The standard of care for a ropes or challenge course changes based on who is running it and who is using itPosted: June 4, 2012
Linthwaite v. Mount Sinai Union Free School District, 2011 N.Y. Misc. LEXIS 6525; 2011 NY Slip Op 33569U
A school owes a higher degree of care to students then a non-school.
This decision was based on a motion for summary judgment filed by the defendants in this matter. The court denied the motion for summary judgment because there were numerous facts at issue. If there are facts that cannot be resolved or are at dispute a motion for summary judgment cannot be granted. The basis for denial was the motion filed by the defendants was deficient on several grounds.
The plaintiff was a student of the defendant. She was participating in a rope’s course described by the court as a challenge by choice event. She was injured when she fell off a low element wall, a wall, attempting to help another student over the wall. Her complaint alleged the defendants had actual and constructive notice of the dangerous conditions which lead to her injury.
The defendant argued the plaintiff assumed the risk of the activity, that it was not negligent in its supervision, and that it did not fail to provide a safe place.
Because the defendant was a school, the court reviewed the standard of care that a school owed to a student.
Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The school’s standard of duty to a student is what a reasonable prudent parent would have done under the same circumstances. “The standard for determining whether a school was negligent in executing its supervisory responsibility is, whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision”
Schools are under a duty to adequately supervise its students and can be held liable for foreseeable injuries proximately caused by the failure of supervision. The standard of care for a school is higher than the standard of care for a commercial challenge course, meaning the school owes a higher degree of review and supervision to prevent injuries of students.
The plaintiff must show that the school had sufficient specific knowledge or notice of the dangerous condition or conduct and the breach of the duty to supervise was the cause of the injury.
In order to support its motion the defendants presented attorney affidavits, pleadings and a report from its expert witness. The report from the expert witness went through all the issues and said the school met the standard of care for each of those issues. However, the expert witness failed to attach or explain the standards, failed to identify any support or identify any support for his opinions, and the judge ignored the report.
The expert witness just can’t state a fact; the fact or opinion in the report must be substantiated by research, experience or other information in the field. Worse the expert kept referring to the work of a builder in the industry and then never produced any proof from the builder.
Neither the expert or either party has submitted a copy of the industry standards for Project Adventure, the number and positioning of spotters for the specific activity, the student to adult ratio, the instructions given to spotters, or the instructions to be provided to students participating in the event pursuant to the industry standard.
The next issue that the court quickly dismissed was the extension of the assumption of the risk defense labeled challenge by choice. A witness for the defense testified that the plaintiff was informed the event was a challenge by choice activity and what that meant. Meaning the plaintiff did not have to participate in any or all the activities.
However, the plaintiff came back and testified that during the activity she was told she had to undertake the wall. “However, when it came time for the wall activity, she and her friends were told they had to do it; they were not told that there would be repercussions if they did not do it.” This is enough to create a factual issue that defeats a motion for summary judgment.
This is another problem in this type of activity. The challenge by choice theory is usually repudiated by the defendant during the activity.
The court then listed all the issues the plaintiff had introduced that were still at issue.
Additional factual issues exist as to whether the supervision and spotting was adequate, whether the spotters were properly trained and instructed, and whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would have provided greater supervision to the students, including adequate placement and training of the appropriate number of spotters.
The defendant’s expert witness had covered all of these issues; however, he had failed to support his opinion in his report with the standards he constantly referred to:
Although Mr. Demas averred that the use of helmets, matting, or the belay system is not consistent with industry standards, he does not state what the industry standard is, and whether the failure to provide such safety equipment is inconsistent with industry standards.
The defendant’s motion for summary judgment was denied.
So Now What?
A school can rarely use a release to stop lawsuits. In New York, it may or not have worked anyway because of New York laws on releases. See States that do not Support the Use of a Release and New York Law Restricting the Use of Releases.
However, the assumption of risk defense could have been stronger if pre-activity work had been done to support the defense.
Assumption of the risk usually means the person assuming the risk knows about, understands and assumes those risks. See Assumption of the Risk. Those risks can be explained in a way that can be reproduced for the court such as a video. For a great example of how this can be done see the OARSWhitewater Orientation Video Series. These videos cover 90% of the risks of whitewater. A plaintiff would be hard-pressed to argue they did not know and understand the risks if they saw the videos.
To prove the client saw the videos, you can have the client prove it in writing. A written (express) assumption of the risk document is a great way to prove the plaintiff assumed the risk. The document can list the major risks and the ones that occur frequently. A jurisdiction and venue clause can be included as well as a statement saying the client has seen and understood the videos.
Plaintiffs will always argue that they were told incorrectly, did not understand, or as in this case, were told conflicting, things that lead to their injury. If your only defense is assumption of the risk, you must be prepared to prove that your version of what happened as well as well, the plaintiff knew and assumed is the only version.
You also need to make sure your expert witness report will meet the scrutiny of the court.
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