BYA Sports Recalls Skyline Backyard Zipline Kits Due to Fall Hazard

Name of Product: Bring Your Adventure Sports (BYA) Skyline Zipline Kits

Recall Summary

http://www.cpsc.gov/en/Recalls/2016/BYA-Outdoors-Recalls-Skyline-Backyard-Zipline-Kits/

Hazard: A crimp in the zipline can fail allowing the cable to pull free or become slack while in use, posing a fall hazard to the user.

Remedy: Replace

Consumers should immediately stop using the recalled zipline kits and contact BYA Sports for a free replacement kit.

Consumer Contact: BYA Sports collect at 303-443-0163 from 8 a .m. to 5 p.m. MT Monday through Friday, or online at http://www.BYAsports.com and click on the Recall Information tab for more information.

Recall Details

Photos available at http://www.cpsc.gov/en/Recalls/2016/BYA-Outdoors-Recalls-Skyline-Backyard-Zipline-Kits/

Units: About 5,700 (in addition, 990 units were sold in Canada)

Description: This recall involves BYA Sports Skyline backyard zipline kits sold in 60-, 75- and 90-foot cable lengths. The kits were sold in camouflage packaging containing a main cable, trolley, short cable, turnbuckle and u-clamps. The following bar codes are found on the bottom left side of the packaging: 7456111220012 (60-ft.), 7456111220029 (75-ft.), and 7456111220036 (90 ft.). The BYA logo and “Skyline (60, 75 or) 90 Zipline Kit” are printed on the front of the packaging.

Incidents/Injuries: CPSC and the firm have received nine reports of cable failure, including six reports of injuries. In three of the reported incidents, consumers sustained bruising and other unknown injuries from a fall. In the remaining three reported incidents, consumers reported head injuries.

Sold at: REI and other sporting goods stores nationwide and online at promotive.com from August 2013 through July 2015 for between $100 and $130.

Importer/Distributor/Manufacturer: BYA Sports, of Louisville, Colo.

Manufactured in: China

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

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Zip line accused of being common carrier which makes releases unenforceable. Issue still not decided, however, in all states common carriers cannot use a release as a defense.

Many ropes courses have determined that agreeing to be supervised by the state is the way to go. In Illinois, that supervision would have voided all defenses for a challenge course because they would have been classified as a common carrier. Common carriers’ have extremely limited defenses to claims.

Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

State: Illinois, Appellate Court of Illinois, Fifth District

Plaintiff: April Dodge

Defendant: Grafton Zipline Adventures, LLC, and Michael Quinn

Plaintiff Claims: negligently designing and operating its course, intentionally or recklessly violated the safety regulations promulgated by the Illinois Department of Labor, and thereby engaged in willful and wanton misconduct. In count II, the plaintiff claimed that Quinn, a tour guide for Grafton Zipline, was negligent in instructing the plaintiff, in inspecting and maintaining the braking system, and in failing to prevent the plaintiff from colliding with the tree. The plaintiff also alleged willful and wanton misconduct against Quinn

Defendant Defenses: Release

Holding: Sent back to the trial court to determine if a zip line under Illinois law is a common carrier

Year: 2015

The facts are pretty normal for zip line lawsuits. The plaintiff while riding was unable to slow down or stop and hit the tree holding the platform. In this case it was the eighth line of multiple zip lines down the mountain.

The defendant filed a motion to dismiss based on a release signed by the plaintiff. The plaintiff argued that the release was barred because the zip line was a common carrier under Illinois law and as such “they cannot exempt themselves from liability for their own negligence.”

The trial court agreed with the plaintiff that a zip line was a common carrier. That analysis was based on the theory that:

…in that zip lines fell within the definition of amusement rides pursuant to the Illinois Carnival and Amusement Rides Safety Act (430 ILCS 85/2-2 (West 2012)) and were akin to merry-go-rounds or other amusement rides that had been held to be common carriers.

The defendants filed a motion for permissive interlocutory appeal which was denied by the appellate court. However the Illinois Supreme Court directed the appellate court to vacate (reverse) its order denying the appeal.

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

The court first looked at Illinois law on releases, calling them exculpatory clauses.

An exculpatory clause is a contractual provision that excuses the defaulting party’s liability. “Courts disfavor such agreements and construe them strictly against the benefitting party, particularly one who drafted the release.” “Nevertheless, contracting parties are free to ‘allocate the risk of negligence as they see fit, and exculpatory agreements do not violate public policy as a matter of law.'”

The analysis under Illinois law concerning releases is pretty standard. Although “disfavored” they are upheld.

Accordingly, if a valid exculpatory clause clearly applies, and in the absence of fraud or willful and wanton negligence, courts will enforce it unless “‘(1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.

Releases under Illinois law however are unenforceable when applied to common carriers as releases for common carriers create a violation of public policy.

Exculpatory agreements between the public and those charged with a duty of public service, such as those involving a common carrier, an innkeeper, a public warehouseman, or a public utility, have been held to be unenforceable as contrary to public policy.

The unenforceability of a release between a passenger and a common carrier is due to the relationship between the two.

Courts have alternatively recognized that exculpatory agreements between common carriers and passengers are unenforceable because of the special social relationship of a semipublic nature that permeates the transaction between the parties.

Arguments given for this are based on the fact the passenger pays for transportation from one location to another and during that transportation the passenger is totally at the control of the common carrier. The passenger cannot drive, inspect the track, road or path of travel, work on the engines or anything of that manner. The only thing the passenger can do is sit back and ride. The passenger has no control over their safety.

In this case, slowing or braking was under the control of the plaintiff.

A common carrier is held to the highest duty of care when transporting passengers.

Common carriers are charged with the highest duty of care when transporting passengers because passengers must wholly rely upon a common carrier’s proper maintenance and safe operation of its equipment during passage.

In Illinois common carriers have been identified as: “owners of buildings with elevators; a scenic railway at an amusement resort, where “steep inclines, sharp curves, and great speed necessarily are sources of peril”; a merry-go-round; a taxicab; and a Ferris wheel.” Here, as in most states, the safety of the passenger is totally under the control of the owner of the ride. What is different is normally a common carrier is taking people from once location to another, not around in circle or down a mountain you just ascended.

The court also examined and compared common carriers with private carriers.

Further, courts have distinguished between a common and a private carrier. “A common carrier, generally, is a carrier hired to carry any person who applies for passage as long as there is room available and there is no legal excuse for refusing.” “Ordinarily, a common carrier must accept as a passenger any person offering himself or herself for passage at the proper time and in the proper manner and who is able and willing to pay the fare.”

Here again, a common carrier is easily identified as a train, bus service or airline.

A common carrier holds himself out as such by advertising or by actually engaging in the business and pursuing the occupation as an employment. The test to distinguish a common carrier from a private carrier is whether the carrier serves all of the public alike.

The distinction between private carrier and a common carrier is gray in Illinois and the court spent time reviewing the issues. If the passenger actively can participate in the transportation and contributed to his or her own safety, the carrier is not a common carrier. In Illinois not being a common carrier does not necessarily mean a private person is a Private Carrier.

Private carriers as ordinarily defined are those who, without being engaged in such business as a public employment, undertake to deliver goods or passengers in a particular case for hire or reward.” A private carrier makes no public profession to carry all who apply for transport, transports only by special agreement, and is not bound to serve every person who may apply.

Normally the distinction is made by the courts based on whether or not the carrier is a business, in the business of moving people from one place to another for a fee. Trains, busses, airlines are common carriers. Here the definition is confused because of the existence in Illinois of a broad definition of private carrier that is to say the least confusing.

Whether a particular transportation service is undertaken in the capacity of a private or of a common carrier must be determined by reference to the character of the business actually carried on by the carrier, and also by the nature of the service to be performed in the particular instance.”

It is this distinction that the court found to be at issue in this case, whether a zip line is a common carrier or a private carrier.

The appellate court sent the case back to the trial court to determine if a zip line under Illinois law is a private carrier or a common carrier. If the trial court, which has ruled once already that a zip line, is a common carrier, rules the zip line is a common carrier, the sole issue at trial will be damages. How large will the check be that the zip line writes the plaintiff?

So Now What?

Readily accepting government regulation may provide a degree of relief in that you pass the safety inspection you are good for the season. However, once you are under that regulatory umbrella, you may also be classified by the regulations, statutes or the courts in a way you did not anticipate. You may lose defenses available to you prior to regulation.

This is similar to having a statute passed which provides liability protection for you. However this can be a two edge sword. Many state supreme courts have held that once a statute is enacted to provide protection, the only protection available is from the statute.

Many states create special categories for regulated industries. Here, falling under the regulation of the state classified the zip line as a common carrier.

The good news is the appellate court did not see the zip line as immediately qualifying as being controlled by the statute. Statutes usually define what they cover and the court did not even investigate the definition in this case.

However the court did look into whether or not a zip line was a common carrier. If the trial court finds that it is, there will be no end to the claims against zip lines in Illinois. Looked at another way, if the trial court determines a zip line is a common carrier, there will be an end to zip lines.

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#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, Zip Line, Zipline, Common Carrier, Private Carrier, Release, Exculpatory Clause,

 


Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

April Dodge, Plaintiff-Respondent, v. Grafton Zipline Adventures, LLC, and Michael Quinn, Defendants-Petitioners.

NO. 5-14-0124

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

July 14, 2015, Decision Filed

NOTICE: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(E)(1).

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Madison County. No. 13-L-238. Honorable Barbara L. Crowder, Judge, Presiding.

Dodge v. Grafton Zipline Adventures, LLC, 2014 Ill. LEXIS 1270, 387 Ill. Dec. 513, 22 N.E.3d 1166 (Ill., 2014)

JUDGES: JUSTICE SCHWARM delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

OPINION BY: SCHWARM

OPINION

ORDER

[*P1] Held: Appellate court declines to answer the certified question and remands to the trial court to hear evidence to determine whether exculpatory agreement is between the public and one charged with a duty of public service, i.e., a common carrier, and therefore unenforceable.

[*P2] The plaintiff, April Dodge, filed the instant suit seeking recovery for injuries she sustained while riding on an aerial zip line course designed and operated by defendant Grafton Zipline Adventures, LLC (Grafton Zipline), by which defendant Michael Quinn is employed. The circuit court certified a question after denying the defendants’ motion to dismiss.

[*P3] BACKGROUND

[*P4] In her first amended complaint filed on May 3, 2013, the plaintiff alleged that Grafton Zipline operated an aerial zip line course in which paying guests, riding from one elevated platform to another, were guided over a series of suspended wire cable runs. The plaintiff alleged that [**2] “guests [we]re outfitted with a harness and pulley system which attache[d] to the suspended cables and which in theory allow[ed] them to control their speed by braking on descents.” The plaintiff alleged that on the eighth run of the zip line course, the plaintiff’s braking system failed to slow her descent, she approached the landing platform at a high rate of speed, and she violently struck the trunk of the tree on which the landing platform was mounted, fracturing her right heel bone.

[*P5] In count I, the plaintiff alleged that Grafton Zipline was a common carrier that breached its duty of care by negligently designing and operating its course, intentionally or recklessly violated the safety regulations promulgated by the Illinois Department of Labor (56 Ill. Adm. Code 6000.350 (2013)), and thereby engaged in willful and wanton misconduct. In count II, the plaintiff claimed that Quinn, a tour guide for Grafton Zipline, was negligent in instructing the plaintiff, in inspecting and maintaining the braking system, and in failing to prevent the plaintiff from colliding with the tree. The plaintiff also alleged willful and wanton misconduct against Quinn.

[*P6] On June 7, 2013, pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)), the defendants [**3] filed a motion to dismiss the plaintiff’s first amended complaint on the basis that the plaintiff’s claims were barred by an exculpatory agreement signed by the plaintiff prior to her participation in the zip line activity. In the agreement, the plaintiff agreed to release the defendants from liability for injury, disability, death, or loss or damage to persons or property, whether caused by negligence or otherwise.

[*P7] In the plaintiff’s memorandum of law in opposition to the defendants’ motion to dismiss, the plaintiff asserted that the defendants’ exculpatory agreement was unenforceable. The plaintiff asserted that zip line courses are common carriers under Illinois law, and as such, they cannot exempt themselves from liability for their own negligence.

[*P8] On November 1, 2013, the circuit court held that exculpatory clauses were unenforceable against plaintiffs injured by the ordinary negligence of a common carrier. The circuit court noted that when parties disagree as to whether a defendant is a common carrier, the question becomes a controverted question of fact to be determined after considering evidence. However, the circuit court found that the pleadings before it alleged sufficient [**4] facts to establish that the defendants were common carriers, in that zip lines fell within the definition of amusement rides pursuant to the Illinois Carnival and Amusement Rides Safety Act (430 ILCS 85/2-2 (West 2012)) and were akin to merry-gorounds or other amusement rides that had been held to be common carriers. The circuit court thereby denied the defendants’ section 2-619 motion to dismiss based on the exculpatory clause but also stated that “questions of fact remain as to whether [d]efendants *** are within the definition of common carriers.”

[*P9] On March 6, 2014, the circuit court, pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), entered its order certifying the following question for appeal:

“Is an exculpatory agreement signed by a participant on a zip[ ]line course, that released the zip[ ]line operator and its employees from their own negligence, enforceable to bar the participant’s suit for negligence, or is the zip[ ]line course a common carrier such that the exculpatory agreement is unenforceable?”

[*P10] On March 20, 2014, the defendants filed an application for permissive interlocutory appeal, which we denied on April 21, 2014. On September 24, 2014, however, the Illinois Supreme Court directed this court to vacate its judgment denying [**5] the defendants’ application for leave to appeal and directed us to grant such application. Dodge v. Grafton Zipline Adventures, LLC, 387 Ill. Dec. 513, 22 N.E.3d 1166 (Ill. 2014). On November 5, 2014, per the supreme court’s supervisory order and pursuant to Illinois Supreme Court Rule 308, we thereafter allowed the defendants’ permissive interlocutory appeal.

[*P11] ANALYSIS

[*P12] On appeal, the defendants argue that the exculpatory agreement signed by the plaintiff bars her negligence claims and that the exculpatory agreement is enforceable because Grafton Zipline is not a common carrier. The plaintiff counters that the circuit court’s certified question is not ripe for determination because there are unresolved questions of fact regarding whether Grafton Zipline is a common carrier. We agree with the plaintiff.

[*P13] “The scope of review in an interlocutory appeal brought under [Illinois Supreme Court] Rule 308 is limited to the certified question.” Spears v. Association of Illinois Electric Cooperatives, 2013 IL App (4th) 120289, ¶ 15, 986 N.E.2d 216, 369 Ill. Dec. 267. “A reviewing court should only answer a certified question if it asks a question of law and [should] decline to answer where the ultimate disposition ‘will depend on the resolution of a host of factual predicates.’ [Citations.]” Id. “A certified question pursuant to Rule 308 is reviewed de novo.” Id.

[*P14] An exculpatory [**6] clause is a contractual provision that excuses the defaulting party’s liability. See Black’s Law Dictionary 648 (9th ed. 2009) (defining an exculpatory clause as “a contractual provision relieving a party from liability resulting from a negligent or wrongful act”); McKinney v. Castleman, 2012 IL App (4th) 110098, ¶ 14, 968 N.E.2d 185, 360 Ill. Dec. 106 (exculpatory agreement involves express assumption of risk wherein one party consents to relieve another of a particular obligation). “Courts disfavor such agreements and construe them strictly against the benefitting party, particularly one who drafted the release.” McKinney, 2012 IL App (4th) 110098, ¶ 14. “Nevertheless, contracting parties are free to ‘allocate the risk of negligence as they see fit, and exculpatory agreements do not violate public policy as a matter of law.'” Id. (quoting Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407, 412, 869 N.E.2d 195, 311 Ill. Dec. 521 (2007)).

[*P15] Accordingly, if a valid exculpatory clause clearly applies, and in the absence of fraud or willful and wanton negligence, courts will enforce it unless “‘(1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.'” McKinney, 2012 IL App (4th) 110098, ¶ 14 (quoting Harris v. Walker, 119 Ill. 2d 542, 548, 519 N.E.2d 917, 116 Ill. Dec. 702 (1988)). Exculpatory agreements between the public and those charged with a duty of public service, such as those involving a common [**7] carrier, an innkeeper, a public warehouseman, or a public utility, have been held to be unenforceable as contrary to public policy. McKinney, 2012 IL App (4th) 110098, ¶ 14; Johnson v. Salvation Army, 2011 IL App (1st) 103323, ¶ 19, 957 N.E.2d 485, 354 Ill. Dec. 169; White v. Village of Homewood, 256 Ill. App. 3d 354, 358-59, 628 N.E.2d 616, 195 Ill. Dec. 152 (1993). Courts have alternatively recognized that exculpatory agreements between common carriers and passengers are unenforceable because of the special social relationship of a semipublic nature that permeates the transaction between the parties. See McClure Engineering Associates, Inc. v. Reuben Donnelley Corp., 101 Ill. App. 3d 1109, 1111, 428 N.E.2d 1151, 57 Ill. Dec. 471 (1981); First Financial Insurance Co. v. Purolator Security, Inc., 69 Ill. App. 3d 413, 419, 388 N.E.2d 17, 26 Ill. Dec. 393 (1979) (“when an exculpatory provision is found invalid because of a special relationship between the parties, it is the semipublic nature of the party seeking to exculpate itself from liability that allows the court to invalidate the provision”).

[*P16] Thus, any contract by which a common carrier of goods or passengers undertakes to relieve itself from liability for loss or damage arising from its negligence or the negligence of its servants is void. Checkley v. Illinois Central R.R. Co., 257 Ill. 491, 494, 100 N.E. 942 (1913); Simmons v. Columbus Venetian Stevens Buildings, Inc., 20 Ill. App. 2d 1, 17, 155 N.E.2d 372 (1958); Restatement (Second) of Torts § 496B cmt. g (1965) (“Where the defendant is a common carrier ***, or is otherwise charged with a duty of public service, and the agreement to assume the risk relates to the defendant’s performance of any part of that duty, it is well settled that it will not be given effect.”). “Having undertaken the duty to the public, which includes the obligation of reasonable care, [**8] [common carriers] are not free to rid themselves of their public obligation by contract, or by any other agreement.” Restatement (Second) of Torts § 496B cmt. g (1965).

[*P17] An exculpatory contract, wherein a common carrier of goods or passengers undertakes to exempt itself from liability for negligence “if sustained, would relieve the carrier from its essential and important duties to the public growing out of the character of its employment, and tend to defeat the foundation principle on which the law of common carriers is based; that is, the securing of the highest care and diligence in the performance of the important duties due to the public.” Checkley, 257 Ill. at 494; see also Simmons, 20 Ill. App. 2d at 17. “The heightened status afforded to common carrier[ ] *** relationships is based on the protection of the public ***.” Zerjal v. Daech & Bauer Construction, Inc., 405 Ill. App. 3d 907, 912, 939 N.E.2d 1067, 345 Ill. Dec. 887 (2010); see also Simmons, 20 Ill. App. 2d at 17 (“It has been said if there is any general reason for the rule to be deduced from the passenger cases, it is that the public service consideration alone prevents contractual limitation of liability for negligence.”).

[*P18] In holding that a common carrier has a duty to exercise the highest degree of care consistent with the practical operation of its conveyances to protect its passengers (Rotheli v. Chicago Transit Authority, 7 Ill. 2d 172, 177-78, 130 N.E.2d 172 (1955); Browne v. Chicago Transit Authority, 19 Ill. App. 3d 914, 917, 312 N.E.2d 287 (1974)), courts have considered the “‘unique control [a common [**9] carrier] possesses over its passengers’ safety.'” Krywin v. Chicago Transit Authority, 391 Ill. App. 3d 663, 666, 909 N.E.2d 887, 330 Ill. Dec. 865 (2009) (quoting Sheffer v. Springfield Airport Authority, 261 Ill. App. 3d 151, 154, 632 N.E.2d 1069, 198 Ill. Dec. 458 (1994)); see also O’Callaghan v. Dellwood Park Co., 242 Ill. 336, 345, 89 N.E. 1005 (1909) (“If the injury of a passenger is caused by apparatus wholly under the control of a carrier and furnished and managed by it, and the accident is of such a character that it would not ordinarily occur if due care is used, the law raises a presumption of negligence.”). “Common carriers are charged with the highest duty of care when transporting passengers because passengers must wholly rely upon a common carrier’s proper maintenance and safe operation of its equipment during passage.” Sheffer, 261 Ill. App. 3d at 156. “[C]ommon carriers are responsible for their patrons’ physical safety for which there is no second chance if a mistake should occur.” Zerjal, 405 Ill. App. 3d at 912.

[*P19] In determining whether a defendant is a common carrier that owes the highest degree of care in transporting its passengers, the courts have characterized the following as common carriers: owners of buildings with elevators (Rotheli, 7 Ill. 2d at 177); a scenic railway at an amusement resort, where “steep inclines, sharp curves, and great speed necessarily are sources of peril” (O’Callaghan, 242 Ill. at 344); a merry-go-round (Arndt v. Riverview Park Co., 259 Ill. App. 210, 216-17 (1930)); a taxicab (Metz v. Yellow Cab Co., 248 Ill. App. 609, 612 (1928)); and a Ferris wheel (Pajak v. Mamsch, 338 Ill. App. 337, 341, 87 N.E.2d 147 (1949)).

[*P20] In finding that an escalator was not a common carrier, the Illinois Supreme Court in Tolman found [**10] it significant that a person on an escalator may actively participate in the transportation in a manner similar to the use of a stairway and may contribute to his own safety. Tolman v. Wieboldt Stores, Inc., 38 Ill. 2d 519, 526, 233 N.E.2d 33 (1967). The court noted that the role of a passenger on a train, bus, or elevator is a passive one, and ordinarily such a passenger cannot exercise any control over his own safety. Id. at 525. The court further held that the rule as to the higher duty one owning and operating an elevator owes to a passenger riding in same, who is injured through some defect in its operating mechanism, is predicated upon the fact that a person riding in an elevator cannot possibly know or show, if such elevator gets out of control, what caused it to do so. Id. at 524-25. The court noted that because the elevator owner was in sole control of the elevator and the machinery used in its operation, an inference of negligence on the part of said owner arose out of the circumstances. Id.; see also Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 111, 125, 733 N.E.2d 874, 248 Ill. Dec. 199 (2000) (because bank had full control of premises, it had the duties of common carrier owed to the plaintiff who suffered injuries when the lift he was riding suddenly fell); Carson v. Weston Hotel Corp., 351 Ill. App. 523, 532, 115 N.E.2d 800 (1953) (lessee in full control of the premises had the duties of a common carrier of elevator [**11] passengers).

[*P21] While proper solicitude for human safety requires a carrier of passengers not to diminish its liability to them, the relative bargaining power of the parties is also a factor. Simmons, 20 Ill. App. 2d at 17. In Hamer v. City Segway Tours of Chicago, LLC, 402 Ill. App. 3d 42, 43-44, 930 N.E.2d 578, 341 Ill. Dec. 368 (2010), the plaintiff sought to recover for injuries she suffered on a tour run where she rode a segway onto a small grassy hill, and it threw her off. The plaintiff signed a release before participating in the tour. Id. The plaintiff argued, however, that her social relationship with the defendant and its tour guide rendered the release unenforceable. Id. at 46. The court concluded, without analysis, that the defendant was not a common carrier. Id. Finding also that that there was no disparity of bargaining power because the plaintiff simply could have refused to join the tour if she had disagreed with the exculpatory clause, the court held that the exculpatory language of the release was enforceable. Id.

[*P22] Further, courts have distinguished between a common and a private carrier. “A common carrier, generally, is a carrier hired to carry any person who applies for passage as long as there is room available and there is no legal excuse for refusing.” Long v. Illinois Power Co., 187 Ill. App. 3d 614, 628, 543 N.E.2d 525, 135 Ill. Dec. 142 (1989). “Ordinarily, a common carrier must accept as a passenger [**12] any person offering himself or herself for passage at the proper time and in the proper manner and who is able and willing to pay the fare.” Id. “[A] common carrier may be liable for an unexcused refusal to carry all who apply.” Doe v. Rockdale School District No. 84, 287 Ill. App. 3d 791, 794, 679 N.E.2d 771, 223 Ill. Dec. 320 (1997). A common carrier is “obligated by law to undertake the charge of transportation, which none but a common carrier, without a special agreement, is.” Rathbun v. Ocean Accident & Guarantee Corp., 299 Ill. 562, 566, 132 N.E. 754 (1921).

[*P23] A common carrier holds himself out as such by advertising or by actually engaging in the business and pursuing the occupation as an employment. Id. at 567. The test to distinguish a common carrier from a private carrier is whether the carrier serves all of the public alike. Green v. Carlinville Community Unit School District No. 1, 381 Ill. App. 3d 207, 211, 887 N.E.2d 451, 320 Ill. Dec. 307 (2008); Illinois Highway Transportation Co. v. Hantel, 323 Ill. App. 364, 375, 55 N.E.2d 710 (1944). Again, common carriers necessarily have control and regulation of the passengers’ conduct and of the operation of the carriage before they can be held to the extraordinary liability of common carriers to such passengers. Rathbun, 299 Ill. at 567 (evidence that deceased contracted car by private contract and had control of car and driver revealed defendant was not common carrier but was liable only as private carrier for ordinary negligence).

[*P24] “Private carriers as ordinarily defined are those who, without being engaged in such business as a public employment, undertake [**13] to deliver goods or passengers in a particular case for hire or reward.” Rathbun, 299 Ill. at 566. A private carrier makes no public profession to carry all who apply for transport, transports only by special agreement, and is not bound to serve every person who may apply. Green, 381 Ill. App. 3d at 211; Rockdale School District No. 84, 287 Ill. App. 3d at 795.

[*P25] “Whether a particular transportation service is undertaken in the capacity of a private or of a common carrier must be determined by reference to the character of the business actually carried on by the carrier, and also by the nature of the service to be performed in the particular instance.” (Internal quotation marks omitted.) Long, 187 Ill. App. 3d at 630. When a plaintiff affirms and the defendant denies that the defendant is operating as a common carrier, the question becomes a controverted question of fact to be determined by a consideration of the evidence by the trial court. Rathbun, 299 Ill. at 566; Bare v. American Forwarding Co., 242 Ill. 298, 299, 89 N.E. 1021 (1909); Hantel, 323 Ill. App. at 374; Beatrice Creamery Co. v. Fisher, 291 Ill. App. 495, 497, 10 N.E.2d 220 (1937).

[*P26] Accordingly, we find that whether Grafton Zipline is a common carrier is a question of fact, “dependent upon the nature of the business in which [it is] engaged, and [is] to be determined from a consideration of all of the evidence.” Beatrice Creamery Co., 291 Ill. App. at 497. In its order, the circuit court noted that questions of fact remained regarding whether Grafton Zipline is a common carrier. [**14] We agree and find this so with regard to the certified question. To determine whether the exculpatory clause is unenforceable on the basis that Grafton Zipline is a common carrier “charged with a duty of public service” the court must necessarily determine disputed factual issues. The court must determine whether Grafton Zipline had control and regulation of the passengers’ conduct and of the operation of the carriage (see Rathbun, 299 Ill. at 567 (evidence that deceased contracted car by private contract and had control of car and driver revealed defendant was not common carrier but was liable only as private carrier for ordinary negligence)); whether the plaintiff actively participated in the transportation and contributed to her own safety (Tolman, 38 Ill. 2d at 525-26 (because escalator allowed the plaintiff to actively participate in the transportation and allowed control over safety, escalator not common carrier); whether there was a disparity of bargaining power between the parties (see Hamer, 402 Ill. App. 3d at 43-44 (exculpatory clause enforceable where plaintiff could simply have refused to join the segway tour)); and whether Grafton Zipline made a profession to carry all who applied for carriage (see Browne v. SCR Medical Transportation Services, Inc., 356 Ill. App. 3d 642, 647, 826 N.E.2d 1030, 292 Ill. Dec. 594 (2005) (because medical transport van served only those individuals [**15] who met its eligibility requirements, could decline to serve anyone based on numerous factors such as location and availability of medical transport vans, made no profession to carry all who apply for carriage, and was not bound to serve every person who may apply, medical transport van was not a common carrier)). To answer the certified question before the circuit court has heard evidence on these matters would be premature. Thus, we decline to answer the certified question, and we remand the cause for further proceedings consistent with this order. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 477, 693 N.E.2d 358, 230 Ill. Dec. 229 (1998).

[*P27] CONCLUSION

[*P28] For the reasons stated, we decline to answer the certified question as its ultimate disposition depends on the resolution of multiple factual predicates. We remand the cause to the Madison County circuit court for further proceedings.

[*P29] Certified question not answered; cause remanded.


ANSI/PRCA American National Standard

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12.jpgZiplines, Canopy Tours, Ropes Courses and Aerial Adventure Parks;

Now governed by a NEW ANSI National Standard

 

Popular Adventure Activities Are Governed by a New StandardThe Professional Ropes Course Association Announces ANSI Approved American National Standards for Ziplines, Rope Challenge Courses, Canopy Tours and Aerial Adventure Parks.

Professional Ropes Course Association (PRCA)

Rockford, Illinois

Contacts: Steven Gustafson, President of the PRCA, (815) 637-2969(815) 637-2969
Michael Barker, Vice President of the PRCA, (203) 464-9784(203) 464-9784

March 17, 2014

FOR IMMEDIATE RELEASE:

Popular Adventures: Ziplines, Canopy Tours, Ropes Courses and Aerial Adventure Parks are Now governed by a new ANSI National Standard

THE AMERICAN NATIONAL STANDARDS INSTITUTE (ANSI) APPROVES AMERICAN NATIONAL STANDARDS FOR ZIPLINES, CANOPY TOURS, AERIAL ADVENTURE PARKS AND ROPE CHALLENGE COURSES DEVELOPED AND MANAGED BY THE PROFESSIONAL ROPES COURSE ASSOCIATION (PRCA)

ANSI APPROVED National Standards Provide much needed Safety Guidance for the Largely Self-Regulated Industry

The standard Enables course owners and managers to conduct in-house training and Certify their own staff

On March 7, 2014 the American National Standards Institute (ANSI) announced (pg 17) their approval of the first consensus-based American National Standard for construction, inspection, maintenance and employee training/certification governing the Zipline, Canopy Tour, Ropes Challenge Course and Aerial Adventure Parks industry. The Professional Ropes Course Association (PRCA), the ANSI Accredited Standards Developer, will manage the new ANSI-PRCA Standards as Secretariat. 10.jpg

Says Mike Barker, Vice President of the PRCA Board of Directors: “This new ANSI Standard provides a consistent reference and much needed safety guidance for State Regulators, Inspectors, Insurers and Industry Professionals.” He adds, “Moreover, this standard enables course and tour owners/managers to conduct their own in-house training, certify their own staff and designate qualified persons to conduct course inspections – expensive services that previously required performance by a limited national vendor pool that couldn’t adequately service the entire industry.”

Steve Gustafson, President of the PRCA adds: “ANSI standards are subjected to an extensive vetting process, including consensus involvement by materially affected parties in the standards development process.” He adds, “The Professional Ropes Course Association (PRCA) is the Accredited Standards Developer and Secretariat of the ANSI approved Standards. Having worked for the past nine years to develop the standard, I’m proud of this accomplishment. The positive contributions that this standard brings to benefit safety for the public and for our industry are huge!”

The PRCA became the first ANSI Accredited Standards Developer (pg 17) for Ropes Courses, Ziplines, Canopy Tours and Aerial Adventure Parks in 2005. This accreditation ensures that the PRCA’s process for the development of the new standard was in compliance with ANSI Essential Requirements (E.R.) which include openness, lack of dominance, balance of industry representation, coordination and harmonization, transparency, public input, and avoid conflict or duplication of other previously announced candidate or published ANS.

Based on ANSI findings that no other candidate standards or ANS had been published to date for the industry, the PRCA Project Initiation Notification (PINS) was accepted and published by ANSI (pg 14). Since that time, the PRCA Candidate ANS underwent one informal and three (including the changes review) formal public review periods. Hundreds of volunteers presented over one thousand comments for consideration and review. During this process, the PRCA Consensus Body harmonized the Candidate ANS with European Standards, Australia/NZ Standards, ASTM, and other standards and regulations as needed. To further foster harmonization and balance, the PRCA offered the Association for Challenge Course Technology (ACCT) the opportunity to join with the PRCA and publish a joint standard, with fifty/fifty shared roles and profit sharing splits in addition to three voting positions on the PRCA Consensus Body, and one voting position on the continuous Standards Management Committee. On repeated occasions ACCT refused all offers of participation in the process.

It is the PRCA’s understanding that ACCT has chosen to file an appeal with ANSI per the appeal process afforded to all persons who have completed a standard developer’s appeal process. ACCT must show proof that ANSI did not follow their own procedures when approving the American National Standard. Further, ACCT states that they filed a successful appeal last July with the PRCA. This is partly true, yet disingenuous. While the ACCT appeal was granted on one out of three issues, this only meant that the PRCA had to clarify the fee structure for the PRCA appeal process, allowing interested parties an opportunity to file their appeals for a second time. This was conducted and no appeals were filed. In two previously filed appeals, both independent appeals panels found in favor of the PRCA stating that the procedures had been followed. This then cleared the way for the PRCA to submit the candidate standard for consideration this year, which was ultimately approved by ANSI as the American National Standard for the industry.

While the ACCT and others have the right to appeal and make accusations of an inability to participate, facts point to numerous invitations and public notices placed on industry listservs, the PRCA website, emails to the ACCT’s leadership and all of the ACCT PVM’s, emails to other materially affected Associations (BSA, ACA, GSA, etc), and published in the ANSI Standards Action Newsletter, to review and comment on the candidate standard, participate on the Consensus Body, and serve on the Standards management Committee or even participate in a joint standard. These facts go directly to an October 2006 decision by ANSI, whereas ANSI instructed the PRCA to view the ACCT as a materially affected Association and for both associations to make good faith efforts to harmonize with the ACCT in cooperative standard development. The PRCA did honor and respect ANSI’s decision by offering to share in a joint standard and serve on the PRCA Consensus Body, the ultimate gesture of goodwill and harmonization. Now, the ACCT must explain to ANSI why it has barred the PRCA from their process and other of their actions; and perhaps they will have to address their industry controlling actions of years past.

Meanwhile, the ANSI/ PRCA 1.0-.3 – 2014 stands as the ANSI approved American National Standards while any ACCT ANSI level appeal is conducted. This is now between ACCT and ANSI.

If you want more information on the American National Standard, what it is, the processes involved, how it applies, how it relates to the old PRCA and ACCT standards and how it saves you money go to www.prcainfo.org and click on Frequently Asked Questions on the 11.gif

American National Standard ANSI/PRCA 1.0-.03 – 2014

If your materially affected association would like to serve on the PRCA Standards management Committee or if you just want more information, please contact us at info

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Summer Camp, Zip line injury and confusing legal analysis in Washington

A 200' Mammoth Deluxe zip line installed over ...

A 200′ Mammoth Deluxe zip line installed over a pond. (Photo credit: Wikipedia)

Oldja v. Warm Beach Christian Camps and Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Facts, no prepared defense and the plaintiff will get to go to trial.

In this case, I think the parents of a child who was attending the summer camp opted to ride the camp zip line. The zip line had two ropes that attached the rider to the haul line. The adult plaintiff when getting ready to ride wrapped one rope around his fingers. When he launched, the rope tightened almost severing his fingers.

The defendant filed a motion for summary judgment. However, the analysis by the court did not read like the normal decisions on motions for summary judgment and started out by denying part of the plaintiff’s argument.

Summary of the case

The plaintiff argued the summer camp, landowner, owed him a duty of ordinary care. The court found this really did not apply to this case, and the duty was a duty to disclose rather than a duty of ordinary care. However, the court allowed this argument to proceed.

Under Washington’s law, the duty of ordinary care is defined as:

a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

The court then argued that the plaintiff was arguing the wrong legal issues because the plaintiff was arguing the plaintiff was a landowner; however, the injury did not occur on the land.

Because the injury the plaintiff received was based on the acts of the plaintiff, wrapping a rope around his hand, there was no violation of a duty by the defendant.

Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:

Q. Did you know that if you wrapped the rope around your fingers, and then you put weight on the rope, that  would tighten and cinch around your fingers?

A. The thought did not cross my mind.

Q. Okay. You didn’t think about that correct?

A. Correct.

Q. But if you had thought about it, you would have been able to figure that out, correct?

A. If someone asked me?

Q. Yes.

A. Yes.

Because the plaintiff admitted that if he thought  about it, he would have realized that his actions would injure his hand, the defendant did not owe him a greater duty than it had done.

The plaintiff then stretched with two additional causes or claims. The first was the defendant had violated a state statute because the zip line was not inspected by the state. However, the statute that the plaintiff tried to apply, the amusement ride statute, did not include zip lines in its definitions until after the plaintiff’s accident. The statute at the time the plaintiff was injured did not apply to zip lines.

The next argument is farther out there, and exponentially scarier. The plaintiff argued that a zip line should be classified as a common carrier. A common carrier under most state interpretations are airlines, trains, buses, etc. Those types of transportation, carriers for hire, where the customer pays to be moved from one place to the next owe their customers the highest degree of care. The transportation must be for the purpose of movement, not amusement. The scary part is a common carrier owes the highest degree of care to its customers.

This definition means that a common carrier is liable in most situations for any injury to its passengers.

However, the court did not find a zip line was a common carrier. Thankfully.

So Now What?

The obvious issue that was missed, was the camp should have been using a release. An adult is on the property having fun; an injury will occur.

A motion for summary judgment is used when the legal arguments against a claim are sufficient to eliminate that claim. In most cases, this ends the lawsuit as long as all claims are ruled in favor of the defendant. Here the one claim, no matter how sketchy is probably going to allow the plaintiff to recover some amount of money.

Based on the ruling, the plaintiff will get his day in court or be paid not to go to court. A slip when someone is loading a zip line, no release and a traumatic injury add up to a big lawsuit.

What do you think? Leave a comment.

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