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Colony Insurance Company v. Dover Indoor Climbing Gym & a., 158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51

Colony Insurance Company v. Dover Indoor Climbing Gym & a., 158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51

Colony Insurance Company v. Dover Indoor Climbing Gym & a.

No. 2008-759

SUPREME COURT OF NEW HAMPSHIRE

158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51

March 18, 2009, Argued

April 24, 2009, Opinion Issued

HEADNOTES NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

1. Insurance–Policies–Construction The interpretation of insurance policy language is a question of law for the court to decide. The court construes the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading of the policy as a whole. Policy terms are construed objectively, and where the terms of a policy are clear and unambiguous, the court accords the language its natural and ordinary meaning. The court need not examine the parties’ reasonable expectations of coverage when a policy is clear and unambiguous; absent ambiguity, the court’s search for the parties’ intent is limited to the words of the policy.

2. Insurance–Proceedings–Burden of Proof The burden of proving that no insurance coverage exists rests squarely with the insurer.

3. Insurance–Policies–Ambiguities Although an insurer has a right to contractually limit the extent of its liability, it must do so through clear and unambiguous policy language. Ambiguity exists if reasonable disagreement between contracting parties leads to at least two interpretations of the language. In determining whether an ambiguity exists, the court will look to the claimed ambiguity, consider it in its appropriate context, and construe the words used according to their plain, ordinary, and popular definitions. If one of the reasonable meanings of the language favors the policyholder, the ambiguity will be construed against the insurer. Where, however, the policy language is clear, the court will not perform amazing feats of linguistic gymnastics to find a purported ambiguity simply to construe the policy against the insurer and create coverage where it is clear that none was intended.

4. Insurance–Policies–Construction When a climbing gym’s insurance policy stated, “All participants shall be required to sign a waiver or release of liability in your favor prior to engaging in any climbing activity,” the clear meaning of the policy language was that the gym was required to actually obtain waivers from climbing participants. The gym’s interpretation that a reasonable person would believe that coverage existed so long as the gym had a policy of requiring waivers regardless of whether it actually obtained waivers would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy. A reasonable person reading the policy would not understand that coverage existed in such circumstances. Because the policy required the gym to obtain waivers from all participants, the failure to do so in the case of an injured climber rendered coverage under the policy inapplicable to his claims.

COUNSEL: Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and orally), for the plaintiff.

Mallory & Friedman, PLLC, of Concord (Mark L. Mallory on the brief and orally), for defendant, Dover Indoor Climbing Gym.

Shaheen & Gordon, P.A., of Dover, for defendant, Richard Bigelow, filed no brief.

JUDGES: DUGGAN, J. BRODERICK, C.J., and DALIANIS, J., concurred.

OPINION BY: DUGGAN

OPINION

[**400]   [*629]  Duggan, J. The plaintiff, Colony Insurance Company (Colony), appeals an order of the Superior Court (McHugh, J.) denying its motion for summary judgment and granting that of the defendants, Dover Indoor Climbing Gym (the gym) and Richard Bigelow. We reverse and remand.

The trial court found, or the record supports, the following facts. Colony issued a commercial general liability insurance policy to the gym, which was in effect from January 5, 2007, to January 5, 2008. An endorsement to the policy stated: “All ‘participants’ shall be required to sign a waiver or release of liability in your favor prior to engaging in any ‘climbing activity.’ ” It further stated: “Failure to conform to this warranty will render this policy null and void as [sic] those claims brought against you.”

On August 14, 2007,  [***2] Bigelow accompanied friends to the climbing gym, but did not sign a waiver. He testified that he was never asked to sign a waiver; the gym owner’s affidavit stated that the owner asked the group of climbers if they had waivers on file and received no negative answers. It is undisputed, however, that Bigelow did not sign a waiver or release. While climbing, Bigelow fell and sustained serious injuries. The gym then put Colony on notice to defend and pay any verdict obtained by Bigelow. In response, Colony filed a petition for declaratory judgment, arguing that the gym’s failure to obtain a release from Bigelow absolved Colony of any duty to defend or indemnify the gym.

Both Colony and the defendants filed motions for summary judgment, which the trial court addressed in a written order. The trial court found that Colony’s failure to provide the gym with a sample waiver rendered the endorsement provision ambiguous. The trial court therefore denied Colony’s motion for summary judgment, and granted the defendants’ cross-motion  [**401]  for summary judgment. This appeal followed.

[*630]  On appeal, Colony argues that the trial court erred in finding that the endorsement was ambiguous, and contends that the  [***3] gym’s failure to obtain a waiver from Bigelow renders the policy inapplicable as to his claims. Alternatively, Colony argues that even if the endorsement is ambiguous, the gym is not entitled to coverage because it had actual knowledge of the policy’s waiver requirement.

[HN1] In reviewing the trial court’s grant or denial of summary judgment, we consider the evidence, and all inferences properly drawn from it, in the light most favorable to the non-moving party. Everitt v. Gen. Elec. Co., 156 N.H. 202, 208, 932 A.2d 831 (2007); Sintros v. Hamon, 148 N.H. 478, 480, 810 A.2d 553 (2002). If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment is proper. Everitt, 156 N.H. at 209; Sintros, 148 N.H. at 480. We review the trial court’s application of the law to the facts de novo. Everitt, 156 N.H. at 209; Sintros, 148 N.H. at 480.

[1]  [HN2] The interpretation of insurance policy language is a question of law for this court to decide. Godbout v. Lloyd’s Ins. Syndicates, 150 N.H. 103, 105, 834 A.2d 360 (2003). We construe the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading  [***4] of the policy as a whole. Id. Policy terms are construed objectively, and where the terms of a policy are clear and unambiguous, we accord the language its natural and ordinary meaning. Id. We need not examine the parties’ reasonable expectations of coverage when a policy is clear and unambiguous; absent ambiguity, our search for the parties’ intent is limited to the words of the policy. Id.

[2, 3] In this case, the gym argues that the policy is ambiguous and Colony maintains that it is not.  [HN3] The burden of proving that no insurance coverage exists rests squarely with the insurer. Curtis v. Guaranty Trust Life Ins. Co., 132 N.H. 337, 340, 566 A.2d 176 (1989); see RSA 491:22-a (1997).  [HN4] Although an insurer has a right to contractually limit the extent of its liability, it must do so “through clear and unambiguous policy language.” Id. (quotation omitted). Ambiguity exists if “reasonable disagreement between contracting parties” leads to at least two interpretations of the language. Int’l Surplus Lines Ins. Co. v. Mfgs. & Merchants Mut. Ins. Co., 140 N.H. 15, 20, 661 A.2d 1192 (1995); Trombly v. Blue Cross/Blue Shield, 120 N.H. 764, 771, 423 A.2d 980 (1980). In determining whether an ambiguity exists, we will look to the claimed ambiguity,  [***5] consider it in its appropriate context, and construe the words used according to their plain, ordinary, and popular definitions. Int’l Surplus, 140 N.H. at 20. If one of the reasonable meanings of the language favors the policyholder, the ambiguity will be construed against the insurer. Id. Where, however, the policy language is clear, this court “will not  [*631]  perform amazing feats of linguistic gymnastics to find a purported ambiguity” simply to construe the policy against the insurer and create coverage where it is clear that none was intended. Hudson v. Farm Family Mut. Ins. Co., 142 N.H. 144, 147, 697 A.2d 501 (1997); Curtis, 132 N.H. at 342.

The trial court found that the endorsement requiring waivers is ambiguous because Colony did not provide the gym with a sample waiver. Even the gym, however, contends that the trial court “reached the  [**402]  correct result for the wrong reasons.” Thus, the gym does not argue that the endorsement creates an ambiguity by its failure to provide the insured with a sample waiver form, but, rather, that the exclusionary language is ambiguous because it states that participants shall “be required” to sign waivers as opposed to mandating that the gym obtain signed waivers.  [***6] Under this interpretation, the gym argues, a reasonable person would believe that coverage exists so long as the gym has a policy of requiring waivers regardless of whether it actually obtained waivers from climbing participants. Colony argues that the policy language is unambiguous. We agree with Colony.

[4] The clear meaning of the policy language is that the gym is required to actually obtain waivers from climbing participants. The gym’s interpretation would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy. A reasonable person reading the policy would not understand that coverage existed in such circumstances. The gym’s interpretation is unreasonably narrow, and is therefore not the type of alternative interpretation that renders policy language ambiguous. See Curtis, 132 N.H. at 342 ( [HN5] refusing to find ambiguity when alternate interpretations would “inevitably lead to absurd results”). To construe the exclusion against the insurer here would create coverage where it is clear that none was intended. We therefore conclude that the policy language is unambiguous and that a reasonable insured would understand that the exclusion would  [***7] apply in this case.

Because the policy requires the gym to obtain waivers from all participants, the failure to do so in the case of Bigelow renders coverage under the policy inapplicable to his claims. In light of our holding, we need not address Colony’s remaining argument. We therefore reverse the order of the trial court granting the defendants’ motion for summary judgment, and hold that Colony is entitled to summary judgment as a matter of law.

Reversed and remanded.

Broderick, C.J., and Dalianis, J., concurred.

 

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Allowing a climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate the release.

Whether or not the employee was present the entire time, is irrelevant, anytime any employee had the opportunity to see the harness on incorrectly was enough to be gross negligence.

Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198

State: Michigan, Court of Appeals of Michigan

Plaintiff: David Alvarez and Elena Alvarez

Defendant: LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: For the Plaintiff

Year: 2016

Facts

The facts are difficult to determine because the interpretation of the court in its opinion does not follow the normal language used in the climbing industry.

The plaintiff was injured when he leaned back to descend after climbing a climbing wall. Because he was not hooked in properly, something broke, and he fell. The plaintiff claims an employee of the defendant watched him put the harness on and hook into the belay system. The employee alleges she was not present for that. The plaintiff allegedly put the harness on backwards.

The harness allegedly had a red loop that should have been in front. No one either knew how the harness was to be worn or that the harness was on incorrectly.

Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.

The plaintiff argued the employee was grossly negligent. The trial court granted the defendants motion to dismiss based on the release, and this appeal ensued.

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

The court first started by defining gross negligence under Michigan’s law. Michigan law is similar if not identical to many other states. Gross negligence requires proof the defendant engaged in reckless conduct or acted in a way that demonstrated a substantial lack of concern for the plaintiff.

To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]”

Although the issue debated in the appeal was the location of the employee when the plaintiff was putting on the harness and climbing. It was undisputed the defendant’s employee was instructing the plaintiff while he was climbing. Eventually, the court found this not to be a real issue since any opportunity to see the harness was on incorrectly would have allowed the defendants employee to resolve the issue.

Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness.

Failure then, to spot the problem or resolve the problem was proof of gross negligence, or a failure to care about the safety and welfare of the plaintiff.

Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence.

Because the court could determine the acts of the defendant employee were possibly gross negligence, it was enough to determine what occurred and if gross negligence occurred.

So Now What?

This is pretty plane on its face. You allow a person to use a piece of equipment incorrectly who is then injured there is going to be a lawsuit. You allow a person to use a piece of safety equipment, equipment needed for the safe operation of your business incorrectly you are going to lose no matter how well written your release.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198

Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198

David Alvarez and Elena Alvarez, Plaintiff-Appellants, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe, Defendant. David Alvarez and Elena Alvarez, Plaintiff-Appellees, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellant, Jane Doe, Defendant.

No. 328221, No. 328985

COURT OF APPEALS OF MICHIGAN

2016 Mich. App. LEXIS 2198

November 29, 2016, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY:  [*1] Oakland Circuit Court. LC No. 2014-140282-NO. Oakland Circuit Court. LC No. 2014-140282-NO.

CORE TERMS: harness, climbing, gross negligence, rock, climb, belay, incorrectly, backwards, walked, deposition testimony, loop, red, putting, front, genuine issue, material fact, reasonable minds, precautions, favorable, watched, donned, order granting, rock climbing, grossly negligent, adjacent, facing, matter of law, conduct constituted, ordinary negligence, evidence submitted

JUDGES: Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.

OPINION

Per Curiam.

In Docket No. 328221, plaintiffs, David Alvarez and his wife Elena Alvarez, appeal as of right the trial court’s order granting summary disposition in favor of defendant, LTF Club Operations Company, Inc., doing business as Lifetime Fitness Center (Lifetime). In Docket No. 328985, Lifetime appeals as of right the order denying its request for case evaluation sanctions and for taxation of costs. For the reasons stated herein, we reverse the trial court’s order granting defendant’s motion for summary disposition and remand for further proceedings.

This litigation arises from David’s fall from a rock climbing wall at Lifetime’s facility in Novi. Plaintiffs were at Lifetime, where they are members, with their minor daughter to allow her the opportunity to use the rock climbing wall. Neither the plaintiffs, nor their daughter, had previously attempted to use the rock climbing wall. After David signed the requisite forms, Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, [*2]  and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.

Plaintiffs argued that, as an employee of Lifetime, Agredano was grossly negligent1 in failing to ascertain whether David had properly attached his harness and the belay system before permitting him to climb the rock wall or descend. Defendant filed a motion for summary disposition arguing the assumption of risk and waiver of liability provision within the paperwork David signed barred plaintiffs’ claims because Agredano’s asserted conduct constituted only ordinary negligence and not gross negligence. The trial court granted defendant’s motion for summary disposition finding plaintiffs failed to “present any evidence establishing that defendant was grossly negligent in failing to take precautions for plaintiff’s safety.”

1 Plaintiffs had signed a waiver of any negligence based liability.

Plaintiffs assert that the trial court erred in dismissing their claim of gross negligence against Lifetime, arguing a genuine issue of material fact exists regarding whether Agredano [*3]  was grossly negligent. We agree.

The trial court granted summary disposition in accordance with MCR 2.116(C)(7) and (10). This Court reviews “de novo a trial court’s ruling on a motion for summary disposition.” In re Mardigian Estate, 312 Mich App 553, 557; 879 NW2d 313 (2015). Specifically:

When considering a motion for summary disposition under MCR 2.116(C)(10), a court must view the evidence submitted in the light most favorable to the party opposing the motion. Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the evidence submitted might permit inferences contrary to the facts as asserted by the movant. When entertaining a summary disposition motion under Subrule (C)(10), the court must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in favor of the nonmoving party, and refrain from making credibility determinations or weighing the evidence. [Id. at 557-558, quoting Dillard v Schlussel, 308 Mich App 429, 444-445; 865 NW2d 648 (2014) (quotation marks omitted).]

In addition:

In determining whether a party is entitled to judgment as a matter of law pursuant to MCR 2.116(C)(7), a court must accept as true a plaintiff’s well-pleaded factual allegations, affidavits, or other [*4]  documentary evidence and construe them in the plaintiff’s favor. Where there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, the decision regarding whether a plaintiff’s claim is barred by the statute of limitations is a question of law that this Court reviews de novo. [Terrace Land Dev Corp v Seeligson & Jordan, 250 Mich App 452, 455; 647 NW2d 524 (2002) (citation omitted).]

To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003) (citations omitted). “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” Woodman v Kera, LLC, 280 Mich App 125, 152; 760 NW2d 641 (2008), aff’d 486 Mich 228 (2010). “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” Id. “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]” Id.

As [*5]  evidence of Agredano’s gross negligence, plaintiffs offered their deposition testimony. In his deposition testimony, David indicated that Agredano provided him with a harness and was present as he put it on and prepared to climb the wall:

  1. Q. And where was [Agredano] when you were placing the harness on yourself?
  2. A. She was in front of us. We were here. She was in front of us.
  3. Q. So she’s staring directly at your as you’re putting the harness on?
  4. A. She was, yeah, in front of us. We were here, and she was — I mean, we could show the picture if you want.
  5. Q. But I want to know if she was facing you when you were putting this harness on?
  6. A. Yes.

* * *

  1. Q. How much time elapsed between the time that you had your harness on and began climbing from the time when your wife began climbing?
  2. A. Okay. So they walked over to the wall, and then, as soon as I put on my harness, I walked over to the wall adjacent to [Agredano], and I watched my wife. She was already up the So whatever time it took for her to get up the eight feet, which is probably a couple minutes. I mean, a minute maybe.
  3. Q. All right. And when you walked over to the wall, was [Agredano] standing to your right?
  4. A. When I walked over to [*6] the wall, she was on my right.
  5. Q. And would you say she was within three or four feet of you?
  6. A. I could touch her. She was right there.

Further, David stated that Agredano spoke to him after he had inadvertently placed the harness on backwards and directed him to a climbing area, but did not warn him that the red loop on his harness should be on his front before he began to climb the wall:

  1. Q. When were you told to hook into something between your legs?
  2. A. Sure. So I had trouble putting on the harness, right? They walked over to the I followed . . . . I was next to — adjacent to [Agredano] . . . . As my wife started to come down [the rock wall], I asked — I asked, where should I go climb? [Agredano] pointed me over to the other adjacent valet or belay.
  3. Q. Belay
  4. A. Belay. Then somewhere between there I asked — or I don’t know if I asked, but she said, Hook it between your legs. . . .

David also stated that Agredano was present in the climbing wall area during the whole incident and watched him climb the rock wall while wearing the harness incorrectly:

  1. Q. And was [Agredano] facing you when you began climbing?
  2. A. She was facing both of us.

* * *

  1. Q. What I want to know is were [sic] you and [*7] your wife on the climbing, and she was behind you looking at the two of you?
  2. A. Yeah. She was looking at both of us.

* * *

  1. Q. Was there any point in time, while you were putting on your harness or after you put on your harness, where [Agredano] was inside the wall, through this door?
  2. A. No.
  3. Q. So she was outside in the climbing wall area with you the entire time?
  4. A. Correct.

In Elena’s deposition testimony, she testified that Agredano also spoke to David after he reached the top of the rock wall, gave him instructions regarding how to descend, and instructed David to let go of the wall despite his incorrectly worn harness:

  1. Q. What happened at that point?
  2. A. And he said — he asked her twice how to go down. And he asked her two times, because I remember, like, why he’s asking her? . . . So then, when he asked her two times, she said, just let go, and it will bring you down, the automatically thing will bring you down. And she said, I think, you know, push, let go. She said, just let go. Just let go. . . .

While Agredano claimed that she was not in the room when David incorrectly donned his harness and ascended the wall, we must consider the evidence in the light most favorable to plaintiffs and [*8]  accept their testimony as true. Terrace Land Dev Corp, 250 Mich App at 455. David and Elena’s deposition testimony was that Agredano was present when David donned his harness and ascended the wall, that she had ample opportunity to determine that David had put his harness on incorrectly, but that she failed to correct his mistake. Further, plaintiffs testified that Agredano watched David climb the wall in an unsafe harness, and directed David to let go of the wall to repel back down to the ground despite the red loop on David’s harness indicating that his harness was on backwards. Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication2 that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness. Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign [*9]  that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” David. Tarlea, 263 Mich App at 90. Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence. Thus, the trial court erred in granting defendant’s motion for summary disposition.

2 Agredano testified that if someone was standing below a rock climber, that person would be readily able to see if a harness was on backwards.

Because we have concluded that the trial court erred in granting summary disposition to defendant, it is unnecessary for us to address in Docket No. 328985 whether the decision to deny the case evaluation award would otherwise have been appropriate if the grant of summary disposition had been proper.

We reverse the order granting defendant’s motion for summary disposition and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Michael J. Kelly

/s/ Christopher M. Murray

/s/ Stephen L. Borrello

 


Montreat College Virtuoso Series 2 Day Outdoor Recreation Management, Insurance & Law Program

2 packed Days with information you can put to use immediately. Information compiled from 30 years in court and 45 years in the field.get_outside_12066-2

Whatever type of Program you have, you’ll find information and answers to your risk management, insurance and legal questions.

CoverYou’ll also receive a copy of my new book Outdoor Recreation Insurance, Risk Management, and Law

Get these Questions Answered

What has changed in the law Concerning Releases? What states still allow releases and which ones do not. What changes have been made in how releases are written? How can you make sure your release is not as affected by these changes?

Everyone is excited about Certificates of Insurance. Why this excitement is not valid and why most of them don’t work. What must you do to make a certificate of insurance work for your program?

What is an assumption of risk document and why are they important. How can your website be used to prove assumption of the risk.

How should you write a risk management plan that does not end up being used against you in court?

How do you handle an accident so it does not become a claim or a lawsuit.

Put February 24 & 25th on your Calendar Now.

Course Curriculum

1.    Assumption of the Risk

1.1. Still a valid defense in all states

1.2. Defense for claims by minors in all states

1.3. Proof of your guests assuming the risk is the tough part.

1.3.1.   Paperwork proves what they know

1.3.1.1.       Applications

1.3.1.2.       Releases

1.3.1.3.       Brochures

1.3.2.   The best education is from your website

1.3.2.1.       Words

1.3.2.2.       Pictures

1.3.2.3.       Videos

2.    Releases

2.1. Where they work

2.1.1.   Where they work for kids

2.2. Why they work

2.2.1.   Contract

2.2.2.   Exculpatory Clause

2.2.3.   Necessary Language

2.2.4.   What kills Releases

2.2.4.1.       Jurisdiction & Venue

2.2.4.2.       Assumption of the Risk

2.2.4.3.       Negligence Per Se

2.2.4.4.        

3.    Risk Management Plans

3.1. Why yours won’t work

3.2. Why they come back and prove your negligence in court

3.2.1.   Or at least make you look incompetent

3.3. What is needed in a risk management plan

3.3.1.   How do you structure and create a plan

3.3.2.   Top down writing or bottom up.

3.3.2.1.       Goal is what the front line employee knows and can do

4.    Dealing with an Incident

4.1. Why people sue

4.2. What you can do to control this

4.2.1.   Integration of pre-trip education

4.2.2.   Post Incident help

4.2.3.   Post Incident communication

You can decided how your program is going to run!blind_leading_blind_pc_1600_clr

hikers_1600_clr_9598

Put the date on your calendar now: February 24 and 25th 2017 at Montreat College, Montreat, NC 28757

$399 for both days and the book!

For more information contact Jim Moss rec.law@recreation.law.com

To register contact John Rogers , Montreat College Team and Leadership Center Director, jrogers@montreat.edu (828) 669- 8012 ext. 2761

 


Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania

Release blocked the claims for negligence; however, the gross negligence claims relied on assumption of the risk as a defense. The release helped prove the plaintiff assumed the risk, but I suspect that defense would only work in a bouldering case like this.

Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767

State: Pennsylvania: Superior Court of Pennsylvania

Plaintiff: Rebecca Mcgarry

Defendant: Philly Rock Corp

Plaintiff Claims: gross negligence in that the defendant

Defendant Defenses: Assumption of the Risk

Holding: For the Defendant

Year: 2015

The plaintiff and her husband wanted to try something new, so they went to the defendant indoor climbing facility. The plaintiff signed the release and took a class in belaying and use of the belay equipment.

Around the facility were numerous signs warning of the risks of the activity: bathrooms, reception desk, and pillars in the building. There was also a sign about mat placement that the plaintiff remembered and drew correctly during her depositions.

On their second visit, the plaintiff tried bouldering. The bouldering area had mats; however, the mats were moveable and were supposed to be moved by the people bouldering. The plaintiff was approximately four feet of the ground when she jumped off. She did not move the mats prior to bouldering and did not look for the mats when she jumped. She shattered her ankle, which required three surgeries.

The plaintiff sued, and the case went to trial on the issue of the gross negligence of the defendant. The release precluded all the negligence claims of the plaintiff. As in most states (if not all) a release is not valid for gross negligence claims. “Because McGarry signed a waiver, no one in this case disputes that McGarry was required to prove that PRC was grossly negligent to recover.

The jury awarded the plaintiff $150,000 for her gross negligence claims. The defendants filed a motion for Judgment Notwithstanding the Verdict (JNOV). This motion, JNOV, requests the judge to overrule the jury and grant the defendant’s motion for dismissal. The judge did and the plaintiff appealed.

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

The plaintiff appealed claiming the trial court made four errors of the law. The first two were based on the procedural issues associated with the JNOV. The third was whether the trial court correctly applied the assumption of the risk doctrine, and the final issue was whether the court properly denied the introduction of evidence that the defendant’s employees had not been trained properly.

The court started by defining gross negligence as per Pennsylvania law.

Gross negligence has . . . been termed the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others. Additionally, gross negligence has been described as an extreme departure from ordinary care or the want of even scant care [and] . . . as [a] lack of slight diligence or care, and [a] conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party . . . .

[G]ross negligence is clearly more egregious than ordinary negligence.

Under Pennsylvania law, if the plaintiff assumed the risk which caused her injury, then the defendant does not owe the plaintiff any further duty. The trial court found the plaintiff had assumed the risk based on the following:

McGarry knew that there was a risk in bouldering, knew she could be injured from a height of four feet, knew she was jumping from the wall without looking for the mats, and jumped anyway. The trial court also found that, because the dangers were obvious, PRC reasonably could expect that McGarry would take steps to protect herself, precluding a finding that PRC was grossly negligent.

The plaintiff countered by staging she could only assume the risks she understood. Since there was no written safety material, and she had not been trained in how to use the mats or a spotter, she could not assume the risk.

McGarry first notes that assumption of risk is subjective and that McGarry only could assume a risk that she understood. McGarry argues that, because there were no written safety materials, McGarry did not know how to position the mats or how to use a spotter to avoid injury.

The court looked at the assumption of risk doctrine. As in most (if not all) states assumption of the risk as a defense was merged into comparative negligence. However, in Pennsylvania the Supreme Court had not eliminated assumption of the risk as a defense, it was now only in disfavor.

In Pennsylvania, the doctrine of assumption of the risk is defined as:

[A]ssumption of risk is established as a matter of law only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Mere contributory negligence does not establish assumption of risk. Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff’s injuries. In order to prevail on assumption of risk, the defendant must establish both the “awareness of the risk” prong and the “voluntariness” prong.

Assumption of the risk eliminates a duty from the defendant.

If the case is viewed from the perspective of a duty analysis, the evidence presented at trial establishes that [the plaintiff] voluntarily encountered a known risk, thereby obviating any duty which might otherwise have been owed him by [the defendant]. Under this analysis, the case is controlled by the assumption of risk principle that one who voluntarily undertakes a known risk thereby releases the defendant from any duty of care.

The court quoted another Pennsylvania decision to explain what elimination of the duty from the defendant meant.

Similarly, “[w]hen an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpoint to the possessor’s lack of duty to protect the invitee from those risks.”

The court then applied those definitions to the present case. The first analysis was whether the dangers were open and obvious. (Jumping from four feet high I believe is obvious to everyone in the world) The court found the dangers had been pointed out to the plaintiff.

Multiple signs throughout the facility warned that climbing and bouldering are dangerous and may result in serious injury. Additionally, the danger of these activities “is well understood by virtually all individuals of adult age.” Falling and causing a injury to an ankle or wrist is a “common, frequent, and expected” risk of climbing or bouldering.

The plaintiff had also admitted during her deposition that she knew of the risks.

Further, McGarry knew of and appreciated the risk. McGarry testified that she knew there were risks in bouldering and that she knew she could be injured when jumping even from a height of four feet. McGarry saw the sign stressing the importance of mat placement and drew it from memory much later at her deposition. Despite knowing that mats and their placement were important, McGarry nonetheless did not look before she jumped and landed in the wrong place.

The court also found that the fact the plaintiff had signed a release; she knew she was responsible for her injuries.

McGarry also acknowledged that she signed a waiver, which she understood meant that she was responsible for any injuries. She then voluntarily proceeded with the activity despite her appreciation of that risk.

The court then went back to the testimony to sum the assumption of the risk defense and why it agreed with the trial court. “However, McGarry’s own testimony compels the trial court’s finding that she assumed the risk, which, as a matter of law, precludes a verdict in her favor.”

The next issue was the application of the assumption of the risk defense to a claim of gross negligence. Because assumption of the risk removed the necessary duty from the defendant, there could be no gross negligence. In Pennsylvania once the plaintiff assumes the risk the defendant has no further duty to the plaintiff, with respect to the duty the plaintiff is assuming.

…we conclude that McGarry’s assumption of the risk barred her recovery regardless of whether PRC was grossly negligent. Because the evidence supported the trial court’s conclusion that McGarry as-sumed the risk of injury, PRC owed no duty to McGarry and, therefore, was not legally responsible for her injury.

If there is no duty, there is no negligence. To prove negligence, the plaintiff must prove there was a duty, a breach of that duty, an injury proximately caused by the breach and damages. Failing to prove all four points and the plaintiff does not prove her case. If the case is not proved, then the defense has no need to present any defenses because there was no negligence.

The final issue the court reviewed was the plaintiffs claim the employees were not sufficiently trained.

Finally, McGarry complains that the trial court erred in precluding her from introducing evidence regarding whether PRC’s employees were trained or qualified. McGarry argues that this evidence was relevant and should have been presented to the jury.

The court found this was not at issue. Because the plaintiff did not receive instruction on bouldering from an employee of the defendant, the training and qualifications were immaterial.

Because McGarry did not receive instruction from PRC employees, the trial court reasoned that if PRC was obligated to provide instruction to clients as part of its duty, PRC would be negligent regardless of whether it’s the employees were adequately trained. If PRC was not obligated to provide instruction to clients, then PRC would not be negligent regardless of employee training.

The defendant did not have a required bouldering class and told the plaintiff to ask questions which the plaintiff did not do. However, because her complaint did not involve the training, she received or how her questions were answered, the training and qualifications of the defendant employees did not matter.

The appellate court agreed with the trial court and upheld the dismissal of the case.

So Now What?

First, this is another example where the risks of the activity should be included in your release. Here the court found the release proved the plaintiff had assumed the risk of her injury.

The next issue is the training issue. This issue seemed to have been developed by the plaintiff’s expert witness. Besides training he stated the defendant was below the standard of the industry in the following ways.

Mr. Andres testified that some of the safety signs were placed where they were unlikely to be noticed. Some of the signs warned about possible dangers, but gave no instructions about how to avoid those risks. Mr. Andres testified that belaying and bouldering are different and that, in bouldering, mat placement, the use and limitations of mats, and how to control one’s descent are important. Mr. Andres opined that it was insufficient to have signs instructing clients to ask an employee about climbing or safety because novice climbers may not know what to ask in order to participate safely.

You will see experts making many, and in a few case’s extremely absurd claims to assist the plaintiff in making his or her claim. Signs that warned but did not instruct which the plaintiff ignored anyway mat placement and controlling your descent when falling was argued by the plaintiff’s expert.

I think mat placement is pretty obvious. You put the mats where you think you may land. As far as controlling your descent, I’m lost. I’ve tried a lot of things when falling, clawing the air, kicking madly, flapping my arms and screaming may make me feel better at the time but did nothing to “control my descent.”

I go back to education on this type of claim again. The more you educate your client the less likely they might get hurt and the less likely they can sue. The problem always is. How do you educate a client and then who do you prove you educated them.

In my opinion, that is where the business website comes in. The more information and videos you can put on the website the better. When you post these videos be real. Post the right way and the wrong way, show the risks and show people being stupid. Just make sure you point out when someone is doing something wrong that you make sure that is indicated on the video.

You can then require people to watch the videos before starting the activity, or you can have them acknowledge in the release, they have watched the videos. You can also tell them in your marketing or communications to watch the videos to learn more about climbing or whatever the activity is.

This case was decided in October of 2015. I believe the time to appeal is only thirty (30) days, and it does not appear that an appeal has been filed in this case. However, until a longer period of time has run, this case might be appealed and possibly over turned by the Pennsylvania Supreme Court.

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Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767

Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767

Rebecca Mcgarry, Appellant v. Philly Rock Corp., Appellee

No. 3326 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

2015 Pa. Super. Unpub. LEXIS 3767

October 15, 2015, Decided

October 15, 2015, Filed

NOTICE: NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37

PRIOR HISTORY: [*1] Appeal from the Order of November 19, 2014. In the Court of Common Pleas of Chester County. Civil Division at No.: No. 12-13367.

JUDGES: BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J. MEMORANDUM BY WECHT, J.

OPINION BY: WECHT

OPINION

MEMORANDUM BY WECHT, J.:

Rebecca McGarry (“McGarry”) appeals the November 19, 2014 order. In that order, the trial court granted Philly Rock Corp.’s (“PRC”) post-trial motion and entered a judgment notwithstanding the verdict in favor of PRC. We affirm.

The trial testimony supports the following factual history.1 On March 5, 2011, McGarry and her husband, Peter, went to PRC, an indoor rock-climbing facility, because they wanted to try a new activity. Notes of Testimony (“N.T.”), 7/14/2014, at 3-4. On that day, McGarry signed a waiver and then took an introductory course on belaying equipment. Id. at 4-6. McGarry understood that the waiver meant that if she were injured, PRC would not be at fault. Id. at 37. McGarry also understood at the time that she signed the waiver that there were risks involved in rock climbing and that injuries were possible. Id. at 39. McGarry returned on March 12, 2011, and participated in rock-climbing again. Id. at 7.

1 The entire trial was not transcribed; only [*2] the testimony of three witnesses, the jury instructions, and the argument for PRC’s motion for a non-suit are available. The trial court did not provide a detailed factual history. From the transcripts available, it appears that the testimony of at least two PRC employees and one other defense witness is not available. Therefore, our ability to relate the history of this case is limited. Other testimony was included in the reproduced record. However, we may not consider any documents that are not in the certified record. Commonwealth v. Preston, 2006 PA Super 170, 904 A.2d 1, 7 (Pa. Super. 2006).

McGarry and Peter returned to PRC again on March 16, 2011, and went to the bouldering area.2 Id. at 8. McGarry received no instruction on bouldering, but watched other climbers. Id. at 9-10. Peter attempted the wall first and successfully completed his climb. Id. at 10. McGarry then attempted the wall. Id. at 12. Peter had placed a mat under her. Id. at 11. McGarry climbed about four feet, then jumped off the wall. Id. at 12. McGarry acknowledged that she knew that there was a risk of injury when jumping from a height of four feet. Id. at 42-43. McGarry did not look to see where the mats were before she jumped. Id. at 45. When she jumped, McGarry rolled her left ankle. Id. at 17. McGarry testified that the mats were in the [*3] correct position, but that she jumped in the wrong place and landed between two mats.3 Id. at 46-47. McGarry heard a crunch, felt pain, and was taken to Phoenixville Hospital by ambulance. Id. at 18.

2 When “top-roping,” the climber’s harness is fastened to a rope that runs upward through or over an anchor. The other end of the rope is controlled, with the use of safety equipment, by the “belayer.” In the event that the climber falls, the belayer is able to hold the rope fast, arresting the climber’s fall. In bouldering, the activity at issue in this case, the climber is not attached to any safety equipment.

3 McGarry told her physicians that she fell on the floor instead of the mat. Id. at 45.

McGarry’s ankle was fractured, requiring surgery. During surgery, screws and plates were inserted into her ankle. Id. at 20. McGarry had a second surgery in September 2011. Id. at 24. She also received physical therapy for a year after the injury. Id. at 23. A third surgery and more physical therapy followed in December 2012. Id. at 26. Because of the ankle injury, McGarry had difficulty walking long distances, standing for long periods of time, running, and jumping. Id. at 29.

McGarry testified that she could not recall seeing signs with warnings and [*4] information that were posted by the bathrooms, at the reception desk, or on pillars in the building. Id. at 39-40. However, McGarry indicated that she recalled a sign about mat placement and was able to draw it from memory at her deposition. Id. at 41-42.

On December 24, 2012, McGarry filed a complaint against PRC, in which she alleged that PRC’s negligence and/or gross negligence caused her injury.4 The jury trial was held in July 2014.

4 The complaint also included a claim for loss of consortium on behalf of Peter.

At trial, Corey Andres, who was qualified as an expert in sports and recreation venues and industries, testified for McGarry. N.T., 7/15/2014, at 11. Mr. Andres testified that some of the safety signs were placed where they were unlikely to be noticed. Id. at 41. Some of the signs warned about possible dangers, but gave no instructions about how to avoid those risks. Id. at 47, 52. Mr. Andres testified that belaying and bouldering are different and that, in bouldering, mat placement, the use and limitations of mats, and how to control one’s descent are important. Id. at 54. Mr. Andres opined that it was insufficient to have signs instructing clients to ask an employee about climbing or safety because novice climbers [*5] may not know what to ask in order to participate safely. Id. at 57-58. Mr. Andres testified that PRC’s reliance upon signs for safety information about bouldering, rather than requiring instruction, was inadequate. Id. at 71. Mr. Andres acknowledged that McGarry was told in her belaying course that she should ask staff if she had questions about bouldering, but that McGarry did not do so. Id. at 81. He also acknowledged that there was a sign that instructed about correct placement of mats, how to land on the mat, and how to avoid injury. Id. at 99-101. Mr. Andres opined that PRC’s standard of care required compulsory instruction as suggested by industry literature. Id. at 83.

David Rowland, PRC’s president, also testified. N.T., 7/16/2014, at 3. Rowland testified that PRC offered an optional bouldering course. Id. at 7. He agreed that correct mat placement was important and could reduce the likelihood of injury. Id. at 13-14. However, Rowland testified that the climber was responsible for placing the mats, even if the climber was inexperienced. Id. at 15-16. Rowland admitted that there were no written rules or instruction manuals beyond the signs posted in the facility. Id. at 22. PRC recommends that climbers rely upon spotters to guide them to safe [*6] landing spots, but it was not mandatory. Id. at 27-28.

At the close of McGarry’s case, PRC moved for a non-suit. N.T., 7/16/2014 (Argument), at 3. The trial court heard argument on the motion and decided that the evidence did not support punitive damages. Therefore, the court decided not to submit that issue to the jury. Id. at 11. Recognizing that non-suit was a close issue, the trial court denied the motion and permitted the defense to present its case. Id. at 11-12. PRC also moved for a directed verdict at the close of evidence, which the trial court also denied. Id. at 13-14.

On July 16, 2014, the jury reached its verdict. It found that PRC was grossly negligent, that PRC’s gross negligence was the cause of McGarry’s injuries, that McGarry was contributorily negligent, and that PRC and McGarry were each fifty percent at fault. The jury awarded McGarry $150,000 without a reduction for her own negligence.

On July 25, 2014, PRC filed a post-trial motion in which it sought judgment notwithstanding the verdict (“JNOV”). PRC asserted that the trial court had erred in not granting its motions for non-suit and/or a directed verdict, that McGarry had failed to prove gross negligence as a matter of law, that the jury disregarded [*7] the court’s instructions on assumption of risk and gross negligence, and that McGarry’s expert was not qualified. On November 19, 2014, the trial court granted PRC’s motion and entered JNOV. The trial court concluded that it erred in failing to grant the motion for directed verdict because the evidence did not support a finding of gross negligence, and that McGarry knowingly and voluntarily accepted a risk, which relieved PRC’s duty to McGarry. Order, 11/19/2014, at 1-2 n.1.

On November 25, 2014, McGarry filed a notice of appeal. On November 26, 2014, the trial court directed McGarry to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and McGarry timely complied. The court filed a Pa.R.A.P. 1925(a) opinion on February 2, 2015.

McGarry raises four issues for our review:

1. Did the Trial Court commit an error of law and/or abuse its discretion when the Trial Court misapplied the standard for j.n.o.v., which requires that j.n.o.v. be granted only where the movant is entitled to judgment as a matter of law and/or evidence was such that no two reasonable minds could disagree that the outcome should have been in favor of the movant?

2. Did the Trial Court commit an error of law and/or [*8] abuse its discretion when the Trial Court granted a motion for j.n.o.v., after the jury had been instructed on the law of gross negligence, applied the facts, and determined that [PRC’s] conduct reached the level of gross negligence?

3. Did the Trial Court commit an error of law and/or abuse its discretion in applying the assumption of risk doctrine in granting [PRC’s] post[-]trial motion?

4. Did the Trial Court commit an error of law and/or abuse its discretion when the Trial Court prohibited [McGarry] from presenting evidence as to the training vel non of employees of [PRC] at trial?

McGarry’s Brief at 5.

McGarry’s first two issues relate to the trial court’s entry of JNOV. Additionally, the third issue, related to assumption of risk, is intertwined with JNOV. As such, we discuss them together. Our standard of review of a trial court’s ruling on a motion for JNOV is as follows:

In reviewing a trial court’s decision whether or not to grant judgment in favor of one of the parties, we must consider the evidence, together with all favorable inferences drawn therefrom, in the light most favorable to the verdict winner. Our standard[s] of review when considering the motions for a directed verdict and [*9] judgment notwithstanding the verdict [JNOV] are identical. We will reverse a trial court’s grant or denial of a [directed verdict or JNOV] only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.

There are two bases upon which a [directed verdict or JNOV] can be entered; one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that, even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in his favor. Whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Campisi v. Acme Markets, Inc., 2006 PA Super 368, 915 A.2d 117, 119 (Pa. Super. 2006) (quotation omitted). See Berg v. Nationwide Mutual Insurance Co., Inc., 2012 PA Super 88, 44 A.3d 1164 (Pa. Super. 2012).

Hall v. Episcopal Long Term Care, 2012 PA Super 205, 54 A.3d 381, 395 (Pa. Super. 2012) (bracketed material in original).

Because McGarry signed a waiver, no one in this case disputes that McGarry was required to prove that PRC was grossly negligent to recover. Gross negligence has been defined as follows: [*10]

Gross negligence has . . . been termed the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others. Additionally, gross negligence has been described as an extreme departure from ordinary care or the want of even scant care [and] . . . as [a] lack of slight diligence or care, and [a] conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party . . . .

[G]ross negligence is clearly more egregious than ordinary negligence.

Ratti v. Wheeling Pittsburgh Steel Corp., 2000 PA Super 239, 758 A.2d 695, 704-05 (Pa. Super. 2000) (citations and quotation marks omitted).

The trial court granted PRC’s motion for JNOV because it found that McGarry had assumed the risk of injury, which was open and obvious. Trial Court Opinion (“T.C.O.”), 2/15/2015, at 5. Because McGarry assumed the risk, PRC owed her no further duty. Id. at 5-6. Based upon McGarry’s testimony, the trial court found that McGarry knew that there was a risk in bouldering, knew she could be injured from a height of four feet, knew she was jumping from the wall without looking for the mats, and jumped anyway. Id. at 7-8. The trial court also found that, because the dangers were obvious, PRC reasonably could expect that McGarry would [*11] take steps to protect herself, precluding a finding that PRC was grossly negligent. Id. at 8-9.

In response, McGarry first notes that assumption of risk is subjective and that McGarry only could assume a risk that she understood. McGarry argues that, because there were no written safety materials, McGarry did not know how to position the mats or how to use a spotter to avoid injury. McGarry’s Brief at 21-23. McGarry also observes that her expert witness testified that the lack of instruction contributed to her injury, the jury was instructed on assumption of risk, and the jury decided that McGarry did not appreciate the risk. By setting aside that decision, McGarry contends that the trial court invaded the province of the jury. Id. at 24-25. McGarry also argues that the facts of this case were such that the trial court erred in deciding that the risks were so open and obvious that reasonable minds could not disagree upon the issue of duty. Id. at 25-27. Finally, McGarry notes that the assumption of risk doctrine has fallen out of favor with the passage of the comparative negligence statute. However, despite the applicability of assumption of risk, McGarry argues that the jury was instructed adequately about [*12] both doctrines and that the trial court erred in upsetting that verdict. Id. at 27-28.

“Assumption of risk is a judicially created rule [based in the common law that] did not protect [individuals] from the consequences of their own behavior . . . . The doctrine, however, has fallen into disfavor, as evidenced by our [S]upreme [C]ourt’s two . . . attempts to abolish or limit it.” Staub v. Toy Factory, Inc., 2000 PA Super 87, 749 A.2d 522, 528 (Pa. Super. 2000) (en banc). Our Supreme Court has noted that “the complexity of analysis in assumption of risk cases makes it extremely difficult to instruct juries.” Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107, 1108 (Pa. 1993) (plurality). Courts also have questioned whether the doctrine serves a purpose following Pennsylvania’s adoption of comparative negligence. See id. at 1109; Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 570 (Pa. Super. 2000); Staub, 749 A.2d at 528; see also Zeidman v. Fisher, 2009 PA Super 161, 980 A.2d 637, 640 (Pa. Super. 2009) (“We acknowledge the continuing vitality of the assumption of risk doctrine remains in doubt.”). However, despite its difficulties, the doctrine remains the law of Pennsylvania. See Bullman, 761 A.2d at 570 (“[A]s the doctrine has not been formally abolished by our Supreme Court, we are obligated to apply the doctrine despite its less than wholehearted support.”); Staub, 749 A.2d at 528 (“[U]ntil our [S]upreme [C]ourt or our legislature abrogates assumption of risk in negligence cases, the doctrine remains viable . . . .”). Therefore, we review the trial court’s application of assumption of risk. [*13]

The doctrine has been defined as follows:

[A]ssumption of risk is established as a matter of law only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Mere contributory negligence does not establish assumption of risk. Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff’s injuries. In order to prevail on assumption of risk, the defendant must establish both the “awareness of the risk” prong and the “voluntariness” prong.

Staub, 749 A.2d at 529 (citations and quotation marks omitted). Assumption of risk has been compared to estoppel:

It might be assumed, for purposes of an assumption of risk analysis, that the defendant(s) was negligent, and at least partly responsible for the injury sustained, nevertheless, given the circumstances in which the injury was sustained, the plaintiff is essentially “estopped” from pursuing an action against the defendant because it is fundamentally unfair to allow the plaintiff to [*14] shift responsibility for the injury to the defendant when the risk was known, appreciated and voluntarily assumed by the plaintiff.

Bullman, 761 A.2d at 570. The doctrine also has been viewed, as the trial court did here, in relation to duty:

If the case is viewed from the perspective of a duty analysis, the evidence presented at trial establishes that [the plaintiff] voluntarily encountered a known risk, thereby obviating any duty which might otherwise have been owed him by [the defendant]. Under this analysis, the case is controlled by the assumption of risk principle that one who voluntarily undertakes a known risk thereby releases the defendant from any duty of care.

Howell, 620 A.2d at 1110-11. Similarly, “[w]hen an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpoint to the possessor’s lack of duty to protect the invitee from those risks.” Zeidman, 980 A2.d at 642.

The risk that is appreciated and accepted must also be “the specific risk that occasioned injury.” Bullman, 761 A.2d at 571. For instance, assumption of risk did not apply when a student was injured by a discharged ceremonial [*15] cannon, when the student was not aware that the cannon could cause the type of injury sustained and because the cannon had always required more force to discharge than the student applied when he was injured. Id. at 572 (citing Struble v. Valley Forge Military Academy, 445 Pa. Super. 224, 665 A.2d 4 (Pa. Super. 1995)). An installer working on stilts, while appreciating a general risk of falling, had not assumed the risk of slipping on a piece of vinyl siding when he had cleared a path of debris and did not see the siding. Id. (citing Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129 (Pa. Super. 1996)). In Bullman, a girl assumed the risk of traversing a plank over an excavation ditch because the risk was open and obvious, but she did not assume the risk of falling through insulation board covering a porch that appeared to be solid because that risk was not appreciated. Id. at 573-74.

In spectator sports, we have found assumption of risk or no duty for risks that are “common, frequent, and expected,” such as being hit by a batted ball or by a hockey puck, but not when the risk is “not inherent in the amusement activity,” such as tripping over a beam or falling in a hole in a walkway at a stadium. Zeidman, 980 A.2d at 642-43. In Zeldman, the plaintiff raised sufficient issues of material fact to overcome a motion for summary judgment based upon assumption of risk when he was struck by [*16] a golf ball hit by his golfing companion. The plaintiff went ahead to check that the golfing group ahead of his group was off the green and was returning to the tee. Assumption of risk was not available at summary judgment because the plaintiff raised an issue of material fact as to whether he had reason to expect that his golfing companion would hit a shot off the tee while he was en route. Id. at 641.

Turning to this case, we first must consider whether the danger was open and obvious. The testimony supported the conclusion that it was. Multiple signs throughout the facility warned that climbing and bouldering are dangerous and may result in serious injury. Additionally, the danger of these activities “is well understood by virtually all individuals of adult age.” Bullman, 761 A.2d at 573. Falling and causing a injury to an ankle or wrist is a “common, frequent, and expected” risk of climbing or bouldering. Zeidman, 980 A.2d at 642.

Further, McGarry knew of and appreciated the risk. McGarry testified that she knew there were risks in bouldering and that she knew she could be injured when jumping even from a height of four feet. McGarry saw the sign stressing the importance of mat placement and drew it from memory much later at her deposition. [*17] Despite knowing that mats and their placement were important, McGarry nonetheless did not look before she jumped and landed in the wrong place. McGarry also acknowledged that she signed a waiver, which she understood meant that she was responsible for any injuries. She then voluntarily proceeded with the activity despite her appreciation of that risk. Based upon this testimony, no two reasonable minds could fail to conclude that McGarry understood and appreciated the specific risk of injury associated with jumping from four feet without first looking for the mat. Although McGarry argues that the lack of instruction about correct mat placement did not fully apprise her of the risk, the lack of instruction would be relevant only to PRC’s negligence, which is not at issue as McGarry assumed the risk and PRC had no further duty toward her. Therefore, the trial court did not err in finding that McGarry assumed the risk.

McGarry argues that the trial court ignored the standard for granting JNOV and, instead, supplanted the jury’s findings with its own. McGarry contends that the trial court ignored evidence that was favorable to her, particularly the opinion of her expert witness. McGarry’s [*18] Brief at 10-15.

As noted in Hall, supra, in reviewing a grant of JNOV, we must consider the evidence in the light most favorable to the verdict winner and we will reverse only upon a showing that the trial court made a legal error or abused its discretion.

It is axiomatic that, “[t]here are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.” Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1007 (Pa. 1992) (citations omitted). To uphold JNOV on the first basis, we must review the record and conclude “that even with all the factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second [we] review the evidentiary record and [conclude] that the evidence was such that a verdict for the movant was beyond peradventure.” Id.

Rohm & Haas Co. v. Cont’l Cas. Co., 566 Pa. 464, 781 A.2d 1172, 1176 (Pa. 2001) (citation modified).

Having reviewed the incomplete record that we have been provided,5 we conclude that, even viewing the evidence in the light most favorable to McGarry, the trial court did not err in granting JNOV. Even if we accept Mr. Andres’ testimony that PRC was negligent [*19] in failing to provide instruction on bouldering and mat placement and that PRC’s signs were inadequate to instruct McGarry how to avoid injury, McGarry testified that she knew the risk of injury in bouldering, and that she proceeded despite that risk. As noted, as part of an assumption of risk analysis, we may presume PRC was negligent and partly responsible for McGarry’s injuries. See Bullman, supra. In fact, the jury found that PRC was partially responsible. However, McGarry’s own testimony compels the trial court’s finding that she assumed the risk, which, as a matter of law, precludes a verdict in her favor. The trial court did not err or abuse its discretion in awarding JNOV.

5 “[T]he ultimate responsibility of ensuring that the transmitted record is complete rests squarely upon the appellant and not upon the appellate courts.” Preston, 904 A.2d at 7.

McGarry also asserts that the jury was charged accurately and thoroughly regarding gross negligence. McGarry contends that the jury’s finding of gross negligence was supported by the facts of the case, including that the bouldering course was optional, that PRC did not have written safety policies, that the policy on the use of spotters was unclear, and that no [*20] instruction was given on proper mat placement. McGarry’s Brief at 16-20.

While expressing no opinion as to whether the evidence supported a finding of gross negligence, we conclude that McGarry’s assumption of the risk barred her recovery regardless of whether PRC was grossly negligent. Because the evidence supported the trial court’s conclusion that McGarry assumed the risk of injury, PRC owed no duty to McGarry and, therefore, was not legally responsible for her injury.

Finally, McGarry complains that the trial court erred in precluding her from introducing evidence regarding whether PRC’s employees were trained or qualified. McGarry argues that this evidence was relevant and should have been presented to the jury. McGarry’s Brief at 29.

“Generally, an appellate court’s standard of review of a trial court’s evidentiary rulings is whether the trial court abused its discretion. . . .” Buckman v. Verazin, 2012 PA Super 216, 54 A.3d 956, 960 (Pa. Super. 2012). “Evidence is . . . relevant if it tends to prove or disprove a material fact in issue.” McManamon v. Washko, 2006 PA Super 245, 906 A.2d 1259, 1274 (Pa. Super. 2006).

The trial court sustained PRC’s relevance objection to questions regarding the training of PRC’s employees. Because McGarry did not receive instruction from PRC employees, the trial court reasoned that if PRC was obligated [*21] to provide instruction to clients as part of its duty, PRC would be negligent regardless of whether its the employees were adequately trained. If PRC was not obligated to provide instruction to clients, then PRC would not be negligent regardless of employee training. T.C.O. at 1 n.1.

McGarry has not set forth a compelling argument as to why the proposed testimony would have been relevant. McGarry states:

[T]he training was relevant because [Rowland] testified that staff members were available to answer questions for [McGarry]. Had the instructors been qualified or properly trained, they would have known to instruct [McGarry] in the specific risks associated with bouldering, including proper mat placement, spotting and the dangers associated with failure to do so, which were the true risks of bouldering.

McGarry’s Brief at 29. The evidence in question would have invited the jury to speculate about what instruction McGarry would have received had she sought it out. However, the evidence made clear that there was no required bouldering class, that PRC expected people who were bouldering to ask questions of staff members, and that McGarry did not do so. Had McGarry sought instruction and been [*22] injured, or had McGarry complained regarding the care she received from PRC staff after her injury, then staff training would be relevant. That was not the case, and the trial court did not abuse its discretion in determining that the testimony was not relevant.

Order affirmed.

Judgment Entered.

Date: 10/15/2015


Louisiana State University loses climbing wall case because or climbing wall manual and state law.

Louisiana law prohibits the use of a release. That complicates any recreational activity in the state. However, the greater risk is creating a checklist for the plaintiff or in this case the court to use to determine if you breached the duty of care you owed the plaintiff.

Fecke v. The Board of Supervisors of Louisiana State University, 2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357

State: Louisiana

Plaintiff: Brandy Lynn Fecke, Stephen C. Fecke, and Karen Fecke

Defendant: The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

Plaintiff Claims:

Defendant Defenses:

Holding: For the Plaintiff

Year: 2015

Louisiana State University converted a racquetball court into a climbing “gym.” It had two bouldering walls and one climbing wall. The climbing wall was 19′ climbing high, and the two bouldering walls were 13′ 1″ high. The plaintiff and a friend went to the climbing wall to work on a required assignment for an “Outdoor Living Skills Activity” course.

Upon arrival, the plaintiff paid to climb and signed a document entitled “Rock Climbing Wall Climbing Wall Participation Agreement.” The agreement was determined by the court to be a release which is void under Louisiana law. (See States that do not Support the Use of a Release.)

The plaintiff and her friend were then were asked if they had climbed before. The plaintiff had climbed twice ten years prior. They received some instruction, which was at issue during the appeal. The plaintiff choose to boulder because she did not want to wear a harness and bouldering was the easiest.

The court understood bouldering, which is quite unusual.

Bouldering is when a climber, with a partner standing behind the climber to act as a spotter in case the climber needs assistance, climbs up to a certain point on the wall and then traverses the wall side-to-side, in order to develop proficiency in climbing.

After bouldering to the top of the wall the plaintiff attempted to down climb and got stuck.

She lost her footing and hung from the wall. When she lost her grip after hanging for a few seconds, she let go of the wall and pushed herself away from the wall. As she fell, Ms. Fecke twirled around, facing away from the wall.

The plaintiff sustained severe injuries to her ankle that required three surgeries prior to the trial and might require more.

The case went to trial. The trial court dismissed the release because of La. C.C. art. 2004.

Louisiana Civil Code

Book 3. Of the different modes of acquiring the ownership of things

Code Title 4. Conventional obligations or contracts

Chapter 8. Effects of conventional obligations

Section 4. Damages

La. C.C. Art. 2004 (2015)

Art. 2004. Clause that excludes or limits liability

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.

Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

The jury awarded the plaintiff $1,925,392.72 and additional $50,000 to her mother for loss of consortium. The trial court reduced the damages to $1,444,044.54, and the loss of consortium claim was reduced to $37,500. The judgment also received interest at 6.0%.

The University appealed.

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

The first issue on the appeal was the application of Louisiana law on the amount of money awarded as damages. This first issue will not be examined here. The second issue was whether the Rock Climbing Wall Participation Agreement was properly excluded during trial.

Originally, the Rock Climbing Wall Participation Agreement was excluded based on a Motion in Limine filed by the plaintiff. A Motion in Limine is a motion filed by a party that argues the evidence of the other side should be excluded because it violates a rule of evidence, or it violates the law. Arguing this type of issue in front of the jury just makes the jury wonder what you are hiding, and you want to have your arguments correct and in advance. A Motion in Limine is the most powerful motion in a litigator’s bag after the motion for summary judgment.

The defendant raised the issue at trial to have the Rock Climbing Wall Participation Agreement entered into evidence and lost that argument also. The trial court did read to the jury a summary of parts of the Rock Climbing Wall Participation Agreement that did not violate the constitution on releases.

The issue the university argued to allow the Rock Climbing Wall Participation Agreement to be entered into evidence and see by the jury was:

Ms. Fecke was sufficiently educated and understood the inherent risk of injury associated with the activity she was about to undertake and that the LSU UREC employees had properly screened Ms. Fecke prior to allowing her to climb the wall. The LSU Board avers that the Agreement constituted Ms. Fecke’s acknowledgment of the risks of climbing the wall, which is a significant factor in determining her fault, and that this information should have been presented to the jury.

The court found that paragraph four of the agreement violated the Louisiana State Constitution, (La. C.C. art. 2004). “Based on our review of the proffered Agreement, paragraph four is null pursuant to La. C.C. art. 2004 because it, in advance, excludes the liability of the LSU Board for causing physical injury to Ms. Fecke.”

The university argued the rest of the Rock Climbing Wall Participation Agreement should be allowed to be introduced to a jury because it would help the jury determine the risk assumed by the plaintiff and consequently, the percentage of damages she was responsible for.

The court then looked at when and how under Louisiana law, liability (negligence) was determined.

For liability for damages to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element).

The court determined that rock climbing was recreational and like other, activities involved a substantial degree of risk. The duty of the climbing wall operator or gym operator was one of reasonable care, to provide a sound and secure environment.

Rock climbing is a recreational activity that involves substantial risk. Many other recreational activities such as weight lifting and swimming also involve a substantial degree of risk. The risks associated with these and other physically-challenging sports are well recognized. The duty on the gym operator, when these types of sports are conducted, is one of reasonable care under the circumstances — to provide a sound and secure environment for undertaking a clearly risky form of recreation and not that of removing every element of danger inherent in rock climbing.

The last sentence is important as the court found the climbing wall operator did not have a duty to warn about the potential for injury because of gravity. “The LSU Board did not have a duty to warn Ms. Fecke as a climber about the potential effect of gravity. A warning that “if you fall you might get hurt,” is obvious and universally known.”

The court did determine that to be found liable the gym must have failed to provide training and supervision and there must be a connection between the failure to train and supervise and the injury.

A gym and its facilities are not the insurers of the lives or safety of its patrons. A gym cannot be expected to foresee or guard against all dangers. Furthermore, the gym must only take reasonable precautions under the circumstances to avoid injury. To prove negligence on the part of the LSU Board, Ms. Fecke must show both a failure to provide reasonable training and supervision under the circumstances, as well as proof of a causal connection between the lack of reasonable training/supervision and the accident.

This was where the university lost the case. The university had created an extensive “Indoor Climbing Wall Manual” that covered all aspects of operating the climbing wall. It was probably created as a way to avoid liability. In this case the court used, the Indoor Climbing Wall Manual became a checklist to prove the defendant was liable.

The LSU UREC maintains an “Indoor Climbing Wall Manual,” which governs the rules, use, and maintenance of the indoor rock wall climbing facility. The manual requires the following of all employees of the indoor rock wall climbing facility:

The manual proved the climbing wall failed to train and failed to supervise. Nothing like your own documents proving the plaintiffs case.

The manual required all employees to know and enforce all rules of the climbing wall. The court then found ten rules in the manual that must be followed. The court then found additional rules that had to be followed beyond the first ten.

Furthermore, the LSU UREC employees are required to instruct patrons who intend to climb in accordance with the guidelines contained in a “safety clinic” document. The safety clinic requires the LSU UREC employees to give examples of danger areas and instruct climbers where to fall on crash pads, which must be placed underneath bouldering climbers at all times.

The rules went on to require the climbers be instructed in spotting techniques and have the climbers demonstrate spotting techniques. “The safety clinic also requires the LSU UREC employees to demonstrate how to properly descend the wall, and in the event of a fall, how to properly land on the ground to reduce injuries.”

The next two pages of the court’s opinion are running through the climbing manual as a checklist for everything the employees of the climbing wall failed to do. There was contradictory testimony, including one witness who said the plaintiff’s friend was in a position to spot but when she fell he moved away. However, the court did not seem to find the employees statements to be persuasive.

After our de novo review of the testimony and evidence presented at trial, we conclude that the LSU UREC employees failed to properly instruct, demonstrate, and certify that Ms. Fecke and Mr. Culotta understood the proper techniques for climbing the bouldering wall in accordance with their duties as described in the LSU UREC “Indoor Climbing Wall Manual” and the safety clinic document.

Legally, the climbing manual of the wall created the duty and the proof of the breach of the duty necessary to prove the case for the plaintiff.

Consequently, when reviewing whether the agreement should be allowed to be entered as evidence the appellate court decided that it might have been instructional to the jury.

The only portion of the excluded Agreement that might have prejudiced the LSU Board’s case is the portion in paragraph five wherein Ms. Fecke certified that she “agree[d] to abide by all rules of the sport as mandated by LSU University Recreation.” As discussed above, however, instruction as to those “rules” was not provided to Ms. Fecke by the LSU UREC employees nor was she properly screened or supervised as she climbed the bouldering wall.

However, the court also found that even if instructional, it was not sufficient of an issue to reverse the decision.

Thus, we find that the trial court legally erred in excluding a redacted version of the Agreement; however, we hold that the trial court’s error was not prejudicial. The inclusion of the remainder of the Agreement at trial could not have permissibly changed the jury’s verdict based on our de novo review of the record.

The court then went back and looked at how the damages were determined. Ultimately, the damages were lowered to $650,000.

So Now What

You can have manuals and checklists and other pieces of paper that tell your employees what they must do. However, if you do have these pieces of paper, you better have another employee standing around making sure everything on the paper is done.  

If you write it down, call it a standard, a manual, procedure it will become proof that you owed a duty to someone and breached that duty. Your own documents are proof that you are negligent.

Here a comprehensive manual was written to protect patrons of the climbing gym, and it ended up being an easy way for the court to find the gym had failed in its duty. Where did the court find the duty? In the climbing wall, manual easily laid out in lists.

This case is relevant in another light. If your state law says releases are not valid, you may not want to risk using one. You would be better off creating an acknowledgement of risk form for guests to sign.

Better, create video showing guests what they can and should do and more importantly what they should not do. Have the guest acknowledge in the assumption of the risk form, that they have watched the video. That helps prove the guest knew and assumed the risk of the activity.

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