API Summer 2021

Breach of contract. A claim of contract breach asserts that a promise (writ- ten or oral) has been broken. A claim for breach of contract may address, and find fault with, any of the afore- mentioned services: the design and construction (or repair) of the course, equipment, training, and inspection. Did service providers do as they promised? The agreement between the site and the visitor, sometimes referred to as the visitor agreement, is a contract. Violation of that agreement, including its representations (“our activities are safe”, or “I have no medical condition that would cause me to be a danger to myself or to others”), can produce claims and liabilities. Negligence. Most often, however, a party injured in a collision will claim negligence. Negligence is the failure to protect another, to whom a duty of care is owed, from unreasonable risks of harm. A claim of negligence may be directed against the operator of the course, the owner of the site, and any prior service providers who may have

someone or something (often in the presence of witnesses).

Second, a zip line rider is, relative to participants in other sports and recre- ation activities, passive. They are at the mercy of the people, places, and things associated with the zip line. There is a reason we refer to them often as “rid- ers.” This passivity can be a significant factor in determining the duty of care owed to them, as described later. Finally, a collision can result from a ver- itable suite of causes: defects in terrain, design, construction, and equipment; errors in staff training and supervision; management’s failure to react to prior events, including near misses; irregu- larity or incompleteness of inspections, and failure to comply with recommen- dations; and the violation of local laws and ordinances, industry standards, and prevailing practices. Claims arising from collisions generally fall into two categories: breach of con- tract, and negligence.

contributed to the claimed loss.

At trial, the judge or jury will be asked to determine if the party accused of negligence (the defendant) acted as a reasonable party would have acted un- der the same or similar circumstances. The judge or jury will typically rely on industry experts in making this determi- nation and often must weigh conflicting advice. Factors unfavorable to operators. What might suggest a defendant was negligent? The violation of applicable laws and ordinances, standards, and prevailing practices constitutes at least

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