Apolinar arrived at the outfitter’s office she received a vivid description of the risks she could face. The rafting company provided — and Ms. Apolinar signed — a document titled in part “RAFTING WARNING” explaining that rafting can be “HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH.” The document proceeded to offer a detailed picture of the sorts of problems that could be (and sadly were) encountered: “cold water immersion, hidden underwater obstacles, trees or other above water obstacles, . . . changing and unpredictable currents, drowning, exposure, swimming, overturning, . . . entrapment of feet or other body parts under rocks or other objects . . . .” It added that “THE UNDERSIGNED ACKNOWLEDGE[S] AND UNDERSTAND[S] THAT THE DESCRIPTION OF THE RISKS LISTED ABOVE IS NOT COMPLETE AND THAT PARTICIPATING [*16] IN THE ACTIVITY MAY BE DANGEROUS AND MAY INCLUDE OTHER RISKS.” The document provided, too, that its representations and warnings about the trip superseded any prior “communications or representations” on these subjects. Neither can there be any question that the document clearly communicated that a signature would release civil claims for liability. At the outset it directed Ms. Apolinar to “PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY & WAIVER OF LEGAL RIGHTS.” And later it provided that “THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASE[S], FOREVER DISCHARGE[S], AND AGREE[S] NOT TO SUE . . . with respect to any and all claims and causes of action . . . which could be asserted [by] the Undersigned in connection with . . . the Activity.”

This disclosure and release suffices to satisfy the third and fourth Jones factors. To be sure, we can imagine other states might choose to hold circumstances and printed forms like these insufficiently fair or clear. But [HN12] Colorado courts have repeatedly emphasized that individuals engaged in recreational activities are generally expected to read materials like these, and because recreational businesses do not provide “essential” services of “practical [*17] necessity” individuals are generally free to walk away if they do not wish to assume the risks described. See, e.g., Jones, 623 P.2d at 377-78. Particularly where, as here, the person confronted with the release is competent and reasonably educated. Chadwick, 100 P.3d at 469. Indeed, Colorado courts and this court have consistently found releases provided at the outset of a recreational activity and containing language very much like the one now before us sufficient as a matter of law to supply a fair and full warning within the meaning of the latter two Jones factors. See, e.g., Jones, 623 P.2d at 377-78; Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1274-76 (10th Cir. 1997); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 782, 785 (Colo. 1989); Chadwick, 100 P.3d at 468-69.

As the district court recognized, too, this resolution of the third and fourth Jones factors also resolves Mr. Espinoza’s fraud claim. [HN13] To make out a claim for fraud in Colorado, a plaintiff must establish actual and reasonable reliance on a false statement; a party cannot — as a matter of law — continue to rely on a previously expressed false statement after the truth is aired. And, of course, we have just found that the rafting company’s written warnings accomplished just that — adequately airing the truth about the nature of the risks Ms. Apolinar faced. Neither do we see how we might arrive at a different result just because this claim is denominated [*18] in fraud rather than negligence. The inquiries prescribed for us by law are virtually indistinguishable (was the truth fairly and fully disclosed?), the facts are the same (the release’s warnings), and it follows that the result should be the same. See Vinton v. Virzi, 269 P.3d 1242, 1247, 2012 CO 10, 2012 CO 10 (Colo. 2012) (holding if a party “has access to information” that “would have led to the true facts, that party has no right to rely on a [prior] false representation”); Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458, 462 (Colo. 1937) (same).

Enduring the death of a close family member in tragic circumstances is among life’s bitterest challenges. The loss Ms. Apolinar’s family has suffered is beyond words. But our charge is to follow the law. And in this case the law is just as the district court described it, permitting the enforcement of the release in this case and requiring the entry of summary judgment.

Affirmed.5

5 We decline Mr. Espinoza’s request for certification of his negligence per se claim to the Colorado Supreme Court for decision. Not only is the request fleetingly made (three sentences in the middle of a brief arguing state law unambiguously supports his position), [HN14] we generally do not trouble state supreme courts where, as here, existing state law provides “a reasonably clear and principled course” [*19] we may follow to resolve the case at hand. Pino v. United States, 507 F.3d 1233, 1236 (10th Cir. 2007).

HARTZ, Circuit Judge, concurring and dissenting:

I fully join all the opinion except the discussion of the third Jones factor. I respectfully dissent, however, on that factor. In my view, a jury must resolve whether Ms. Apolinar was misled about the danger of the rapids. Although the warning provided to her at the outfitter’s office listed all the potential risks that she would face, the description of the rapids is what would convey the probability of those risks. It is not enough to list a risk if the customer has been misled about its probability.


Colorado River Outfitters Act

COLORADO REVISED STATUTES

TITLE 33. PARKS AND WILDLIFE

OUTDOOR RECREATION

ARTICLE 32. RIVER OUTFITTERS

33-32-101. Legislative declaration.. 1

33-32-102. Definitions. 2

33-32-103. Powers and duties of the commission – rules. 3

33-32-103.5. Variances. 3

33-32-104. License required – fee. 3

33-32-105. Minimum qualifications and conditions for a river outfitter’s license. 4

33-32-105.5. Minimum qualifications of guides, trip leaders, and guide instructors. 4

33-32-106. Equipment required – employees required to meet minimum qualifications. 5

33-32-107. River outfitters – prohibited operations – penalties. 5

33-32-108. Enforcement 6

33-32-109. Denial, suspension, or revocation of license – disciplinary actions. 8

33-32-110. Advisory committee – repeal 9

33-32-111. Fees – river outfitters cash fund. 9

33-32-112. Repeal of article. 9

C.R.S. 33-32-101 (2015)

33-32-101. Legislative declaration

The general assembly declares that it is the policy of this state to promote and encourage residents and nonresidents alike to participate in the enjoyment and use of the rivers of this state and, to that end, in the exercise of the police powers of this state for the purpose of safeguarding the health, safety, welfare, and freedom from injury or danger of such residents and nonresidents, to license and regulate those persons who provide river-running services in the nature of equipment or personal services to such residents and nonresidents for the purpose of floating on rivers in this state unless the provider of such river-running services is providing such river-running services exclusively for family or friends. It is not the intent of the general assembly to interfere in any way with private land owner rights along rivers or to prevent the owners of whitewater equipment from using said equipment to accommodate friends when no consideration is involved; nor is it the intent of the general assembly to interfere in any way with the general public’s ability to enjoy the recreational value of state rivers when the services of river outfitters are not utilized or to interfere with the right of the United States to manage public lands and waters under its control. The general assembly recognizes that river outfitters, as an established business on rivers flowing within and without this state, make a significant contribution to the economy of this state and that the number of residents and nonresidents who are participating in river-running is steadily increasing.

HISTORY: Source: L. 84: Entire article added, p. 928, § 1, effective May 9.L. 88: Entire section amended, p. 1169, § 1, effective October 1.L. 94: Entire section amended, p. 1226, § 1, effective, July 1.

33-32-102. Definitions

As used in this article, unless the context otherwise requires:

(1) “Advertise” or “advertisement” means any message in any printed materials or electronic media used in the marketing and messaging of river outfitter operations.

(1.4) and (2) Repealed.

(3) “Guide” means any individual, including but not limited to subcontractors, employed for compensation by any river outfitter for the purpose of operating vessels.

(4) “Guide instructor” means any qualified guide whose job responsibilities include the training of guides.

(5) “Person” means any individual, sole proprietorship, partnership, corporation, nonprofit corporation or organization as defined in section 13-21-115.5 (3), C.R.S., limited liability company, firm, association, or other legal entity either located within or outside of this state.

(5.5) (a) “Regulated trip” means any river trip for which river-running services are provided which has been the subject of an advertisement or for which a fee has been charged regardless of whether such fee is:

(I) Charged exclusively for the river trip or as part of a packaged trip, recreational excursion, or camp; or

(II) Calculated to monetarily profit the river outfitter or is calculated merely to offset some or all of the actual costs of the river trip.

(b) “Regulated trip” does not include a trip in which a person is providing river-running services exclusively for family or friends as part of a social gathering of such family or friends.

(6) “River outfitter” means any person advertising to provide or providing river-running services in the nature of facilities, guide services, or transportation for the purpose of river-running; except that “river outfitter” does not include any person whose only service is providing motor vehicles, vessels, and other equipment for rent, any person whose only service is providing instruction in canoeing or kayaking skills, or any person who is providing river-running services exclusively for family or friends.

(7) “Trip leader” means any guide whose job responsibilities include being placed in charge of a river trip.

(8) “Vessel” means every description of watercraft used or capable of being used as a means of transportation of persons and property on the water, other than single-chambered air-inflated devices or seaplanes.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: (3) amended, (4) and (5) R&RE, and (6) to (8) added, pp. 1169, 1170, § § 2, 3, effective October 1.L. 94: (1), (5), and (6) amended and (1.4) and (5.5) added, p. 1227, § 2, effective July 1.L. 2010: (1) amended, (HB 10-1221), ch. 353, p. 1641, § 4, effective August 11.L. 2012: (1.4) and (2) repealed, (HB 12-1317), ch. 248, p. 1229, § 70, effective June 4.

33-32-103. Powers and duties of the commission – rules

The commission shall promulgate rules to govern the licensing of river outfitters, to regulate river outfitters, guides, trip leaders, and guide instructors, to ensure the safety of associated river-running activities, to establish guidelines to enable a river outfitter, guide, or trip leader to make a determination that the condition of the river constitutes a hazard to the life and safety of certain persons, and to carry out the purposes of this article. The commission may promulgate rules specifically outlining the procedures to be followed by the commission and by the enforcement section of the division in the event of a death or serious injury during a regulated trip. The commission shall e-mail a notice of every proposed rule to each licensee. The commission shall adopt rules regarding notification to outfitters of certain division personnel changes within ten days of the change and safety training standards and customer and outfitter interaction training standards for division rangers who monitor regulated trips.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: Entire section amended, p. 1170, § 4, effective October 1.L. 94: Entire section amended, p. 1228, § 3, effective July 1.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1641, § 5, effective August 11.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1229, § 71, effective June 4.

33-32-103.5. Variances

The director may grant variances from rules adopted by the commission pursuant to section 33-32-103 to any river outfitter on a case-by-case basis if the director determines that the health, safety, and welfare of the general public will not be endangered by the issuance of such variance.

HISTORY: Source: L. 94: Entire section added, p. 1228, § 4, effective July 1.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1229, § 72, effective June 4.

33-32-104. License required – fee

(1) No person shall act in the capacity of a paid river outfitter or advertise or represent himself or herself as a river outfitter in this state without first obtaining a river outfitter’s license in accordance with rules prescribed by the commission.

(2) An applicant for a river outfitter’s license shall meet the minimum qualifications pursuant to section 33-32-105 and shall apply on a form prescribed by the commission. All applicants shall pay a nonrefundable license fee in an amount determined by the commission, which fee shall be adequate to cover the expenses incurred for inspections, licensing, and enforcement required by this article, and shall renew such license pursuant to a schedule adopted by the commission upon payment of the fee. License terms shall not exceed three years. The commission may offer licenses that differ in the length of their terms and may stagger the length of license terms so that approximately equal numbers of licensees renew their licenses each year.

(3) Every river outfitter’s license shall, at all times, be conspicuously placed on the premises set forth in the license.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: (3) added, p. 1170, § 5, effective October 1.L. 2010: (1) and (2) amended, (HB 10-1221), ch. 353, p. 1641, § 6, effective August 11.L. 2012: (1) and (2) amended, (HB 12-1317), ch. 248, p. 1230, § 73, effective June 4.

33-32-105. Minimum qualifications and conditions for a river outfitter’s license

(1) A river outfitter’s license may be granted to any river outfitter, either within or without this state, meeting the following minimum qualifications and conditions:

(a) The river outfitter, if a corporation, shall be incorporated pursuant to the laws of this state or duly qualified to do business in this state.

(b) The river outfitter shall submit to the commission evidence of liability insurance in the minimum amount of three hundred thousand dollars’ combined single limit for property damage and bodily injury.

(c) The river outfitter shall meet the safety standards for river-running established by the commission by regulation.

HISTORY: Source: L. 84: Entire article added, p. 929, § 1, effective May 9.L. 88: Entire section R&RE, p. 1170, § 6, effective October 1.L. 2012: (1)(b) and (1)(c) amended, (HB 12-1317), ch. 248, p. 1230, § 74, effective June 4.

33-32-105.5. Minimum qualifications of guides, trip leaders, and guide instructors

(1) Individuals providing the services of guides, trip leaders, or guide instructors shall have the following minimum qualifications and such additional qualifications as the commission may establish by rule:

(a) Guides shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have fifty hours of training on the river as a guide from a qualified guide instructor.

(b) Trip leaders shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have logged at least five hundred river miles, of which at least two hundred fifty river miles shall have been logged while acting as a qualified guide and no more than two hundred fifty river miles shall have been logged while acting as a guide on nonregulated trips. Miles from nonregulated trips shall be documented and signed by the trip leader under penalty of perjury, and the licensee shall retain the documents during the term of the trip leader’s employment.

(c) Guide instructors shall be eighteen years of age or older, possess a valid standard first-aid card, be trained in cardiopulmonary resuscitation, and have logged at least fifteen hundred river miles, of which at least seven hundred fifty river miles shall have been logged while acting as a qualified guide.

(2) (Deleted by amendment, L. 2010, (HB 10-1221), ch. 353, p. 1642, § 7, effective August 11, 2010.)

HISTORY: Source: L. 88: Entire section added, p. 1171, § 7, effective October 1.L. 94: Entire section amended, p. 1228, § 5, effective July 1.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1642, § 7, effective August 11.L. 2012: IP(1) amended, (HB 12-1317), ch. 248, p. 1230, § 75, effective June 4.

33-32-106. Equipment required – employees required to meet minimum qualifications

(1) All licensed river outfitters shall provide the river-outfitting equipment required by rules promulgated by the commission, and said equipment shall be in a serviceable condition for its operation as required by the rules promulgated by the commission.

(2) All river outfitters who employ or contract with guides, trip leaders, or guide instructors shall employ or contract only with such individuals who meet the qualifications provided in section 33-32-105.5 (1) and provided by those rules promulgated by the commission.

HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9.L. 88: Entire section amended, p. 1171, § 8, effective October 1.L. 2012: Entire section amended, (HB 12-1317), ch. 248, p. 1230, § 76, effective June 4.

33-32-107. River outfitters – prohibited operations – penalties

(1) (a) No river outfitter shall operate a river-outfitting business without a valid license as prescribed by section 33-32-104 or without insurance as provided in section 33-32-105 (1) (b). Any river outfitter that violates this paragraph (a):

(I) Commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.;

(II) Is liable for an administrative penalty of five times the annual licensing fee established pursuant to section 33-32-104 (2).

(b) If the river outfitter is a corporation, violation of this subsection (1) shall result in the officers of said corporation jointly and severally committing a class 2 misdemeanor, and said officers shall be punished as provided in section 18-1.3-501, C.R.S.

(2) It is unlawful for any river outfitter, guide, trip leader, or guide instructor to:

(a) Violate the safety equipment provisions of section 33-13-106. Any person who violates the provisions of this paragraph (a) is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of one hundred dollars; except that any person who fails to have one personal flotation device for each person on board as required by section 33-13-106 (3) (a) commits a class 3 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.

(b) Operate a vessel in a careless or imprudent manner without due regard for river conditions or other attending circumstances, or in such a manner as to endanger any person, property, or wildlife. Any person who violates the provisions of this paragraph (b) is guilty of a class 3 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.

(c) Operate a vessel with wanton or willful disregard for the safety of persons or property. Any person who violates the provisions of this paragraph (c) is guilty of a class 2 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.

(3) (Deleted by amendment, L. 94, p. 1229, § 6, effective July 1, 1994.)

(4) (a) No river outfitter or guide shall operate or maintain physical control of or allow any other person to operate or maintain physical control of a vessel on a regulated trip if such river outfitter, guide, or person is under the influence of alcohol or any controlled substance or any combination thereof, as specified in section 33-13-108.1.

(b) Any person who violates this subsection (4) commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9; (2)(a) amended, p. 1125, § 46, effective June 7.L. 88: (1), IP(2), and (3) amended, p. 1171, § 9, effective October 1.L. 94: (3) amended and (4) added, p. 1229, § 6, effective July 1.L. 97: (2)(a) amended, p. 1607, § 7, effective June 4.L. 2002: (1), (2), and (4)(b) amended, p. 1545, § 299, effective October 1.L. 2010: (1) amended, (HB 10-1221), ch. 353, p. 1642, § 8, effective August 11.

Cross references: For the legislative declaration contained in the 2002 act amending subsections (1), (2), and (4)(b), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Law reviews. For comment, “The Public Trust Doctrine — A Tool for Expanding Recreational Rafting Rights in Colorado”, see 57 U. Colo. L. Rev. 625 (1986).

33-32-108. Enforcement

(1) (a) Every peace officer, as defined in this section, has the authority to enforce the provisions of this article and in the exercise of such authority is authorized to stop and board any vessel.

(b) As used in this section, “peace officer” means any division of parks and wildlife officer or any sheriff or city and county law enforcement officer certified by the peace officers standards and training board pursuant to part 3 of article 31 of title 24, C.R.S.

(2) (a) Any actual expenses incurred by a governmental entity for search and rescue efforts stemming from any river running activity conducted for consideration by a river outfitter pursuant to the provisions of this article shall be reimbursed by said river outfitter. Such expenses shall include but not be limited to hours worked, fuel, a reasonable fee for use of equipment, and equipment repair or replacement costs, if any.

(b) Pursuant to paragraph (a) of this subsection (2), any expenses incurred by governmental entities stemming from search and rescue efforts that are reimbursed by a river outfitter shall be distributed as follows:

(I) If to local law enforcement agencies, on a pro rata basis in proportion to the amount of assistance rendered thereby;

(II) If to the division of parks and wildlife, one-half of the moneys shall be credited to the parks and outdoor recreation cash fund, created in section 33-10-111, and one-half shall be credited to the wildlife cash fund, created in section 33-1-112.

(III) (Deleted by amendment, L. 2011, (SB 11-208), ch. 293, p. 1393, § 24, effective July 1, 2011.)

(3) (a) (I) If an authorized representative of the division conducts an inspection or investigation and determines that any provision of this article or any regulation promulgated pursuant to this article has been violated and that such violation creates or may create an emergency condition which may have a significant adverse effect on the health, safety, or welfare of any person, then such authorized representative shall immediately issue an order to the violating party to cease and desist the violating activity.

(II) Any order issued pursuant to this paragraph (a) shall set forth:

(A) The section of this article or the regulation promulgated pursuant to this article allegedly violated;

(B) The factual basis for the allegation of a violation; and

(C) A mandate that all violating activities cease immediately.

(III) (A) The recipient of any cease and desist order issued pursuant to this paragraph (a) may request a hearing to determine whether a violation of this article or of any regulation promulgated pursuant to this article has actually occurred if such request is made in writing within thirty days after the date of the service of the cease and desist order.

(B) Any hearing conducted pursuant to this subparagraph (III) shall be in accordance with article 4 of title 24, C.R.S.

(b) If a person fails to comply with a cease and desist order issued pursuant to paragraph (a) of this subsection (3), the director may request the attorney general or the district attorney for the judicial district in which the alleged violation occurred to bring an action for a temporary restraining order and for injunctive relief to enforce such cease and desist order.

(c) No stay of a cease and desist order may be issued until a hearing at which all parties are present has been held.

HISTORY: Source: L. 84: Entire article added, p. 930, § 1, effective May 9.L. 94: Entire section amended, p. 1229, § 7, effective July 1.L. 2011: (1)(b), IP(2)(b), (2)(b)(II), and (2)(b)(III) amended, (SB 11-208), ch. 293, p. 1393, § 24, effective July 1.L. 2012: (1)(b) amended, (HB 12-1283), ch. 240, p. 1136, § 54, effective July 1.

Cross references: For the legislative declaration in the 2012 act amending subsection (1)(b), see section 1 of chapter 240, Session Laws of Colorado 2012.

33-32-109. Denial, suspension, or revocation of license – disciplinary actions

(1) The commission may deny, suspend, or revoke a river outfitter license, place a licensed river outfitter on probation, or issue a letter of admonition to a licensed river outfitter if the applicant or holder:

(a) Violates section 33-32-105 or 33-32-106 or uses fraud, misrepresentation, or deceit in applying for or attempting to apply for licensure;

(b) Unlawfully acts as a river outfitter if such violation results in a conviction;

(c) Advertises as a river outfitter in this state without first obtaining a river outfitter license;

(d) Violates any provision of law regulating the practice of river outfitting in another jurisdiction if such violation resulted in disciplinary action against the applicant or holder. Evidence of such disciplinary action shall be prima facie evidence for the possible denial of a license or other disciplinary action in this state if the violation resulting in the disciplinary action in such other jurisdiction would be grounds for disciplinary action in this state.

(e) Violates section 18-4-503 or 18-4-504, C.R.S., resulting in two or more second or third degree criminal trespass convictions within any three- to five-year period while acting as a river outfitter or guide; except that the commission shall be governed by section 24-5-101, C.R.S., when considering any such conviction;

(f) Violates section 33-32-105.5 (1) by employing any person as a guide who fails to meet the requirements of such section; or

(g) Violates any order of the division or commission or any other provision of this article or any rules promulgated under this article.

(2) A plea of nolo contendere or a deferred prosecution shall be considered a violation for the purposes of this section.

(3) (a) Any proceeding to deny, suspend, or revoke a license granted under this article or to place a licensee on probation shall be pursuant to sections 24-4-104 and 24-4-105, C.R.S. Such proceeding may be conducted by an administrative law judge designated pursuant to part 10 of article 30 of title 24, C.R.S.

(b) Any proceeding conducted pursuant to this subsection (3) shall be deemed final for purposes of judicial review. Any appeal of any such proceeding shall be made to the court of appeals pursuant to section 24-4-106 (11), C.R.S.

(4) The commission may deny an application for a river outfitter license or a renewal of a river outfitter’s license if the applicant does not meet the requirements specified in section 33-32-105 or 33-32-106.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 88: Entire section amended, p. 1172, § 10, effective October 1.L. 94: Entire section amended, p. 1230, § 8, effective July 1.L. 2012: IP(1), (1)(e), (1)(g), and (4) amended, (HB 12-1317), ch. 248, p. 1231, § 77, effective June 4.

33-32-110. Advisory committee – repeal

(1) The commission shall appoint a river outfitter advisory committee, consisting of two river outfitters and one representative of the division. The committee shall review and make recommendations concerning rules promulgated and proposed pursuant to this article.

(2) (a) This section is repealed, effective July 1, 2019.

(b) Prior to its repeal, the advisory committee shall be reviewed as provided for in section 2-3-1203, C.R.S.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 86: Entire section amended, p. 423, § 54, effective March 26.L. 88: (2)(a) amended, p. 1172, § 11, effective October 1.L. 89: Entire section repealed, p. 1147, § 3, effective April 6.L. 94: Entire section RC&RE, p. 1232, § 9, effective July 1.L. 2000: Entire section repealed, p. 185, § 2, effective July 1.L. 2010: Entire section RC&RE, (HB 10-1221), ch. 353, p. 1643, § 9, effective August 11.L. 2012: (1) amended, (HB 12-1317), ch. 248, p. 1231, § 78, effective June 4.

33-32-111. Fees – river outfitters cash fund

All fees collected under this article shall be transmitted to the state treasurer who shall credit the same to the river outfitters cash fund, which fund is hereby created. The general assembly shall make annual appropriations from such fund for the direct and indirect costs of administration of this article.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 94: Entire section amended, p. 1232, § 10, effective July 1.

33-32-112. Repeal of article

This article and the licensing function of the division are repealed, effective September 1, 2019. Prior to such termination, the licensing function shall be reviewed as provided for in section 24-34-104, C.R.S.

HISTORY: Source: L. 84: Entire article added, p. 931, § 1, effective May 9.L. 88: Entire section amended, p. 931, § 20, effective April 28; entire section amended p. 1172, § 12, effective October 1.L. 94: Entire section amended, p. 1232, § 11, effective July 1.L. 2004: Entire section amended, p. 297, § 3, effective August 4.L. 2010: Entire section amended, (HB 10-1221), ch. 353, p. 1640, § 3, effective August 11.

Editor’s note: Amendments to this section by House Bill 88-1036 and House Bill 88-1138 were harmonized.


Summer 2015 Commercial Fatalities

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 November 30, 2015. Thanks.

Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

3/2

Backcountry Skiing

AK

Chugach Mountains

Calving Glacier

28

M

 

http://rec-law.us/1CpcDtI

5/22

Whitewater Rafting

CO

Clear Creek

Raft Flipped

47

F

M258.5

rec-law.us/1I3HWx7

5/31

Whitewater Rafting

MT

Gallatin River

Raft Flipped

43

M

House Rock

rec-law.us/1GhQpwm

6/5

Whitewater Rafting

UT

Colorado River, Westwater

Raft Flipped

50

M

Funnel Falls

rec-law.us/1HduOnS

6/10

Whitewater Rafting

CO

Arkansas River, Brown’s Canyon,

Raft high sided

11

M

Big Drop

rec-law.us/1GwG51X

6/11

Zip Line

NC

Camp Cheerio

 

12

F

 

rec-law.us/1FdpyKX

 

Whitewater Rafting

CO

Arkansas River

 

52

M

Salt Lick

rec-law.us/1KRwN2b

 

Whitewater Rafting

CO

Animas

 

 

M

 

 

6/13

Whitewater Rafting

CO

Roaring Fork River

 

44

F

 

rec-law.us/1OgnuIj

6/22

Hiking on Whitewater Rafting Trip

AZ

Colorado River

Missing after hike

22

M

Pumpkin Springs, Swamper on trip

rec-law.us/1efzCNB

6/23

Wakeboarding

GA

Carters Lake

 

23

M

 

rec-law.us/1e3wdBF

 

Whitewater Rafting

NM

Rio Grande

 

52

M

 

rec-law.us/1LDliwP

7/4

Whitewater Rafting

CO

Clear Creek

 

20

M

 

rec-law.us/1LWmk7l

7/6

Whitewater Rafting

CO

Poudre River

Medical

76

M

 

rec-law.us/1NPBLeT

7/13

Ropes Course

SC

Freebird

 

16

F

 

rec-law.us/1OdEFep

7/14

Zip Line

UT

Zip line

Fell off platform

54

M

Grabbed guest who pulled him off

rec-law.us/1CE8fIS

7/18

Whitewater Rafting

CO

Dizzy Lizzy

Fell out of raft

35

M

 

rec-law.us/1LkODwd

9/25/15

Zip Line

MI

Huron County

Fell from zip line

85

M

 

rec-law.us/1R93WYF

9/27

Cycling Time Trial

CA

Yolo County

Hit by car

57

M

County Road 19, west of Interstate 505 near Esparto

rec-law.us/1L1om4S

If you are unable to read the chart, email me at jim@rec-law.us and I’ll send it to you as a PDF.

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.

What do you think? Leave a comment.

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

Copyright 2015 Recreation Law (720) Edit Law

What do you think? Leave a comment.

clip_image002 

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Summer, 2015, Whitewater Rafting, Glacier, Calving, Flipped, Chugach Powder Guides, All American Adventures, Geyser Whitewater Expedition, Colorado River, Westwater Canyon, Funnel Falls, Bay Shore Camp

 

 


Summer 2015 Commercial Fatalities

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 September 25, 2015. Thanks.

Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

3/2

Backcountry Skiing

AK

Chugach Mountains

Calving Glacier

28

M

 

http://rec-law.us/1CpcDtI

5/22

Whitewater Rafting

CO

Clear Creek

Raft Flipped

47

F

M258.5

rec-law.us/1I3HWx7

5/31

Whitewater Rafting

MT

Gallatin River

Raft Flipped

43

M

House Rock

rec-law.us/1GhQpwm

6/5

Whitewater Rafting

UT

Colorado River, Westwater

Raft Flipped

50

M

Funnel Falls

rec-law.us/1HduOnS

6/10

Whitewater Rafting

CO

Arkansas River, Brown’s Canyon,

Raft high sided

11

M

Big Drop

rec-law.us/1GwG51X

6/11

Zip Line

NC

Camp Cheerio

 

12

F

 

rec-law.us/1FdpyKX

 

Whitewater Rafting

CO

Arkansas River

 

52

M

Salt Lick

rec-law.us/1KRwN2b

 

Whitewater Rafting

CO

Animas

 

 

M

 

 

6/13

Whitewater Rafting

CO

Roaring Fork River

 

44

F

 

rec-law.us/1OgnuIj

6/22

Hiking on Whitewater Rafting Trip

AZ

Colorado River

Missing after hike

22

M

Pumpkin Springs, Swamper on trip

rec-law.us/1efzCNB

6/23

Wakeboarding

GA

Carters Lake

 

23

M

 

rec-law.us/1e3wdBF

 

Whitewater Rafting

NM

Rio Grande

 

52

M

 

rec-law.us/1LDliwP

7/4

Whitewater Rafting

CO

Clear Creek

 

20

M

 

rec-law.us/1LWmk7l

7/6

Whitewater Rafting

CO

Poudre River

Medical

76

M

 

rec-law.us/1NPBLeT

7/13

Ropes Course

SC

Freebird

 

16

F

 

rec-law.us/1OdEFep

7/14

Zip Line

UT

Zip line

Fell off platform

54

M

Grabbed guest who pulled him off

rec-law.us/1CE8fIS

7/18

Whitewater Rafting

CO

Dizzy Lizzy

Fell out of raft

35

M

 

rec-law.us/1LkODwd

9/25

Zip Line

MI

Huron County

Fell from zip line

85

M

 

rec-law.us/1R93WYF

If you are unable to read the chart, email me at jim@rec-law.us and I’ll send it to you as a PDF.

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.

What do you think? Leave a comment.

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

Copyright 2015 Recreation Law (720) Edit Law

What do you think? Leave a comment.

clip_image002 

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Summer, 2015, Whitewater Rafting, Glacier, Calving, Flipped, Chugach Powder Guides, All American Adventures, Geyser Whitewater Expedition, Colorado River, Westwater Canyon, Funnel Falls, Bay Shore Camp

 

 


Poorly written release and allegation of duress push whitewater rafting ligation to Pennsylvania Appellate court.

Release probably not written by an attorney, signed in one state for rafting in another state and probably one where the economics suggest an insurance company is playing plaintiff.

Mcdonald v. Whitewater Challengers, Inc., 2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

State: Pennsylvania

Plaintiff: Erin Mcdonald

Defendant: Whitewater Challengers, Inc., and Whitewater Challengers Outdoor Adventure Center, T/D/B/A Whitewater Challengers, Inc.

Plaintiff Claims: a. Failing to provide a river guide / instructor in plaintiff’s boat;

b. Failing to provide a properly inflated raft;

c. Failing to advise Plaintiff on the grade and / or class of the whitewater rapids;

d. Failing to properly instruct Plaintiff on how to safely and effectively maneuver fast and difficult rapids; and

e. Allowing an unsafe number of inexperienced rafters to operate a raft.

Defendant Defenses: Release

Holding: For Defendants

Year: 2015

The plaintiff was a teacher at a school that brought 72 kids whitewater rafting with the defendant on the Lehigh River. The school was located, and the plaintiff lived in New York. The defendant was located and the Lehigh River, where the rafting occurred, was in Pennsylvania.

While still at work two days before the trip her supervisor handed a release which she signed. The release had a venue clause which means any lawsuit must be in Pennsylvania but not a jurisdiction clause.

While rafting the plaintiff’s boat struck a rock ejecting the plaintiff from the raft which injured her.

The plaintiff and defendant filed various motions prior to trial. The plaintiff wanted New York law to apply because she had signed the release in New York and was from New York. (The plaintiff wanted the suit brought under New York law because New York does not recognize releases. See States that do not Support the Use of a Release.) The defendant wanted Pennsylvania law to apply, which generally upholds releases.

The court ruled against both parties and denied the release because the plaintiff made an allegation that she was forced to sign the release (duress) therefore, the release should be void. The trial court approved a motion to appeal these issues prior to trial and the appellate court accepted the appeal.

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

The plaintiff started her argument with three theories on the location where the release was signed was the proper jurisdiction for interpreting the law, New York.  

The plaintiff also argued that because the defendant did not have a jurisdiction clause in its release, then obviously the defendant wanted New York law to apply.

Finally, she argued that because her medical bills and treatment would be generated and done in New York that law should apply.

She maintains that because she signed the release in New York, the contract was formed in New York. As a New York resident, McDonald asserts she is entitled to the benefit of New York law. McDonald claims that if Whitewater intended for Pennsylvania law to apply, then it should have included such a clause in its release. She points out that most of her medical treatment occurred in New York and that the New York State Insurance Fund has an interest in recouping her lost wages and medical expenses.

The court started its examination of the law to be applied by first looking at whether tort law or contract law applied. Tort law is the law of injuries and has different requirements to prove jurisdictional issues than contract law, which is what a release is. The court found that contract law applied without much analysis on how it came to that decision.

The court then looked at how a conflict of law’s decision was to be made by the courts when deciding in a contract basis where the contract is silent on the issue of jurisdiction.

…the first step in a choice of law analysis under Pennsylvania law is to determine whether [an actual] conflict exists between the laws of the competing states. If no [actual] conflict exists, further analysis is unnecessary. An actual conflict exists if “there are relevant differences between the laws.

The analysis of what law applies; New York or Pennsylvania is extensive. If only one state would be harmed (the interests of the party from that state), then the issue is a false conflict. If the interests of both states would be harmed (the residents of both states would be harmed) by the decision, then the issue is a true conflict issue. “In such a situation, the court must apply the law of the state whose interests would be harmed if its law were not applied.”

A third situation would exist if the parties of neither state would be harmed. This is called a “neither jurisdiction” issue. This occurs when the law of both states is identical.

In sum, in Pennsylvania, a conflict-of-law analysis not involving a statutory or contractual choice of law clause, first requires determining whether the laws in question actually conflict. If relevant differences between the laws exist, then we next classify the actual conflict as a “true conflict,” “false conflict,” or “unprovided-for conflict.”

Instantly, a New York statute voids clauses immunizing recreational facilities from liability for negligence because they violate New York’s public policy. Pennsylvania, however, recognizes the validity of such exculpatory clauses when they govern voluntary and hazardous recreational activities.

The court determined that this is a true conflict case where both parties would be harmed, based on their desire for the jurisdiction to be applied in their state.

The next issue once a true conflict has been determined is for the court to determine who (what state) would be harmed the most by a decision. “We thus ascertain whether New York “or Pennsylvania has the greater interest in the application of its law to the question now before us.

The actual analysis came down to how the court looked at the issues.

But, comparable to the insurance policy in Walter, the instant release was executed for the purpose of protecting Whitewater, a Pennsylvania business that “had the right to expect that [the release] conformed to [Pennsylvania] law and that the laws of [Pennsylvania] would apply in interpreting the [release].” “[I]t seems only fair to permit” Whitewater to rely on Pennsylvania law when it acted within Pennsylvania. Whitewater should not be placed in jeopardy of liability exceeding that created by Pennsylvania law just because McDonald is a visitor from New York, a state offering higher protection.

The court decided that the law of Pennsylvania would apply. Because the activity where the accident occurred giving rise to the litigation occurred in Pennsylvania the court determined Pennsylvania law would control.

After carefully weighing the sovereign interests at stake, which include contacts establishing the significant relationships with each sovereign, we hold that Pennsylvania has the greater interest in the application of its law to this case.

The court then went into the analysis of the plaintiff’s claim the release should be thrown out because it was signed under duress.

[McDonald] had testified in her deposition that on May 17, 2006, the Headmaster of the School of the Holy Child handed the Release form to [McDonald], while she was between classes and walking through the school hallway and told her to sign it, since she would be one of the chaperones for the students on the rafting trip.

[McDonald] alleges she signed the Release form without reading it.

The plaintiff stated she did not read the release; however, because she had been on a previous whitewater trip.

The plaintiff next argued that she had no choice but to sign the release because it was required by her job. The court then looked at the issues the plaintiff faced in her annual performance evaluations and found that she would not suffer financially if she had not gone on the trip, therefore, she could not claim she was forced to sign the release.

The defendant argued that it did not compel or force the plaintiff to sign the release. If anyone did, her employer did. Since her employer was not a party to the contract, the release, then there could not be any duress.

To constitute duress or business compulsion there must be more than a mere threat which might possibly result in injury at some future time, such as a threat of injury to credit in the indefinite future. It must be such a threat that, in conjunction with other circumstances and business necessity, the party so coerced fears a loss of business unless he does so enter into the contract as demanded.

Because the defendant was not the party “forcing” the plaintiff to sign she could walk away from the release.

Instantly, we frame Whitewater’s question as whether one party to a contract can invoke duress when that duress was allegedly imposed by a non-party and not by the other party to the contract. More precisely, we examine whether McDonald can void the release by claiming the School of the Holy Child economically compelled her to sign the release with Whitewater. McDonald’s presumption is that economic compulsion, i.e., duress, by a non-party to a contract can be “transferred.”

Because the plaintiff was free to walk away from the rafting trip and consequently, the release, the court agreed with the defendant and found there was no duress. “It follows that the School of the Holy Child could not elicit the assent of McDonald by duress.”

Nor did the plaintiff ever claim that the defendant compelled her to sign the release, the only party that a claim of duress against whom the claim could be found. The defendant provided recreational services, which are not something that a claim of duress can be used.

Because a release is not a contract of adhesion, the plaintiff was not forced to sign it.

Thus, an exculpatory clause is not typically analyzed within the framework of whether it is a contract of adhesion. (“The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”).

The court found that the plaintiff could not be compelled by anyone and was not compelled by the defendant to sign the release.

The court then looked at whether the release was viable under Pennsylvania law.

It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.

If the release is found to be valid, it must still be examined under Pennsylvania to see if it meets four more tests.

…unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

The court looked at Pennsylvania law and found releases were valid for inherently dangerous sporting activities.

Regarding the first element needed for a valid exculpatory clause, Pennsylvania courts have affirmed exculpatory releases for “skiing and other inherently dangerous sporting activities,” such as snowtubing and motorcycle racing. Other activities include automobile racing, paintballing, and whitewater rafting. Thus, Pennsylvania courts have held exculpatory clauses pertaining to inherently dangerous sporting activities do not “contravene any policy of the law.”

The court also found the release would be valid if it was between two parties for their own private affairs.

With respect to the second element, our Supreme Court held “[t]he validity of a contractual provision which exculpates a person from liability for his own acts of negligence is well settled if the contract is between persons relating entirely to their own private affairs.”

The court then examined the release and found it spells out the intention of the parties with particularity and shoes the intent of the parties to release the defendant from liability.

The court held the release was enforceable.

So Now What?

This case is long but brings up some interesting arguments to void releases and does a good job of explaining Pennsylvania law on releases.

First the argument that by leaving a specific clause out of a release is proof the person offering the release agrees to the lack of the clause is very scary. Most releases out there leave out a lot. I signed one the other day for an activity that left out both a jurisdiction and venue clause. I signed the release in Nevada where activity occurred. If injured, I would be allowed to sue the California Corporation in Nevada because by not putting the clause in the release it agreed to jurisdiction different from the venue clause.

Thankfully, this argument did not fly. However, it will be picked up in the future and used more often. You cannot tell when a judge or appellate panel will adopt it.

The duress argument is also valid. Duress cannot occur for recreational activities because like the public policy argument, the guest is free to walk away and loses nothing necessary for life. The duress argument is another one that might be brought when the person on the trip is therefore, more than their own enjoyment.

If they are an employee or volunteer of a church or other youth group, if they are required to do public service if they have an employer who wants them to participate, the argument is valid for duress; however, the wrong defendant is being sued. The duress must be brought by the person you are suing to void the release, not the person who made you sign it.

At the same time, it brings up the argument that this might be a subrogation claim brought by the plaintiff’s health insurance carrier or possibly worker’s compensation carrier. If the plaintiff was successful in arguing that the whitewater rafting, trip was part of her employment her injuries, lost wages, and other expenses would be covered by worker’s compensation. Her worker’s compensation insurance carrier then using the subrogation clause in the policy would have the right to sue any party that was the cause for the injuries.

A defense available to the plaintiff also bars any claims made by the insurer when applying the subrogation clause to sue. So a release signed by the plaintiff stops her lawsuit and also here insurer’s lawsuit.

Not having an enforceable jurisdiction clause in a release sent this litigation from the trial court to the appellate court and back again. In this case, it took nine years from the date of the accident, May 2006, and seven years from the start of the lawsuit, July 2008, for the case to be settled. The addition of “and jurisdiction” to the release would have probably ended the case before it got started.

Think about the stress of dealing with a lawsuit against you for seven years.

If you think, the analysis is painful to read, it is. The decision is 27 pages long. There is an entire semester of class on this one subject in law school called “Choice of Laws.” The analysis each time one party claims the lawsuit should be somewhere else or the law applied to the case should be other states not the state where the lawsuit is, is extensive. These cases also take forever.

A case where a person died on a river trip in Arizona was brought in Texas. Six years after the death the Texas Supreme Court sent the case to Arizona where it started all over again. Moki Mac River Expeditions, v. Drugg, 221 S.W.3d 569; 2007 Tex. LEXIS 188; 50 Tex. Sup. J. 498

Of note in the decision but not brought out in the decision was the fact the defendant does not put a guide in every boat on this section of the Lehigh River. One of the claims made by the plaintiff was “a. Failing to provide a river guide / instructor in [McDonald’s] boat;…

For more articles on Jurisdiction and Venue see:

A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit.                                                                                                     http://rec-law.us/zfpK8Z

Buy something online and you may not have any recourse if it breaks or you are hurt    http://rec-law.us/1rOEUQP

Four releases signed and all of them thrown out because they lacked one simple sentence!     http://rec-law.us/vZoa7x

Jurisdiction and Venue (Forum Selection clauses) are extremely important in your releases.    http://rec-law.us/1ggLMWR

Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court.   http://rec-law.us/zdE1uk

Shark Feeding Death triggers debate                                                                  http://rec-law.us/A1BmMF

The legal relationship created between manufactures and US consumers http://rec-law.us/tiyChu

This case is a summer camp lawsuit and the decision looks at venue and jurisdiction; however the complaint alleges medical malpractice against a camp!                                   http://rec-law.us/yCRj3U

What do you think? Leave a comment.

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Mcdonald v. Whitewater Challengers, Inc., 2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

Mcdonald v. Whitewater Challengers, Inc., 2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

Erin Mcdonald, Appellee v. Whitewater Challengers, Inc., and Whitewater Challengers Outdoor Adventure Center, T/D/B/A Whitewater Challengers, Inc., Appellants; Erin Mcdonald, Appellant v. Whitewater Challengers, Inc., and Whitewater Challengers Outdoor Adventure Center, T/D/B/A Whitewater Challengers, Inc., Appellees

No. 1221 MDA 2013, No. 1400 MDA 2013

SUPERIOR COURT OF PENNSYLVANIA

2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232

April 29, 2015, Decided

April 29, 2015, Filed

PRIOR HISTORY: [**1] Appeal from the Order Entered March 28, 2013. In the Court of Common Pleas of Luzerne County. Civil Division No(s).: 6750-CV-2008. Appeal from the Order Entered March 28, 2013. In the Court of Common Pleas of Luzerne County. Civil Division No(s).: 6750-CV-2008.

JUDGES: BEFORE: PANELLA, SHOGAN, and FITZGERALD,1 JJ. OPINION BY FITZGERALD, J.

1 Former Justice specially assigned to the Superior Court.

OPINION BY: FITZGERALD

OPINION

[*101] OPINION BY FITZGERALD, J.:

Appellant/Cross-Appellee, Erin McDonald, appeals from the order entered in the Luzerne County Court of Common Pleas denying her motion for partial summary [*102] judgment adverse to Appellees/Cross-Appellants, Whitewater Challengers, Inc., a Pennsylvania corporation, and Whitewater Challengers Outdoor Adventure Center, trading or doing business as Whitewater Challengers, Inc. (collectively, “Whitewater”). McDonald, a New York resident, suggests the trial court erred by holding Pennsylvania law–and not New York law–applies to this case. Whitewater also appeals from the order denying their motion for summary judgment. Whitewater contends the trial court erred by concluding material issues of fact existed regarding whether McDonald was economically compelled to sign the contract [**2] at issue. We hold that when a New York resident signs an exculpatory release with a Pennsylvania corporation engaged in the business of whitewater rafting in Pennsylvania and is injured while whitewater rafting, Pennsylvania law applies. We further hold that McDonald cannot invoke economic compulsion against Whitewater and that judgment should be entered in Whitewater’s favor on liability. Thus, we affirm in part and reverse in part.

We state the facts as set forth by the trial court:

[McDonald] filed a complaint on [July] 24, 2008[,] alleging that on May 19, 2006, she was a school teacher employed by [t]he School of [the] Holy Child in Rye, New York.

She alleges that on [May 19, 2006], she and other School faculty members chaperoned seventy-two (72) seventh and eighth grade school children on a whitewater rafting “field trip” down a portion of the Lehigh River conducted by [Whitewater].

[McDonald’s] raft struck a large rock situated in the river bed, ejecting [her] from the raft onto the rock, allegedly causing her the injuries alleged in her complaint.

[McDonald’s] allegations of negligence, in paragraph 40 of her complaint, are as follows:

40. [Whitewater’s] negligence consisted of but was [**3] not limited to the following:

a. Failing to provide a river guide / instructor in [McDonald’s] boat;

b. Failing to provide a properly inflated raft;

c. Failing to advise [McDonald] on the grade and / or class of the whitewater rapids;

d. Failing to properly instruct [McDonald] on how to safely and effectively maneuver fast and difficult rapids; and

e. Allowing an unsafe number of inexperienced rafters to operate a raft.

[McDonald’s Compl., 7/24/08, at 9-10.]

At her place of employment, two (2) days before the excursion, [McDonald] signed [Whitewater’s] form “RELEASE OF LIABILITY” . . . .

Trial Ct. Op., 9/15/10, at 1-2.

We reproduce the release in pertinent part:

RELEASE OF LIABILITY — READ BEFORE SIGNING

In consideration of being allowed to participate in any way in the Whitewater Challengers program, its related events and activities, I (print name) Erin L. McDonald the undersigned, acknowledge, appreciate, and agree, that:

1. The risk of injury from the activities involved in this program is significant, including the potential for permanent paralysis and death, and while particular skills, equipment, and personal discipline may reduce [*103] this risk, the risk of serious injury does exist; and,

2. [**4] I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASEES or others, and I assume full responsibility for my participation; and

* * *

5. I, for myself and on behalf of my heirs, assigns, personal representatives and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS, WHITEWATER CHALLENGERS, their officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activities (“Releasees”), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law; and,

6. Any claims or disputes arising from my participation in this program shall be venued in the Luzerne County Court in the town of Wilkes-Barre, PA, or in the Supreme Court of the State of Pennsylvania.

I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT. I FULLY UNDERSTAND ITS TERMS AND UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN [**5] IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.

Ex. D to Whitewater’s Mot. for Summ. J., 12/14/12.

On June 6, 2010, Whitewater filed a motion for summary judgment, which the court denied on September 15, 2010. Further discovery ensued, and a few years later, McDonald filed her motion for partial summary judgment and Whitewater filed a second motion for summary judgment. McDonald requested that the court void the release based on New York law. Whitewater asked the court to hold the release was valid under Pennsylvania law and to enforce the release, thus absolving it of liability.

On April 3, 2013,1 the trial court denied McDonald’s motion for partial summary judgment and Whitewater’s motion for summary judgment. Order, 4/3/13. With respect to its holding that Pennsylvania law applied, the court reasoned that our Supreme Court affirmed the validity of such exculpatory releases in inherently dangerous recreational activities, such as downhill skiing. Trial Ct. Op., 4/3/14, at 2-3.2 The trial court also refused to permit out-of-state customers of Pennsylvania recreational facilities “to bring their law with them,” because of the increased “financial/liability uncertainty.” Id. at 3. The court, however, [**6] refused to enforce the release against McDonald, finding material issues of fact existed regarding whether she was economically compelled to sign the release by the School of the Holy Child. Trial Ct. Op., 9/15/10, at 5.

1 The order was served on this date pursuant to Pa.R.C.P. 236; the order was time-stamped on March 28, 2013.

2 On March 13, 2014, this Court ordered the trial court to file a Pa.R.A.P. 1925(a) decision explaining the basis for its ruling. Order, 3/13/14. The trial court complied, and this matter is now ripe for disposition.

On April 18, 2013, Whitewater filed a brief in support of their motion for reconsideration [*104] or appellate certification.3 On April 25, 2013, McDonald filed a motion for reconsideration or appellate certification. The court granted Whitewater’s motion on May 2, 2013,4 and granted McDonald’s motion on May 28, 2013.5

3 The docket and certified record do not reflect the actual motion, although Whitewater’s certificate of service avers they filed it. The certificate of service, which did not include a date of service, was time-stamped on April 18, 2013.

4 The order was time-stamped on April 30, 2013, but the trial court did not serve notice until May 2, 2013.

5 The order was time-stamped on May 23, 2013, [**7] and the trial court served notice on May 28, 2013.

On May 28, 2013, Whitewater filed a petition for permission to file an interlocutory appeal per Pa.R.A.P. 1311. McDonald, on June 21, 2013, filed a petition to file an interlocutory appeal from the trial court’s May 28, 2013 order. This Court granted Whitewater’s petition on July 11, 2013, and McDonald’s petition on August 5, 2013.6

6 This Court consolidated both appeals sua sponte on March 12, 2014. Further, because the parties filed numerous briefs in both appeals, for ease of comprehension, we denote the parties’ briefs by docket number.

We address McDonald’s appeal first, which raises one issue:

Whether New York law should be applied to the facts of this case thereby rendering Whitewater’s Release as void and unenforceable under New York’s statutory and decisional law, where this case poses a legitimate conflict-of-law question, and New York has a more significant relationship to this controversy and the outcome of this case?

McDonald’s Brief, 1400 MDA 2013, at 6.

In support of her sole issue, McDonald argues the trial court erred by incorrectly applying the standard set forth in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). She maintains that because she signed the release in New York, the contract was formed in New York. As a New [**8] York resident, McDonald asserts she is entitled to the benefit of New York law. McDonald claims that if Whitewater intended for Pennsylvania law to apply, then it should have included such a clause in its release. She points out that most of her medical treatment occurred in New York and that the New York State Insurance Fund has an interest in recouping her lost wages and medical expenses. We hold McDonald has not established entitlement to relief.

Initially, an order denying summary judgment is ordinarily a non-appealable interlocutory order. See Stewart v. Precision Airmotive, LLC, 2010 PA Super 168, 7 A.3d 266, 272 (Pa. Super. 2010). As noted above, however, the parties requested, and this Court granted, permission to file interlocutory appeals.7 Order, 3/12/14.

7 We acknowledge that [HN1] generally, when the issue is a question of law, an appellant may be entitled to review of an order denying summary judgment. Pridgen v. Parker Hannifin Corp., 588 Pa. 405, 421-22, 905 A.2d 422, 432-33 (2006) (holding collateral order doctrine applied to order denying summary judgment because party raised defense of statutory immunity). When the issue is a question of fact, appellate jurisdiction is lacking. See Stewart, 7 A.3d at 272. Thus, if an appellate court grants permission to appeal an order denying summary judgment, see 42 Pa.C.S. § 702, but later determines that the underlying issue is a question of [**9] fact, appellate jurisdiction is arguably lacking. See generally id.

The standard and scope of review is well-settled:

[HN2] Pennsylvania law provides that summary judgment may be granted only in [*105] those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the nonmoving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. With regard to questions of law, an appellate court’s scope of review is plenary. [**10] The Superior Court will reverse a grant of summary judgment only if the trial court has committed an error of law or abused its discretion.

Charlie v. Erie Ins. Exchange, 2014 PA Super 188, 100 A.3d 244, 250 (Pa. Super. 2014) (punctuation and citation omitted).

As a prefatory matter, we must ascertain whether to apply a tort or contract choice of law framework.8 Two cases are instructive: McCabe v. Prudential Prop. & Cas. Ins. Co., 356 Pa. Super. 223, 514 A.2d 582 (1986), and Nationwide Mut. Ins. Co. v. Walter, 290 Pa. Super. 129, 434 A.2d 164 (1981). In Walter, this Court addressed an exclusionary provision in an insurance policy issued to a New Jersey resident for a car involved in a Pennsylvania accident. Walter, 290 Pa. Super. at 133-34, 434 A.2d at 166. The car’s driver and passenger were both Pennsylvania residents. Id. at 137, 434 A.2d at 168. The exclusionary provision was invalid under New Jersey law and valid under Pennsylvania law. Id. at 135-36, 434 A.2d at 167. The Walter Court rejected the appellant’s argument that Pennsylvania law should apply because the accident occurred in Pennsylvania and the injured occupants of the car were Pennsylvania residents:

[The a]ppellant argues that Pennsylvania had the most significant contacts as the car was located in Pennsylvania when the accident occurred having been previously delivered to Bucks County Imports by [the insured], the accident occurred in Pennsylvania, and both occupants of the car at the time of the accident were Pennsylvania residents. [The a]ppellant overlooks [**11] the fact that these points of contact with Pennsylvania pertained to the alleged tort involved. We are concerned with the contract of insurance and as to the insurance policy New Jersey had the most significant contacts.

Id. at 137-38, 434 A.2d at 168.

8 A statutory choice of law analysis does not apply to this case.

In McCabe, this Court similarly addressed which state’s law applied in construing a Connecticut automobile insurance policy issued to a Connecticut resident. McCabe, 356 Pa. Super. at 225, 514 A.2d at 582. While in Pennsylvania, the Connecticut resident was involved in a car accident that injured a Pennsylvania resident. Id. The McCabe appellees argued that Pennsylvania law applied because, inter alia, the “victim is a resident of Pennsylvania, and the accident occurred there. Both [insurers] are licensed to do business in Pennsylvania.” Id. at 232, 514 A.2d at 586. The McCabe Court rejected that argument [*106] based upon the Walter Court’s reasoning. Id. Both Walter and McCabe stand for the proposition that [HN3] in a contract action involving an underlying tort and in which an insurance policy is at issue, the court will apply a contract law–and not a tort law–choice of law framework. Id.; Walter, 290 Pa. Super. at 137-38, 434 A.2d at 168; see also Tayar v. Camelback Ski Corp., 616 Pa. 385, 394, 47 A.3d 1190, 1196 (2012) (applying contract law to interpret clause exculpating defendant ski resort from liability [**12] in negligence action); Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 26, 2 A.3d 1174, 1189 (2010) (same). Neither Chepkevich nor Tayar engaged in a choice of law analysis, but neither case looked beyond contract law in construing the clause. Thus, in the instant tort action involving a contractual exculpatory clause, but not involving an automobile insurance policy, we apply a contract choice of law framework. See Tayar, 616 Pa. at 394, 47 A.3d at 1196; Chepkevich, 607 Pa. at 26, 2 A.3d at 1189; McCabe, 356 Pa. Super. at 232, 514 A.2d at 586; Walter, 290 Pa. Super. at 137-38, 434 A.2d at 168; cf. Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (construing exculpatory agreement as barring plaintiff’s negligence claims for injuries that occurred while whitewater rafting); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992) (invoking contractual standard of review in ascertaining whether exculpatory clause barred negligence claims).9

9 In Budtel Assocs., LP v. Cont’l Cas. Co., 2006 PA Super 370, 915 A.2d 640 (Pa. Super. 2006), our Court held that the Griffith rule applies to contract cases. Id. at 643-44. Budtel, however, did not involve a negligence claim.

Having ascertained a contract choice of law framework applies, we set forth the following as background10 with respect to choice of law principles applicable to cases not involving an explicit statutory11 or a contractual choice of law provision:12 [HN4] “the first step in a choice of law analysis under Pennsylvania law is to determine whether [an actual] conflict exists between the laws of the competing states. If no [actual] conflict exists, further analysis is unnecessary.” Budtel, 915 A.2d at 643 (citation [**13] omitted). An actual conflict exists if “there are relevant differences between the laws.” Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230 (3d Cir. 2007).13

10 See Gregory E. Smith, Choice of Law in the United States, 38 Hastings L.J. 1041, 1131 (1987) (“No state has a more convoluted, eclectic approach to choice of law than Pennsylvania. On various occasions, its courts have applied the First and Second Restatements, the center of gravity approach, interest analysis and Professor Cavers’ ‘principles of preference.'”); accord Melville v. Am. Home Assurance Co., 443 F. Supp. 1064, 1076 (E.D. Pa. 1977) (“The opinions of the Pennsylvania courts both state and federal have left Pennsylvania’s choice of law rules and methodology with respect to contract cases in utter disarray; indeed, the courts have used facially inconsistent legal standards without acknowledging apparently conflicting precedent.”), rev’d, 584 F.2d 1306, 1313 (3d Cir. 1978) (predicting Pennsylvania would apply the Griffith choice of law framework to contract actions).

11 See, e.g., 42 Pa.C.S. § 5521(b) (“The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim.”).

12 Synthes USA Sales, LLC v. Harrison, 2013 PA Super 324, 83 A.3d 242, 252 (Pa. Super. 2013) (“Choice of law provisions in contracts will generally be given effect.” (citation omitted)); Nationwide Mut. Ins. Co. v. West, 2002 PA Super 282, 807 A.2d 916, 920 (Pa. Super. 2002) (same).

13 With [**14] respect to federal decisions, we acknowledge the following:

[F]ederal court decisions do not control the determinations of the Superior Court. Our law clearly states that, absent a United States Supreme Court pronouncement, the decisions of federal courts are not binding on Pennsylvania state courts, even when a federal question is involved. . . . Whenever possible, Pennsylvania state courts follow the Third Circuit so that litigants do not improperly “walk across the street” to achieve a different result in federal court than would be obtained in state court.

NASDAQ OMX PHLX, Inc. v. PennMont Secs., 2012 PA Super 145, 52 A.3d 296, 303 (Pa. Super. 2012) (citations omitted); accord Parr v. Ford Motor Co., 2014 PA Super 281, 109 A.3d 682, 693 n.8 (Pa. Super. 2014) (en banc) (citations and punctuation omitted).

[*107] If an actual conflict exists, then we classify it as “true,” “false,” or “unprovided-for.” Cipolla v. Shaposka, 439 Pa. 563, 565, 267 A.2d 854, 855-56 (1970); Miller v. Gay, 323 Pa. Super. 466, 470, 470 A.2d 1353, 1355 (1983). A “true conflict” occurs “when the governmental interests of both jurisdictions would be impaired if their law were not applied.” Garcia v. Plaza Oldsmobile, Ltd., 421 F.3d 216, 220 (3d Cir. 2005). “A ‘false conflict’ exists if only one jurisdiction’s governmental interests would be impaired by the application of the other jurisdiction’s law. In such a situation, the court must apply the law of the state whose interests would be harmed if its law were not applied.”14 Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir. 1991) (footnote omitted); Kuchinic v. McCrory, 422 Pa. 620, 624, 222 A.2d 897, 899 (1966). In “unprovided-for” cases, “neither jurisdiction’s [**15] interests would be impaired if its laws are not applied.”15 Garcia, 421 F.3d at 220 (footnote omitted). If a true conflict is found, then we must determine “which state has the greater interest in the application of its law.”16 Cipolla, 439 Pa. at 566, 267 A.2d at 856.

14 We are aware that Pennsylvania federal and state courts have defined “false conflict” inconsistently. Upon reflection, we agree with the rationale advanced by the United States Court of Appeals for the Third Circuit in Hammersmith:

We think it is incorrect to use the term “false conflict” to describe the situation where the laws of two states do not differ. If two jurisdictions’ laws are the same, then there is no conflict at all, and a choice of law analysis is unnecessary. Thus, the first part of the choice of law inquiry is best understood as determining if there is an actual or real conflict between the potentially applicable laws. See, e.g., [Air Prods. & Chems., Inc. v. Eaton Metal Prods. Co., 272 F. Supp. 2d 482, 490 n.9 (E.D. Pa. 2003)] (“Before we even reach the ‘false conflict’ question, we must determine whether, for lack of better terminology, a ‘real conflict’ as opposed to ‘no conflict’ exists; that is, we must determine whether these states would actually treat this issue any differently.”).

Hammersmith, 480 F.3d at 230.

15 We leave for another day a determination of which state’s law applies in an [**16] “unprovided-for conflict” in contract cases. In tort cases, generally, the law of the state where the injury occurred is applied. See Miller, 323 Pa. Super. at 470-72, 470 A.2d at 1355-56.

16 If there is more than one issue, then Pennsylvania applies dépeçage, i.e., “different states’ laws may apply to different issues in a single case . . . .” Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006) (citation omitted); Broome v. Antlers’ Hunting Club, 595 F.2d 921, 924 (3d Cir. 1979) (predicting Pennsylvania Supreme Court would apply law of different states to separate issues). Although no court in this Commonwealth has explicitly held that Pennsylvania applies dépeçage, Pennsylvania federal courts have consistently applied the doctrine. Furthermore, the doctrine is arguably suggested by, if not harmonious with, the Griffith Court’s flexible choice of law framework. See Griffith, 416 Pa. at 21, 203 A.2d at 805. The United States Court of Appeals for the Third Circuit observed that dépeçage was implicit in Professor Cavers’ choice of law analysis, which our Supreme Court approvingly quoted in Cipolla. See Reyno v. Piper Aircraft Co., 630 F.2d 149, 167 n.73 (3d Cir. 1980) (holding dépeçage is “implicit in the analysis of Professor Cavers” (citing David Cavers, The Choice-of-Law Process 40-43 (1965))), rev’d on other grounds, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981); Cipolla, 439 Pa. at 567, 267 A.2d at 856-57 (quoting Cavers’ treatise, supra, extensively).

[*108] In Cipolla, our Supreme Court examined whether a true conflict existed between the tort [**17] laws of Delaware and Pennsylvania. Id. at 564, 267 A.2d at 855. The defendant was a Delaware resident and the plaintiff was a Pennsylvania resident. Id. The defendant, who was driving a car registered in Delaware, was driving the plaintiff home to Pennsylvania when they collided with another vehicle in Delaware. Id. The plaintiff sued the defendant for negligence only, and our Supreme Court examined which state’s law applied. Id. If Delaware law applied, then the plaintiff could not recover under a Delaware statute preventing a guest from recovering for the negligence of the host. Id. If Pennsylvania law applied, then the plaintiff could recover if he could establish the defendant’s negligence. Id. at 564-65, 267 A.2d at 855. The Cipolla Court reasoned that a true conflict existed because the plaintiff “is a resident of Pennsylvania which has adopted a plaintiff-protecting rule and [the defendant] is a resident of Delaware which has adopted a defendant-protecting rule” and thus a “deeper analysis” was required to determine “which state has the greater interest in the application of its law.” Id. at 565-66, 267 A.2d at 856.

Similarly, in Rosen v. Tesoro Petroleum Corp., 399 Pa. Super. 226, 582 A.2d 27 (1990), the Superior Court ascertained whether a true conflict existed between the laws of Pennsylvania and Texas regarding a malicious prosecution [**18] claim. Id. at 231, 582 A.2d at 30. In Pennsylvania, seizure of the plaintiff’s person or property is not a necessary element for malicious prosecution. Id. Texas, however, requires that a party alleging malicious prosecution suffer physical detention of the claimant’s person or property. Id. The Rosen Court held there was a true conflict because Texas wished “to assure every potential litigant free and open access to the judicial system without fear of a countersuit for malicious prosecution.” Id. at 232, 582 A.2d at 30. Pennsylvania, in contrast, provided “greater protection to those individuals and entities who may be forced to defend a baseless suit.” Id. at 233, 582 A.2d at 31. Thus, having concluded a true conflict existed, the Rosen Court then determined which state had “the greater interest in the application of its law on malicious prosecution to the instant matter.” Id. at 233, 582 A.2d at 31.

In sum, [HN5] in Pennsylvania, a conflict-of-law analysis not involving a statutory or contractual choice of law clause, first requires determining whether the laws in question actually conflict. E.g., Budtel, 915 A.2d at 643. If relevant differences between the laws exist, then we next classify the actual conflict as a “true conflict,” “false conflict,” or “unprovided-for conflict.” Cipolla, 439 Pa. at 565, 267 A.2d at 855-56; Miller, 323 Pa. Super. at 470, 470 A.2d at 1355.

Instantly, a New York statute [**19] voids clauses immunizing recreational facilities from liability for negligence because they violate New York’s public policy.17 N.Y. Gen. Oblig. Law § 5-326 (McKinney 2014). Pennsylvania, however, recognizes the validity of such exculpatory clauses when they govern voluntary and hazardous recreational activities. See, e.g., Chepkevich, [*109] 607 Pa. at 36, 2 A.3d at 1195. Because relevant differences exist between New York and Pennsylvania jurisprudence, see Hammersmith, 480 F.3d at 230, there is an actual conflict that we must classify as a “true conflict,” “false conflict,” or “unprovided-for conflict.”

17 No party has suggested the statute applies outside of New York. Cf. Garcia, 421 F.3d at 220 (noting, “In our conflicts-of-law analysis[,] the first issue that we must address is whether New York’s . . . [l]aw with respect to the issue at hand has extraterritorial application, and, accordingly, whether that law by its terms can be applied to determine liability for the Pennsylvania accident underlying this appeal.”)

Akin to Rosen, which identified a true conflict because of Pennsylvania’s and Texas’s diametrically opposing views on malicious prosecution, Pennsylvania provides greater protection to recreational facilities, unlike New York, which favors protecting participants injured at such facilities. See Rosen, 399 Pa. Super. at 232-33, 582 A.2d at 30-32. To paraphrase [**20] our Supreme Court in Cipolla, the fact that McDonald is a resident of New York, which has adopted a plaintiff-protecting rule, and Whitewater is a resident of Pennsylvania, which has adopted a defendant-protecting rule, demonstrates a true conflict. See Cipolla, 439 Pa. at 565-66, 267 A.2d at 856.

We thus ascertain whether New York “or Pennsylvania has the greater interest in the application of its law to the question now before us.” See id. at 565, 267 A.2d at 855.

[HN6] In determining which state has the greater interest in the application of its law, one method is to see what contacts each state has with the accident, the contacts being relevant only if they relate to the “policies and interest underlying the particular issue before the court.” [Griffith, 416 Pa. at 21, 203 A.2d at 805]. When doing this it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state’s contacts must be measured on a qualitative rather than quantitative scale.

* * *

Also, it seems only fair to permit a defendant to rely on his home state law when he is acting within that state.

Consider the response that would be accorded a proposal that was the opposite of this principle if it were advanced against a person living in the state of injury on behalf of a person coming there [**21] from a state having a higher standard of care or of financial protection. The proposal thus advanced would require the community the visitor entered to step up its standard of behavior for his greater safety or lift its financial protection to the level to which he was accustomed. Such a proposal would be rejected as unfair. By entering the state or nation, the visitor has exposed himself to the risk of the territory and should not subject persons living there to a financial hazard that their law had not created.

Inhabitants of a state should not be put in jeopardy of liability exceeding that created by their state’s laws just because a visitor from a state offering higher protection decides to visit there.

Id. at 566-67, 267 A.2d at 856-57 (citations, punctuation, and footnote omitted); accord Myers v. Commercial Union Assurance Cos., 506 Pa. 492, 496, 485 A.2d 1113, 1115-16 (1984).18

18 We acknowledge that other Pennsylvania state and federal courts have construed the Griffith interest analysis differently. In Gillan v. Gillan, 236 Pa. Super. 147, 345 A.2d 742 (1975), and Knauer v. Knauer, 323 Pa. Super. 206, 470 A.2d 553 (1983), the Superior Court interpreted Griffith as adopting the Restatement (Second) of Conflicts of Law § 188, and applied the Restatement to the contracts at issue. Knauer, 323 Pa. Super. at 215, 470 A.2d at 558; Gillan, 236 Pa. Super. at 150, 345 A.2d at 744. Our Commonwealth Court in Ario v. Underwriting Members of Lloyd’s of London Syndicates 33, 205 & 506, 996 A.2d 588 (Pa. Commw. 2010), similarly opined in an insurance contract case that Griffith “adopted the [**22] approach of the Restatement of Conflict of Laws, Second to resolving choice of law questions.” Id. at 595 (citations omitted). “We of course recognize that a decision of the Commonwealth Court is not binding precedent upon this Court; however, it may be considered for its persuasive value.” Holland v. Marcy, 2002 PA Super 381, 817 A.2d 1082, 1083 n.1 (Pa. Super. 2002) (en banc) (citation and punctuation omitted). Section 188 identifies several factors in resolving choice of law:

(a) the place of contracting,

(b) the place of negotiation of the contract,

(c) the place of performance,

(d) the location of the subject matter of the contract, and

(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.

Restatement (Second) of Contracts § 188 (1971). In contrast, the Third Circuit has consistently opined that Griffith combined “the ‘approaches of both the Restatement II (contacts establishing significant relationships) and interests analysis (qualitative appraisal of the relevant States’ policies with respect to the controversy).'” Hammersmith, 480 F.3d at 231 (punctuation omitted) (quoting Melville, 584 F.2d at 1311).

[*110] For example, the Walter Court ascertained whether Pennsylvania or New Jersey law should apply to an automobile insurance policy. Walter, 290 Pa. Super. at 136, 434 A.2d at 167. The Walter Court reviewed each state’s contacts with the contract:

In this contract case, [**23] the state having the most vital contacts with the policy of insurance involved was New Jersey. The policy was issued in New Jersey by the appellant in June, 1972, to Mr. Walter, a resident of New Jersey. It was issued for the twofold purpose of giving insurance protection to Mr. Walter and others as set forth in the policy, and to comply with the requirements set forth in the New Jersey Motor Vehicle Security Responsibility Statute . . . . No matter where [Mr. Walter’s agent] drove [Mr. Walter’s] car or gave consent to others to operate his vehicle, [Mr. Walter] had the right to expect that his policy conformed to New Jersey law and that the laws of New Jersey would apply in interpreting the policy. Pennsylvania had no contact with the transaction involving the insurance policy. It was by mere happenstance that the automobile was involved in an accident while located in Pennsylvania. As noted in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796: “(T)he site of the accident purely fortuitous.”

Id. at 137, 434 A.2d at 167-68. Because, inter alia, the appellant “issued an insurance policy to [Mr. Walter] to cover an automobile located in New Jersey,” and he obtained the policy to comply with New Jersey laws, the Walter Court held New Jersey law applied. Id. at 138, 434 A.2d at 168.

In McCabe [**24] , this Court likewise examined each state’s contacts to a Connecticut insurance contract:

In the instant case, [the insurer] argues that Connecticut law would apply since [the insured] lived in Connecticut, and the . . . policy of Insurance was executed there. It also contends that “underlying these contacts are Connecticut’s sovereign interests that the rights of its residents and those who do business in its state are governed by Connecticut law and that its insurance law, as applied to the insurance policy, will be given full faith and credit by a sister state.” Finally, [the insurer] alleges that Connecticut has an interest in minimizing insurance premiums for its residents. . . .

Pennsylvania had no contact with the transaction involving the insurance policy. It was by mere happenstance that [*111] the Connecticut automobile owned and operated by [the insured] was involved in an accident while located in Pennsylvania. . . . At this time, we are concerned with contract of insurance, and, as to the insurance policy, Connecticut had the most significant contacts.

McCabe, 356 Pa. Super. at 232, 514 A.2d at 586.

Instantly, similar to McCabe and Walter, whose contracts were executed outside of Pennsylvania, the exculpatory clause was executed [**25] in New York by McDonald, a New York resident. See id.; Walter, 290 Pa. Super. at 137, 434 A.2d at 167-68. New York certainly has a sovereign interest in protecting McDonald and may wish, as she averred, to recoup the costs of her medical treatment. See McCabe, 356 Pa. Super. at 232, 514 A.2d at 586. But, comparable to the insurance policy in Walter, the instant release was executed for the purpose of protecting Whitewater, a Pennsylvania business that “had the right to expect that [the release] conformed to [Pennsylvania] law and that the laws of [Pennsylvania] would apply in interpreting the [release].” See Walter, 290 Pa. Super. at 137, 434 A.2d at 167-68. “[I]t seems only fair to permit” Whitewater to rely on Pennsylvania law when it acted within Pennsylvania. See Cipolla, 439 Pa. at 567, 267 A.2d at 856. Whitewater should not be placed in jeopardy of liability exceeding that created by Pennsylvania law just because McDonald is a visitor from New York, a state offering higher protection. See id. Unlike McCabe and Walter, the site of the accident was not fortuitous, as the underlying accident occurred at Whitewater’s place of business in Pennsylvania on a preplanned outing for which McDonald signed a contract. Cf. McCabe, 356 Pa. Super. at 232, 514 A.2d at 586; Walter, 290 Pa. Super. at 137, 434 A.2d at 167-68. After carefully weighing the sovereign interests at stake, which include contacts establishing the significant relationships with each sovereign, we [**26] hold that Pennsylvania has the greater interest in the application of its law to this case. See Cipolla, 439 Pa. at 566, 267 A.2d at 856. Accordingly, we discern no basis for reversing the trial court’s order on this point. See Charlie, 100 A.3d at 250.

We next address Whitewater’s appeal, which raised the following issues:

Whether the trial court erred by denying summary judgment on the basis of [McDonald’s] alleged, and mere belief, that she was “economically compelled” to sign the release by her employer?

Whether [Whitewater] was entitled to summary judgment because the “Release of Liability” is a valid and enforceable exculpatory clause involving a recreational activity as a matter of well-established Pennsylvania law?

Whether [McDonald’s] claims against Whitewater are barred by the valid and enforceable Release, which [McDonald] signed knowingly and fully conscious of its meaning, and which contains clear and unambiguous language expressly releasing [Whitewater] from any liability for negligent conduct and shows [McDonald’s] express waiver of her right to bring any such negligence claims?

Whitewater’s Brief, 1221 MDA 2013, at 5 (reordered to facilitate resolution).

We set forth the following as background.

[McDonald] had testified in her deposition that on May 17, 2006, the Headmaster [**27] of the School of the Holy Child handed the Release form to [McDonald], while she was between classes and walking through the school hallway and told her to sign it, since she would be one of the chaperones for the students on the rafting trip.

[McDonald] alleges she [*112] signed the Release form without reading it.

Trial Ct. Op., 9/15/10, at 2. McDonald explained “that she did not read the Release because she had previously been on a whitewater trip in 2004.” McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., 1/14/13, at 6 (citation omitted).

At her deposition, McDonald testified about the circumstances of her departure from the School of the Holy Child:

[Whitewater’s counsel]. Why did you leave School of the Holy Child to go [elsewhere]?

A. Well, due to the accident, I was only able to work parttime and after–

* * *

A. And when [teaching] contracts were renewed [in February 2007], I was given a contract, but I only received a one percent increase and–

* * *

A. . . . despite the fact that I had, you know, superior evaluation and the fact that I had been hurt on the job, I was insulted by the one percent increase.

Q. Were you told by one of your supervisors that the reason you [**28] got a one percent increase was because of your reduced work and the fact that you were injured on the job?

A. No.

Q. Did anyone tell you that?

A. No.

Q. That’s something that you surmised–

A. Yes.

Q. –based on the circumstances?

A. Yes, sir.

Q. Well, it carried [sic] $5,000. I can’t do the math very quickly, but.

A. Okay, all right, and this one percent raise turned out to be what?

A. Approximately $610.

Q. Okay, and your raises, while you were at School of the Holy Child, were they always consistent with approximately the $5,000 increase?

A. Three years previous to that, I’d gotten a $20,000 boost because I was seen as being a master teacher.

Q. Okay, all right. And this $600 . . . you didn’t expect another $20,000 bump, but you thought you might get something closer to the 5 grand that you had gotten the previous year.

A. Yes.

Q. And when you didn’t, you surmised it was because of your injury.

A. Yes, and I wasn’t going to be able to do all the extras that are pretty much inherent in working in an independent school.

Q. Extras, such as what?

A. Chaperoning trips to Europe, did that. Attending trustees, board of trustees and faculty dinners. Participating in faulty/student games. All the extras that [**29] are just read into our contract.

Q. Okay, and those are things that you did prior to the accident.

A. Yeah.

Q. And you did not do them after the accident.

A. No.

Q. Okay, so when you got your one percent raise, is that when you quit, you resigned?

A. No, I looked for a job first.

Ex. C to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 11-14.

We reproduce the following exchange from the deposition testimony of Ann Sullivan, [*113] the head of the School of the Holy Child, regarding its annual job evaluations:

[McDonald’s counsel]. And in terms of conducting evaluations of employees, and in particular teachers, was participation in afterschool extracurriculars or school trips, was that a factor looked at in terms of doing the evaluation?

A. I think it’s discussed during the evaluation. If you look at the evaluation forms, which are very idiosyncratic, there are four buckets. One is professional competence, one is commitment–

Q. I’m going to ask you–

A. Let me give you the background–one is commitment to the community, the third is leadership, and the fourth is congruence with the mission. There was a lot of discussion as to what percent each of those buckets was taken into [**30] consideration, and, frankly, it varies, and there was no answer to that. And I have to say it was all of those ways, but to varying degrees. Some people are great community people and not so great in the classroom, some people are great in the classroom and not so great in the community life. So, you know, it wasn’t meant to be punitive. It was to recognize different contributions.

Q. All right, I understand. But I just want to make sure I understand correctly. Even though there were different ways–you indicated there were different wings [sic] attached to different factors, you are saying, if I understand correctly–I’m not trying to put words in your mouth–that participation in school trips and extracurricular activities was at least a factor?

A. I’m going to go back to that that it is a broader discussion of community than going on school trips. Sometimes it is class trips, sometimes it is attending events. You know, it’s broader than that. It’s not a quid pro quo. You don’t get an extra $500 added to your salary because you are a chaperon [sic].

Q. Right, I understand there wasn’t a specific dollar amount that was attached for any particular factor indicated on the evaluation form, [**31] but it was at least a factor that was put into the overall mix in conducting evaluations of faculty, is that fair to say?

A. But it could be something quite different. It could be being the moderator of the yearbook or the Model UN. You are a making this assumption that going on extracurricular trips was part of your evaluation. It’s only one of many, many possible factors. I want you to know many people did not go on trips. There are a lot of young parents in the school and they are not able to go away overnight because–

[Sullivan’s counsel]: Parents or teachers?

A. Parents who are teachers. There are teachers who are young parents, have infants and toddlers and couldn’t do those trips, and certainly it was great if they would go to a concert and they would show up at field hockey games.

[McDonald’s counsel]. I understand. No one was compelled to go on any particular trip, but participation in things was at least a factor identified in her evaluation, is that correct?

A. I read [in McDonald’s employment file] that her supervisor thanked her for going on trips and going to athletic events.

Q. Hum-hum.

A. But, you know, I could say that there were wonderful people who declined to go on the [**32] trips and there were no financial repercussions.

Q. Okay. No one was ever terminated for not going on any extracurricular trips?

[*114] A. Never. And they were not–their salaries were not reduced for not going on trips.

Q. And there was never an employee who was penalized in his or her paycheck for not going on a school extracurricular or participating in afterschool projects.

A. Right.

Ex. I to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 38-41.

In support of their first issue, Whitewater contends that economic compulsion does not apply because McDonald’s employer–and not Whitewater–compelled McDonald to sign the release. Regardless, Whitewater argues that McDonald failed to present evidence establishing her employer compelled her to sign. Whitewater asserts that the undisputed record demonstrated McDonald would have suffered no repercussions by not participating in rafting.19 We hold Whitewater is entitled to relief.

19 Whitewater also contends McDonald waived her defense of duress by failing to raise it in her answer to Whitewater’s new matter invoking the release as a defense. Whitewater’s Brief, 1221 MDA 2013, at 28 (citing only Tri-State Roofing Co. of Uniontown v. Simon, 187 Pa. Super. 17, 19, 142 A.2d 333, 334 (1958) [hereinafter “Tri-State“]). The Tri-State Court did not hold that when the [**33] defendant invokes a contract as a defense in a new matter, the plaintiff is bound to raise all affirmative defenses in its reply to the new matter. Rather, the Court was merely summarizing the procedural posture in which the defendant filed a reply alleging duress in response to the plaintiff’s new matter. See id. at 19, 142 A.2d at 335. Whitewater did not articulate any other basis for waiver, and it is well-settled that [HN7] we may not reverse on an argument not raised. See generally Pa.R.A.P. 302. Accordingly, we decline to hold McDonald waived her defense.

It is well-settled that [HN8] the standard of review for an order resolving summary judgment is abuse of discretion or error of law. Charlie, 100 A.3d at 250. Our Supreme Court defined duress as follows:

[HN9] The formation of a valid contract requires the mutual assent of the contracting parties. Mutual assent to a contract does not exist, however, when one of the contracting parties elicits the assent of the other contracting party by means of duress. Duress has been defined as:

That degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness . . . . The quality of firmness is assumed [**34] to exist in every person competent to contract, unless it appears that by reason of old age or other sufficient cause he is weak or infirm . . . . Where persons deal with each other on equal terms and at arm’s length, there is a presumption that the person alleging duress possesses ordinary firmness . . . . Moreover, in the absence of threats of actual bodily harm there can be no duress where the contracting party is free to consult with counsel . . . .

Degenhardt v. Dillon Co., 543 Pa. 146, 153-54, 669 A.2d 946, 950 (1996) (citations and punctuation omitted).

[HN10] Economic duress, i.e., business or economic compulsion, is a form of duress. Tri-State, 187 Pa. Super. at 20, 142 A.2d at 335. The Tri-State Court defined economic duress as follows:

To constitute duress or business compulsion there must be more than a mere threat which might possibly result in injury at some future time, such as a threat of injury to credit in the indefinite future. It must be such a threat that, in conjunction with other circumstances [*115] and business necessity, the party so coerced fears a loss of business unless he does so enter into the contract as demanded.

Id. at 20-21, 142 A.2d at 335 (citation and punctuation omitted). The Court applied the above principles in ascertaining “whether [the] plaintiff’s threat to breach its contract with the defendant, if defendant [**35] did not sign the release . . . , constituted duress.” Id. at 18, 142 A.2d at 334.

In Litten v. Jonathan Logan, Inc., 220 Pa. Super. 274, 286 A.2d 913 (1971), this Court addressed whether a prior, favorable oral contract or a subsequent, unfavorable written contract controlled. Id. at 276-77, 286 A.2d at 914. “Plaintiffs contend they were compelled under the duress and coercion of the defendant to enter into the written contract because defendant had maneuvered plaintiffs into an untenable economic crisis from which they could extricate themselves only by signing the agreement prepared by defendant.” Id. at 277, 286 A.2d at 914-15. The jury agreed with the plaintiffs, and the defendant appealed, arguing, inter alia, the court failed to instruct the jury properly regarding duress. Id. at 277, 286 A.2d at 915. This Court affirmed, holding the defendant economically compelled the plaintiff to execute the subsequent written contract. Id. at 281-82, 286 A.2d at 917. In affirming the jury verdict, this Court approvingly quoted the trial court’s jury charge, which identified the elements of economic duress:

(1) there exists such pressure of circumstances which compels the injured party to involuntarily or against his will execute an agreement which results in economic loss, and (2) the injured party does not have an immediate legal remedy. The cases cited by defendant on this point . . . are inapplicable [**36] because in those cases the defendants did not bring about the state of financial distress in which plaintiffs found themselves at the time of signing. In the instant case, the final and potentially fatal blow was prepared by defendant, which by its actions created the situation which left plaintiffs with no alternative but to sign the contract as written.

* * *

Business compulsion is not establish[ed] merely by proof that consent was secured by the pressure of financial circumstances, but a threat of serious financial loss may be sufficient to constitute duress and to be ground for relief where an ordinary suit at law or equity might not be an adequate remedy. . . .

Id. at 282-83, 286 A.2d at 917 (citations, punctuation, and footnote omitted).

In Chepkevich, our Supreme Court adverted to economic duress in resolving whether an exculpatory agreement should be construed as a contract of adhesion:

[D]ownhill skiing–like auto racing–is a voluntary and hazardous activity . . . . Moreover, an exculpatory agreement conditioning use of a commercial facility for such activities has not been construed as a typical contract of adhesion. The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, [**37] because it does not relate to essential services, but merely governs a voluntary recreational activity. See [Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D. Pa. 1990)] (exculpatory clause valid under Pennsylvania law where activity is purely recreational); Grbac v. Reading Fair Co., 521 F. Supp. 1351, 1355 (W.D. Pa. 1981), aff’d, 688 F.2d 215 (3d Cir. 1982) (exculpatory clause releasing stock car racing company from liability for death arising out of recreational race not invalid contract of adhesion [*116] under Pennsylvania law). The signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable. . . .

It is also apparent that the Release here is valid under the other elements of the [standard governing validity of exculpatory provisions set forth in Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (1993), and Emp’rs Liab. Assurance Corp. v. Greenville Bus. Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966) (referred to as the Topp Copy/Employers Liability standard)], aside from adhesion contract concerns. First, the Release cannot be said to contravene any policy of the law. Indeed, the clear policy of this Commonwealth, as embodied by the [Skier’s Responsibility] Act, is to encourage the sport and to place the risks of skiing squarely on the skier. 42 Pa.C.S. § 7102(c)(2). Furthermore, Pennsylvania courts have upheld similar releases respecting skiing and other inherently dangerous sporting [**38] activities. See, e.g., Wang v. Whitetail Mountain Resort, 2007 PA Super 283, 933 A.2d 110 (Pa. Super. 2007) (citing Superior Court panel’s decision in instant case, but upholding release as applied to snow tubing accident); [Nissley v. Candytown Motorcycle Club, 2006 PA Super 349, 913 A.2d 887 (Pa. Super. 2006)] (upholding exculpatory agreement that released defendant motorcycle club from “all liability”); [Zimmer v. Mitchell & Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978)] (upholding exculpatory clause releasing ski rental shop from liability for injury suffered when skier’s bindings failed to release during fall). And, finally, the Release [the appellee] signed is a contract between the ski resort and [the appellee] relating to their private affairs, specifically [the appellee’s] voluntary use of the resort’s facilities.

Chepkevich, 607 Pa. at 28-30, 2 A.3d at 1190-91. Thus, an exculpatory clause is not typically analyzed within the framework of whether it is an contract of adhesion. Id. at 29, 2 A.3d at 1191 (“The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”).

The case of Gillingham v. Consol Energy, Inc., 2012 PA Super 133, 51 A.3d 841 (Pa. Super. 2012), appeal denied, 621 Pa. 679, 75 A.3d 1282 (2013), is also instructive. Technical Solutions contractually employed Gillingham to work full-time on a software development project located at one of Consol Energy’s properties; Gillingham was considered an independent contractor of [**39] Consol. Id. at 853-54. A few weeks later, Consol asked Gillingham to sign “a stack of documents,” which included

a waiver of his right to sue Consol in the event he was injured due to its negligence. He felt that he had to sign the pages in question since he was contractually obligated to provide his services on the project through Technical Solutions. Mr. Gillingham believed that he was not in a position to refuse to sign the documents presented to him by Consol, and he stated, “If I would have not signed them, I would have to leave the site . . . because it’s like saying, No, I’m not going to honor your agreement and protect this technology.” He also would have violated his contract with Technical Solutions.

Id. at 854 (citation omitted). While exiting a Consol building via an exterior metal stairway, Gillingham was injured when the stairway collapsed. Id. at 847.

[*117] Gillingham successfully sued Consol. Id. On appeal, Consol contended the trial court should have granted its request for judgment notwithstanding the verdict because of the release Gillingham signed. Id. at 852. Gillingham countered that he felt compelled to sign the Consol release because (1) “he was contractually obligated to provide his services on the [**40] project through Technical Solutions,” and (2) he would have violated his employment contract with Technical Solutions, i.e., his employer. Id. at 854. The Gillingham Court held the record was sufficient to have a jury ascertain whether “Gillingham, who was under contract to provide services on the project, was compelled to execute the documents due to Consol’s superior bargaining position.” Id. The Court thus affirmed the jury’s verdict in favor of Gillingham. Id.

Instantly, we frame Whitewater’s question as whether one party to a contract can invoke duress when that duress was allegedly imposed by a non-party and not by the other party to the contract. More precisely, we examine whether McDonald can void the release by claiming the School of the Holy Child economically compelled her to sign the release with Whitewater. McDonald’s presumption is that economic compulsion, i.e., duress, by a non-party to a contract can be “transferred.”

Under these unique facts, we decline McDonald’s apparent invitation to expand a doctrine traditionally invoked between contracting parties. Our Supreme Court held that [HN11] mutual assent is a prerequisite to contract formation and that such mutual assent is absent [**41] “when one of the contracting parties elicits the assent of the other contracting party by means of duress.” See Degenhardt, 543 Pa. at 153, 669 A.2d at 950. McDonald and Whitewater are the contracting parties to the release; the School of the Holy Child is not a contracting party. It follows that the School of the Holy Child could not elicit the assent of McDonald by duress. See id.

Further, McDonald does not claim Whitewater economically compelled her to sign the release. Unlike the plaintiff in Litten, McDonald has not alleged that Whitewater–a contracting party–maneuvered her into economic distress and compelled her to sign the contract. Cf. Litten, 220 Pa. Super. at 281-82, 286 A.2d at 917; Tri-State, 187 Pa. Super. at 18, 142 A.2d at 334 (resolving allegation of duress between contracting parties). Whitewater, which provided recreational services similar to the ski resort in Chepkevich, did not compel McDonald to participate, “much less . . . sign the exculpatory agreement.” See Chepkevich, 607 Pa. at 29, 2 A.3d at 1191. In contrast to Gillingham, in which the plaintiff was contractually obligated to work for Consol, the other contracting party, McDonald was not contractually obligated to participate in recreational activities at Whitewater. Cf. Gillingham, 51 A.3d at 854. Nor did she allege that she would have violated her contract with the School of the Holy Child if she did not [**42] sign the Whitewater release. Cf. id. (stating plaintiff would have violated his employment contract with Technical Solutions, his direct employer, if he did not sign Consol release). In sum, given the predicate condition of a threat by one contracting party against another contracting party, economic duress by a non-party to a contract does not appear easily amenable to concepts of “transference” in this case.20

20 We do not foreclose the possibility, however, in other cases.

Assuming, however, duress by a non-contracting party could be invoked to negate mutual assent between contracting parties, and assuming that the possibility of not receiving a raise greater than 1% is [*118] a cognizable economic loss, McDonald’s suggestion that unless she signed the release, she could potentially not receive such a raise is, on this record, too conjectural. See Litten, 220 Pa. Super. at 282, 286 A.2d at 917; Tri-State, 187 Pa. Super. at 20-21, 142 A.2d at 335 (holding duress is “more than a mere threat” of possible economic injury in indefinite future). McDonald notes she received only a 1% raise in February of 2007. See Ex. C to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 13. But a minimal raise, after the fact, does not alone demonstrate that when McDonald signed the [**43] release in May 2006, she did so because she feared economic injury, i.e., not receiving a raise greater than 1%.

Having resolved that economic compulsion is not available to McDonald, we address Whitewater’s last two issues together: whether the release is valid and enforceable and thus bars McDonald’s claims. Whitewater asserts the release met all the elements of the Topp Copy/Employers Liability standard governing the validity of exculpatory clauses. Whitewater thus contends the trial court erred by denying summary judgment on liability. Whitewater, we hold, is entitled to relief.

In Chepkevich, our Supreme Court resolved “whether a skier may maintain a negligence action against a ski resort for injuries sustained while skiing or whether suit is barred by statute and/or a release signed by the skier.” Chepkevich, 607 Pa. at 3, 2 A.3d at 1175.

The Release, printed on a single page and titled “RELEASE FROM LIABILITY,” stated:

Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to variations in snow and terrain, ice and icy conditions, moguls, rocks, debris (above and below the surface), bare spots, lift towers, poles, snowmaking [**44] equipment (including pipes, hydrants, and component parts), fences and the absence of fences and other natural and manmade objects, visible or hidden, as well as collisions with equipment, obstacles or other skiers. . . . All the risks of skiing and boarding present the risk of serious or fatal injury. By accepting this Season Pass I agree to accept all these risks and agree not to sue Hidden Valley Resort or their employees if injured while using their facilities regardless of any negligence on their part.

Id. at 5, 2 A.3d at 1176.

The Chepkevich Court set forth the three elements of the Topp Copy/Employers Liability standard for determining the validity and enforceability of an exculpatory clause:

[HN12] It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. In Dilks v. Flohr Chevrolet, 411 Pa. 425, 192 A.2d 682 (1963), we noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear [**45] that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention [*119] of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Chepkevich, 607 Pa. at 26, 2 A.3d at 1189 (citations omitted). Our Supreme Court held the release was valid and enforceable, and concluded the release barred the skier’s negligence lawsuit.21 Id. at 3, 31, 35, 2 A.3d at 1175, 1192, 1195.

21 The Chepkevich Court also held that the skier’s lawsuit was alternatively barred by the Skier’s Responsibility Act, 42 Pa.C.S. § 7102. See Chepkevich, 607 Pa. at 25, 2 A.3d at 1188.

In Tayar, the plaintiff was injured while snow tubing at a ski resort. Tayar, 616 Pa. at 390, 47 A.3d at 1193. She raised claims of negligence and reckless conduct against the ski resort and one of its employees. Id. at 391, 47 A.3d at 1194 (summarizing trial court’s decision). In response, the defendants [**46] asserted the plaintiff’s claims were barred because she signed the following release:

CAMELBACK SNOW TUBING

ACKNOWLEDGMENT OF RISKS AND AGREEMENT NOT TO SUE

THIS IS A CONTRACT–READ IT

I understand and acknowledge that snow tubing, including the use of lifts, is a dangerous, risk sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries. I understand that part of the thrill, excitement and risk of snow tubing is that the snow tubes all end up in a common, runout area and counter slope at various times and speeds and that it is my responsibility to try to avoid hitting another snowtuber and it is my responsibility to try to avoid being hit by another snowtuber, but that, notwithstanding these efforts by myself and other snowtubers, there is a risk of collisions.

* * *

IN CONSIDERATION OF THE ABOVE AND OF BEING ALLOWED TO PARTICIPATE IN THE SPORT OF SNOWTUBING, I AGREE THAT I WILL NOT SUE AND WILL RELEASE FROM ANY AND ALL LIABILITY CAMELBACK SKI CORPORATION IF I OR ANY MEMBER OF MY FAMILY IS INJURED WHILE USING ANY OF THE SNOWTUBING FACILITIES OR WHILE BEING PRESENT AT THE FACILITIES, EVEN IF I CONTEND THAT [**47] SUCH INJURIES ARE THE RESULT OF NEGLIGENCE OR ANY OTHER IMPROPER CONDUCT ON THE PART OF THE SNOWTUBING FACILITY.

Id. at 388-89, 47 A.3d at 1192-93. The trial court agreed with the defendants that the release absolved them of liability. Id. at 390-91, 47 A.3d at 1194. The plaintiff appealed to the Superior Court on, inter alia, whether the release exculpated defendants from reckless conduct. Id. at 391, 47 A.3d at 1194. The Superior Court, in an en banc decision, held that the release was limited to negligent conduct only. Id. (summarizing Superior Court’s holding).

The Tayar Court granted allowance of appeal to address, among other issues, whether the release barred the plaintiff’s claim for reckless conduct. Id. at 392, 47 A.3d at 1194. Our Supreme Court initially [*120] observed that “exculpatory clauses releasing a party from negligence generally are not against public policy.” Id. at 401, 47 A.3d at 1200. The Tayar Court held that the above release did not exculpate the defendants from reckless conduct because of the fundamental differences between negligence and recklessness. Id. at 403, 47 A.3d at 1201. Thus, our Supreme Court held that the plaintiff’s claim for reckless conduct could proceed. Id. at 406, 47 A.3d at 1203.

Regarding the first element needed for a valid exculpatory clause, Pennsylvania courts have affirmed exculpatory releases for “skiing and other inherently dangerous [**48] sporting activities,” such as snowtubing and motorcycle racing. See Chepkevich, 607 Pa. at 30, 2 A.3d at 1191 (citing Wang, supra, and Nissley, supra). Other activities include automobile racing,22 paintballing,23 and whitewater rafting.24 Thus, [HN13] Pennsylvania courts have held exculpatory clauses pertaining to inherently dangerous sporting activities do not “contravene any policy of the law.”25 Chepkevich, 607 Pa. at 29, 2 A.3d at 1191.

22 Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 140, 582 A.2d 1380, 1383 (1990) (affirming summary judgment in favor of defendant based on valid and enforceable exculpatory agreement signed by plaintiff).

23 Martinez v. Skirmish, U.S.A., Inc., Civ. No. 07-5003, 2009 U.S. Dist. LEXIS 51628, *34, 2009 WL 1676144, *12 (E.D. Pa. June 15, 2009) (holding release was valid and enforceable against plaintiff’s negligence claim).

24 Wroblewski v. Ohiopyle Trading Post, Civ. No. 12-0780, 2013 U.S. Dist. LEXIS 119206, at *30, 2013 WL 4504448, at *9 (W.D. Pa. Aug. 22, 2013) (concluding release signed by plaintiff exculpated whitewater rafting company for plaintiff’s negligence claim).

25 Courts have held invalid exculpatory clauses involving bailees, banks, and common carriers. Dilks, 411 Pa. at 434 n.9, 192 A.2d at 687 n.9 (citing cases).

With respect to the second element, our Supreme Court held [HN14] “[t]he validity of a contractual provision which exculpates a person from liability for his own acts of negligence is well settled if the contract is between persons relating entirely to their own private affairs.” Dilks, 411 Pa. at 433, 192 A.2d at 687. Lastly, the third element’s reference to “contracts of adhesion” may be problematic given different facts, as the Chepkevich Court acknowledged. Chepkevich, 607 Pa. at 28 n.18, 2 A.3d at 1190 n.18. The Chepkevich [**49] Court conceded that if the plaintiff “could not dicker over the terms of the form contract,” the release could have been a contract of adhesion. Id. But our Supreme Court emphasized, “such contracts executed in the course of voluntary participation in recreational activities have not been declared unenforceable on these grounds, presumably because we recognize an inherent policy-based distinction between ‘essential’ activities (such as signing a residential lease) and voluntary, nonessential ones (such as engaging in dangerous sports).” Id. Finally, [HN15] absent fraud, “failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.” Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (citations omitted and alteration in original).

Instantly, Whitewater’s exculpatory clause addressing negligence does not contravene Pennsylvania’s public policy. See Tayar, 616 Pa. at 401, 47 A.3d at 1200; Chepkevich, 607 Pa. at 29, 2 A.3d at 1191. Pennsylvania state and federal courts have affirmed substantively identical clauses in other dangerous sporting activities, including whitewater rafting. See Chepkevich, 607 Pa. at 30, 2 A.3d at 1191 (collecting [*121] cases); see also Wroblewski, 2013 U.S. Dist. LEXIS 119206, at *30, 2013 WL 4504448, at *9. Second, the release between McDonald and Whitewater related entirely to her participation in a hazardous [**50] recreational activity. See Dilks, 411 Pa. at 433, 192 A.2d at 687. We acknowledge that McDonald chaperoned this trip and that, in general, chaperoning field trips, among other duties, was an “extra” duty inherent to working at the School of the Holy Child. See Ex. C to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 14. But McDonald did not identify any materials issues of fact contradicting Sullivan’s deposition testimony that no teacher was compelled to chaperone any particular trip. See Ex. I to McDonald’s Mem. of Law in Opp’n to Whitewater’s Second Mot. for Summ. J., at 40-41. Indeed, McDonald did not dispute that an employee was not required to participate in extracurricular trips to demonstrate commitment to the community–one of four areas employees are evaluated in each year. See id. Lastly, identical to the plaintiff in Chepkevich, McDonald voluntarily engaged in a non-essential activity. See Chepkevich, 607 Pa. at 28 n.18, 2 A.3d at 1190 n.18. Accordingly, we hold Whitewater’s exculpatory clause is valid. See id. at 26, 2 A.3d at 1189.

As for the clause’s enforceability, we examine whether the clause “spells out the intention of the parties with particularity and shows the intent to release [Whitewater] from liability by express stipulation.” See id. at 30, 2 A.3d at 1191. The instant [**51] clause was titled “RELEASE OF LIABILITY — READ BEFORE SIGNING” “in capital letters in large font at the top,” identical to the Chepkevich release. See id. at 31, 2 A.3d at 1192. The language releasing Whitewater from liability was written in the same size font as the body of the release and required McDonald’s signature. See id.

Whether or not [McDonald] availed herself of the opportunity to read the Release she signed, we cannot agree that a full-page, detailed agreement, written in normal font and titled “RELEASE [OF] LIABILITY” constitutes an insufficient effort on the part of [Whitewater] to inform [McDonald] of the fact that, by signing [the release], she was giving up any right she might have to sue for damages arising from injuries caused even by negligence.

See id. Further, McDonald voluntarily engaged in whitewater rafting and Whitewater did not compel her to sign the release. See id. McDonald admittedly did not attempt to negotiate the terms of the release. See id. Accordingly, we conclude the release is enforceable. See id. Because the release is valid and enforceable, the trial court erred by denying Whitewater’s motion for summary judgment on liability and thus, Whitewater is due relief. See Charlie, 100 A.3d at 250. The [**52] order below is affirmed with respect to its holding that Pennsylvania law applies and reversed to the extent it held material issues of fact existed regarding Whitewater’s liability.

Order affirmed in part and reversed in part. Case remanded with instructions to grant judgment in favor of Whitewater and adverse to McDonald and for further proceedings, as deemed necessary. Jurisdiction relinquished.

Judgment Entered.

Date: 4/29/2015


Summer 2015 Commercial Fatalities

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 July1, 2015. However information on several of these fatalities is confusing or  difficult to determine what is correct. Thanks.

Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

3/2

Backcountry Skiing

AK

Chugach Mountains

Calving Glacier

28

M

 

http://rec-law.us/1CpcDtI

5/22

Whitewater Rafting

CO

Clear Creek

Raft Flipped

47

F

M258.5

rec-law.us/1I3HWx7

5/31

Whitewater Rafting

MT

Gallatin River

Raft Flipped

43

M

House Rock

rec-law.us/1GhQpwm

6/5

Whitewater Rafting

UT

Colorado River, Westwater

Raft Flipped

50

M

Funnel Falls

rec-law.us/1HduOnS

6/10

Whitewater Rafting

CO

Arkansas River, Brown’s Canyon,

Raft high sided

11

M

Big Drop

rec-law.us/1GwG51X

6/11

Zip Line

NC

Camp Cheerio

 

12

F

 

rec-law.us/1FdpyKX

 

Whitewater Rafting

CO

Arkansas River

 

52

M

Salt Lick

rec-law.us/1KRwN2b

 

Whitewater Rafting

CO

Animas

 

 

M

 

 

6/23

Wakeboarding

GA

Carters Lake

 

23

M

 

rec-law.us/1e3wdBF

 

Whitewater Rafting

NM

Rio Grande

 

52

M

 

rec-law.us/1LDliwP

7/4

Whitewater Rafting

CO

Clear Creek

 

20

M

 

rec-law.us/1LWmk7l

7/6

Whitewater Rafting

CO

Poudre River

Medical

76

M

 

rec-law.us/1NPBLeT

 

 

 

 

 

 

 

 

 

If you are unable to read the chart, email me at jim@rec-law.us and I’ll send it to you as a PDF.

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.

What do you think? Leave a comment.

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