Good News ASI was dismissed from the lawsuit

Bad news, the post-accident investigation proved the college was negligent according to the court.

Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)

Plaintiff: Stephanie Foster, et al.

Defendant: Alex Kosseff, et al.

Plaintiff Claims: Negligence: Plaintiff was the intended beneficiary of the defendant’s work;

Defendant Defenses: No duty owed to the plaintiff

Holding: For the defendant

This is a follow-up to the article, I wrote Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry. The original article was about a motion to dismiss which the defendant safety audit company lost.

This article is the result of a motion for summary judgment filed on behalf of the defendant auditor which the court granted.

The plaintiff was a student at the defendant college, Whitman College and also worked in the Outdoor Program at the college. While working the plaintiff was asked to bring down the ropes still on the climbing wall. She climbed up to a platform next to the wall and removed the ropes. She then “hooked” into the remaining rope intending to rappel suffering severe and injuries to her spine.

The initial report prepared by the defendant auditors (meaning the individuals and the company the individual(s) worked for) was titled “Draft Risk Management Audit.” The report included extensive language about what the audit would and would not do and was quoted by the court.

The college hired the same auditor to investigate the accident. (Can you say conflict of interest?) The auditor submitted a report on his investigation into the accident. The report stated that the plaintiff had climbed above the Super Shut anchors which released the rope causing her to fall.

The court reviewed the accident report prepared by the defendant and made the following statement.

Thus, Kosseff concluded that both Whitman College and Ms. Foster were negligent in using the Super Shut anchors for a purpose for which they were not designed.

Summary of the case

The first argument the court reviewed was whether the plaintiff was an intended beneficiary of the work with the defendant auditor. The court quickly found that to be true. The Draft Audit stated the audit was being down for the college, employees and students. The college hired the audit for the benefit to the college, students and employees.

The second issue discussed was the scope of an audit. The court first went through the elements to prove negligence and what makes up the first part of the element’s duty, under Washington’s law.

There are four elements in a common law negligence claim in Washington: duty, breach, causation and damages. As to the first element, a duty of care is defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Whether a duty of care exists is a matter of law to be decided by the court rather than by a jury. This is a “threshold question” which involves three separate inquiries: “Does an obligation exist? What is the measure of care required? To whom and with respect to what risks is the obligation owed?”

Under Washington’s law, someone who inspects the premises of another does not become the insurer of anyone injured by the negligence of the inspection. In most states, an inspecting party is only “liable for undiscovered hazards which he or she undertook to discover in the first place.” Meaning, you are only liable for what you say you are going to discover and don’t.

Consequently, the defendant could not be liable, unless he had agreed to inspect the elements of the wall. The audit was directed at procedures and programs not equipment. On top of that, even if the audit looked at equipment, it did not look at how that equipment was used or in this case, misused.

Because the audit was not directed at the equipment which caused the accident, the defendant auditor was dismissed from the suit.


So Now What?

1.      If you are a college, with a climbing wall, it needs to be inspected by engineers.

2.    If you are a college, do not create a conflict of interest by hiring the company that gave you a review to investigate an accident which the review might have missed. Again, can you say Conflict of Interest?

3.    If you are any business do not have an accident investigated by anyone other than who your attorney or insurance company hires. Here, the defendant with the conflict of interest nailed the defendant college to the judgment wall with its report.

Because the report was not done by legal counsel, the report can be used by the plaintiff to prove the defendant negligent. That, however, will not be too difficult since the court in this decision already came to that conclusions based upon the accident report. However, a report that was protected by privilege would not have hung the defendant.

Although the plaintiff is probably upset that one defendant was dismissed, they have to be happy with the decision because of this issue.

The initial outcome of this case is good; the company being paid to review the college was dismissed from the case. However, the long-term effects are multiple.

·        Initially, the one defendant won, but only by sinking its co-defendants.

·        Long term, colleges are going to be hesitant to build climbing walls because this case is going to settle or go to trial for a large amount of money. Spinal cord injuries are multimillion dollar cases.

·        The entire industry has to wise up. Contracts that are created by legitimate risk management firms will be signed in advance and have tons of disclaimer and indemnification language. However, the issue is not who can sue or defend who, but what are you getting for your money?

As a side note, this part of the Draft Audit was quoted by the court.

If an accident does occur, participation in this voluntary program can protect the organization’s reputation and serve, if necessary, as part of a legal defense.

Instead of a defense, it created a legal claim and proof of negligence…….



Relevant Cases:

Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry                                                                       


Other Cases concerning Climbing Walls:

Gross Negligence beats a release…but after the trial                             

Michigan court upholds release in a climbing wall accident where injured climber sued his belayer for his injuries                                                                                                      

Poorly written release gave the plaintiff’s the only chance they had to win


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