Plaintiff in a ropes course injury (Nitro Swing) fails because she assumed the riskPosted: April 20, 2015
It is wonderful when the court looks at the facts and says plainly, no way you are going to win a case because this is a stupid claim, and your expert is clueless.
State: New York, Supreme Court of New York, Appellate Division, First Department
Plaintiff: Kathleen Sajkowski et al
Defendant: Young Men’s Christian Association of Greater New York
Plaintiff Claims: negligent in failing to place shock absorbing material such as wood chips below the Nitro Crossing
Defendant Defenses: Assumption of the Risk
Holding: For the defendant
This case is written so clearly that most of this article will be quotes from the opinion.
The plaintiff participated in a Wellness for Life weekend put on by the defendant YMCA. One of the activities was a Nitro Swing. The court described the Nitro Swing as:
This event involved nothing more than swinging from a rope. The rope dangled just about 1 1/2 feet from the ground in the center of an imaginary pit that was actually flat, bare dirt. Those who chose to participate in the Nitro Crossing would start out by standing on a log that was lying at ground level. Then, holding on to the rope, they would swing approximately five to seven feet to another log that was also lying at ground level.
Don’t you just love the first sentence! “This event involved nothing more than swinging from a rope.” It distilled the essence of the lawsuit and removed the marketing and hyperbole that clouds life and litigation now days.
While waiting for her turn the plaintiff saw several other participants lose their grip on the rope and fall. When she tried the Nitro Swing she also lost her grip on the rope and fell injuring her ankle.
The plaintiff sued. The trial court dismissed her lawsuit based on assumption of the risk, and the plaintiff appealed the decision.
Analysis: making sense of the law based on these facts.
The court said the plaintiff assumed the risk.
…by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” This encompasses those risks that are associated with the construction of the playing field and any open and obvious defects on it. Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks. Furthermore, where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant
Then the court states in very plain English:
It is also incontrovertible that the risks involved were not concealed and that plaintiff fully comprehended them since she had seen several other participants fall just moments earlier. Moreover, to the extent that the Nitro Crossing failed to have shock absorbing material beneath it, this was nothing more than an open and obvious condition of the playing surface, which, as noted, is not actionable….
The plaintiff, then through the opinion of her expert witness tried to convince the court that the defendant should have padded the ground beneath the swing. The court did not really appreciate her expert’s opinion.
Plaintiff attempts to avoid the foregoing analysis by establishing that the Nitro Crossing was constructed or operated in violation of prevailing industry standards. Specifically, it is alleged that shock absorbing material beneath the Nitro Crossing was required, as well as proper training for plaintiff with regard to her participation in the activity.
The reason was the expert used by the plaintiff dug up standards for gymnastics for children under 12.
In seeking to demonstrate such violations, plaintiff submitted expert evidence that analogized the Nitro Crossing to a gymnastics event and pointed to the requirements for construction of playgrounds built for children under 12 years of age.
Then the court sort of slams the case closed.
She was only swinging from a rope with her body suspended just barely off the ground. The instructions for such an activity are simple and straightforward–hold the rope and swing. Similarly incongruous was plaintiff’s reliance on standards for the proper construction of playgrounds built for children under 12 years of age. The Nitro Crossing, after all, was not part of a children’s playground.
As much as appellate courts are allowed to, the above paragraph is pretty much an “up yours” in legalese.
So Now What?
Sure, Always Use a Release, but in this case for this particular event, it did not matter.
This is a situation where no matter how stupid the claim or how valid the defenses; the plaintiff still gave rolled the dice hoping for a very sympathetic judge or an easy settlement. The defendant and their insurance company, thankfully, stood up to the stupid claims and fought them; probably to a greater cost than any settlement.
What do you think? Leave a comment.
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