After this decision, I’m not sure you could prove assumption of the risk without a written document and a video or more.

Posted: April 22, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Pennsylvania | Tags: assumption of the risk, Balance Beam, Challenge Couse, Corporate Team Building, Low Challenge Course, Team Building, Woodloch Pines Resort |3 Comments

Plaintiff was part of a team-building group for her school/employer, she fell off the balance beam and sued for her injuries.

Hazen v. Woodloch Pines Resort, Civil Action 3:21-cv-00174 (M.D. Pa. Feb 16, 2024)

State: Pennsylvania, United States District Court, M.D. Pennsylvania

Plaintiff: Erin Hazen

Defendant: Woodloch Pines Resort d/b/a Woodloch Pines, et al

Plaintiff Claims:

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 2024

Summary

A middle school assistant principal fell off a low rope’s balance beam, 12″ high, into wood chips suffering injuries to her leg, ankle, and foot. However, under the interpretation of the defense of assumption of the risk by this court, she did not assume the risk of her injuries.

This has got to be appealed!

Facts

Woodloch Pines Resort (“Woodloch”) is an all-inclusive family resort located in Pike County, Pennsylvania. Since the 1990s, it has offered corporate team building activities on an outdoor low ropes challenge course. One of the elements of this challenge course was a “balance beam” or “teeter-totter” device made up of a fulcrum with a plank on top of it. The plank or “beam” is 10-feet long and 10%-inches wide. The fulcrum is 12-inches high and, when at its highest point, the end of the plank or beam is 3 feet above the surface below. The area below and around the balance beam device was covered with wooden mulch, presumably to, cushion the fall of any participants.

In June 2019, the plaintiff, Erin Hazen, was an assistant principal at KIPP TEAM Academy, a public charter school in Newark, New Jersey. She had been working there for about a year. On Saturday, June 22, 2019, Hazen and ten of her colleagues from the “leadership team” at KIPP TEAM Academy were on the third day of a leadership retreat at Woodloch. That morning, they participated in the outdoor challenge course activities as a team. After completing several other activities, they attempted the “balance beam” activity, where Hazen was injured.

The team was instructed by Eric Ranner, Woodloch’s corporate activities director, that the goal of the balance beam activity was to get the entire 11-person leadership team onto the plank without breaking either of two eggs that had been placed under each end of the plank. The parties dispute whether Ranner gave any additional verbal instructions or warnings to the participants. Ranner was the only Woodloch employee present at the time.

After two unsuccessful attempts to complete the activity, the team was able to get ten members on the plank at once during its third attempt. When the eleventh team member mounted the plank, it became unbalanced and Hazen fell off, along with other participants. At least one other participant landed on top of Hazen.

As a result of her fall, Hazen suffered a gruesome ankle injury, including left ankle dislocation, a displaced left ankle trimalleolar fracture with transverse medial malleolar fracture, a transverse distal one-third fibula shaft fracture, syndesmotic rupture, and a minimally displaced proximal fracture in the metaphysis. Her medical treatment included three surgeries and ongoing physical therapy. Due to her injuries, resultant physical limitations, and her course of treatment, Hazen was forced to resign from her job at KIPP TEAM Academy.

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

The only defense raised in this motion was Assumption of the Risk. Under Pennsylvania law assumption of the risk is defined as:

…assumption of the risk is established by showing that the injured party fully appreciated the nature of the risk it faced and voluntarily assumed it. In addition, the injured party must not have had a meaningful and reasonable alternative path to avoid the risk.

Pennsylvania has an additional requirement to prove assumption of the risk from the majority of other states. Most states require that the plaintiff understood and knowingly assumed the risk. In Pennsylvania, the defendant must also prove that the plaintiff had a reasonable alternative way to avoid the risk.

This court then went on to define the components of the assumption of the risk under Pennsylvania law.

Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness – to accept it. A plaintiff has voluntarily assumed the risk where he fully understands it and Voluntarily chooses to encounter it.

If the plaintiff assumes the risk, like many states, this removes from the defendant the duty to protect the plaintiff.

Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known arid obvious risk and therefore is considered to have assumed liability for his own injuries.”

The court then went on to define what a risk, or danger as this court defined it, is:

A danger is deemed “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” For a danger to be “known,” it must “not only be known to exist, but. . . also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.”

In all states, the trier of fact, the jury, must determine if the plaintiff assumed the risk. In some states, the court can make that decision in a motion if there is prior case law with similar facts or if the court determines that a jury would find for the defendant.

It is for that reason that Assumption of the Risk as a defense is second to use a release. A properly written release allows the defendant to motion for a summary judgment and the court, the trial judge can decide, there is no need to spend the money to go to trial.

Here the court went further to define the risk working hard to find a definition that would put an increased burden on the defendant, effectively removing the defense of assumption of the risk.

“Whether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude and its unreasonable character, is a question of fact, usually to be determined by the jury under proper instructions from the court. The court may itself determine the issue only where reasonable men could not differ as to the conclusion.”.

In defining assumption of risk most courts say the plaintiff must knowingly understand the risk. Here the court stated the plaintiff must not only understand the risk but also the “magnitude and its unreasonable character.”

Going deeper into this extensive black hole to support the plaintiff the court stated.

The defendant’s burden to establish assumption of the risk is a tall order, because assumption of the risk requires knowledge of a specific risk, “It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. Rather, the plaintiff must be aware of ‘the particular danger’ from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.

The plaintiff under this ruling must not only know the risk, but the defendant must also prove the plaintiff knew of the particular danger that injured him or her.

The judge is requiring the plaintiff to have a crystal ball to understand every possible injury that could come from assuming the risk.

You are standing on a beam, elevated above the ground 12 inches on a beam that is 10″ wide with 11 other people, and not only must you know that you can fall off, but you must know that you will receive a severe leg, ankle, and foot injury.

Hazen suffered a gruesome ankle injury, including left ankle dislocation, a displaced left ankle trimalleolar fracture with transverse medial malleolar fracture, a transverse distal one-third fibula shaft fracture, syndesmotic rupture, and a minimally displaced proximal fracture in the metaphysis

You need to make a mental note when reading a case when the judge describes the injury as gruesome and then specifically identifies each injury the plaintiff suffered.

The court found the plaintiff understood and assumed that she could fall off the beam and suffer an injury. However, the court went on to say “But “awareness of a general risk does not amount to awareness of a specific risk.””

The judge continued on this track:

Awareness of the specific risk presented by the balance beam activity here includes not just an appreciation of the general possibility that she might fall, but also an appreciation of the likelihood of a fall and the potential for serious injury such as the complex multiple ankle fractures and other injuries that our plaintiff, in fact, suffered.

The next issue the court brought up was whether or not the plaintiff had a real choice to participate or not participate in any part of the team-building exercise.

Here, the parties dispute whether Hazen’s participation in the balance beam activity was voluntary. In her affidavit, Hazen has stated that she felt her participation in this team building activity was required rather than voluntary, noting that she had just finished her first year as an assistant principal at the charter school, she was required in that role to lead by example and thus participate fully in team-building activities, and the purpose of this particular activity was to get the entire team of eleven onto the plank at one time.

At what point in life can you not stop and say I don’t want to do this?

The court proceeded to dismiss the motion by the defendants.

Accordingly, based on the facts and evidence of record, viewed in the light most favorable to the non-moving plaintiff, we find that a reasonable jury could conclude that the plaintiff was not subjectively. aware of the specific risk of serious injury posed by her participation in the balance beam activity that resulted in her injuries, or that she did not voluntarily accept that risk.

So Now What?

I have no idea what a trimalleolar fracture is. Nor does Word or Grammarly recognize trimalleolar as a word. Yet, this court expected a middle school assistant principal to understand the word, and the risk associated with it.

Let alone the ability, as a leader in a school, or assistant principal, that she does not want to participate in an activity because of the risk. If you don’t learn that in middle school, where are you going to learn it?

Here the court went out of its way to find requirements for the defense to prove that were outlandish and impossible. The only way to win anything like this in Pennsylvania in the future is to have the participants sit down and watch a video describing all the possible ways to get hurt, record the participants watching the video, and then sign an agreement, assumption of the risk or release which says the know and understand the risks and the particular dangers of each risk and that the person signing watched the video.

This decision is a little shocking.

What do you think? Leave a comment.

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

Recreation Insurance, Risk Management and Law.

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