ESSAY - IRAC Analysis

High atop Mt. LeConte in the Great Smoky Mountains National Park, LeConte Lodge is the highest guest lodge in the eastern United States. It is situated on an open glade just below the summit of Mt. LeConte at an elevation of about 6400 feet. The Lodge serves as a grandstand for the entire Park and commands spectacular views of the Smokies. Guests are housed in hand built roughhewn log cabins with propane heat, kerosene lanterns, clean linens and warm Hudson Bay wool blankets. Hearty meals are served family style in the dining room. It is a rustic getaway that typically has a year-long waiting list. It is accessible only by hiking and is the only place in the Smoky Mountains where a visitor can sleep overnight in a snug permanent structure. There are no roads that lead to the Lodge. There are five hiking trails that lead to the Lodge ranging in length from 5.5 miles up to 8 miles. Because the Lodge is accessible only by hiking trails, and in an effort to maintain the trails and to prevent excess wear and erosion, food and supplies are transported to the Lodge using llamas. The llama hoof is smaller and easier on the trails that would be the hooves of horses or donkeys. The llamas generally pack on Monday, Wednesday and Friday using Trillium Gap Trail. They get to the trailhead between 6:00 and 6:30 am and are on the trail between 7:30 and 8:00 am. It takes the llamas about 4 hours to make the hike. They have lunch and return to the parking lot around 6:00 pm. It is common for visitors hiking to LeConte Lodge to see the llamas along the trail. The llamas do not belong to the National Park Service (NPS) but instead are owned by ParkServ, Inc., the company that contracts with the NPS to operate LeConte Lodge. Last October, Jim and his wife Olivia were hiking to Leconte Lodge for a weekend stay. They had heard about the lodge from their friends and also about the llamas and were excited about their 48 hour return to nature. About halfway into their hike to the Lodge at about 2:00 pm Jim and Olivia saw ahead of them on the trail a llama and a ParkServ employee coming down the trail. The llama was on its way back from having delivered supplies to the Lodge. As Jim and Olivia drew close to the llama and the ParkServ employee they exchanged pleasantries and Jim asked the ParkServ employee a few questions about his job and the llama. Jim then turned toward the llama, looked the llama in the eye and calmly started to say, Nice to meet you Mr. lla . . . Before Jim could finish his greeting to the llama, the llama spit directly in Jims face. It was awful. The llama had been chewing some combination of grass/hay/apples/carrots/etc. and the half-chewed concoction was now all over Jim in his eyes, ears, mouth, nostrils. Jim started to spit, cough and gag. Despite all of his efforts, Jim was unable to keep from ingesting some of the remnants of the llamas spit. When Jim had turned to speak to the llama, he was unaware that llamas are known to spit. Apparently llamas spit for several reasons including a female spitting to tell a male she's not interested in his advances, both genders spit to keep competitors away from food, spitting is used to warn an aggressor away and some llamas spit because they are just crabby. The ParkServ employee was aware generally that llamas are known to spit and he knew that this specific llama named Leroy would spit because Leroy had spit on a child a few months prior. The ParkServ employee, however, had failed to warn Jim of the llamas spitting potential. Jim and Olivia finally resumed their journey to the LeConte Lodge and spent the first night eating the home cooked meals and sleeping in their rustic cabin. When Jim awoke the next morning he felt weak, was experiencing some double vision and Olivia noticed that his eyelids were drooping. As the day progressed, Jim noticed he was having trouble using his arms and that his legs were becoming numb. Fortunately, there also was a physician visiting LeConte Lodge that weekend and the doctor recognized that Jim was showing all of the signs of botulism -- a rare and potentially fatal food borne illness caused by a toxin produced by the bacterium Clostridium botulinum. Because Jims condition was deteriorating so rapidly, a medical helicopter had to be called and Jim was flown from the mountain-top lodge to the nearest hospital where he was admitted and stayed for four weeks part of the time on a ventilator because of breathing problems caused by the botulism. An investigation by state inspectors determined that the lunch that Leroy ate at LeConte Lodge on the day he spit on Jim consisted in part of some old canned vegetables that the ParkServ staff had determined to be unsafe for human consumption. Improperly canned or preserved food is a common source of the botulism bacterium. Of the eighteen (18) guests who stayed at LeConte Lodge that weekend, Jim is the only one who got sick. At the time Leroy spit on Jim, the following statute (in relevant part) was in effect in North Carolina:

NORTH CAROLINA DEPARTMENT OF AGRICULTURE ANIMAL INDUSTRY DIVISION INJURIES FROM LLAMA ACTIVITIES 4-12-1. Legislative findings. The General Assembly recognizes that persons who participate in or are exposed to llama activities may incur injuries as a result of the risks involved in such activities. The General Assembly also finds that the state and its citizens derive numerous economic and personal benefits from such activities. The General Assembly finds, determines, and declares that this chapter is necessary for the immediate preservation of the public peace, health, and safety. It is, therefore, the intent of the General Assembly to encourage llama activities by limiting the civil liability of those involved in or exposed to such activities. 4-12-2. Definitions As used in this chapter, the term: . . . (8) Llama means a South American camelid which is an animal of the genus lama, commonly referred to as a one llama, including llamas, alpacas, guanacos, and vicunas. [NOTE: the animals used by ParkServ including Leroy -- fit this definition.] (9) Llama activity means: (A) Llama shows, fairs, competitions, performances, packing events, or parades that involve any or all breeds of llamas; (B) Using llamas to pull carts or to carry packs or other items; (C) Using llamas to pull travois-type carriers during rescue or emergency situations; (D) Llama training or teaching activities or both; (E) Taking llamas on public relations trips or visits to schools. (10) Inherent risks of llama activities means those dangers or conditions, which are an integral part of llama activities, as the case may be, including, but not limited to: (A) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them; (B) The unpredictability of the animals reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (C) Certain hazards such as surface and subsurface conditions; (D) Collisions with other animals or objects; and (E) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability. 4-12-3. Immunity from liability for injury or death; exceptions. (a) A llama activity sponsor, a llama professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a person resulting from the inherent risks of llama activities and no person shall make any claim against, maintain an action against, or recover from a llama activity sponsor or any other person for injury, loss, damage, or death of the person resulting from any of the inherent risks of llama activities.

Please evaluate the potential liability of ParkServ to Jim based on the facts above. Your analysis should address any basis for ParkServs potential liability and any potential defenses including the potential impact of the statute provided above. You should NOT analyze the damages issue.