After this decision, I’m not sure you could prove assumption of the risk without a written document and a video or more.

Posted: April 22, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Pennsylvania | Tags: assumption of the risk, Balance Beam, Challenge Couse, Corporate Team Building, Low Challenge Course, Team Building, Woodloch Pines Resort | 3 Comments

Plaintiff was part of a team-building group for her school/employer, she fell off the balance beam and sued for her injuries.

Hazen v. Woodloch Pines Resort, Civil Action 3:21-cv-00174 (M.D. Pa. Feb 16, 2024)

State: Pennsylvania, United States District Court, M.D. Pennsylvania

Plaintiff: Erin Hazen

Defendant: Woodloch Pines Resort d/b/a Woodloch Pines, et al

Plaintiff Claims:

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 2024

Summary

A middle school assistant principal fell off a low rope’s balance beam, 12″ high, into wood chips suffering injuries to her leg, ankle, and foot. However, under the interpretation of the defense of assumption of the risk by this court, she did not assume the risk of her injuries.

This has got to be appealed!

Facts

Woodloch Pines Resort (“Woodloch”) is an all-inclusive family resort located in Pike County, Pennsylvania. Since the 1990s, it has offered corporate team building activities on an outdoor low ropes challenge course. One of the elements of this challenge course was a “balance beam” or “teeter-totter” device made up of a fulcrum with a plank on top of it. The plank or “beam” is 10-feet long and 10%-inches wide. The fulcrum is 12-inches high and, when at its highest point, the end of the plank or beam is 3 feet above the surface below. The area below and around the balance beam device was covered with wooden mulch, presumably to, cushion the fall of any participants.

In June 2019, the plaintiff, Erin Hazen, was an assistant principal at KIPP TEAM Academy, a public charter school in Newark, New Jersey. She had been working there for about a year. On Saturday, June 22, 2019, Hazen and ten of her colleagues from the “leadership team” at KIPP TEAM Academy were on the third day of a leadership retreat at Woodloch. That morning, they participated in the outdoor challenge course activities as a team. After completing several other activities, they attempted the “balance beam” activity, where Hazen was injured.

The team was instructed by Eric Ranner, Woodloch’s corporate activities director, that the goal of the balance beam activity was to get the entire 11-person leadership team onto the plank without breaking either of two eggs that had been placed under each end of the plank. The parties dispute whether Ranner gave any additional verbal instructions or warnings to the participants. Ranner was the only Woodloch employee present at the time.

After two unsuccessful attempts to complete the activity, the team was able to get ten members on the plank at once during its third attempt. When the eleventh team member mounted the plank, it became unbalanced and Hazen fell off, along with other participants. At least one other participant landed on top of Hazen.

As a result of her fall, Hazen suffered a gruesome ankle injury, including left ankle dislocation, a displaced left ankle trimalleolar fracture with transverse medial malleolar fracture, a transverse distal one-third fibula shaft fracture, syndesmotic rupture, and a minimally displaced proximal fracture in the metaphysis. Her medical treatment included three surgeries and ongoing physical therapy. Due to her injuries, resultant physical limitations, and her course of treatment, Hazen was forced to resign from her job at KIPP TEAM Academy.

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

The only defense raised in this motion was Assumption of the Risk. Under Pennsylvania law assumption of the risk is defined as:

…assumption of the risk is established by showing that the injured party fully appreciated the nature of the risk it faced and voluntarily assumed it. In addition, the injured party must not have had a meaningful and reasonable alternative path to avoid the risk.

Pennsylvania has an additional requirement to prove assumption of the risk from the majority of other states. Most states require that the plaintiff understood and knowingly assumed the risk. In Pennsylvania, the defendant must also prove that the plaintiff had a reasonable alternative way to avoid the risk.

This court then went on to define the components of the assumption of the risk under Pennsylvania law.

Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness – to accept it. A plaintiff has voluntarily assumed the risk where he fully understands it and Voluntarily chooses to encounter it.

If the plaintiff assumes the risk, like many states, this removes from the defendant the duty to protect the plaintiff.

Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known arid obvious risk and therefore is considered to have assumed liability for his own injuries.”

The court then went on to define what a risk, or danger as this court defined it, is:

A danger is deemed “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” For a danger to be “known,” it must “not only be known to exist, but. . . also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.”

In all states, the trier of fact, the jury, must determine if the plaintiff assumed the risk. In some states, the court can make that decision in a motion if there is prior case law with similar facts or if the court determines that a jury would find for the defendant.

It is for that reason that Assumption of the Risk as a defense is second to use a release. A properly written release allows the defendant to motion for a summary judgment and the court, the trial judge can decide, there is no need to spend the money to go to trial.

Here the court went further to define the risk working hard to find a definition that would put an increased burden on the defendant, effectively removing the defense of assumption of the risk.

In defining assumption of risk most courts say the plaintiff must knowingly understand the risk. Here the court stated the plaintiff must not only understand the risk but also the “magnitude and its unreasonable character.”

Going deeper into this extensive black hole to support the plaintiff the court stated.

The defendant’s burden to establish assumption of the risk is a tall order, because assumption of the risk requires knowledge of a specific risk, “It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. Rather, the plaintiff must be aware of ‘the particular danger’ from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.

The plaintiff under this ruling must not only know the risk, but the defendant must also prove the plaintiff knew of the particular danger which injured him or her.

The judge is requiring the plaintiff to have a crystal ball to understand every possible injury that could come from assuming the risk.

You are standing on a beam, elevated above the ground 12 inches on a beam that is 10″ wide with 11 other people, and not only must you know that you can fall off, but you must know that you will receive a severe leg, ankle, and foot injury.

Hazen suffered a gruesome ankle injury, including left ankle dislocation, a displaced left ankle trimalleolar fracture with transverse medial malleolar fracture, a transverse distal one-third fibula shaft fracture, syndesmotic rupture, and a minimally displaced proximal fracture in the metaphysis

You need to make a mental note when reading a case when the judge describes the injury as gruesome and then specifically identifies each injury the plaintiff suffered.

The court found the plaintiff understood and assumed that she could fall off the beam and suffer an injury. However, the court went on to say “But “awareness of a general risk does not amount to awareness of a specific risk.”

The judge continued on this track:

Awareness of the specific risk presented by the balance beam activity here includes not just an appreciation of the general possibility that she might fall, but also an appreciation of the likelihood of a fall and the potential for serious injury such as the complex multiple ankle fractures and other injuries that our plaintiff, in fact, suffered.

The next issue the court brought up was whether or not the plaintiff had a real choice to participate or not participate in any part of the team-building exercise.

Here, the parties dispute whether Hazen’s participation in the balance beam activity was voluntary. In her affidavit, Hazen has stated that she felt her participation in this team building activity was required rather than voluntary, noting that she had just finished her first year as an assistant principal at the charter school, she was required in that role to lead by example and thus participate fully in team-building activities, and the purpose of this particular activity was to get the entire team of eleven onto the plank at one time.

At what point in life can you not stop and say I don’t want to do this?

The court proceeded to dismiss the motion by the defendants.

Accordingly, based on the facts and evidence of record, viewed in the light most favorable to the non-moving plaintiff, we find that a reasonable jury could conclude that the plaintiff was not subjectively. aware of the specific risk of serious injury posed by her participation in the balance beam activity that resulted in her injuries, or that she did not voluntarily accept that risk.

So Now What?

I have no idea what a trimalleolar fracture is. Nor does Word or Grammarly recognize trimalleolar as a word. Yet, this court expected a middle school assistant principal to understand the word, and the risk associated with it.

Let alone the ability, as a leader in a school, assistant principal, that she does not want to participate in an activity because of the risk. If you don’t learn that in middle school, where are you going to learn it?

Here the court went out of its way to find requirements for the defense to prove that were outlandish and impossible. The only way to win anything like this in Pennsylvania in the future is to have the participants sit down and watch a video describing all the possible ways to get hurt, record the participants watching the video, and then sign an agreement, assumption of the risk or release which says the know and understand the risks and the particular dangers of each risk and that the person signing watched the video.

This decision is a little shocking.

What do you think? Leave a comment.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To Purchase Go Here:

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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 by clicking here and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2024 Summit Magic Publishing, LLC

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Hazen v. Woodloch Pines Resort, Civil Action 3:21-cv-00174 (M.D. Pa. Feb 16, 2024)

Posted: April 22, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Pennsylvania | Tags: Balance Beam, challenge course, Corporate Team Building, Low Challenge Course, Low Course, Ropes course, Team Building, Woodloch Pines Resort | Leave a comment

ERIN HAZEN, Plaintiff,
v.
WOODLOCH PINES RESORT d/b/a WOODLOCH PINES, et al., Defendants.

Civil Action No. 3:21-cv-00174

United States District Court, M.D. Pennsylvania

February 16, 2024

MEMORANDUM

(SAPORITO, M. J.)

Woodloch Pines Resort (“Woodloch”) is an all-inclusive family resort located in Pike County, Pennsylvania. Since the 1990s, it has offered corporate team building activities on an outdoor low ropes challenge course. One of the elements of this challenge course was a “balance beam” or “teeter-totter” device made up of a fulcrum with a plank on top of it. The plank or “beam” is 10-feet long and 10%-inches wide. The fulcrum is 12%-inches high and, when at its highest point, the end of the plank or beam is 3%4eet above the surface below. The area below and around the balance beam device was covered with wooden mulch, presumably to, cushion the fall of any participants.

The team was instructed by Eric Ranner, Woodloch’s corporate activities director, that the goal of the balance beam activity was to get the entire 11-person leadership team onto the plank without breaking either of two eggs that had been placed under each end of the plank.^[1] The parties dispute whether Ranner gave any additional verbal instructions or warnings to the participants. Ranner was the only Woodloch employee present at the time.

After two unsuccessful attempts to complete the activity, the team was able to get ten members on the plank at once during its third attempt. When the eleventh team member mounted the plank, it became unbalanced and Hazen fell off, along with other participants.^[2] At least one other participant landed on top of Hazen.

Hazen brought this federal diversity action asserting state-law negligence claims against each of the defendants. The defendants have answered the complaint, and, following the completion of discovery, they have moved for summary judgment. In support of their motion for summary judgment, the defendants argue that Hazen is barred from all recovery by the doctrine of primary assumption of the risk.

Because this is a diversity action, we must apply Pennsylvania’s substantive law and federal procedural law. See Gasperini v. Cir. for Humans., Inc., 518 U.S. 415, 427 (1996). “Under Pennsylvania law, assumption of the risk is established by showing that the injured party fully appreciated the nature of the risk it faced and voluntarily assumed it. In addition, the injured party must not have had a meaningful and reasonable alternative path to avoid the risk.” Kirschbaum v WRGSB Assocs., 243 F.3d 145, 156-57 (3d Cir. 2001) (citation omitted); see also . Mucowski v Clark, 590 A.2d 348, 350 (Pa. Super. Ct. 1991) (“Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness – to accept it. A plaintiff has voluntarily assumed the risk where he fully understands it and Voluntarily chooses to encounter it.”) (citation omitted and emphasis added). “Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known arid obvious risk arid therefore is considered to have assumed liability for his own injuries.” Barrett v. FredavidBuilders, Inc., 685 A.2d 129,130 (Pa. Super. Ct. 1996); see also Carrender v. Fitterer, 469 A.2d 120, 125 (Pa. 1983) (holding that, when an invitee assumes the risk of injury from a dangerous condition, the landowner no longer owes the invitee a duty of care).

As the Carrender court explained:

A danger is deemed “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” For a danger to be “known,” it must “not only be known to exist, but. . . also be recognized that it is dangerous and the probability arid gravity of the threatened harm must be appreciated.”

Carrender, 469 A.2d at 123-24 (quoting Restatement (Second) of Torts § 343Acmt. b (Am. L. Inst. 1965)) (citations omitted, ellipsis in original).

“Whether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude and its unreasonable character, is a question of fact, usually to be determined by the jury under proper instructions from the court. The court may itself determine the issue only where reasonable men could not differ as to the conclusion.”. Staymates E ITT Holub Indus., 527 A.2d 140, 146 (Pa. Super. Ct. 1987) (quoting Restatement (Second) of Torts §496D cmt.e); see also Kaplan v. Exxon Corp., 126 F.3d 221, 225 (3d Cir. 1997); Mucowski,
_:590.A.2d at 350 (quoting Staymatesf Carrender, 469 A.2d at 124. As this court has previously explained:

Given that its application is a “drastic measure” barring a plaintiffs recovery, to grant summary judgment on assumption of the risk as a matter of law the court must-conclusively and beyond question- find that the plaintiff was subjectively aware of a specific risk, voluntarily accepted it and acted in spite of that risk, and suffered harm contemplated by that specific risk. The defendant’s burden to establish assumption of the risk is a tall order, because . assumption of the risk requires knowledge of a specific risk, “It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. Rather, the plaintiff must be aware of ‘the particular danger’ from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.”

Smerdon v. GEICO Cas. Co., 342 F.Supp.3d 582, 587 (M.D. Pa. 2018) (quoting Bullman v Giuntoli, 761 A.2d 566, 569 (Pa. Super. Ct. 2000), _:and Barillari v. Ski Sha wnee, Inc., 986 F.Supp.2d 555, 562-63 (M.D. Pa. 2013)) (footnotes omitted).

Here, it is undisputed that Hazen was generally aware of the risk that she might fall from the balance beam during this activity. But “awareness of a general risk does not amount to awareness of a specific risk.” Smerdon, 342 F.Supp.3d at 588 (citing Barillari, 986 F.Supp.2d at 562-63). Awareness of the specific risk presented by the balance beam activity here includes not just an appreciation of the general possibility that she might fall, but also an appreciation of the likelihood of a fall and the potential for serious injury such as the complex multiple ankle fractures and other injuries that our plaintiff in fact suffered.^[4]
See Kirschbaum, 243 F.3d at 157 (finding evidence sufficient to permit a reasonable jury to conclude that office building tenant, who was aware of a broken handrail and that it would not aid him if he were to trip while on the stairs, lacked the necessary appreciation of the likelihood that he could fall and need to rely on the handrail); Rice v. Skytop Lodge Corp., No. 00-2243, 2002 WL 775484, at *3 (M.D. Pa. Apr. 23, 2002) (finding evidence Sufficient to permit a reasonable jury to conclude that a sledder, who was aware of general risks of sledding and who had observed the placement of a plastic fence at the bottom of the sledding hill, did not understand the specific risk of serious injury that might be caused by colliding with the fence); Mucowski, 590 A.2d at 350 (finding evidence sufficient to permit a reasonable jury to conclude that a senior engineering student, who was familiar with a pool and the depth of the water therein, was not subjectively aware of the specific risk that he could Strike his head on the bottom of the pool when diving into 4 feet of water from a railing around the pool). Hazen’s failure to fully appreciate the specific risk of serious injury posed by the balance beam activity is further underscored by the fact that, between herself and all ten of her leadership team colleagues that day, none believed the balance beam activity was so unsafe that they should decline to participate. See Smerdon, 342 F.Supp.3d at 589. “Under Carrender, this issue goes to the jury unless reasonable minds could not disagree.” Kaplan, 126 F.3d at 225.

In addition, We note that, “[a]mong the circumstances to consider in evaluating the voluntariness of the plaintiff’s action is whether the plaintiff had a real ‘choice.'” Kaplan, 126 F.3d at 226 (quoting Howell E Clyde, 620 A.2d 1107 (Pa. 1993) (plurality opinion)). Here, the parties dispute whether Hazen’s participation in the balance beam activity was voluntary. In her affidavit, Hazen has stated that she felt her participation in this team building activity was required rather than voluntary, noting that she had just finished her first year as an assistant principal at the charter school, she was required in that role to lead by example and thus participate fully in team-building activities, and the purpose of this particular activity was to get the entire team of eleven onto the plank at one time. Hazen Aff., Doc. 36’7.^[5] Thus, this element of the defendants’ assumption of the risk defense is also subject to a genuine dispute of material fact.

Accordingly, based on the facts and evidence of record, viewed in the light most favorable to the non-moving plaintiff, we find that a reasonable jury could conclude that the plaintiff was not subjectively . aware of the specific risk of serious injury posed by her participation in the balance beam activity that resulted in her injuries, or that she did not voluntarily accept that risk. Accordingly, the motion for summary judgment will be denied.

An appropriate order follows.

———

Notes:

^[1] In addition to multiple Woodloch corporate entities, Ranner is a named defendant in this action, along with Robert Filarsky, an assistant social director at Woodloch and Ranner’s supervisor that day.

^[2] The evidence suggests that some of the participants may have jumped off the plank, but it is undisputed that Hazen fell.

^[3] After a period of unemployment, Hazen is currently employed in a lower-paying position as a teacher at a different charter school in Morristown, New Jersey.

^[4] We note that, while Hazen could have visually observed the particular dimensions of the balance beam device and ascertained that it was made of wood, she had no experience performing this or similar activities in the past, and she had no knowledge of the device’s particular construction, including its weight capacity or the fact that the plank was not itself secured to the fulcrum.

^[5] In addition to deposition testimony by the parties themselves, deposition testimony by various nonparty witnesses, documentary and photographic evidence, arid expert witness reports, the plaintiff has relied on her owri testimonial affidavit, which is offered as a supplement to her deposition testimony and the other evidence. In their reply brief, the defendants have objected to consideration of this affidavit, arguing that it should be disregarded by the court under the “sham affidavit” doctrine. See generally Daubert E NRA Grp., LLC, 861 F.3d 382, 391 (3d Cir. 2017) (“When a nonmovant’s affidavit contradicts earlier deposition testiiriony without a satisfactory or plausible explanation, a district court -iriay disregard it at summary judgment in deciding if a genuine, material factual dispute exists. This is the sham-affidavit doctrine. In applying it we adhere to a ‘flexible approach,’ giving due regard to the ‘surrounding circumstances.”‘) (citations omitted); Perma Res. & Dev’p Co. v. Singer Co., 410 F.2d 572, 577-78 (2d Cir. 1969) (seminal case on the sham affidavit doctrine). But “the principle does not apply if the deposition and the later sworn statement are not actually contradictory.” Palazzo ex rel. Deimage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000). “To be covered by the sham affidavit doctrine, the affidavit testimony must actually contradict previous deposition testimony, not merely differ from it or be in tension With it.” Ramirez v. Lora, No. 18-11230, 2022 WL 1539176, at *8 (D.N.J. May 16, 2022). Here, the defendants have characterized the plaintiff’s affidavit as “self-serving and boot strapping” and “incredulous,” but they have failed to identify any contradictory testimony whatsoever. See Defs.’ Reply Br. 5-8, Doc. 37. Thus, we decline to disregard the Hazen affidavit as evidence on summary judgment.

———

Great Colorado Sun article about skiing and board injuries over the past five years

Posted: April 15, 2024 | Author: Recreation Law | Filed under: Ski Area, Skiing / Snow Boarding | Tags: Collisions, Law Enforcement, Ski Patrol, Skier Collisions, skier v. skier | Leave a comment

However, there is an inference from the interviews that is incorrect. The ski patrol is not trained, licensed, or allowed to chase down people in skier v. skier collisions.

Analyzing 5 years of injuries, crashes and hit-and-runs at Colorado ski areas by Jason Blevins

Skier v. Skier collision is the term used to describe any collision between a skier, snowboarder, ski bike, or any other form of sliding down the slopes at a ski area. That term has grown in use over the past twenty years because there are more skier v. skier collisions.

It has also taken on more prominence in our lives and the media because the plaintiff’s lawyers who used to sue ski areas for injuries now sue the negligent party in a skier v. skier collision. Most ski areas are protected by some form of ski area safety statute and most use a release. Those attorneys who used to sue ski areas are now suing skiers. You can tell from the billboards on, I-70 leaving the mountains. They used to say if you had been injured at a ski area to call an 800 number. Now they ask if you were hit at a ski area.

There is a quote in the article that can be misleading if you do not understand the entire legal complex around collision injuries occurring on the mountain.

The woman was describing what happened when she went to the ski patrol after her friend had been hit by a snowboarder.

She snapped a photo and brought it into the ski patrol headquarters at the top of the lift, wondering if maybe they would want to find the man and talk to him about the accident.

“They were completely indifferent,” she says. “I was like the weird old lady.”

I can tell you they were not indifferent. They just did not want to go to jail or be sued for helping. Probably they have been told to record the information at the scene from the witnesses, including the skier causing the collision if that person is still around.

Why don’t they do more?

They are not law enforcement. They do not have the authority, without seeing the collision, to do anything else.
If they did find the alleged perpetrator, and they held that person for law enforcement to arrive, they could be charged with false imprisonment or sued for it. False imprisonment does not require bars and a door; it only means you restricted someone’s movement without the right to do so.
And who would you detain someone? If you touch the person, you are committing a battery—both a civil and criminal act.

Everything the patroller, does that could result in a lawsuit against the patroller will result in a lawsuit against the ski resort he was working or volunteering at.

The article also looked into why people who are injured or more specifically their friends or family members can’t get that information from the ski patrol if they collect it.

The police are required to get a subpoena to collect information from non-parties in a criminal investigation. Just watch any cop show on TV, and you’ll learn that. Friends and family are no different from law enforcement to some extent. There must also be a nexus between the person asking and the information they want to the victim.

And those are not the only legal issues involved. HIPPA and medical confidentially laws control who has access to medical information. Just because your son or daughter was injured in a collision, if they are over the age of 18 you as a sibling, parent or friend cannot legally access that information without written consent from the person whose information you are requesting; The injured party.

There are also limits on how much information you can find on ski area injuries. If the incident is not reported to the Colorado Department of Public Health and Environment — or CDPHE or U.S. National Trauma Data Bank can’t be found to research. Twenty years ago, broken wrists were not reported. Yet snowboarders at one resort were suffering a broken wrist for every 1000 skiers and boarders at the resort. So, unless the injury falls into the class that is reported, any article is going to lack a total look at what is happening.

The article is good, but it is limited in what can be collected, more by circumstances than anything else.

What is the problem is this belief that the Ski Patrol is the sheriff on the mountain. They are not; they are not trained, and they do not have the legal authority to do anything except collect information in a skier v. skier collision.

They do have the authority to take your pass away for violating ski area rules. However, if you read your season pass or lift ticket, the ski area owns both the pass and ticket and you are using them with their permission. The ski patrol is just the lucky one to yank the permission.

Think about it, you are injured and lying in the snow. Who do you want to show up, a friendly ski patroller trained in first aid and how to get you off the slopes or a deputy asking you questions about who hit you? Later, after you are home and feeling better you might wish it had been a deputy, but right then you are looking for that cross on the back of a jacket and a reassuring look from a patroller.

What can you do?

Skiing and boarding have changed. No longer are you able to take off from the lift and bomb the slope? Ski Areas are two crowded; few skiers take lessons anymore, and the equipment has evolved so that learning to ski takes less time and patience than ever before.

That lack of time in learning to ski, or great instruction from ski instructors also means a lack of experience for a lot of people on the slopes. The old saying was it skiing was easier to learn, usually in one day. Snowboarding was harder to learn, but by day three, you could be headed to the Olympics.

At the same time, as a skier or boarder, you are responsible for yourself. Skiing and Boarding means knowing where you are and who is around you. If you are skiing on the edge of a run, you better include the trees as part of your scan area.

Always stop in a safe place, which nowadays is harder to find. Never stop under a rise, lip, or jump. Make sure you can be seen when you stop and stop so you can look uphill for any problems. If you see someone coming, be prepared to get out of the way.

Take a half-day lesson to make sure you know what you are doing, where you should be doing it, what to do if you screw up, and how to survive on the slopes.

Resorts are worried about the issues, finally, and are trying to figure out what that means to them and how they can deal with it.

Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Outdoor Recreation Insurance, Risk Management, and Law

Jim is the author or co-author of six books about legal issues in the outdoor recreation world; the latest is

Outdoor Recreation Insurance, Risk Management, and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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

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States that allow a parent to sign away a minor’s right to sue.

Posted: March 25, 2024 | Author: Recreation Law | Filed under: Alaska, Arizona, California, Colorado, Florida, Indiana, Maryland, Massachusetts, Minnesota, Nebraska, New York, North Carolina, North Dakota, Ohio, Release (pre-injury contract not to sue), Utah, Virginia, Wisconsin | Tags: Exculpatory Agreement, guardian, Minor, parent, Parents right to waive minor's right to sue, releases, waivers | Leave a comment

Unless listed here, your state does not allow a parent or guardian to sign away a minor’s right to sue.

State	By Statute	Restrictions
Alaska	Alaska: Sec. 09.65.292	Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona	ARS § 12-553	Limited to Equine Activities
Colorado	C.R.S. §§13-22-107
Florida	Florida Statute § 744.301 (3)	Florida statute that allows a parent to release a minor’s right to sue
Virginia	Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited	Allows a parent to sign a release for a minor for equine activities
Utah	78B-4-203. Limitations on Liability for Equine and Livestock Activities	Limited to Equine Activities (b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
By Case Law
California	Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida	Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454	Allows a release signed by a parent to require arbitration of the minor’s claims
Florida	Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147	Release can be used for volunteer activities and by government entities
Indiana	Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428
Maryland	BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897	Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts	Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota	Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299	Minnesota decision upholds parent’s right to sign away a minor’s right to sue.
Nebraska	Sinu v. Concordia Univ., 313 Neb. 218 (Neb. 2023)	Nebraska Supreme Court upholds release for a minor who was injured as a student athlete at a private college.
North Dakota	McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3	North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio	Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)	Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin	Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1	However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
	On the Edge, but not enough to really rely on	Decisions are by the Federal District Courts and only preliminary motions
North Carolina	Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741	North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York	DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695	New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

Check with your local attorney before relying on any information on this website.

Jim Moss

Outdoor Recreation Insurance, Risk Management, and Law

Jim is the author or co-author of six books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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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, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act, North Carolina, New York,

Make sure the person signing the release is the person you have on your trip.

Posted: February 15, 2024 | Author: Recreation Law | Filed under: Paddlesports, Pennsylvania, Release (pre-injury contract not to sue), Rivers and Waterways, Whitewater Rafting | Tags: fatality, Foot Entrapment, Forum selection clause, Lehigh River, Ltd., Pennsylvania, Pocono Whitewater, Release, Unguided Raft, Whitewater Rafting | Leave a comment

Mother signed her son up for a trip and claimed she signed the release. This invalidated a change of venue because the forum selection clause was not at issue.

Bonnen v. Pocono Whitewater, Ltd., Civil Action 3:20-cv-01532 (M.D. Pa. Sep 17, 2021)

State: Pennsylvania; United States District Court, M.D. Pennsylvania

Plaintiff: CAROLINE BONNEN, et al

Defendant: POCONO WHITEWATER, LTD

Plaintiff Claims: negligent, grossly negligent, and reckless in its conduct

Defendant Defenses: Release containing a forum selection clause

Holding: for the plaintiff

Year: 2021

Summary

The forum selection clause in the release was not upheld because the mother of the deceased claimed she signed the release. Since the deceased did not sign the release the forum selection clause was not valid.

Facts

On September 1, 2019, Christopher Santana was one of nine occupants in an eight-person raft, none of whom were guides, who were Whitewater rafting on the Lehigh River in Jim Thorpe, Carbon County, Pennsylvania. After the raft hit a rock, Santana was thrown from the raft into turbulent and rocky waters. His foot became lodged between rocks causing him to become submerged underwater, which resulted in his death by drowning. The plaintiff, Caroline Bonnen, individually and as Administratrix of the Estate of Christopher Santana, brings this wrongful death and survival action against the defendant, Pocono Whitewater, Ltd.

The defendant has filed a motion to dismiss seeking dismissal on the ground that a forum selection provision contained in a release of liability purportedly signed by the decedent sets the Court of Common Pleas of Carbon County as the appropriate and agreed-upon venue for any dispute “aris[ing] out of th[e] agreement or otherwise between the parties.”

A review of the amended complaint reflects that the plaintiff did not plead whether the release of liability has any relevance to the incident. Rather, the plaintiff has pled that the defendant was negligent, grossly negligent, and reckless in its conduct in a variety of several itemized instances. In her opposition papers, the plaintiff contends that the release of liability, which includes the forum selection clause contained therein, is invalid because the decedent did not execute the release. The plaintiff maintains that it was she who signed the decedent’s name, without authority to contract on behalf of the decedent..

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

The decision in this case was two paragraphs long. Since the mother claimed she signed the release for the deceased, the validity of the release and the forum selection clause it contained were at issue.

Since there was a dispute as to who signed the release containing the forum selection clause, the issue of the validity of the release and the clause were not something the court could ignore.

So Now What?

Signing releases electronically makes paperwork non-existent and allows the guests to see and sign the release in advance of any trip. This makes sign up or check in at day trips a breeze.

At the same time, it allows for people to argue they did not sign the release. Consequently, you need to modify your release to catch these issues and prevent them.

One way is to verify that the name signing the release is the name on the credit card used to pay for the trip or activity. If not flag the release and have a paper or new electronic version signed at check in.

You can also use the language in the credit card agreement to verify the fact that the person signing the release is the person who owns the credit card.

Another issue is one spouse signing a release online for both spouses and minor children. Dependent upon the state, you make have one spouse sign up online, the second spouse and if eligible minor children sign a paper copy at check in.

No matter what make sure the number of people signing up for your trip or activity are the ones in front of you checking in and you have the correct name on a release for each person checking in.

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Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor

Outdoor Recreation Insurance, Risk Management, and Law

Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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What do you think? Leave a comment.

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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

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Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2024 Summit Magic Publishing, LLC

Bonnen v. Pocono Whitewater, Ltd., Civil Action 3:20-cv-01532 (M.D. Pa. Sep 17, 2021)

Posted: February 15, 2024 | Author: Recreation Law | Filed under: Jurisdiction and Venue (Forum Selection), Legal Case, Paddlesports, Pennsylvania, Release (pre-injury contract not to sue), Rivers and Waterways, Whitewater Rafting | Tags: fatality, Foot Entrapment, Forum selection clause, Lehigh River, Ltd., Pennsylvania, Pocono Whitewater, Release, Unguided Raft, Whitewater Rafting | Leave a comment

Bonnen v. Pocono Whitewater, Ltd., Civil Action 3:20-cv-01532 (M.D. Pa. Sep 17, 2021)

CAROLINE BONNEN, et al., Plaintiffs,
v.
POCONO WHITEWATER, LTD., Defendant.

Civil Action No. 3:20-cv-01532

United States District Court, M.D. Pennsylvania

September 17, 2021

MEMORANDUM

JOSEPH F. SAPORITO, JR., U.S. Magistrate Judge.

This diversity action is before the court on the defendant’s motion to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(6) based on enforcement of a forum selection provision. (Doc. 15). The action arises out of an incident where the plaintiffs decedent died as a result of being thrown from a raft while Whitewater rafting on the Lehigh River in Carbon County, Pennsylvania. For the reasons set forth herein, we will deny the motion.

I. Statement of Facts

The defendant has filed a motion to dismiss (Doc. 15), seeking dismissal on the ground that a forum selection provision contained in a release of liability purportedly signed by the decedent sets the Court of Common Pleas of Carbon County as the appropriate and agreed-upon venue for any dispute “aris[ing] out of th[e] agreement or otherwise between the parties.” (Doc. 14-5).

A review of the amended complaint reflects that the plaintiff did not plead whether the release of liability has any relevance to the incident. Rather, the plaintiff has pled that the defendant was negligent, grossly negligent, and reckless in its conduct in a variety of several itemized instances. (Doc. 9 ¶ 31). In her opposition papers, the plaintiff contends that the release of liability, which includes the forum selection clause contained therein, is invalid because the decedent did not execute the release. (Doc. 20 passim; Doc. 21, at 3-5). The plaintiff maintains that it was she who signed the decedent’s name, without authority to contract on behalf of the decedent. (Id.).

The motion has been fully briefed by the parties and is ripe for disposition. (Doc. 16; Doc. 21).

II. Legal Standard

Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief is granted.” Fed.R.Civ.P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiffs claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegations.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevy, 481 F.3d 187, 195 (3d Cir. 2007). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.Appx. 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).

III. Discussion

Turning to the motion to dismiss based on enforcement of a forum selection provision under Fed.R.Civ.P. 12(b)(6), when the parties’ agreement contains a valid forum selection clause designating a particular forum for settling disputes arising out of their contract, a Rule 12(b)(6) dismissal is a permissible means of enforcing that forum selection clause. Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 298 (3d Cir. 2001). Podesta v. Hanzel, 684 Fed.Appx. 213, 216 (3d Cir. 2017); see also Eureka Res., LLC v. Hoden Roots LLC, ___F.Supp.3d.___, 2021 WL 3545068, at * 1 & n.5 (M.D. Pa. Aug. 11, 2021).

Here, the plaintiff disputes the validity of the release containing a forum selection clause because it was allegedly signed in the decedent’s name by his mother, the plaintiff, without authorization or consent by the decedent. Based on the factual allegations by the parties, we are unable to conclude that the decedent unambiguously manifested his assent to the forum selection clause, and thus we are unable to find that the forum selection clause is valid. See Oak Street Printery LLC v. Fujifilm N. Am. Corp., 895 F.Supp.2d 613, 619 (M.D. Pa. 2012). Because the validity of the form selection clause remains in doubt, the defendant’s preferred forum-the Carbon County state courts-is not controlling. See Id. Moreover, Pennsylvania law holds that such a release agreement cannot bind non-signatories. See Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 497 (Pa. Super. Ct. 2016) (noting that a statutory “wrongful death claimant possesses an independent, non-derivative right of action” that cannot be subjected to a forum selection clause, signed by the decedent, without the claimant’s consent); cf. Buttermore v. Aliquippa Hospital, 561 A.2d 733, 736 (Pa. l989)(holding that a wife’s consortium claim was an independent cause of action, and thus not barred by a settlement agreement to which she was not a signatory). Therefore, construing all well-pleaded facts as true, as we must, we are constrained to deny the motion to dismiss.

An appropriate order follows.

Defendant found criminal guilty for failing to have a federal permit to operate on a lake owned by United States Army Corps of Engineers (USACE)

Posted: February 5, 2024 | Author: Recreation Law | Filed under: Criminal Liability, Kentucky, Paddlesports, Rivers and Waterways | Tags: Criminal, Federal District Court, Grayson Lake, Kentucky, permit, Stand Up Paddleboarding, SUP, Trespassing, US Army Corp of Engineers | Leave a comment

If you are on Federal land or Federal water making money you have to have a Federal Permit

United States v. Warman, 23-MJ-02-EBA, Violation 1062808 (E.D. Ky. Mar 15, 2023)

State: Kentucky; United States District Court, E.D. Kentucky, Northern Division

Plaintiff: UNITED STATES OF AMERICA

Defendant: HEATHER WARMAN

Plaintiff Claims:

Defendant Defenses: She did not own the business and she was out of the country on the day the ticket was issued.

Holding: Defendant was found guilty

Year: 2023

Summary

Defendant Heather Warman is a self-attested “CEO,” “Owner,” “Representative,” and “Manager” of SUP Kentucky. On its website, SUP Kentucky advertises kayak rentals and tours on-site at Grayson Grotto, which is situated on Grayson Lake in Olive, Kentucky. Critically, Grayson Lake is federal property, so a commercial business license issued by the United States Army Corps of Engineers (USACE) is required to lawfully solicit or conduct business on the lake. See 36 C.F.R. § 327.18(a). Warman was advised of the requirement multiple times over the course of several months by USACE Project and Resource Manager Francis Jeffrey. Nonetheless, she never applied for a commercial business license nor ceased her operations on the lake. So, on July 23, 2022, Warman was issued a notice for violating 36 C.F.R. § 327.18(a).

Facts

The United States accuses Warman of engaging in or soliciting business activities on Grayson Lake without authorization from the USACE in violation of 36 C.F.R. § 327.18(a). The regulation prohibits the “engaging in or solicitation of business on project land or waters without the express written permission of the District Commander.” Id. A violator “may be punished by a fine of not more than $5,000 or imprisonment for not more than six months or both[.]” 36 C.F.R. § 327.25. For Warman to be adjudged guilty by this Court, the United States must show beyond a reasonable doubt that Warman knowingly engaged in or solicited business on federal project land or waters, such as Grayson Lake, without the express written permission of the District Commander.

On March 28, 2022, Warman called Jeffrey to inquire about expanding certain mountain bike trails onto federal project land surrounding Grayson Lake. These bike trails were associated with her business, Grayson Getaways. During the conversation, Warman advised Jeffrey that she was also “the owner and CEO of SUP Kentucky, a guided kayak company” which seeks to expand its operations “on Grayson Lake[.]”Jeffrey informed Warman that it is illegal to operate a commercial business on federal project lands or waters without express consent from the District Commander in the form of a written permit. Warman, however, contended that a permit from the District Commander was unnecessary because she already held a permit from the Commonwealth of Kentucky which allowed her to operate a guided kayak business on “any lake in the state.” Jeffrey assured Warman, though, that she needed a permit from the District Commander and explained to her the difference between federal and state lands.

On May 13, 2022, Warman again contacted Jeffrey about expanding Grayson Getaways’ bike trails onto federal project land surrounding Grayson Lake. [Id.]. During the conversation, Jeffrey “reminded her . . . that a permit is needed to continue” her kayak rental and touring operations on Grayson Lake. This constituted her second verbal warning. Once again, Warman “disagreed.”

Five days later, on May 17, 2022, the USACE’s Real Estate Division served a cease-and-desist letter on Warman. The letter advised Warman that she was in violation of 36 C.F.R. § 327.18 for “advertising for and performing guided kayak and standup paddleboard tours on Grayson Lake . . . without the expressed written permission of the District Commander[.]”Warman acknowledged receipt via email, writing “Thank You.”

Thereafter, Warman communicated with the USACE’s Real Estate Division concerning the permit requirements. An in-person meeting was scheduled for May 27, 2022, but was later cancelled. [Id.]. On May 27, 2022, Jeffrey was contacted by Warman’s attorney about the permit requirements and application process.

On July 5, 2022, the USACE’s Real Estate Division informed Jeffrey that Warman’s company continued to operate and advertise tours on Grayson Lake. After investigating, Jeffrey concluded that Warman was, in fact, engaging in or soliciting business on project lands without a permit, in violation of 36 C.F.R. § 327.18(a). So, Jeffrey and Natural Resource Specialist Justine Smith cited Warman for violating the regulation. On September 7, 2022, Jeffrey chronicled his investigation into a Memorandum for Record, which the United States offered as an exhibit at trial.

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

This is a criminal case, meaning a State or the Federal Government has charged the defendant with committing a crime. If you are found guilty of a crime you can be forced to pay a fine or spend time in jail. In this case, it is a crime to operate a business on Federal Land without a Federal Permit.

Each of the Federal Agencies that have land available to use for recreation has similar requirements for obtaining a permit to operate on federal land. Those agencies include the US Forest Service which is part of the Department of Agriculture, the Bureau of Land Management, the National Park Service, and the Fish and Wildlife Service which is part of the Department of the Interior. And as in this case the Army Corps of Engineers, part of the Department of the Army. Each agency has different rules and regulations on how to obtain permits, how you must operate under the permit, and what the charges and fees are for the permit.

You have to have permission to “be” on proper, real estate, that you don’t own. If you are attempting to make money by using that property, you not only have to have permission to be on the real estate, but if owned by the Federal Government, you must have additional paperwork saying you have the right to make money using the Federal Government’s property.

Here the defendant was operating a SUP (Stand Up Paddleboard) business on a lake owned and controlled by the Army Corporation of Engineers. The defendant first claimed that since she had a permit to operate in Kentucky she did not need an Army Corp of Engineers Permit.

She did not use this argument in court. An analogy would be you can’t stand on your neighbor’s land without their permission and argue that the neighbor across the street told you it was OK to be there.

The Federal Regulation in question is:

§ 327.18 Commercial activities.

(a) The engaging in or solicitation of business on project land or waters without the express written permission of the District Commander is prohibited.

(b) It shall be a violation of this part to refuse to or fail to comply with any terms, clauses or conditions of any lease, license or agreements issued by the District Commander.

At trial the defendant attempted two different legal arguments.

Warman’s defense is two-fold. First, she says she doesn’t “own” SUP Kentucky, so she argues it’s impossible for her to have operated a business on federal project lands or waters without a permit in violation of 36 C.F.R. § 327.18(a). (“Warman did not and has not ever owned the Web-Site presented as evidence by the United States of America and as detailed on the Kentucky Secretary of State official records Mrs. Warman does not and has never owned Sup Kentucky.”). Second, because the citation was issued on July 23, 2022-when she was out of the country, at sea, on her way to Grenada-it was impossible for her to “solicit business or even communicate with anyone other than those physically on board her ship.”

The court went through the first defense quickly noticing all of the times she had told the Army Corp of Engineers that she was operating a SUP business on the lake.

Given Warman’s admissions, Jeffrey’s detailed chronology of his conversations with Warman, and the fact that only Jeffrey’s account has evidentiary support, the Court concludes that Jeffrey’s account of the facts is inherently more credible than Warman’s.

The second argument went down in a similar fashion. The citation was not for operating a business without a permit on one day, but multiple days. Again, the records of the Corp of Engineers and statements made by the defendant shot this argument down.

Through the testimony of Jeffrey, the United States proved that Warman is interested in the success of SUP Kentucky. See Also through the testimony of Jeffrey, and implicitly through the testimony of Warman herself, the United States proved that Warman solicited and conducted guided kayak and standup paddle tours on Grayson Lake without a commercial business license.

The judge found the defendant guilty of violating the federal statute.

Heather Warman was cited with violating 36 C.F.R. § 327.18(a) for soliciting for and operating her guided tour and kayak rental business on Grayson Lake without written permission from the District Commander. Warman pled not guilty. However, the Court concludes beyond a reasonable doubt that Warman violated 36 C.F.R. § 327.18(a). That is, she knowingly engaged in or solicited business on Grayson Lake without the express written permission of the District Commander, despite receiving two prior oral warnings and a formal, written cease-and-desist letter. Therefore, IT IS ORDERED AND ADJUDGED that Heather Warman is GUILTY of violating 36 C.F.R. § 327.18(a).

IT IS FURTHER ORDERED that Heather Warman shall appear for SENTENCING on April 13, 2023 at 10:00 A.M. in the United States District Courthouse at Ashland, Kentucky. On or before Monday, April 10, 2023, the parties shall file memoranda presenting matters that should be considered by the court in calculating an appropriate sentence.

So Now What?

In most of the US this would be called a trespassing case. Someone was on someone’s land without the landowner’s permission. However, when messing with Federal Land Owners the types of cases, damages and jail time escalate.

No matter whose land you are on, if the land is not yours, you need a lease or a permit to be there.

And remember, this is a Federal Criminal Case. It is going to effect the rest of her life.

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What do you think? Leave a comment.

James H. “Jim” Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

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

Outdoor Recreation Insurance, Risk Management, and Law

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Facebook

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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: Jim@Rec-Law.US

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

@2024 Summit Magic Publishing, LLC

United States v. Warman, 23-MJ-02-EBA, Violation 1062808 (E.D. Ky. Mar 15, 2023)

Posted: February 5, 2024 | Author: Recreation Law | Filed under: Criminal Liability, Kentucky, Paddlesports | Tags: Commercial Operation, Criminal, criminal liability, Federal Permit, Stand Up Paddleboarding, SUP, US Army Corp of Engineers | Leave a comment

To Read an Analysis of this decision see: Defendant found criminal guilty for failing to have a federal permit to operate on a lake owned by the United States Army Corps of Engineers (USACE)

UNITED STATES OF AMERICA, PLAINTIFF,
v.
HEATHER WARMAN, DEFENDANT.

No. 23-MJ-02-EBA

Violation No. 1062808

United States District Court, E.D. Kentucky, Northern Division

March 15, 2023

MEMORANDUM OPINION & ORDER

EDWARD B. ATKINS, UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

Defendant Heather Warman is a self-attested “CEO,” “Owner,” “Representative,” and “Manager” of SUP Kentucky.^[1] [R. 7 at pg. 4]. On its website, SUP Kentucky advertises kayak rentals and tours on-site at Grayson Grotto, which is situated on Grayson Lake in Olive, Kentucky. [R. 6-1 at pg. 3].^[2] Critically, Grayson Lake is federal property, so a commercial business license issued by the United States Army Corps of Engineers (USACE) is required to lawfully solicit or conduct business on the lake. See 36 C.F.R. § 327.18(a). Warman was advised of the requirement multiple times over the course of several months by USACE Project and Resource Manager Francis Jeffrey. Nonetheless, she never applied for a commercial business license nor ceased her operations on the lake. So, on July 23, 2022, Warman was issued a notice for violating 36 C.F.R. § 327.18(a).^[3] [R. 1].

Warman appeared before the Court on February 23, 2023 for her initial appearance and arraignment. [R. 3]. Warman pled not guilty to the violation. [Id.]. Thereafter, the Court heard testimony from Jeffrey and Warman. After the taking of proof, the Court directed the parties to submit briefing on the matter no later than March 2, 2023. [Id.]. The United States and Warman tendered their briefs, so the matter is ripe for adjudication. [R. 6; R. 7].

ANALYSIS

The United States accuses Warman of engaging in or soliciting business activities on Grayson Lake without authorization from the USACE in violation of 36 C.F.R. § 327.18(a). The regulation prohibits the “engaging in or solicitation of business on project land or waters without the express written permission of the District Commander.” Id. A violator “may be punished by a fine of not more than $5,000 or imprisonment for not more than six months or both[.]” 36 C.F.R. § 327.25. For Warman to be adjudged guilty by this Court, the United States must show beyond a reasonable doubt that Warman knowingly engaged in or solicited business on federal project land or waters, such as Grayson Lake, without the express written permission of the District Commander.

On March 28, 2022, Warman called Jeffrey to inquire about expanding certain mountain bike trails onto federal project land surrounding Grayson Lake. [Gov. Ex. 1 at pg. 1]. These bike trails were associated with her business, Grayson Getaways. During the conversation, Warman advised Jeffrey that she was also “the owner and CEO of SUP Kentucky, a guided kayak company” which seeks to expand its operations “on Grayson Lake[.]” [Id.]. Jeffrey informed Warman that it is illegal to operate a commercial business on federal project lands or waters without express consent from the District Commander in the form of a written permit. [Id.]. Warman, however, contended that a permit from the District Commander was unnecessary because she already held a permit from the Commonwealth of Kentucky which allowed her to operate a guided kayak business on “any lake in the state.”^[4] [Id.]. Jeffrey assured Warman, though, that she needed a permit from the District Commander and explained to her the difference between federal and state lands. [Id.].

On May 13, 2022, Warman again contacted Jeffrey about expanding Grayson Getaways’ bike trails onto federal project land surrounding Grayson Lake. [Id.]. During the conversation, Jeffrey “reminded her . . . that a permit is needed to continue” her kayak rental and touring operations on Grayson Lake. [Id.]. This constituted her second verbal warning. Once again, Warman “disagreed.” [Id.].

Five days later, on May 17, 2022, the USACE’s Real Estate Division served a cease-and-desist letter on Warman. [Id.]; [Gov. Ex. 2]. The letter advised Warman that she was in violation of 36 C.F.R. § 327.18 for “advertising for and performing guided kayak and standup paddleboard tours on Grayson Lake . . . without the expressed written permission of the District Commander[.]” [Id.]. Warman acknowledged receipt via email, writing “Thank You.” [Gov. Ex. 1 at pg. 1].

Thereafter, Warman communicated with the USACE’s Real Estate Division concerning the permit requirements. [Id.] An in-person meeting was scheduled for May 27, 2022, but was later cancelled. [Id.]. On May 27, 2022, Jeffrey was contacted by Warman’s attorney about the permit requirements and application process. [Id. at pg. 2].

On July 5, 2022, the USACE’s Real Estate Division informed Jeffrey that Warman’s company continued to operate and advertise tours on Grayson Lake. [Id.]. After investigating, Jeffrey concluded that Warman was, in fact, engaging in or soliciting business on project lands without a permit, in violation of 36 C.F.R. § 327.18(a).^[5] [Id.]. So, Jeffrey and Natural Resource Specialist Justine Smith cited Warman for violating the regulation. [Id.]. On September 7, 2022, Jeffrey chronicled his investigation into a Memorandum for Record, which the United States offered as an exhibit at trial. [Id.].

Warman’s defense is two-fold. First, she says she doesn’t “own” SUP Kentucky, so she argues it’s impossible for her to have operated a business on federal project lands or waters without a permit in violation of 36 C.F.R. § 327.18(a). [R. 6 at pg. 2] (“Warman did not and has not ever owned the Web-Site presented as evidence by the United States of America and as detailed on the Kentucky Secretary of State official records Mrs. Warman does not and has never owned Sup Kentucky.”).^[6]
Second, because the citation was issued on July 23, 2022-when she was out of the country, at sea, on her way to Grenada-it was impossible for her to “solicit business or even communicate with anyone other than those physically on board her ship.” [Id.].

Warman’s first defense calls for the Court to make a credibility determination. See United States v. Vance, 956 F.3d 846, 853 (6th Cir. 2020) (explaining that during a bench trial, where the district court sits as “the finder of fact,” the district court “is best placed to determine witness credibility”). Is Jeffrey or Warman’s account of the facts most credible?

Jeffrey, as discussed above, documented his interactions with Warman on numerous occasions spanning a period of several months.^[7] During these interactions, Warman held herself out as the owner and/or CEO of SUP Kentucky (and admitted that SUP Kentucky was conducting and soliciting business on Grayson Lake). [Gov. Ex. 1 at pg. 1] (noting that Jeffrey explained orally, at least twice, that “she could not continue to guide on Grayson until a permit is issued,” but that Warman “disagreed”). During trial, however, Warman claimed that she never represented to Jeffrey that she owned, operated, or served as CEO of SUP Kentucky.^[8] Yet, Warman testified to holding herself out as a “Representative” of SUP Kentucky, that she serves as a “Manager” for SUP Kentucky, and that her husband owns SUP Kentucky. This aligns with her tendency to use personal possessive pronouns on the stand when referring to SUP Kentucky, such as “we” and “our.” Given Warman’s admissions, Jeffrey’s detailed chronology of his conversations with Warman, and the fact that only Jeffrey’s account has evidentiary support, the Court concludes that Jeffrey’s account of the facts is inherently more credible than Warman’s. So, Warman’s defense that it was impossible for her to violate 36 C.F.R. § 327.18(a) for lack of an ownership interest in SUP Kentucky is unavailing.^[9]

Warman’s second defense asserts a conclusion of law without reference to any legal authority: that it was legally impossible for Warman to solicit business from a website while at sea without access to the internet. [R. 6 at pg. 2]. Yet, Jeffrey testified that he issued a citation for Warman because of her ongoing, continuous wrongful conduct-conduct that Jeffrey first became aware of by Warman’s voluntary admission, no less. [Gov. Ex. 1 at pg. 1]. It is a coincidence, at best, that Warman happened to be out of the country on the date that Jeffrey and Smith wrote Warman’s citation. This “defense” would be unavailable if Jeffrey or Smith wrote Warman’s citation on any one of the other 116 days that Warman unlawfully solicited and conducted business on Grayson Lake without permission. And it is illogical to argue that Warman’s travel to another country, alone, precludes her from using a website to passively solicit business.

Although neither of Warman’s defenses persuade the Court, the United States must still carry its burden of proving beyond a reasonable doubt that Warman violated 36 C.F.R. § 327.18(a). Here, the United States did so.

Through the testimony of Jeffrey, the United States proved that Warman is interested in the success of SUP Kentucky.^[10]
See [Gov. Ex. 1 at pg. 1]. Also through the testimony of Jeffrey, and implicitly through the testimony of Warman herself, the United States proved that Warman solicited and conducted guided kayak and standup paddle tours on Grayson Lake without a commercial business license. See [Id.]; [Gov. Ex. 6; R. 6-1 at pg. 3] (“All Stand Up Paddle Kentucky adventures meet on-site where your trip will take place…. To help you plan your travels: . . . Grayson Grotto is in Grayson Lake State Park in Olive Hill, Kentucky.”) (emphasis added).

Finally, also through the testimony of Jeffrey and Warman, the United States proved that Warman conducted these activities knowingly. See United States v. Davis, 339 F.3d 1223, 1228 (10th Cir. 2003) (holding that receiving “verbal warnings and correspondence from the Corps of Engineers . . . make clear that [Defendant] had actual knowledge of the regulations and that lake management officials considered his actions to be illegal”). Warman was orally warned by Jeffrey twice that she would need to obtain a commercial business license before operating or soliciting business on Grayson Lake and, when she failed to comply with Jeffrey’s oral warnings, Warman was warned again in writing by the USACE’s Real Estate Division that she was in violation of 36 C.F.R § 327.18(a). [Gov. Ex. 1 at pg. 1]. Warman is guilty beyond any reasonable doubt.^[11]

CONCLUSION

Signed.

———

Notes:

^[1] When interacting with USACE Project and Resource Manager Francis Jeffrey, Warman introduced herself as the “owner” and “CEO” of SUP Kentucky. But on cross-examination, Warman said that she doesn’t own SUP Kentucky or serve as its CEO, but instead serves as a “Manager” who holds herself out as a “Representative” of SUP Kentucky.

^[2] [Gov. Ex. 6; R. 6-1 at pg. 3] (“All Stand Up Paddle Kentucky adventures meet on-site where your trip will take place. . . . To help you plan your travels: . . . Grayson Grotto is in Grayson Lake State Park in Olive Hill, Kentucky.”) (emphasis added).

^[3] The notice was served on Warman via USPS Certified Mail at 2478 Glen Cairn Road, Roger, Kentucky 41365. Jeffrey obtained this address directly from SUP Kentucky’s website, and Warman obviously received the notice given her participation in this action.

^[4] This alleged permit was never presented to Jeffrey, or anyone else with the USACE, nor was it offered as evidence at trial.

^[5] Jeffrey’s investigation included soliciting a guided kayak tour on Grayson Lake from SUP Kentucky.

^[6] Warman asserted at trial and in her trial brief that the Kentucky Secretary of State’s official business registry proves that she’s not an owner of SUP Kentucky. [R. 6 at pg. 2]. However, Warman never offered these records into evidence for the Court’s consideration. So, her claim is without factual support.

^[7] Warman, on the other hand, did not.

^[8] In a footnote, the United States suggests that Warman’s testimony that she “never informed Resource Manager Francis Jeffrey, the Real Estate Division of the USACE, or her SUP Kentucky clientele that she owned this company or that she represented she was one of the owners of the company” might constitute “perjury and obstruction of justice.” [R. 7 at pg. 7 n.1]. The United States bases its claim off a statement located on the SUP Kentucky website. [Id.]. The USACE is investigating the matter.

^[9] Again, Warman’s reliance on evidence outside the record-the Kentucky Secretary of State’s official business registry to argue that she’s not an owner of SUP Kentucky fails to rebut evidence within the record that indicates the opposite. See, supra note 6.

^[10] Warman’s precise title seems to be something that not even she can discern. See supra note 1 (highlighting that Warman has held herself out as the “CEO,” “Owner,” “Manager,” and “Representative” of SUP Kentucky at various times to different target audiences).

^[11] It’s unclear from the record what type of business association SUP Kentucky is. However, even if SUP Kentucky is a Limited Liability Corporation-the most protective of business associations-“under Kentucky law, a member or manager of an LLC can be held personally liable for [her] own wrongful acts or misconduct even if [she] was acting on behalf of the LLC.” 5ifth Element Creative, LLC v. Kirsch, No. 5:10-cv-255-KKC, 2010 WL 5139235, at *2 (E.D Ky. Dec. 9, 2010); Ky. Rev. Stat. Ann. § 275.150(3); see also 4A Ky. Prac. Methods of Prac. § 18.33 (Nov. 2022) (“In fact, KRS 275.150(3) specifically provides that KRS 275.150(1) shall not affect the liability of a member, manager, employee, or agent of a limited liability company for his or her own negligence, wrongful acts, or misconduct.”). Warman never made this argument at trial or in briefing. But even if Warman had advanced such an argument, she remains liable for her wrongful criminal acts.

———

G-YQ06K3L262

US Army Corp or Engineers Land Use Regulations

Posted: February 5, 2024 | Author: Recreation Law | Filed under: Kentucky | Tags: Commercial Permit, permit, Regulations, US Army Corp of Engineers, US Army Corp of Engineers Land Use Regulations, US Army Corp of Engineers Land Use Regulations: Outfitters | Leave a comment

US Army Corp of Engineers Land Use Regulations

§ 327.0 Applicability. 2

§ 327.6 Picnicking. 5

§ 327.7 Camping. 5

§ 327.8 Hunting, fishing, and trapping. 6

§ 327.9 Sanitation. 6

§ 327.10 Fires. 6

§ 327.11 Control of animals. 7

§ 327.12 Restrictions. 7

§ 327.13 Explosives, firearms, other weapons and fireworks. 8

§ 327.14 Public property. 8

§ 327.15 Abandonment and impoundment of personal property. 8

§ 327.16 Lost and found articles. 9

§ 327.17 Advertisement. 9

§ 327.18 Commercial activities. 10

§ 327.19 Permits. 10

§ 327.20 Unauthorized structures. 11

§ 327.21 Special events. 11

§ 327.22 Unauthorized occupation. 12

§ 327.23 Recreation use fees. 12

§ 327.24 Interference with Government employees. 12

§ 327.25 Violations of rules and regulations. 13

§ 327.26 State and local laws. 13

§ 327.30 Shoreline Management on Civil Works Projects. 13

Appendix A to § 327.30—Guidelines for Granting Shoreline Use Permits 18

Appendix B to § 327.30—Application for Shoreline Use Permit [Reserved] 21

Appendix C to § 327.30—Shoreline Use Permit Conditions 21

Appendix D to § 327.30—Permit [Reserved] 23

§ 327.30 Shoreline Management on Civil Works Projects. 23

§ 327.31 Shoreline management fee schedule. 23

§ 327.0 Applicability.

The regulations covered in this part 327 shall be applicable to water resources development projects, completed or under construction, administered by the Chief of Engineers, and to those portions of jointly administered water resources development projects which are under the administrative jurisdiction of the Chief of Engineers. All other Federal, state and local laws and regulations remain in full force and effect where applicable to those water resources development projects.

[65 FR 6898, Feb. 11, 2000]

§ 327.1 Policy.

(a) It is the policy of the Secretary of the Army, acting through the Chief of Engineers, to manage the natural, cultural and developed resources of each project in the public interest, providing the public with safe and healthful recreational opportunities while protecting and enhancing these resources.

(b) Unless otherwise indicated in this part, the term “District Commander” shall include the authorized representatives of the District Commander.

(c) The term “project” or “water resources development project” refers to the water areas of any water resources development project administered by the Chief of Engineers, without regard to ownership of underlying land, to all lands owned in fee by the Federal Government and to all facilities therein or thereon of any such water resources development project.

(d) All water resources development projects open for public use shall be available to the public without regard to sex, race, color, creed, age, nationality or place of origin. No lessee, licensee, or concessionaire providing a service to the public shall discriminate against any person because of sex, race, creed, color, age, nationality or place of origin in the conduct of the operations under the lease, license or concession contract.

(e) In addition to the regulations in this part 327, all applicable Federal, state and local laws and regulations remain in full force and effect on project lands or waters which are outgranted by the District Commander by lease, license or other written agreement.

(f) The regulations in this part 327 shall be deemed to apply to those lands and waters which are subject to treaties and Federal laws and regulations concerning the rights of Indian Nations and which lands and waters are incorporated, in whole or in part, within water resources development projects administered by the Chief of Engineers, to the extent that the regulations in this part 327 are not inconsistent with such treaties and Federal laws and regulations.

(g) Any violation of any section of this part 327 shall constitute a separate violation for each calendar day in which it occurs.

(h) For the purposes of this part 327, the operator of any vehicle, vessel or aircraft as described in this part, shall be presumed to be responsible for its use on project property. In the event where an operator cannot be determined, the owner of the vehicle, vessel, or aircraft, whether attended or unattended, will be presumed responsible. Unless proven otherwise, such presumption will be sufficient to issue a citation for the violation of regulations applicable to the use of such vehicle, vessel or aircraft as provided for in § 327.25.

(i) For the purposes of this part 327, the registered user of a campsite, picnic area, or other facility shall be presumed to be responsible for its use. Unless proven otherwise, such presumption will be sufficient to issue a citation for the violation of regulations applicable to the use of such facilities as provided for in § 327.25.

[65 FR 6898, Feb. 11, 2000]

§ 327.2 Vehicles.

(a) This section pertains to all vehicles, including, but not limited to, automobiles, trucks, motorcycles, mini-bikes, snowmobiles, dune buggies, all-terrain vehicles, and trailers, campers, bicycles, or any other such equipment.

(b) Vehicles shall not be parked in violation of posted restrictions and regulations, or in such a manner as to obstruct or impede normal or emergency traffic movement or the parking of other vehicles, create a safety hazard, or endanger any person, property or environmental feature. Vehicles so parked are subject to removal and impoundment at the owner’s expense.

(c) The operation and/or parking of a vehicle off authorized roadways is prohibited except at locations and times designated by the District Commander. Taking any vehicle through, around or beyond a restrictive sign, recognizable barricade, fence, or traffic control barrier is prohibited.

(d) Vehicles shall be operated in accordance with posted restrictions and regulations.

(e) No person shall operate any vehicle in a careless, negligent or reckless manner so as to endanger any person, property or environmental feature.

(f) At designated recreation areas, vehicles shall be used only to enter or leave the area or individual sites or facilities unless otherwise posted.

(g) Except as authorized by the District Commander, no person shall operate any motorized vehicle without a proper and effective exhaust muffler as defined by state and local laws, or with an exhaust muffler cutout open, or in any other manner which renders the exhaust muffler ineffective in muffling the sound of engine exhaust.

(h) Vehicles shall be operated in accordance with applicable Federal, state and local laws, which shall be regulated by authorized enforcement officials as prescribed in § 327.26.

[65 FR 6899, Feb. 11, 2000]

§ 327.3 Vessels.

(a) This section pertains to all vessels or watercraft, including, but not limited to, powerboats, cruisers, houseboats, sailboats, rowboats, canoes, kayaks, personal watercraft, and any other such equipment capable of navigation on water or ice, whether in motion or at rest.

(b) The placement and/or operation of any vessel or watercraft for a fee or profit upon project waters or lands is prohibited except as authorized by permit, lease, license, or concession contract with the Department of the Army. This paragraph shall not apply to the operation of commercial tows or passenger carrying vessels not based at a Corps project which utilize project waters as a link in continuous transit over navigable waters of the United States.

(c) Vessels or other watercraft may be operated on the project waters, except in prohibited or restricted areas, in accordance with posted regulations and restrictions, including buoys. All vessels or watercraft so required by applicable Federal, state and local laws shall display an appropriate registration on board whenever the vessel is on project waters.

(d) No person shall operate any vessel or other watercraft in a careless, negligent, or reckless manner so as to endanger any person, property, or environmental feature.

(e) All vessels, when on project waters, shall have safety equipment, including personal flotation devices, on board in compliance with U.S. Coast Guard boating safety requirements and in compliance with boating safety laws issued and enforced by the state in which the vessel is located. Owners or operators of vessels not in compliance with this section may be requested to remove the vessel immediately from project waters until such time as items of non-compliance are corrected.

(f) Unless otherwise permitted by Federal, state or local law, vessels or other watercraft, while moored in commercial facilities, community or corporate docks, or at any fixed or permanent mooring point, may only be used for overnight occupancy when such use is incidental to recreational boating. Vessels or other watercraft are not to be used as a place of habitation or residence.

(g) Water skis, parasails, ski-kites and similar devices are permitted in nonrestricted areas except that they may not be used in a careless, negligent, or reckless manner so as to endanger any person, property or environmental feature.

(h) Vessels shall not be attached or anchored to structures such as locks, dams, buoys or other structures unless authorized by the District Commander. All vessels when not in actual use shall be removed from project lands and waters unless securely moored or stored at designated areas approved by the District Commander. The placing of floating or stationary mooring facilities on, adjacent to, or interfering with a buoy, channel marker or other navigational aid is prohibited.

(i) The use at a project of any vessel not constructed or maintained in compliance with the standards and requirements established by the Federal Safe Boating Act of 1971 (Pub. L. 92–75, 85 Stat. 213), or promulgated pursuant to such act, is prohibited.

(j) Except as authorized by the District Commander, no person shall operate any vessel or watercraft without a proper and effective exhaust muffler as defined by state and local laws, or with an exhaust muffler cutout open, or in any other manner which renders the exhaust muffler ineffective in muffling the sound of engine exhaust.

(k) All vessels or other watercraft shall be operated in accordance with applicable Federal, state and local laws, which shall be regulated by authorized enforcement officials as prescribed in § 327.26.

[65 FR 6899, Feb. 11, 2000]

§ 327.4 Aircraft.

(a) This section pertains to all aircraft including, but not limited to, airplanes, seaplanes, helicopters, ultra-light aircraft, motorized hang gliders, hot air balloons, any non-powered flight devices or any other such equipment.

(b) The operation of aircraft on project lands at locations other than those designated by the District Commander is prohibited. This provision shall not be applicable to aircraft engaged on official business of Federal, state or local governments or law enforcement agencies, aircraft used in emergency rescue in accordance with the directions of the District Commander or aircraft forced to land due to circumstances beyond the control of the operator.

(c) No person shall operate any aircraft while on or above project waters or project lands in a careless, negligent or reckless manner so as to endanger any person, property or environmental feature.

(d) Nothing in this section bestows authority to deviate from rules and regulations or prescribed standards of the appropriate State Aeronautical Agency, or the Federal Aviation Administration, including, but not limited to, regulations and standards concerning pilot certifications or ratings, and airspace requirements.

(e) Except in extreme emergencies threatening human life or serious property loss, the air delivery or retrieval of any person, material or equipment by parachute, balloon, helicopter or other means onto or from project lands or waters without written permission of the District Commander is prohibited.

(f) In addition to the provisions in paragraphs (a) through (e) of this section, seaplanes are subject to the following restrictions:

(1) Such use is limited to aircraft utilized for water landings and takeoff, in this part called seaplanes, at the risk of owner, operator and passenger(s).

(2) Seaplane operations contrary to the prohibitions or restrictions established by the District Commander (pursuant to part 328 of this title) are prohibited. The responsibility to ascertain whether seaplane operations are prohibited or restricted is incumbent upon the person(s) contemplating the use of, or using, such waters.

(3) All operations of seaplanes while upon project waters shall be in accordance with U.S. Coast Guard navigation rules for powerboats or vessels and § 327.3.

(4) Seaplanes on project waters and lands in excess of 24 hours shall be securely moored at mooring facilities and at locations permitted by the District Commander. Seaplanes may be temporarily moored on project waters and lands, except in areas prohibited by the District Commander, for periods less than 24 hours providing:

(i) The mooring is safe, secure, and accomplished so as not to damage the rights of the Government or members of the public, and

(ii) The operator remains in the vicinity of the seaplane and reasonably available to relocate the seaplane if necessary.

(5) Commercial operation of seaplanes from project waters is prohibited without written approval of the District Commander following consultation with and necessary clearance from the Federal Aviation Administration (FAA) and other appropriate public authorities and affected interests.

(6) Seaplanes may not be operated at Corps projects between sunset and sunrise unless approved by the District Commander.

[65 FR 6899, Feb. 11, 2000]

§ 327.5 Swimming.

(a) Swimming, wading, snorkeling or scuba diving at one’s own risk is permitted, except at launching sites, designated mooring points and public docks, or other areas so designated by the District Commander.

(b) An international diver down, or inland diving flag must be displayed during underwater activities.

(c) Diving, jumping or swinging from trees, bridges or other structures which cross or are adjacent to project waters is prohibited.

[65 FR 6900, Feb. 11, 2000]

§ 327.6 Picnicking.

Picnicking and related day-use activities are permitted, except in those areas where prohibited by the District Commander.

[65 FR 6900, Feb. 11, 2000]

§ 327.7 Camping.

(a) Camping is permitted only at sites and/or areas designated by the District Commander.

(b) Camping at one or more campsites at any one water resource project for a period longer than 14 days during any 30-consecutive-day period is prohibited without the written permission of the District Commander.

(c) The unauthorized placement of camping equipment or other items on a campsite and/or personal appearance at a campsite without daily occupancy for the purpose of reserving that campsite for future occupancy is prohibited.

(d) The digging or leveling of any ground or the construction of any structure without written permission of the District Commander is prohibited.

(e) Occupying or placement of any camping equipment at a campsite which is posted or otherwise marked or indicated as “reserved” without an authorized reservation for that site is prohibited.

[65 FR 6900, Feb. 11, 2000]

§ 327.8 Hunting, fishing, and trapping.

(a) Hunting is permitted except in areas and during periods where prohibited by the District Commander.

(b) Trapping is permitted except in areas and during periods where prohibited by the District Commander.

(d) Additional restrictions pertaining to these activities may be established by the District Commander.

(e) All applicable Federal, State and local laws regulating these activities apply on project lands and waters, and shall be regulated by authorized enforcement officials as prescribed in § 327.26.

[65 FR 6900, Feb. 11, 2000]

§ 327.9 Sanitation.

(a) Garbage, trash, rubbish, litter, gray water, or any other waste material or waste liquid generated on the project and incidental to authorized recreational activities shall be either removed from the project or deposited in receptacles provided for that purpose. The improper disposal of such wastes, human and animal waste included, on the project is prohibited.

(b) It is a violation to bring onto a project any household or commercial garbage, trash, rubbish, debris, dead animals or litter of any kind for disposal or dumping without the written permission of the District Commander. For the purposes of this section, the owner of any garbage, trash, rubbish, debris, dead animals or litter of any kind shall be presumed to be responsible for proper disposal. Such presumption will be sufficient to issue a citation for violation.

(c) The spilling, pumping, discharge or disposal of contaminants, pollutants or other wastes, including, but not limited to, human or animal waste, petroleum, industrial and commercial products and by-products, on project lands or into project waters is prohibited.

(d) Campers, picnickers, and all other persons using a water resources development project shall keep their sites free of trash and litter during the period of occupancy and shall remove all personal equipment and clean their sites upon departure.

(e) The discharge or placing of sewage, galley waste, garbage, refuse, or pollutants into the project waters from any vessel or watercraft is prohibited.

[65 FR 6900, Feb. 11, 2000]

§ 327.10 Fires.

(a) Gasoline and other fuels, except that which is contained in storage tanks of vehicles, vessels, camping equipment, or hand portable containers designed for such purpose, shall not be carried onto or stored on the project without written permission of the District Commander.

(b) Fires shall be confined to those areas designated by the District Commander, and shall be contained in fireplaces, grills, or other facilities designated for this purpose. Fires shall not be left unattended and must be completely extinguished prior to departure. The burning of materials that produce toxic fumes, including, but not limited to, tires, plastic and other floatation materials or treated wood products is prohibited. The District Commander may prohibit open burning of any type for environmental considerations.

[65 FR 6900, Feb. 11, 2000]

§ 327.11 Control of animals.

(a) No person shall bring or allow dogs, cats, or other pets into developed recreation areas or adjacent waters unless penned, caged, on a leash under six feet in length, or otherwise physically restrained. No person shall allow animals to impede or restrict otherwise full and free use of project lands and waters by the public. No person shall allow animals to bark or emit other noise which unreasonably disturbs other people. Animals and pets, except properly trained animals assisting those with disabilities (such as seeing-eye dogs), are prohibited in sanitary facilities, playgrounds, swimming beaches and any other areas so designated by the District Commander. Abandonment of any animal on project lands or waters is prohibited. Unclaimed or unattended animals are subject to immediate impoundment and removal in accordance with state and local laws.

(b) Persons bringing or allowing pets in designated public use areas shall be responsible for proper removal and disposal of any waste produced by these animals.

(c) No person shall bring or allow horses, cattle, or other livestock in camping, picnicking, swimming or other recreation areas or on trails except in areas designated by the District Commander.

(d) Ranging, grazing, watering or allowing livestock on project lands and waters is prohibited except when authorized by lease, license or other written agreement with the District Commander.

(e) Unauthorized livestock are subject to impoundment and removal in accordance with Federal, state and local laws.

(f) Any animal impounded under the provisions of this section may be confined at a location designated by the District Commander, who may assess a reasonable impoundment fee. This fee shall be paid before the impounded animal is returned to its owner(s).

(g) Wild or exotic pets and animals (including but not limited to cougars, lions, bears, bobcats, wolves, and snakes), or any pets or animals displaying vicious or aggressive behavior or otherwise posing a threat to public safety or deemed a public nuisance, are prohibited from project lands and waters unless authorized by the District Commander, and are subject to removal in accordance with Federal, state and local laws.

[65 FR 6901, Feb. 11, 2000]

§ 327.12 Restrictions.

(a) The District Commander may establish and post a schedule of visiting hours and/or restrictions on the public use of a project or portion of a project. The District Commander may close or restrict the use of a project or portion of a project when necessitated by reason of public health, public safety, maintenance, resource protection or other reasons in the public interest. Entering or using a project in a manner which is contrary to the schedule of visiting hours, closures or restrictions is prohibited.

(b) Quiet shall be maintained in all public use areas between the hours of 10 p.m. and 6 a.m., or those hours designated by the District Commander. Excessive noise during such times which unreasonably disturbs persons is prohibited.

(c) Any act or conduct by any person which interferes with, impedes or disrupts the use of the project or impairs the safety of any person is prohibited. Individuals who are boisterous, rowdy, disorderly, or otherwise disturb the peace on project lands or waters may be requested to leave the project.

(d) The operation or use of any sound producing or motorized equipment, including but not limited to generators, vessels or vehicles, in such a manner as to unreasonably annoy or endanger persons at any time or exceed state or local laws governing noise levels from motorized equipment is prohibited.

(e) The possession and/or consumption of alcoholic beverages on any portion of the project land or waters, or the entire project, may be prohibited when designated and posted by the District Commander.

(f) Unless authorized by the District Commander, smoking is prohibited in Visitor Centers, enclosed park buildings and in areas posted to restrict smoking.

[65 FR 6901, Feb. 11, 2000]

§ 327.13 Explosives, firearms, other weapons and fireworks.

(a) The possession of loaded firearms, ammunition, loaded projectile firing devices, bows and arrows, crossbows, or other weapons is prohibited unless:

(1) In the possession of a Federal, state or local law enforcement officer;

(2) Being used for hunting or fishing as permitted under § 327.8, with devices being unloaded when transported to, from or between hunting and fishing sites;

(3) Being used at authorized shooting ranges; or

(4) Written permission has been received from the District Commander.

(b) Possession of explosives or explosive devices of any kind, including fireworks or other pyrotechnics, is prohibited unless written permission has been received from the District Commander.

[65 FR 6901, Feb. 11, 2000]

§ 327.14 Public property.

(a) Destruction, injury, defacement, removal or any alteration of public property including, but not limited to, developed facilities, natural formations, mineral deposits, historical and archaeological features, paleontological resources, boundary monumentation or markers and vegetative growth, is prohibited except when in accordance with written permission of the District Commander.

(b) Cutting or gathering of trees or parts of trees and/or the removal of wood from project lands is prohibited without written permission of the District Commander.

(c) Gathering of dead wood on the ground for use in designated recreation areas as firewood is permitted, unless prohibited and posted by the District Commander.

(d) The use of metal detectors is permitted on designated beaches or other previously disturbed areas unless prohibited by the District Commander for reasons of protection of archaeological, historical or paleontological resources. Specific information regarding metal detector policy and designated use areas is available at the Manager’s Office. Items found must be handled in accordance with §§ 327.15 and 327.16 except for non-identifiable items such as coins of value less than $25.

[65 FR 6901, Feb. 11, 2000]

§ 327.15 Abandonment and impoundment of personal property.

(a) Personal property of any kind shall not be abandoned, stored or left unattended upon project lands or waters. After a period of 24 hours, or at any time after a posted closure hour in a public use area or for the purpose of providing public safety or resource protection, unattended personal property shall be presumed to be abandoned and may be impounded and stored at a storage point designated by the District Commander, who may assess a reasonable impoundment fee. Such fee shall be paid before the impounded property is returned to its owner.

(b) Personal property placed on Federal lands or waters adjacent to a private residence, facility and/or developments of any private nature for more than 24 hours without permission of the District Commander shall be presumed to have been abandoned and, unless proven otherwise, such presumption will be sufficient to impound the property and/or issue a citation as provided for in § 327.25.

(c) The District Commander shall, by public or private sale or otherwise, dispose of all lost, abandoned or unclaimed personal property that comes into Government custody or control. However, property may not be disposed of until diligent effort has been made to find the owner, heirs, next of kin or legal representative(s). If the owner, heirs, next of kin or legal representative(s) are determined but not found, the property may not be disposed of until the expiration of 120 days after the date when notice, giving the time and place of the intended sale or other disposition, has been sent by certified or registered mail to that person at the last known address. When diligent efforts to determine the owner, heirs, next of kin or legal representative(s) are unsuccessful, the property may be disposed of without delay except that if it has a fair market value of $100 or more the property may not be disposed of until 90 days after the date it is received at the storage point designated by the District Commander. The net proceeds from the sale of property shall be conveyed into the Treasury of the United States as miscellaneous receipts.

[65 FR 6901, Feb. 11, 2000]

§ 327.16 Lost and found articles.

All articles found shall be deposited by the finder at the Manager’s office or with a ranger. All such articles shall be disposed of in accordance with the procedures set forth in § 327.15.

[65 FR 6902, Feb. 11, 2000]

§ 327.17 Advertisement.

(a) Advertising and the distribution of printed matter is allowed within project land and waters provided that a permit to do so has been issued by the District Commander and provided that this activity is not solely commercial advertising.

(b) An application for such a permit shall set forth the name of the applicant, the name of the organization (if any), the date, time, duration, and location of the proposed advertising or the distribution of printed matter, the number of participants, and any other information required by the permit application form. Permit conditions and procedures are available from the District Commander.

(c) Vessels and vehicles with semipermanent or permanent painted or installed signs are exempt as long as they are used for authorized recreational activities and comply with all other rules and regulations pertaining to vessels and vehicles.

(d) The District Commander shall, without unreasonable delay, issue a permit on proper application unless:

(1) A prior application for a permit for the same time and location has been made that has been or will be granted and the activities authorized by that permit do not reasonably allow multiple occupancy of the particular area; or

(2) It reasonably appears that the advertising or the distribution of printed matter will present a clear and present danger to the public health and safety; or

(3) The number of persons engaged in the advertising or the distribution of printed matter exceeds the number that can reasonably be accommodated in the particular location applied for, considering such things as damage to project resources or facilities, impairment of a protected area’s atmosphere of peace and tranquility, interference with program activities, or impairment of public use facilities; or

(4) The location applied for has not been designated as available for the advertising or the distribution of printed matter; or

(5) The activity would constitute a violation of an applicable law or regulation.

(e) If a permit is denied, the applicant shall be so informed in writing, with the reason(s) for the denial set forth.

(f) The District Commander shall designate on a map, which shall be available for inspection in the applicable project office, the locations within the project that are available for the advertising or the distribution of printed matter. Locations may be designated as not available only if the advertising or the distribution of printed matter would:

(1) Cause injury or damage to project resources; or

(2) Unreasonably impair the atmosphere of the peace and tranquility maintained in natural, historic, or commemorative zones; or

(3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the Corps of Engineers; or

(4) Substantially impair the operation of public use facilities or services of Corps of Engineers concessioners or contractors.

(5) Present a clear and present danger to the public health and safety.

(g) The permit may contain such conditions as are reasonably consistent with protection and use of the project area for the purposes for which it is established.

(h) No permit shall be issued for a period in excess of 14 consecutive days, provided that permits may be extended for like periods, upon a new application, unless another applicant has requested use of the same location and multiple occupancy of that location is not reasonably possible.

(i) It is prohibited for persons engaged in the activity under this section to obstruct or impede pedestrians or vehicles, harass project visitors with physical contact or persistent demands, misrepresent the purposes or affiliations of those engaged in the advertising or the distribution of printed matter, or misrepresent whether the printed matter is available without cost or donation.

(j) A permit may be revoked under any of those conditions, as listed in paragraph (d) of this section, that constitute grounds for denial of a permit, or for violation of the terms and conditions of the permit. Such a revocation shall be made in writing, with the reason(s) for revocation clearly set forth, except under emergency circumstances, when an immediate verbal revocation or suspension may be made, to be followed by written confirmation within 72 hours.

(k) Violation of the terms and conditions of a permit issued in accordance with this section may result in the suspension or revocation of the permit.

[65 FR 26137, May 5, 2000]

§ 327.18 Commercial activities.

(a) The engaging in or solicitation of business on project land or waters without the express written permission of the District Commander is prohibited.

(b) It shall be a violation of this part to refuse to or fail to comply with any terms, clauses or conditions of any lease, license or agreements issued by the District Commander.

[65 FR 6902, Feb. 11, 2000]

36 CFR § 327.19 – Permits.

CFR

§ 327.19 Permits.

(a) It shall be a violation of this part to refuse to or fail to comply with the fee requirements or other terms or conditions of any permit issued under the provisions of this part 327.

(b) Permits for floating structures (issued under the authority of § 327.30) of any kind on/in waters of water resources development projects, whether or not such waters are deemed navigable waters of the United States but where such waters are under the management of the Corps of Engineers, shall be issued at the discretion of the District Commander under the authority of this section. District Commanders will delineate those portions of the navigable waters of the United States where this provision is applicable and post notices of this designation in the vicinity of the appropriate Manager’s office.

(c) Permits for non-floating structures (issued under the authority of § 327.30) of any kind constructed, placed in or affecting waters of water resources development projects where such waters are deemed navigable waters of the U.S. shall be issued under the provisions of section 10 of the Rivers and Harbors Act approved March 3, 1899 (33 U.S.C. 403). If a discharge of dredged or fill material in these waters is involved, a permit is required under section 404 of the Clean Water Act (33 U.S.C. 1344). (See 33 CFR parts 320 through 330.)

(d) Permits for non-floating structures (issued under the authority of § 327.30) of any kind in waters of water resources development projects, where such waters are under the management of the Corps of Engineers and where such waters are not deemed navigable waters of the United States, shall be issued as set forth in paragraph (b) of this section. If a discharge of dredged or fill material into any water of the United States is involved, a permit is required under section 404 of the Clean Water Act (33 U.S.C. 1344) (See 33 CFR parts 320 through 330). Water quality certification may be required pursuant to Section 401 of the Clean Water Act (33 U.S.C. 1341).

(e) Shoreline Use Permits to authorize private shoreline use facilities, activities or development (issued under the authority of § 327.30) may be issued in accordance with the project Shoreline Management Plan. Failure to comply with the permit conditions issued under § 327.30 is prohibited.

[65 FR 6902, Feb. 11, 2000]

§ 327.20 Unauthorized structures.

The construction, placement, or existence of any structure (including, but not limited to, roads, trails, signs, non-portable hunting stands or blinds, buoys, docks, or landscape features) of any kind under, upon, in or over the project lands, or waters is prohibited unless a permit, lease, license or other appropriate written authorization has been issued by the District Commander. The design, construction, placement, existence or use of structures in violation of the terms of the permit, lease, license, or other written authorization is prohibited. The government shall not be liable for the loss of, or damage to, any private structures, whether authorized or not, placed on project lands or waters. Unauthorized structures are subject to summary removal or impoundment by the District Commander. Portable hunting stands, climbing devices, steps, or blinds, that are not nailed or screwed into trees and are removed at the end of a day’s hunt may be used.

[65 FR 6902, Feb. 11, 2000]

§ 327.21 Special events.

(a) Special events including, but not limited to, water carnivals, boat regattas, fishing tournaments, music festivals, dramatic presentations or other special recreation programs are prohibited unless written permission has been granted by the District Commander. Where appropriate, District Commanders can provide the state a blanket letter of permission to permit fishing tournaments while coordinating the scheduling and details of tournaments with individual projects. An appropriate fee may be charged under the authority of § 327.23.

(b) The public shall not be charged any fee by the sponsor of such event unless the District Commander has approved in writing (and the sponsor has properly posted) the proposed schedule of fees. The District Commander shall have authority to revoke permission, require removal of any equipment, and require restoration of an area to pre-event condition, upon failure of the sponsor to comply with terms and conditions of the permit/permission or the regulations in this part 327.

[65 FR 6902, Feb. 11, 2000]

§ 327.22 Unauthorized occupation.

(a) Occupying any lands, buildings, vessels or other facilities within water resource development projects for the purpose of maintaining the same as a full-or part-time residence without the written permission of the District Commander is prohibited. The provisions of this section shall not apply to the occupation of lands for the purpose of camping, in accordance with the provisions of § 327.7.

(b) Use of project lands or waters for agricultural purposes is prohibited except when in compliance with terms and conditions authorized by lease, license or other written agreement issued by the District Commander.

[65 FR 6903, Feb. 11, 2000]

§ 327.23 Recreation use fees.

(a) In accordance with the Land and Water Conservation Fund Act of 1965 (16 U.S.C. 460l) and the Omnibus Budget Reconciliation Act of 1993, Pub. L. 103–66, the Corps of Engineers collects day use fees, special recreation use fees and/or special permit fees for the use of specialized sites, facilities, equipment or services related to outdoor recreation furnished at Federal expense.

(b) Where such fees are charged, the District Commander shall insure that clear notice of fee requirements is prominently posted at each area, and at appropriate locations therein and that the notice be included in publications distributed at such areas. Failure to pay authorized recreation use fees as established pursuant to Pub. L. 88–578, 78 Stat. 897, as amended (16 U.S.C. 460l–6a), is prohibited and is punishable by a fine of not more than $100.

(d) Any Golden Age or Golden Access Passport permittee shall be entitled, upon presentation of such a permit, to utilize special recreation facilities at a rate of 50 percent off the established use fee at Federally operated areas. Fraudulent use of a Golden Age or Golden Access Passport is prohibited.

[65 FR 6903, Feb. 11, 2000]

§ 327.24 Interference with Government employees.

(a) It is a Federal crime pursuant to the provisions of sections 111 and 1114 of Title 18, United States Code, to forcibly assault, resist, oppose, impede, intimidate, or interfere with, attempt to kill or kill any civilian official or employee for the U.S. Army Corps of Engineers engaged in the performance of his or her official duties, or on account of the performance of his or her official duties. Such actions or interference directed against a Federal employee while carrying out the regulations in this part are violation of such regulations and may be a state crime pursuant to the laws of the state where they occur.

(b) Failure to comply with a lawful order issued by a Federal employee acting pursuant to the regulations in this part shall be considered as interference with that employee while engaged in the performance of their official duties. Such interference with a Federal employee includes failure to provide a correct name, address or other information deemed necessary for identification upon request of the Federal employee, when that employee is authorized by the District Commander to issue citations in the performance of the employee’s official duties.

[65 FR 6903, Feb. 11, 2000]

§ 327.25 Violations of rules and regulations.

(a) Any person who violates the provisions of the regulations in this part, other than for a failure to pay authorized recreation use fees as separately provided for in § 327.23, may be punished by a fine of not more than $5,000 or imprisonment for not more than six months or both and may be tried and sentenced in accordance with the provisions of section 3401 of Title 18, United States Code. Persons designated by the District Commander shall have the authority to issue a citation for violation of the regulations in this part, requiring any person charged with the violation to appear before the United States Magistrate within whose jurisdiction the affected water resources development project is located (16 U.S.C. 460d).

(b) Any person who commits an act against any official or employee of the U.S. Army Corps of Engineers that is a crime under the provisions of section 111 or section 1114 of Title 18, United States Code or under provisions of pertinent state law may be tried and sentenced as further provided under Federal or state law, as the case may be.

[65 FR 6903, Feb. 11, 2000]

§ 327.26 State and local laws.

(a) Except as otherwise provided in this part or by Federal law or regulation, state and local laws and ordinances shall apply on project lands and waters. This includes, but is not limited to, state and local laws and ordinances governing:

(1) Operation and use of motor vehicles, vessels, and aircraft;

(2) Hunting, fishing and trapping;

(3) Use or possession of firearms or other weapons;

(4) Civil disobedience and criminal acts;

(5) Littering, sanitation and pollution; and

(6) Alcohol or other controlled substances.

(b) These state and local laws and ordinances are enforced by those state and local enforcement agencies established and authorized for that purpose.

[65 FR 6903, Feb. 11, 2000]

§ 327.30 Shoreline Management on Civil Works Projects.

(a) Purpose. The purpose of this regulation is to provide policy and guidance on management of shorelines of Civil Works projects where 36 CFR part 327 is applicable.

(b) Applicability. This regulation is applicable to all field operating agencies with Civil Works responsibilities except when such application would result in an impingement upon existing Indian rights.

(1) Section 4, 1944 Flood Control Act, as amended (16 U.S.C. 460d).

(2) The Rivers and Harbors Act of 1894, as amended and supplemented (33 U.S.C. 1)

(3) Section 10, River and Harbor Act of 1899 (33 U.S.C. 403).

(4) National Historic Preservation Act of 1966 (Pub. L. 89–665; 80 Stat. 915) as amended (16 U.S.C. 470 et seq.).

(5) The National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.).

(6) The Clean Water Act (33 U.S.C. 1344, et seq.).

(7) The Water Resources Development Act of 1986 (Pub. L. 99–662).

(8) Title 36, chapter III, part 327, Code of Federal Regulations, “Rules and Regulations Governing Public Use of Water Resource Development Projects Administered by the Chief of Engineers.”

(9) Executive Order 12088 (13 Oct. 78).

(10) 33 CFR parts 320–330, “Regulatory Programs of the Corps of Engineers.”

(11) ER 1130–2–400, “Management of Natural Resources and Outdoor Recreation at Civil Works Water Resource Projects.”

(12) EM 385–1–1, “Safety and Health Requirements Manual.”

(d) Policy.

(1) It is the policy of the Chief of Engineers to protect and manage shorelines of all Civil Works water resource development projects under Corps jurisdiction in a manner which will promote the safe and healthful use of these shorelines by the public while maintaining environmental safeguards to ensure a quality resource for use by the public. The objectives of all management actions will be to achieve a balance between permitted private uses and resource protection for general public use. Public pedestrian access to and exit from these shorelines shall be preserved. For projects or portions of projects where Federal real estate interest is limited to easement title only, management actions will be appropriate within the limits of the estate acquired.

(2) Private shoreline uses may be authorized in designated areas consistent with approved use allocations specified in Shoreline Management Plans. Except to honor written commitments made prior to publication of this regulation, private shoreline uses are not allowed on water resource projects where construction was initiated after December 13, 1974, or on water resource projects where no private shoreline uses existed as of that date. Any existing permitted facilities on these projects will be grandfathered until the facilities fail to meet the criteria set forth in § 327.30(h).

(3) A Shoreline Management Plan, as described in § 327.30(e), will be prepared for each Corps project where private shoreline use is allowed. This plan will honor past written commitments. The plan will be reviewed at least once every five years and revised as necessary. Shoreline uses that do not interfere with authorized project purposes, public safety concerns, violate local norms or result in significant environmental effects should be allowed unless the public participation process identifies problems in these areas. If sufficient demand exists, consideration should be given to revising the shoreline allocations (e.g. increases/decreases). Maximum public participation will be encouraged as set forth in § 327.30(e)(6). Except to honor written commitments made prior to the publication of this regulation, shoreline management plans are not required for those projects where construction was initiated after December 13, 1974, or on projects not having private shoreline use as of that date. In that case, a statement of policy will be developed by the district commander to present the shoreline management policy. This policy statement will be subject to the approval of the division commander. For projects where two or more agencies have jurisdiction, the plan will be cooperatively prepared with the Corps as coordinator.

(4) Where commercial or other public launching and/or moorage facilities are not available within a reasonable distance, group owned mooring facilities may be allowed in Limited Development Areas to limit the proliferation of individual facilities. Generally only one permit will be necessary for a group owned mooring facility with that entity, if incorporated, or with one person from the organization designated as the permittee and responsible for all moorage spaces within the facility. No charge may be made for use of any permitted facility by others nor shall any commercial activity be engaged in thereon.

(5) The issuance of a private shoreline use permit does not convey any real estate or personal property rights or exclusive use rights to the permit holder. The public’s right of access and use of the permit area must be maintained and preserved. Owners of permitted facilities may take necessary precautions to protect their property from theft, vandalism or trespass, but may in no way preclude the public right of pedestrian or vessel access to the water surface or public land adjacent to the facility.

(6) Shoreline Use Permits will only be issued to individuals or groups with legal right of access to public lands.

(e) Shoreline Management Plan —

(1) General. The policies outlined in § 327.30(d) will be implemented through preparation of Shoreline Management Plans, where private shoreline use is allowed.

(2) Preparation. A Shoreline Management Plan is prepared as part of the Operational Management Plan. A moratorium on accepting applications for new permits may be placed in effect from the time an announcement of creation of a plan or formal revision of a plan is made until the action is completed.

(3) Approval. Approval of Shoreline Management Plans rests with division commanders. After approval, one copy of each project Shoreline Management Plan will be forwarded to HQUSACE (CECW-ON) WASH DC 20314–1000. Copies of the approved plan will also be made available to the public.

(4) Scope and Format. The Shoreline Management Plan will consist of a map showing the shoreline allocated to the uses listed in § 327.30(e)(6), related rules and regulations, a discussion of what areas are open or closed to specific activities and facilities, how to apply for permits and other information pertinent to the Corps management of the shoreline. The plan will be prepared in sufficient detail to ensure that it is clear to the public what uses are and are not allowed on the shoreline of the project and why. A process will be developed and presented in the Shoreline Management Plan that prescribes a procedure for review of activities requested but not specifically addressed by the Shoreline Management Plan.

(5) Shoreline Allocation. The entire shoreline will be allocated within the classifications below and delineated on a map. Any action, within the context of this rule, which gives a special privilege to an individual or group of individuals on land or water at a Corps project, that precludes use of those lands and waters by the general public, is considered to be private shoreline use. Shoreline allocations cover that land and/or water extending from the edge of the water and waterward with the exception of allocations for the purpose of vegetation modification which extends landward to the project boundary. These allocations should complement, but certainly not contradict, the land classifications in the project master plan. A map of sufficient size and scale to clearly display the shoreline allocations will be conspicuously displayed or readily available for viewing in the project administration office and will serve as the authoritative reference. Reduced or smaller scale maps may be developed for public dissemination but the information contained on these must be identical to that contained on the display map in the project administration office. No changes will be made to these maps except through the formal update process. District commanders may add specific constraints and identify areas having unique characteristics during the plan preparation, review, or updating process in addition to the allocation classifications described below.

(i) Limited Development Areas. Limited Development Areas are those areas in which private facilities and/or activities may be allowed consistent with § 327.30(h) and appendix A. Modification of vegetation by individuals may be allowed only following the issuance of a permit in accordance with appendix A. Potential low and high water conditions and underwater topography should be carefully evaluated before shoreline is allocated as Limited Development Area.

(ii) Public Recreation Areas. Public Recreation Areas are those areas designated for commercial concessionaire facilities, Federal, state or other similar public use. No private shoreline use facilities and/or activities will be permitted within or near designated or developed public recreation areas. The term “near” depends on the terrain, road system, and other local conditions, so actual distances must be established on a case by case basis in each project Shoreline Management Plan. No modification of land forms or vegetation by private individuals or groups of individuals is permitted in public recreation areas.

(iii) Protected Shoreline Areas. Protected Shoreline Areas are those areas designated to maintain or restore aesthetic, fish and wildlife, cultural, or other environmental values. Shoreline may also be so designated to prevent development in areas that are subject to excessive siltation, erosion, rapid dewatering, or exposure to high wind, wave, or current action and/or in areas in which development would interfere with navigation. No Shoreline Use Permits for floating or fixed recreation facilities will be allowed in protected areas. Some modification of vegetation by private individuals, such as clearing a narrow meandering path to the water, or limited mowing, may be allowed only following the issuance of a permit if the resource manager determines that the activity will not adversely impact the environment or physical characteristics for which the area was designated as protected. In making this determination the effect on water quality will also be considered.

(iv) Prohibited Access Areas. Prohibited Access Areas are those in which public access is not allowed or is restricted for health, safety or security reasons. These could include hazardous areas near dams, spillways, hydro-electric power stations, work areas, water intake structures, etc. No shoreline use permits will be issued in Prohibited Access Areas.

(6) Public Participation. District commanders will ensure public participation to the maximum practicable extent in Shoreline Management Plan formulation, preparation and subsequent revisions. This may be accomplished by public meetings, group workshops, open houses or other public involvement techniques. When master plan updates and preparation of the Shoreline Management Plans are concurrent, public participation may be combined and should consider all aspects of both plans, including shoreline allocation classifications. Public participation will begin during the initial formulation stage and must be broad-based to cover all aspects of public interest. The key to successful implementation is an early and continual public relations program. Projects with significant numbers of permits should consider developing computerized programs to facilitate exchange of information with permittees and to improve program efficiency. Special care will be taken to advise citizen and conservation organizations; Federal, state and local natural resource management agencies; Indian Tribes; the media; commercial concessionaires; congressional liaisons; adjacent landowners and other concerned entities during the formulation of Shoreline Management Plans and subsequent revisions. Notices shall be published prior to public meetings to assure maximum public awareness. Public notices shall be issued by the district commander allowing for a minimum of 30 days for receipt of written public comment in regard to the proposed Shoreline Management Plan or any major revision thereto.

(7) Periodic Review. Shoreline Management Plans will be reviewed periodically, but no less often than every five years, by the district commander to determine the need for update. If sufficient controversy or demand exists, consideration should be given, consistent with other factors, to a process of reevaluation of the shoreline allocations and the plan. When changes to the Shoreline Management Plan are needed, the plan will be formally updated through the public participation process. Cumulative environmental impacts of permit actions and the possibility of preparing or revising project NEPA documentation will be considered. District commanders may make minor revisions to the Shoreline Management Plan when the revisions are consistent with policy and funds for a complete plan update are not available. The amount and type of public involvement needed for such revision is at the discretion of the district commander.

(f) Instruments for Shoreline Use. Instruments used to authorize private shoreline use facilities, activities or development are as follows:

(1) Shoreline Use Permits.

(i) Shoreline Use Permits are issued and enforced in accordance with provisions of 36 CFR 327.19.

(ii) Shoreline Use Permits are required for private structures/activities of any kind (except boats) in waters of Civil Works projects whether or not such waters are deemed navigable and where such waters are under the primary jurisdiction of the Secretary of the Army and under the management of the Corps of Engineers.

(iii) Shoreline Use Permits are required for non-floating structures on waters deemed commercially non-navigable, when such waters are under management of the Corps of Engineers.

(iv) Shoreline Use Permits are also required for land vegetation modification activities which do not involve disruption to land form.

(v) Permits should be issued for a term of five years. To reduce administration costs, one year permits should be issued only when the location or nature of the activity requires annual reissuance.

(vi) Shoreline Use Permits for erosion control may be issued for the life or period of continual ownership of the structure by the permittee and his/her legal spouse.

(2) Department of the Army Permits. Dredging, construction of fixed structures, including fills and combination fixed-floating structures and the discharge of dredged or fill material in waters of the United States will be evaluated under authority of section 10, River and Harbor Act of 1899 (33 U.S.C. 403) and section 404 of the Clean Water Act (33 U.S.C. 1344). Permits will be issued where appropriate.

(3) Real Estate Instruments. Commercial development activities and activities which involve grading, cuts, fills, or other changes in land form, or establishment of appropriate land-based support facilities required for private floating facilities, will continue to be covered by a lease, license or other legal grant issued through the appropriate real estate element. Shoreline Management Plans should identify the types of activities that require real estate instruments and indicate the general process for obtaining same. Shoreline Use Permits are not required for facilities or activities covered by a real estate instrument.

(g) Transfer of Permits. Shoreline Use Permits are non-transferable. They become null and void upon sale or transfer of the permitted facility or the death of the permittee and his/her legal spouse.

(h) Existing Facilities Now Under Permit. Implementation of a Shoreline Management Plan shall consider existing permitted facilities and prior written Corps commitments implicit in their issuance. Facilities or activities permitted under special provisions should be identified in a way that will set them apart from other facilities or activities.

(1) Section 6 of Pub. L. 97–140 provides that no lawfully installed dock or appurtenant structures shall be required to be removed prior to December 31, 1989, from any Federal water resources reservoir or lake project administered by the Secretary of the Army, acting through the Chief of Engineers, on which it was located on December 29, 1981, if such property is maintained in usable condition, and does not occasion a threat to life or property.

(2) In accordance with section 1134(d) of Pub. L. 99–662, any houseboat, boathouse, floating cabin or lawfully installed dock or appurtenant structures in place under a valid shoreline use permit as of November 17, 1986, cannot be forced to be removed from any Federal water resources project or lake administered by the Secretary of the Army on or after December 31, 1989, if it meets the three conditions below except where necessary for immediate use for public purposes or higher public use or for a navigation or flood control project.

(i) Such property is maintained in a usable and safe condition,

(ii) Such property does not occasion a threat to life or property, and

(iii) The holder of the permit is in substantial compliance with the existing permit.

(3) All such floating facilities and appurtenances will be formally recognized in an appropriate Shoreline Management Plan. New permits for these permitted facilities will be issued to new owners. If the holder of the permit fails to comply with the terms of the permit, it may be revoked and the holder required to remove the structure, in accordance with the terms of the permit as to notice, time, and appeal.

(i) Facility Maintenance. Permitted facilities must be operated, used and maintained by the permittee in a safe, healthful condition at all times. If determined to be unsafe, the resource manager will establish together with the permittee a schedule, based on the seriousness of the safety deficiency, for correcting the deficiency or having it removed, at the permittee’s expense. The applicable safety and health prescriptions in EM 385–1–1 should be used as a guide.

(j) Density of Development. The density of private floating and fixed recreation facilities will be established in the Shoreline Management Plan for all portions of Limited Development areas consistent with ecological and aesthetic characteristics and prior written commitments. The facility density in Limited Development Areas should, if feasible, be determined prior to the development of adjacent private property. The density of facilities will not be more than 50 per cent of the Limited Development Area in which they are located. Density will be measured by determining the linear feet of shoreline as compared to the width of the facilities in the water plus associated moorage arrangements which restrict the full unobstructed use of that portion of the shoreline. When a Limited Development Area or a portion of a Limited Development area reaches maximum density, notice should be given to the public and facility owners in that area that no additional facilities will be allowed. In all cases, sufficient open area will be maintained for safe maneuvering of watercraft. Docks should not extend out from the shore more than one-third of the width of a cove at normal recreation or multipurpose pool. In those cases where current density of development exceeds the density level established in the Shoreline Management Plan, the density will be reduced to the prescribed level through attrition.

(k) Permit Fees. Fees associated with the Shoreline Use Permits shall be paid prior to issuing the permit in accordance with the provisions of § 327.30(c)(1). The fee schedule will be published separately.

Appendix A to § 327.30—Guidelines for Granting Shoreline Use Permits

1. General

a. Decisions regarding permits for private floating recreation facilities will consider the operating objectives and physical characteristics of each project. In developing Shoreline Management Plans, district commanders will give consideration to the effects of added private boat storage facilities on commercial concessions for that purpose. Consistent with established policies, new commercial concessions may be alternatives to additional limited development shoreline.

b. Permits for individually or group owned shoreline use facilities may be granted only in Limited Development Areas when the sites are not near commercial marine services and such use will not despoil the shoreline nor inhibit public use or enjoyment thereof. The installation and use of such facilities will not be in conflict with the preservation of the natural characteristics of the shoreline nor will they result in significant environmental damage. Charges will be made for Shoreline Use Permits in accordance with the separately published fee schedule.

c. Permits may be granted within Limited Development Areas for ski jumps, floats, boat moorage facilities, duck blinds, and other private floating recreation facilities when they will not create a safety hazard and inhibit public use or enjoyment of project waters or shoreline. A Corps permit is not required for temporary ice fishing shelters or duck blinds when they are regulated by a state program. When the facility or activity is authorized by a shoreline use permit, a separate real estate instrument is generally not required.

d. Group owned boat mooring facilities may be permitted in Limited Development Areas where practicable (e.g. where physically feasible in terms of access, water depths, wind protection, etc.).

2. Applications for Shoreline Use Permits

a. Applications for private Shoreline Use Permits will be reviewed with full consideration of the policies set forth in this and referenced regulations, and the Shoreline Management Plan. Fees associated with the Shoreline Use Permit shall be paid prior to issuing the permit. Plans and specifications of the proposed facility shall be submitted and approved prior to the start of construction. Submissions should include engineering details, structural design, anchorage method, and construction materials; the type, size, location and ownership of the facility; expected duration of use; and an indication of willingness to abide by the applicable regulations and terms and conditions of the permit. Permit applications shall also identify and locate any land-based support facilities and any specific safety considerations.

b. Permits will be issued by the district commander or his/her authorized representative on ENG Form 4264–R (Application for Shoreline Use Permit) (appendix B). Computer generated forms may be substituted for ENG Form 4264–R provided all information is included. The computer generated form will be designated, “ENG Form 4264-R-E, Oct 87 (Electronic generation approved by USACE, Oct 87)”.

c. The following are guides to issuance of Shoreline Use Permits:

(1) Use of boat mooring facilities, including piers and boat (shelters) houses, will be limited to vessel or watercraft mooring and storage of gear essential to vessel or watercraft operation.

(2) Private floating recreation facilities, including boat mooring facilities shall not be constructed or used for human habitation or in a manner which gives the appearance of converting Federal public property on which the facility is located to private, exclusive use. New docks with enclosed sides (i.e. boathouses) are prohibited.

(3) No private floating facility will exceed the minimum size required to moor the owner’s boat or boats plus the minimum size required for an enclosed storage locker of oars, life preservers and other items essential to watercraft operation. Specific size limitations may be established in the project Shoreline Management Plan.

(4) All private floating recreation facilities including boat mooring facilities will be constructed in accordance with plans and specifications, approved by the resource manager, or a written certification from a licensed engineer, stating the facility is structurally safe will accompany the initial submission of the plans and specifications.

(5) Procedures regarding permits for individual facilities shall also apply to permits for non-commercial group mooring facilities.

(6) Facilities attached to the shore shall be securely anchored by means of moorings which do not obstruct the free use of the shoreline, nor damage vegetation or other natural features. Anchoring to vegetation is prohibited.

(7) Electrical service and equipment leading to or on private mooring facilities must not pose a safety hazard nor conflict with other recreational use. Electrical installations must be weatherproof and meet all current applicable electrical codes and regulations. The facility must be equipped with quick disconnect fittings mounted above the flood pool elevation. All electrical installations must conform to the National Electric Code and all state, and local codes and regulations. In those states where electricians are licensed, registered, or otherwise certified, a copy of the electrical certification must be provided to the resource manager before a Shoreline Use Permit can be issued or renewed. The resource manager will require immediate removal or disconnection of any electrical service or equipment that is not certified (if appropriate), does not meet code, or is not safely maintained. All new electrical lines will be installed underground. This will require a separate real estate instrument for the service right-of-way. Existing overhead lines will be allowed, as long as they meet all applicable electrical codes, regulations and above guidelines, to include compatibility and safety related to fluctuating water levels.

(8) Private floating recreation facilities will not be placed so as to interfere with any authorized project purposes, including navigation, or create a safety or health hazard.

(9) The district commander or his/her authorized representative may place special conditions on the permit when deemed necessary. Requests for waivers of shoreline management plan permit conditions based on health conditions will be reviewed on a case by case basis by the Operations Manager. Efforts will be made to reduce onerous requirements when a limiting health condition is obvious or when an applicant provides a doctor’s certification of need for conditions which are not obvious.

(10) Vegetation modification, including but not limited to, cutting, pruning, chemical manipulation, removal or seeding by private individuals is allowed only in those areas designated as Limited Development Areas or Protected Shoreline Areas. An existing (as of July 1, 1987) vegetation modification permit, within a shoreline allocation which normally would not allow vegetation modification, should be grandfathered. Permittees will not create the appearance of private ownership of public lands.

(11) The term of a permit for vegetation modification will be for five years. Where possible, such permits will be consolidated with other shoreline management permits into a single permit. The district commander is authorized to issue vegetation modification permits of less than five years for one-time requests or to aid in the consolidation of shoreline management permits.

(12) When issued a permit for vegetative modification, the permittee will delineate the government property line, as surveyed and marked by the government, in a clear but unobtrusive manner approved by the district commander and in accordance with the project Shoreline Management Plan and the conditions of the permit. Other adjoining owners may also delineate the common boundary subject to these same conditions. This delineation may include, but is not limited to, boundary plantings and fencing. The delineation will be accomplished at no cost to the government.

(13) No permit will be issued for vegetation modification in Protected Shoreline Areas until the environmental impacts of the proposed modification are assesed by the resource manager and it has been determined that no significant adverse impacts will result. The effects of the proposed modification on water quality will also be considered in making this determination.

(14) The original of the completed permit application is to be retained by the permittee. A duplicate will be retained in the resource manager’s office.

3. Permit Revocation

Permits may be revoked by the district commander when it is determined that the public interest requires such revocation or when the permittee fails to comply with terms and conditions of the permit, the Shoreline Management Plan, or of this regulation. Permits for duck blinds and ice fishing shelters will be issued to cover a period not to exceed 30 days prior to and 30 days after the season.

4. Removal of Facilities

Facilities not removed when specified in the permit or when requested after termination or revocation of the permit will be treated as unauthorized structures pursuant to 36 CFR 327.20.

5. Posting of Permit Number

Each district will procure 5″ × 8″ or larger printed permit tags of light metal or plastic for posting. The permit display tag shall be posted on the facility and/or on the land area covered by the permit, so that it can be visually checked, with ease in accordance with instructions provided by the resource manager. Facilities or activities permitted under special provisions should be identified in a way that will set apart from other facilities or activities.

Appendix B to § 327.30—Application for Shoreline Use Permit [Reserved]

Appendix C to § 327.30—Shoreline Use Permit Conditions

1. This permit is granted solely to the applicant for the purpose described on the attached permit.

2. The permittee agrees to and does hereby release and agree to save and hold the Government harmless from any and all causes of action, suits at law or equity, or claims or demands or from any liability of any nature whatsoever for or on account of any damages to persons or property, including a permitted facility, growing out of the ownership, construction, operation or maintenance by the permittee of the permitted facilities and/or activities.

3. Ownership, construction, operation, use and maintenance of a permitted facility are subject to the Government’s navigation servitude.

4. No attempt shall be made by the permittee to forbid the full and free use by the public of all public waters and/or lands at or adjacent to the permitted facility or to unreasonably interfere with any authorized project purposes, including navigation in connection with the ownership, construction, operation or maintenance of a permitted facility and/or activity.

5. The permittee agrees that if subsequent operations by the Government require an alteration in the location of a permitted facility and/or activity or if in the opinion of the district commander a permitted facility and/or activity shall cause unreasonable obstruction to navigation or that the public interest so requires, the permittee shall be required, upon written notice from the district commander to remove, alter, or relocate the permitted facility, without expense to the Government.

6. The Government shall in no case be liable for any damage or injury to a permitted facility which may be caused by or result from subsequent operations undertaken by the Government for the improvement of navigation or for other lawful purposes, and no claims or right to compensation shall accrue from any such damage. This includes any damage that may occur to private property if a facility is removed for noncompliance with the conditions of the permit.

7. Ownership, construction, operation, use and maintenance of a permitted facility and/or activity are subject to all applicable Federal, state and local laws and regulations. Failure to abide by these applicable laws and regulations may be cause for revocation of the permit.

8. This permit does not convey any property rights either in real estate or material; and does not authorize any injury to private property or invasion of private rights or any infringement of Federal, state or local laws or regulations, nor does it obviate the necessity of obtaining state or local assent required by law for the construction, operation, use or maintenance of a permitted facility and/or activity.

9. The permittee agrees to construct the facility within the time limit agreed to on the permit issuance date. The permit shall become null and void if construction is not completed within that period. Further, the permittee agrees to operate and maintain any permitted facility and/or activity in a manner so as to provide safety, minimize any adverse impact on fish and wildlife habitat, natural, environmental, or cultural resources values and in a manner so as to minimize the degradation of water quality.

10. The permittee shall remove a permitted facility within 30 days, at his/her expense, and restore the waterway and lands to a condition accepted by the resource manager upon termination or revocation of this permit or if the permittee ceases to use, operate or maintain a permitted facility and/or activity. If the permittee fails to comply to the satisfaction of the resource manager, the district commander may remove the facility by contract or otherwise and the permittee agrees to pay all costs incurred thereof.

11. The use of a permitted boat dock facility shall be limited to the mooring of the permittee’s vessel or watercraft and the storage, in enclosed locker facilities, of his/her gear essential to the operation of such vessel or watercraft.

12. Neither a permitted facility nor any houseboat, cabin cruiser, or other vessel moored thereto shall be used as a place of habitation or as a full or part-time residence or in any manner which gives the appearance of converting the public property, on which the facility is located, to private use.

13. Facilities granted under this permit will not be leased, rented, sub-let or provided to others by any means of engaging in commercial activity(s) by the permittee or his/her agent for monetary gain. This does not preclude the permittee from selling total ownership to the facility.

14. Floats and the flotation material for all docks and boat mooring buoys shall be fabricated of materials manufactured for marine use. The float and its flotation material shall be 100% warranted for a minimum of 8 years against sinking, becoming waterlogged, cracking, peeling, fragmenting, or losing beads. All floats shall resist puncture and penetration and shall not be subject to damage by animals under normal conditions for the area. All floats and the flotation material used in them shall be fire resistant. Any float which is within 40 feet of a line carrying fuel shall be 100% impervious to water and fuel. The use of new or recycled plastic or metal drums or non-compartmentalized air containers for encasement or floats is prohibited. Existing floats are authorized until it or its flotation material is no longer serviceable, at which time it shall be replaced with a float that meets the conditions listed above. For any floats installed after the effective date of this specification, repair or replacement shall be required when it or its flotation material no longer performs its designated function or it fails to meet the specifications for which it was originally warranted.

15. Permitted facilities and activities are subject to periodic inspection by authorized Corps representatives. The resource manager will notify the permittee of any deficiencies and together establish a schedule for their correction. No deviation or changes from approved plans will be allowed without prior written approval of the resource manager.

16. Floating facilities shall be securely attached to the shore in accordance with the approved plans by means of moorings which do not obstruct general public use of the shoreline or adversely affect the natural terrain or vegetation. Anchoring to vegetation is prohibited.

17. The permit display tag shall be posted on the permitted facility and/or on the land areas covered by the permit so that it can be visually checked with ease in accordance with instructions provided by the resource manager.

18. No vegetation other than that prescribed in the permit will be damaged, destroyed or removed. No vegetation of any kind will be planted, other than that specifically prescribed in the permit.

19. No change in land form such as grading, excavation or filling is authorized by this permit.

20. This permit is non-transferable. Upon the sale or other transfer of the permitted facility or the death of the permittee and his/her legal spouse, this permit is null and void.

21. By 30 days written notice, mailed to the permittee by certified letter, the district commander may revoke this permit whenever the public interest necessitates such revocation or when the permittee fails to comply with any permit condition or term. The revocation notice shall specify the reasons for such action. If the permittee requests a hearing in writing to the district commander through the resource manager within the 30-day period, the district commander shall grant such hearing at the earliest opportunity. In no event shall the hearing date be more than 60 days from the date of the hearing request. Following the hearing, a written decision will be rendered and a copy mailed to the permittee by certified letter.

22. Notwithstanding the conditions cited in condition 21 above, if in the opinion of the district commander, emergency circumstances dictate otherwise, the district commander may summarily revoke the permit.

23. When vegetation modification on these lands is accomplished by chemical means, the program will be in accordance with appropriate Federal, state and local laws, rules and regulations.

24. The resource manager or his/her authorized representative shall be allowed to cross the permittee’s property, as necessary to inspect facilities and/or activities under permit.

25. When vegetation modification is allowed, the permittee will delineate the government property line in a clear, but unobtrusive manner approved by the resource manager and in accordance with the project Shoreline Management Plan.

26. If the ownership of a permitted facility is sold or transferred, the permittee or new owner will notify the Resource Manager of the action prior to finalization. The new owner must apply for a Shoreline Use Permit within 14 days or remove the facility and restore the use area within 30 days from the date of ownership transfer.

27. If permitted facilities are removed for storage or extensive maintenance, the resource manager may require all portions of the facility be removed from public property.

Appendix D to § 327.30—Permit [Reserved]

[55 FR 30697, July 27, 1990, as amended at 57 FR 21895, May 26, 1992; 57 FR 29220, July 1, 1992; 63 FR 35828, July 1, 1998]

Effective Date Note

Effective Date Note:

The amendment to § 327.30 revising the last sentence of paragraph (k), published at 56 FR 29587, June 28, 1991, was deferred indefinitely. See 56 FR 49706, Oct. 1, 1991. The administrative charges contained in § 327.30, Shoreline Management on Civil Works Projects, published in the July 1, 1991, edition of the Code of Federal Regulations will remain in effect. Any future decisions affecting this regulation will be published in the Federal Register at a later date by the Corps of Engineers, Department of the Army. For the convenience of the user, the rule published on June 28, 1991, at FR page 29587, is set forth as follows:

§ 327.30 Shoreline Management on Civil Works Projects.

(k) * * * The Fee Schedule is published in § 327.31.

§ 327.31 Shoreline management fee schedule.

A charge will be made for Shoreline Use Permits to help defray expenses associated with issuance and administration of the permits. As permits become eligible for renewal after July 1, 1976, a charge of $10 for each new permit and a $5 annual fee for inspection of floating facilities will be made. There will be no annual inspection fee for permits for vegetative modification on Shoreline areas. In all cases the total administrative charge will be collected initially at the time of permit issuance rather than on a piecemeal annual basis.

[56 FR 61163, Dec. 2, 1991; 56 FR 65190, Dec. 16, 1991]

Creation Date	1/15/24	File Name	Permits.docx
Save Date	1/15/24	File Location	F:\1. Legal\1.2.1 Laws\Federal\US Army Corp of Engineers\Permits.docx

Outdoor Recreation Trip Leader and Guide Resume

Posted: February 1, 2024 | Author: Recreation Law | Filed under: Activity / Sport / Recreation | Tags: CV, James H. Moss, James Moss, Jim Moss, resume | Leave a comment

James H. (Jim) Moss, JD

Outdoor Recreation Trip Leader & Guide Resume

Outdoor Experience	Guide Colorado Whitewater Expeditions: Trip Leader and Colorado Whitewater Guide Trainer. Trip Leader for all Dolores, Colorado, and Arkansas River Trips. In charge of final training for guides and guide testing Arkansas River (class III through V) 2000 trips as Trip Leader Dolores River (class III) 100 trips as TL Colorado River, Cataract Canyon (class 10) 5 trips as TL including trip with Chief counsel Speaker of the House and Under Secretary of the Interior. Colorado River, Westwater Canyon (class IV) 10 trips as TL Half-day through six-day trips Outdoors Unlimited: 1999 Colorado River, Grand Canyon OARS, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2006, 2005, 2004 Colorado River, Grand Canyon NOLS, Green River, Dinosaur National Monument: Class I Utah River Guide License Colorado Outward Bound School, Yampa River, Dinosaur National Monument: Class I Utah River Guide License EdVentures International: Trip Leader Amazon Rain Forest, Iquitos, Peru 7 day jungle trips Boy Scouts of America Philmont Scout Ranch, Adult Leader, 1993 12-day treks Gunflint Outfitters, 2004 Boundary Waters Canoe Area, canoe trip; Trip Leader Argentina, Canada, Colorado & Mexico, Mountaineering: Head Guide Grand Canyon Private River trips, 12 trips at Trip Leader 5 trips as participant & raft guide
Teaching/ Instructor Experience	Outdoor Recreation Law and Insurance, Outdoor Recreation Guide Program Instructor Wilderness First Responder Emergency Medical Technician Outdoor Recreation Liability Seminar (2 days) Swift Water Rescue Instructor Rock Climbing1982–1984 Ohio State University Columbus, OH
Medical/First Aid Training	St Anthony’s Hospital EMT course
Outdoor Programming Experience	Boy Scouts of America 1977–1980 Boy Scouts of America Wheeling, WV District Executive Organized Planned and promoted outdoor adventure programs for youth Program Manager Summer Camp Training BSA National Camping School BSA National Leadership School BSA National Camping School Climbing Director
Member (or former member) Board of Directors	Trade Association of Paddlesports Galapagos Preservation Society Galapagos Conservation Action Colorado Alliance of Environmental Education
Misc	Chosen by the Department of the Interior to TL River Trips for dignitaries Chosen by ORCA (now OIA) to TL ORCA Industry River Trips

James H. (Jim) Moss

Recreation.law@gmail.com

720 334-8529

www.recreation-law.com

PO Box 16743, Golden, CO 80402

Release validity was based on whether brother had authorized brother to sign electronic release for him.

Posted: January 29, 2024 | Author: Recreation Law | Filed under: Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Electronic Release, Release, Rental Release, Ski Rental, Wachusett Mountain Ski Area, Waiver | Leave a comment

The issue revolved around the authority of one brother to sign the electronic release on behalf of the other brother.

Marken v. Wachusett Mountain Ski Area, Inc., 21-P-667 (Mass. App. May 02, 2022)

State: Massachusetts; Appeals Court of Massachusetts

Plaintiff: Charles Marken

Defendant: Wachusett Mountain Ski Area, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: Ski Area Defendant

Year: 2022

Summary

One brother signed the release for himself and his other brother when renting ski equipment at the resort. The non-signing brother was injured and sued. The release was upheld because the non-injured brother stated during his deposition that he had the authority to sign for his brother.

Facts

On January 7, 2017, the plaintiff, a beginner skier, met his brother, Anthony Marken, at Wachusett Mountain for a day of skiing. When Charles arrived, Anthony was at the rental shop. Anthony had already rented ski equipment for both of them by the time Charles arrived.

In order to rent equipment, a renter must agree to the terms of a rental agreement using a digital kiosk system. After reviewing the rental agreement, which contains a release from “any legal liability,” renters must click “I agree” on the screen. The renter then enters personal information including height, weight, age, boot size, and skier type. The system uses this information to calculate the appropriate ski binding release setting. Once the rental agreement is signed, the system prints a sticker with the renter’s information, including the binding release setting. The ski technician uses the information on the sticker to select ski boots that are fitted to match the renter’s boot size and binding release setting. Charles and Anthony obtained their equipment consistent with the foregoing process, and began to ski. Charles, an admitted beginner, fell twice while skiing prior to the injury at issue; on both occasions, his bindings released properly. At some point, Charles decided to ski a black diamond trail which is for expert skiers. During that run, Charles tried to slow down. He fell, sustained serious injuries to his left leg, and was transported to a hospital. Thereafter, the defendants tested the equipment that Charles had used. The equipment passed inspection and testing, and was returned to the rental inventory.

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

Releases in Massachusetts are supported and normally upheld.

Generally, we will enforce a release disposing of all claims and demands arising out of any transactions between parties. Indeed, “Massachusetts law favors the enforcement of releases. This is true even where, as here, the party signing the release either does not read it or does not understand it.

Since the non-suing brother signed the release for the brother who was injured, the issue became one of authority. Did the brother that got injured authorize his brother to sign the release for him.

The non-injured brother said unequivocally yes his brother gave him the authority to sign. The injured brother argued on appeal he had not given his brother the authority to sign the release.

Since the non-injured brother was so firm with his answer, that testimony was accepted by the courts and the release was valid.

So Now What?

This is a tough situation that resorts, outfitters, and rental programs face every day. More so with releases being signed online. Who is signing the release.

Your options for solving this problem are multiple, however none of them lend themselves to great customer service.

You can have each person complete their information and sign the release for themselves and only themselves.

You could have the person signing on the computer state they have the legal authority to sign for the other people listed on the release at that point.

To verify who is signing the release, you need to make sure you know who is signing the release. The secure way of doing this is to have the person fill out their credit card information first and then agree to the release. Their contract with the credit card company states that since it is their credit card they are the ones that are using it.

Either way, it is a mess. However, for your releases to be valid, you need to know who has signed the release when they enter your establishment and those who have not signed, complete the information and sign the release.

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Marken v. Wachusett Mountain Ski Area, Inc., 21-P-667 (Mass. App. May 02, 2022)

Posted: January 29, 2024 | Author: Recreation Law | Filed under: Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Electronic Release, Release, Rental Equipment, skiing, Wachusett Mountain Associates, Wachusett Mountain Ski Area | Leave a comment

To Read an Analysis of this decision see: Release validity was based on whether brother had authorized brother to sign electronic release for him.

CHARLES MARKEN
v.
WACHUSETT MOUNTAIN SKI AREA, INC., & another.^[1]

No. 21-P-667

Appeals Court of Massachusetts

May 2, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Charles Marken, filed a complaint in the Superior Court against Wachusett Mountain Ski Area, Inc. and Wachusett Mountain Associates, Inc. (the defendants or Wachusett) for injuries he sustained while skiing.^[2] On cross motions for summary judgment, the judge allowed the defendants’ motion and dismissed the complaint. This appeal followed. We affirm.

Background.

As the party against whom summary judgment entered, we recite the facts in the light most favorable to the plaintiff. See Cesso v. Todd, 92 Mass.App.Ct. 131, 132 (2017). On January 7, 2017, the plaintiff, a beginner skier, met his brother, Anthony Marken, at Wachusett Mountain for a day of skiing. When Charles arrived, Anthony was at the rental shop. Anthony had already rented ski equipment for both of them by the time Charles arrived.^[3]

Discussion.

“We review a motion for summary judgment de novo. … In doing so, we must determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.'” Psychemedics Corp. v. Boston, 486 Mass. 724, 731 (2021), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Here, the defendants claim that the release of liability in the rental agreement is valid and enforceable against the plaintiff. Generally, we will enforce a release disposing of all claims and demands arising out of any transactions between parties. See Leblanc v. Friedman, 438 Mass. 592, 597-598 (2003). Indeed, “Massachusetts law favors the enforcement of releases.” Sharon v. Newton, 437 Mass. 99, 105 (2002). This is true even where, as here, the party signing the release either does not read it or does not understand it. See Id. at 103.

Charles does not challenge the validity or enforceability of the release itself. Instead, he claims that the release is unenforceable because he did not sign it, and did not authorize Anthony to sign it on his behalf.^[4] However, this claim is belied by Charles’s sworn deposition testimony. Charles was asked, “Had you authorized your brother to [complete the rental agreement] for you?” He answered, “Yes.”^[5] He did not equivocate and did not amend his deposition answers. See Tarn v. Federal Mgt. Co., 99 Mass.App.Ct. 41, 46-50 (2021). Charles cannot now create an issue of material fact by claiming that he did not authorize Anthony to sign the release on his behalf. See O’Brien v. Analog Devices, Inc., 34 Mass.App.Ct. 905, 90 6 (1993) (party cannot create disputed issue of fact by contradicting statements previously made under oath at deposition). As such, summary judgment was properly granted to the defendants.^[6] See Tarn, supra (summary judgment proper where plaintiff was bound by deposition testimony and where binding admission established she could not prevail at trial).

Request for attorney’s fees and costs.

The defendants’ request for attorney’s fees and costs is allowed. The defendants may submit a petition for appellate attorney’s fees to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty days of the issuance of this memorandum and order. The plaintiff may respond to the petition within twenty days of said filing.

Judgment affirmed.

Blake, Lemire & Hershfang, JJ. [7]

———

Notes:

^[1] Wachusett Mountain Associates, Inc. All claims against third-party defendant Head USA, Inc. were voluntarily dismissed prior to the entry of summary judgment, and it is not a party to this appeal.

^[2] The complaint asserted claims for negligence, breach of express and implied warranty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent misrepresentation.

^[3] Because the plaintiff and his brother share a surname, we use their first names to avoid confusion.

^[4] Charles testified that on previous ski trips he had signed a release, and therefore he expected to sign a release at Wachusett.

^[5] To the extent that Charles argues that this question and answer must be viewed in context with the entire line of questioning, we agree. In so doing, we conclude that Charles authorized Anthony to sign the rental agreement containing the release on his behalf. See Fergus v. Ross, 477 Mass. 563, 567 (2017) (“Apparent authority exists when the principal, by his . . . words or conduct, causes a third person to reasonably believe that the principal consents to the agent acting on the principal’s behalf”).

^[6] Because of the result we reach, we do not consider Charles’s spoliation of evidence claim.

^[7] The panelists are listed in order of seniority.

G-YQ06K3L262

New Jersey ski area pushes “indemnification” clause in release too far and gets told by court its release is an adhesion contract.

Posted: January 22, 2024 | Author: Recreation Law | Filed under: New Jersey, Release (pre-injury contract not to sue), Skier v. Skier, Skiing / Snow Boarding | Tags: Adhesion Contract, Bright Line, Indemnification, Indemnification Clause, Mountain Creek, New Jersey Skier Statute, Release | Leave a comment

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Indemnification agreements in releases fail. You cannot write the language in a release to qualify for indemnification. Here the ski area tried to get greedy and got slammed.

Vladichak v. Mountain Creek Ski Resort, Inc., A-1367-20 (N.J. Super. App. Div. Apr 13, 2022)

State: New Jersey; Superior Court of New Jersey, Appellate Division

Plaintiff: Andrea Vladichak

Defendant: Mountain Creek Ski Resort, Inc., Defendant-Appellant, and Michael Lavin, Defendant-Respondent.

Plaintiff Claims: Indemnification from the co-defendant

Defendant Defenses: The indemnification clause was not valid.

Holding: for the Defendant-Respondent

Year: 2022

Summary

After winning a lawsuit from a skier injured in a skier v. skier collision, Mountain Creek Ski Area sued the at fault skier in the collision for damages. The appelleate court found the indemnification clause in the release was not written correct and then found Mountain Creek’s release to be an adhesion contract.

Facts

Defendant Snow Creek, LLC d/b/a Mountain Creek Resort, Inc. (Mountain Creek) appeals from a November 9, 2020 order denying its motion for summary judgment and granting summary judgment to defendant Michael Lavin (Lavin) dismissing Mountain Creek’s cross-claims for defense costs and contractual indemnification. Judge David J. Weaver (motion judge) concluded in a thorough opinion that the contractual language was ambiguous and therefore Mountain Creek was not entitled to indemnification from Lavin or defense costs incurred to defend plaintiff’s allegations that Mountain Creek itself was negligent. We affirm.

On December 21, 2017, plaintiff sustained personal injuries while skiing at a ski area owned and operated by Mountain Creek in Vernon Township, New Jersey. Plaintiff was struck from behind by Lavin, another skier. Plaintiff filed a complaint alleging Mountain Creek and Lavin were negligent. Plaintiff’s complaint alleged Mountain Creek was independently negligent for failing to provide appropriate warnings to skiers, failing to appropriately designate the difficulty of ski trails, failing to provide skiers with appropriate information about trail conditions, failing to timely remove obvious manmade hazards, and/or otherwise failing to establish adequate procedures to provide a safe skiing environment. The complaint alleged Lavin was negligent for breaching his duty to others to ski in a reasonably safe manner by skiing in a reckless manner and/or intentionally colliding into plaintiff and causing her injuries.

Prior to the incident, Lavin signed an equipment rental agreement (Rental Agreement) and lift ticket agreement (Release Agreement) in which he agreed to defend and indemnify Mountain Creek from any claims related to his own conduct and use of the property’s equipment facilities. On August 7, 2019, Mountain Creek filed an answer and cross-claims seeking defense and indemnification from Lavin based on the executed Rental and Release Agreements. Mountain Creek previously tendered the defense to Lavin on July 16, 2019.

Plaintiff’s counsel served a report from plaintiff’s liability expert, who concluded that Lavin violated the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -12, and the Skier’s Responsibility Code by failing to control his speed and course and by failing to yield to the skiers ahead of him. The expert opined that Lavin’s reckless conduct caused the accident. On March 27, 2020, Judge Stephan C. Hansbury entered an order granting Mountain Creek’s motion for summary judgment dismissing plaintiff’s claims that Mountain Creek was negligent. Lavin and plaintiff settled and filed a stipulation of dismissal with prejudice dated May 29, 2020.

After plaintiff’s settlement with Lavin, Mountain Creek filed its motion seeking reimbursement from Lavin for defending plaintiff’s allegations and indemnification from Lavin.[1] Lavin filed a cross-motion for summary judgment on September 1. That led to the order under review.

The judge concluded that, as a matter of law, the indemnification provisions were ambiguous and thus unenforceable to compel indemnification in favor of Mountain Creek for claims of its own negligence. The motion judge denied Lavin’s cross-motion for summary judgment in part and granted it in part. The motion judge requested the parties submit the detail and extent of defense costs incurred by Mountain Creek for costs incurred for which liability was only vicarious.

Simply put, Mountain Creek and Michael Lavin were sued by the original plaintiff Andrea Vladichak for injuries received due to a skier v. skier collision between Lavin and Vladichak. Mountain Creek was dismissed from the original lawsuit. Lavin settled with Vladichak.

The day of the collision, Lavin had rented equipment from Mountain Creek and signed a release as part of the rental agreement. The release had a poorly worded indemnification clause in it. After Lavin settled and Mountain Creek was dismissed, Mountain Creek sued Lavin using the indemnification clause in an attempt to recover the money Mountain Creek spent defending the lawsuit. Mountain Creek lost the original lawsuit and this is the result of the appeal of that trial court decision.

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

The basis for the reasoning on why Mountain Creek made these moves seems to have been a report from the plaintiff’s expert witness that found Lavin liable for the accident.

The trial judge ruled that the indemnification language did not meet the necessary requirements to be valid in New Jersey.

The Appelleate court set forth how contracts in general are examined by the courts and the special requirements of indemnification clauses.

The judge’s role “in construing a contractual indemnity provision is the same as in construing any other part of a contract-it is to determine the intent of the parties.” Generally, courts give contractual provisions “their plain and ordinary meaning.” “However, indemnity provisions differ from provisions in a typical contract in one important aspect. If the meaning of an indemnity provision is ambiguous, the provision is ‘strictly construed against the indemnitee.

Meaning indemnification language is not looked at as whether the parties agreed to the provisions, but whether the writer of the clause did so meeting the strict requirements the courts require to create indemnification.

This is known as the bright line test, do the words in the clause meet the “bright line” test required.

One of the tests as to whether the language in an indemnification clause is written correctly is whether the act that triggers indemnification is identified in the agreement.

Our Court affirmed and held that “in order to allay even the slightest doubt on the issue of what is required to bring a negligent indemnitee within an indemnification agreement, we reiterate that the agreement must specifically reference the negligence or fault of the indemnitee.”

Indemnification clauses cannot use general language and be used to recover money for any action that may cost one party money. They are clauses that must be written to cover the specific acts set forth in the clause.

Here the language failed to meet that requirement.

We agree with the motion judge that the indemnity provisions in the agreements are ambiguous as to claims of Mountain Creek’s independent negligence. Although the provisions reference Mountain Creek’s negligence in bold and capitalized letters, the language “arising out of or resulting from my conduct . . . whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part” is insufficient to meet the Azurak standard. One could reasonably interpret the provisions to require indemnification and defense of Mountain Creek for any claims of negligence against it caused by Lavin’s conduct even when Mountain Creek is partially at fault or to require Lavin to indemnify and defend Mountain Creek for separate claims of its own negligence.

The clause also failed because the acts that gave rise to litigation against Mountain Creek, or the claims, were not the acts or claims that were brought against Lavin. Here again the language of the indemnification agreement was too broad to meet the specific language requirements required by New Jersey Law.

The indemnification clause did not cover the acts of Lavin which Mountain Creek was claiming were covered. Again, Mountain Creek wrote a clause using broad language when the courts require specific language.

Lavin argued and the court agreed that the release was a contract of adhesion.

As a threshold issue, we determine that the Release and Rental Agreements were contracts of adhesion. If a contract is characterized as a contract of adhesion, “nonenforcement of its terms may be justified on other than such traditional grounds as fraud, duress, mistake, or illegality. An adhesion contract is one that “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” “Although a contract of adhesion is not per se unenforceable, a [judge] may decline to enforce it if it is found to be unconscionable.”

Contracts of adhesion are still enforceable; however, they are easier to void and cannot be enforced if found to be unconscionable. By making this argument, Mountain Creek put a label on its release which will make it easier in the future to beat.

The court then looked at the four factors to determine if under New Jersey law a contract is unconscionable.

Nothing like the appelleate court of your state setting out the requirements to void your release. The court found that this release was not unconscionable only the indemnification language was void.

So Now What?

Go to far. A ski area sues one of its customers to recover money for the actions of the customer against a third party, not the ski area. That went to far and the New Jersey Appelleate Court slammed Mountain Creek in two ways for doing so.

The indemnification clause was void because it was not written correctly.
The release was labeled a contact of adhesion, providing a road map for future lawsuits to follow.

Indemnification agreements in releases have not been upheld. You must either write them correctly, which is difficult to do or take them out.

I’ve only read one decision where the indemnification clause was upheld and it was a little different. A federal district court in Massachusetts upholds indemnification clause in a release.

Most decisions do not uphold indemnification clauses.

New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.

Push a release too far, in a state that is not sure Releases should be valid, and you provide the court with the opportunity to void releases and indemnification in the state.

Indemnification fails again in a release. Parent of child having a birthday at climbing gym signed release for the injured child, not her own child.

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Vladichak v. Mountain Creek Ski Resort, Inc., A-1367-20 (N.J. Super. App. Div. Apr 13, 2022)

Posted: January 22, 2024 | Author: Recreation Law | Filed under: New Jersey, Release (pre-injury contract not to sue), Ski Area, Skier v. Skier, Skiing / Snow Boarding | Tags: Adhesion Contract, Bright Line, Inc., Indemnification, Indemnification Clause, Mountain Creek, Mountain Creek Ski Resort, Release, Strictly Construed | Leave a comment

To Read an Analysis of this decision see: New Jersey ski area pushes “indemnification” clause in release too far and gets told by court its release is an adhesion contract.

ANDREA VLADICHAK, Plaintiff-Respondent,
v.
MOUNTAIN CREEK SKI RESORT, INC., Defendant-Appellant,

and MICHAEL LAVIN, Defendant-Respondent.

No. A-1367-20

Superior Court of New Jersey, Appellate Division

April 13, 2022

This opinion shall not “constitute precedent or be binding upon any court .” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued April 4, 2022

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0590-18.

Samuel J. McNulty argued the cause for appellant (Hueston McNulty, PC, attorneys; Samuel J. McNulty, of counsel and on the briefs; Edward J. Turro, on the briefs).

Matthew E. Kennedy argued the cause for respondent Michael Lavin (Leary Bride Mergner & Bongiovanni, PA, attorneys; Matthew E. Kennedy, of counsel and on the brief).

Before Judges Fasciale and Sumners.

PER CURIAM

After plaintiff’s settlement with Lavin, Mountain Creek filed its motion seeking reimbursement from Lavin for defending plaintiff’s allegations and indemnification from Lavin.^[1] Lavin filed a cross-motion for summary judgment on September 1. That led to the order under review.

Mountain Creek’s attorneys stipulated that there were no fees or costs incurred from defending vicarious liability claims. On December 14, 2020, Judge Robert J. Brennan entered a consent order resolving all remaining issues as to all parties.

Mountain Creek raises the following arguments on appeal:

POINT I

STANDARD OF REVIEW-DE NOVO[.]

POINT II

THE [MOTION JUDGE] CORRECTLY RULED THAT THE TWO AGREEMENTS WERE NOT CONTRACTS OF ADHESION NOR WERE THEY CONTRARY TO PUBLIC POLICY.

POINT III

THE [MOTION JUDGE] ERRED IN FINDING THAT THE LANGUAGE IN THE AGREEMENTS SIGNED BY . . . LAVIN IS AMBIGUOUS AND INSUFFICIENT TO COMPEL . . . LAVIN TO INDEMNIFY AND DEFEND MOUNTAIN CREEK FOR CLAIMS OF ITS OWN NEGLIGENCE.

A. Special Status Of A Ski Operator.

B. The Two Agreements Were Unambiguous And Should Be Enforced.^[2]

Mountain Creek raises the following points in reply, which we have renumbered:

POINT IV

. . . LAVIN’S REQUEST THAT THE APPELLATE DIVISION REVERSE THE [MOTION JUDGE]’S JUDGMENT THAT THE CONTRACTS WERE NOT UNCONSCIONABLE SHOULD BE REJECTED AS NO CROSS-APPEAL WAS FILED.

POINT V

THE AGREEMENTS IN QUESTION ARE ENFORCEABLE AND NOT UNCONSCIONABLE CONTRACTS OF ADHESION.

POINT VI

THE INDEMNIFICATION LANGUAGE IS SUFFICIENT AND EXPRESSLY PROVIDES FOR INDEMNIFICATION FOR CLAIMS ASSERTING MOUNTAIN CREEK’S OWN NEGLIGENCE.

We review the motion judge’s grant of a motion for summary judgment de novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). We apply the same standard as the motion judge and consider “whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Mountain Creek contends the motion judge erred in ruling the indemnification provisions in the Release and Rental Agreements were ambiguous and unenforceable to compel Lavin to indemnify Mountain Creek for Mountain Creek’s own negligence. Mountain Creek also contends that it should be permitted to obtain indemnification from Lavin based on its special status as a ski area operator under the Ski Statute.

The judge’s role “in construing a contractual indemnity provision is the same as in construing any other part of a contract-it is to determine the intent of the parties.” Kieffer v. Best Buy, 205 N.J. 213, 223 (2011). Generally, courts give contractual provisions “their plain and ordinary meaning.” Ibid. (quoting M.J. Paquet, Inc. v. N.J. Dep’t of Transp., 171 N.J. 378, 396 (2002)). “However, indemnity provisions differ from provisions in a typical contract in one important aspect. If the meaning of an indemnity provision is ambiguous, the provision is ‘strictly construed against the indemnitee.'” Ibid. (quoting Mantilla v. NC Mall Assocs., 167 N.J. 262, 272 (2001)).

We have characterized this approach as a “bright line” rule requiring “explicit language” when “indemnification includes the negligence of the indemnitee.” Azurak v. Corp. Prop. Invs., 347 N.J.Super. 516, 523 (App. Div. 2002). Azurak involved a contract between a janitorial company (PBS) and a shopping mall owner (the Mall) that contained the following provision:

Contractor [PBS] shall indemnify, defend and hold harmless each Indemnitee [the Mall] from and against any claim (including any claim brought by employees of Contractor), liability, damage or expense (including attorneys’ fees) that such Indemnitee may incur relating to, arising out of or existing by reason of (i) Contractor’s performance of this Agreement or the conditions created thereby (including the use, misuse or failure of any equipment used by Contractor or its subcontractors, servants or employees) or (ii) Contractor’s breach of this Agreement or the inadequate or improper performance of this Agreement by Contractor or its subcontractors, servants or employees.

[Azurak v. Corp. Prop. Invs., 175 N.J. 110, 111 (2003) (alterations in original).]

The plaintiff sued the Mall and PBS for injuries she sustained when she slipped on the Mall’s floor. Ibid. The trial judge granted the Mall’s summary judgment motion on the issue of indemnification based on the contract provision. Ibid. At trial, the jury determined “that plaintiff was 30% negligent; the Mall, 30%; and PBS, 40%.” Ibid. This court disagreed with the trial judge, finding that the indemnification provision did not encompass the Mall’s negligence because the provision’s language was neither explicit nor unequivocal as to claims of the Mall’s own negligence. Id. at 111-12. Our Court affirmed and held that “in order to allay even the slightest doubt on the issue of what is required to bring a negligent indemnitee within an indemnification agreement, we reiterate that the agreement must specifically reference the negligence or fault of the indemnitee.” Id. at 112-13.

Mountain Creek’s Release Agreement contained a provision that states:

INDEMNIFICATION. To the fullest extent permitted by law, I agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees asserted against Mountain Creek by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities WHETHER OR NOT MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.

One provision of the Rental Agreement states:

To the fullest extent permitted by law, I also agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees for personal injury, death or property damage against it by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities or the use of this equipment whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.

We agree with the motion judge that the indemnity provisions in the agreements are ambiguous as to claims of Mountain Creek’s independent negligence. Although the provisions reference Mountain Creek’s negligence in bold and capitalized letters, the language “arising out of or resulting from my conduct . . . whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part” is insufficient to meet the Azurak standard. One could reasonably interpret the provisions to require indemnification and defense of Mountain Creek for any claims of negligence against it caused by Lavin’s conduct even when Mountain Creek is partially at fault or to require Lavin to indemnify and defend Mountain Creek for separate claims of its own negligence. See Nester v. O’Donnell, 301 N.J.Super. 198, 210 (App. Div. 1997) (noting that a contract is ambiguous if it is “susceptible to at least two reasonable alternative interpretations” (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F.Supp. 275, 283 (D.N.J. 1992), aff’d, 993 F.2d 877 (3d Cir. 1993))).

An indemnitor may expect to indemnify and defend an indemnitee for claims caused by its negligent conduct when the indemnitee may also be at fault but may not expect to be solely responsible to indemnify and defend the indemnitee when the indemnitee has committed separate acts of negligence. That is the case here, as plaintiff’s complaint alleged Mountain Creek was separately negligent for failing to provide adequate instructions to skiers and a safe ski environment. A better-and likely enforceable-provision would explicitly state that the indemnitor indemnifies Mountain Creek for claims arising out of indemnitor’s conduct and for claims of Mountain Creek’s independent negligence.

The provisions at issue do not meet the bright line rule requiring “unequivocal terms” that the duty to indemnify extends to the indemnitee’s own negligence. Thus, the provisions are ambiguous and must be strictly construed against Mountain Creek. The same reasoning and standards apply with equal force to Mountain Creek’s defense costs. The provisions’ ambiguity precludes their enforcement against Lavin for recovery of the costs incurred by Mountain Creek for defending its own negligence claims.

We also conclude Mountain Creek’s argument that the Ski Statute supports enforcement of the indemnification provisions is without merit. While the Ski Act may emphasize the inherent risk that skiers assume when skiing, the Act provides separate duties to the ski operator, which include establishing and posting a system for identifying slopes and their difficulty, ensuring the availability of information to skiers, and removing hazards as soon as practicable. N.J.S.A. 5:13-3(a). The allegations in plaintiff’s complaint, which include failing to provide adequate signage and failing to instruct skiers properly, do not fall under the risks that “are essentially impractical or impossible for the ski area operator to eliminate” defined in the statute. N.J.S.A. 5:13-1(b). In fact, plaintiff’s complaint addressed the responsibilities of a ski area operator as prescribed by the Act. Requiring indemnification in favor of a ski resort for claims of its own independent negligence does not further the Ski Act’s purpose of allocating the inherent risk of skiing between the skier and ski resort. Moreover, the public policy of the Ski Act has no bearing on our interpretation of the indemnity provisions and our conclusion that the provisions are ambiguous.

II.

Lavin argues, on an alternative basis, that the Rental and Release Agreements are unconscionable contracts of adhesion. Lavin was not required to file a Notice of Cross-Appeal to preserve this argument for appeal because “appeals are taken from judgments, not opinions, and, without having filed a cross-appeal, a respondent can argue any point on the appeal to sustain the trial [judge’s] judgment.” Chimes v. Oritani Motor Hotel, Inc., 195 N.J.Super. 435, 443 (App. Div. 1984). Even if Lavin were required to file a cross-appeal, we will address the merits of his argument.

As a threshold issue, we determine that the Release and Rental Agreements were contracts of adhesion. If a contract is characterized as a contract of adhesion, “nonenforcement of its terms may be justified on other than such traditional grounds as fraud, duress, mistake, or illegality.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353 (1992). An adhesion contract is one that “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Vitale v. Schering-Plough Corp., 231 N.J. 234, 246 (2017) (quoting Rudbart, 127 N.J. at 355). “Although a contract of adhesion is not per se unenforceable, a [judge] may decline to enforce it if it is found to be unconscionable.” Ibid.

We agree with the motion judge that “the Agreements at issue evidence characteristics of contracts of adhesion.” The Release and Rental Agreements were standardized form contracts that fit our Court’s definition as “take-it-or-leave-it” adhesion contracts. See ibid. All potential skiers at Mountain Creek’s resort are obligated to sign the Release Agreement, and there is little to no negotiating done before the agreements’ execution. However, an agreement found to be an adhesion contract may nevertheless be enforced if it is not unconscionable. See ibid.

When determining whether an adhesion contract is unconscionable, we evaluate four factors that “focus on procedural and substantive aspects of the contract to determine whether the contract is so oppressive, or inconsistent with the vindication of public policy, that it would be unconscionable to permit its enforcement.” Id. at 247 (internal quotation marks omitted) (quoting Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 343, 367 (2016)). Those factors include “the subject matter of the contract, the parties’ relative bargaining positions, the degree of economic compulsion motivating the ‘adhering’ party, and the public interests affected by the contract.” Rudbart, 127 N.J. at 356. The first three factors speak to procedural unconscionability, and the last factor speaks to substantive unconscionability. See Rodriguez, 225 N.J. at 367. We consider these factors using a “sliding scale analysis.” Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010).

The motion judge correctly relied on Stelluti in determining the agreements are not procedurally unconscionable. In Stelluti, the plaintiff was injured in a spinning class at a private fitness center and argued that the pre-injury waiver of liability she signed was unenforceable on unconscionability grounds. Id. at 291, 300. The Court found that although the pre-printed form was an adhesion contract, it was not procedurally unconscionable. Id. at 301-02. The Court reasoned the plaintiff was not in a position of unequal bargaining power, despite being a layperson and not being fully informed of the legal effect of an adhesion contract, when she had the ability to take “her business to another fitness club,” to find a form of exercise different than joining a private gym, or to contemplate the agreement for some time before joining the gym and using its equipment. Id. at 302.

Under the Court’s reasoning in Stelluti and applying the four-factor test, the Release and Rental Agreements are not procedurally unconscionable. At the time of the incident, Lavin was twenty years old and a layperson without specialized knowledge of the law. He maintains he did not read the agreements before signing them despite having the opportunity to do so. Lavin also stated that he did not have the opportunity to negotiate the terms of the agreement. However, Lavin was engaging in a recreational activity like the adhering party in Stelluti, and he was under no economic duress or obligation to consent to the agreements. Lavin could have chosen to take his business to another ski resort, rented skis from a different facility, or could have simply read the agreements or contemplated them before signing.

As for the remaining factor-the impact on public interest-Mountain Creek points to the “strong public policy of protecting ski operators and allocating the risks and costs of inherently dangerous recreational activities” under the Ski Statute. The Act’s purpose

is to make explicit a policy of this State which clearly defines the responsibility of ski area operators and skiers, recognizing that the sport of skiing and other ski area activities involve risks which must be borne by those who engage in such activities and which are essentially impractical or impossible for the ski area operator to eliminate. It is, therefore, the purpose of this act to state those risks which the skier voluntarily assumes for which there can be no recovery.

[N.J.S.A. 5:13-1(b).]

We agree that the Agreements are not substantively unconscionable. The agreements do not contain terms that are so “harsh” or “one-sided” to render them unconscionable and unenforceable. See Muhammad v. Cnty. Bank of
Rehoboth Beach, Del., 189 N.J. 1, 15 (2006). Construing the indemnity provision against Mountain Creek due to its ambiguity, the provision requires that Lavin indemnify and defend Mountain Creek for claims arising out of Lavin’s conduct while using Mountain Creek’s equipment and facilities, even when Mountain Creek is partially at fault. This indemnification scheme is consistent with the Ski Act’s purpose to promote “the allocation of the risks and costs of skiing” as “an important matter of public policy.” N.J.S.A. 5:13-1(a). Moreover, in Stelluti, the Court considered that “some activities involve a risk of injury and thus require risk sharing between the participants and operators” and that our Legislature has enacted statutes to address the allocation of risk in those circumstances. 203 N.J. at 308. It would not be against public policy to require indemnification of Mountain Creek by Lavin for claims of vicarious liability due to Lavin’s reckless conduct; however, Mountain Creek stipulated that it did not incur any costs in defending claims of vicarious liability.

Affirmed.

———

Notes:

^[1] Mountain Creek did not contribute towards plaintiff’s settlement with Lavin.

^[2] To comport with our style conventions, we altered the capitalization of Mountain Creek’s Points A and B but omitted the alterations for readability.

———.

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New Jersey Ski Statute, (N.J.S.A.)

Posted: January 22, 2024 | Author: Recreation Law | Filed under: New Jersey, Skiing / Snow Boarding | Tags: New Jersey Ski Statute, NJSA, skiing | Leave a comment

New Jersey Ski Statute, (N.J.S.A.)

5:13-1. Legislative findings; purpose of law 1

5:13-2. Definitions 2

5:13-3. Responsibility of operator 2

5:13-4. Duties of skiers 3

5:13-5. Assumption of risk of skier 4

5:13-6. Application of law on comparative negligence 4

5:13-7. Report of injury; precondition to suit; limitation on time 4

5:13-8. Limitation of action 5

5:13-9. Minors; tolling of limitations 5

5:13-10. Provisions of act cumulative with defenses under Tort Claims Act 5

5:13-11. Severability 5

5:13-12. Helmet required for downhill skiers, snowboarders; violations, penalties 5

34:4A-1. Short title 6

34:4A-2. Public policy 6

34:4A-3. Definitions 6

34:4A-4. Rules, regulations and codes; publication; furnishing to registered operators 7

34:4A-5. Passenger tramway; registration; application; issuance; inspections; supplemental application; expiration; display 7

34:4A-6. Construction of new or alteration of passenger tramway; submission of plans and specifications 8

34:4A-7. Inspection by commissioner or certification of compliance by qualified inspector 8

34:4A-8. Violation of rules, regulations or code; report; complaint by any person; forwarding to operator; investigation; order; service; emergency order to stop operation 9

34:4A-9. Operator aggrieved by order; application for review; hearing; decision; appeal 9

34:4A-10. Illegal operation; penalty 10

34:4A-11. Failure of operator to comply with order; order for cessation of operation 10

34:4A-12. Injunctions to compel compliance 10

34:4A-13. Discharge or discrimination against employee due to actions to help enforce this act; penalties 10

34:4A-14. Violations; penalty 11

34:4A-15. Fees 11

5:13-1. Legislative findings; purpose of law

a. The Legislature finds that the sport of skiing is practiced by a large number of citizens of this State and also attracts to this State large numbers of nonresidents, significantly contributing to the economy of this State and, therefore, the allocation of the risks and costs of skiing are an important matter of public policy.

b. The purpose of this law is to make explicit a policy of this State which clearly defines the responsibility of ski area operators and skiers, recognizing that the sport of skiing and other ski area activities involve risks which must be borne by those who engage in such activities and which are essentially impractical or impossible for the ski area operator to eliminate. It is, therefore, the purpose of this act to state those risks which the skier voluntarily assumes for which there can be no recovery.

History:

L.1979, c.29, s.1, eff. 2/22/1979.

5:13-1 Legislative findings; purpose of law (New Jersey Statutes (2023 Edition))

5:13-2. Definitions

As used in this act

a. “Operator” means a person or entity who owns, manages, controls or directs the operation of an area where individuals come to ski, whether alpine, touring or otherwise, or operate skimobiles, toboggans, sleds or similar vehicles and pay money or tender other valuable consideration for the privilege of participating in said activities, and includes an agency of this State, political subdivisions thereof or instrumentality of said entities, or any individual or entity acting on behalf of an operator for all or part of such activities.

b. “Ski area” includes all of the real and personal property, under the control of the operator or on the premises of the operator which are being occupied, by license, lease, fee simple or otherwise, including but not limited to all passenger tramways, designated trails, slopes and other areas utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.

c. “Skier” means a person utilizing the ski area for recreational purposes such as skiing or operating toboggans, sleds or similar vehicles, and including anyone accompanying the person. Skier also includes any person in such ski area who is an invitee, whether or not said person pays consideration.

d. “Slopes and trails” means those areas designated as such by the operator.

History:

L.1979, c.29, s.2, eff. 2/22/1979.

5:13-2 Definitions (New Jersey Statutes (2023 Edition))

5:13-3. Responsibility of operator

a. It shall be the responsibility of the operator to the extent practicable, to:

(1) Establish and post a system generally identifying slopes and trails and designating relative degrees of difficulty thereof; and to make generally available to skiers information in the form of trail maps or trail reports.

(2) Make generally available either by oral or written report or otherwise, information concerning the daily conditions of the slopes and trails.

(3) Remove as soon as practicable obvious, man-made hazards.

b. No operator shall be responsible to any skier or other person because of its failure to comply with any provisions of subsection 3.a. if such failure was caused by:

(1) Abrupt changes in weather conditions;

(2) Hazards normally associated with the varying conditions of snow or undercover, including skier use; or

(3) Subject to the provisions of subsection 3.a.(3), the location of man-made facilities and equipment necessary for the ordinary operation of the ski area, such as transportation or grooming vehicles, which are marked by flashing lights or other suitable sight or sound devices towers, fencing of any type, racing poles, or any other object or piece of equipment utilized in connection with the maintenance of trails, buildings or other facilities used in connection with skiing.

c. Grooming shall be at the discretion of the operator.

d. No operator shall be liable to any skier unless said operator has knowledge of the failure to comply with the duty imposed by this section or unless said operator should have reasonably known of such condition and having such knowledge has had a reasonable time in which to correct any condition or comply with any duty set forth in this section.

e. Nothing contained in this act shall be construed as limiting or otherwise affecting the liability and responsibilities of a ski area operator under the “Ski Lift Safety Act” (P.L. 1975, c. 226, C. 34:4A-1 et seq.), or shall prevent the maintenance of an action against a ski area operator for negligent construction, maintenance or operation of a passenger tramway.

History:

L.1979, c.29, s.3, eff. 2/22/1979.

5:13-3 Responsibility of operator (New Jersey Statutes (2023 Edition))

5:13-4. Duties of skiers

a. Skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.

b. No skier shall:

(1) Board or dismount from a ski lift except at a designated area;

(2) Throw or expel any object from any tramway, ski lift, commercial skimobile, or other similar device while riding on the device;

(3) Act in any manner contrary to posted rules while riding on a rope tow, wire rope tow, j-bar, t-bar, ski lift, or similar device that may interfere with the proper or safe operation of the lift or tow;

(4) Knowingly engage in any act or activity by his skiing or frolicking which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.

(5) Knowingly engage in any type of conduct which may injure any person, or place any object in the uphill ski track which may cause another to fall, while traveling uphill on a ski lift;

(6) Cross the uphill track of a j-bar, t-bar, rope tow, wire rope tow, or other similar device except at designated locations.

c. Every skier shall maintain control of his speed and course at all times, and shall stay clear of any snow grooming equipment, any vehicle, any lift tower, and any other equipment on the mountain.

d. A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise traverse any trail, slope or other area which is beyond the skier’s ability to negotiate.

e. No skier shall board a rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device unless he has sufficient knowledge and ability to use the lift. If the skier does not have such knowledge or ability, he shall ask for and receive, or follow any posted, written or oral instructions prior to using such device.

f. No person shall ski on other than designated trails or slopes.

g. No person on foot or on any type of sliding device shall knowingly operate said device so as to cause injury to himself or others, whether such injury results from a collision with another person or with an object.

h. A person embarking on a lift or tow without authority, or failing to pay appropriate consideration for its use shall be considered to be a trespasser.

History:

L.1979, c.29, s.4, eff. 2/22/1979.

5:13-4 Duties of skiers (New Jersey Statutes (2023 Edition))

5:13-5. Assumption of risk of skier

A skier is deemed to have knowledge of and to assume the inherent risks of skiing, operating toboggans, sleds or similar vehicles created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions. Each skier is assumed to know the range of his ability, and it shall be the duty of each skier to conduct himself within the limits of such ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting to a manner which may cause or contribute to the injury of himself or others.

History:

L.1979, c.29, s.5, eff. 2/22/1979.

5:13-5 Assumption of risk of skier (New Jersey Statutes (2023 Edition))

5:13-6. Application of law on comparative negligence

The assumption of risk set forth in section 5 shall be a complete bar of suit and shall serve as a complete defense to a suit against an operator by a skier for injuries resulting from the assumed risks, notwithstanding the provisions of P.L. 1973, c. 146 (C. 2A:15-5.1 et seq.), relating to comparative negligence, unless an operator has violated his duties or responsibilities under this act, in which case the provisions of P.L. 1973, c. 146 shall apply. Failure to adhere to the duties set out in sections 4 and 5 shall bar suit against an operator to compensate for injuries resulting from skiing activities, where such failure is found to be a contributory factor in the resulting injury, unless the operator has violated his duties or responsibilities under the act, in which case the provisions of P.L. 1973, c. 146 shall apply.

History:

L.1979, c.29, s.6, eff. 2/22/1979.

5:13-6 Application of law on comparative negligence (New Jersey Statutes (2023 Edition))

5:13-7. Report of injury; precondition to suit; limitation on time

As a precondition to bringing any suit in connection with a skiing injury against an operator, a skier shall report in writing to the ski area operator all the details of any accident as soon as possible, but in no event longer than 90 days from the time of the incident giving rise to the suit.

The report shall include at least the following: name, address, brief description of incident, location, alleged cause, others involved and witnesses, if any. If it is not practicable to give the report because of severe physical disability resulting from a skiing accident or incident, the report shall be given as soon as practicable. This section is not applicable with respect to a ski area unless the operator conspicuously posts notice to skiers of the requirements of the section.

A skier who fails to give the report within 90 days from the time of the accident or incident may be permitted to give the report at any time within 1 year after the accident or incident, in the discretion of a judge of the superior court, if the ski area operator is not substantially prejudiced thereby. Application to the court for permission to give a late report shall be made upon motion based upon affidavits showing sufficient reasons for the skier’s failure to give the report within 90 days from the time of the accident or incident.

History:

L.1979, c.29, s.7, eff. 2/22/1979.

5:13-7 Report of injury; precondition to suit; limitation on time (New Jersey Statutes (2023 Edition))

5:13-8. Limitation of action

Sections 2, 3, 4 and 5, and any other law notwithstanding, an action for injury or death against a ski area operator, ski area or its employees or owner, whether based upon tort or breach of contract or otherwise arising out of skiing, operating toboggans, sleds or similar vehicles shall be commenced no later than 2 years after the occurrence of the incident or earliest of incidents giving rise to the cause of action.

History:

L.1979, c.29, s.8, eff. 2/22/1979.

5:13-8 Limitation of action (New Jersey Statutes (2023 Edition))

5:13-9. Minors; tolling of limitations

If a skiing accident or incident, or an action based upon a skiing accident or incident, involves a minor, the time limits set forth in sections 7 and 8 shall not begin to run against the minor until he reaches the age of majority.

History:

L.1979, c.29, s.9, eff. 2/22/1979.

5:13-9 Minors; tolling of limitations (New Jersey Statutes (2023 Edition))

5:13-10. Provisions of act cumulative with defenses under Tort Claims Act

The provisions of this act are cumulative with the defenses available to a public entity or public employee under the New Jersey Tort Claims Act (P.L. 1972, c. 45, C. 59:1-1 et seq.).

History:

L.1979, c.29, s.10, eff. 2/22/1979.

5:13-10 Provisions of act cumulative with defenses under Tort Claims Act (New Jersey Statutes (2023 Edition))

5:13-11. Severability

The provisions of this act shall be deemed to be severable, and if any phrase, clause, sentence or provision of this act is declared to be unconstitutional or the applicability thereof to any person is held invalid, the remainder of this act shall not thereby be deemed to be unconstitutional or invalid.

History:

L.1979, c.29, s.11, eff. 2/22/1979.

5:13-11 Severability (New Jersey Statutes (2023 Edition)) 5:13-12.

5:13-12. Helmet required for downhill skiers, snowboarders; violations, penalties

a. A person under 18 years of age engaged in the activity of downhill skiing or operation of snowboards, including the use of ski tows, lifts and tramways, shall wear a securely fitted protective helmet. As used in this act, “helmet” means a type of molded headgear equipped with a neck or chin strap specifically designed by the manufacturer to be used while engaged in the activity of recreational downhill skiing.

b. The parent, legal guardian, or adult acting in a supervising position of a person under 18 years of age shall ensure that the person wears a protective helmet as required by subsection a. of this section. A parent, legal guardian or adult acting in a supervising position who does not comply with this requirement shall be fined a maximum of $25 for the person’s first offense and a maximum of $100 for a subsequent offense. Local law enforcement agencies shall have exclusive authority to enforce this section and the penalty imposed shall be collected and enforced by summary proceedings under the “Penalty Enforcement Law of 1999,” P.L. 1999, c. 274(C.2A:58-10 et seq.).

c. Nothing in this act shall be construed to extend liability to the ski area operator.

History:

Added by L. 2011, c. 41,s. 1, eff. 11/1/2011.

5:13-12 Helmet required for downhill skiers, snowboarders; violations, penalties (New Jersey Statutes (2023 Edition))

New Jersey Ski Lift Safety Act

34:4A-1. Short title

This act shall be known and may be cited as the ‘Ski Lift Safety Act.’

History:

L.1975, c.226, s.1, eff. 10/15/1975.” 34:4A-1 Short title (New Jersey Statutes (2023 Edition))

34:4A-2. Public policy

It shall be the policy of the State of New Jersey to protect its citizens and visitors from unnecessary mechanical hazards in the operation of ski tows, lifts and tramways, to ensure that proper design and construction are used, that accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of ski tows, ski lifts and tramways. The primary responsibility for design, construction, maintenance and inspection rests with the operators of such passenger tramway devices. The State, through the Department of Labor and Industry, as hereinafter provided, shall register all ski lift devices, establish reasonable standards of design and operational practices and make such independent inspections as may be necessary in carrying out this policy.

History:

L.1975, c.226, s.2, eff. 10/15/1975.

34:4A-2 Public policy (New Jersey Statutes (2023 Edition))

34:4A-3. Definitions

As used in this act, except where otherwise clearly required by the context,

a. “Passenger tramway” means a device used to transport passengers uphill, on skis or in cars on tracks or suspended in the air, by the use of steel cables, chains or belts or by ropes, and usually supported by trestles or towers with one or more spans, and includes

(1) “aerial passenger tramway,” a device used to transport passengers in two open or enclosed cars attached to and suspended from a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices;

(2) “multicar aerial passenger tramway,” a device used to transport passengers in several open or enclosed cars attached to and suspended from a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices;

(3) “skimobile,” a device in which a passenger car running on steel or wooden tracks is attached to and pulled by a steel cable, or similar devices;

(4) “chairlift,” a type of transportation on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain or link belt supported by trestles or towers with one or more spans, or similar devices;

(5) “J-bar,” “T-bar,” “poma lift” or “platter pull,” so called and similar types of devices, being means of transportation which pull skiers riding on skis by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans;

(6) “rope tow,” a type of transportation which pulls the skiers riding on skis as the skier grasps the rope manually, or similar devices;

b. “Operator” means a person who owns, manages or directs the operation of a passenger tramway, and includes the State or any political subdivision or instrumentality thereof;

c. “Commissioner” means the Commissioner of the Department of Labor and Industry, or any officer or employee of the department assigned by him to carry out any of the functions, duties and powers conferred or imposed upon him by this act.

History:

L.1975, c.226, s.3, eff. 10/15/1975.

34:4A-3 Definitions (New Jersey Statutes (2023 Edition))

34:4A-4. Rules, regulations and codes; publication; furnishing to registered operators

The commissioner may adopt and from time to time supplement, alter or repeal reasonable rules, regulations and codes relating to public safety in the construction, operation and maintenance of passenger tramways. Such rules, regulations and codes shall conform as nearly as practicable to established standards, if any, and shall not be discriminatory in their application to operators of passenger tramways. The procedures regarding such adoption, supplement, alteration or repeal shall conform to the applicable provisions of the “Administrative Procedure Act” (P.L. 1968, c. 410; C. 52:14B-1 et seq.). The commissioner shall cause the text of such rules, regulations and codes and of any changes therein resulting from supplement, alteration or repeal from time to time to be published in pamphlet form and a copy thereof furnished without charge to each registered operator. Rules, regulations or codes adopted by the commissioner shall in no way reduce or diminish the standard of care imposed upon passenger tramway operators under existing law.

History:

L.1975, c.226, s.4, eff. 10/15/1975.

34:4A-4 Rules, regulations and codes; publication; furnishing to registered operators (New Jersey Statutes (2023 Edition))

34:4A-5. Passenger tramway; registration; application; issuance; inspections; supplemental application; expiration; display

a. A passenger tramway shall not be operated in this State unless it has been registered by the commissioner, in the manner provided in this section.

b. On or before October 1 in 1974 and each year thereafter, every operator of a passenger tramway shall apply to the commissioner, on forms supplied by him, for registration of the passenger tramway or tramways which such operator owns or manages or the operation of which he directs. The application shall contain such information as the commissioner may reasonably require in order for him to determine whether the passenger tramways sought to be registered comply with the intent of this act and the rules, regulations and codes adopted pursuant to this act.

c. The commissioner shall issue to the applying operator without delay registration certificates for each passenger tramway for which such registration is sought when he is satisfied.

(1) that the facts in the application are sufficient to enable him to fulfill his duties under this act; and

(2) that each such passenger tramway sought to be registered complies with the rules and regulations adopted pursuant to this act.

d. In order to satisfy himself that the conditions described in paragraphs (1) and (2) of subsection c. of this section have been fulfilled, the commissioner may cause to be made such inspections described in section 7 of this act as he may reasonably deem necessary.

e. When an operator installs a passenger tramway subsequent to October 1 of any year, such operator shall file a supplemental application for registration of such passenger tramway. Upon receipt of such supplemental application the commissioner shall proceed immediately to initiate proceedings leading to the registration or rejection of registration of such passenger tramway pursuant to the provisions of this act.

f. Each registration shall expire on September 30 next following the day of issue.

g. Each operator shall cause the registration certificate for each passenger tramway thus registered to be displayed prominently at the place where passengers are loaded thereon.

History:

L.1975, c.226, s.5, eff. 10/15/1975.

34:4A-5 Passenger tramway; registration; application; issuance; inspections; supplemental application; expiration; display (New Jersey Statutes (2023 Edition))

34:4A-6. Construction of new or alteration of passenger tramway; submission of plans and specifications

Before constructing a new or altering an existing passenger tramway the operator or prospective operator shall submit plans and specifications to the commissioner. The commissioner may make recommendations relative to the safety of the layout and equipment, but such recommendations shall not relieve the operator or prospective operator of his primary responsibility as set forth in section 2 of this act.

History:

L.1975, c.226, s.6, eff. 10/15/1975.

34:4A-6 Construction of new or alteration of passenger tramway; submission of plans and specifications (New Jersey Statutes (2023 Edition))

34:4A-7. Inspection by commissioner or certification of compliance by qualified inspector

The commissioner may cause to be made such inspection of the construction, operation and maintenance of passenger tramways as he may reasonably require for the purpose of assuring compliance with the codes, rules and regulations adopted pursuant to this act. Certification of compliance by a qualified inspector who has been approved by the commissioner may be accepted instead of other inspection. In any legal proceedings, a certificate of compliance issued pursuant to this section shall be competent evidence only for the purpose of establishing the fact of issuance of said certificate, and for no other purpose.

History:

L.1975, c.226, s.7, eff. 10/15/1975.

34:4A-7 Inspection by commissioner or certification of compliance by qualified inspector (New Jersey Statutes (2023 Edition))

34:4A-8. Violation of rules, regulations or code; report; complaint by any person; forwarding to operator; investigation; order; service; emergency order to stop operation

a. If as a result of an inspection it is found that there exists any violation of the rules, regulations or codes, adopted under this act, or that there exists a condition in passenger tramway construction, operation or maintenance endangering the safety of the public, an immediate report shall be made to the commissioner for appropriate investigation and order.

b. Any person may make written complaint to the commissioner setting forth any thing or act claimed to be done or omitted to be done by any registered operator which is alleged to be in violation of any rule, regulation or code adopted under this act, or setting forth any condition in passenger tramway construction, operation or maintenance which is alleged to endanger the safety of the public. Thereupon the commissioner shall cause a copy of said complaint to be forwarded to the registered operator complained of, which may be accompanied by an order requiring that the matters complained of be answered in writing within a time to be specified by the commissioner. The commissioner may investigate the matter complained of if it shall appear that there are reasonable grounds therefor.

c. If after investigation the commissioner finds that such a violation of rules, regulations or codes exists, or that there is a condition in passenger tramway construction, operation or maintenance endangering the safety of the public, he shall forthwith issue a written order setting forth his findings, the corrective action to be taken, and fixing a reasonable time for compliance therewith. Such order shall be served upon the operator involved by registered mail, and shall become final, unless the operator shall apply to the commissioner for a hearing in the manner provided in this section.

d. When facts are presented to the commissioner tending to show that an unreasonable hazard exists in the continued operation of a tramway, he may, after such verification of the facts as is practical under the circumstances and consistent with the public safety, issue an emergency order requiring the operator of said tramway forthwith to cease using the same for the transportation of passengers. Such emergency order shall be in writing and notice thereof may be served by any person upon the operator or his agent immediately in control of said tramway by a true and attested copy of such order, the return of such service to be shown by an affidavit on the back thereof. Such emergency order shall be effective for a period not to exceed 48 hours from the time of service. Immediately after the issuance of an emergency order hereunder, the commissioner shall conduct an investigation into the facts of the case as contemplated in subsection c. of this section and shall take such action under subsection c. as may be appropriate.

History:

L.1975, c.226, s.8, eff. 10/15/1975.

34:4A-8 Violation of rules, regulations or code; report; complaint by any person; forwarding to operator; investigation; order; service; emergency order to stop operation (New Jersey Statutes (2023 Edition))

34:4A-9. Operator aggrieved by order; application for review; hearing; decision; appeal

a. Any operator who is aggrieved by an order issued pursuant to subsection c. of section 8 of this act may, within 10 days after the service of such order, apply to the commissioner for a review of such order. It shall be the duty of the commissioner to provide such hearing at the earliest convenient day. At such hearing the operator shall have the right to be heard personally or by counsel, to cross-examine witnesses appearing against him and to produce evidence in his own behalf. After such hearing the commissioner shall report his findings in writing and make such order as the facts may require. Such hearing and decision shall conform to the applicable provisions of the “Administrative Procedure Act” (P.L. 1968, c. 410; C. 52:14B-1 et seq.).

b. Any operator aggrieved by a decision of the commissioner after such hearing may, within 45 days after the effective date thereof, appeal therefrom to the Superior Court. No such appeal shall suspend the operation of an order made by the commissioner; but the court may suspend such order pending determination of the appeal whenever in the opinion of the court justice may require such suspension. The Superior Court shall hear the appeal at the earliest convenient day and shall make such decree as justice may require.

History:

L.1975, c.226, s.9, eff. 10/15/1975.

34:4A-9 Operator aggrieved by order; application for review; hearing; decision; appeal (New Jersey Statutes (2023 Edition))

34:4A-10. Illegal operation; penalty

Any operator who operates a passenger tramway which has not been registered by the commissioner as provided in this act, or after its registration has been suspended or its operation forbidden by a lawful order of the commissioner under this act, is a disorderly person and shall be subject to a fine of not more than $50.00 or imprisonment for not more than 10 days, or both; and each day during which such illegal operation of a passenger tramway continues shall constitute a separate offense.

History:

L.1975, c.226, s.10, eff. 10/15/1975.

34:4A-10 Illegal operation; penalty (New Jersey Statutes (2023 Edition))

34:4A-11. Failure of operator to comply with order; order for cessation of operation

If any operator fails to comply with a lawful order issued by the commissioner pursuant to the provisions of this act, the commissioner may order the operator to cease operations for such time as the commissioner considers necessary for the protection of the safety of the public.

History:

L.1975, c.226, s.11, eff. 10/15/1975.

34:4A-11 Failure of operator to comply with order; order for cessation of operation (New Jersey Statutes (2023 Edition))

34:4A-12. Injunctions to compel compliance

The commissioner shall have the power to bring injunctive proceedings in any court of competent jurisdiction to compel compliance with any lawful order made by him pursuant to the provisions of this act.

History:

L.1975, c.226, s.12, eff. 10/15/1975.” 34:4A-12 Injunctions to compel compliance (New Jersey Statutes (2023 Edition))

34:4A-13. Discharge or discrimination against employee due to actions to help enforce this act; penalties

Any operator who discharges or in any other manner discriminates against any employee because such employee has made any complaint to the commissioner regarding a violation of this act or any rule or regulation promulgated hereunder, or because such employee has caused to be instituted or is about to cause to be instituted any proceeding under or related to this act or any rule or regulation promulgated hereunder, or because such employee has testified or is about to testify in any such proceeding, shall be guilty of a misdemeanor and shall, upon conviction therefor, be fined not less than $50.00 nor more than $200.00. Such operator shall be required, as a condition of such judgment of conviction, to offer reinstatement in employment to any such discharged employee and to correct any such discriminatory action, and also to pay to any such employee, in full, all wages lost as a result of such discharge or discriminatory action.

History:

L.1975, c.226, s.13, eff. 10/15/1975.

34:4A-13 Discharge or discrimination against employee due to actions to help enforce this act; penalties (New Jersey Statutes (2023 Edition))

34:4A-14. Violations; penalty

In addition to any other sanctions herein or otherwise provided by law, the commissioner, upon notice and hearing, may impose a penalty not exceeding $500.00 for any violation of this act or of any rule or regulation promulgated hereunder. Unsatisfied penalties shall be recovered by and in the name of the commissioner in a civil action by a summary proceeding under the Penalty Enforcement Law (N.J.S. 2A:58-1). Where any violation of this act or of any rule or regulation promulgated hereunder is of a continuing nature, each day during which such violation continues after the date fixed by the commissioner in any order or notice for the correction or termination of such violation, shall constitute an additional, separate, and distinct offense.

History:

L.1975, c.226, s.14, eff. 10/15/1975.

34:4A-14 Violations; penalty (New Jersey Statutes (2023 Edition))

34:4A-15. Fees

The commissioner shall charge operators a reasonable fee for conducting inspections, processing applications, and meeting all other responsibilities under this act.

History:

L.1975, c.226, s.15, eff. 10/15/1975.” 34:4A-15 Fees (New Jersey Statutes (2023 Edition))

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Idaho Supreme Court blows the Idaho Skier Safety Act up.

Posted: January 15, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Idaho, Ski Area, Skiing / Snow Boarding | Tags: Idaho Responsibilities and Liabilities of Skiers and Ski Area Operators Act, Idaho Ski Area Liability Act, Idaho Supreme Court, Responsibilities and Liabilities of Skiers and Ski Area Operators Act, Ski Area Liability Act, Sun Valley, Sun Valley ski resort | 3 Comments

Ski Area Liability Act now becomes a road map for plaintiffs to sue ski areas

Milus v. Sun Valley Co., 49693-2022 (Idaho Dec 19, 2023)

State: Idaho; Supreme Court of Idaho

Plaintiff: Laura Milus, in her individual capacity and as Guardian of the Minor Child Plaintiff, D.L.J., Plaintiff-Appellant

Defendant: Sun Valley Company, a Wyoming corporation

Plaintiff Claims: 1. Whether the district court erred in holding that the yellow padding on Snow Gun 16 constituted a warning implement.

2. Whether the district court erred in holding that Sun Valley had no duty to provide a conspicuous notice at the top of Lower River Run because no snow was being actively discharged from the snowmaking equipment.

3. Whether Mr. Milus assumed the risk of his ski accident under Idaho Code section 6-1106.

4. Whether Sun Valley is entitled to attorney fees on appeal.

Defendant Defenses: Responsibilities and Liabilities of Skiers and Ski Area Operators Act, (“Ski Area Liability Act“). See I.C. §§ 6-1101 through 6-1109

Holding: for the Plaintiff

Year: 2023

Summary

The Idaho Supreme Court just turned the Ski Area Liability Act into a plaintiff checklist for winning money from Idaho Resorts.

Facts

On November 30, 2019, Stewart Milus (“Mr. Milus”) was skiing at the Sun Valley Ski Resort when he collided with snowmaking equipment identified as Snow Gun 16, located in the middle of the Lower River Run on Bald Mountain. Mr. Milus died as a result of the collision. Snow Gun 16 was not actively discharging snow at the time of the collision.

Laura Milus (“Ms. Milus”) is the widow of Mr. Milus and D.L.J. is the stepson of Mr. Milus. Ms. Milus filed a wrongful death action on behalf of herself and D.L.J. (collectively referred to as “Milus”) against Sun Valley Company (“Sun Valley”), the operator of the Sun Valley Ski Resort. Milus alleged that Sun Valley breached its duties under Idaho Code section 6-1103(2) and (6). Idaho Code section 6-1103(2) imposes a duty on ski operators to mark with a “visible sign” or “warning implement” the location of snowmaking equipment on ski slopes and trails. Idaho Code section 6-1103(6) imposes a duty to place a conspicuous notice at or near the top of a trail or slope that is open to the public when snowgrooming or snowmaking operations are being undertaken.

Sun Valley filed a motion for summary judgment, arguing that it had satisfied its duty to warn of the snowmaking equipment under Idaho Code section 6-1103(2) because Snow Gun 16 was covered in yellow padding, which constituted a “warning implement.” Additionally, Sun Valley argued that it had no duty under Idaho Code section 6-1103(6) to place a notice at the top of the Lower River Run because no snowmaking was being actively undertaken on the day of the collision. Sun Valley further argued that, even if it did have such a duty, it complied with that duty by placing a sign that read “CAUTION SNOWMAKING IN PROGRESS” near what Sun Valley contends is the unloading area of the Lower River Run ski lift. Lastly, Sun Valley argued that, under Idaho Code section 6-1106, Mr. Milus had assumed the risk of injury while skiing.

The district court granted Sun Valley’s motion for summary judgment in part, holding that the yellow padding on Snow Gun 16 satisfied the duty under section 6-1103(2) to mark snowmaking equipment with a “warning implement.” The district court interpreted section 61103(6) as creating a duty only when snowmaking equipment is actively discharging snow and allowed discovery to take place regarding whether snow was being made on the day of the accident. Following discovery, the district court granted Sun Valley’s renewed motion for summary judgment in full regarding section 6-1103(6), holding that Sun Valley had no duty to place a notice at or near the top of the ski run because no active snowmaking was being undertaken when the accident occurred. The district court held that Milus was unable to establish that Sun Valley breached a duty owed to Mr. Milus and therefore Milus’s claim failed. Having resolved the motion on other grounds, the district court did not rule on Sun Valley’s assumption of risk defense.

Milus timely appealed the final judgment.

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

The Idaho Supreme Court took a very different approach to examining the Ski Area Liability Act. They said the statute creates a list of things a ski resort must do and if they fail to do them they are liable. They also stated that although the Ski Area Liability Act says a skier assumes the risk of skiing, that must mean a jury must examine the risks to see if the risk was assumed. Finally, the court looked at a prior decision and because it was not unanimous it was not valid anymore.

Let’s start with the change in how a prior decision is held by later courts.

Because the majority opinion in Northcutt is only a plurality holding on this issue, it is not binding precedent on this Court.

Stare Decisis —a Latin term that means “let the decision stand” or “to stand by things decided”—is a foundational concept in the American legal system. To put it simply, stare decisis holds that courts and judges should honor “precedent”—or the decisions, rulings, and opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable—and less seemingly random.

Stare Decisis is accepted and upheld by all courts across the United States, except for the Idaho Supreme Court. Nowhere have I read a decision that states that since the prior decision was less than unanimous it did not count. I would suspect that 90% of the decisions of any court are unanimous.

Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means “to stand by things decided” in Latin.

When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court’s decision. The previous deciding-court must have binding authority over the court; otherwise, the previous decision is merely persuasive authority. In Kimble v. Marvel Enterprises, the U.S. Supreme Court described the rationale behind stare decisis as “promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.”

The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. For example, if the Seventh Circuit Court of Appeals adhered to the ruling of a previous Seventh Circuit Court of Appeals case, that would be horizontal stare decisis. A court engages in vertical stare decisis when it applies precedent from a higher court. For example, if the Seventh Circuit Court of Appeals adhered to a previous ruling from the U.S. Supreme Court, that would be vertical stare decisis. Or, additionally, if the Federal District Court for the Southern District of New York adhered to a previous ruling by the Second Circuit, that would be vertical stare decisis.

Although courts seldom overrule precedent, the U.S. Supreme Court in Seminole Tribe of Florida v. Florida explained that stare decisis is not an “inexorable command.” When prior decisions are “unworkable or are badly reasoned,” then the Supreme Court may not follow precedent, and this is “particularly true in constitutional cases.” For example, in deciding Brown v. Board of Education, the U.S. Supreme Court explicitly renounced Plessy v. Ferguson, thereby refusing to apply the doctrine of stare decisis.

This change by the Idaho Supreme Court is without precedence and will mean that there is no decision from a multi-panel court you can rely on unless that decision is unanimous. This will create havoc in the law in Idaho.

The next issue the court addressed is how sections of the Ski Area Liability Act are to be applied

See I.C. § 6-1103(10) (emphasis added). Rather, a close examination of the language demonstrates that the duties set forth in subsections (1) through (9) and the first clause in subsection (10) are the only duties imposed on operators in section 6-1103, and that ski operators owe no additional duty to eliminate, alter, control, or lessen the risks inherent in skiing. The last clause in subsection (10) simply explains that, to the extent a ski operator undertakes an additional duty (which they are not obligated to), there is no standard of care applicable to the additional duty.

Every other court has interpreted this statute to mean the ski area operator owes no duty to the skier. So, the Idaho Supreme Court interpreted the statute so that it creates a duty.

The plain language of section 6-1103(10) differentiates between the duties enumerated in subsections (1) through (9) and any additional duty to “eliminate, alter, control[,] or lessen such risks[.]” It only eliminates a standard of care for any additional duty not set forth in subsections (1) through (9), which the ski operator voluntarily undertakes. Therefore, we hold that ski area operators are held to a standard of care when acting to fulfill the duties enumerated in section 61103(1) through (9). [emphasize added]

So, what was a safe harbor for ski areas, is now a list of ways they can be sued and stated as such by the court.

The question now becomes what standard of care ski area operators are held to when acting to fulfill their enumerated duties under section 6-1103(1) through (9). “The second element of a negligence cause of action, that of breach of duty by the allegedly negligent party, requires measuring the party’s conduct against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. What circumstances and conditions existed is a factual question to be determined by the trier of fact.” superseded by statute on other grounds as recognized in Therefore, we hold that ski area operators are held to the standard of an “ordinarily prudent person acting under all the circumstances and conditions then existing,” id., when complying with the duties enumerated in subsections (1) through (9). [emphasize added]

From protection to the standard of care of an ordinarily prudent person.

Next, the court looked at the statute affecting snow-making equipment and the definition of snow-making warning: warning implement. I.C. § 6-1103(2). In this case, Sun Valley had placed yellow padding around the snow-making equipment. As defined by the statute the lower court held that yellow padding was a warning implement. The Supreme Court did not see it that way and held that whether or not yellow padding constituted a warning implement is a question for the jury.

We hold that the district court erred because the question of whether the yellow padding around Snow Gun 16 constitutes a warning implement is a question of fact for the jury.

Now based on a broad definition in the statute, warning implement, every case must go to trial so the jury can decide what is a warning implement. This means the cost of insurance for ski areas is going to skyrocket because there is no way to win without a trial. That means larger settlements.

The next two issues were whether Sun Valley placed a warning notice concerning the snow-making equipment where a skier could see it. The court first held that the statute required a warning whether snow-making was going or not.

Then the court looked at whether or not Sun Valley had placed a warning and found it had not. Sun Valley supplied affidavits, pictures, and statements showing that the warning was there. The plaintiff supplied an affidavit stating there was no sign. The court went with the plaintiff.

As screwy as the prior decisions of the court have been, this one is over the top.

Sun Valley argues that, under the plain language of Idaho Code section 6-1106, Mr. Milus expressly assumed the risk and legal responsibility of an injury that occurred from his participation in the sport of skiing at Sun Valley Ski Resort, including any injury caused by snowmaking equipment. In response, Milus argues that the issue is not appropriately before this Court because it was not sufficiently addressed by the district court. Because the district court determined that Sun Valley had no duty or had fulfilled its duties under section 6-1103(2) and (6), the district court did not rule on the applicability of Idaho Code section 6-1106.

The court took the assumption of the risk defense off the table and stated a skier, skiing in Idaho only assumes the risk IF the ski area has met all of its requirements under the act.

For the reasons discussed previously in this opinion, there is a genuine issue of material fact concerning whether the snowmaking equipment was plainly visible or plainly marked in accordance with section 6-1103(2). Because the defense is only available if the equipment was marked in accordance with section 6-1103(2), a jury will have to determine whether the snowmaking equipment met the requirements of that section before Sun Valley may avail itself of this defense. Therefore, Sun Valley is not entitled to summary judgment under section 6-1106.

Again, every ski injury lawsuit is not going to trial. Only the trier of fact, the jury in most cases can determine if a skier assumed the risk causing his injuries.

So Now What?

Either the Idaho legislature has to re-write the Ski Area Liability Act or Idaho ski areas are going to pay. Once moderately priced lift tickets in Idaho are going to climb to cover the increased cost of signage and insurance.

Look for signs, permanent signs, at the tops of all lists and runs stating that skiers might encounter snow-making on a run. Look for larger warning signs and notices around all snow-making equipment, wherever it may be located. Sitting in the maintenance yard I would still pad it now.

Even more interesting, there are five justices on the Idaho Supreme Court and only four justices agreed with this decision. Does that mean it is non-binding?

Chief Justice BEVAN, and Justices BRODY, STEGNER, and MOELLER CONCUR.

What a mess.

G-YQ06K3L262

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Milus v. Sun Valley Co., 49693-2022 (Idaho Dec 19, 2023)

Posted: January 15, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Idaho, Ski Area, Skiing / Snow Boarding | Tags: Idaho, Idaho Ski Safety Act, Idaho Supreme Court, Sun Valley, Sun Valley ski resort, Supreme Court | Leave a comment

LAURA MILUS, in her individual capacity and as Guardian of the Minor Child Plaintiff, D.L.J., Plaintiff-Appellant,
v.
SUN VALLEY COMPANY, a Wyoming corporation, Defendant-Respondent.

No. 49693-2022

Supreme Court of Idaho, Boise

December 19, 2023

Appeal from the District Court of the Fifth Judicial District of the State of Idaho, Blaine County. Ned C. Williamson, District Judge.

The decision of the district court is reversed.

Rossman Law Group, PLLC, Boise, for Appellant.

Mathew G. Gunn argued.

Lake City Law Group PLLC, Coeur d’Alene, for Respondent.

Katharine B. Brereton argued.

ZAHN, JUSTICE

This case concerns the interpretation of the Responsibilities and Liabilities of Skiers and Ski Area Operators Act. Appellant Laura Milus brought a wrongful death action on behalf of herself and her minor child against Respondent Sun Valley Company after her husband’s death following his collision with snowmaking equipment while skiing at Sun Valley Ski Resort.

Milus alleged that Sun Valley Company had breached a duty arising under Idaho Code section 6-1103(2) and (6). The district court granted Sun Valley’s summary judgment motion, holding that Sun Valley (1) fulfilled its duty under Idaho Code section 6-1103(2) to mark snowmaking equipment by surrounding the snowmaking equipment with yellow padding, and (2) did not have a duty under Idaho Code section 6-1103(6) to place a conspicuous notice at the top of the ski trail because the snowmaking equipment was not actively discharging snow. We reverse the district court’s grant of summary judgment and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Milus timely appealed the final judgment.

II. ISSUES ON APPEAL

1. Whether the district court erred in holding that the yellow padding on Snow Gun 16 constituted a warning implement.

3. Whether Mr. Milus assumed the risk of his ski accident under Idaho Code section 6-1106.

4. Whether Sun Valley is entitled to attorney fees on appeal.

III. STANDARD OF REVIEW

“The standard of review on appeal from an order granting summary judgment is the same standard that is used by the district court in ruling on the summary judgment motion.” Berglund v. Dix, 170 Idaho 378, 384, 511 P.3d 260, 266 (2022) (quoting Hoke v. Neyada, Inc., 161 Idaho 450, 453, 387 P.3d 118, 121 (2016)). The trial court “must grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a). “All disputed facts are to be construed liberally in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party.” Manning v. Micron Tech., Inc., 170 Idaho 8, 12, 506 P.3d 244, 248 (2022). “A mere scintilla of evidence or only slight doubt as to the facts is not sufficient to create a genuine issue of material fact for the purposes of summary judgment.” Finholt v. Cresto, 143 Idaho 894, 897, 155 P.3d 695, 698 (2007) (quoting Jenkins v. Boise Cascade Corp., 141 Idaho 233, 238, 108 P.3d 380, 385 (2005)). “If the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review.” Arambarri v. Armstrong, 152 Idaho 734, 738, 274 P.3d 1249, 1253 (2012).

IV. ANALYSIS

A. Ski area operators are held to an ordinarily prudent person standard of care when undertaking the duties enumerated in Idaho Code section 6-1103(1) through (9).

Before addressing the district court’s order dismissing Milus’s claim, we must first discuss the duties in tort and the corresponding standards of care encompassed by Milus’s claim. Milus’s negligence claim is premised on duties arising under the Responsibilities and Liabilities of Skiers and Ski Area Operators Act (“Ski Area Liability Act”). See I.C. §§ 6-1101 through 6-1109.

Idaho Code section 6-1103 is titled, “Duties of ski area operators with respect to ski areas,” and contains ten subsections. Subsections (1) through (9) each state a specific duty that a ski area operator has with respect to its operation of the ski area. Subsection (10) differs from the first nine because, after stating a duty, it then describes exceptions to that duty:

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

….

(10) Not to intentionally or negligently cause injury to any person; provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include, but are not limited to, those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.

I.C. § 6-1103(10).

This Court interpreted section 6-1103(10) in Northcutt v. Sun Valley Company, 117 Idaho 351, 787 P.2d 1159 (1990). We held that the Ski Area Liability Act limits the liability of ski operators to only the enumerated duties in section 6-1103(1) through (9) when acting to eliminate, alter, control or lessen the inherent risks of skiing. See id. at 354-55, 787 P.2d at 1162-63. Significantly, we also held that the Act eliminates any standard of care for a ski operator when undertaking any of the duties found in subsections (1) through (9). See id. (“We construe the last clause of this portion of [Idaho Code section] 6-1103(10) to eliminate any standard of care for a ski area operator in carrying out any of the duties described in [Idaho Code sections] 6-1103 and 6-1104.”). In other words, even though ski operators owe a duty to perform certain tasks, there is no standard of care applicable to how they perform those tasks.

Sun Valley argues that, under this Court’s holding in Northcutt, if a ski area operator takes any step to fulfill the duties enumerated under Idaho Code section 6-1103(1) through (9), any potential plaintiffs are barred from recovery. Milus argues that this Court’s interpretation in Northcutt makes it nearly impossible to hold a ski area operator liable, in contradiction with the legislature’s intent to “define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury ….” I.C. § 6-1101. We agree with Milus and hold that the ordinarily prudent person standard applies to the duties set forth in Idaho Code section 6-1103(1) through (9).

A careful reading of Northcutt reveals that the standard of care portion of the decision failed to draw a majority of votes and therefore is only a plurality holding. Justice Bakes’s special concurrence in Part II of the Northcutt opinion explains his disagreement with the plurality’s holding eliminating any standard of care for the duties enumerated in subsections (1) through (9):

Had appellant Northcutt’s injury been proximately caused by an inaccurate description of the relative degree of difficulty of the slope, or had the sign not been sufficiently “conspicuous” so that it could not reasonably have been observed, and as a result Northcutt descended a slope which exceeded his ability to negotiate, then in my view there would have been a violation of the duty provided in [section] 61103(3) for which liability would be imposed under [Idaho Code section] 6-1107, and which would not have been excused by [Idaho Code section] 6-1103(10).

117 Idaho at 358, 787 P.2d at 1166 (Bakes, J., specially concurring) (emphasis added). Because the majority opinion in Northcutt is only a plurality holding on this issue, it is not binding precedent on this Court.

A close reading of the separate clauses contained in section 6-1103(10) demonstrates that it does not eliminate any standard of care for the duties set forth in subsections (1) through (9):

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

….

(10) Not to intentionally or negligently cause injury to any person;

• provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code,

• the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include, but are not limited to, those described in section 6-1106, Idaho Code; and,

• that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.

See I.C. § 6-1103(10) (emphasis added). Rather, a close examination of the language demonstrates that the duties set forth in subsections (1) through (9) and the first clause in subsection (10) are the only duties imposed on operators in section 6-1103, and that ski operators owe no additional duty to eliminate, alter, control, or lessen the risks inherent in skiing. The last clause in subsection (10) simply explains that, to the extent a ski operator undertakes an additional duty (which they are not obligated to), there is no standard of care applicable to the additional duty.

The plain language of section 6-1103(10) differentiates between the duties enumerated in subsections (1) through (9) and any additional duty to “eliminate, alter, control[,] or lessen such risks[.]” It only eliminates a standard of care for any additional duty not set forth in subsections (1) through (9), which the ski operator voluntarily undertakes. Therefore, we hold that ski area operators are held to a standard of care when acting to fulfill the duties enumerated in section 61103(1) through (9).

The question now becomes what standard of care ski area operators are held to when acting to fulfill their enumerated duties under section 6-1103(1) through (9). “The second element of a negligence cause of action, that of breach of duty by the allegedly negligent party, requires measuring the party’s conduct against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. What circumstances and conditions existed is a factual question to be determined by the trier of fact.” Brooks v. Logan, 127 Idaho 484, 490-91, 903 P.2d 73, 79-80 (1995) (citations omitted), superseded by statute on other grounds as recognized in Stoddart v. Pocatello Sch. Dist. #25, 149 Idaho 679, 239 P.3d 784 (2010). Therefore, we hold that ski area operators are held to the standard of an “ordinarily prudent person acting under all the circumstances and conditions then existing,” id., when complying with the duties enumerated in subsections (1) through (9).

B. Whether the yellow padding surrounding Snow Gun 16 constitutes a “warning implement” under Idaho Code section 6-1103(2) is a question of fact for the jury.

Having determined the applicable standard of care, we turn to the merits of Milus’s appeal. Milus filed a wrongful death action alleging Sun Valley breached its duty arising under Idaho Code section 6-1103(2). That section requires that ski area operators mark snowmaking equipment located on ski slopes and trails with a visible sign or warning implement. I.C. § 6-1103(2).

Sun Valley concedes that it did not mark Snow Gun 16 with a visible sign. Sun Valley argues that the yellow padding that surrounded Snow Gun 16 constitutes a warning implement under Idaho Code section 6-1103(2) Milus argued that whether the yellow padding constituted a warning implement was a question for the jury. The district court held that interpreting the phrase “warning implement” and whether it included the yellow padding was a question of statutory interpretation for the court and concluded that the yellow padding around Snow Gun 16 met the statutory requirement. We hold that the district court erred because the question of whether the yellow padding around Snow Gun 16 constitutes a warning implement is a question of fact for the jury.

The elements of a negligence action are “(1) a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual loss or damage.” Black Canyon Racquetball Club, Inc. v. Idaho First Nat’l Bank, N.A., 119 Idaho 171, 175-76, 804 P.2d 900, 904-05 (1991). The district court treated the question of whether the yellow padding constitutes a warning implement as an issue of duty. “The existence of a duty is a question of law for this Court.” Harrigfeld v. Hancock, 140 Idaho 134, 138, 90 P.3d 884, 888 (2004); see Udy v. Custer County, 136 Idaho 386, 389, 34 P.3d 1069, 1072 (2001).

However, whether the yellow padding effectively constitutes a “warning implement” is not an issue of duty, but rather one of breach. By enacting section 6-1103(2), the legislature imposed on Sun Valley a duty “[t]o mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations ….” In light of our holding that ski area operators are held to an “ordinarily prudent person” standard of care when performing the duties enumerated in subsections (1) through (9), it is a question of fact for the jury whether the yellow padding met the ordinarily prudent person standard of care to mark the gun with a visible sign or other warning implement. In this instance, breach is a question of fact for the jury. See Stephens v. Stearns, 106 Idaho 249, 256, 678 P.2d 41, 48 (1984) (holding that “it is a jury question as to whether [a] duty was breached”); Freeman v. Juker, 119 Idaho 555, 557, 808 P.2d 1300, 1302 (1991) (reversing the district court’s grant of summary judgment because whether the highway district had breached its duty by not maintaining the runaway escape ramp was a disputed question of fact); Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 530, 887 P.2d 1034, 1037 (1994) (concluding that summary judgment should have been denied solely because triable disputed factual issues existed whether a duty was breached).

“[I]f the evidence reveals no disputed issues of material fact, the trial court should grant the motion for summary judgment.” Duncan v. Long, 167 Idaho 853, 856, 477 P.3d 907, 910 (2020). Sun Valley put forth an Incident Report describing the accident and an Incident Photo Log with pictures of the yellow padding on Snow Gun 16 as evidence that the yellow padding constituted a warning implement. Milus presented a declaration by a ski area safety expert that snowmaking equipment should not be placed in the middle of a beginner level trail such as Lower River Run. There is a genuine issue of material fact whether Sun Valley breached its duty under section 6-1103(2) by wrapping Snow Gun 16 with yellow padding, and this question should go to a jury. Therefore, the district court’s grant of summary judgment is reversed.

C. Idaho Code section 6-1103(6) imposes a duty on ski area operators to place a conspicuous notice at or near the top of the trail or slope when snowmaking equipment is placed on the ski run or slope.

Milus claims Sun Valley also breached its duty under Idaho Code section 6-1103(6), which requires ski operators to place a “conspicuous notice” at or near the top of a ski trail or slope under certain circumstances:

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

….

(6) To place, or cause to be placed, whenever snowgrooming or snowmaking operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top of such trail or slope[.]

(Emphasis added.)

The district court held that the statutory language “snowmaking operations are being undertaken” is unambiguous and means “when snow is being made.” The district court concluded that the purpose of subsection (6) is to warn skiers of changed snow conditions or reduced visibility due to active snowmaking operations. Because no snow was actively being discharged from Snow Gun 16 on the day of Mr. Milus’s collision, the district court held that Sun Valley had no duty under section 6-1103(6) to place a notice at or near the top of the Lower River Run. Milus argues that the district court’s interpretation is too narrow because snowmaking equipment is dangerous both when actively shooting snow and when not actively shooting snow if the snowmaking equipment is in the middle of a beginner ski run.

“Statutory interpretation is a question of law over which this Court exercises free review.” Est. of Stahl v. Idaho State Tax Comm’n, 162 Idaho 558, 562, 401 P.3d 136, 140 (2017) (quoting Carrillo v. Boise Tire Co., 152 Idaho 741, 748, 274 P.3d 1256, 1263 (2012)). “Statutory interpretation begins with the literal language of the statute. If the statutory language is unambiguous, we need not engage in statutory construction and are free to apply the statute’s plain meaning.” Nordgaarden v. Kiebert, 171 Idaho 883, 890, 527 P.3d 486, 493 (2023) (alteration omitted) (quoting Callies v. O’Neal, 147 Idaho 841, 847, 216 P.3d 130, 136 (2009)). However, if the statutory language is ambiguous, this Court must “look to rules of construction for guidance and consider the reasonableness of proposed interpretations.” Id. (quoting City of Idaho Falls v. H-K Contractors, Inc., 163 Idaho 579, 582, 416 P.3d 951, 954 (2018)). “Statutory language is ambiguous where reasonable minds might differ or be uncertain as to its meaning.” Id. (alteration omitted) (quoting H-K Contractors, Inc., 163 Idaho at 582, 416 P.3d at 954).

The phrase “snowmaking operations are being undertaken” is ambiguous. The phrase “snowmaking operations” is broad and encompasses more than the discharge or production of snow. Interpreting subsection (6) as only applying when the snow was being actively discharged would effectively eliminate the word “operations” from the statute. But the statute does not impose the duty when “snowmaking is being undertaken,” rather the duty applies when “snowmaking operations are being undertaken.” When interpreting a statute, this Court has an obligation to give effect to all the words and provisions so that none are rendered superfluous. Moser v. Rosauers Supermarkets, Inc., 165 Idaho 133, 136, 443 P.3d 147, 150 (2019).

We are persuaded by Milus’s argument that subsection (6) creates a duty to warn skiers at the top of a ski slope or run of snowmaking equipment located further down the slope. Warning skiers of dangerous obstacles on the ski run or slope gives a skier the opportunity to choose a different ski run or to ski in a more cautious manner. The district court reasoned that this interpretation of section 6-1103(6) would be redundant because it would require two warnings for snowmaking equipment-one on the equipment itself, as required by subsection (2), and one at the top of the ski run, as required by our interpretation of subsection (6). This is not redundant- both warnings serve a purpose. Providing a warning at or near the top of the ski run or trail gives a skier the opportunity to choose a different ski run or to ski more cautiously, while a warning on or near the snowmaking equipment itself informs and warns the skier of the actual location of the snowmaking equipment on the ski run.

D. There is a genuine issue of material fact whether Sun Valley placed a conspicuous notice at or near the top of the Lower River Run trail on the day of the accident.

In light of our holding that the duty to place a notice at or near the top of the ski run or trail under section 6-1103(6) applies even when snow is not being actively discharged from snowmaking equipment, the question now becomes whether there is a genuine issue of material fact as to whether Sun Valley complied with that duty.

In support of its motion for summary judgment, Sun Valley submitted evidence that it placed a sign that read “CAUTION SNOWMAKING IN PROGRESS” at what it claims was the top of the River Run lift on the day of the accident. Sun Valley also submitted a declaration by Peter Stearns, the Director of Mountain Operations of Sun Valley Ski Resort, stating that, at all times during the ski season, the CAUTION SNOWMAKING IN PROGRESS sign is posted at the top of each ski lift. Additionally, Sun Valley presented a photograph showing the sign located at what it claims is the unloading area of the Lower River Run lift and a ski trail map showing the location of the sign relative to the top of Lower River Run.

In opposition to the motion, Ms. Milus submitted a declaration stating she did not see the sign on the day the accident occurred. Milus argued that it was possible the sign had been knocked down on the day of the accident. Milus additionally argued that the picture of the sign presented by Sun Valley does not show that the sign was “at or near the top” of Lower River Run.

The district court concluded that Ms. Milus’s statement that she did not personally observe a sign against Mr. Stearns’s declaration that a sign was posted at the top of every ski lift all season at Sun Valley only created a scintilla of evidence that would not preclude summary judgment.

On appeal, Milus argues that the district court erred because the evidence submitted was sufficient to establish a genuine issue of material fact concerning whether Sun Valley breached its duty under section 6-1103(6). We agree with Milus and reverse the district court’s grant of summary judgment on this claim.

For the reasons previously discussed, Sun Valley is held to the standard of care of an ordinarily prudent person when complying with subsection (6). We hold there is a genuine issue of material fact as to whether the “CAUTION SNOWMAKING IN PROGRESS” sign met the applicable standard of care. Sun Valley did not present sufficient evidence that its sign is at or near the top of the Lower River Run. The picture presented by Sun Valley shows the loading area of the Lookout Express lift, not the top of the Lower River Run. The trail map presented by Sun Valley does not show the location of the sign or an accurate distance between the River Run ski lift unloading area and the top of the Lower River Run. Moreover, Ms. Milus testified in her deposition that she did not see the sign on the day of the accident. As a result, there is a genuine issue of material fact whether Sun Valley’s sign complied with the requirements of subsection (6). We reverse the district court’s grant of summary judgment on this issue.

E. There is a genuine issue of material fact whether Sun Valley may avail itself of the assumption of the risk defense provided in Idaho Code section 6-1106.

However, the district court’s failure to address the argument does not prevent us from considering it in this instance.

Idaho formerly required an appealing party to obtain an adverse ruling on an issue to preserve the issue for appeal. However, we have now rejected the adverse ruling requirement in favor of a broader standard where “[i]t is not mandatory for a party-appellant to obtain an adverse ruling from the trial court to preserve an issue for appellate review, so long as the party’s position on that issue was presented to the trial court with argument and authority and noticed for hearing.”

Rich v. Hepworth Holzer, LLP, 172 Idaho 696, 703 n.4, 535 P.3d 1069, 1076 n.4 (2023) (internal citations omitted). Both parties presented their positions to the district court with argument and authority. Therefore, Sun Valley’s assumption of risk argument was preserved for appeal. Additionally, because we apply the same standard as the district court on a motion for summary judgment, we can consider this argument in the first instance because “[w]e review a district court’s grant of summary judgment de novo, and apply the same standard used by the district court in ruling on the motion.” Mattson v. Idaho Dep’t of Health &Welfare, 172 Idaho 66, 529 P.3d 731, 737 (2023) (quoting Marek v. Hecla, Ltd., 161 Idaho 211, 214, 384 P.3d 975, 978 (2016)).

Sun Valley contends that, even if we reverse the district court’s grant of summary judgment on its duties under section 6-1103, it is still entitled to summary judgment under section 6-1106, which describes the duties of skiers and provides that Mr. Milus expressly assumed the risk of injury resulting from skiing, and specifically the risk of injury from snowmaking equipment that was clearly marked in accordance with the provisions of section 6-1103:

Each skier expressly assumes the risk of and legal responsibility for any injury to person or property that results from participation in the sport of skiing including any injury caused by the following, all whether above or below snow surface: variations in terrain; any movement of snow including, but not limited to, slides, sloughs or avalanches; any depths of snow, including tree wells, or any accumulations of snow, whether natural or man made, including snowmaking mounds; freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 61103, Idaho Code. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone.

I.C. § 6-1106 (emphasis added). Sun Valley argues that the plain language of section 6-1106 bars recovery by Milus as a matter of law because the snowmaking equipment that Mr. Milus collided with was plainly visible or plainly marked in accordance with Idaho Code section 6-1103.

F. Sun Valley is not entitled to attorney fees.

Sun Valley requests attorney fees on appeal pursuant to Idaho Code section 12-121, which permits the prevailing party to recover its reasonable attorney fees if the Court finds that the nonprevailing party brought, defended, or pursued the case frivolously, unreasonably, or without foundation. However, Sun Valley is not the prevailing party on appeal and, therefore, is not entitled to an award of attorney fees under the statute.

V. CONCLUSION

We reverse the district court’s grant of summary judgment in favor of Sun Valley and remand for further proceedings consistent with this opinion. As the prevailing party, Milus is awarded costs on appeal pursuant to Idaho Appellate Rule 40.

Chief Justice BEVAN, and Justices BRODY, STEGNER, and MOELLER CONCUR.

Idaho Ski Area Statutes

Posted: January 15, 2024 | Author: Recreation Law | Filed under: Idaho, Legal Case, Skiing / Snow Boarding | Tags: Idaho Ski Area Statutes, Idaho Ski Safety Act | Leave a comment

Idaho Ski Area Statutes

6-1101. LEGISLATIVE PURPOSE 1

6-1102. DEFINITIONS 1

6-1103. DUTIES OF SKI AREA OPERATORS WITH RESPECT TO SKI AREAS 2

6-1104. DUTIES OF SKI AREA OPERATORS WITH RESPECT TO AERIAL PASSENGER TRAMWAYS 3

6-1107. LIABILITY OF SKI AREA OPERATORS 4

6-1108. LIABILITY OF PASSENGERS 5

6-1109. LIABILITY OF SKIERS 5

6-1101. LEGISLATIVE PURPOSE

The legislature finds that the sport of skiing is practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho. Since it is recognized that there are inherent risks in the sport of skiing which should be understood by each skier and which are essentially impossible to eliminate by the ski area operation, it is the purpose of this chapter to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury, and to define those risks which the skier expressly assumes and for which there can be no recovery.

Source:

[6-1101, added 1979, ch. 270, sec. 1, p. 701.]…

Idaho Code 6-1101 Legislative Purpose (Idaho Statutes (2023 Edition))

6-1102. DEFINITIONS

The following words and phrases when used in this chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section.

(1) “Aerial passenger tramway” means any device operated by a ski area operator used to transport passengers, by single or double reversible tramway; chair lift or gondola lift; T-bar lift, J-bar lift, platter lift or similar device; a fiber rope or wire rope tow or a conveyor, which is subject to regulations adopted by the proper authority.

(2) “Passenger” means any person who is lawfully using an aerial passenger tramway, or is waiting to embark or has recently disembarked from an aerial passenger tramway and is in its immediate vicinity.

(3) “Ski area” means the property owned or leased and under the control of the ski area operator within the state of Idaho.

(4) “Ski area operator” means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, who has operational responsibility for any ski area or aerial passenger tramway.

(5) “Skiing area” means all designated slopes and trails but excludes any aerial passenger tramway.

(6) “Skier” means any person present at a skiing area under the control of a ski area operator for the purpose of engaging in activities including, but not limited to, sliding downhill or jumping on snow or ice on skis, a snowboard, or any other sliding device, or who is using any ski area including, but not limited to, ski slopes, trails and freestyle terrain but does not include the use of an aerial passenger tramway.

(7) “Ski slopes and trails” mean those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing.

(8) “Freestyle terrain” means terrain parks and terrain features including, but not limited to, jumps, hits, ramps, banks, fun boxes, jibs, rails, half-pipes, quarter pipes and any other natural or constructed features.

Source:

[6-1102, added 1979, ch. 270, sec. 1, p. 701; am. 2014, ch. 187, sec. 1, p. 497.]

History:

Amended by 2014 Session Laws, ch. 187, sec. 1, eff. 7/1/2014.

Idaho Code 6-1102 Definitions (Idaho Statutes (2023 Edition))

6-1103. DUTIES OF SKI AREA OPERATORS WITH RESPECT TO SKI AREAS

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

(1) To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights that shall be in operation whenever the vehicles are working or are in movement in the skiing area;

(2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski slopes and trails;

(3) To mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty; and those slopes, trails, or areas which are closed, shall be so marked at the top or entrance;

(4) To maintain one (1) or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated thereon as to its relative degree of difficulty;

(5) To designate by trail board or otherwise which trails or slopes are open or closed;

(6) To place, or cause to be placed, whenever snowgrooming or snowmaking operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top of such trail or slope;

(7) To post notice of the requirements of this chapter concerning the use of ski retention devices. This obligation shall be the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices;

(8) To provide a ski patrol with qualifications meeting the standards of the national ski patrol system;

(9) To post a sign at the bottom of all aerial passenger tramways which advises the passengers to seek advice if not familiar with riding the aerial passenger tramway; and

Source:

[6-1103, added 1979, ch. 270, sec. 1, p. 702; am. 2014, ch. 187, sec. 2, p. 498.]

History:

Amended by 2014 Session Laws, ch. 187, sec. 2, eff. 7/1/2014.

Idaho Code 6-1103 Duties of Ski Area Operators With Respect To Ski Areas (Idaho Statutes (2023 Edition))

6-1104. DUTIES OF SKI AREA OPERATORS WITH RESPECT TO AERIAL PASSENGER TRAMWAYS

Every ski area operator shall have the duty to construct, operate, maintain and repair any aerial passenger tramway in accordance with the American national standards safety requirements for aerial passenger tramways.

Source:

[6-1104, added 1979, ch. 270, sec. 1, p. 703.]…

Idaho Code 6-1104 Duties of Ski Area Operators With Respect To Aerial Passenger Tramways (Idaho Statutes (2023 Edition))

6-1105. DUTIES OF PASSENGERS

Every passenger shall have the duty not to:

(1) Board or embark upon or disembark from an aerial passenger tramway except at an area designated for such purpose;

(2) Drop, throw or expel any object from an aerial passenger tramway;

(3) Do any act which shall interfere with the running or operation of an aerial passenger tramway;

(4) Use any aerial passenger tramway if the passenger does not have the ability to use it safely without instruction until the passenger has requested and received sufficient instruction to permit safe usage;

(5) Embark on an aerial passenger tramway without the authority of the ski area operator;

(6) Use any aerial passenger tramway without engaging such safety or restraining devices as may be provided.

Source:

[6-1105, added 1979, ch. 270, sec. 1, p. 703.]…

Idaho Code 6-1105 Duties of Passengers (Idaho Statutes (2023 Edition))

6-1106. DUTIES OF SKIERS

It is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures that can be taken.

Each skier expressly assumes the risk of and legal responsibility for any injury to person or property that results from participation in the sport of skiing including any injury caused by the following, all whether above or below snow surface: variations in terrain; any movement of snow including, but not limited to, slides, sloughs or avalanches; any depths of snow, including tree wells, or any accumulations of snow, whether natural or man made, including snowmaking mounds; freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 6-1103, Idaho Code. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone. The responsibility for collisions by any skier while actually skiing, with any person, shall be solely that of the individual or individuals involved in such collision and not that of the ski area operator.

No person shall place any object in the skiing area or on the uphill track of any aerial passenger tramway that may cause a passenger or skier to fall; cross the track of any T-bar lift, J-bar lift, platter lift or similar device, a fiber rope or wire rope tow and a conveyor, except at a designated location; or depart when involved in a skiing accident, from the scene of the accident without leaving personal identification, including name and address, before notifying the proper authorities or obtaining assistance when that person knows that any other person involved in the accident is in need of medical or other assistance.

No skier shall fail to wear retention straps or other devices to help prevent runaway equipment.

Source:

[6-1106, added 1979, ch. 270, sec. 1, p. 703; am. 2014, ch. 187, sec. 3, p. 498.]

History:

Amended by 2014 Session Laws, ch. 187, sec. 3, eff. 7/1/2014.

Idaho Code 6-1106 Duties of Skiers (Idaho Statutes (2023 Edition))

6-1107. LIABILITY OF SKI AREA OPERATORS

Any ski area operator shall be liable for loss or damages caused by its failure to follow the duties set forth in sections 6-1103 and 6-1104, Idaho Code, where the violation of duty is causally related to the loss or damage suffered. The ski area operators shall not be liable to any passenger or skier acting in violation of their duties as set forth in sections 6-1105 and 6-1106, Idaho Code, where the violation of duty is causally related to the loss or damage suffered; nor shall a ski area operator be liable for any injury or damage to a person who is not legally entitled to be in the ski area; or for any loss or damages caused by any object dropped, thrown or expelled by a passenger from an aerial passenger tramway.

Source:

[6-1107, added 1979, ch. 270, sec. 1, p. 704.]…

Idaho Code 6-1107 Liability of Ski Area Operators (Idaho Statutes (2023 Edition))

6-1108. LIABILITY OF PASSENGERS

Any passenger shall be liable for loss or damages resulting from violations of the duties set forth in section 6-1105, Idaho Code, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

Source:

[6-1108, added 1979, ch. 270, sec. 1, p. 704.]…

Idaho Code 6-1108 Liability of Passengers (Idaho Statutes (2023 Edition))

6-1109. LIABILITY OF SKIERS

Any skier shall be liable for loss or damages resulting from violations of the duties set forth in section 6-1106, Idaho Code, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

Source:

[6-1109, added 1979, ch. 270, sec. 1, p. 704.]…

Idaho Code 6-1109 Liability of Skiers (Idaho Statutes (2023 Edition))

Blide V. Rainier Mountaineering, Inc., 636 P.2d 492, 30 Wn. App. 571 (1981)

Posted: November 28, 2023 | Author: Recreation Law | Filed under: Legal Case, Mountaineering, Release (pre-injury contract not to sue), Washington | Tags: Guided Climb, Guided Mountainering Expedition, Mountain Climbing, Mt Rainier, Negligence, Rainier Mountaineering | Leave a comment

RICHARD BLIDE, ET AL, Appellants, v. RAINIER MOUNTAINEERING, INC., Respondent.

No. 9474-2-I.

The Court of Appeals of Washington, Division One.

June 15, 1981.

[1] Torts – Disclaimer of Liability – Validity – Test. An agreement releasing a party from liability for negligence is valid unless the activity involves a public interest or the negligent act falls greatly below the standard set by law for protecting persons from unreasonable risks of harm. A specific reference to “negligence” is not necessary to make the agreement effective.

[2] Torts – Disclaimer of Liability – Public Interest – Mountain
Climbing. For purposes of the rule invalidating releases from liability for activities involving a public interest, mountaineering instruction does not involve a public interest.

Nature of Action: A student sought damages from a guide service for injuries sustained during mountain climbing instruction. The student’s application released the guide service from liability for accidents.

Superior Court: The Superior Court for King County, No. 841713, Herbert M. Stephens, J., granted a summary judgment in favor of the guide service on December 6, 1979.

Court of Appeals: Holding that the release did not violate public policy and that the student had knowingly agreed to its terms, the court affirms the judgment.

Gerald G. Day, for appellants.

Don M. Gulliford, for respondent.

[As amended by order of the Court of Appeals November 12, 1981, deleting directions that the opinion should not be published.]

CORBETT, J.

Plaintiff appeals from an order dismissing his action for injuries received while engaged in a mountain climbing seminar.

The defendant, Rainier Mountaineering, Inc. (RMI), operates a guide service on Mount Rainier and provides mountain climbing instruction. RMI employed the plaintiff, a physician specializing in internal medicine, to conduct the medical portion of a mountain climbing seminar. The plaintiff, who did not have any previous mountain climbing experience, also enrolled in the seminar as a student. While being lowered into a crevasse during the rescue practice on Mount Rainier, the plaintiff suffered a serious leg injury.

Before coming to the seminar, plaintiff filled out an application for participation as a student which contained a release and assumption of risk. The application was contained on one page and the release on another. When plaintiff sent the form to RMI, his letter of transmittal stated: “Enclosed you will find my signed release . . .” At his deposition, he testified that he had signed the release but in fact he had not signed it, merely having filled in his name on the application portion. The text of the release is as follows:

I am aware that during the mountain trip, or other trim [sic], that I am participating in under the arrangements of Rainier Mountaineering Inc., certain dangers may occur, including but not limited to, the hazards of traveling in mountainous terrain, accidents or illness in remote places, without medical facilities, and the forces of nature.

In consideration of, and as part payment for, the right to participate in such mountain trips or other activities and the services and food arranged for me by RMI I have and do hereby assume all the above mentioned risks and will hold them harmless from any and all liability, actions, causes of action, debts, claims, demands of every kind and nature whatsoever which may arise out of or in connection with my trip or participation in any activities arranged for me by RMI. The terms thereof shall serve as a release and assumption of risk for my heirs, executor and administrators and for all members of my family, including any minors accompanying me.

(Parent or legal guardian must also sign for all persons under 21 years of age.) We recommend that the summit climb not be attempted by anyone under 15 years of age.

Date: Signature:

The plaintiff contends (1) that such a release should be void as against public policy, (2) lack of reference to negligence in the release renders it ineffective, (3) lack of specificity renders the release ineffective and not applicable to a risk or cause of injury not mentioned in the release, and (4) there were unresolved questions of fact as to whether plaintiff understood the release and agreed to its terms.

[1, 2] We find the case of Hewitt v. Miller,
11 Wn. App. 72, 521 P.2d 244 (1974), controlling with reference to the primary issues. “Absent some statute to the contrary, the generally accepted rule is that contracts against liability for negligence are valid except in those cases where a public
interest is involved“, (italics ours), 57 Am.Jur.2d Negligence § 23, at 366 (1971) (cited with approval in Hewitt,
supra at 77), or where the negligent act falls greatly below the standard established by law for the protection of others against unreasonable risk of harm. McCutcheon v. United Homes
Corp.,
79 Wn.2d 443, 486 P.2d 1093 (1971); Hewitt v. Miller,
supra at 77 n. 1; Restatement of Contracts § 574 (1932). Although a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest and the plaintiff has at no time complained that the alleged negligence here fell greatly below the standard established by law. Therefore the exculpatory clause is valid and enforceable.

The wording of the release in Hewitt, as in the present case, did not specifically refer to “negligence”. However, the hazard experienced was clearly within the contemplation of the release. Failure to use the word “negligence” did not render the release ineffective. Hewitt v. Miller, supra at 79.

The release referred to “the hazards of traveling in mountainous terrain, accidents or illness in remote places . . . and the forces of nature”. Whether the plaintiff had unintentionally fallen or was lowered into the crevasse where his injury occurred, the accident was within the contemplation of the hold harmless which was clear, unambiguous and conspicuous.

There can be no question that plaintiff knowingly agreed to the terms of the release. He read the release and believed that he signed it. He accepted the benefits, including a $500 fee for his services, as well as the course in mountaineering. There was objective manifestation of his understanding of the agreement and intent to execute the release in the prescribed form. There was therefore no unresolved question of fact.

The summary judgment was properly granted.

Affirmed.

RINGOLD, A.C.J., and ANDERSEN, J., concur.

Reconsideration denied November 12, 1981.

Review denied by Supreme Court January 22, 1982.

Florida Appellate court throws out release signed by student-athlete who died because release was not written according to the requirements of Florida law.

Posted: October 9, 2023 | Author: Recreation Law | Filed under: Florida, Release (pre-injury contract not to sue), Sports | Tags: Exculpatory clause, Football, Negligence, Release, Stetson University, student athlete, Waiver | Leave a comment

Poorly written release that failed to stop claim by the family of a deceased scholarship athlete

Estate of Blakely v. Stetson Univ. (Fla. App. 2022)

State: Florida; Florida Court of Appeals, Fifth District

Plaintiff: THE ESTATE OF NICHOLAS ADAM BLAKELY, BY AND THROUGH MICHELLE WILSON, AS PERSONAL REPRESENTATIVE

Defendant: STETSON UNIVERSITY, INC

Plaintiff Claims:

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2022

Summary

Stetson University offered an athletic scholarship to the deceased. In return, he had to sign a release. He died during practice and his mother sued the school. The release was ineffective because it was not written correctly under Florida law.

Facts

Nicholas Blakely was a student and scholarship football player at Stetson in 2016 and 2017, his freshman and sophomore years in college. He pulled himself out of an afternoon football practice on August 28, 2017, complaining to an assistant athletic trainer that he was feeling dizzy and that his chest felt tight. The assistant athletic trainer took Blakely to the sideline, took his pulse,[1] gave him water to cool down, removed his helmet, loosened his shoulder pads, and had him stand in the shade. Trainers continued to monitor Blakely’s symptoms. However, after resting on the sideline for approximately forty to forty-five minutes, Blakely collapsed.

In addition to calling 911, Stetson employees attempted various emergency medical procedures in an unsuccessful effort to revive Blakely. Blakely was transported to the hospital, where he ultimately died.

There was record evidence that during an April 2017 practice, Blakely had complained to an assistant athletic director of chest pain. He also advised the trainer that he had experienced one or two incidents of chest pain in high school, but both of those incidents had resolved quickly. The chest pain incident of April 2017 also resolved in just a few minutes. The assistant athletic trainer did not document the April incident or otherwise do anything with the information provided by Blakely. Furthermore, when Blakely returned to school after summer break, Stetson did not have him undergo a physical examination prior to him participating on the football team for the upcoming season.

There is also record evidence that on the morning of August 28, 2017, the day Blakely died, Blakely advised the head football athletic trainer that he was not feeling well, that he had a bad cough, chest congestion, and shallow breathing. The trainer took Blakely’s temperature which was negative for fever. The trainer believed Blakely had a cold and did not refer him to the student health clinic. Blakely was permitted to continue participation in the planned activities for the day without restriction.

The defendant won the case at trial when the judge dismissed the case based on the release. The plaintiff appealed and the appellate court sent it back to the trial court.

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

Florida, like all states, has requirements for releases to be effective.

An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. They are disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid the injury and bear the risk of loss. Such clauses are strictly construed against the party seeking to be relieved of liability. Thus, exculpatory clauses are enforceable only where and to the extent that the intention to be relieved from liability is made clear and unequivocal. The wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.

In this case, the release did not use the word release. That alone is not enough to make the release ineffective according to the court, but it is a major factor in looking at the document as a whole.

Although Florida has case law that states the word “negligence” is not needed in a release for the release to be effective. However, here the word negligence was not used and the court found nothing similar, as needed was used. Consequently, the court found the release was ineffective. The issue is was the release unambiguous.

Here the court found two other problems with the release. The release had specific requirements the signor must fulfill in order for his scholarship to be provided. Combining multiple different terms or purposes into a release always provides the court with a way to say the release is not valid.

First, immediately preceding the exculpatory clause, Blakely was advised that it was important that he comply with Stetson’s medical staff’s instructions regarding, inter alia, conditioning and treatment and, indeed, was required to obey such instructions.

The court found this combination was fatal in this case.

As was stated in Plancher, this type of language, when coupled with a clause that does not expressly state that the athlete would be waiving a negligence action, could reasonably lead the athlete to believe that the university “would be supervising his training and instructing him properly (non-negligently), and that he was only being asked to sign the exculpatory clause to cover injuries inherent in the sport.

Since the language in the release had specific instructions on how the signor was supposed to act and rules to obey, the court found that narrowed the scope of the release to only those risks inherent in the sport.

The second issue the court found was the language in the release was limiting. In this case, the language said the signor only bound the signor, not the signor’s family. The term “for myself” was used rather than a broader term that would encompass more people.

Second, the final two sentences of the releases state that the releases serve as a release “for myself,” not “by” myself. Specifically, these sentences read, in relevant part: “[T]he terms hereof shall serve as a release and assumption of risk for myself . . .” and “The terms hereof shall serve as a complete release and waiver of liability for myself, . . . .” (emphasis added).

In Florida, as in all other states, contracts are construed against the person making the contract. That means that the person who creates the contract cannot win any argument that it was made properly, the terms will be examined in a way that the writer of the agreement loses that argument.

Those three factors, combined were enough to void the release.

As we have previously observed, exculpatory clauses are to be strictly construed against the party seeking to be relieved of liability. Here, Stetson’s Athletic Participation Release of Liability and Waiver of Liability form: 1) failed to expressly inform Blakely that he was contracting away his right to sue Stetson for Stetson’s own negligence, 2) used language that could reasonably lead one to believe that the university would be supervising and training properly so that he was only being asked to sign the exculpatory clause to cover injuries inherent in a sport, and 3) used language suggesting that the terms of the release were for Blakely’s benefit. The combination of these factors supports a determination that the exculpatory clause was not clear and unambiguous. As a result, we conclude that the exculpatory clause relied upon by Stetson is unenforceable and that the trial court erred in granting summary judgment in favor of Stetson.

There was also a cross-appeal, an appeal issue filed by the party who did not start the appeal, in this case, the university, that the university could not be held liable for gross negligence if the plaintiff amended its complaint to add gross negligence.

Under Florida law, a defendant can only be held liable for gross negligence if the plaintiff proves “the defendant was guilty of intentional misconduct or gross negligence.”

A Florida statute defines gross negligence.

Section 768.72(2)(b) defines “gross negligence” as conduct “so reckless or wanting in care that it can constitute a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.”

After reviewing the claims of the plaintiff, the court found the claims argued were not backed up by facts and the plaintiff could not prove gross negligence.

The Florida Supreme Court has placed a heavy burden on a party attempting to prove the other party was grossly negligent. Basically, the party accused of gross negligence has shown no deference to human life or acted in a way that the consequences were almost such that an injury would occur.

The Florida Supreme Court has stated that: “[t]he character of negligence necessary to sustain an award of punitive damages must be of a ‘gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.

Here the plaintiff could not prove and had not proven that level of carelessness on the part of the university.

So Now What?

It appears if the release had been written correctly and ONLY the language of a release in the agreement, the release would have stopped the lawsuit of the survivors.

The first issue you see all the time. Those are the releases that are argued at the appellate courts and recorded and then appear to be heard. You must hire an attorney to write your release who understands release law and the issues you face.

The second issue you also see all the time. Releases include language that the person will obey the rules or actually list the rules. Even found more frequently are releases where the signor is giving up more than just the right to sue, such as a photo release or a medical release in one document.

Releases are rising to the level of insurance policies. The body of law surrounding them and controlling them is separate and distinct from the law of contracts. Like an insurance policy, a release is a contract, but the relationship between the parties and the rights of the consumer creates burdens on the business offering the release that are much greater than a regular contract.

For more articles about releases under Florida law see:

Man sues kayak rental company after falling in Tampa Bay, allegedly catching flesh-eating bacteria

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

One box was unchecked in the release which was signed online, and the court would not grant the motion for summary judgment of the defendant because whether or not the release was valid was a decision for the jury.

Negligence Per Se is the violation of a law or regulation created to protect a group of people. If you are Negligent Per Se, you have no defenses.

Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.

Simple Florida camp case with final sentences that provide insight into how courts look at what influenced their decision.

Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.

What do you think? Leave a comment.

Word Count: 2066

Jim Moss

Outdoor Recreation Insurance, Risk Management, and Law

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Estate of Blakely v. Stetson Univ. (Fla. App. 2022)

Posted: October 9, 2023 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Florida, Release (pre-injury contract not to sue) | Tags: College, Football, Football Scholarship, Gross negligence, Release, Scholarship Athlete, Stetson Univerity, student athlete, University, Waiver, Wrongful Death | Leave a comment

To Read an Analysis of this decision see

Florida Appellate court throws out release signed by student-athlete who died because release was not written according to the requirements of Florida law.

Estate of Blakely v. Stetson Univ. (Fla. App. 2022)

THE ESTATE OF NICHOLAS ADAM BLAKELY, BY AND THROUGH MICHELLE WILSON, AS PERSONAL REPRESENTATIVE, Appellant,
v.
STETSON UNIVERSITY, INC., Appellee.

No. 5D21-2547

Florida Court of Appeals, Fifth District

December 30, 2022

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Appeal from the Circuit Court for Volusia County LT Case No. 2018-12178-CIDL, Kathryn D. Weston, Judge.

A. Lance Reins, Rainey C. Booth, Jr., and Joanna Greber Dettloff, of Mendes, Reins & Wilander, PLLC, Tampa, and Christopher Klemawesch, and Jason M. Melton, of Whittel & Melton, LLC, Spring Hill, and Romero Pearson, of Pearson Law Group, LLC, Lawrenceville, GA, for Appellant. Michael R. D’Lugo, and Richard E. Ramsey, of Wicker Smith O’Hara McCoy & Ford, P.A., Orlando, for Appellee.

EVANDER, J.

In this wrongful death case, the Estate of Nicholas Adam Blakely, by and through Michelle Wilson, as personal representative (“Wilson”), timely appeals a final judgment entered after the trial court granted summary judgment for the defendant, Stetson University, Inc. (“Stetson”). The trial court found that two identical releases signed by Blakely in order to play football for Stetson were sufficiently clear to bar claims brought against Stetson arising from Blakely’s cardiac death after participating in a football practice.

On appeal, Wilson raises two issues. First, she contends that the language in the releases was insufficient to be enforceable as a matter of law. Second, she argues that genuine issues of material fact exist concerning the scope of the release and whether Stetson’s alleged tortious conduct fell within that scope. We find merit to Wilson’s first argument and, accordingly, we reverse the final judgment entered in favor of Stetson. Because we find the releases were unenforceable, we find it unnecessary to address Wilson’s second argument.

On cross-appeal, Stetson argues that if this Court reverses the final judgment, it should also reverse the trial court’s order allowing Wilson to add a claim for punitive damages. We find merit to the cross-appeal, and accordingly, we reverse that order as well.

Nicholas Blakely was a student and scholarship football player at Stetson in 2016 and 2017, his freshman and sophomore years in college. He pulled himself out of an afternoon football practice on August 28, 2017, complaining to an assistant athletic trainer that he was feeling dizzy and that his chest felt tight. The assistant athletic trainer took Blakely to the sideline, took his pulse,^[1] gave him water to cool down, removed his helmet, loosened his shoulder pads, and had him stand in the shade. Trainers continued to monitor Blakely’s symptoms. However, after resting on the sideline for approximately forty to forty-five minutes, Blakely collapsed.

The operative amended complaint included counts for negligence and breach of fiduciary duty. In its answer, Stetson raised as an affirmative defense that Blakely had signed two identical releases prior to his participation on the football team in 2016 and 2017, which barred the claims brought against Stetson. The releases signed by Blakely read as follows:

STETSON UNIVERSITY DEPARTMENT OF ATHLETICS Athletic Participation Release of Liability and Waiver of Liability

Please Read Carefully

I am aware that playing or practicing to play/participate in any sport can be a dangerous activity involving many risks of injury.

I understand that the dangers and risks of playing or participating/practicing may include, but are not limited to: death, serious neck injury, serious spinal cord injury, which may result in complete or partial paralysis, brain damage, serious injury to virtually all internal organs, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, serious injury or eye impairment, and serious injury to other aspects of my body, general health and well-being. I understand that the dangers and risks of playing or participating/practicing in the Stetson University Athletic Department programs may result not only In serious injury, but in a serious impairment of my future abilities to earn a living, to engage in other business, social, and recreational activities, and generally to enjoy life.

Because of the dangers and risks involved in participating in intercollegiate athletics, I recognize the importance of following the Coaches and Sports Medicine staff instructions regarding playing techniques, conditioning, rehabilitation/ treatment recommendations and team rules, etc., and agree to obey such instructions.

In consideration of Stetson University permitting me to play/participate for Stetson University intercollegiate athletics in all activities related to the team, including, but not limited to: trying out, practicing, playing/participating or team travel in that sport, I hereby assume all risks associated with participation and agree to hold Stetson University, it’s [sic] trustees, administration, coaches, athletic trainers and athletic training interns from any and all liability, actions, causes of actions, debts, claims or demands of any kind or nature which may arise by or in connection with my participation in any activities related to the Stetson University athletic program. The terms hereof shall serve as a release and assumption of risk for myself, my heirs, estate, executor, administrator, assignees and for all members of my family.

The terms hereof shall serve as a complete release and waiver of liability for myself, my heirs, estate, executor, administrator assignees, and for all members of my family.

(emphasis added).

In its motion for summary judgment, Stetson argued that the releases clearly and unambiguously released Stetson from any and all liability arising from Blakely’s participation in Stetson football activities. In response, Wilson argued, inter alia, that the releases did not mention negligence and contained contradictory and ambiguous provisions rendering the releases unenforceable. In granting Stetson’s motion, the trial court found that the releases were “clear and understandable so that an ordinary and knowledgeable person would know what is being contracted away” and “would be clear to even someone who is not an adult that executing them would release all claims.”

We review orders granting summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 60 So.2d 126, 130 (Fla. 2000). Here, we are called upon to determine the enforceability of the exculpatory provisions set forth in Stetson’s Athletic Participation Release of Liability and Waiver of Liability.

“An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. They are disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid the injury and bear the risk of loss. Such clauses are strictly construed against the party seeking to be relieved of liability. Thus, exculpatory clauses are enforceable only where and to the extent that the intention to be relieved from liability is made clear and unequivocal. The wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.” UCF Athletics Ass’n, v. Plancher, 121 So.3d 1097, 1101 (Fla. 5th DCA 2013) (internal citations and quotations omitted), approved in part, quashed in part, 175 So.3d 724 (Fla. 2015).

In the present case, the exculpatory clause did not expressly inform Blakely that by executing the document at issue, he would be contracting away his right to sue Stetson for Stetson’s own negligence. Although this omission does not, standing alone, render the exculpatory clause unenforceable, see Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015), it is a factor for a court to consider in determining whether the exculpatory clause is clear and unambiguous. Plancher, 121 So.2d at 1101, 1102; see also Sanislo, 157 So.3d at 271 (“Despite our conclusion [that an exculpatory clause can be effective to bar a negligence action despite the absence of expressed language referring to the release of the defendant for its own negligence], we stress that our holding is not intended to render general language in a release of liability per se effective to bar negligence actions.”).^[2]

In addition, there are at least two provisions which, combined with Stetson’s failure to expressly inform Blakely that he was contracting away his right to sue Stetson for Stetson’s negligence, render the exculpatory provision unclear and ambiguous. First, immediately preceding the exculpatory clause, Blakely was advised that it was important that he comply with Stetson’s medical staff’s instructions regarding, inter alia, conditioning and treatment and, indeed, was required to obey such instructions. As was stated in Plancher, this type of language, when coupled with a clause that does not expressly state that the athlete would be waiving a negligence action, could reasonably lead the athlete to believe that the university “would be supervising his training and instructing him properly (non-negligently), and that he was only being asked to sign the exculpatory clause to cover injuries inherent in the sport.” Plancher, 121 So.3d at 1102; see also Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So.2d 565, 568- 69 (Fla. 2d DCA 2008) (holding where waiver expressly releasing YMCA from any claims based on YMCA’s negligence also included provision suggesting that YMCA would take “every reasonable precaution” against accidents, waiver was unenforceable because a reasonable reader might be led to believe that waiver of liability only extends to claims for injuries that were unavoidable “even when every reasonable precaution” had been taken by YMCA; “[C]onfusion results from the juxtaposition of the ‘every reasonable precaution’ provision with the provision for the release of ‘any claims based on negligence.'”).

Second, the final two sentences of the releases state that the releases serve as a release “for myself,” not “by” myself. Specifically, these sentences read, in relevant part: “[T]he terms hereof shall serve as a release and assumption of risk for myself . . .” and “The terms hereof shall serve as a complete release and waiver of liability for myself, . . . .” (emphasis added). As Wilson observes, the word “for” is defined to mean “used to indicate the person or thing that something is sent or given to.” In other words, the use of the word “for” can suggest that the terms of the release are for the benefit of Blakely, that is, if he follows the instructions of Stetson’s athletic department personnel and causes injury to another while participating in the dangerous activity of playing football, he is released from liability.

Cross-Appeal

A trial court’s order granting or denying a motion to amend complaint to add a claim for punitive damages is reviewed de novo. Est. of Despain v. Avante Grp., Inc., 900 So.2d 637, 644 (Fla. 5th DCA 2005). The appellate court views the record evidence and the proffered evidence in the light most favorable to the plaintiffs and accepts said evidence as true for the purpose of reviewing whether a reasonable basis exists for punitive damages. Id.

A defendant may be held liable for punitive damages only if the trier of fact finds that the defendant was guilty of intentional misconduct or gross negligence. See § 768.72(2), Fla. Stat. (2017). In the instant case, Wilson did not allege that Stetson engaged in intentional misconduct but rather relied solely on allegations of gross negligence.

Here, Wilson argues that punitive damages are justified because:

(1) [D]espite being directly put on notice of numerous agency guidelines and best practices to the contrary – Stetson, through its managing agents including its Director of Sports Medicine, failed to implement ECG screening of student-athletes based at least in part on the cost of implementing such screening, failed to implement any emergency action plan or policies and procedures regarding Sudden Cardiac Death, and failed to provide its athletic trainers and coaches with any specialized training dealing with Sudden Cardiac Death.

(a) . . . Stetson athletic trainers and coaches were made aware of [Blakely’s] repeated complaints of chest pain, shortness of breath, congestion, dizziness, and an “alarming” elevated heart rate that, according to a Stetson Athletic Trainer, should have been a red flag when combined with his other symptoms. But, due to the lack of policies and procedures, training, and emergency action plans at Stetson, the athletic trainers and coaches did not treat these textbook signs of cardiac distress as a cardiac emergency as they should have, resulting in [Blakely’s] death. . . .;

(2) [Stetson] actively and knowingly participated in the company’s practice of declining to implement use of ECG screening, specialized training, emergency action plans, and policies and procedures in accordance with numerous guidelines and best practices to protect student-athletes from the leading cause of unexpected deaths in NCAA Athletes and allowing its athletic trainers to train athletes in complete ignorance and disregard of Sudden Cardiac Death while knowing that such a practice was grossly negligent; and

(3) . . . Stetson’s officers, directors or managers – including its Director of Sports Medicine who was the ultimate decision-maker on all matters at issue in this case – knowingly condoned, ratified, or consented to the grossly negligent and recklessly indifferent conduct by failing to respond in any way to the threat of Sudden Cardiac Death despite being put on notice of the life threatening issue, the position of various agencies, and related best practices.

There is record evidence that supports some of those allegations. However, taking the record evidence and proffered evidence in the light most favorable to Wilson, we conclude that Wilson has not met the threshold necessary to state a claim for punitive damages. The Florida Supreme Court has stated that: “[t]he character of negligence necessary to sustain an award of punitive damages must be of a ‘gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.'” Valladares v. Bank
of Am. Corp., 197 So.3d 1, 11 (Fla. 2016) (quoting Owens-Corning
Fiberglass Corp. v. Ballard, 749 So.2d 43, 46 (Fla. 1999)). Wilson’s evidence falls short of meeting that standard. Accordingly, we conclude that the trial court erred in granting Wilson’s motion to amend complaint to add a claim for punitive damages.

REVERSED and REMANDED.

LAMBERT, CJ and HARRIS, J, concur

———

Notes:

^[1] The record evidence reflects that when Blakely’s pulse was first checked, it was between 160 and 170 beats per minute. Blakely’s pulse rate started to decrease shortly thereafter.

^[2] In its answer brief, Stetson argues that the Florida Supreme Court’s decision in Sanislo renders “meaningless” the absence of the words “negligent” or “negligent acts.” We reject this argument. Sanislo was a 4-3 decision, in which two of the justices in the majority concurred in result only. The other two justices in the majority joined in an opinion that concluded that the ultimate question in this case was whether the exculpatory clause, when considered in its entirety, “clearly conveys that Give Kids the World, Inc. would be released from any liability, including negligence, for damages, losses, and injuries due to transportation, food, lodging, entertainment, and photographs.” The supreme court’s decision in Sanislo affirmed this court’s position that the failure of an exculpatory clause to express the informed designee would not, in and of itself, render the clause unenforceable. Sanislo, 157 So.3d at 258.

Contrary to Stetson’s suggestion, the Sanislo decision did not expressly or implicitly overrule this court’s determination in Plancher that the failure to expressly reference that the defendant was being released for its own negligence could operate with other factors to invalidate an exculpatory clause. Furthermore, none of the seven justices suggested a belief that the absence of the words “negligent” or “negligent acts” was meaningless. To the contrary, the three dissenting justices concluded that the words were required, while the two justices in the majority who opined on the issue agreed “that it may be better practice to expressly refer to ‘negligent’ or ‘negligent acts’ in an exculpatory clause.” Sanislo, 157 So.3d at 270.

———

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http://www.recreation-law.com

Interesting case where a release stopped claims for poor rescue at an underground amusement park in Kentucky.

Posted: October 2, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Indoor Recreation Center, Kentucky, Release (pre-injury contract not to sue) | Tags: Aerial Adventure, assumption of the risk, Louisville Mega Cavern, Mega Quest, Mega Quest Adventure, Release, Ropes course, Suspension Trauma, Waiver | Leave a comment

Most of the decision centers around the instructions given by the court; however, there are great nuggets of help for the industry.

Bradley v. Louisville Mega Cavern, LLC, 2022-CA-0828-MR (Ky. Ct. App. May 19, 2023)

State: Kentucky; Court of Appeals of Kentucky

Plaintiff: Anthony Bradley, Individually and as Administrator of the Estate of Mitzi Westover

Defendant: Louisville Mega Cavern, LLC

Plaintiff Claims: failure to exercise ordinary care in the operation of the Mega Quest course and LMC’s failure to properly train its staff to respond to emergencies

Defendant Defenses: pre-existing health conditions and her own failure to exercise ordinary care and Release

Holding: For Defendant

Year: 2023

Summary

The deceased died at an underground amusement park after failing to maneuver an obstacle. The release she signed was ineffective as a release but was used to prove she assumed the risk of her injuries.

Facts

LMC operates an underground adventure park on the site of a former limestone mine in Louisville, Kentucky.[1] LMC operates several attractions on the site, including an underground, aerial adventure ropes course called Mega Quest. On August 17, 2017, Mitzi Westover, her husband Anthony Bradley, and her niece, Hanna Folk, purchased tickets for Mega Quest. Prior to taking part in any activity at LMC, they were required to read and execute a “Participant Agreement” (“the Agreement”).

As required, Westover, Bradley, and Folk electronically signed the Agreement. They then checked in at the front desk and were provided with equipment for the course. LMC provided a safety briefing and training on the course and use of the equipment. Shortly thereafter, the party began the Mega Quest course. Westover started an element that consisted of two horizontal ladders suspended from overhead wire ropes. Westover fell on the first ladder and was assisted by an LMC employee.

She fell again on the second ladder and was unable to get back on the ladder. The LMC employee called for a rescue via a lower-line kit. Westover was suspended on the harness for between five to eight minutes. Westover was responsive for most of this time. But as she was being lowered, Westover lost consciousness and became unresponsive. LMC called 911, which did not arrive on the scene for another nine minutes. Westover was transported to the hospital, where she died on August 22, 2017.

At trial, the Estate presented evidence that Westover’s death was caused by suspension trauma resulting from her extended time hanging unsupported on the harness. The Estate argued that this suspension trauma was caused by LMC’s failure to exercise ordinary care in the operation of the Mega Quest course and LMC’s failure to properly train its staff to respond to emergencies. In response, LMC argued that Westover’s death was caused by her pre-existing health conditions and her own failure to exercise ordinary care. Following the close of proof, the jury found that the Estate failed to prove that LMC failed to exercise ordinary care in the operation of the Mega Quest course and that such failure was a substantial factor in causing Westover’s death.

Following the close of proof, [trial] the jury found that the Estate failed to prove that LMC failed to exercise ordinary care in the operation of the Mega Quest course and that such failure was a substantial factor in causing Westover’s death.

This appeal followed.

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

The case had some very interesting actions and rulings. The trial judge ruled the release was not valid under Kentucky law and excluded it from the trial for that reason. The court also found that the immunity provided by the Kentucky agritourism-immunity statutes, in the release, were also not applicable and prevented the defendant from using those as a defense.

The trial court then ruled:

The Trial Court concluded that, even though the Release and agritourism-immunity provisions of the Agreement were unenforceable, the Agreement itself was still relevant to the disputed issues of negligence. The Trial Court redacted the bolded agritourism warning at the end of the Agreement, except for the line, “You are assuming the risk of participating in this . . . activity.”

The defendant then moved for a limiting instruction saying that the release could not be viewed as a release, but could prove the risks the deceased assumed. Stated another way, the release was used to prove the deceased assumed the risks of her injuries. The court granted this motion.

The Estate extensively argues that the Release provisions in the Agreement were not enforceable. However, the Trial Court agreed, finding that the release was not enforceable as a waiver or release of LMC’s liability for negligence. LMC does not appeal this ruling. Rather, the question on appeal is whether the Agreement was otherwise relevant to the factual matters in dispute; the question is whether the evidence was relevant, or if the prejudicial effect of the evidence substantially outweighed its probative value.

On appeal, the plaintiff argued the release should not have been used to prove assumption of the risk. The defense fought this argument but did not fight the issue of whether the release was valid under Kentucky law. This was so “weird,” even the appellate court pointed it out.

The issue on appeal then revolved around whether the release, as an assumption of the risk document, was “relevant” under the Kentucky rules of evidence.

All evidence is relevant and should be admitted unless it is specifically excluded under another rule of evidence or a law. However, the first hurdle is the evidence must be relevant.

Under KRE[4] 401, relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Under KRE 402, “[a]ll relevant evidence is admissible” unless otherwise excluded by the law or rules of evidence. “Evidence which is not relevant is not admissible.” KRE 402. Relevance is established by any showing of probativeness, however slight.

The appellate court ruled the trial court was correct. The “agreement” since it was no longer legally a release, was properly admitted to show the deceased assumed the risk which caused her death.

Another way that evidence can be excluded is if the value the evidence offered is outweighed by any negative value it may have. This legal argument is stated as “whether the Agreement’s probative value was substantially outweighed by its prejudicial effect.”

Under Kentucky law that is a three-step test.

To make sure a piece of evidence is admitted in a way that the jury understands the narrow reasons for its introduction and how it can be interpreted a jury instruction can be given with those limitations. Here the plaintiff failed to ask, at the right time, for that limiting instruction. By failing to ask the issue was waived.

The appellate court sided with the plaintiff on the value of the release or agreement as proof of assumption of the risk. But found that the level of damage to the plaintiff’s case was not so great that the case should be reversed on that point.

We agree with the Estate that the introduction of the Release and Indemnity portions of the Agreement posed a risk of confusing the jury. Without a limiting instruction, the jury had no guidance from the Court to determine how that language was to be read. The jury may have also been led to believe that it was to consider the legal issue regarding the enforceability of the Agreement. Under these circumstances, we believe that the Trial Court would have been justified in giving the Estate’s proposed instruction even though the issue was not raised by a contemporaneous objection.

This is great proof that a release can have a second life if properly written.

The next issue was the duties, the legal responsibility; the defendant has to the deceased. These duties are presented to the jury in a jury instruction and as such give the jury the definition they must follow in making their decision.

Here the plaintiffs wanted instructions that stated the defendant had to make the amusement park safe.

However, the trial court and appellate court rejected these instructions. The deceased was a business invitee, and the duties owed to a business invitee were adequately covered in other instructions in this case.

Another relevant issue argued by the plaintiff was whether or not a jury instruction and arguments made should have included the OSHA requirements for the operation of the amusement park. There was testimony that the staff was not trained in first aid or rescue, and OSHA requires both. However, OSHA only applies to employees, and the deceased was a patron of the park, not an employee.

Because OSHA standards only apply to employees, the plaintiff was correctly prohibited from giving these arguments.

The court upheld the ruling for the defendant in this case. Although mistakes were made, as there are in most trials, those mistakes were discretionary on the part of the court and did not rise to the level to change the outcome of the trial.

We conclude that the Trial Court’s evidentiary rulings and jury instructions did not amount to an abuse of discretion. Although the Agreement was not relevant to prove that Westover or her Estate waived any claim to liability based on LMC’s negligence, it was relevant and admissible as to the other disputed issues of negligence. Furthermore, the prejudicial effect of the Agreement did not substantially outweigh its probative value on these matters. The Release and Indemnity language in the Agreement was potentially misleading. However, the Estate did not make a contemporaneous request for an admonition. Therefore, the Trial Court’s failure to grant a limiting instruction did not amount to palpable error.

This decision is difficult to read because the arguments are couched in procedural and evidentiary issues rather than interpretation of the facts. However, that is how most cases are overturned at the appellate level, because of evidence or procedure, rather than what law is applied to the facts of the case.

So Now What?

Here is proof that writing your release to cover the risks associated with the activity or sport you are offering to the public has additional value. Granted, having the release written correctly to begin with might have saved a lot of this argument, but in any case, where your release is thrown out as a legal argument, assumption of the risk is a valid defense. Having your release written to cover the legal and knowledge issues, as in this case, may save your business.

What do you think? Leave a comment.

Jim Moss

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor

Outdoor Recreation Insurance, Risk Management, and Law

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Kentucky Agritourism Statutes

Posted: October 2, 2023 | Author: Recreation Law | Filed under: Kentucky | Tags: #Tourism, Agricultural Education, Agricultural Tourism, Agriculture, Agritourism, education, farm, Farm Education, Immunity, Kentucky, Ranch Agriburiness | Leave a comment

Kentucky Agritourism Statutes

§ 247.800. Agritourism program – Purposes 1

§ 247.801. Definitions for KRS 247.800 to 247.810 1

§ 247.802. Duties of agritourism program 2

§ 247.806. Duties of Agritourism Advisory Council 2

§ 247.808. Members of Agritourism Advisory Council appointed by Commissioner – Terms – Chair – Meetings – Vacancies – Compensation 3

§ 247.809. Liability of agritourism professionals – Protection – Defenses – Damages 3

§ 247.8091. Warning notices to be posted where agritourism activities are conducted 4

§ 247.800. Agritourism program – Purposes

The Department of Agriculture shall manage an agritourism program to be housed in the Office of Agricultural Marketing in the Department of Agriculture. It shall be the purpose of the agritourism program to:

(1) Promote agritourism in Kentucky to potential visitors, both national and international; and

(2) Assist in sustaining the viability and growth of the agritourism industry in Kentucky.

History:

Amended by 2022 Ky. Acts ch. 215,§2, eff. 7/13/2022. Amended by 2018 Ky. Acts ch. 3,§4, eff. 7/14/2018. Amended by 2012 Ky. Acts ch. 100,§4, eff. 7/11/2012. Amended 2009, Ky. Acts ch. 16, sec. 63, effective 6/25/2009. — Amended 2005, Ky. Acts ch. 26, sec. 2, effective 6/20/2005; and ch. 95, sec. 48, effective 6/20/2005. — Amended 2004, Ky. Acts ch. 88, sec. 3, effective 7/13/2004. –Created 2002, Ky. Acts ch. 250, sec. 1, effective 7/15/2002.

KY Rev. Stat. 247.800 Agritourism program – Purposes (Kentucky Revised Statutes (2023 Edition))

§ 247.801. Definitions for KRS 247.800 to 247.810

As used in KRS 247.800 to 247.810:

(1) “Agritourism” means the act of visiting:

(a) A farm or ranch; or

(b) Any agricultural, horticultural, or agribusiness operation;

for the purpose of enjoyment, education, or active involvement in the activities of the farm, ranch, or operation;

(2) “Agritourism activity” means any activity that:

(a) Is carried out on a farm, ranch, agricultural operation, horticultural operation, or agribusiness operation; and

(b) Allows or invites participants to view or participate in activities for recreational, entertainment, or educational purposes. Qualifying activities may include farming, ranching, historic, cultural, civic, or ceremonial activities, including but not limited to weddings and ancillary events; harvest-your-own operations; farmers’ markets; or natural resource-based activities. The activities may qualify as agritourism activities whether or not a participant pays to view or to participate in the activity;

(3) “Agritourism building” means any building or structure or any portion thereof that is used for one (1) or more agritourism activities;

(4) “Agritourism professional” means any person, including employees or authorized agents acting on behalf of the agritourism professional, who is engaged in the business of providing one (1) or more agritourism activities;

(5) “Inherent risks of agritourism activity” means those dangers or conditions that are an integral part of an agritourism activity, including certain hazards, such as surface or subsurface conditions; natural conditions of land, vegetation, or water; the behavior of wild or domestic animals; and the ordinary dangers of structures or equipment used in farming and ranching operations; and

(6) “Participant” means any person, other than the agritourism professional, who engages in an agritourism activity.

History:

Amended by 2017 Ky. Acts ch. 185,§2, eff. 6/29/2017. Added by 2012 Ky. Acts ch. 100,§1, eff. 7/11/2012.

KY Rev. Stat. 247.801 Definitions for KRS 247.800 to 247.810 (Kentucky Revised Statutes (2023 Edition))

§ 247.802. Duties of agritourism program

The agritourism program shall perform all duties necessary to carry out the purposes of KRS 247.800 to 247.810, including but not limited to:

(1) Coordinating efforts to educate the general public about the importance of Kentucky’s agricultural heritage and industry;

(2) Providing support, education, and resource materials for all interested persons, to include but not be limited to existing Kentucky agritourism businesses, displaced tobacco farmers and others engaged in agribusiness within the state, and other Kentuckians with the intent of developing an agritourism business. The agritourism program shall provide this assistance in the following areas, to include but not be limited to:

(a) Agritourism opportunities, networks, product development, and entrepreneurship;

(b) Agritourism funding opportunities, including but not limited to grants, loans, and partnerships; and

(3) Working and partnering with federal, state, and local organizations to carry out the purposes of KRS 247.800 to 247.810;

(4) Reporting to the Agritourism Advisory Council, as created in KRS 247.804, annually or at the request of the chair; and

(5) Considering the recommendations of the Agritourism Advisory Council, in accordance with KRS 247.806(2).

History:

Amended by 2022 Ky. Acts ch. 215,§3, eff. 7/13/2022. Effective: 6/25/2009

Amended 2009, Ky. Acts ch. 16, sec. 64, effective 6/25/2009. — Amended 2005, Ky. Acts ch. 95, sec. 49, effective 6/20/2005. — Created 2002, Ky. Acts ch. 250, sec. 2, effective 7/15/2002.

KY Rev. Stat. 247.802 Duties of agritourism program (Kentucky Revised Statutes (2023 Edition))

§ 247.806. Duties of Agritourism Advisory Council

The duties of the Agritourism Advisory Council shall include but not be limited to the following:

(1) Review and make recommendations on the development of agritourism marketing, based upon the report from the agritourism program in accordance with KRS 247.802; and

(2) Make recommendations to the agritourism program as necessary, in keeping with the program’s purposes stated in KRS 247.800.

History:

Amended by 2022 Ky. Acts ch. 215,§5, eff. 7/13/2022. Effective: 7/15/2002

Created 2002, Ky. Acts ch. 250, sec. 4, effective 7/15/2002.

KY Rev. Stat. 247.806 Duties of Agritourism Advisory Council (Kentucky Revised Statutes (2023 Edition))

§ 247.808. Members of Agritourism Advisory Council appointed by Commissioner – Terms – Chair – Meetings – Vacancies – Compensation

(1) Members of the Agritourism Advisory Council appointed by the Commissioner of Agriculture shall be appointed for four (4) year terms. Sitting members shall be eligible for reappointment.

(2) The Agritourism Advisory Council shall elect a chair and vice chair from its membership.

(3) The Agritourism Advisory Council shall meet annually or at the request of the chair. A quorum of the council shall consist of eight (8) members, and a majority of members present at any duly called meeting may act upon any matter before it for consideration.

(4) In the event of a vacancy, the appropriate appointing entity may appoint a replacement member who shall hold office during the remainder of the term so vacated.

(5) Members of the Agritourism Advisory Council shall serve without compensation.

History:

Amended by 2022 Ky. Acts ch. 215,§6, eff. 7/13/2022. Amended by 2012 Ky. Acts ch. 100,§5, eff. 7/11/2012. Created 2002, Ky. Acts ch. 250, sec. 5, effective 7/15/2002.

KY Rev. Stat. 247.808 Members of Agritourism Advisory Council appointed by Commissioner – Terms – Chair – Meetings – Vacancies – Compensation (Kentucky Revised Statutes (2023 Edition))

§ 247.809. Liability of agritourism professionals – Protection – Defenses – Damages

(1) Except as provided in subsection (2) of this section:

(a) An agritourism professional is not liable for injury to or death of a participant resulting exclusively from the inherent risks of agritourism activities, so long as:

1. The warning contained in KRS 247.8091 is posted as required; or

2. The agritourism professional has a signed release from the participant indicating that the participant has received written notice of the warning contained in KRS 247.8091; and

(b) No participant or participant’s representative can maintain an action against or recover from an agritourism professional for injury, loss, damage, or death of the participant resulting exclusively from any of the inherent risks of agritourism activities. In any action for damages against an agritourism professional for agritourism activities, the agritourism professional shall plead the affirmative defense of assumption of the risk of agritourism activities by the participant.

(2) Nothing in subsection (1) of this section prevents or limits the liability of an agritourism professional if the agritourism professional:

(a) Commits an act or omission that constitutes negligence or willful or wanton disregard for the safety of the participant, and that act or omission proximately causes injury, loss, damage, or death to the participant; or

(b) Has actual knowledge or reasonably should have known of:

1. A dangerous condition on the land, facilities, or equipment used in the activity; or

2. The dangerous propensity of a particular animal used in the activity; and does not make the danger known to the participant, and the danger proximately causes injury, loss, damage, or death to the participant.

(3) Any limitation on legal liability afforded by this section to an agritourism professional is in addition to any other limitations of legal liability otherwise provided by law.

History:

Added by 2012 Ky. Acts ch. 100,§2, eff. 7/11/2012.

KY Rev. Stat. 247.809 Liability of agritourism professionals – Protection – Defenses – Damages (Kentucky Revised Statutes (2023 Edition))

§ 247.8091. Warning notices to be posted where agritourism activities are conducted

(1) Every agritourism professional shall post and maintain signs that contain the warning notice specified in subsection (2) of this section. The signs shall be placed in a clearly visible location at the entrance to the agritourism location and at the site of the agritourism activity. The warning notice shall consist of a sign in black letters, with each letter to be a minimum of one (1) inch in height. Every written contract entered into by an agritourism professional for the provision of professional services, instruction, or the rental of equipment to a participant, whether or not the contract involves agritourism activities on or off the location or at the site of the agritourism activity, shall contain in clearly readable print the warning notice specified in subsection (2) of this section.

(2) The signs and contracts described in subsection (1) of this section shall contain the following notice of warning:

“WARNING

Under Kentucky law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if the injury or death results exclusively from the inherent risks of the agritourism activity and in the absence of negligence. You are assuming the risk of participating in this agritourism activity.”

(3) Failure to comply with the requirements concerning warning signs and notices provided in this section shall prevent an agritourism professional from invoking the privileges of immunity provided by KRS 247.809.

History:

Added by 2012 Ky. Acts ch. 100,§3, eff. 7/11/2012.

KY Rev. Stat. 247.8091 Warning notices to be posted where agritourism activities are conducted (Kentucky Revised Statutes (2023 Edition))

Bradley v. Louisville Mega Cavern, LLC, 2022-CA-0828-MR (Ky. Ct. App. May 19, 2023)

Posted: October 2, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Indoor Recreation Center, Kentucky, Release (pre-injury contract not to sue) | Tags: Agritourism, Amusement Park, assumption of the risk, Kentucky, Mega Quest, Mega Quest Aerial Challenge, OSHA, Release, Underground Amusement Park, Waiver | Leave a comment

To Read an Analysis of this decision see:

Interesting case where a release stopped claims for poor rescue at an underground amusement park in Kentucky.

Bradley v. Louisville Mega Cavern, LLC, 2022-CA-0828-MR (Ky. Ct. App. May 19, 2023)

ANTHONY BRADLEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MITZI WESTOVER APPELLANTS
v.
LOUISVILLE MEGA CAVERN, LLC APPELLEE

No. 2022-CA-0828-MR

Court of Appeals of Kentucky

May 19, 2023

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE ANNIE O’CONNELL, JUDGE ACTION NO. 18-CI-004436

BRIEF FOR APPELLANTS:

Brenton D. Stanley

Jason Swinney

Louisville, Kentucky

Molly B. Stanley

Louisville, Kentucky

Kevin C. Burke

Jamie K. Neal

Louisville, Kentucky

BRIEF FOR APPELLEE:

Maxwell D. Smith

Ashley K. Brown

Betsy R. Catron

William J. Barker II

Lexington, Kentucky

BEFORE: CALDWELL, DIXON, AND ECKERLE, JUDGES.

OPINION

ECKERLE, JUDGE:

Anthony Bradley, Individually and as Administrator of the Estate of Mitzi Westover (collectively, “the Estate”) appeals from a judgment of the Jefferson Circuit Court that confirmed a jury verdict in favor of Louisville Mega Cavern, L.L.C. (“LMC”). The Estate argues that the trial court abused its discretion in its evidentiary rulings and in its instructions to the jury. Finding no abuse of discretion, we affirm.

I.
Facts and Procedural History

LMC operates an underground adventure park on the site of a former limestone mine in Louisville, Kentucky.^[1] LMC operates several attractions on the site, including an underground, aerial adventure ropes course called Mega Quest. On August 17, 2017, Mitzi Westover, her husband Anthony Bradley, and her niece, Hanna Folk, purchased tickets for Mega Quest. Prior to taking part in any activity at LMC, they were required to read and execute a “Participant Agreement” (“the Agreement”). The Agreement describes the course as follows:

The Mega Quest aerial challenge course is self-guided and includes short ziplines, sky bridges and walkways, (some inclined), located high in the cavern and some consisting of planking supported by steel cables and cable handrails. Mega Quest Participants are responsible for making all Equipment Transfers on their own after watching a training video, the careful viewing of which is extremely important and receiving instructions and training from tour guides using special equipment. The age limit for the Mega Quest challenge course is five years old. Participants must be able to reach a height of 50 inches with the palm of the hand with an outstretched arm while standing flatfooted on the floor, and weigh less than 310 pounds.

In addition, the Agreement addressed medical and safety concerns, stating:

The activities are designed for Participants of average mobility and strength who are in reasonably good health. Underlying medical problems including for example obesity, high blood pressure, cardiac and coronary artery disease, pulmonary problems, pregnancy, arthritis, tendonitis, other joint and muscular skeletal problems, or other medical, physical, psychological and psychiatric problems, may impair the safety and wellbeing of Participants on the course. All such conditions may increase the inherent risks of the experience and cause Participants to be a danger to themselves or others and Participants therefore must carefully consider those risks before choosing to participate, and they must fully inform the Provider or its staff of any issues, in writing, prior to using the Facilities. Provider reserves the right to exclude anyone from participating because of medical, safety, or other reasons it deems appropriate. Participant . . .: (1) represents that each Participant or Minor Participant is physically able to participate in the activities without being a danger to themselves or to others; (2) acknowledges that participation is purely voluntary, and done so in spite of the risks (3) is not pregnant, nor under the influence of alcohol, illegal drugs, or impairing legal drugs; (4) agrees to abide by all instructions provided by the Provider or the Provider’s staff; (5) will not make any adjustments to zipline or challenge course equipment but, instead, will allow all adjustments to be made only by or with the assistance of Provider or Provider’s staff; (6) will not intentionally flip over or invert while riding on the ziplines.

The Agreement goes on to identify “inherent” risks in the Mega Cavern:

Serious injuries can occur in zipline courses, challenge course tours, and bike park activities including the risk of injury or death. Risks include among others the following: falls, contact with other participants and fixed or falling objects, and moving about or being transported over the sometimes uneven terrain and grounds on which the activities are initiated and conducted[.] . . . The physical risks range from small scrapes and bruises to bites and stings, broken bones, sprains, neurological damage, and in extraordinary cases, even death. These risks, and others, are inherent to the activities that is, they cannot be eliminated without changing the essential nature, educational and other values of the experience. In all cases, these inherent risks, and other risks which may not be inherent, whether or not described above must be accepted by those who choose to participate.

Following these disclosures, the Agreement states that the participant understands the nature of the activities and voluntarily assumes the risks involved. This provision also states that LMC “has no duty to protect against the risks of illness, injury and death associated with these activities inherent and otherwise, and whether or not described above, including those which may result from negligent acts or omissions of other participants or staff.”

The Agreement also included a “Release and Indemnity” provision, stating that each participant will release, hold harmless, and indemnify LMC for any injuries caused by the activity, including claims of negligence and gross negligence. This section further states that the participant agrees as follows:

not to sue [Provider] for any liability for causes of action, claims and demands of any kind and nature whatsoever, including personal injury and death, products and premises liability and otherwise, that may arise out of or relate in any way to my . . . enrollment or participation in Provider’s programs. The claims hereby indemnified against include, among others, claims of participants and members of my . . . family, arising out of losses caused by, or suffered by me . . . . The agreements of release and indemnity include claims of negligence of a Released Party including without limitation claims of gross negligence, but not claims of willful injury.

The Agreement concluded with bolded language stating:

WARNING

Under Kentucky law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if injury or death results exclusively from the inherent risks of the agritourism activity and in the absence of negligence. You are assuming the risk of participating in this agritourism activity. KRS^[2] 247.800-247.8010.

On July 31, 2018, Bradley, individually and as administrator of Westover’s Estate, brought this action against LMC asserting claims of personal injury and wrongful death. Bradley separately asserted a claim for loss of spousal consortium. LMC moved for summary judgment based on the “Release and Indemnity” provisions in the Agreement. LMC also argued that it was entitled to agritourism immunity under KRS 247.809. The Trial Court denied the motion for summary judgment, concluding that the pre-injury release was not enforceable. The Court also determined that LMC was not entitled to immunity under KRS 247.809.

Prior to trial, the Estate moved to exclude any reference to the Agreement, arguing that it was not relevant based on the Court’s finding it was unenforceable. LMC responded that the Agreement was relevant to show she had been informed of the risks of the activity, and that she had agreed she was able to participate without being a danger to herself or others. The Trial Court agreed with LMC and allowed introduction of the Agreement.

The Estate filed a motion for a new trial pursuant to CR^[3] 59.01. The Trial Court denied the motion and entered a judgment dismissing based upon the jury’s verdict. The Estate now appeals. Additional facts will be set forth below as necessary.

II.
Standard of Review

A trial court is vested with broad discretion in granting or denying a new trial, and its decision will not be reversed unless it was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Since the Trial Court had the direct opportunity to consider the evidence and the conduct of the parties, any doubts must be resolved in favor of the Trial Court. CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 73 (Ky. 2010).

In this case, the Estate first argues that it was entitled to a new trial because the Trial Court erroneously admitted certain evidence. We review the Trial Court’s evidentiary rulings for abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. at 581. More specifically, a court abuses the discretion afforded it when “(1) its decision rests on an error of law . . . or a clearly erroneous factual finding, or (2) its decision . . . cannot be located within the range of permissible decisions.” Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 2004) (cleaned up).

III. Admission of the Agreement into Evidence

The Estate first raises several issues relating to the Trial Court’s admission of the Agreement into evidence. Based on the Trial Court’s finding that the Release and agritourism-immunity provisions in the Agreement were unenforceable, the Estate filed a motion in limine to exclude the Agreement or any reference to it at trial. The Estate argued that the Release provisions were irrelevant and likely to confuse the jury with matters not at issue.

In response, LMC noted that the Agreement set out the risks of the activity, including to persons with health issues. By signing the Agreement, Westover stated that she was aware of the risks, she was physically capable of performing the Mega Quest course, and that she was not under the influence of any illegal or legal intoxicating drugs. LMC argued that the disclosures in the Agreement were relevant to show that Westover failed to exercise ordinary care in undertaking the Mega Quest course. LMC further argued that the Agreement was relevant to show that Westover failed to inform LMC of her medical conditions or her medications.

Subsequently, the Estate requested a limiting instruction advising the jury that the Release was unenforceable, but “you may consider the ‘Participant Agreement’ for the purpose of determining whether Mitzi Westover was aware of the risks associated with the ‘Mega Quest’ ropes course.” The Trial Court declined to provide this instruction to the jury.

Under KRE^[4] 401, relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Under KRE 402, “[a]ll relevant evidence is admissible” unless otherwise excluded by the law or rules of evidence. “Evidence which is not relevant is not admissible.” KRE 402. Relevance is established by any showing of probativeness, however slight. Springer v. Commonwealth, 998 S.W.2d 439, 449 (Ky. 1999). However, under KRE 403, even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”

The Estate cites two out-of-state cases holding that it is prejudicial error to admit an unenforceable liability-limiting agreement. Matador Production Co. v. Weatherford Artificial Lift Systems, Inc., 450 S.W.3d 580, 594 (Tex. App. 2014); and Blue Valley Co-op v. National Farmers Organization, 600 N.W.2d 786, 793-96 (Neb. 1999), overruled on other grounds by Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019). However, in both cases there were no claims that the agreements were relevant for any reason except as a waiver of liability. Matador, 450 S.W.3d at 595; Blue Valley, 600 N.W.2d at 794. In this case, the Trial Court expressly found that the Agreement was relevant to the disputed issues of negligence. Those issues included whether LMC notified Westover of the inherent risks of the activity, as well as any risks that the activity may have posed to individuals with limited mobility or medical conditions.

LMC further argued that the Agreement was relevant to determine the adequacy of its warnings. The Trial Court also concluded that the Agreement was a party admission by Westover under KRE 801A(b). By signing the Agreement, the Trial Court found that Westover manifested her assent to and adoption of the disclosures in the Agreement, as well as her own representations that she was physically capable of performing the activity. Obviously, the Estate raised other disputed issues of negligence, including whether LMC staff was adequately trained and had access to proper equipment in the event of an emergency.

While the Agreement may not have been admissible to prove that Westover waived or released LMC from liability for its own negligence, it was otherwise relevant to show whether Westover was informed of the risks of the Mega Quest course, as well as whether she properly informed LMC of any physical or medical conditions and medications that may have affected her safety on the course. Because these issues were relevant to the disputed issues of negligence, we conclude that the Trial Court did not abuse its discretion by allowing LMC to introduce the Agreement into evidence.

The more significant question is whether the Agreement’s probative value was substantially outweighed by its prejudicial effect. The Estate contends that the Release and Indemnity language was likely to confuse the jury about the ultimate issue of liability. Specifically, the Estate argues that the language may have misled the jury into believing that Westover had waived her right to claim negligence by LMC.

The Trial Court must make three basic inquiries when making a determination under KRE 403: (1) assessment of the probative worth of the evidence whose exclusion is sought; (2) consideration of the probable impact of specified, undesirable consequences likely to flow from its admission (i.e., “undue prejudice, confusion of the issues, or misleading the jury, . . . undue delay, or needless presentation of cumulative evidence”); and (3) a determination of whether the harmful effects from admission exceeds the probative worth of evidence. Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012) (citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996), overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008)). The task of weighing the probative value and undue prejudice of proffered evidence is inherently factual and, therefore, within the discretion of the Trial Court. Ross v. Commonwealth, 455 S.W.3d 899, 910 (Ky. 2015).

Here, the Estate asserts the jury was likely to be confused or misled by the Release and Indemnity language in the Agreement. But the Estate does not point to any testimony, evidence, or argument that emphasized the language or suggested that it was controlling as to LMC’s liability. Furthermore, the Trial Court redacted the bolded language excluding liability for injury or death arising from an agritourism activity, except for the assumption-of-risk language, but the Trial Court did not redact the Release and Indemnity provision at the Estate’s request. Under the circumstances, the Estate has not shown the prejudicial effect of the Agreement substantially outweighed its probative value.

Along similar lines, the Estate requested an instruction advising the jury that the Agreement’s Release and Indemnity language was unenforceable. The proposed instruction stated that “you may not determine that [LMC] is immune from lawsuit. However, you may consider the ‘Participant Agreement’ for the purpose of determining whether Mitzi Westover was aware of the risks associated with participation in the ‘Mega Quest’ ropes course.” The Estate takes the position that it was entitled to this limiting instruction under KRE 105(a), which provides as follows:

When evidence which is admissible as to one (1) party or for one (1) purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly. In the absence of such a request, the admission of the evidence by the trial judge without limitation shall not be a ground for complaint on appeal, except under the palpable error rule.

As discussed above, the Agreement was relevant and admissible as it related to the disputed issues of negligence and as a party admission. But the Agreement was not admissible for LMC to avoid liability under its waiver and release provisions. Indeed, the construction and enforceability of a written instrument are matters of law for the Trial Court to decide, not the jury. See
Morganfield National Bank v. Damien Elder & Sons, 836 S.W.2d 893 (Ky. 1992), and Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998). The Estate points out that KRE 105 required the Trial Court to give the instruction “upon request.” Consequently, the Estate argues that the Trial Court’s failure to give the instruction constitutes reversible error.

In denying the request, the Trial Court took the position that KRE 105 required the Estate to move for an admonition to the jury at the time the Agreement was introduced, and it was not a proper matter for jury instructions. The Kentucky Supreme Court addressed this issue in St. Clair v. Commonwealth, 140 S.W.3d 510 (Ky. 2004). In that case, a defendant waited until the close of evidence to request a limiting instruction as to the appropriate purpose of certain evidence pursuant to KRE 105. The Court held that

[a]lthough the substantive distinction between admonitions and instructions is not always clear or closely hewn to, we interpret the first word of KRE 105(a), i.e., “when,” to mean that the request for a “limited purpose” admonition must be made at the time that the evidence in question is admitted and no later than after the direct examination at which the evidence is introduced.

Id. at 559 (emphasis in original) (internal quotation marks and citations omitted). More recently, our Supreme Court reiterated this point, holding that, “[a]lthough it is within the trial court’s discretion to determine when the admonition should be given, it must be requested ‘no later than after the direct examination’ where the evidence is introduced.” Posey v. Commonwealth, 595 S.W.3d 81, 87 (Ky. 2019) (quoting St. Clair, 140 S.W.3d at 559). Because the Estate failed to request an admonition at the time the Agreement was introduced, we may only review the Trial Court’s denial of an instruction for palpable error.

In the civil context, CR 61.02 defines “palpable error” as an error that affects the substantial rights of a party. An appellate court may review an error and grant appropriate relief, even though the issue is insufficiently raised or preserved for review, “upon a determination that manifest injustice has resulted from the error.” “Manifest injustice” means that “if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006) (interpreting language in RCr^[5] 10.26, which has been construed “identically” to CR 61.02. See Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323, 338 (Ky. 2018)) (citing Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000)).

Having said this, the mere possibility of prejudice is not enough to show manifest injustice. The Estate must show a likelihood – “a reasonable possibility” – that, but for the failure to give the instruction, a different result would have occurred. Parker v. Commonwealth, 482 S.W.3d 394, 407-08 (Ky. 2016). “Implicit in the concept of palpable error correction is that the error is so obvious that the trial court was remiss in failing to act upon it sua sponte.” Nami Res., 554 S.W.3d at 338 (Ky. 2018) (quoting Lamb v. Commonwealth, 510 S.W.3d 316, 325 (Ky. 2017)).

Prior to trial, the Estate sought to exclude introduction of the Agreement as irrelevant. The parties extensively litigated this matter, resulting in the Trial Court’s ruling that the Release portions of the Agreement were unenforceable, but that the Agreement was admissible for other purposes. Prior to introduction of the Agreement, the parties also discussed whether portions of the Agreement should be redacted. Based on these discussions, the Trial Court redacted a significant portion of the emphasized language. The Trial Court may well have concluded that the Estate’s decision not to request an admonition was a strategic choice to avoid emphasizing the remaining language in the Agreement.

At trial, LMC emphasized the language in the Agreement describing the risks of the activity and addressing the health and safety concerns. But as noted above, LMC neither argued that the Agreement was controlling as to liability, nor did it suggest that Westover waived her right to recover for any negligence on its part. Therefore, we must conclude that the Estate failed to establish that the Trial Court’s declination to give the limiting instruction amounted to palpable error.

IV. Instructions on LMC’s duties

The Estate also argues that the Trial Court erred by failing to give complete jury instructions on the issue of LMC’s duties. The Trial Court’s instruction advised the jury that LMC had the following duty:

to exercise ordinary care for the safety of its patrons. “Ordinary Care,” as applied to [LMC], means such care as you would expect an ordinarily prudent company engage[d] in the same type of business to exercise under similar circumstances.

The Estate’s proposed instruction included the “ordinary care” language, but also stated LMC’s general duty included the following specific duties:

to make the condition of the “Mega Quest” ropes course reasonably safe; and

(1) to discover unreasonable risks of harm associated with the “Mega Quest” ropes course; and either

(a) take active steps to make the risks safe; or

(b) give adequate warning of those risks.

The Estate’s proposed instruction further defined “unreasonable risk” as:

one that is recognized by a reasonable company in similar circumstances as one that should be avoided or minimized, or one that is in fact recognized by [LMC]. Even if you find that [LMC] adequately warned of the risks associated with participation in the “Mega Quest” ropes course, you may find that [LMC] failed to exercise ordinary care by failing to adopt further precautions against those risks, if it was foreseeable that, despite the warning, some risk of harm remained.

The Estate argues that it was entitled to instructions on the specific duties supporting its cause of action against LMC. A party plaintiff is entitled to have its theory of the case submitted to the jury if there is any evidence to sustain it. Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 250 (Ky. 1995), overruled on other
grounds by Martin v. Ohio Cnty. Hosp. Corp., 295 S.W.3d 104 (Ky. 2009). However, Kentucky law generally requires the use of “bare bones” instructions. Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005) (citing Lumpkins v. City of
Louisville, 157 S.W.3d 601, 605 (Ky. 2005)). “Bare bones” instructions are proper if they correctly advise the jury about “what [it] must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof” on that issue. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky. 1992). The question on appeal is whether the allegedly erroneous instruction misstated the law. Id. at 823.

In Smith v. Smith, 563 S.W.3d 14, 18 (Ky. 2018), our Supreme Court held that a single, “ordinary care” jury instruction does not properly instruct the jury when liability is based upon land classifications or the possessor’s duty based upon those classifications. Id. But in that case, there was a factual issue as to whether the plaintiff was a licensee, a public invitee, or a business invitee. Id. at 17-18. Thus, the separate instruction was necessary for the jury to determine the applicable standard of ordinary care.

In this case, the Estate argued that LMC’s duties of ordinary care included duties to make the premises reasonably safe, to discover unreasonable risks of harm associated with the ropes course, and to take active steps to make those risks safe or to give adequate warning of those risks. Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 913-14 (Ky. 2013). But as noted in Shelton, the issue of duty is a purely legal one, while the standard of care is a factual question. Id. at 914. Here, there was no question that Westover was a business invitee.

Although the Estate asserts that LMC breached its duties to discover unreasonable risks of harm associated with the ropes course, its claims at trial were that LMC failed to use ordinary care in the operation of the ropes course and failed to give Westover adequate warning of the potential risks arising from negligence by either LMC or Westover. Any additional duties could be further explained during closing argument. Olfice, Inc., 173 S.W.3d at 230. Since these duties are adequately covered by the duty of ordinary care, the Trial Court did not abuse its discretion by denying the Estate’s proffered instruction.

V.
Admission of Evidence of Hydrocodone in Westover’s urine

The Estate additionally argues that the Trial Court abused its discretion by admitting evidence of hydrocodone in Westover’s urine. Prior to trial, the Estate filed a motion in limine to exclude a toxicology report showing that Westover had oxycodone and oxymorphone in her blood and hydrocodone in her urine when she was admitted to the hospital. Based on the toxicology report, LMC’s expert witness, Dr. William Smock, was prepared to testify that Westover had levels of oxycodone and hydrocodone in her system, but he was not able to definitively state that these levels caused any impairment or intoxication. Dr. Smock stated that Westover had a prescription for oxycodone, and that oxymorphone is a metabolite of oxycodone. But he could not locate her prescription for hydrocodone. LMC’s other medical expert, Dr. Greg Davis, provided similar testimony.

The Estate argues that the evidence and testimony should be excluded because neither physician could state with any reasonable certainty that Westover was impaired or intoxicated when she undertook the Mega Quest course. The Estate also contends that LMC sought to use the testimony as improper character evidence, branding Westover as an illicit drug user. But, as previously noted, LMC responded that the evidence was relevant because Westover represented that she was not under the influence of any impairing drugs. The Trial Court agreed with LMC and denied the Estate’s motion.

Generally, an expert’s opinion must be couched in terms of probability or reasonable certainty, and opinions which are expressed using language such as “possibility” may be properly excluded as speculative. Combs v. Stortz, 276 S.W.3d 282, 296 (Ky. App. 2009) (citing Schulz v. Celotex Corp., 942 F.2d 204, 208-09 (3d Cir. 1991)). But unlike in Calhoun v. CSX Transp., Inc., No. 2007-CA-001651-MR, 2009 WL 152970, at *13 (Ky. App. Jan. 23, 2009), aff’d in part, rev’d in part, 331 S.W.3d 236 (Ky. 2011), Drs. Smock and Davis were not testifying that Westover’s use of opiates caused her to be impaired or contributed to her injury. They merely testified as to the presence of those substances in her blood and urine at the time of her death.

While KRE 404(b) protects against the introduction of extrinsic act evidence when the evidence is offered solely to prove character, it allows such evidence to be introduced for a proper purpose. Burton v. Commonwealth, 300 S.W.3d 126, 136 (Ky. 2009). This evidence was relevant to show that Westover failed to disclose her use of these substances when she executed the Agreement. Furthermore, the testimony of Drs. Smock and Davis was subject to vigorous cross-examination, during which both admitted that there was no evidence that Westover was impaired.

The Estate maintains that LMC sought to portray Westover as an illicit user of hydrocodone. However, Dr. Davis conceded that Westover may have had a prescription for hydrocodone even though the prescription could not be located at the time of trial. The Estate also presented evidence that trace amounts of hydrocodone may have been found in Westover’s prescription for oxycodone. In addition, the Estate does not point to any evidence, testimony, or argument at trial suggesting that Westover should be denied relief because of her use of these drugs. Because the evidence was relevant and not unduly prejudicial, we cannot find that the Trial Court abused its discretion by allowing evidence and testimony concerning the presence of hydrocodone in Westover’s urine.

VI. Limitation on Cross-Examination

The Estate also argues that the Trial Court abused its discretion by limiting its ability to cross-examine LMC witnesses regarding standards and literature published by the Occupational Health and Safety Administration (“OSHA”). At trial, LMC’s owner, Jim Lowry, testified that LMC was not required to train its staff in first aid or CPR. LMC’s former safety manager, Kimberly Coleman, also testified that it was her understanding that LMC was not required to train its employees to the standards set out by OSHA and the Association for Challenge Course Technology (“ACCT”). When the Estate sought to cross-examine these witnesses about these standards, LMC responded that the OSHA standards were only applicable to employees and not participants in the activity. The Trial Court agreed and precluded the Estate from cross-examining the witness on this matter.

The Estate contends that the OSHA standards and literature were relevant to determine the standard of care expected of an operator of a ropes course and zip line such as LMC. But while industry standards or manuals can inform the standard of care that will satisfy a duty, neither establishes the duty itself. Spencer v. Arnold, No. 2018-CA-000479-MR, 2020 WL 4500588, at *7 (Ky. App. Jul. 24, 2020) (citing Carman v. Dunaway Timber Co., Inc., 949 S.W.2d 569, 571 (Ky. 1997)). As the Trial Court noted, the OSHA regulations and literature specifically referred to the duties owed to employees, not participants. Furthermore, Kentucky had not adopted the ACCT standards at the time of Westover’s injuries. Given the limited relevance of these materials, the Trial Court did not abuse its discretion by restricting the Estate’s cross-examination on these matters.

VII. Exclusion of portions of deposition testimony by LMC’s CR 30.02(b) representative

Finally, LMC designated General Manager Jeremiah Heath as its corporate representative pursuant to CR 30.02(6). Following Heath’s testimony at trial, the Estate sought to read two portions of Heath’s deposition into the record. Specifically, the Estate wanted to introduce deposition testimony in which Heath stated that he had informed LMC employees that they were not allowed to perform CPR. LMC objected, noting that the Estate had an opportunity to cross-examine Heath with his deposition testimony. The Trial Court agreed and sustained LMC’s objection.

The Estate notes that CR 32.01(b) permits the deposition of a corporate representative to be “used by an adverse party for any purpose.” The Estate further notes that the rule permits testimony to be read to the jury even though the designee is available to testify in person. Lambert v. Franklin Real Est. Co., 37 S.W.3d 770, 779 (Ky. App. 2000)(citing Kurt A. Philipps, Jr., 6 Kentucky Practice, CR 32.01 (5th ed. 1995)). However, that language is limited to use of testimony “admissible under the rules of evidence as though the witness were then present and testifying.” Hashmi v. Kelly, 379 S.W.3d 108, 112 (Ky. 2012) (quoting CR 32.01).

While the rule clearly permitted the Estate to cross-examine Heath with his prior deposition testimony, we agree with the Trial Court that his deposition testimony was not separately admissible after he testified. Use of the deposition in this manner would have been substantially prejudicial because LMC would have lacked the opportunity to rebut or explain the testimony without recalling Heath. See Graves by & Through Graves v. Jones, No. 2019-CA-0880-MR, 2021 WL 1431851, at *8 (Ky. App. Apr. 16, 2021). Furthermore, the Trial Court noted that it had sustained several of LMC’s objections during those portions of Heath’s deposition. Those sustained objections would have further limited the admissibility of those portions of the deposition. Given these considerations, we cannot find that the Trial Court abused its discretion by denying the Estate’s untimely request to read these portions of Heath’s deposition testimony to the jury.

VIII. Conclusion

The Trial Court’s instructions accurately stated the applicable law and correctly advised the jury about what it needed to believe from the evidence to return a verdict in favor of the Estate. We also conclude that the medical evidence concerning the presence of hydrocodone in Westover’s urine was relevant and not unfairly prejudicial. Finally, the Trial Court did not abuse its discretion by limiting the Estate’s cross-examination on OSHA standards or by declining to read Heath’s deposition into the record after he had testified. Consequently, we find no basis to disturb the jury’s verdict.

Accordingly, we affirm the judgment of the Jefferson Circuit Court.

ALL CONCUR.

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Notes:

^[1] The property comprising the former limestone mine is owned by Louisville Underground, L.L.C. The Estate named that entity as a party defendant in its complaint. However, it was dismissed by agreed order prior to trial and is not a party to this appeal.

^[2] Kentucky Revised Statutes.

^[3] Kentucky Rules of Civil Procedure.

^[4] Kentucky Rules of Evidence.

^[5] Kentucky Rules of Criminal Procedure.

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Snowmobiles are an inherent risk on ski slopes in California.

Posted: September 25, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Collision, Inherent Risk, LLC., Mammoth Mountain Ski Area, Release, Snowmobile, Waiver | Leave a comment

Appellate court decision finds release stopped claims & plaintiff assumed the risk of hitting a stopped snowmobile on the slope.

Citation: Valter v. Mammoth Mountain Ski Area, LLC (Cal. App. 2023)

State: California, California Court of Appeals, Third District, Mono

Plaintiff: JOHN VALTER

Defendant: MAMMOTH MOUNTAIN SKI AREA, LLC

Plaintiff Claims: improperly drove the snowmobile up the mountain & defendant was grossly negligent

Defendant Defenses: doctrine of primary assumption of risk, and assumed the risk of colliding with a snowmobile when he signed Mammoth’s liability waiver.

Holding: For Defendant

Year: 2023

Summary

A season pass holder at Mammoth ski area was injured when he hit a snowmobile that was parked on the slopes. The California appellate court held the season pass stopped the plaintiff’s claims and also found that a snowmobile on the slopes is an inherent risk of skiing.

Facts

Mammoth is a ski resort in Mammoth Lakes. As is common in the ski industry, it uses snowmobiles in its operations and has taken certain steps to reduce the chance of collisions with guests. It has, for instance, created a snowmobile training program and developed training materials that, among other things, require its snowmobile drivers to limit their speed in congested areas, to ride on the side of the run providing the best visibility, to yield to guests, and to use flags and headlights when driving in public areas. It has additionally posted signs at the top of ski lifts warning that snowmobiles “may be encountered at any time,” included the same warning in its trail map, and, in its liability waiver for season-pass holders, required season-pass holders to acknowledge that “Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.”

Mammoth has also established preferred routes for its snowmobile drivers with the intent to limit collision risks. One of these routes formerly covered two ski runs called St. Moritz and Stump Alley. Stump Alley is a larger, popular run that ends at the base of the resort; St. Moritz is a smaller run that branches off Stump Alley. To provide a rough visualization of these runs, think of a rotated lowercase y-as in, A-with the longer line representing Stump Alley and the shorter line representing St. Moritz. For the designated route covering these runs, snowmobile drivers were instructed to stay to their left when going up St. Moritz; then, where St. Moritz meets Stump Alley, to make a slight right turn onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and then, after passing this area, to travel across Stump Alley and then stay to their left when going up Stump Alley. A map of Mammoth’s preferred snowmobile routes shows the St. Moritz-to-Stump Alley route. As depicted in the map, the route crosses Stump Alley at an upward diagonal from right to left and then goes up the left of Stump Alley. Mammoth began developing this route at some time before 1989 and used it until late 2016.

In early 2016, one of Mammoth’s lift maintenance employees, Joshua Peters, drove his snowmobile up St. Moritz on his way to a lift maintenance station. Peters- who had completed Mammoth’s snowmobile safety training-drove up St. Moritz at about 15 miles per hour, slowed to about five miles per hour before exiting St. Moritz, and then continued at this speed on Stump Alley as he looked to cut across the run. Valter, an expert skier, was skiing down the left side of Stump Alley at the same time and began decelerating from about 30 miles per hour to make a left turn onto St. Moritz. Peters said he saw Valter from a distance of about 80 to 120 feet, slowed further, and then stopped. But Valter never saw Peters. Valter made three or four controlled turns a after Peters first saw him, and he then collided with Peters’s snowmobile on Stump Alley. Valter suffered significant injuries as a result.

Two other witnesses saw the accident. One was another Mammoth employee who was driving a snowmobile behind Peters. He afterward told an officer that Peters had stopped and that Valter was looking over his left shoulder just before the collision- though Valter told the same officer that he never looked over his shoulder. Another witness saw the accident from above on a ski lift. In a written statement, he said the snowmobile was driving slowly up Stump Alley diagonally from “skier[‘]s left to right”-as in, from the left side to the right side of the run from the perspective of a skier going downhill. He added that the snowmobile had slowed almost to a stop at the time of impact. But, he wrote, it was “almost as though [the] skier never saw [the] snow mobile”; the skier traveled in a “controlled line but it was directly into [the] snow mobile.”

Several photographs taken immediately after the collision show the snowmobile’s appearance and position at the time of the accident. The snowmobile is dark blue and flies an orange flag at its back. It is not obstructed by any apparent obstacles. Another photograph taken after the accident, which the parties marked up during Peters’s deposition, shows Peters’s path from St. Moritz to Stump Alley. Both parties accept that the photograph accurately depicts his path. The photograph (together with other photographs of the scene) shows Peters entered Stump Alley from the far left of St. Moritz near a sign describing different runs and then headed up Stump Alley at a sharp diagonal. According to a diagram that Mammoth personnel made after the accident, the distance between this sign and Peters’s snowmobile at the place of the collision was 44 feet.

Before the accident, and as a condition of holding a season pass, Valter signed a liability waiver. In the waiver, Valter agreed he “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles,” “agree[d] that these risks and dangers are necessary to the sports of Skiing and Snowboarding,” “AGREE[D] TO EXPRESSLY ASSUME ANY AND ALL RISK OF INJURY OR DEATH which might be associated with [his] participation in the SPORTS,” and “AGREE[D] NEVER TO SUE, AND TO RELEASE FROM LIABILITY, Mammoth . . . for any . . . injury . . . which arises in whole or in part out of [his] . . . participation in the SPORTS . . ., including without limitation those claims based on MAMMOTH’S alleged or actual NEGLIGENCE ….”

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

The defendant was a season pass holder at Mammoth Mountain ski area. In obtaining the season pass, the plaintiff signed a release.

As a condition of receiving a season pass for Mammoth, Valter expressly agreed to assume the risk of Mammoth’s negligence. In the context of sports, including for skiing, courts have consistently found these types of agreements are valid when they excuse liability for ordinary negligence-that is, for “a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.”

Releases in California stop all claims for ordinary or simple negligence. In order to defeat a release, the plaintiff must prove that the defendant was grossly negligent.

… Valter’s signing of the liability waiver bars him from suing Mammoth for ordinary negligence-which Valter does not dispute. We further conclude Valter cannot show Mammoth’s conduct rose to the level of gross negligence. The undisputed facts show, among other things, that snowmobiles are common at ski resorts, that Mammoth posted signs warning guests that snowmobiles could be encountered at any time, that Valter expressly acknowledged the risk of colliding with a snowmobile and agreed to assume the risk of Mammoth’s negligence, that Mammoth trained Peters on snowmobile safety, that Peters drove his snowmobile slowly and stopped or almost stopped before the collision, that his snowmobile flew an orange flag, and that, in the photographs taken immediately after the accident, no obstacles are shown obstructing a downhill skier’s ability to see Peters and his snowmobile in the area of the collision.

The plaintiff attempted to argue that several of the actions that Mammoth did were gross negligence, however, the court did not accept any of those arguments.

Although Valter argues Mammoth’s conduct here could be found grossly negligent for several reasons, we find none of his arguments persuasive. He first contends Mammoth could be found grossly negligent because the presence of snowmobiles is not an inherent part of skiing. But whether or not the presence of snowmobiles is an inherent part of skiing, we are at least satisfied that no reasonable person could find Mammoth grossly negligent simply because it used snowmobiles. The undisputed facts, again, show that snowmobiles are common at ski resorts. Mammoth’s former health and safety manager, for instance, explained that in the ski industry, snowmobiles are used “on a daily basis for lift maintenance, lift operations, and for ski patrol emergency transport.” Valter, who said he had skied about a 1,000 days in his lifetime on various mountains, never alleged differently. He instead acknowledged he commonly saw snowmobiles on ski runs that were open to the public. The undisputed facts, moreover, show that a ski resort’s use of snowmobiles can improve safety. Snowmobiles, for example, allow lift maintenance technicians (like Peters) to respond quickly when a chair lift maintenance safety issue arises that requires an immediate response. Again, Valter never alleged differently and, on appeal, states he does not disagree “that snowmobiles are very useful and efficient in the operation of a ski resort.” On these undisputed facts, we cannot say that Mammoth’s decision to use snowmobiles evidenced “either a ‘” ‘want of even scant care'”‘ or ‘” ‘an extreme departure from the ordinary standard of conduct,'” ‘” even though, as Valter asserts elsewhere in his brief, snowmobiles (like most, if not all, snow equipment) pose some potential risk to skiers.

What is significant here is another court, based on the plaintiff’s facts has held that the plaintiff failed to prove enough issues to prove gross negligence. In the past, the plaintiff simply had to claim gross negligence, and the courts would throw out the release and proceed to trial. Nowadays, the courts are tired of every claim arguing gross negligence and taking it upon themselves to find the facts the plaintiff is arguing cannot rise to the level of gross negligence.

On top of that, the arguments set forth by the court can now be used by other defendants to prove they were not grossly negligent. Those arguments are:

The presence of snowmobiles is not an inherent part of skiing.
no reasonable person could find Mammoth grossly negligent simply because it used snowmobiles
undisputed facts, again, show that snowmobiles are common at ski resorts
undisputed facts, moreover, show that a ski resort’s use of snowmobiles can improve safety
Snowmobiles, for example, allow lift maintenance technicians (like Peters) to respond quickly when a chair lift maintenance safety issue arises that requires an immediate response

The next section of the decision is where the plaintiff stretched the facts to far. The plaintiff argued that Mammoth never told skiers where the designated snowmobile routes were. However, the court found the routes were not as important as all the warnings that Mammoth put in front of its guests about snowmobiles.

Second, Valter suggests Mammoth could be found grossly negligent because it never shared its designated snowmobile routes with its guests. But Mammoth repeatedly cautioned guests about snowmobiles and explained they could be encountered at any time. Signs at the top of the lifts at Mammoth, for instance, explain that snowmobiles “may be encountered at any time.” The Mammoth trail map says the same: Snowmobiles “may be encountered at any time.” And the liability waiver that Valter signed further warned about the presence of snowmobiles and the risk of collisions, stating that Valter “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.”

And failing to share the routes with the skiers at Mammoth did not rise to the level of gross negligence.

But we conclude no reasonable person could find Mammoth grossly negligent simply because it failed to share these maps-a practice that no ski resort, as far as Valter has shown, has adopted.

The arguments then descended into arguments about distance. Was the snowmobile, which was stopped at the time, off the route, not known by the plaintiff and if so by inches or yards.

Third, Valter argues Mammoth could be found grossly negligent because Peters failed to follow Mammoth’s preferred snowmobile route for St. Moritz. According to the preferred snowmobile route, again, Peters should have stayed to his left when going up St. Moritz; then, where St. Moritz meets Stump Alley, made a slight right onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and then, after passing this area, traveled across Stump Alley and up the left side of Stump Alley. But according to Valter, Peters instead “drove up near the middle of St. Moritz” (rather than the left), “made a looping right turn near the top of St. Moritz at its intersection with Stump Alley” (rather than a slight right), and “intend[ed] to drive up the right side of Stump Alley” (rather than drive across Stump Alley and up the left side of the run). As a result, Valter asserts, Peters was “several yards from where he was supposed to be before trying to cross Stump Alley” at the time of the accident.

However, the court found this really did not matter because the plaintiff could not show his statements were valid. There was nothing in the evidence that showed the plaintiff’s allegations were true. “But much of Valter’s alleged facts lack evidentiary support.“ Then the court held that even if the snowmobile driver was “off route” it did not matter because the plaintiff could not prove that being off route made any difference.

The plaintiff argued Mammoth was grossly negligent for designating the snowmobile route in question as being grossly negligent.

He reasons that Mammoth should have chosen a different route because it knew Stump Alley was a popular run, knew skiers “coming down Stump Alley ‘hug’ the tree line on the left in order to turn left onto St. Moritz,” acknowledged that these trees would have grown substantially since the snowmobile routes were initially established around 1989, knew snowmobiles on St. Moritz pose a potential danger to skiers, knew other routes were available, and never conducted any safety, feasibility, or visibility studies for the route. He adds that Mammoth’s new snowmobile routes no longer use St. Moritz (though he says the “change was not made in response to Valter’s injury”) and that Mammoth now uses snowmobile corridors that are marked off with stakes and ropes.

The court rejected that argument on two different grounds. The first was the ski area still inundated its guests with warnings about snowmobiles being on the runs. The second was the plaintiff could not prove that selecting that run for a snowmobile route was done incorrectly, without planning or in any way increased the risk to skiers.

Finally, the plaintiff was shot down because the stretches in the facts went too far for the court. “But Valter’s allegations cannot be squared with the undisputed facts.”

First, in his own telling, he was traveling at a speed less than 30 miles per hour, as he was decelerating from 30 miles per hour at the time of the collision. And second, according to Peters’s undisputed testimony, Valter managed to make three or four controlled turns after Peters saw him- demonstrating that the issue is more that Valter failed to notice Peters than that he lacked time to avoid Peters. At any rate, because Valter raised this argument for the first time in his reply brief, and without good cause, we find the argument forfeited.

The court said the arguments made by the plaintiff, individually or as a group failed to show any gross negligence on the part of the defendant ski area.

So Now What?

The definition of inherent, is changing either by statute or by law. California has no ski area safety statute. However, the courts have expanded the definition of inherent risk to include snowcats, Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344
and now snowmobiles. California now joins Colorado in finding a parked snowmobile is an inherent risk of skiing, see A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.

Inherent risk used to be those risks that were part and parcel of the activity, without the activity of man. Now, in skiing at least by statute or law, the inherent risks of skiing have expanded. You go skiing or boarding you assume the risk of hitting something on the slopes that is either natural or manmade.

For other articles about the inherent risks see:

A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.

Hitting a rock while skiing in Montana is an inherent risk of the sport. Other interesting statements by the court though create an interesting decision.

Inherent Risk is the part of any sport and is assumed by participants when undertaking the activity.

Minnesota Supreme Court allows skier v. skier lawsuits in MN. Colliding with a tree is an inherent risk but colliding with a person is not?

Plaintiff cannot assume a risk which is not inherent in the activity or which he does not know.

Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing.

Your release cannot use the term “inherent risk” as the description of the risks, it creates no release at all.

What do you think? Leave a comment.

James H. “Jim” Moss

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

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To Read an Analysis of this decision see: Defendant found criminal guilty for failing to have a federal permit to operate on a lake owned by the United States Army Corps of Engineers (USACE)

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To Read an Analysis of this decision see: Release validity was based on whether brother had authorized brother to sign electronic release for him.

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To Read an Analysis of this decision see: New Jersey ski area pushes “indemnification” clause in release too far and gets told by court its release is an adhesion contract.

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