Interesting case where a release stopped claims for poor rescue at an underground amusement park in Kentucky.

Most of the decision centers around the instructions given by the court; however, there are great nuggets of help for the industry.

Bradley v. Louisville Mega Cavern, LLC, 2022-CA-0828-MR (Ky. Ct. App. May 19, 2023)

State: Kentucky; Court of Appeals of Kentucky

Plaintiff: Anthony Bradley, Individually and as Administrator of the Estate of Mitzi Westover

Defendant: Louisville Mega Cavern, LLC

Plaintiff Claims: failure to exercise ordinary care in the operation of the Mega Quest course and LMC’s failure to properly train its staff to respond to emergencies

Defendant Defenses: pre-existing health conditions and her own failure to exercise ordinary care and Release

Holding: For Defendant

Year: 2023

Summary

The deceased died at an underground amusement park after failing to maneuver an obstacle. The release she signed was ineffective as a release but was used to prove she assumed the risk of her injuries.

Facts

LMC operates an underground adventure park on the site of a former limestone mine in Louisville, Kentucky.[1] LMC operates several attractions on the site, including an underground, aerial adventure ropes course called Mega Quest. On August 17, 2017, Mitzi Westover, her husband Anthony Bradley, and her niece, Hanna Folk, purchased tickets for Mega Quest. Prior to taking part in any activity at LMC, they were required to read and execute a “Participant Agreement” (“the Agreement”).

As required, Westover, Bradley, and Folk electronically signed the Agreement. They then checked in at the front desk and were provided with equipment for the course. LMC provided a safety briefing and training on the course and use of the equipment. Shortly thereafter, the party began the Mega Quest course. Westover started an element that consisted of two horizontal ladders suspended from overhead wire ropes. Westover fell on the first ladder and was assisted by an LMC employee.

She fell again on the second ladder and was unable to get back on the ladder. The LMC employee called for a rescue via a lower-line kit. Westover was suspended on the harness for between five to eight minutes. Westover was responsive for most of this time. But as she was being lowered, Westover lost consciousness and became unresponsive. LMC called 911, which did not arrive on the scene for another nine minutes. Westover was transported to the hospital, where she died on August 22, 2017.

At trial, the Estate presented evidence that Westover’s death was caused by suspension trauma resulting from her extended time hanging unsupported on the harness. The Estate argued that this suspension trauma was caused by LMC’s failure to exercise ordinary care in the operation of the Mega Quest course and LMC’s failure to properly train its staff to respond to emergencies. In response, LMC argued that Westover’s death was caused by her pre-existing health conditions and her own failure to exercise ordinary care. Following the close of proof, the jury found that the Estate failed to prove that LMC failed to exercise ordinary care in the operation of the Mega Quest course and that such failure was a substantial factor in causing Westover’s death.

Following the close of proof, [trial] the jury found that the Estate failed to prove that LMC failed to exercise ordinary care in the operation of the Mega Quest course and that such failure was a substantial factor in causing Westover’s death.

This appeal followed.

Analysis: making sense of the law based on these facts.

The case had some very interesting actions and rulings. The trial judge ruled the release was not valid under Kentucky law and excluded it from the trial for that reason. The court also found that the immunity provided by the Kentucky agritourism-immunity statutes, in the release, were also not applicable and prevented the defendant from using those as a defense.

The trial court then ruled:

The Trial Court concluded that, even though the Release and agritourism-immunity provisions of the Agreement were unenforceable, the Agreement itself was still relevant to the disputed issues of negligence. The Trial Court redacted the bolded agritourism warning at the end of the Agreement, except for the line, “You are assuming the risk of participating in this . . . activity.”

The defendant then moved for a limiting instruction saying that the release could not be viewed as a release, but could prove the risks the deceased assumed. Stated another way, the release was used to prove the deceased assumed the risks of her injuries. The court granted this motion.

The Estate extensively argues that the Release provisions in the Agreement were not enforceable. However, the Trial Court agreed, finding that the release was not enforceable as a waiver or release of LMC’s liability for negligence. LMC does not appeal this ruling. Rather, the question on appeal is whether the Agreement was otherwise relevant to the factual matters in dispute; the question is whether the evidence was relevant, or if the prejudicial effect of the evidence substantially outweighed its probative value.

On appeal, the plaintiff argued the release should not have been used to prove assumption of the risk. The defense fought this argument but did not fight the issue of whether the release was valid under Kentucky law. This was so “weird,” even the appellate court pointed it out.

The issue on appeal then revolved around whether the release, as an assumption of the risk document, was “relevant” under the Kentucky rules of evidence.

All evidence is relevant and should be admitted unless it is specifically excluded under another rule of evidence or a law. However, the first hurdle is the evidence must be relevant.

Under KRE[4] 401, relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Under KRE 402, “[a]ll relevant evidence is admissible” unless otherwise excluded by the law or rules of evidence. “Evidence which is not relevant is not admissible.” KRE 402. Relevance is established by any showing of probativeness, however slight.

The appellate court ruled the trial court was correct. The “agreement” since it was no longer legally a release, was properly admitted to show the deceased assumed the risk which caused her death.

While the Agreement may not have been admissible to prove that Westover waived or released LMC from liability for its own negligence, it was otherwise relevant to show whether Westover was informed of the risks of the Mega Quest course, as well as whether she properly informed LMC of any physical or medical conditions and medications that may have affected her safety on the course.

Another way that evidence can be excluded is if the value the evidence offered is outweighed by any negative value it may have. This legal argument is stated as “whether the Agreement’s probative value was substantially outweighed by its prejudicial effect.”

Under Kentucky law that is a three-step test.

The Trial Court must make three basic inquiries when making a determination under KRE 403: (1) assessment of the probative worth of the evidence whose exclusion is sought; (2) consideration of the probable impact of specified, undesirable consequences likely to flow from its admission (i.e., “undue prejudice, confusion of the issues, or misleading the jury, . . . undue delay, or needless presentation of cumulative evidence”); and (3) a determination of whether the harmful effects from admission exceeds the probative worth of evidence.

To make sure a piece of evidence is admitted in a way that the jury understands the narrow reasons for its introduction and how it can be interpreted a jury instruction can be given with those limitations. Here the plaintiff failed to ask, at the right time, for that limiting instruction. By failing to ask the issue was waived.

The appellate court sided with the plaintiff on the value of the release or agreement as proof of assumption of the risk. But found that the level of damage to the plaintiff’s case was not so great that the case should be reversed on that point.

We agree with the Estate that the introduction of the Release and Indemnity portions of the Agreement posed a risk of confusing the jury. Without a limiting instruction, the jury had no guidance from the Court to determine how that language was to be read. The jury may have also been led to believe that it was to consider the legal issue regarding the enforceability of the Agreement. Under these circumstances, we believe that the Trial Court would have been justified in giving the Estate’s proposed instruction even though the issue was not raised by a contemporaneous objection.

Having said this, the mere possibility of prejudice is not enough to show manifest injustice. The Estate must show a likelihood – “a reasonable possibility” – that, but for the failure to give the instruction, a different result would have occurred.

This is great proof that a release can have a second life if properly written.

The next issue was the duties, the legal responsibility; the defendant has to the deceased. These duties are presented to the jury in a jury instruction and as such give the jury the definition they must follow in making their decision.

Here the plaintiffs wanted instructions that stated the defendant had to make the amusement park safe.

In this case, the Estate argued that LMC’s duties of ordinary care included duties to make the premises reasonably safe, to discover unreasonable risks of harm associated with the ropes course, and to take active steps to make those risks safe or to give adequate warning of those risks.

However, the trial court and appellate court rejected these instructions. The deceased was a business invitee, and the duties owed to a business invitee were adequately covered in other instructions in this case.

Another relevant issue argued by the plaintiff was whether or not a jury instruction and arguments made should have included the OSHA requirements for the operation of the amusement park. There was testimony that the staff was not trained in first aid or rescue, and OSHA requires both. However, OSHA only applies to employees, and the deceased was a patron of the park, not an employee.

The Estate also argues that the Trial Court abused its discretion by limiting its ability to cross-examine LMC witnesses regarding standards and literature published by the Occupational Health and Safety Administration (“OSHA”). At trial, LMC’s owner, Jim Lowry, testified that LMC was not required to train its staff in first aid or CPR. LMC’s former safety manager, Kimberly Coleman, also testified that it was her understanding that LMC was not required to train its employees to the standards set out by OSHA and the Association for Challenge Course Technology (“ACCT”).

Because OSHA standards only apply to employees, the plaintiff was correctly prohibited from giving these arguments.

The court upheld the ruling for the defendant in this case. Although mistakes were made, as there are in most trials, those mistakes were discretionary on the part of the court and did not rise to the level to change the outcome of the trial.

We conclude that the Trial Court’s evidentiary rulings and jury instructions did not amount to an abuse of discretion. Although the Agreement was not relevant to prove that Westover or her Estate waived any claim to liability based on LMC’s negligence, it was relevant and admissible as to the other disputed issues of negligence. Furthermore, the prejudicial effect of the Agreement did not substantially outweigh its probative value on these matters. The Release and Indemnity language in the Agreement was potentially misleading. However, the Estate did not make a contemporaneous request for an admonition. Therefore, the Trial Court’s failure to grant a limiting instruction did not amount to palpable error.

This decision is difficult to read because the arguments are couched in procedural and evidentiary issues rather than interpretation of the facts. However, that is how most cases are overturned at the appellate level, because of evidence or procedure, rather than what law is applied to the facts of the case.

So Now What?

Here is proof that writing your release to cover the risks associated with the activity or sport you are offering to the public has additional value. Granted, having the release written correctly to begin with might have saved a lot of this argument, but in any case, where your release is thrown out as a legal argument, assumption of the risk is a valid defense. Having your release written to cover the legal and knowledge issues, as in this case, may save your business.

What do you think? Leave a comment.

Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor

Outdoor Recreation Insurance, Risk Management, and Law

Recreation Insurance, Risk Management and Law.

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