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post #31 of 42
Matthias99, as for your last post you are linking to the website of the guy who sued the 7 year old in the case in question. Even according to that highly biased website, if you actually read you will see that the law in most states would not allow for a recovery given the fact at issue in Swimm. Outdoor values in part involves a recognition of the risks of an activity and taking responsibility for them. When you voluntarily go to a ski area you know other people will be sliding around, same as you, and that as a consequence occasional collisions will happen. You seem to want to ski, voluntarily, on a slope filled with other people with no set "lanes" and with varying degrees of skill and varying surfaces, but also to carry around a free option to sue a 7 year old who may run into you by accident, if you get hurt as a result. It is what it is. The good news is that in the majority of states, if you do get hurt in that instance, you would not get a plaintiff's lawyer to give you the time of day unless you paid upfront for it and even then most wouldn't touch it. It is what it is.
post #32 of 42

 

Quote:
Originally Posted by CTKook View Post
^^^ You really need to read up on this stuff, particularly assumption of risk at it relates to sports. You're confusing the move to a comparative fault regime (and away from the prior rule that "contributory negligence" was a complete bar to someone being able to successfully sue) with the question of whether express or implied assumption of the inherent risk of an activity means there was never a duty in the first place and therefore no negligence. To help you out a bit the assumption of risk defense used to be used in situations where an obvious risk was present in a situation where public policy dictates a duty of care but someone went ahead anyway -- let's say the taxi taking you from the airport to the ski resort is a real rust-bucket but you get in anyway and then a wheel falls off and you gt hurt. Aka "secondary"assumption of risk. The sports type of assumption of risk, aka "primary" assumption of risk (same person goes skiing and gets hurt by a tree in an area where people have gone off the trail before) is still around. Pretty basic. Regarding waivers, in the large majority of states they're considered in accordance with sound public policy and enforceable against claims of negligence, though they need to be carefully drafted and entered into and there are some other factual issues that may affect whether they'll be enforced in some specific cases. As much as some people on here are lawsuit-happy, thankfully the courts (including in what many think of as "progressive" states such as CA) tend to actually be less so.


Gosh, thanks for your invitation to "read up."  I would pay such advice more heed were you not patently wrong.  You can cobble together some words from wikipedia or google or whatever source you used, but that cannot pass as any understanding of the legal issue under a critical eye. 

 

Further, there was no "confusion" about anything.  The doctrine of assumption of risk is an affirmative defense.  To be sure, Rule 8(c)(1) of the Federal Rules of Civil Procedure (I am sure you have "read up," so you know that that is the section of the Rules with the heading:  "Affirmative Defenses") specifically identifies "assumption of risk" as an affirmative defense which must be affirmatively pled in a responsive pleading.  If not pled, the defense is waived.  Moreover, as an affirmative defense, the burden is on the pleader to prove that the elements of assumption of risk are met.  The cases are legion in which courts have held that the mere participation in a sporting event does not indicate that the participating party has "assumed" all risks of loss that could occur at the sporting event.
 

 

Furthermore, your ramblings regarding "sound public policy" are, stated simply, hogwash. By way of example only, the Arizona Constitution (Art. 18, sec. 5) requires that all questions of assumption of risk and waiver of liability, even when contained in an express contractual provision, be decided by the Jury.  Phelps v. Firebird Raceway, 210 Ariz. 403, 111 P.3d 1003 (2005); see also Ford v. Bynum Livestock & Comm'n Co., 674 So. 2d 600 (Ala. 1995); Moore v. Hartley Motors, 36 P.3d 628 (Alaksa 2001); Kahn v. East Side Union High School Dist., 31 Cal. 4th 990, 75 P.3d 30 (2003); Graven v. Vail Assocs., 909 P.2d 514 (Co. 1995). 

 

So, you feel free to prattle on like you actually know something and we can keep it our little secret that you don't.

post #33 of 42
^^^ I was just trying to help a brother out. Seems you don't appreciate it, and wanted to demonstrate again that you don't grasp some basic concepts. Cool. Because in the thing known as the real world assumption of risk is still very much around, particularly for sports, even in states that have gone to comparative fault. And those waivers, carefully drafted and into, are considered to be in accordance with sound public policy and enforceable. I am also always struck that those in favor of lawsuits in the context of injuries from sports skew heavily towards not having a clear view of the actual law that currently exists. It is what it is.
post #34 of 42

 

Quote:
Originally Posted by CTKook View Post
^^^ I was just trying to help a brother out. Seems you don't appreciate it, and wanted to demonstrate again that you don't grasp some basic concepts. Cool. Because in the thing known as the real world assumption of risk is still very much around, particularly for sports, even in states that have gone to comparative fault. And those waivers, carefully drafted and into, are considered to be in accordance with sound public policy and enforceable. I am also always struck that those in favor of lawsuits in the context of injuries from sports skew heavily towards not having a clear view of the actual law that currently exists. It is what it is.

 

You continue to bloviate, but actually say . . . nothing.  You keep spouting phrases like "sound public policy," but you have yet to cite any authority that supports your illfounded assertions. Seems to me you did a fairly good job of memorizing some lines from Bill O'Reilly or one of his ilk, but now that the depth of your understanding is tested, you find yourself far under the water blowing little thought bubbles.  You have even gone to the emblematic line of the person who cannot find his rear with both hands:  you claim to understand how things work "in the real world."  Ok, real world expert.  It's still our little secret.

 

post #35 of 42

Nope, I just understand how it's possible to play football, box, play soccer, and yes ski, even in comparative fault regimes, without the plaintiff's bar effectively shutting those activities down.  In the real world I think it is quite factual that they play football in AZ for instance.  There's no need to quote civil procedure to understand what that means, if you grasp the underlying law.

post #36 of 42

 

Quote:
Originally Posted by pcskier View Post

 

 

You continue to bloviate, but actually say . . . nothing.  You keep spouting phrases like "sound public policy," but you have yet to cite any authority that supports your illfounded assertions. Seems to me you did a fairly good job of memorizing some lines from Bill O'Reilly or one of his ilk, but now that the depth of your understanding is tested, you find yourself far under the water blowing little thought bubbles.  You have even gone to the emblematic line of the person who cannot find his rear with both hands:  you claim to understand how things work "in the real world."  Ok, real world expert.  It's still our little secret.

 

 

Sweet..... if you just the throw down the "Faux News" gauntlet now you will have won this argument

 

Maybe you can bring Hitler or the Nazis now and really win some points....

 

 

 

Disclaimer:  I am not a lawyer and didn't stay in Holiday Inn express last night but I lose all respect for anyone who disparages very popular talk show hosts just because they don't like their perceived politics.  I don't particularly agree with Oprah Winfrey or Phil Donahue about anything but just because something come from them doesn't make it wrong.  But you know everything.... I'm sure..... just like every liberal.....

 

I know it's nuance...I wouldn't understand

 

 

post #37 of 42

The funny thing about the Bill O'Reilly reference from pcskier is that so far as I'm aware O'Reilly has never taken a stand on sports law, period.  I'm a small-gov, socially liberal type myself but have friends who are super-psyched to see big gov back who are more appalled at the destructive, whiny narcissism of the pro-lawsuit crowd than I am; at the end of the day it comes down to basic social behavior in a way.

 

Leaving the technical legal cites out of it -- pcskier SOUNDS like he's up on AZ law for instance..which makes it curious that, in his saying that many states have done away with assumption of risk, that he does not state that AZ's "skier statute" codifies express assumption of risk language (that primary assumption of risk thingie I was mentioning) -- but while in that real world AZ's statute reads the way it reads, intraweb back and forth is the wrong place to connect with that.  Just consider a simple social "grasshole" test.  Summer's coming:  let's' say you (anyone) get invited to a friend's home for a backyard barbeque.  You're hanging out sitting on lawnchairs with the adults, the kids are running around and playing.  Fun scene.  Then, through no fault whatsoever of  your own, someone's three year old accidentally headbutts you in the eye while running around playing with the kids, opening a cut on your eybrow.  Do you a) whine like a 3-year old yourself, angrily curse the child, his parents, and your hosts, and threaten to sue everybody for failing to keep their kid away from you?  Or do you b) get down on a knee so as to not intimidate the child, tell him you know accidents happen,  go to the ER and get some stitches, and then get another beer if the cookout's still going? 

 

I chose cookout for a reason:  there's strong public policy for wanting people to have guests over, just as there's strong public policy to want people to play sports, particularly young people (one reason why we start kids on skis way before giving them a driver's license, in fact).  And the unspoken contract of understanding that in exchange for the socializing, or in exchange for being able to do the sport, you won't be a complete and utter grasshole is very analogous.  SOME people want the grasshole option.  It would be nice if they tell their hosts that before this summer's BBQ season, for sure.  Leaving that to one side, for people wanting that option a),  their choice for skiing and riding is very simple:  don't.

post #38 of 42

 

Quote:
Originally Posted by CTKook View Post

 

Skiers hit each other and/or spontaneously fall down and hurt themselves. Good kids run into things. If you want to be able to sue a kid who collides with you unintentionally in the course of play you really should take up knitting. No offense to any actually knitters out there.

x1000

post #39 of 42

 

Quote:
Originally Posted by UGASkiDawg View Post

 

 

Sweet..... if you just the throw down the "Faux News" gauntlet now you will have won this argument

 

Maybe you can bring Hitler or the Nazis now and really win some points....

 

 

 

 


An angry Rush (no, not the band) fan lashes out.  It's ok, you guys can steal the next election.
 

post #40 of 42

 

Quote:
Originally Posted by CTKook View Post
Matthias99, as for your last post you are linking to the website of the guy who sued the 7 year old in the case in question. Even according to that highly biased website, if you actually read you will see that the law in most states would not allow for a recovery given the fact at issue in Swimm. Outdoor values in part involves a recognition of the risks of an activity and taking responsibility for them. When you voluntarily go to a ski area you know other people will be sliding around, same as you, and that as a consequence occasional collisions will happen. You seem to want to ski, voluntarily, on a slope filled with other people with no set "lanes" and with varying degrees of skill and varying surfaces, but also to carry around a free option to sue a 7 year old who may run into you by accident, if you get hurt as a result. It is what it is. The good news is that in the majority of states, if you do get hurt in that instance, you would not get a plaintiff's lawyer to give you the time of day unless you paid upfront for it and even then most wouldn't touch it. It is what it is.

I'm happy to take responsibility for risks that don't involve someone else being negligent.  With lift-serviced skiing, everyone is (in theory) agreeing to rules like "you'll take reasonable precaution not to collide with other people".  So yes, I want people who do stupid things and break the rules to be held responsible for their actions, just as I would be held responsible if I did something stupid and hurt somebody because of it.  I voluntarily drive on the highway with (IMO) very similar expectations about how other people will behave and be treated in terms of liability.

 

There are situations that are either really incidental contact with unexpected consequences, or practically unavoidable, and in those cases I would agree that nobody is really at fault.  It's not that hard to come up with contrived examples -- one I came up with before was if you bumped someone in the lift line, and they fell over awkwardly and blew out their knee.  One-in-a-million freak accident.

 

You can debate whether there was actually negligence in the Swimm case.  We don't really have enough information.  I don't know enough about the precedent of things like this involving young kids.  Presumably the court would have had that discussion in excruciating detail if it actually went to trial.

 

re: your BBQ example, I wouldn't be threatening to sue, but if I were the homeowner I'd offer to pay the injured party's insurance deductible.  If the kid took a flying leap off something into me and broke my shoulder and I needed surgery and PT/rehab... the insurance companies would get to hash it out.

post #41 of 42

 

Quote:
Originally Posted by Matthias99 View Post

  I voluntarily drive on the highway with (IMO) very similar expectations about how other people will behave and be treated in terms of liability.

 

Please just stay home and ski some of that awesome nanny-state terrain and leave actual skiing to those of us who aren't litigious and are capable of accepting that skiing is not driving, and is not anything like driving.

 

Otherwise, let me know where you'll be skiing so I can be sure not to be there at the same time.  Don't need to be around any more people who don't understand skiing than necessary.

post #42 of 42

That's horrible.

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