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Plaintiff cannot assume a risk which is not inherent in the activity or which he does not know.

The decision lacks any real information on how a carabiner detached from a harness on a mobile climbing wall. However, the decision makes the correct determination on whether the plaintiff assumed the risk under New York law.

Stillman v Mobile Mountain, Inc., 2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149

State: New York, Supreme Court of New York, Appellate Division, Fourth Department

Plaintiff: Jacob Stillman

Defendant: Mobile Mountain, Inc.

Plaintiff Claims: negligence

Defendant Defenses: Assumption of the Risk and lack of constructive notice of an alleged defect

Holding: for the Plaintiff

Year: 2018

Summary

This case looks at assumption of risk as a defense, when the risk assumed is not “visible” or known to the injured plaintiff. The plaintiff fell from a mobile climbing wall when the carabiner used in the belay detached. The defense of assumption of risk failed because the risk was concealed or unreasonably enhanced according to the court.

Facts

The defendant set up its mobile climbing wall at the Eden Corn Festival. While climbing the carabiner detached from the harness and the plaintiff fell 18′ to the ground.

The climbing wall amusement attraction included a safety harness worn by the patron and a belay cable system that attached to the harness by use of a carabiner. There is no dispute that the carabiner detached from the safety harness worn by plaintiff, and that plaintiff fell approximately 18 feet to the ground below.

The defendant filed a motion to dismiss based on assumption of the risk and the defendant did not have any notice that the “defective” part of the wall was defective. What part of the wall that was defined as defective was never identified. The trial court denied the defendants motion and the defendant appealed.

Analysis: making sense of the law based on these facts.

Assumption of the risk in New York is a defense in athletic or recreational activities. If you engage in the activity, you assume the risks that are inherent in the activity.

The doctrine of assumption of the risk operates “as a defense to tort recovery in cases involving certain types of athletic or recreational activities” A person who engages in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”

However, a plaintiff cannot assume risks that the plaintiff does not know about, that are concealed, or are created due to the reckless or intentional conduct of the defendant.

However, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced”

However, the analysis the court used to deny the plaintiff’s motion was the defendant failed to prove that falling from a climbing wall was an inherent risk of climbing.

Here, we conclude that the court properly denied that part of defendant’s motion based on assumption of the risk inasmuch as it failed to meet its initial burden of establishing that the risk of falling from the climbing wall is a risk inherent in the use and enjoyment thereof

It seems to be confusing to say the risk of falling off a wall, suspended in the air is not obvious. However, this is a New York decision, which are always brief. Therefore, the statement of the court encompasses the real risk, that the carabiner or part of the system would fail allowing the plaintiff to fall.

More importantly, the plaintiff could not assume the risk of the carabiner failing because it is not an inherent risk of the sport and because there is no way the plaintiff could have known, seen, or discovered the risk.

So Now What?

The decision lacks more information than it provides. How did the carabiner become detached? Carabiners do not fail and there is nothing indicating the carabiner did fail. Consequently, either the carabiner was never attached properly or the plaintiff opened the carabiner.

The decision does follow other decisions like this in all other states. How it is explained is just a little confusing.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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SFIA Partners with World Federation to Promote Global Product Labeling Database

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UIAA Newsletter_5 July 2018: Preservation of Natural Rock, style=’font-size:11.5pt;font-family:”Georgia”,serif;color:black’>2018 UIAA Rock Climbing Festival Award, and More

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The UIAA newsletter.
5 July 2018
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The UIAA Newsletter. 5 July 2018

In Brief

The 2018 UIAA Respect the Mountains Series commences this weekend with two events taking place in Italy. The application process for the UIAA’s other annual core project in sustainability – the Mountain Protection Award – closed on 30 June with over 20 project submissions received from 17 countries. At both the 2018 Sustainable Summits Conference and Outdoor2018, the UIAA played a key role in discussions related to the future of the mountains. UIAA member federations, delegates and partners are informed that the Calling Notice for the 2018 UIAA General Assembly was published on 30 June. Registration opens next week.

Next Newsletter – Week of 23 July.
Key topics: 2018 UIAA Rock Climbing Festival Award, UIAA Safety Standards

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NATURAL ROCK FOR ADVENTURE CLIMBING:
FRESH CONCERNSAs part of its commitment to raising awareness about the importance of preserving natural rock and to reducing indiscriminate bolting, the UIAA is sharing an article from Norwegian climber Robert Caspersen concerning an expedition made in late 2017 with three friends to climb the high east face of Gessnertind (3020m) in Antarctica.

The article was brought to the UIAA’s attention by former UIAA Management Committee member and legendary mountaineer Doug Scott, who spearheaded the UIAA’s seminal paper on ‘UIAA Recommendations on the Preservation of Natural Rock for Adventure Climbing’ in 2014. The paper evaluated the history and appeal of different forms of rock climbing, and considered earlier attitudes to fixed gear. It also considered how the case for adventure climbing can be re-stated more effectively and offered guidance to UIAA member federations in developing countries on how to sustain the balance between sport and adventure climbing

“Thearticle written by Robert Caspersen is exceptionally inspiring and cannot fail, I am sure, to move people towards at least thinking of restricting the use of the bolt,” explains Scott. Full Story.

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LAUNCH:
2019 UIAA ICE CLIMBING WORLD TOUR CALENDARThe UIAA is delighted to confirm the calendar for the 2019 Ice Climbing World Tour. Comprising a comprehensive and impressive programme of events, the 2019 calendar is the biggest to date and includes six World Cup events, four European Cups, a World Championships, a World Combined Championships and a World Youth Championships. The World Tour will visit ten different countries on three continents and features two events taking place in major cities – Moscow and Denver. Full story.

Athletes, officials and member federations are informed that the Competition Regulations for the 2019 UIAA Ice Climbing World Tour are also available. Full story.

LATEST NEWS FROM
UIAA MEMBER FEDERATIONS & PARTNERSShare your news with the UIAA by emailing news

ALPINE CLUB OF CANADA
Mountain Science, Climate Change & Education
2018 State of the Mountains Report

ALPINE CLUB OF PAKISTAN
The Alpine Club of Pakistan have confirmed Mr. Abu Zafar Sadiq as President and Mr.Karar Haidri as Secretary

AMERICAN ALPINE CLUB
Lending Climbers A Stronger Voice

ASIAN ALPINE ASSOCIATES
Latest newsletter now available

BRITISH MOUNTAINEERING COUNCIL
Lynn Robinson becomes the BMC’s first-ever female president.

DEUTSCHER ALPENVEREIN, DAV
Climbing Safety Video Series Now Available

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2018 UIAA MOUNTAIN PROTECTION AWARD:
APPLICATION CLOSESThe UIAA Mountain Protection Commission confirms that as of 30 June, the application process for the 2018 UIAA Mountain Protection Award is now closed. The sixth edition of the Award has welcomed over 20 applicants from some 17 countries. The Award Assessment Team are currently reviewing all applications. Projects accepted for the 2018 Award will be contacted in due course. Showcased projects will be uploaded to the UIAA website during the month of July. The winning project will be announced at the 2018 UIAA General Assembly held in Ulaanbaatar, Mongolia on 6 October. Full story.
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UIAA SHAPING DISCUSSIONS
AT SUSTAINABLE SUMMITS AND OUTDOOR 2018 Two major international gatherings for the outdoor community took place in June 2018 with the UIAA represented, and leading discussions, at both events. First, the biennial Sustainable Summits Conference took place in Chamonix, France from 12-14 June where the three-day discussions focused on the future for the world’s high mountains. A week after the Sustainable Summits conference, the UIAA was represented at OutDoor, the world’s leading trade fair in the industry which took place in Friedrichshafen, Germany from 17-20 June. Full story.
RECENT ARTICLES

A reminder of some other recent articles published by the UIAA:

SAFETY:
Safety Standards / Support UIAA SafeCom Research:
Submit Examples of Climbing Anchor Corrosion

Safety Label Holder / Skylotec precautionary call for inspection check of Via Ferrata sets
MedCom / Medical Advice for Women Going to Altitude

SKILLS:
Alpine Series / What Weakens A Rope?
Alpine Series / Gear: Single & multi pitch check list

SUSTAINABILITY:
RTM / 2018 UIAA Respect the Mountains Series: Dates Announced

IN MEMORY

The UIAA is sad to hear about the recent passing of two pioneering figures in the world of climbing and mountaineering. Suk-Ha Hong, who died on 29 May, was an influential presence in Korean mountaineering. Among his legacies are the creation of Man and Mountain magazine and his role in the foundation of Asia’s Piolets d’Or. Suk-Ha Hong was awarded “Order of Civil Merit” by the Korean Government in 2008 for his devotion to mountaineering culture.

On 20 June, elite ice climber and French guide Stéphane Husson was involved in an accident in the Alps and died in hospital the following day. A 16-year old climber was killed in the same accident. Husson played a pivotal role in the development of competition ice climbing in France. Further details.

UPCOMING EVENTS
8 July
RESPECT THE MOUNTAINS
Passo della Focolaccia, Italy
8 July
RESPECT THE MOUNTAINS
Molise, Italy
22 July
RESPECT THE MOUNTAINS
Snowdonia National Park, Wales
23-30 July
UIAA YOUTH MOUNTAINEERING SCHOOL
Mount Kazbek, Georgia
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The UIAA was founded in 1932 and represents over 90 member associations in 68 countries. The organization’s mission is to promote the growth and protection of climbing and mountaineering worldwide, advance safe and ethical mountain practices and promote responsible access, culture and environmental protection.

The organization operates through the work of its commissions which make recommendations, set policy and advocate on behalf of the climbing and mountaineering community. The UIAA is recognized by the International Olympic Committee (IOC).

UIAA OFFICE
c/o Schweizer Alpen-Club SAC
Monbijoustrasse 61 Postfach CH-3000
Bern 14, Switzerland
Tel: +41 (0)31 370 1828news

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Philmont Scout Ranch Cancels all Trips, Treks and Backcountry Programs for Summer of 2018

PHILMONT SCOUT RANCH ANNOUNCES CLOSURE FOR 2018 SUMMER SEASON – 7/5/18

After careful consideration of the situation and available options, the difficult but prudent decision has been made that the Philmont backcountry will remain closed for treks and individual programs for the remainder of the 2018 summer season. This means that the following programs scheduled for this summer are canceled: 7- and 12-day treks; and individual backcountry programs, including Rayado, ROCS, Trail Crew, STEM and Ranch Hands.

Refund Checks for all affected crews will be sent to the lead contact advisor on Monday, July 9, 2018. Over the next few days, our staff will be contacting the lead advisor or contingent leader of these crews confirming the refund, offering a trek at Philmont for the 2020 season, and answering any questions. Please wait and allow the Philmont team to contact your crew – your assistance will help make sure that Philmont phone lines remain open. Your cooperation will be most appreciated. While High Adventure opportunities are at capacity at Northern Tier and the Florida Sea Base, there are opportunities at The Summit and they would be happy to accommodate your crew.

This has been a difficult and at the same time inspiring summer at Philmont. For the first time in its history, Philmont is closing its backcountry. As difficult as this situation has been for our Philmont family and for Scouts across our country, we have been truly inspired by the incredible enthusiasm and perseverance shown by our staff, the resourcefulness displayed by displaced crews to find other summer adventures, and the understanding and good wishes from thousands of Scouts and Scouters from around the world. For all of these blessings, we are truly grateful.

Fire danger in northern New Mexico is currently classified as “extreme.”

The fire danger has led to closure of most public lands near Philmont. The Carson National Forest’s nearby Questa and Camino Real Ranger Districts, including the Valle Vidal area that Philmont utilizes, have been closed to public access. The New Mexico Game and Fish Department has similarly closed all of its properties that border Philmont, including the Colin Neblett Wildlife Management Area on our western border and the Elliott S.

Barker Wildlife Management Area adjacent to our North Country. Links to these closure notices are included at the end of this release.

On Friday, June 29, 2018, the Morris (Moras) Creek fire started south of the Philmont property line on private neighboring property near the Rayado River Canyon. This fire is currently more than 1500 acres and is burning on Philmont property.

Our ranch managers, volunteer leaders, and national staff have monitored the situation since the Ute Park fire began and attempted to plan alternate trek routes and procedures required by Philmont to manage backcountry emergencies. Because of the Morris (Moras) Creek fire, these alternate trek routes have now been eliminated. The safety of our youth participants, volunteers and staff is the priority at Philmont Scout Ranch and for the Boy Scouts of America.

This decision applies only to Philmont’s backcountry programs. Philmont’s Camping Headquarters and Base Camp area, the Philmont Training Center, the new National Scouting Museum, the Chase Ranch, and the Kit Carson Museum at Rayado will remain open all summer. Training courses at the Philmont Training Center and the National Advanced Youth Leadership Experience

(NAYLE) will proceed as scheduled. This decision does not affect Philmont’s fall programs, including Autumn Adventure and fall PTC training conferences.

The Philmont ranger motto is “scramble – be flexible.” That’s what we at Philmont have been doing all summer as we deal with these unexpected and unfortunate circumstances. Our terrific summer staff has embraced challenges that they didn’t anticipate when they signed on. They expected to be delivering awesome backcountry programs and inspiring high adventure experiences to thousands of Scouts and Scouters. Instead, they have enthusiastically taken on difficult and physically taxing timber stand improvement projects, backcountry fire abatement work, community service projects, and staff jobs at other camps. They are making sure we will be ready to re-open next year! Their willingness to roll up their sleeves, pitch in and meet the challenges we have faced reflects the very best on Scouting and our nation’s youth. They have our sincere thanks!

Our National BSA leadership has been working with airlines to assist crews with refunds, changes, and credits. Please refer to the following contacts for support.

American Airlines—-1-800-221-2255

Southwest Airlines—1-800-435-9792

Alaska Airlines


ORTOVOX Recalls Avalanche Transceivers Due to Loss of Emergency Communications Capability

Hazard: The transceiver can fail to work properly due to a software error and fail to transmit the position of survivors of an avalanche, resulting in delayed search and rescue operations.

Remedy: Repair

Consumers should immediately stop using the recalled transceivers and return them to Ortovox for a free repair, including free shipping.

Consumer Contact: ORTOVOX toll-free at 877-384-9252 from 8 a.m. to 5 p.m. MT Monday through Thursday, email at ortovox.warranty@deuterusa.com or online at http://www.ortovox.com and click on RECALL 3+ for more information.

Units: About 20,000 (In addition, about 7,000 were sold in Canada)

Description: This recall involves Ortovox avalanche transceivers, model numbers 1137000006, 1137000001 and 1137000002. They were sold in black/blue (model number 1137000006), black/black (model number 1137000001) and neon green (model number 1137000002). The transceiver is used as a beacon to locate an individual in the event of avalanche burial. ORTOVOX and 3+ are printed on the top of the device. In the open/receive position, the top half of the transceiver displays a blue screen with green border that displays an image and distance reading of the buried individual. The transceivers measure about 5 inches long by 3 inches wide by 1 inch thick in the closed/transmit position. All transceivers manufactured from 2010 through 2018 are included in the recall. The manufacture date is printed inside the battery door on the back of the transceiver with a roman numeral representing the quarter of the year and a two-digit number referring to the year. For example, a manufacture date of IV/17 represents the fourth quarter. The year of manufacture is five years earlier. In this case, the transceiver was manufactured in the fourth quarter of 2012.

Incidents/Injuries: None reported

Sold at: Outdoor specialty stores, ski shops nationwide and direct to avalanche professionals, search and rescue personnel and mountain guides from July 2010 through April 2018 for about $350.

Importer: Deuter USA, of Longmont, Colo.

Distributor: Ortovox, of Germany

Manufacturer: ORTOVOX Sportartikel GmbH, of Germany

Manufactured in: Germany

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

What do you think? Leave a comment.

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What the term “strictly construed” actually means when used to describe how a release will be viewed by the court.

The decision involves several legal issues, the one that concerns us is the issue of a release for a product. In Kansas, releases are strictly construed. In this case that meant that the language of the release did not meet the requirements of state law for a release. However, the court stretched incredibly far to come to that conclusion.

Fee v. Steve Snyder Enterprises, Inc.; Et. Al., 1986 U.S. Dist. LEXIS 28158

State: Kansas, United States District Court for the District of Kansas

Plaintiff: Patricia Fee

Defendant: Steve Snyder Enterprises, Inc.; Russell Young; SSE, Incorporated; Greene County Sport Parachute Center of Wellsville, Kansas, Inc.; and John Doe Corporation

Plaintiff Claims: Wrongful death and survival claims based on negligence, product liability and breach of warranty

Defendant Defenses: Statute of Limitations ran,

Holding: for the plaintiff

Year: 1986

Summary

The lawsuit was brought over the failure of an automatic opener, which did not during a sky dive. The widow sued the manufacture of the device and the sky-diving center who sold the device to the deceased. The deceased signed a release and indemnity agreement, two separate documents when purchasing the automatic opener.

In Kansas, releases are allowed but strictly construed. Here strict construction is used, improperly, to interpret the release in an extremely narrow way to allow the lawsuit to proceed.

Facts

The deceased died when he was sky diving, and his automatic opening device failed to open. The automatic opening device was manufactured by the defendant.

The plaintiff spent eight years attempting to serve the defendant, starting in 1977 and finally serving the defendant in 1985. This lead to a discussion about when the lawsuit actually started, which takes the first half of the decision. Because the defendant had avoided service of process, because he knew about it and made attempts not to get sued, the date of the lawsuit started was the date he was served. However, due to the defendant’s actions, the statute of limitations did not run.

The widow purchased the automatic opener for the deceased, although the dates in the decision must be incorrect. The decision states the device was purchased a year after the deceased died. The device failed the first time it was used by the decedent.

The deceased signed a release for the parachute center. The defendant manufacturer raised the release as a defense to the claims of the plaintiff against the manufacture as well as those claims against the dive center.

The release was on one side of the paper and on the reverse was an assumption of risk language. The deceased also signed a separate indemnify agreement. The decedent signed both agreements.

This decision is that of the Federal District Court in Kansas.

Analysis: making sense of the law based on these facts.

The court first looked at release law in Kansas. If not against public policy, then Kansas recognizes exculpatory agreements, releases. However, like many state’s releases, the courts in Kansas use the language that releases “are not favored by the law and are strictly construed against the party relying on them.” Strictly construed does not require the specific term negligence but must clearly appear to express the intent to release from liability the defendant.

It is not necessary; however, that the agreement contained specific or express language covering in so many words the party’s negligence, if the intention to exculpate the party from liability clearly ap-pears from the contract, the surrounding circumstances and the purposes and objects of the parties.

The court in reading the release found it did not stop the plaintiff’s claims.

The court first in looking at the language found the language covered use of the product but did not cover liability for “sale” of the product.

First, a review of the agreement itself shows that, although it specifically releases the Parachute Center from liability for injuries or death arising out of the “ownership, operation, use, maintenance or control” of many devices,” the agreement fails to mention any release of liability revolving around the sale of any product to the parachuter.

The court admitted the deceased understood that parachuting was dangerous, that was not enough. By making the determination that the product was defective when sold, the court found the release would not stand because you cannot release liability for selling a defective product.

Strictly construing the agreement; however, we do not believe that this should be interpreted to exempt the Parachute Center from a failure to use due care in furnishing safe equipment, or should allow it to sell a product in a defective condition unreasonably dangerous to the parachuter. To do so would impermissibly extend the terms of the agreement to situations not plainly within its language.

The court then determined the release would also not work to stop the plaintiff’s claims for breach of either express or implied warranty. The court found attempting to release the defendant parachute center from liability was unconscionable. Under Kansas law, a release could be used to stop warranty claims, unless that was found to be unconscionable.

We, therefore, hold that plaintiff’s action is not barred by the release, covenant not to sue and indemnity clause signed by the plaintiff’s decedent. Summary judgment in favor of the defendants Parachute Center and Russell Young is therefore, inappropriate.

The indemnification agreement seemed to be ignored in reaching this determination by the court.

So Now What?

Strict construction is a term that gives leeway to a court to review the language of the release to make sure it conforms to the language required under state law. However, that term was created and applied to release’s decades ago and rarely used now except in rare situations like this. When the judge wants the defendant to pay.

Probably the term was created when courts were first asked to apply releases to a plaintiff’s claims and wanted a way to soften the blow. Now days, in most states it is quoted in the decision at the beginning and never heard of again. Eventually if the courts review enough releases, the term is not even quoted.

Few states allow a release to be used to stop product liability claims. However, several states do and several states allow assumption of risk to stop product liability claims. A well-written release that incorporates assumption of risk language is still effective in many product liability cases.

Here, however, the court reached as far as it could to find that the release was barred from stopping the claims. Part of that desire to allow the suit to proceed was probably because of the actions of the manufacturer who spend eight years avoiding service of the lawsuit.

The rest, however, was simply a stretch to allow the lawsuit to proceed.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

 

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Stillman v Mobile Mountain, Inc., 2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149

Stillman v Mobile Mountain, Inc., 2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149

[**1] Jacob Stillman, Plaintiff-Respondent, v Mobile Mountain, Inc., Defendant-Appellant, et al., Defendants.

543 CA 17-01915

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149

June 8, 2018, Decided

June 8, 2018, Entered

CORE TERMS: climbing, defective condition, carabiner, festival, harness, constructive notice, failed to meet, dangerous condition, premises liability, summary judgment, attraction, amusement, worn

COUNSEL: [*1] OSBORN, REED & BURKE, LLP, ROCHESTER (JEFFREY P. DIPALMA OF COUNSEL), FOR DEFENDANT-APPELLANT.

CONNORS LLP, BUFFALO (LAWLOR F. QUINLAN, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

JUDGES: PRESENT: SMITH, J.P., CARNI, DEJOSEPH, AND TROUTMAN, JJ.

OPINION

Appeal from an order of the Supreme Court, Erie County (Mark J. Grisanti, A.J.), entered March 28, 2017. The order, insofar as appealed from, denied that part of the motion of defendant Mobile Mountain, Inc., seeking summary judgment dismissing the complaint against it.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he fell from an artificial rock climbing wall amusement attraction owned and operated by Mobile Mountain, Inc. (defendant) at the Eden Corn Festival. Insofar as relevant to this appeal, defendant moved for summary judgment dismissing the complaint against it on the grounds that the action is barred by the doctrine of assumption of the risk and, in the alternative, that it lacked constructive notice of any alleged defective condition causing the accident and injuries. Supreme Court denied that part of the motion, [*2] and we affirm.

The climbing wall amusement attraction included a safety harness worn by the patron and a belay cable system that attached to the harness by use of a carabiner. There is no dispute that the carabiner detached from the safety harness worn by plaintiff, and that plaintiff fell approximately 18 feet to the ground below.

The doctrine of assumption of the risk operates “as a defense to tort recovery in cases involving certain types of athletic or recreational activities” (Custodi v Town of Amherst, 20 NY3d 83, 87, 980 N.E.2d 933, 957 N.Y.S.2d 268 [2012]). A person who engages in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). However, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced” (Custodi, 20 NY3d at 88). Here, we conclude that the court properly denied that part of defendant’s motion based on assumption of the risk inasmuch as it failed to meet its initial burden of establishing that the risk of falling from the climbing wall is a risk inherent in the use and enjoyment thereof (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]).

Defendant further contends that the court [*3] erred in denying that part of its motion based on lack of constructive notice of any alleged defective condition in the carabiner or the climbing wall. We reject that contention. Defendant casts the alleged defective condition as a dangerous condition on the property giving rise to premises liability (see generally Gordon v American Museum of Natural History, 67 NY2d 836, 837-838, 492 N.E.2d 774, 501 N.Y.S.2d 646 [1986]), and it thereafter attempts to establish its lack of liability based upon its lack of constructive notice of that condition (see generally Depczynski v Mermigas, 149 AD3d 1511, 1511-1512, 52 N.Y.S.3d 776 [4th Dept 2017]). Even [**2] assuming, arguendo, that the alleged defective condition constitutes a “dangerous condition on property” (Clifford v Woodlawn Volunteer Fire Co., Inc., 31 AD3d 1102, 1103, 818 N.Y.S.2d 715 [4th Dept 2006] [internal quotation marks omitted]), we conclude that defendant failed to establish either its own level of legal interest in the premises or its rights and obligations associated therewith. Indeed, the record is devoid of evidence regarding who owned the real property where the festival was held. Further, although defendant’s president testified at his deposition that defendant had a “contract” to operate the climbing wall at the festival, defendant failed to submit a copy of that contract or to otherwise establish the terms of or the identity of any other party to the alleged contract. We therefore conclude that defendant [*4] failed to meet its burden on that part of its motion based on premises liability (see generally Alvarez, 68 NY2d at 324).

Entered: June 8, 2018