In this week’s article we examine and discuss a recent case, Littlejohn v. Timberquest Park At Magic, Inc., 116 F. Supp 3d 422 (D.Vt. 2015), involving a tourist, Joseph Littlejohn, who was injured during “an adventure zip-line course at Magic Mountain Ski Area in Londonderry, Vermont”. Of particular interest in this case is the enforceability of a “Release of Liability, Waiver of Claims, Indemnification and Arbitration Clause” which Mr. Littlejohn signed which seeks to insulate the defendant from all liability for his injuries, limits any recovery therein to $75,000 if a lawsuit is filed and/or requires mandatory arbitration of all claims.
Terror Targets Update
In Smale, Germany Proposes Tougher Measures to Combat Terrorism, nytimes.com (8/11/2016) it was noted that “The German Government proposed a broad range of measures on Thursday to bolster security and combat terrorism, its strongest official response so far to two recent attacks by terrorists pledging loyalty to the Islamic State and a deadly shooting rampage in Munich”.
St. Gallen, Switzerland
In Steinmetz, Violent attack on St. Gallen train in Switzerland, eturbonews.com (8/13/2016 it was noted that “A 27-year-old Swiss citizen attacked a train Saturday afternoon on route to St. Gallen, a known Swiss resort region. He threw a burning liquid at passengers and started stabbing”.
In Machete-wielding man, shouting ‘Allahu Akbar’ attacks Belgian police officers, eturbonews.com (8/6/2016) it was noted that “Two female police officers were injured after a machete-wielding man, shouting, ‘Allahu Akbar’, attacked them near the police station in the Belgian city of Charleroi, the authorities said”.
In Steinmetz, Thailand resort towns under attack: Deadly explosion in Hua Hin, Phuket, Surat Thani, eturbonews.com (8/12/2016) it was noted that “Bombs are exploding in several resort cities in Thailand. At least ten people are dead and the body count is rising. There were at two blasts in a major tourist district of Thailand”.
In “Uniform of extremist Islamism”; French resort bans burkini swimsuits, eturbonews.com (8/12/2016) it was noted that “The French resort of Cannes has banned full-body, head-covering swimsuits from its beaches, citing security reasons-a measure some have criticized as a discriminatory anti-Muslim move that worsens religious tensions”.
Zika, Zika, Zika
In Santora & Schmidt, As New York Fights Zika Virus, Official Turn Their Focus to Sex, nytimes.com (8/12/2016) it was noted that “Specifically, public health officials were trying to devise the most effective way of communicating the growing threat posed by sexual transmission of the virus-a threat that could significantly alter the course of the epidemic. While mosquitoes are the primary carriers of the virus…health officials are concerned that the threat of sexual transmission remains little understood, largely underpublicized and worryingly underestimated”.
Return Of The Rats
In New York Today, Return of the Rats, nytimes.com (8/17/2016) it was noted that “In the unwelcome-news category: City rats are out in droves…Why? ‘All the young from the spring reproduction peak are now off and running about and learning about life’…There’s more. ‘People are out, everywhere-sitting on stoops, having barbecues-and when people are out in massive numbers and food is so abundant, there goes the trash’”.
Chaotic Night At Kennedy Airport
In Santora, From False Alarm to Panic: Inside Kennedy Airport’s Chaotic Night, nytimes.com (8/15/2016) it was noted that “Panic. It spread quickly and without warning. By the time Sunday night was over, Ms. Rosen, 32, has sprawled out under a table seeking cover, followed by a crowd of people who bolted through a secure door onto the tarmac, frantically called her sister to find what was happening and tell her that she was alive, and, finally, made a mad dash from the terminal to join mobs of travelers who thought that they be living through an episode of terror. In the end, it proved to be a false alarm”
Abductions In Puerto Vallarta, Mexico
In Steinmetz, Puerto Vallarta Restaurant abduction: No tourist involved, eturbonews.com (8/16/2016) it was noted that “According to a statement received by eTurboNews no tourist was a victim of this morning abduction of 16 restaurant guests at La Leche, a popular upscale restaurant located on a Zona Hotelera Norteis on the main tourist hotel stretch of the Mexican beach resort city of Puerto Vallarta”.
Evictions In Tulum, Mexico
In Semple, Evictions by Armed Men Rattle a Mexican Tourist Paradise, nytimes.com (8/16/2016) it was noted that “By the time Renaud Jacquet arrived at his compound of rental beach villas, invaders were crawling all over the place. They were storming through the buildings, emptying out rooms and dumping furnishings and supplies in piles outside…Similar scenes unfolded up and down the coveted stretch of Caribbean coastline in Tulum, Mexico, in June. Hundreds of men working for a security firm-carrying sticks, metal pipes and machetes, witnesses, said-raided 17 properties, including hotels, private homes, boutiques and a beach club…Yet the takeovers, which seemed to catch the property owners by surprise, were apparently legal, authorized by a judge’s order…The evictions were the most recent…in a series of court-ordered expropriations that have shaken this tourist town and stained its image as a laid-back, eco-chic retreat that has become wildly popular among tourists”.
Hepatitis Outbreak In Hawaii
In Steinmetz, Hawaii Hepatitis outbreak due to imported frozen scallops at Genki Sushi, eturbonews.com (8/16/2016) it was noted that “Fresh Sashimi, Sushi, Zensai and Makimono are popular dinners for visitors and locals on the Hawaiian Islands…While some of the more expensive Sushi restaurants service fresh local products, Genki Sushi as a national chain imported Scallops they serve raw at Genki Sushi Restaurants on Oahu and Kauai. This raw scallop has been identified by the Hawaii State Department of Health as the source for the worst hepatitis outbreak in more than two decades in Hawaii. Hawaii health officials today ordered all Genki Sushi restaurants to close immediately. This is to prevent a further outbreak”.
Positive Train Control Grants
In Steinmetz, USA: 25 Million in Grants for Positive Train Control Implementation, eturbonews.com (8/16/2016) it was noted that “The U.S. Department of Transportation’s (DOT) Federal Railroad Administration (FRA) today awarded $25 million in grants for 11 projects in six states and the District of Columbia to assist in implementing Positive Train Control (PTC)…’These grants get us a bit closer to implementing Positive Train Control-a long overdue technology that prevents accidents and saves lives’, said U.S. Transportation Secretary Anthony Foxx… PTC systems are designed to prevent certain train-to-train collisions, over-speed derailments, incursions into established work zone limits and trains going to the wrong tracks due to improper switching”.
Drunken Boaters Beware
In New Law Links Drunken Boating With Driving, New York Law Journal (8/16/2016) it was noted that “Drunken boaters in New York should soon face more severe punishment if they have previous convictions for driving other vehicles while intoxicated. A law signed by Gov. Andrew Cuomo links penalties for boating while intoxicated with prior DWI or driving-while-ability-impaired offenses. It takes effect in November. Cuomo said Tuesday that drunken drivers on the water or roadways are a menace, and the law closes a loophole to help convict them as repeat offenders”.
Travel Law Article: The Littlejohn Case
As noted by the Court “Plaintiff Joseph Littlejohn was severely injured while participating in an adventure zip-line course at Magic Mountain Ski Area…He claims that defendants negligently designed, constructed and operated the course, leading to the accident which caused his injuries…At the time of his injury, Littlejohn was seventy-six years old. He had never participated in an adventure course before”.
The Adventure Course
“The adventure course consists of a series of rope bridges, ladders, cargo nets and zip lines placed between elevated platforms constructed around tress and poles. Participants gradually gain elevation by climbing and traversing a series of uphill course elements and then return to the bottom of the course by sliding down a series of zip lines.
Smart Belays & Guy Wires
“Participants wear a climbing harness equipped with a ‘smart belay’ system that is meant to keep them attached at all times to both a safety cable and a zip line cable. The ‘smart belay’ system is intended to ensure that the participant is always attached to at least one of the cables. The trees and poles which support the course platforms are stabilized by guy wires. These guy wires are anchored at one end to the tree or pole where a course platform is located and at the other end to another nearby tree or the ground”.
Sliding Down The Guy Wire
“On the day he visited, Littlejohn was equipped with a climbing harness and was instructed how to use the smart belay system’s dual carabiners. According to Littlejohn, he was not warned that there were guy wires on the course in addition to safety cables and zip lines or that she should avoid clipping onto the guy wires. Littlejohn climbed through the uphill course elements and began to descend on the zip lines. As he was preparing to descend one of the sections of the course, he mistook a guy wire for the zip line cable. He attached his smart belay to the guy wire and slip down the guy wire. At the bottom he ran into the tree which anchored the other end of the guy wire. He suffered severe injuries”.
The Ticket & Liability Waiver
“Littlejohn’s friend Miki Conn had purchased their tickets for the adventure through TimberQuest’s website (which Littlejohn asserted) does not alert customers that they will be required to sign a liability waiver prior to participating in the adventure course…there is a notice on the website concerning the liability waiver but it appears only at the point of purchase by the customer. A company other than TimberQuest provides the ticketing, reservation and credit card services. That company’s website includes a warning to customer that they will be required to sign a liability waiver before they enter the course”.
Signing The Agreement
“When they arrived at TimberQuest…Littlejohn and Conn were each presented with a document entitled “Release of Liability, Waiver of Claim, indemnification and Arbitration Agreement”. The agreement was presented to them I digital format on an electronic device and they were instructed to read and sign it electronically”.
The Agreement’s Terms
“The agreement stated that the participant agreed to ‘waiver all claims’ and ‘assume all risks’ arising from participating in programs at the adventure course, including claims arising from negligent acts or conduct of TimberQuest, and further agreed to release and indemnify TimberQuest from liability for any injury suffered by the participant while using the course’.
The Arbitration Clause
“Under the heading ‘Arbitration’ the agreement stated that: The Participant…hereby agrees to submit any dispute arising from participation in the Programs, for which Participant intends to seek damages in excess of $75,000, to binding arbitration…In the event that Participant…files a lawsuit in any court relating to, and/or arising from, Participant’s participation in the Programs, Participant…by signing this document, stipulate[s] to a cap on Participant’s damages of $75,000, exclusive of interest and costs. As a threshold matter, the Panel, or the Court (if a lawsuit is filed) shall confirm whether the Waiver and Release contained in this Agreement are enforceable under the applicable law”.
The Law Of Vermont
“The enforceability of a contract provision providing for the waiver of a customer’s claims for negligence arising out of a recreation is a matter of Vermont law…The leading case remain Dalury v. S-K-I, Ltd., 164 Vt. 329 (1995) in which the Vermont Supreme Court rejected the exculpatory language in ski tickets by the Killington ski resort to its customers (identifying) the longstanding rule that business owners are responsible for the safety of their premises as the basis on which to strike the exculpatory provisions in the ticket…The decision recognized that the ski area-and not eh skier-had the expertise and opportunity to foresee and control hazards and to reduce negligent conduct by its employees…(The Dalury) decision rests upon two related principles: the (ski) business is open to the general public without regard to special training or ability and the premises owner is in the best position to assure the safety of visitors. These principles have remained unchanged in the cases which have followed Dalury”.
Zip-Lines Compared To Ski Areas
“The court is satisfied that attending a zip-line program is more like visiting a ski area that like taking part in a specialized high-risk sport which requires skill and expertise. Like the ski area, the zip-line sells tickets to all comers…It requires no prior training. As an excerpt from the website (indicates) this is a recreational activity open to all without restriction… ‘TimberQuest is an exhilarating treetop adventure course for the entire family. We have 20 zip lines and 75 challenges of varying difficulty. Challenges include rope bridges, ladders, cargo nets and even a course for younger children’”.
Course Design & Control
“The course is designed and controlled by defendants. There is no indication in the record that anyone needs to learn to use the course beyond an initial training class offered at the park. It is even more open to the public than skiing, which typically involves beginner’s lessons and some degree of acquired skill. The zip-line course requires no such training or skill”.
Exculpatory Clause Unenforceable
“This court’s decision to invalidate the exculpatory clause on public policy grounds falls within the principles laid down (in the Delury case) … the business cannot contract out of liability for negligence in the design, maintenance and operation of its business premises”.
The Arbitration Clause
After finding that TimberQuest may, notwithstanding the unenforceability of its exculpatory clause, still assert the common law defense of assumption of the risk at trial, the court then addressed the enforceability of the arbitration clause. After rejecting Littlejohn’s arguments that the arbitration clause is procedurally unconscionable, the court held, however, that it is substantively unconscionable since” it is obvious that the requirement that the ‘neutral arbitrator; be drawn from the ranks of the zip-line industry is unfair…Courts have long refused to enforce arbitration clauses which call for the appointment of panel members who are likely to harbor a bias in favor of one side or another”.
Lack Of Mutuality
After severing the offending clause “requiring the choice of a ‘neutral’ arbitrator who is likely to hold a bias in favor of the zip-line industry”, the court noted that while “some courts have found arbitration clauses in contracts of adhesion that required one party to go to arbitration but imposed no similar obligation on the other party to be unconscionable…this appears to be a minority position”.
“As reformed by the court, the arbitration provision is valid. Under the agreement, there is no cap on damages if the participant chooses to go to arbitration. If the participant chooses to go to court, he or she agrees to seek $75,000 or less in damages. This court only has jurisdiction over a diversity case if the amount in controversy ‘exceeds the sum of or value of $75,000’…Thus, Littlejohn may not bring suit in this court. The court accordingly dismisses plaintiff’s negligence claims for lack of subject matter jurisdiction and without prejudice to plaintiff’s right to demand arbitration”.
Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
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