Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation IndustryPosted: February 25, 2013
It is an industry, and it is not based on dreams or what your think it should be: Welcome to the real world
Simply, someone went into a climbing wall at a university, was paid to review the risk-management issues, created a report and is now being sued because of it.
The plaintiff was a student and employee of Whitman College of Spokane Washington. The plaintiff worked at the climbing wall as an instructor. She was injured when she fell 32 feet from the climbing wall. (Some of this information I got from a news article Student crushes vertebrae in climbing wall fall.) The court opinion says she was training on the wall. The article says she was cleaning holds when she fell.
She fell because a shut failed to work properly. The decision said the plaintiff failed to use the shut properly. The manufacturer of the Shut was not included in the lawsuit.
Alex Kosseff and Adventure Safety International, LLC, (ASI) were named as defendants. ASI had been hired by the college to perform a “risk management audit.” A document was prepared by ASI, which was titled Whitman College Outdoor Programs Draft Risk Management Audit. One of the major arguments was the report was labeled a draft report.
ASI, according to the article, was also hired by the college after the accident to investigate the complaint.
The plaintiff sued, and ASI filed an answer to the complaint. This motion was then filed moving to have ASI dismissed from the suit.
The court found that the plaintiff could continue her claim against the defendant because she was a third party beneficiary of the agreement between the college and the defendant or because as an employee of the college at the time of the accident, she was part of the agreement. Plaintiff would not have a claim against the defendant if she was an incidental beneficiary of the contract.
The question then “depends upon the extent to which ASI agreed to undertake the risk management audit for the benefit of the college’s employees and students rather than for the benefit the college itself.”
So if she was an employee of college at the time of the accident, is the basis for this claim a worker’s compensation subrogation claim?
Summary of the case
The basis of ASI’s motion was it did not owe a duty to the plaintiff.
The crux of ASI’s argument is that it did not owe Plaintiff a duty of care because the dangerous condition which caused her accident was simply “outside the scope of the risk-management audit” that it agreed to perform. Specifically, ASI argues that the scope of the audit was limited to “gain[ing] a general understanding of [Whitman College's] risk management practices,” and that it did not “guarantee that future operations will be free of safety incidents.”
ASI is saying that they were working for the college, not the plaintiff. The court did not buy the argument.
The court held the audit report was not the only reason for its decision and was not necessarily required by the plaintiff to prove her case. That issue, whether the defendant owed the plaintiff a duty of care.
The court looked at the plaintiff as the intended recipient, the third party beneficiary, of the work done by ASI. I also think the court could have held that the plaintiff was the intended beneficiary of the report because she was an employee of the College.
If you are hired to work for a college and the work, you are performing is for the benefit of the patrons of the college, you are possibly liable to the students.
This was just a preliminary motion, there is a lot of litigation and trial left in this case, and ASI may eventually be dismissed. However, ASI will have to find better arguments.
So Now What?
1. If you are performing this type of work, you can be sued. I’ve known it for years, and I’m amazed the number of people who are astounded by this decision.
2. If you do this type of work, you need insurance to cover your liability.
3. If you do this type of work, based on this decision, you can’t miss anything.
4. If you do this type of work you better not be stupid enough to call what you do an audit.
Remember that marketing makes promises that risk management has to pay for. Audit sounded like a cool word to use to describe walking into a program and looking around. However, audit has a much more definitive definition. Wikipedia uses the following words to define “audit:” thoroughly examines and reasonable assurance that the statements are free from material error.
5. Why are you doing this work? Do you have the credentials and the experience to make these decisions? What is your engineering degree? What ASTM committees that are involved in the creation of the equipment and facilities that you audit are you on? What equipment are you taking with you to perform the appropriate tests?
And this is not the only way that a third party can be brought into a suit like this. They misrepresented their abilities (Which I believe every single one of them is doing) which can lead to liability.
You just can’t say I’ve done it for 10 years. Therefore, I can tell you how to do it. You have to study and inspect and test. You have to take the climbing wall apart and see if the structure is built correctly. Are the bolts the proper size and strength and not just was some pseudo organization says but what the ASTM says it should be? What is the force the climbing wall can sustain? Is all the equipment in the chain where force will be applied, built and maintained to sustain that force?
This is a bad case, but not one that is unexpected just took longer to occur then I would have guessed.
If you do have an accident, you can’t hire the person who did your inspect to do the accident inspection. Besides that, inspection is not protected and is discoverable by the plaintiff.
The three largest payouts in the OR industry occurred after third party investigators were hired to determine what happened. In one, the plaintiffs took the investigators report and turned it into the complaint.
If you have a wall or run a program hire professional. Not people you may meet at a show, but people with real credentials after their name.
If you think, you still want to keep doing this, make sure your agreement with the program defines what you can and cannot do, and that you are not liable for the programs’ failure to follow your recommendations.
Plaintiff: Stephanie Foster
Defendant: Alex Kosseff, et al.
Plaintiff Claims: Defendant was negligent in failing to discover the risk posed by the Super Shut anchor.
Defendant Defenses: Defendant did not owe the plaintiff a duty of care.
Holding: Defendant’s motion to dismiss was denied.
What do you think? Leave a comment.
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Foster, et al., v. Kosseff, et al., 2013 U.S. Dist. LEXIS 5380
Stephanie Foster, et al., Plaintiffs, v. Alex Kosseff, et al., Defendants.
United States District Court For The Eastern District Of Washington
2013 U.S. Dist. LEXIS 5380
January 14, 2013, Decided
January 14, 2013, Filed
CORE TERMS: audit report, audit, duty of care, beneficiary–, climbing, owed, failure to state a claim, citation omitted, incorporation, discover, lawsuit, anchor, owe, dangerous condition, negligence claim, authenticity, quotation, summary judgment, recreational, leave to amend, underlying purpose, recommendations, deliberately, cognizable, omitting, coverage, survive, amend, issues of law, discovery
COUNSEL: [*1] For Stephanie Foster, Susan Foster, Gary Foster, Plaintiffs: Allen M Ressler, LEAD ATTORNEY, Ressler and Tesh PLLC, Seattle, WA; William S Finger, LEAD ATTORNEY, Frank & Finger PC, Evergreen, CO.
For Alex Kosseff, Adventure Safety International LLC, Defendants: Heather C Yakely, LEAD ATTORNEY, Evans Craven & Lackie PS – SPO, Spokane, WA.
JUDGES: THOMAS O. RICE, United States District Judge.
OPINION BY: THOMAS O. RICE
ORDER DENYING DEFENDANT ADVENTURE SAFETY INTERNATIONAL’S MOTION TO DISMISS
BEFORE THE COURT is Defendants Alex Kosseff’s and Adventure Safety International, LLC’s motion to dismiss for failure to state a claim (ECF No. 33). This motion was heard without oral argument on January 14, 2013. The Court has reviewed the motion, the response, and the reply, and is fully informed.
In this diversity case, Plaintiff seeks to recover damages for a back injury which she sustained during a fall from a recreational climbing wall maintained by her employer, Whitman College. Plaintiff alleges that Defendants Alex Kosseff and Adventure Safety International, LLC, were negligent in failing to discover the dangerous condition which caused the accident during a safety audit commissioned by Whitman College [*2] in 2007. Defendants have moved to dismiss the complaint for failure to state a claim on the ground that they did not owe a duty of care to Plaintiff. For the reasons discussed below, the Court will deny the motion.
Plaintiff Stephanie Foster (“Plaintiff”) is a student enrolled at Whitman College in Spokane, Washington. In April 2008, Plaintiff was employed as a student instructor in Whitman College’s Outdoor Program. One of her duties in this position was to teach other students how to properly climb and descend a recreational climbing wall located on the Whitman College campus.
On April 28, 2008, Plaintiff fell from the climbing wall during a training exercise and was seriously injured. A subsequent investigation revealed that the accident occurred when a “Super Shut” climbing anchor manufactured by Defendant Fixe Industry1 inadvertently opened while Plaintiff was descending the wall. This investigation further revealed that the anchor opened as a result of Plaintiff using it in a manner for which it was not designed.
1 Defendant Fixe Industry has never been served in this action.
Approximately one year prior to Plaintiff’s accident, Whitman College hired Defendants Alex Kosseff and [*3] Adventure Safety International, LLC (collectively “ASI”) to perform a “risk management audit” of the Outdoor Program’s facilities. The parties sharply disagree about the scope of this audit. Plaintiff asserts that the audit extended to identifying and mitigating all risks posed to users of the climbing wall. ASI maintains that the audit was merely intended to provide Whitman College with a “general understanding” of how to improve its risk management program. In any event, it is undisputed that ASI’s audit did not identify the risk that the Super Shut anchor posed when used improperly.
Plaintiff filed this lawsuit on April 22, 2011. Among other claims, Plaintiff asserts that ASI was negligent in failing to discover the risk posed by the Super Shut anchor. ASI now moves to dismiss the lawsuit for failure to state a claim on the ground that it did not owe Plaintiff a duty of care as a matter of law. Because ASI has previously filed an answer to Plaintiff’s Complaint, (ECF No. 9) the Court will treat the instant motion as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004).
A [*4] motion for judgment on the pleadings is reviewed under the same legal standard as a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6). Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). A motion to dismiss “tests the legal sufficiency of a [plaintiff's] claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive such a motion, the plaintiff must allege facts which, when taken as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868, (2009) (quotation and citation omitted). To satisfy this plausibility standard, the allegations in a complaint must be sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, are insufficient. Iqbal, 556 U.S. at 678.
In addition, Federal Rule of Civil Procedure 8(a)(2) requires that a plaintiff’s complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This standard “does not require ‘detailed factual allegations,’ [*5] but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). To determine whether Rule 8(a)(2) has been satisfied, a court must first identify the elements of the plaintiff’s claim(s) and then determine whether those elements could be proven on the facts pled. Although the court should generally draw reasonable inferences in the plaintiff’s favor, see Sheppard v. David Evans and Assoc., 694 F.3d 1045, 1051 (9th Cir. 2012), it need not accept “naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotations and citation omitted).
The Ninth Circuit has repeatedly instructed district courts to “grant leave to amend even if no request to amend the pleading was made, unless … the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The standard for granting leave to amend is generous–the court “should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). In determining whether leave to amend is appropriate, a court must consider the following five factors: bad faith, undue delay, prejudice [*6] to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint. United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011).
A. Consideration of the Draft Audit Report
In support of its motion to dismiss, ASI has submitted a document entitled “Whitman College Outdoor Programs Draft Risk Management Audit” (hereafter “audit report”). ECF No. 36-1. The parties disagree about whether the Court may properly consider the contents of this document without converting the instant motion into a motion for summary judgment. On December 4, 2012, in response to Plaintiff’s concerns that ASI was effectively seeking summary judgment, the Court ruled that it would treat ASI’s motion “as a standard motion to dismiss, considering only (1) facts specifically alleged in the complaint; and (2) documents submitted by Defendants that were referenced in the complaint and whose authenticity has not been questioned.” ECF No. 52 at 3-4. This ruling was based, in large part, upon ASI’s representations that it had submitted the audit report “for background purposes” only and that the contents of the report were “not relevant to the actual issues of law before [*7] the court.” See ECF No. 51 at 5.
It has now become clear that the contents of the audit report are material to the issues of law presented in the instant motion. The crux of ASI’s argument is that it did not owe Plaintiff a duty of care because the dangerous condition which caused her accident was simply “outside the scope of the risk management audit” that it agreed to perform. ECF No. 70 at 7. Specifically, ASI argues that the scope of the audit was limited to “gain[ing] a general understanding of [Whitman College's] risk management practices,” and that it did not “guarantee that future operations will be free of safety incidents.” ECF No. 70 at 7 (citing ECF No. 71-1 at 9). Because this argument expressly relies upon the contents of the audit report itself, the Court must decide whether the audit report is “fair game” at this early stage of the proceedings.
“Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1989). One exception to this rule is the so-called “incorporation by reference doctrine,” which permits a court to consider “documents [*8] whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff’s pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). As the Ninth Circuit explained in Knievel, this exception typically applies in “situations in which the plaintiff’s claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document.” Id. The underlying purpose of this exception is “to prevent plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting documents upon which their claims are based.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (quotation and citation omitted); see also United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (explaining that that the incorporation by reference doctrine “may apply, for example, when a plaintiff’s claim about insurance coverage is based on the contents of a coverage plan, or when a plaintiff’s claim about stock fraud is based on the contents of SEC filings”) (citations omitted).
The Court will not consider the audit report under the incorporation by reference [*9] doctrine for several reasons. First, the contents of the report are disputed. In responding to the instant motion, Plaintiff indicates that only a portion of the document was prepared by Defendant Kosseff and that another portion may have been prepared by Whitman College prior to ASI’s inspection of its facilities. ECF No. 67 at 2-3. Plaintiff further asserts that the audit report purports to be a draft rather than a finalized document. See ECF No. 36-1. This latter assertion is particularly on-point. Indeed, the document is styled as a “Draft Risk Management Audit,” and has the words “Whitman College Draft Risk Management Audit” reproduced at the top of each page. ECF No. 36-1 (emphasis in original).
Second, considering the audit report at this juncture would not serve the underlying purpose of the incorporation by reference doctrine. Notably, this is not a case in which the plaintiff has attempted to survive a motion to dismiss “by deliberately omitting documents upon which [her] claims are based.” Swartz, 476 F.3d at 763. To the contrary, Plaintiff did not have a copy of the audit report (and therefore lacked knowledge of its precise contents) when this lawsuit was filed. See Pl.’s [*10] Compl., ECF No. 1, at ¶¶ 15, 30-31 (alleging that Plaintiff learned of the audit report’s existence from an investigation performed by the Department of Labor and Industries and that Whitman College and Defendant ASI “failed or refused” to provide her with a copy before the lawsuit was filed).
Third, the contents of the audit report are not particularly “integral” to Plaintiff’s claim. See Ritchie, 342 F.3d at 908. Unlike claims for breach of an insurance contract, for example (see Ritchie, 342 F.3d at 908), Plaintiff’s negligence claim does not necessarily rely upon the contents of a specific document. In fact, Plaintiff could theoretically prove the elements of her negligence claim (i.e., duty, breach, causation and damages) exclusively through witness testimony without introducing the audit report at all. Further, it is worth noting that the audit report is not a contract between ASI and Whitman College; it is simply ASI’s work product. As such, the audit report is not particularly probative of the most crucial issue in this case: whether ASI owed Plaintiff a legal duty. Although the report details specific tasks performed, it does not describe the precise scope of work that that [*11] ASI agreed to perform.
Finally, equitable considerations weigh against considering the audit report at this time. At bottom, Plaintiff’s negligence claim relies on the allegation that ASI agreed to “analyze and point out dangers and suggest remediation of dangers to prevent injury to students and employees utilizing the climbing wall.” Pl.’s Compl., ECF No. 1, at ¶ 28. ASI has attempted to establish that the audit was more limited in scope and that, as a result, it did not owe Plaintiff a duty of care. In so doing, however, ASI has expressly relied upon the contents of the audit report. Based upon ASI’s prior representation that it would not do so, the Court denied Plaintiff an opportunity to conduct additional discovery relevant to this issue. That ruling has now placed Plaintiff at a significant disadvantage. Accordingly, the Court will not consider the contents of the audit report to the exclusion of other evidence which Plaintiff may develop as discovery progresses.
B. Duty Owed to Intended Third-Party Beneficiary
In light of the Court’s ruling above, the only remaining issue is whether Plaintiff has stated a legally cognizable claim on the facts alleged in the complaint. In the Court’s [*12] view, the relevant inquiry is whether Plaintiff was an intended third-party beneficiary of the contract between ASI and Whitman College. To the extent that Plaintiff was an intended beneficiary as an employee and student of Whitman College, ASI may have owed her a duty of care to discover the dangerous condition at issue. See Burg v. Shannon & Wilson, Inc., 110 Wash. App. 798, 807-08, 43 P.3d 526 (2002) (holding that engineering firm had no duty of care to disclose specific safety recommendations to third party who would have benefitted from the recommendations, but who was not an intended third-party beneficiary of the underlying agreement). To the extent that Plaintiff was merely an incidental beneficiary of the contract, however, she lacks a cognizable claim. Id. Stated somewhat differently, the viability of Plaintiff’s claim depends upon the extent to which ASI agreed to undertake the risk management audit for the benefit of the college’s employees and students rather than for the benefit the college itself.
In her complaint, Plaintiff squarely alleges that the risk management audit was performed for the benefit of Whitman College’s employees and students. See Pl.’s Compl., ECF No. 1, at ¶ 28 [*13] (“The risk assessment was done for the benefit of Whitman College and its employees and students because Whitman College understood its duty to provide safe recreational activities and as part of good institutional management.”). This allegation, which the Court must accept as true for purposes of this motion, is sufficient to establish that Plaintiff was an intended third-party beneficiary of the agreement such that ASI may have owed her a duty of care to discover the dangerous condition at issue. Whether Plaintiff was in fact an intended beneficiary–as well as the scope of any duty owed to her by ASI–may be revisited on summary judgment.
ACCORDINGLY, IT IS HEREBY ORDERED:
Defendants’ motion to dismiss for failure to state a claim (ECF No. 33) is DENIED.
The District Court Executive is hereby directed to enter this Order and provide copies to counsel.
DATED this 14th day of January, 2012.
/s/ Thomas O. Rice
THOMAS O. RICE
United States District Judge
By Recreation Law Recfirstname.lastname@example.org James H. Moss Jim Moss
You don’t ask for help, you don’t pay, you aren’t a member but you sue when you were not properly trained.Posted: October 3, 2012
Settlement in the Wood River, ID YMCA lawsuit
I wrote about this lawsuit, and the injury right after it happened. See Climbing accident at Ketchum Idaho indoor Climbing Walland Update on climbing wall accident at Wood River YMCA Climbing Wall. A lot, more facts came out in this latest article that makes the plaintiff’s position look weak if not worse.
In this suit, the plaintiff claimed:
He contended that the Y was negligent in not training him how to use the climbing equipment and that the rope and self-belay device that he was using suddenly detached from the climbing wall while he was 20 feet up
The YMCA defended saying, “Hopfenbeck had signed a liability release. Furthermore, the Y claimed, he had considerable experience at climbing on indoor walls.”
However, this is the statement that drives me “up a wall.”
In a deposition, Hopfenbeck acknowledged that he had not paid a fee to use the wall, was not a member of the Y in Ketchum and had not asked anyone’s permission to climb. He said he began climbing on his own after taking a ballet class at the Y, but a Y employee did ask him to sign a liability waiver.
When you go use a climbing wall without being a member, without telling anyone, without getting permission to use the wall, how is the Y supposed to train you?
The plaintiff also stated:
Hopfenbeck said another climber there showed him how to use a Grigri belaying device, which can be used to self-belay. He said he practiced with it some, then climbed to the top of the wall and lay back in his harness to rest.
It was the YMCA’s fault he never knew how to use the complicated belay device?
Results – probably not good
This lawsuit was brought in Idaho and settled before the defendant’s motion for summary judgment on the release had been decided by the court. However, I can’t believe that an Idaho jury would allow this plaintiff to recover any money.
How can you trespass, use a device and get hurt then argue you were not trained in how to use the device?
The real problem is there is probably a gate at the Y and the people on the climbing wall probably have a wrist band. YMCA’s all over the world having instituted stricter
polices (however, I doubt they have updated their releases) to make sure no one climbs the wall without signing a release and receiving instruction.
Any settlement is better than a trial, but sometimes you just want to win because the claims are so outlandish.
I hope they deducted the fee for a YMCA membership the year he was hurt from his settlement.
What do you think? Leave a comment.
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A release should be written to stop litigation, not encourage it.
In Lucas v. Norton Pines Athletic Club, Inc. the lawsuit stems from the plaintiff falling from the climbing wall in the club. The club was using auto-belay systems, which worked. However, the plaintiff failed to clip into the carabiner on the auto-belay.
When the plaintiff joined the athletic club, he signed a release titled Participant Release of Liability and Assumption of Risk Agreement. To climb on the climbing wall, he had to sign a second release titled Climbing Wall Release of Liability.
The first release, the general club release had a clause that stated release specifically did not cover claims “arising from the willful or wanton negligence of Norton Pines Athletic Club or its officers, agents, or employees.”
The defendant filed a motion for summary judgment based on the releases. The court granted the motion for summary judgment. The plaintiff appealed. The only issue was whether the actions of the defendant were willful or wanton negligence.
The factual issue giving rise to the willful and wanton claim was the club had rules on how to use the climbing wall. The rules required that a member of the club had to have an employee of the club clip them and out of the carabiner before and after climbing.
The plaintiff was an accomplished climber and had developed a routine where he would look at the employee on duty who would visually inspect the carabiner connection to his harness and not physical inspect it.
The plaintiff on this climb did not check with the employee and climbed. Approximately, 20’ up the wall he fell to the ground.
Under Michigan’s law, a release stops claims for ordinary negligence but not for gross negligence. Willful and wanton negligence is the same as gross negligence under Michigan’s law. See Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident, Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter and Gross Negligence beats a release…but after the trial.
Willful or wanton negligence under Michigan’s law is “if the conduct alleged shows an intent to harm or if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.”
One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.”
Because the plaintiff’s only pleaded general negligence and reckless misconduct, the release stopped the claims. On top of that, there was no evidence that the club employee acted intentional or affirmatively, only negligently.
So Now What?
There were two major mistakes in this case that in another state or even another judge could have gone the wrong way.
First never tell the person signing your release how to sue you. You want the release to say to everyone who signs it, that you cannot be sued. If you tell them in the release, the release is not good against X, Y and Z, the claims of the plaintiff will be pled to show you did X, Y and Z. Why not, the plaintiff has nothing to lose. But, for the education you provided in the release, you would not have been sued.
Second if you make rules, they cannot be ignored. More so, when the rules you make are tied to your release. Here, the rule was that employees have to clip people in. If you make a rule, and you do not follow it, you set yourself up for a lawsuit.
Releases work if you do not do something that voids them. Always make sure when you have your release written that everything makes sense and does not create a situation where you can void your own release.
What do you think? Leave a comment.
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Lucas v Norton Pines Athletic Club, Inc., 2010 Mich. App. LEXIS 1066
Clinton Lucas and Robyn Lucas, Plaintiffs-Appellants, v Norton Pines Athletic Club, Inc., and David Swinburne, Defendants-Appellees.
Court of Appeals of Michigan
2010 Mich. App. LEXIS 1066
June 10, 2010, Decided
NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
PRIOR HISTORY: [*1]
Muskegon Circuit Court. LC No. 08-45745-NO.
CORE TERMS: misconduct, reckless, climbing, eye contact, recreational activity, climber, ordinary negligence, climb, auto-belay, protocol, harness, general negligence, wilful, posted, rock, assumption of risk, wanton negligence, negligence claims, citation omitted, co-participant, coparticipant, indifference, recklessness, casts, Climbing Wall Rules, acknowledgement, initiating, routine, tether, staff
JUDGES: Before: OWENS, P.J., and O’CONNELL and TALBOT, JJ.
Plaintiffs appeal as of right from the grant of summary disposition in favor of defendants pursuant to MCR 2.116(C)(7). We affirm.
This appeal arises from an accident that occurred at defendant Norton Pines Athletic Club (hereinafter “the Club”). Plaintiff Clinton Lucas (hereinafter “plaintiff”) suffered injuries after falling approximately 20 feet from the Club’s indoor rock climbing wall. At the time of the accident David Swinburne, an employee of the club, was monitoring the climbing wall.
When initiating their membership with the Club, plaintiffs executed a Participant Release of Liability and Assumption of Risk Agreement that provided, in relevant part, for a “release and . . . discharge” of the Club and its employees from any claims of injury “which may occur from any cause during such participation and/or use of the facilities.” The Release also included a specific acknowledgement that the member assumed the risk of participation in activities at the Club. However, the Release specifically did not cover claims “arising from the willful or wanton negligence of Norton Pines Athletic [*2] Club or its officers, agents, or employees.” In addition before engaging in climbing of the rock wall, each member of the Club was required to execute a Climbing Wall Release of Liability, which also included an acknowledgement regarding the assumption of risk of the member in participating in this activity and discharged the Club and its employees “from any and all claims, demands, actions, or causes of action on account of injury or death to myself . . . which may occur from any cause during such participation and/or use of the facilities.” The Club also posted Climbing Wall Rules and Regulations, which required each member climbing the rock wall to wear a harness that must be attached with metal carabiners to tethers that descend from an auto-belay, or safety mechanism, which are secured to the wall. A climber’s release of his or her grip from the climbing wall engages the auto-belay mechanism, which serves to lower the climber in a slow and safe manner to the ground. The Club’s posted Climbing Wall Rules require that “[o]nly a Norton Pines staff member is allowed to hook and unhook climber to and from the belay,” and “[o]nly a Norton Pines staff is allowed to check the safety of [*3] equipment after it is put on.”
Plaintiff was an experienced climber and had developed a routine or practice with Swinburne that would permit plaintiff to secure his own clip onto the harness and ascend the wall after making eye contact with Swinburne to visually verify that plaintiff’s harness was properly attached to the auto-belay system. On the day of plaintiff’s fall, he and Swinburne had followed this routine a number of times. However, on his last climb, plaintiff ascended the wall without clipping the harness to the auto-belay system or making eye contact with Swinburne to indicate that he was initiating his climb. Swinburne was in the vicinity, but reading a magazine when plaintiff commenced his climb. Plaintiff lost his grip on the wall and, without attachment to the safety mechanism, fell approximately 20 feet to the ground, incurring injuries.
Plaintiffs filed suit against both Swinburne and the Club alleging several counts of general negligence and reckless misconduct. Defendants sought summary disposition, pursuant to MCR 2.116(C)(7) and (C)(8), arguing there was no genuine issue of material fact based on plaintiff’s assumption of risk and the execution of valid releases [*4] and waivers. The trial court initially granted summary disposition only on plaintiffs’ general negligence claims and denied defendants’ request for the dismissal of plaintiffs’ reckless misconduct claim. On reconsideration the trial court subsequently dismissed plaintiffs’ reckless misconduct claim and this appeal ensued.
Initially, we note that the various waivers and releases signed by plaintiffs precluded his claims of ordinary negligence. Specifically, “A contractual waiver of liability also serves to insulate against ordinary negligence, but not gross negligence.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003), citing Lamp v Reynolds, 249 Mich App 591, 594; 645 NW2d 311 (2002). Notably, the various releases signed by plaintiffs indicate a waiver of liability for general negligence but not “willful or wanton negligence” or misconduct, which is defined in case law as being established “if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.” Xu, 257 Mich App at 269 n 3 (citation omitted).
Plaintiffs have pleaded only general negligence and reckless misconduct. On appeal, [*5] plaintiffs do not challenge the dismissal of their general negligence claims but assert error in the trial court’s grant of summary disposition on their claim of reckless misconduct. Plaintiffs contend that the trial court erred in limiting their claim of reckless misconduct only to injuries caused by a “co-participant” in a recreational activity rather than applying this standard to encompass all recreational activities as implied in Ritchie-Gamester v City of Berkley, 461 Mich 73, 89 n 9; 597 NW2d 517 (1999), which provided:
We recognize that we have stated this standard broadly as applying to all “recreational activities.” However, the precise scope of this rule is best established by allowing it to emerge on a case-by-case basis, so that we might carefully consider the application of the recklessness standard in various factual contexts.
Contrary to plaintiffs’ position, the Court’s ruling in Ritchie-Gamester was very specific, stating in relevant part:
[W]e conclude that coparticipants in a recreational activity owe each other a duty not to act recklessly. Because the trial court properly concluded that plaintiff could not show that defendant violated this standard, summary disposition [*6] was proper. [Id. at 95 (emphasis added).]
Based on the factual circumstances of this case, there is no basis to assert reckless misconduct as a basis for imposition of liability as Swinburne is merely the employee of a venue housing a recreational activity and not a coparticipant. Accordingly, the trial court correctly found that the case at hand is not analogous to Ritchie-Gamester and properly dismissed plaintiffs’ claim of reckless misconduct.
Further, even if Swinburne could be construed as a co-participant, his failure to act does not rise to the level of reckless misconduct, which is defined as:
“One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the wilful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether [*7] it does so or not.” [Behar v Fox, 249 Mich App 314, 319; 642 NW2d 426 (2002) (citations omitted).]
There was no evidence presented of any affirmative or assertive behaviors by Swinburne to support an assertion of reckless conduct. At most, Swinburne was negligent because he was inattentive to plaintiff’s activity at the initiation of his climb. Swinburne’s complicit participation with plaintiff in ignoring the rules and regulations for the rock-climbing wall could only be construed as ordinary negligence based on their having established a mechanism or procedure to assure plaintiff’s safety while climbing. While the procedure followed deviated from the Club’s policy it does not evidence a level of willfulness or indifference necessary to establish reckless misconduct.
Plaintiffs also contend that the trial court erred by making findings of fact and failing to construe the evidence most favorably to the party opposing summary disposition. A trial court may not make findings of fact or weigh credibility in deciding a motion for summary disposition, and all reasonable inferences must be drawn in favor of the nonmovant. Amerisure Ins Co v Plumb, 282 Mich App 417, 431; 766 NW2d 878 (2009). [*8] Defendants sought summary disposition in accordance with MCR 2.116(C)(7). In deciding a motion based on that sub-rule, a trial court may consider “affidavits, depositions, admissions, or other documentary evidence” that would be admissible at trial. MCR 2.116(G)(2); Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008).
Specifically, plaintiffs argue that the trial court erroneously found, as an undisputed fact, that plaintiff and Swinburne had adopted an “eye contact protocol” and that reasonable minds could not conclude that Swinburne’s behavior had exceeded ordinary negligence. According to plaintiffs, acceptance of the use of an “eye contact protocol” is contrary to the facts established by the record based on the Club having established and posted a formal procedure for securing climbers in its “Climbing Wall Rules & Regulations” coupled with Swinburne’s acknowledgment that this policy was mandatory and that he lacked the authority to override or ignore that policy.
Swinburne and plaintiff both admitted that the procedure they had adopted using eye contact was a deviation from the Club’s written rules. However, Swinburne and plaintiff also testified that they believed the “eye [*9] contact protocol” was appropriate due to plaintiff’s climbing experience and because it achieved the intended goal of verifying that plaintiff was properly attached to the tether. The trial court properly considered this evidence and construed it in a light most favorable to plaintiff. The only reasonable construction of the evidence was that Swinburne and plaintiff had developed their own protocol to insure that plaintiff was securely attached to the safety mechanism, albeit contrary to the Club’s rules and regulations. This did not comprise improper fact-finding by the trial court.
/s/ Donald S. Owens
/s/ Peter D. O’Connell
/s/ Michael J. Talbot
The wall will be built on the exterior of Fitzgerald’s hotel.
The Reno City Planning commission approved a 167’ climbing wall on the exterior of Fitzgerald’s hotel. The climbing wall will overlook the Reno Arch.
Local businesses as well as climbers are excited about the idea and the possibility of revitalizing downtown Reno.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Michigan court upholds release in a climbing wall accident where injured climber sued his belayer for his injuriesPosted: December 6, 2010
Belayer failed to keep enough slack in the system allowing the climber hit the ground.
Mankoski v Mieras, 1999 Mich. App. LEXIS 514, March 12, 1999
This case was the first time I’ve seen the injured plaintiff sue his belayer for his injuries. The plaintiff and the belayer went to a climbing gym to climb. Both were experienced climbers.
While climbing the plaintiff fell. The belayer was unable to catch the climber in a way that prevented him from hitting the floor. Either the belayer did not know how to use the belay device or had too much slack in the rope to prevent the climber from crashing. The injured climber, the plaintiff, sued the belayer for his injuries. The plaintiff claimed the belayer was negligent in his belaying.
The defendant belayer argued:
… he breached no duty to plaintiff, that plaintiff assumed the risks of injury, that the injury sustained was within the scope of plaintiff’s consent to the risks inherent in the sport, and that plaintiff released all participants from liability.
The defendant filed a motion for summary judgment which he won. The plaintiff appealed and the Michigan Appellate Court upheld the lower court decision:
…finding that a participant in a sporting event is assumed to be aware of the inherent risks of injury in the sport, and to have consented to those risks. The plaintiff’s injury was within the scope of the plaintiff’s consent.
The court agreed the plaintiff assumed the risks because the risk was assumed by the plaintiff in writing. The release the plaintiff signed was used as proof that the plaintiff assumed the risk.
- · Make sure your release protects you.
- · Make sure your release protects your patrons and guests.
- · Make sure your release outlines the risks of the activity.
Here the court took the language in the release and applied it to the defense of the belayer. However, your release should be clear that it not only protects you, your volunteers, employees and your business but your other guests and patrons.
How much business will you continue to receive if the word gets out that you can be sued just because you are not perfect in your business?
Releases are complex legal documents that require knowledge of the sport, knowledge of the types of issues and claims in the sport and a good knowledge of the law of contracts and releases. You just can’t find one on the internet and hope it works. It may not.
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Defense Attorneys never let us know when they win, I wish some plaintiff’s attorneys would catch on.Posted: September 9, 2010
This PR piece is meant to bring in new businesses because it has nothing to do with why a child fell from a playground climbing wall.
This press release was sent out touting a lawsuit filed by the law firm. The lawsuit is over a broken leg suffered by a two year old while playing an indoor play ground. The PR piece has no value to learning why and how people sue, but it is an excellent piece on:
- Keyword searches
- Scaring parents
The PR piece was just designed to grab people’s attention to get new lawsuits. The piece did so by not talking about the issues, but by using key works to grab attention, fear and using lines that end up being stupid statements. Examples of this are:
“The mother claims she did not notice any warning signs around the equipment.” What warning sign is needed when you see a climbing wall? If you fall off and you do not have a magic wand, a broom or jet pack you can fall and be hurt. Besides, how many two year olds read warning signs anyway?
“The manufacturer of the wall claims it is designed for children five years of age and up, not two like Emma,…” so why did her mother let her climb? So why did her mother let her climb up high enough to all off and break her leg?
“Aronfeld said this incident should serve as a lesson for manufacturers of playground equipment, businesses, schools, municipalities, and homeowners who provide playground areas.” What lesson? What is the lesson that manufactures are supposed to learn?
“We want our kids to be active, but the facility owners must provide proper maintenance of their equipment and grounds, plus follow the suggested guidelines set by the National Playground Safety Institute,…” What maintenance was wrong? What guidelines were not met? The child fell off a wall.
“There should be a ‘no fall zone,’ an unobstructed space located under and around playground equipment.” The child did not hit anyone on the way down, the child fell on the floor. What is the issue with a no fall zone? You can’t fall in a no fall zone or you cannot be in the no fall zone, in case someone falls?
“Playground equipment must have at least six feet of unobstructed space on all sides to help protect children during a fall. Also, all playground equipment must be at least six feet apart, which covers the fall zone, but further apart is better.” See the rant above.
“Aronfeld added that children should climb, slide and cross play equipment one at a time to keep from pushing and hurting other children.” Ok when you figure this one out let every camp, every playground monitor, every teacher, ever rec center and the rest of the world know how you are supposed to do this.
So what can we do about it?
I am not a PR person. However, I think if you are faced with this type of misdirection and misleading statements about your case, you may want to consult with a PR firm to see if setting the record straight might work. Your attorney defending you is probably going to be worried about doing this, and you better not do with without consulting your defense attorney, but it might help.
If you get the go ahead to respond, be factual and be exact. At the same time, you can expect most of the population to see the ridiculous if your post sets forth the realities of life and the situation.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2010 James H. Moss
#outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #Jumping Jelly Beans, #climbing wall, #rock climbing wall, # Consumer Product Safety Commission, # playground equipment, # National Playground Safety Institute,
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Are you a climbing wall or a falling wall?
A judge has allowed a new trial in a lawsuit against a climbing wall. The trial occurred on whether a release barred the claims of the plaintiff. The jury ruled the release did bar those claims.
On motions, the plaintiff’s attorney argued the issue of gross negligence should have been heard by the jury. The judge agreed and will reschedule another trial on the issue.
Whether or not a release ends a lawsuit is an issue of law. The judge should have ruled on that issue prior to the trial. Either the defense attorneys did not present the release issue correctly or the judge did not rule on the issue as a matter of law.
Furthermore, the issue of gross negligence should have been argued at the first trial and should be barred from a new case. The issue on getting a new trial is not what the attorneys forgot to do, but whether there was no evidence of the evidence was interpreted incorrectly by the jury.
However, here is another kicker. The issue is not about an injury from climbing on a climbing wall, even though the suit is against a climbing wall company. The fact issue is the climbing wall has a bag, probably a stunt bag, that the guests are encouraged to fall into. The bag is designed to catch a 250 pound person on a five story fall. The plaintiff fell into the bag and sustained injuries. The plaintiff fell 28 feet into the bag when he suffered his back injury. It does not appear that the bag is used to catch falling climbers but was another type of activity offered by the climbing wall.
The plaintiff, a chimney sweep, will never be able to be a fireman. I wanted to be a fireman when I grew up……
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Yeah, our system does not work because you can buy insurance for accidents.
A New Zealand climbing wall business was hit with a $50,000 fine plus $17,000 in medical bills by a government agency. A 13-year-old girl fractured her ankle and pelvis while climbing when she fell 8 meters at Ferg’s Rock ‘n’ Kayak in 2008. The New Zealand Department of Labour levied the fine and assessed the damages for the girl’s injuries. The article does not explain how the girl fell.
Government fines are not covered by any insurance policy. Like criminal fines, a government fine is not something you can purchase insurance to pay.
The owner of the rock-climbing wall, Ian Ferguson, a New Zealand Olympic legend may be forced out of business attempting to pay the fine and damages.
Because fines are not insurable, the $67,000 will have to come out of the pocket of the owner of the climbing wall.
In most countries that do not have the US litigation system, the government steps in order to regulate businesses and industry. Regulation can mean everything from creating policies and procedures, which is also being done in this case, to fine and bringing criminal charges. Here you can purchase insurance to cover the risk of litigation and damages. Although businesses in the US do not want to be sued, they can at least remain in business if they are sued.
See Ferguson hit with fine for rock climbing accident.
Off The Wall Indoor Climbing.
FOR SALE: Off The Wall Indoor Climbing
Established 1996 and still growing!
Asking $120,000 All reasonable offers will be entertained!
After considerable deliberation, Owners Peter & Maria have made a major life decision: to move their family to Patagonian Chile and pursue the development of rock & alpine climbing in that region! In order to accomplish their goal, they have decided to sell Off The Wall Indoor Climbing. “We have put our hearts & souls into building Off The Wall, and now it is time to move on, time for someone fresh to continue to build and grow this wonderful business!”
For more information, please contact Peter or Maria at: email@example.com
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
Keywords: indoor climbing wall,
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MSA is in the process of developing a reimbursement program for eligible Redpoint and Auto-Belay Descenders. The reimbursement program plans are currently being reviewed by the U.S. Consumer Product Safety Commission (CPSC). Following the CPSC review, MSA plans to issue a recall notice to owners and distributors of the affected products, including instructions for the return of units.
It is important that the Stop-Use remain in effect. Please do not use any Redpoint Descender or affected Auto-Belay Descender. As a reminder, the Stop-Use Notice applies to the following descender units:
- All Redpoint Descenders (part numbers 10024873, 10027646, and 10027798) regardless of the date the unit was manufactured or last serviced;
- Auto-Belay Descenders (part number 10021806) manufactured or last serviced on or after June 30, 2000.
The Rutland Herald is reporting that Middlebury College is being sued by a student for an injury she received in on a climbing wall. The suit alleges she received injuries to her ankle from a fall in 2006.
The allegations seem to direct the claims at the safety mats which were inadequate and unsafe.
Looking over the Middlebury College website a release is downloadable on the climbing wall hour’s page. The release appears to be well written, however it does not have a venue and jurisdiction clause. The law suit is filed in New York which prohibits the use of releases, however a release has been upheld when used by a college or university climbing wall suit because the university was not a place of amusement.
See Former student sues over accident
For information on New York’s law on releases at they affect college or university climbing walls see State Law Prohibiting Releases and NY State Law Does Not Prohibit Releases in All Cases.
For other New York cases in college programs see Court decides participant cannot assume the risk of a team building exercise.
Any injury at a climbing wall is sad and ankle injuries are a pain both the injury and through the healing process. But the pads at the bottom of the wall are visible to anyone getting ready to climb. The thickness and arrangement should have been visible to the climber. At some point you have to look around you in life and make a decision about the risk. We developed eyes and a brain, senses in our feet and hands and all of those senses would have keyed someone into thinking about the issues of landing on those pads.
Climbing wall company hit with a $2.3 million dollar verdict for a broken ankle and fractured vertebrae
Boomers of Boca Raton Florida was sued by a 46 year old man for his injuries when a hydraulic cable attachment (?) failed causing him to fall to the floor. The defense argued they had no obligation to test and maintain the equipment.
However this information is coming from the Plaintiff’s attorney’s press release so it is suspect. The only information I could find was all based on this press release.
For a list of other large judgments in the outdoor recreation arena see Payouts in Outdoor Recreation
For articles on other large payouts see: $4.7 million dollar verdict in climbing wall case against Alpine Towers in South Carolina Court and Death we have commented on allegedly has a $14 million verdict
I’m not sure what prompts prosecutors to charge people for what appear to be accident deaths of patrons. In this case a 24 year old woman was attending a festival, climbed on an inflatable climbing wall and fell off. She hit her head when she fell on the platform.
The company was charged with reckless and wanton negligence. The charges came after 2 years and a change in district attorneys. The family is suing the climbing wall operator with a trial started September 2, 2009.
I have lots of issues with all of this.
Reckless and wanton negligence is generally not a criminal act. Negligence is a breach of a duty to someone. A crime requires scienter, a criminal intent to do the crime to act in a criminal way. Negligence is not criminal by its definition. Granted there are crimes that do not require proof of a criminal intent, parking tickets being the best example.
Second, the issues reported, have their own criminal penalties if they occurred. The prosecutor states the company “failed to follow safety regulations. … had not been inspected as required, was poorly placed and lacked proper permits and that the operator was not properly trained or certified.” A violation of safety regulations either federal, OSHA, or state has specific penalties and in most cases administrative law procedures. You are cited and pay a fine. Failing to be inspected and not having the proper permits is similar, you are fined.
But I doubt there are safety regulations that would affect this situation. OSHA only covers employees and the state or county would have to enact regulations to cover inflatable climbing walls and I’ve not see any. Consequently this statement seems…incorrect?
However here again the prosecutor takes off in a different direction with proper placement and lack of training or certification. Proper placement from a criminal perspective occurs when you are dealing with a dangerous instrumentality. Dynamite, wild animals or guns are the examples given in legal textbooks. You are dealing with something that everyone knows will kill and has been identified as such by the community and therefore you have a requirement to handle with care or you can face criminal liability. A toy is not a dangerous instrumentality. It is not designed or known to kill if used incorrectly every time it is used.
Manslaughter is generally “homicide without malice aforethought.” Less than murder because the willful element is not present. Manslaughter lacks the intent to kill while manslaughter is an act that will result in death no matter what. A better way to look at the difference is murder you intend to kill someone, manslaughter you act in a way that someone was bound to die. Those are not the strict legal definitions but a general way of looking at the differences.
Here again the difference between a toy that someone dies using and a gun or dynamite is an easy way to see the difference. Using the Infinite Monkey’s theory (given an infinite amount of time an infinite amount of monkeys with an infinite amount of keyboards can type the works of Shakespeare), anything can kill. A gun on the other hand can kill every time.
However that is why we have this entire separate legal system in the US. As I’ve commented on several times in the past, we have a civil system that controls society as well as a criminal system. If you act improperly the civil system is put into place; you are sued. If you act improperly with criminal intent, the criminal system is used. In other countries the government controls more of society. It does not require the high level of intent before the government steps in and civil suits are rare and difficult.
“…properly trained or certified” is another statement solely used to inflame the possible jury pool. The training would be determined by the manufacture of the inflatable wall and the certification does not exist. If you need to be certified, stand on one foot, pat your head and jump around in a circle three times saying Jim Moss is the greatest and you are certified. If you send me $20.00 I’ll send you proof of the certification. For $25 I’ll let you tell me what you have been certified to do and for $30 I’ll let you recertify people in the program.
Don’t get me wrong, I’m not saying the actions of the company are blameless. Nor am I trying in any way to discount the pain and grief this family feels. However the blurring of the lines between civil and criminal is an issue that is growing in the US.
This brings up a lot of unanswered questions. What is the relationship between the prosecutor and the family’s attorney? Criminal charges three weeks before a civil trial starts, is extremely suspect. Why when one prosecutor did not charge has the second prosecutor decided to charge the family? Finally is the prosecutor running for re-election of suffering a public relations issue? I can’t believe there is anything but a PR campaign here.
The article is: Danvers firm faces criminal charge
A youth services agency in Doylestown a suburb of Philadelphia PA is suing the Doylestown Township to force them to protect their climbing wall and ropes course. The youth services agency rents the first floor of a converted barn from the township. Located on that floor are an indoor ropes course and a climbing gym. The township controls the rest of the building and allegedly is allowing people to access the ropes course and climbing gym when the youth services agency is not around. See Lawsuit: Town allowing access to climbing wall.
The suit claims by allowing access to the leased premises where the ropes course and climbing wall are located the town is exposing the agency to a risk of a lawsuit. They are asking for an injunction, (a court order to immediately stop the access) and their costs to allegedly protect themselves.
Seems a little oxymoronic to use one lawsuit to stop a possible lawsuit?
A UK court has held that Gary Poppleton, 32 was 75% responsible for his injuries when he fell from a climbing wall. The fall paralyzed Mr. Poppleton from the neck down. The lower court had awarded Mr. Poppleton £4 million. Mr. Poppleton has fallen 1.45 m (4.75 ft) while bouldering at the Peter Ashley Activity Centre in Portsmouth, UK.
The appellate court found that Mr. Poppleton was fool hard in his climbing.
The division of the fault under UK law means Mr. Poppleton will not receive any money for his damages.
See: Paralysed climber was ‘foolhardy’, Climber stripped of damages and People injured in hazardous activities only have themselves to blame, court rules
A 19 year old woman died after falling from a climbing wall as reported by the Wichita Falls Times Record News in Woman dies after fall from tower. The climbing gym is inside a 100 year old elevator which allows participants to climb up to 100 feet. The climbing gym had expressed its sympathy over the incident. See Gym reps express sympathy
No other information was given.
KWTX.com of Waco Texas is reporting a 12 year old girl fell from a recreation center climbing wall in Temple Texas. She landed on padding and was taken to a local hospital. The recreation center inspected the equipment and found it to be in good working order. The girls injuries were not life threatening. See Central Texas Girl Falls From Indoor Climbing Wall
JOB OPENING: Sales & Service Assistant
Start Date: Mid-late March 2008
Location: C.A.M.P. USA Offices – Broomfield, CO
Weekly Work Expectations: Monday-Friday, 20 hours per week
C.A.M.P. USA, US distributor for the Italian climbing gear brand C.A.M.P., is looking for a Sales & Service Assistant to help with sales support, customer service, general office assistance and other professional duties. The Sales & Service Assistant will be tasked with responsibilities that include the following: interaction with dealers and customers, order entry and tracking, customer service, sales support, maintaining customer databases, coordinating sales trips and presentations, and general data management. It is our expectation that the ideal candidate will grow into other managerial duties like dealer management and sales.
C.A.M.P. USA is a growing company that prides itself on delivering the highest quality customer service to support sales of the most technical climbing hard goods in the world. The ideal candidate for the Sales & Service Assistant will have a desire to work in a small business where they will be challenged to apply their knowledge and time to a wide range of duties and tasks.
Interested applicants should submit a cover letter detailing their relevant work history and ambitions along with a resume detailing relevant education, work and personal experience as it applies to the position of Sales & Service Assistant. Applications can be sent to C.A.M.P. USA Managing Director Tommy Knoll at firstname.lastname@example.org.
We posted information about an accident at the Wood River YMCA titled Climbing accident at Ketchum Idaho indoor Climbing Wall. A new story indicating everyone has hired lawyers was posted recently: Investigation into YMCA accident continues by the Idaho Mountain Express.
It appears that both parties have gone to the mattresses. (An old mafia phrase for gearing up for war.) The article dated 2/20/08 states both parties are not talking based on advice from their attorneys.
Why do you suppose the plaintiff all ready has an attorney? Maybe because they want to find out what happened? Since the plaintiff can’t find anything out because the YMCA attorney is not letting his client’s speak or answer questions, where else are you going to go to learn what happened? The person you have the most confidence in and one who matches the force the other side has applied…..another attorney.
It’s based on Newton’s Law of Motion as paraphrased for the law: For every action there is an equal and opposite reaction. If one side gets an attorney, guaranteed the other side will get an attorney.
Lots of questions in this post, lots of unanswered questions in the article and I suspect the injured climber and his families mind.
The Wood River Community YMCA in Ketchum, Idaho is investigating an accident that occurred on its climbing wall January 25, 2008, as reported by the Idaho Mountain Express and Guide in an article Accident at YMCA still Under Investigated. The injured climber Curtis Hoffenbach, 21 had reached the top of the wall when he fell to the floor. The YMCA has a climbing expert to investigate the accident.
It is not known yet how or why the accident happened. Mr. Hoffenbach’s injuries consisted of six cracked vertebrae, two of which were burst fractures. In order to stabilize them, the L8 through T12 were fused together and the L1 through L3 were anchored with titanium screws Mr. Hoffenbach is expected to be on his back for several months for recovery.
The YMCA requires all persons sign a release to be a member.
The Janesville, Wisconsin GazetteXtra.com in a headline titled Milton student sues for injury
states that a student injured in a climbing wall accident at school is suing the school district. A “safety strap” broke when she was climbing the wall resulting in a 10′ fall breaking her tailbone. The strap was attached to the ceiling and held the climbing rope. The strap broke after the student had reached the top of the wall. Another student had allegedly informed the school the rope was frayed earlier.
The lawsuit claims the school district was “negligent for failing to properly maintain or inspect the equipment and to properly place the mats. It also claims the district violated the Wisconsin Safe Place statute.”