Poorly written release failing to follow prior state Supreme Court decisions, employee statement, no padding and spinning hold send climbing wall gym back to trial in Connecticut.Posted: February 23, 2015 Filed under: Climbing Wall, Connecticut, Release (pre-injury contract not to sue) | Tags: Bouldering, Climbing Wall, Connecticut, Hold, Padding, Release Leave a comment
Release failed the CT Supreme Court test for releases, and the appellate court slammed the climbing wall.
Lecuna v. Carabiners Fairfield, LLC, 2014 Conn. Super. LEXIS 2610
State: Connecticut, Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Stamford
Plaintiff: Isadora Machado Lecuna
Defendant: Carabiners Fairfield, LLC
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: for the plaintiff
The plaintiff sued the climbing gym when she fell from a climbing wall injuring her knee and leg. The plaintiff was bouldering when a hold spun causing her to fall. She fell suffering her injuries. She claimed that there was no one there to spot her, and the landing was not padded.
The defendants filed a motion for summary judgment based on the release the plaintiff had signed when she joined the gym. The trial court granted the dismissal based on the motion, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The court starts off fairly quickly stating the motion for summary judgment failed for four reasons. The first was the court did not see the spinning hold as an inherent risk of the sport of climbing. The plaintiff also argued that since the area has just been opened that day to the public, the hold should have been checked before opening, which the judge also bought.
The court found “…that there is clearly an unresolved question of fact whether the risk of loose or spinning holds in the new bouldering area were, or could have been, minimized.”
The second issue was the employee who was supposed to spot the plaintiff had walked away. This was proved to the court by the statement by the employee apologizing upon his return: “…staff member apologized to the plaintiff and admitted he should not have left.”
The third issue was the bouldering cave there the accident occurred only had carpet over concrete instead of padding. The standard for this gym was padding, because the gym had padding every place else. If you are going to change or alter the safety equipment in your operation, you need to notice the people in the release and place notices where they can be seen.
The final decision was the release being used by the plaintiff did not meet the requirements for a release in Connecticut. The Supreme Court of Connecticut decision Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) set forth six factors for a release to be valid in Connecticut.
This court did not list the factors that the release under question failed; it just stated this decision missed three of the six.
Fourth, the court does not agree that existing Connecticut Supreme Court authority supports the enforceability of the waiver/release agreement signed by the plaintiff. The Hanks decision set out six factors to consider when determining whether the waiver/release here violated public policy. At least three of these factors could, after a full development of the record, be found to weigh against enforcement of the agreement plaintiff signed.
Based on these four factors the court quickly sent the case back for trial.
So Now What?
This decision was short and sweet and really only looked at the evidence of the plaintiff. Either the defendant release was so terrible the court could not deal with it or the actions of the defendant were such the court was not going to allow the defendant to win.
There was not a single argument supporting any position of the defendant in the decision. That is odd.
When writing a release you list the major risks, the minor risks and the risks that occur all the time. A spinning hold is something that occurs with enough frequency at a climbing gym that it should be listed in your release. That in turn might have wiped out the first argument the court objected to.
Anything you say in the heat of the moment is admitable as evidence under the excited utterance exception to the hearsay evidentiary rule. That means it is easy to get these statements into the record. Make sure your staff is trained in how to respond physically and orally to problems.
No matter what if there is a Supreme Court decision in your state that lists the requirements for a release to be valid you better well make sure your release meets those requirements.
What do you think? Leave a comment.
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