Gross Negligence beats a release…but after the trial

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……

See New tack allowed on lawsuit over back injury.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

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