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Old 10-21-2010   #1
latenightjoneser's Avatar
steamboat, Colorado
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Posts: 417
did tuber sue a MT city over tubing death at whitewater park?

Heard a rumor. Would love to debunk it.

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Old 10-22-2010   #2
Join Date: Feb 2006
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In most cases cities are immune from liability lawsuits. There would just be too many. In Colorado you can sue a city for a lot of things, but liability is generally not one of them.

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Old 10-22-2010   #3
The Mogur's Avatar
Oregon City, Oregon
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In the last couple of years there have been lawsuits regarding drownings at water parks in Sandusky, Ohio and somewhere in Missouri. There was also one regarding a Montana resident who drowned in a Sparks, Nevada water park. I cannot find a case in Montana.

Whether a water park in publicly owned or privately owned, the park is potentially liable for damages if someone is injured or killed due to negligence on the part of the park, its employees, or its designers.
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Old 10-22-2010   #4
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Bozeman, Montana
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liability has to be proved by a term Gross negligence(Gross negligence involves a reckless disregard for the safety of others, and may be the basis for an award of punitive damages, in addition to general and special damages. It typically involves intentional or willful indifference or lack of care. Gross negligence is a failure to use even the slightest degree of care.)http://definitions.uslegal.com/g/gross-negligence/
If they have a sign posted, this makes them immune from liability.
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Old 10-22-2010   #5
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Oregon City, Oregon
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When I was an outfitter, my insurance company required that I have all of my customers sign a standard liability waiver, which I scrupulously did. But at the same time, my company attorney advised me that there wasn't a liability waiver in the world that would stop somebody from filing a lawsuit against me, nor would it be a factor in protecting me from loss in a legal action. All it did was discourage the ill-informed from going to court. That's what the attorney said. I never had any accidents while an outfitter, so I never had to test the liability waivers.
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Old 10-22-2010   #6
Rainy Northwest, Washington
Paddling Since: 1980
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negligence, liability and immunity

In most states, if not all, you can sue the state or a local government for its negligence or the negligence of its employees acting within the scope of their official duties.

Some states have special rules for suits against the government -- notice requirements and liability caps.

Many states, particularly in the west, make landowners immune from suits by recreational users, particularly recreational users who aren't paying anything.

Dunno if a tuber sued a city. But people file lawsuits all the time for stupid crap, most of them get thrown out.
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Old 10-22-2010   #7
Rainy Northwest, Washington
Paddling Since: 1980
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Negligence is generally the failure to use the degree of care of a normal person in the same situation -- not paying attention to a pedestrian in a crosswalk, for example. Gross negligence is as described by Casper Mike - say, speeding through a school zone with your eyes closed. You can also sue for intentional acts --running over someone on purpose.
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Old 10-23-2010   #8
latenightjoneser's Avatar
steamboat, Colorado
Join Date: Feb 2004
Posts: 417
Sounds like the answer would be no. Noone has heard of any lawsuit stemming from a tuber death at a MT whitewater park? Seems like you would have heard of it, Craporadon, if one occurred.

FYI, and because there are a lot of opinions expressed on this thread, I think that, in CO, governmental entities waive their governmental immunity in cases founded on dangerous conditions of publict facilities within parks arising from negligent maintenance, but not negligent design.

Does an in-channel diversion qualify as a public facility? Possibly. Still, a Plaintiff would have to show that the in-channel diversion was so poorly maintained that it became a dangerous condition, regardless of water level.

It would appear to me that becoming injured/dying at a water park, in a man-made feature, would create a lot of obstacles for a plaintiff looking to blame the government.

Any lawsuits in CO regarding injuries at water parks?

Probably a ton more claims arising from non-whitewater parks than whitewater parks.
24-10-106. Immunity and partial waiver.
(1) A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from:
(e) A dangerous condition of any public hospital, jail, public facility located in any park or recreation area maintained by a public entity, or public water, gas, sanitation, electrical, power, or swimming facility. Nothing in this paragraph (e) or in paragraph (d) of this subsection (1) shall be construed to prevent a public entity from asserting sovereign immunity for an injury caused by the natural condition of any unimproved property, whether or not such property is located in a park or recreation area or on a highway, road, or street right-of-way.

To recover under the "dangerous condition" of the CGIA, plaintiff must show as a threshold jurisdictional matter that the condition upon which the plaintiff bases the tort claim existed because of the government's act or omission in maintaining or constructing the condition rather than the government's design of the condition. Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo. 1997).

(1) "Dangerous condition" means a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity or public employee in constructing or maintaining such facility. For the purposes of this subsection (1), a dangerous condition should have been known to exist if it is established that the condition had existed for such a period and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered. A dangerous condition shall not exist solely because the design of any facility is inadequate. The mere existence of wind, water, snow, ice, or temperature shall not, by itself, constitute a dangerous condition.

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