Plaintiff uses standards of ACCT to cost defendant $4.7 million

Posted: June 17, 2013 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Climbing Wall, South Carolina | Tags: Alpine Towers, Alpine Towers International, Carowinds, Fort Mills, Grigri, negligent design, negligent training, paraplegic, Petzl, Punitive damages, strict liability, Trango |1 Comment

Judgment included $1,110,000 in punitive damages, which is not covered by insurance and not dischargeable in bankruptcy.

Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171

Plaintiff: Lawrence Keeter, Ronald Travis Keeter, and Rebecca Keeter,

Defendant: Alpine Towers International, Inc., and Ashley Sexton

Plaintiff Claims: strict liability, negligent design, and negligent training

Defendant Defenses: (1) judgment notwithstanding the verdict as to all causes of action and punitive damages, (2) a new trial, (3) an order requiring Larry to elect between the three causes of action, (4) set-off of the settlement paid by Fort Mill.

Holding: for the plaintiff’s in the amount of $3,400,500.00 actual damages and $1,110,000.00 in punitive damages.

This is the appeal that I first reported at “$4.7 million-dollar verdict in climbing wall case against Alpine Towers in South Carolina Court” The plaintiff at the time of his injury was a 17-year-old student who after falling 20’ was rendered a paraplegic.

This is sad, tragic, and honestly, a disaster of a case for both the defendant and the plaintiff. Worse, this case will have far-reaching effects into the climbing wall and ropes’ course industry. It probably won’t have any effect on those association’s writing standards; however, here again, this case is proof that writing standards by an association creates the cause of action needed by the plaintiff to win and in this case, win big.

The facts of the case are convoluted and made so not by what happened, but by the contracts created by the defendant.

The defendant built an Alpine Tower and sold it to an amusement park, Carowinds. The owner, Fort Mill purchased the Alpine Tower from Carowinds. Fort Mill (former defendant who probably settled out of the case) hired the defendant Alpine Towers International “to move it, install it, and train Fort Mill’s faculty to use it safely.” The term “it” in the sentence means the alpine tower. The contract to provide those services was probably the normal contract used when selling a tower by the defendant because it referred to Alpine Towers as the “Seller.” This came back to haunt the defendant because a seller has a greater degree of liability than just a mover. The agreement stated the seller would do much more than just move the tower.

The plaintiff was climbing the tower with another student belaying him. The belay rope became stuck in the belay device. The instructor was close by, and the student attempted to un-stick the rope herself. In doing so the belayer lost control of the rope, and the climber/plaintiff fell to the ground breaking his back. The plaintiff was rendered a paraplegic by the fall.

The plaintiff sued based on three causes of action.

(1) Alpine Towers was strictly liable for the manufacture and sale of a defective and unreasonably dangerous product; (2) Alpine Towers negligently designed the climbing tower without adequate safety equipment, instructions, and warnings; and (3) Alpine Towers was negligent in failing to properly train Fort Mill’s faculty on how to safely use the climbing tower, particularly in failing to train the faculty to teach student belayers to safely use the belay system.

The jury found for the plaintiff and his parents on all causes of action and awarded the plaintiff damages.

It awarded $500.00 for strict liability, $900,000.00 in actual damages and $160,000.00 in punitive damages for negligent design of the tower, and $2,500,000.00 in actual damages and $950,000.00 in punitive damages for Alpine Tower’s negligence in training Fort Mill’s faculty. The jury also returned a verdict for Larry’s parents for $240,000.00 in actual damages.

Summary of the case

The defendant appealed only the injured plaintiff’s claims and judgment, not the plaintiff’s parent’s claims. The defendant lost all of its arguments on appeal.

The first issue and the third most aggravating issue in this decision was how the court accepted the jury’s decision on the strict liability theory claim. The plaintiff’s experts argued that the belay device being used on the tower was operated manually and if the defendant has supplied automatic devices the fall would not have occurred.

…Gerald George, Ph.D., testified that the Trango Jaws relies on the absence of human error to safely belay a climber. He explained that it was feasible to use an alternative design for the climbing tower incorporating a belay device called a GriGri.

“Absence of human error” is how all accidents occur.

Dr. George testified that without incorporating a “fail-safe” belay device such as the GriGri into the design of a climbing tower used for students, the climbing tower is defective and unreasonably dangerous.

So by using a particular belay device, which was not part of the climbing wall, the defendant was strictly liable. The defendant was liable for the injury because the tower was “defective” based upon the choice of belay devices.

The next issue was the negligent design claim. Negligent design in South Carolina is a failure to exercise due care with the focus on the conduct of the seller or manufacturer. The proof the court accepted in this case was:

[Plaintiff] presented evidence that Alpine Towers conducted a ten-year study ending in 1999 that concluded the majority of accidents on its climbing towers were caused by human error, specifically belayers dropping their climbers.

Proof of the negligent design claim is knowing you have a problem that injures people and failing to do anything about it. The study was the proof of the knowledge, and the plaintiff’s injury was proof of failing to do anything about the problem.

Granted, it seems to be a stretch to apply design to belayers dropping climbers; however, if you look at the structure as including the ropes and belay devices, then the claim makes more sense.

The negligent training claims the final claim and the one that will create the most problems for other people within the industry. The contract signed by the defendant for moving the tower stated that defendant would teach the owner how to use the tower. The purchaser, Fort Mill, intended to use it to teach climbing and belaying. The defendant had manuals, curriculums and classes in how to belay; however, it did not teach the owner how to teach how to belay.

First, Alpine Towers uses a written syllabus when it conducts classes to teach adults how to belay. However, it did not provide the syllabus to Fort Mill to enable Fort Mill to effectively teach students. Second, the belay system designed by Alpine Towers relies on a faculty supervisor to ensure the students are properly belaying the climbers. In addition to [defendant’s employee’s] testimony as to where the faculty supervisor should be positioned, the CEO of Alpine Towers, Joe Lackey, testified, “the staff member should stand directly behind the climber, . . . not thirty feet away.”

However, it gets worse. The plaintiff’s expert testified that no one should belay until they have been tested.

Moreover, despite knowing that Fort Mill would be teaching students to belay and that students were more susceptible to making belaying errors than adults, Alpine Towers did not teach Fort Mill that it should test the students’ competency before allowing them to belay a climber. [Plaintiff’s expert] testified “as a matter of course in my industry, participants are tested,” including whether they are “able to . . . belay in a competent manner, catch falls, lower somebody . . . off a climb.”

However, the statements of the plaintiff’s experts were reinforced by the trade association that the defendant belonged to and that his own employees served on.

Alpine Towers has several employees who serve on the standards committee for the Association for Challenge Courses Technology, which [defendant] called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested.

Once again, the trade association (or as the defendant described it the “climbing society”) created standards which instead of helping the defendant win a trial, were used at trial to prove the defendant was negligent.

The final defense to the jury verdict raised by the defendant was Intervening Causation. Basically, this is an argument that something happened after the negligent acts of the defendant caused by a third party who either relieved the defendant of liability or is the real cause of the injury. If the intervening act was foreseeable, then it does not break the chain of liability between the parties. To be a defense, the intervening act must be the “bolt of lightning” without a thunderstorm, which came out of nowhere.

The test for whether a subsequent negligent act by a third party breaks the chain of causation to insulate a prior tortfeasor from liability is whether the subsequent actor’s negligence was reasonably foreseeable. “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.”

The defendant argued that the actions of the belayer, a co-defendant and the Fort Mill’s actions were an intervening cause. However, in this case, the acts of the defendant were foreseeable. In fact, for the belayer dropping a climber, the defendant had a study which showed what would happen.

So Now What?

The list of errors here is massive. Those errors were magnified by the plaintiff’s experts and trade association to which it belonged.

Marketing makes promises that Risk Management (actually your insurance company in most cases) must pay for. Here the wrong agreement was used where too many promises were made that were not kept by the defendant. If you put it in writing, you better make sure you are doing it; you have to complete the terms of the contract.

Add to that the language of the agreement using the term seller. The defendant created greater liability for itself. A mover moves; a seller agrees to move, set up, and in this case train.

It appears the plaintiff hired better experts. The court quoted from two of the plaintiff’s experts liberally. The court did not make a single quote from the defendant’s experts, or even mention if the defendant had an expert witness.

The defendant did a ten-year study on how people were injured using its towers. As usual, with a study that is not thought-out or done so with legal help, even when there could be legal consequences. The study was used by the plaintiff and the court to prove how negligent the design of the tower was. The study showed that most people were injured by belayers that dropped the climbers. That is what happened in this case.

The defendants own study showed the event was foreseeable, and occurred frequently. That was all the proof the plaintiff needed. If you do a study about injuries, you better solve the problems the study identifies. You just can’t look at the study and say, wow, what a great study.

Remember the big maps in ski patrol headquarters at ski resorts. Patrols used to stick a push pin or mark on the map were accidents occurred. Those maps are no longer found at the headquarters because they were proof that the ski area knew that accidents occurred at the locations with lots of holes in the map. If the injured skier can show his injury occurred at a holey part of the map, winning became much easier.

The worst part of this case is not in how it affects the defendant. The worst part is how this is going to affect climbing walls and rope’s courses across the US.

·        Instructors are going to have to stand behind belayers.

·        Instructional manuals have to be written in conjunction with an attorney. In this case, valuable information was removed from the manual which the judge attributed to a cause leading to the accident.

·        Belay devices are going to be a nightmare. Do you use one that does not fail, but that humans fail to use properly or do you use a static device.

·        Before allowing anyone to belay anywhere in the future the belayer is going to have to be tested.

The coup d’état or fait accompli of the case was the judge accepted that the defendant, who had several employees serving on the ACCT standards committee, failed to meet the standards created by the ACCT. What standard? The standard created on how to teach and test belayers.

Alpine Towers has several employees who serve on the standards committee for the Association for Challenge Courses Technology, which Lackey called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested.

Then the defendants own instruction manual was quoted by the court as proof the defendant had not followed its own standards.

Ashley testified she was not given a written test, but was required to do a “demonstration” and be watched by a faculty member to make sure she “knew how to do it.” There was no evidence; however, that Alpine Towers took any steps to ensure Fort Mill gave an adequate test of her competency. In fact, Alpine Towers’ instruction manual says only that students “will demonstrate proficiency in belaying before being permitted to belay.”

This is an appellate court decision; I searched but could not find out if this has been appealed to the South Carolina Supreme Court. Hopefully……

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By Recreation Law            Rec-law@recreation-law.com   James H. Moss       #Authorrank

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