Snow machine accident at Mountain View Grand Resort & Spa: Is liability release enforceable?

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In this week’s article, we examine the case of Lizzol v. Brothers Property Management Corp., 2016 WL 6459570 (D.N.H. 2016)(Lizzol I) and Lizzol v. Brothers Property Management Corp., 2007 DNH 183 (D.N.H. 2017)(Lizzol II) wherein the Court noted in Lizzol II that “This case turns on the enforceability of contractual waivers of negligence that plaintiffs executed prior to participating in a guided snowmobile tour. During the tour plaintiffs’ snowmobile crashed, causing them serious injuries. Defendants moved for summary judgment, asserting that plaintiffs’ claims-all of which sound in negligence-are barred by the waivers they executed. In opposing defendants’ motion, plaintiffs advanced five arguments. (A) the Release does not apply to claims arising from negligent instruction or guidance on the trails, (B) the Release does not state with sufficient clarity that OBK (Out Back Kyack, Inc.) Is a party to the contract, © the Release is not enforceable against Jennifer Lizzol because she did not properly sign the contract, (D) the Release is unenforceable because it violates public policy, and (E) the Release is invalid because plaintiffs were fraudulently induced to sign…By prior Order (Lizzol I) the Court addressed and rejected each of plaintiffs’ arguments…In their motion to alter or amend judgment (Lizzol II) plaintiffs assert that the Court misapprehended their argument that the contractual waivers of negligence claims are unenforceable on public policy grounds…The Court disagrees”.

Terror Targets Update

Parkland, Florida

In Oppel, Kovaleski, Mazzei & Goldman, Tipster’s Warning to F.B.I. on Florida Shooting Suspect: ‘I know He’s Going to Explode’, nytimes (2/23/2018) it was noted that “The warnings that law enforcement officials received about Nikolas Cruz were anything but subtle. ‘I know he’s going to explode’, a woman who knew Mr. Cruz said on the F.B.I.’s tip line on Jan. 5. Her big worry was that he might resort to slipping ‘into a school and just shooting the place up’. Forty days later, Mr. Cruz was accused of doing just that, barging into his former high school in Parkland, Fla., and shooting 17 people to death…The tip that the F.B.I. received in early January from someone close to Mr. Cruz suggested that he owned a gun and had talked about carrying out a school shooting. But the bureau failed to investigate, even though the tipster said Mr. Cruz had a ‘desire to kill people, erratic behavior and disturbing social media posts”.

Mopti, Mali

In Four UN peacekeepers killed in Mali, travelwirenews (2/28/2018) it was noted that “The UN mission in Mali is one of the most dangerous peacekeeping operations in the world…Four UN peacekeepers have been killed and four more were wounded after their vehicle hit an explosive device in Mali’s central Mopti region…The incident happened a day after six Malian soldiers were killed in another blast”.

Germany

Germany confirms government computers breached by hackers, travelwirenews (2/28/2018) it was noted that “German media said Russian-linked hackers had infiltrated government computers…The German government has confirmed that it is investigating a cyberattack against government computer networks, according to local media reports. The country’s interior ministry said on Wednesday that the incident was ‘isolated and [had been] brought under control within the federal government”.

Danish ‘Ghetto’ Crimes: Double Penalties, Please

In ‘The hammer will fall harder’: Danish govt plans double punishments for ghetto’ crimes, travelwirenews (2/28/2018) it was noted that “The Danish government has announced plans to double penalties for certain crimes committed in so-called ‘ghetto’ areas. These districts are characterized by a higher than average immigrant population. Justice Minister… told Danish daily Berlingske that ‘vandalism, theft or threats would be reason (for double penalties). That means the hammer will fall extra hard in those areas”.

Searching For Iran Plane Crash Site

In Erdbrink, Iran Plane Crash Leads to Search-and-Rescue Effort at 14,500 feet, nytimes (2/19/2018) it was noted that “Search-and-rescue workers continued to scour a mountainous region in Iran on Monday for a plane that crashed a day earlier, most likely killing all 66 people on board. Because of bad weather conditions, the rescue teams have been unable to fly over the crash site in helicopters. Instead they have climbed Mount Dena, which has an elevation of about 14,500 feet. As of Monday afternoon, the teams had not found any debris from the plane, which was operated by Iran Aseman Airlines”.

Most Dangerous U.S. Vacation Places

In Byrnes, The Most Dangerous Vacation Places in the U.S., msn (2/22/2018) it was noted that “The FBI has broken down data on violent crimes throughout the U.S. Murder, rape, robbery and aggravated assault fall into that category. It covers the January to June 2016-2017 time period. The agency has included cities with a population of at least 100,000 residents. It collects these data through the Uniform Crime Reporting (UCR) Program, which includes the number of reported offences (28 slides with city by city data)”.

Bypassing Airport Lines

In Rosenbloom, How to Bypass Airport Lines With the Tips of Your Fingers, nytimes (2/28/2018) it was noted that “Moving through the airport is becoming increasingly high-tech and, for many frequent fliers, faster. The percentage of air travelers who used automated methods (like Global Entry kiosks) during the international arrivals process soared to more than 50 percent in fiscal year 2017, up from 3 percent in fiscal 2013, according the United States Customs and Border Protection. In February, the (TSA) expanded its expedited screening program, T.S.A. PreCheck, to Air France, KLM Royal Dutch Airlines, Brussels Airlines, Philippine Airlines and World Atlantic, bringing the number of airlines participating in the program to close to 50 across some 200 airports. The Global Entry program-where members scan their fingerprints and passengers at kiosks instead of waiting in immigration lines-is also growing. It added another 11 international airports in November”.

Flying Taxis, Anyone?

In Wakabayashi, Flying Taxis May Be Years Away, but the Groundwork Is Accelerating, nytimes (2/27/2018) it was noted that “Flying cars are just starting to inch their way out of science fiction. But that is not stopping some companies from planning for flying taxi services. A growing collection of tech companies, aircraft manufacturers, automakers and investors are betting that fleets of battery powered aircraft will give rise to air taxi services, perhaps as soon as the next decade. Some of those taxis, the companies hope, may even use artificial intelligence…No one can say for certain if these new vehicles will turn out to be a real business, but many companies are already worried about being left behind”.

Our Drowning Coast

In Sack & Schwartz, Left To Louisiana’s Tides, A Village Fights For Time, nytimes (2/24/2018) it was noted that “For the community of Jean LaFitte, the question is less whether it will succumb to the sea than when-and how much the public should invest in artificially extending its life. From a Cessna flying 4,000 feet above Louisiana’s coast, what strikes you first is how much is already lost…Ever widening bayous course through what were once dense wetlands and a cross-stitch of oil field canals stamp the marsh like Chinese characters. Saltwater intrusion, the result of subsidence, sea-level rise and erosion has killed off the live oaks and bald cypress…A relentless succession of hurricanes and tropical storms-three last season alone-has accelerated the decay. In all, more than 2,000 square miles, an expense larger than the state of Delaware, have disappeared since 1932″.

Life On A Remote Island

In Seelye, Life on an Island: Silence, Beauty and a Long Wait for the Ferry, nytimes (2/23/2018) it was noted that “On remote islands off the coast of Maine, small bands of residents stay through the long winter. They embrace the emptiness and a frontier sensibility…The rocky sea islands reflect Maine’s independent character. They are steeped in rich history and are cherished by the many Down Easterners who visit in the summer. But the ban on full-time residents has diminished. The number of Maine islands where people live year-around has dwindled to just 15 today, from a high of about 300 a century ago. This winter, only 20 people are living on Matinicus. State agencies and nonprofit organizations have tried to stem the loss of year-around populations by giving islanders guarantees of a certain number of lobster licenses, grants for affordable housing and upgrades to their internet speed”. Enjoy.

The Beijing Waldorf Astoria

In Bradsher & Stevenson, Beijing Takes Over Anbang, Insurer That Owns Waldorf Astoria, nytimes (2/22/2018) it was noted that “The Chinese government said on Friday that it had seized control of Anbang Insurance Group, the troubled Chinese company that owns the Waldorf Astoria hotel and other marquee properties around the world, and it had charged the company’s former chairman with economic crimes. The move is Beijing’s biggest effort yet to rein in a new kind of globally ambitious Chinese company. Anbang and other like it spent billions of dollars around the world buying up hotels and other high-profile properties. The deals illustrated China’s growing economic might but fed into concerns that rising debt levels could slow growth in the world’s second-largest economy, behind the United States”.

Bullitt Hotel: Inspired By Steve McQueen Movie

In Freehill-Maye, In Belfast, a Hotel Inspired by a Steve McQueen Movie, nytimes (2/24/2018) it was noted that “The Bullitt Hotel, named for the actor’s famous film, offers comfortable rooms, artist’s lectures and a rooftop bar. No car chases, though…Northern Ireland’s-and perhaps the world’s-sole Steve McQueen-themed hotel was opened…in October 2016 with 42 rooms. Last October it opened a rooftop garden terrace and bar…Named for the late star’s car-chasing 1968 detective thriller of that title, the hotel calls itself no frills, but the design is fun and stylish, Visitors liked the theme so much that soon after its opening, two older women tried to swipe a six-foot canvas of McQueen smoking a cigarette behind aviator shades”.

Measles In Europe Quadrupled

In McNeil, Measles Cases in Europe Quadrupled in 2017, nytimes (2/23/2018) it was noted that “Measles cases soared in Europe last year, and at least 35 children died of the highly infectious disease, according to the World Health Organization. The virus found its way into pockets of unvaccinated children all over the continent, from Romania to Britain. The number of recorded cases quadrupled, to 21,215 in 2017 from 5,273 in 2016, a record low. The biggest outbreak last year was in Romania, where there were 5,562 cases and which accounted for most of the deaths. The country’s large rural Roma population-also known as Gypsies-often do not vaccinate their children and may not take them to hospitals promptly when they fall ill. The country also has an underfunded public health system”.

JFK Airport Mismanaged

In McGeehan, How Boston’s Airport Bounced Back From The Storm That Crippled J.F.K. nytimes (2/27/2018) it was noted “The first storm of 2018 created such a disaster at Kennedy that a former federal transportation secretary is investigating all that went wrong. At Boston’s international airport, the storm was a one-day event soon to be forgotten. At Logan, there were no inbound planes stranded on the tarmac for hours, helpless and awaiting rescue. No scheduled overseas arrivals had to turn around in the air or reroute to other airports. Hordes of travelers were not separated from their baggage for days or weeks. Why were the experiences at these two major American airports, separated by only 200 miles, so dramatically different? The answer may be that, though both airports are run by public authorities, they are managed in far different ways. At Logan, the Massachusetts Port Authority, known as Massport, maintains near-complete control; at Kennedy, the Port Authority of New York and New Jersey has shifted much of its management of its terminals to airlines and other private companies, leaving the bulk of the responsibility for dealing with emergencies out of the agency’s hands”.

Skip Housekeeping, Please

In Ellin, How Skipping Hotel Housekeeping Can Help the Environment and Your Wallet, nytimes (2/27/2018) it was noted that “The question came at check-in: Did I want to forgo housekeeping for the two days I was staying at the Flamingo in Las Vegas in exchange for a $10 a day food and beverage credit? Huh? …But more and more (hotels) are doing just that, and extending rebates, hotel points and other perks for those who take them up on their offer. It’s a smart business move, industry experts say. ‘A lot of hotels were becoming more aware of what consumers like’…’They received criticism from younger travelers. ‘This is ridiculous that they’re changing my towels and sheets every day. I don’t need that, it does harm to the environment’. According to MMGY Global’s Portrait of American Travelers, 2017-2018, 13 percent of United States travelers say that they have selected a travel service provider specifically for environmental reasons, up from 11 percent in 2014. Thirty-eight percent said they would be willing to pay more for a travel service provider who demonstrates environmental responsibility, a 13 percent increase from 2014″.

Soaring Travel Fraud

In Soaring Travel Fraud Costs Airlines Over $1 Billion, travelwirenews (2/26/2018) it was noted that “Recent estimates reveal fraudsters are scamming the travel industry of billions of dollars each year-online card fraud costs more than $1 billion annually, fake hotel websites swindled Americans out of $3.0 billion, and some travel agencies have been hit by tens of thousands of dollars in fraudulent bookings. Last October, international law enforcement agencies detained 195 individuals suspected of airline ticket fraud during a five-day sting operation…In January 2016, the International Air Transport Association (IATA) announced that payment fraud cost(s) the travel industry an estimated $858 million per year. Airlines absorbed roughly $639 million of those losses while travel agents and other travel providers accounted for the remaining $219 million”.

Fly Airbnb, Please

In Airbnb Still Eyeing Air Travel: What Could It Mean For Agents?, travelwirenews (2/28/2018) it was noted that Airbnb has just unveiled a big expansion into luxury and business travel, but the company may not stop there. …Airbnb Co-Founder, CEO and Head of Community Brian Chesky said that the company has ‘seriously considered’ expanding into aviation with the goal of becoming a ‘one-stop for travel’. In the interview Chesky compared the approach to that of another tech giant, Amazon, which has grown from an online book-selling business into a complete end-to-end retail experience”.

“Coast-Huggers” Go West, Please

In Go West; outback Queensland tourism campaign urges cast-huggers, travelwirenews (2/26/2018) it was noted that “A coast-hugging road trip is a well-known, must-do Australian holiday, but a new tourism campaign is encouraging tourists to go west to outback Queensland. Drive North West Queensland was developed by local councils, development groups and the Outback Queensland Tourism Association and includes two self-drive routes between Cairns and Townville. The two self-driving tours launch on the coast and direct tourists to remote regions in the north west”.

Tunisian Underground House, Anyone?

In The last residents of Tunisia’s underground houses, travelwirenews (2/27/2018) it was noted that “In the arid valleys of southern Tunisia’s Djebel Dahar region, people have lived for centuries in underground houses whose earthen casing provides protection against searing summer heat and winter winds. But in recent decades, rural depopulation has meant fewer people live in the homes, which are composed of rooms hewn into the walls of an excavated circular courtyard”.

California Driverless Cars To Be Tested

In Driverless cars, without a driver this time, to be tested on California roads, travelwirenews (2/27/2018) it was noted that “On Monday, the state Department of Motor Vehicles announced it will allow autonomous cars on public roads without an approved driver. That means cars with no one in the driver’s seat can start being tested and driven throughout the state once the regulations go into effect April 2, A remote ‘driver’ far from the actual vehicle can be in control. Once the new rules are implemented the DMV can start issuing permits to autonomous car companies, like Uber, Waymo, Tesla and other big players in the race to put autonomous vehicles on the road”.

Don’t Fence Pronghorn Antelopes In, Please

In Robbins, Animals Are Losing Their Vagility, or Ability to Roam Freely, nytimes (2/19/2018) it was noted that “Snow comes early to the Teton mountain range and when it does the white-bottomed pronghorn that live here get the urge to move. Following an ancient rhythm, they migrate more than 200 miles to the south, where the elevation is lower, winter is milder, and grass is easier to find. Come the spring green-up, they make the second half of the round trip, returning to the Grand Teton National Park. After thousands of years, biologists are concerned about the future of this migration pattern. While there have been efforts to protect the journey, such as highway overpasses and antelope-friendly fences, some new barriers are looming. Most immediate is the prospect of 3,500 new gas wells planned on federal land at the southern end of the pronghorn’s migratory path. And then there’s the nearby Jonah Natural Gas Field, which is already intensively developed”.

Cape Town ‘Day Zero’ Push Back

In Pena, Cape Town Pushes Back ‘Day Zero’ as Residents Conserve Water, nytimes (2/20/2018) it was noted that “Cape Town residents have drastically lowered their water use, allowing their drought-plagued city to push back the dreaded ‘Day Zero’ when the system is expected to run dry, by more than 10 weeks. Just three weeks ago, officials were predicting that Cape Town would reach Day Zero-a first for a major city in modern times-in late April, forcing four million residents to line up at collection points to receive water rations from trucks. Now, after three postponements, the city predicts that it will reach that crisis point on July 9″.

Stop The Windsor Hum, Please

In Mele, There’s a Persistent Hum in This Canadian City, and No One Knows Why, nytimes (2/19/2018) it was noted that “A persistent noise of unknown origin, sometimes compared to a truck idling or distant thunder, has bedeviled a Canadian city for years, damaging people’s health and quality of life, numerous residents say. Those who hear it have compared it to a fleet of diesel engines idling next to your home or the pulsation of a subwoofer at a concert. Others report it rattling their windows and spooking their pets. Known as the Windsor Hum, this sound in Windsor, Ontario, near Detroit, is unpredictable in its duration, timing and intensity, making it all the more maddening for those affected”.

Conquering High-Priced Shanghai

In Peterson, Conquering High-Priced Shanghai, From Dumplings to Modern Art, nytimes (2/28/2018) it was noted that “Shanghai is, in a way, a late bloomer. Cities like Beijing and Xian have been political and commercial powerhouses for centuries. Heading into the 19th century, Shanghai was a modest trading port that exploded after being ‘opened’ to the world by Western imperialism. What became known as the Paris of the East laid the groundwork for what Shanghai is today: un unparalleled economic powerhouse and megacity with 24 million people. Packed with luxury brands and overrun with shiny Bentleys and Audis, it’s also impossibly expensive-kryptonite for a penny-pincher like me. Luckily, I was able to spend a four-day weekend there denting, but not breaking, the bank. You can start saving money by staying on the fringes of the city center where rooms at the Peninsula can run $900 per night. I settled on the Jinjang Metropolo Hotel Classiq Shangahi…and paid 576 yuan per night, about $90, for a perfectly comfortable ‘Extreme Sassy’ double room”.

Travel Law Case Of The Week

In Lizzol I the Court noted that the “controlling facts appear to be as follows. The Lizzols traveled to the (Mountain View Grand Resort & Spa in Whitefield, New Hampshire)… arriving in the afternoon. Prior to their arrival, Jennifer had scheduled a snowmobile lesson and tour for herself, her husband and her son, as well as for a few of their friends, through Mountain View Grand’s website. The lessons and guided tour were provided by Out Back Kayak, Inc. (OBK). Upon arrival at the resort, the Lizzols quickly put their luggage in their rooms, and then left to participate in the snowmobile activity, including a lesson and a tour. The Lizzols were directed by the hotel activities desk to a small building on the grounds, where they met a Mountain View Grand employee, who told them to quickly pick out helmets and sign a two-page document that bore the following heading Snow Machine Tour”.

The Waiver & Release

“Acknowledgment Of Risks And Hazards. Covenant Not To Sue. Waiver And Release Of Liability (the Release). The Lizzols felt rushed during the process…but both Jennifer and Michael had an opportunity to review the Release and each signed and initialed it. (Jennifer executed the release on behalf of her minor son, T.G.). The Release includes the following language: I…hereby voluntarily agree to release, waive…the field operator, the event promoter, the owners of the premises used to conduct the snowmobile activity, their owners, agents…from any and all claims…for bodily injury, property damage, wrongful death…I am giving up any rights that I may have…for the negligent acts or other conduct…”

Brief Instructions

“After signing the Release and obtaining their helmets, the Lizzols met their tour instructor, OBK employee Martin Welch, and his assistant Jennifer Welch. The Lizzols had no snow machine experience. Welch provided a very brief introduction and instruction regarding operation of the snow machines. He explained how to accelerate, brake and turn. He told them that the tour would never travel faster than 20 miles per hour. Welch then assisted the tour members with their snowmobile selections and the tour began.

The Tour & Tragedy

“Jennifer and Michael rode on a two-person snow machine, with Jennifer operating the vehicle. They were directly behind Welch in the line of snowmobiles. Their son, T.G., rode by himself and was farther back in the line. Welch drover rather quickly during the tour and far exceeded the self-imposed 20 miles per hour speed limitation he had announced earlier. Jennifer did not keep pace and, as Welch increased his speed during the second half of the tour, Jennifer lost sight of him. Jennifer attempted to follow Welch’s tracks in the snow, but, in doing so, lost control of the snowmobile, which left the path and flipped over. Jennifer, Michael and the snow machine fell down a steep embankment that was approximately seventy-five feet high”.

The Lawsuit

“Both Jennifer and Michael suffered physical injuries, but Jennifer’s were particularly severe. She lost consciousness, had collapsed lungs, 10 broken ribs and multiple injuries to her spine and back. The plaintiffs later learned that other customers may have complained that Welch drove too quickly during earlier snow machine tours. After the accident, Mountain View Grand manager…asked Michael if Welch had been ‘going to fast again’. Jennifer, Michael and their son brought suit against (defendants) asserting claims for negligence, including negligent training and supervision, vicarious liability, bystander liability and loss of consortium. The defendants move for summary judgment, arguing that the contractual Release is both valid and enforceable”.

tomdickerson 2 | eTurboNews | eTN

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org.

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