Failing to let go, “volunteer” teacher falls of zip line & recovers $1,650,000Posted: October 27, 2014
No defenses, no release, just a trail and an appeal which the plaintiff lost. Have EVERYONE sign a release, including staff and volunteers of your guests
Plaintiff: Linda Timmer and her husband Jere Timmer
Defendant: Shamineau Adventures
Plaintiff Claims: Negligence
Holding: For the Plaintiff, final damages of $1,650,000
There is not a lot of factual information to be learned in this case. There are several procedural issues that can be helpful in understanding the law as well as identification of a gaping hole in the risk management planning for this defendant. A risk-management weakness that cost the defendant $1,650,000.
The plaintiff was a teacher employed by the school district that was attending the ropes’ course. The case does not state whether this is a worker’s comp subrogation case or whether the plaintiff was working at the time and covered by worker’s compensation.
The ropes course director asked the plaintiff if she wanted to assist with the students at the zip line. The court went into a detailed explanation of the zip line and how it operated. Basically, the zip line was 300 feet long going from a tower to a platform across a valley. The zip line sagged in the middle so the riders slowed as the approached the platform going uphill.
The plaintiff was given a few minutes of instruction and was shown how to detach riders from the zip line on the platform. A student arrived at the platform, and the plaintiff grabbed her and attempted to disconnect her from the zip line. The student started to drift backwards still attached, and the plaintiff grabbed her. The student and plaintiff drifter backwards to the low point of the zip line which left the plaintiff holding on 25’ above the ground. The plaintiff let go and fell suffering injuries.
The plaintiff sued, and the defendant lost at trial. The jury awarded $4.5 million to the plaintiff and split the damages 60% of the liability to the defendant and 40% to the plaintiff. This resulted in an award for the plaintiff of $2,783,949.
Analysis: making sense of the law based on these facts.
The issues on appeal were whether the defense had time to deal with the new plaintiff’s expert witness, whether the jury apportioned the damages correctly, whether a motion for the new trial should have been granted and whether all of this should have allowed the defense to have a continuance. All of those issues are discretionary. That means the judge has discretion to make decisions and unless those decisions are so grossly out of line the appellate court will not over turn them.
One issue that is worth examining, and that is the remittitur. A remittitur is a reduction in the amount awarded by the jury by the judge. The jury awarded $2,783,949. The judge reduced the amount to $1,650,000 in an effort to resolve some of the issues in post-trial motions. Normally, this is done by the judge because the amount awarded by the jury exceeds the amount the plaintiff asks for. The alternative is the judge orders a new trial. This places the plaintiff in a quandary. Try again at trial to get more money or take what the judge has offered.
Here the defense was arguing the amount awarded was excessive, and the other issues enumerated above and the plaintiff had to accept less money than awarded or go through the entire process again.
The appellate court agreed with the trial court on all of its decisions. None of the arguments presented on appeal by the defendant concerned defenses so it is difficult to determine what was a defense at trial.
So Now What?
The hole that is evident in this mess is the plaintiff did not sign a release. A release might have barred a claim by the plaintiff and by any insurance company or worker’s compensation insurance company under its subrogation rights. A release might have stopped this lawsuit. Minnesota has strict requirements on how a release should be written, and a badly written release would have not been effective.
Many times “staff” of the group coming to the event are skipped in the paperwork process. No one should be allowed on the property without signing a release. The staff could have signed up on line or when they arrived. Their releases could have been part that was handed back in when the parents signed releases for their kids. A release for a minor would not have worked in Minnesota if it went that far, but even so, releases may stop someone from suing who is unsure of the legal value of a release.
Always have a well-written release signed by everyone coming to your business, program or activity. That one release might have been worth $1,650,000, interest, costs and the legal fees to defend the case.
What do you think? Leave a comment.
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