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

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

Posted: June 23, 2017 | Author: Recreation Law | Filed under: Climbing Wall, Legal Case, New Hampshire, Release (pre-injury contract not to sue) | Tags: absurd, Ambiguity, Ambiguous, burden of proving, clear meaning, Climbing, Climbing Gym, construe, contracting parties, contractually, coverage, endorsement, Gym, Gymnastics, insurance coverage, Insurance policy, insured, insurer, linguistic, matter of law, objectively, ordinary meaning, policy language, policyholder, purported, question of law, reasonable expectations of coverage, Reasonable person, Release, Summary judgment, unambiguous, words used | Leave a comment

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.

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.

Posted: February 27, 2017 | Author: Recreation Law | Filed under: Climbing Wall, Michigan, Release (pre-injury contract not to sue) | Tags: Climbing Harness, Climbing Wall, Health club, Lifetime Fitness | Leave a comment

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.

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

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By Recreation Law Rec-law@recreation-law.com James H. Moss

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

Posted: February 26, 2017 | Author: Recreation Law | Filed under: Climbing Wall, Legal Case, Michigan, Release (pre-injury contract not to sue) | Tags: Climbing Wall, Gross negligence, Harness, Lifetime Fitness, Ordinary Negligence, Release | Leave a comment

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:

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

* * *

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?
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.
Q. All right. And when you walked over to the wall, was [Agredano] standing to your right?
A. When I walked over to [*6] the wall, she was on my right.
Q. And would you say she was within three or four feet of you?
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:

Q. When were you told to hook into something between your legs?
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.
Q. Belay
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:

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

* * *

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?
A. Yeah. She was looking at both of us.

* * *

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?
A. No.
Q. So she was outside in the climbing wall area with you the entire time?
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:

Q. What happened at that point?
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

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

Posted: February 12, 2017 | Author: Recreation Law | Filed under: Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Climbing Wall, Cycling, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Risk Management, Rock Climbing, Scuba Diving, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Sports, Swimming, Whitewater Rafting, Zip Line | Tags: assumption of the risk, Certificate of Insurance, Insurance & Law, Montreat College, Outdoor Recreation Risk Management, releases, Risk Management, Risk Management Plans, Seminar, Virtuosos Series | Leave a comment

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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!

Put the date on your calendar now: February 24 and 25^th 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

Posted: January 4, 2016 | Author: Recreation Law | Filed under: Assumption of the Risk, Climbing Wall, Pennsylvania | Tags: assumption of the risk, Belaying, Bouldering, Bouldering Mats, Climbing Wall, Gross negligence, Mats, Philly Rock Corp. | Leave a comment

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.

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.

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

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

Posted: January 3, 2016 | Author: Recreation Law | Filed under: Assumption of the Risk, Climbing Wall, Legal Case, Pennsylvania | Tags: assumption of the risk, Belaying, Bouldering, Bouldering Mats, Climbing Wall, Gross negligence, Mats, Philly Rock Corp. | Leave a comment

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]

[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:

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:

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.

“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.

Posted: October 5, 2015 | Author: Recreation Law | Filed under: Climbing Wall, Louisiana, Release (pre-injury contract not to sue), Risk Management | Tags: assumption of the risk, Climbing Wall, Climbing Wall Manual, College, Manual, Release, risk management plan, Safety Clinic, University, Waiver | Leave a comment

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.

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.

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.

What do you think? Leave a comment.

Jim Moss

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

Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,

Outdoor Recreation Insurance, Risk Management, and Law

and Law. To Purchase Go Here:

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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

Posted: September 26, 2015 | Author: Recreation Law | Filed under: Assumption of the Risk, Climbing Wall, Legal Case, Louisiana | Tags: assumption of the risk, Climbing Wall, Climbing Wall Manual, College, Manual, risk management plan, Safety Clinic, University | Leave a comment

To Read an Analysis of this decision see

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

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

Brandy Lynn Fecke, Stephen C. Fecke, and Karen Fecke versus The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

NO. 2015 CA 0017

COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT

2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357

July 7, 2015, Judgment Rendered

NOTICE:

THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.

SUBSEQUENT HISTORY: Rehearing denied by Fecke v. Bd. of Supervisor, 2015 La. App. LEXIS 1644 (La.App. 1 Cir., Sept. 3, 2015)

Rehearing denied by Fecke v. Bd. of Supervisiors, 2015 La. App. LEXIS 1679 (La.App. 1 Cir., Sept. 3, 2015)

PRIOR HISTORY: [*1] On Appeal from the 19th Judicial District Court. In and for the Parish of East Baton Rouge, State of Louisiana. No. C584652. The Honorable R. Michael Caldwell, Judge Presiding.

DISPOSITION: REVERSED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.

COUNSEL: John Neale deGravelles, Baton Rouge, Louisiana, Attorney for Plaintiffs/Appellees, Brandy L. Fecke, Stephen C. Fecke, and Karen Fecke.

James D. “Buddy” Caldwell, Attorney General, Patrick E. Henry, Darrell J. Saltamachia, John L. Dugas, Special Assistant Attorneys General, Baton Rouge, Louisiana and J. Elliott Baker, Special Assistant Attorney General, Covington, Louisiana, Attorneys for Defendant/Appellant, The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.

JUDGES: BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ. Guidry. J. concurs in the result.

OPINION BY: DRAKE

OPINION

DRAKE, J.

The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (“LSU Board”) appeals a judgment on a jury verdict that awarded damages to the plaintiff for injuries she sustained in an indoor rock wall climbing accident. For the following reasons, we reverse and amend portions of the judgment and affirm as amended.

FACTS AND PROCEDURAL [*2] HISTORY

It is undisputed that on the evening of December 3, 2008, Brandy Lynn Fecke sustained injuries when she fell from a bouldering wall located at the LSU Recreation Center (“LSU UREC”) indoor rock climbing wall facility. Ms. Fecke, then a 23-three-year-old senior at LSU, and a fellow classmate, Chad Culotta, visited the indoor rock climbing facility to complete a required assignment for an Outdoor Living Skills Activity course. The indoor rock climbing facility at the LSU UREC is housed in a remodeled racquetball court. LSU converted the court into the rock climbing wall facility, with three rock wall climbing options: (i) a 19′ climbing wall; (ii) a 13′ 1″ bouldering wall located on the rear wall; (iii) and a 13′ 1″ bouldering wall located on a side wall.

After Ms. Fecke and Mr. Culotta paid for admission to enter the indoor rock climbing wall facility and received a receipt, the LSU UREC employees working the night of the accident signed Ms. Fecke and Mr. Culotta’s course forms to verify their completion of the rock wall climbing assignment for their Outdoor Living Skills Activity course. Ms. Fecke also executed a Rock Climbing Wall Participation Agreement, which was provided [*3] to her by the LSU UREC employees. The student workers inquired into their previous experience with rock climbing. Ms. Fecke testified that she climbed a rock wall twice before — once when she was eight years old and a second time when she was ten years old. Ms. Fecke also testified that she had “top lined” previously, that is, that she knew about climbing a wall wearing a harness and using safety ropes, i.e., belay ropes. The employees proceeded to go through the instructions for the rock wall climbing experience. They explained to Ms. Fecke and her classmate that they could climb the 19′ climbing wall with top ropes while wearing a harness, or they could climb one of the 13′ 1″ bouldering walls. Ms. Fecke wanted to climb the “easiest wall” and opted to climb the rear bouldering wall, which did not require her to wear a harness or climb with belay ropes. 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 instruction and a climbing demonstration by one of the employees, [*4] Ms. Fecke’s classmate climbed up and then traversed down the wall. Ms. Fecke then climbed the wall. After reaching the top of the wall, Ms. Fecke began her descent; however, she got stuck while traversing down the wall and was unable to climb down any further. 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. Ms. Fecke landed on her left foot and sustained multiple fractures to the talus bone in her left ankle, known as a comminuted talus fracture. Due to the severity of the fractures, Ms. Fecke underwent three surgeries and will require additional surgery, including either a permanent ankle fusion or an ankle replacement.

Ms. Fecke and her parents, Stephen and Karen Fecke, brought suit against the LSU Board for damages Ms. Fecke sustained as a result of the accident. Following a three-day jury trial, the jury returned a verdict in favor of Ms. Fecke, Karen Fecke, and Stephen Fecke and against the LSU Board, and awarded damages. The jury allocated 75% of the fault to the LSU Board and 25% of the fault to Ms. [*5] Fecke and awarded damages to Ms. Fecke as follows:

Physical Pain and Suffering, Past and Future: $150,000.00
Mental Pain and Suffering, Past and Future: $125,000.00
Loss of Enjoyment of Life: $75,000.00
Permanent Disability and Scarring: $165,000.00
Past Medical Expenses: $60,392.72
Fecke Future Medical Expenses: $1,000,000.00
Loss of Future Earnings: $350,000.00
TOTAL: $1,925,392.72

Additionally, the jury awarded damages to Karen Fecke as follows:

Loss of Consortium and Society: $50,000.00

The jury awarded no damages to Stephen Fecke for loss of consortium and society.

Six months later, the trial court signed a judgment on October 3, 2014, and after adjusting the jury’s damage award based on the fault allocation, awarded damages to Ms. Fecke as follows:

Physical Pain and Suffering, Past and Future: $112,500.00
Mental Pain and Suffering, Past and Future: $93,750.00
Loss of Enjoyment of Life: $56,250.00
Permanent Disability and Scarring: $123,750.00
Past Medical Expenses: $45,294.54
Fecke Future Medical Expenses: $750,000.00
Loss of Future Earnings: $262,500.00
TOTAL: $1,444,044.54

The trial court also awarded Ms. Fecke all costs of the proceedings plus 6.0% judicial interest from the date [*6] of judicial demand until paid, pursuant to La. R.S. 13:5112(C). Furthermore, the trial court ordered that after being reduced for attorney’s fees and costs, Ms. Fecke’s future medical care award of $750,000 (plus judicial interest) be placed in a reversionary trust in accordance with La. R.S. 13:5106(B)(3)(c).¹ Additionally, the trial court awarded damages to Karen Fecke as follows:

Loss of Consortium and Society: $37,500.00

The trial court also awarded Karen Fecke all costs of the proceedings plus 6.0% judicial interest from the date of judicial demand until paid, pursuant to La. R.S. 13:5112(C). Finally, the trial court cast the LSU Board with all costs of court, including but not limited to, the expert witness fees as follows:

Dan Pervorse: $3,500.00
Dr. James Lalonde: $1,400.00
Dr. John F. Loupe: $900.00
Stephanie Chalfin: $1,500.00
Harold Asher: $3,000.00

The LSU Board now appeals the October 3, 2014 final judgment of the trial court, assigning three errors to the trial court’s application of the law pertinent to this case.

1 Although this point will be discussed more thoroughly in the first assignment of error, we note here, for clarification purposes, that the trial court’s judgment names the reversionary trust the “Future Medical Care Trust.” We observe [*7] the label “Future Medical Care Trust” appears nowhere in La. R.S. 13:5106, nor in any other provision in the Louisiana Governmental Claims Act, La. R.S. 13:5101-5113.

LAW AND DISCUSSION

Standard of Review

[HN1] The appellate court’s review of factual findings is governed by the manifest error/clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So. 2d 1120, 1127 (La. 1987). Thus, if there is no reasonable factual basis in the record for the fact-finder’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a fact-finder’s factual finding only if, after reviewing the record in its entirety, it determines the finding was clearly wrong. See Stobart v. State, through Dept, of Transp. and Dev., 617 So. 2d 880, 882 (La. 1993).

[HN2] A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews [*8] the trial court’s finding as to issues of material fact, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731, 735. However, the above approach need not be considered when a jury has made some factual findings favorable to each party, and when the legal error affected only one of the findings, but does not interdict the entire fact-finding process. The appellate court should proceed to evaluate each jury finding pertinent to liability in order to determine the applicability of the manifest error rule to each. If only one of the jury’s factual findings is tainted by the application of incorrect principles of law that are prejudicial, the appellate court’s de novo review is limited to the jury finding so affected. Rideau v. State Farm Mut. Auto. Ins. Co., 06-0894 (La. App. 1 Cir. 8/29/07), 970 So. 2d 564, 571, writ denied, 07-2228 (La. 1/11/08), 972 So. 2d 1168.

Assignment of Error 1:

In the first assignment of error, the LSU Board contends the trial court erred by ordering that attorney’s fees and costs were payable out of Ms. Fecke’s damage award for her future medical care. The LSU Board further contends that the trial court erred by awarding Ms. Fecke interest on that award. Ms. Fecke counters that she is [*9] entitled by statute to receive interest on her future medical care damage award, and she further argues that the trial court is authorized by statute to award contractual attorney fees from that award prior to establishing the terms and provisions of a reversionary trust, which is to be created for her future medical care expenses. Thus, the first issue before this court is whether any interest, attorney’s fees, or costs are due and collectible by Ms, Fecke and her attorneys on and out of her damage award against LSU for future medical care. [HN3] As the facts in this matter are not in dispute and the issue on this assignment of error is purely one of the statutory interpretation of La. R.S. 13:5106, a section of the Louisiana Governmental Claims Act, this court will review the matter de novo, without deference to the legal conclusion of the trial court, and determine whether the error was prejudicial to the case. Turner v. Willis Knighton Med. Ctr., 12-0703 (La. 12/4/12), 108 So. 3d 60, 62; Duzon v. Stallworth, 01-1187 (La. App. 1 Cir. 12/11/02), 866 So. 2d 837, 861, writ denied sub nom., Duzon ex rel. Cmty. of Acquets & Gains v. Stallworth, 03-0589 (La. 5/2/03), 842 So. 2d 1101, and writ denied, 03-0605 (La. 5/2/03), 842 So. 2d 1110.

[HN4] Suits against the State of Louisiana, a state agency, or a political subdivision must be brought pursuant to the Louisiana Governmental Claims Act, La. R.S. 13:5101-5113 (“Act”). The Act applies to any suit in contract or for injury to person or property. La. R.S. 13:5101(B). Pursuant [*10] to the Act, the Legislature appropriates certain funds to pay claims against the State, its agencies, and political subdivisions. La. R.S. 13:5106(B)(1). The Act caps a claimant’s damages for personal injury at $500,000.00, exclusive of property damage, medical care and related benefits, loss of earnings, and loss of future earnings. La. R.S. 13:5106(B)(1).

[HN5] When a trial court determines that a plaintiff in a suit for personal injury against the state or a state agency is entitled to medical care and related benefits² incurred subsequent to judgment, i.e. future medicals, the provisions of the Future Medical Care Fund (“FMCF”), La. R.S. 39:1533.2, apply to such cases. Louisiana Revised Statutes 13:5106(B)(3)(c) is the controlling statutory authority for personal injury claims against the state or a state agency:

In any suit for personal injury against the state or a state agency wherein the court pursuant to judgment determines that the claimant is entitled to medical care and related benefits that may be incurred subsequent to judgment, the court shall order that all medical care and related benefits incurred subsequent to judgment be paid from the Future Medical Care Fund as provided in R.S. 39:1533.2. Medical care and related benefits shall be paid directly to the provider as they are incurred [*11] . Nothing in this Subparagraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided but with the requirement that they shall be paid in accordance with this Subparagraph. [Emphasis added.]

[HN6] The FMCF is administered by the Office of Risk Management, through the Treasurer of the State of Louisiana. La. R.S. 39:1533.2(B).

2 Louisiana Revised Statutes 13:5106(D)(1) provides that:

[HN7] “Medical care and related benefits” for the purpose of this Section means all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services.

In contrast, [HN8] when a trial court determines that a plaintiff in a suit for personal injury against a political subdivision is entitled to medical care and related benefits incurred subsequent to judgment, a reversionary trust is established for the benefit of the plaintiff and all future medical care is paid pursuant to the reversionary trust instrument. Louisiana Revised Statutes 13:5106(B)(3)(a)³ is the controlling statutory authority for personal injury claims against political subdivisions:

In any suit for personal injury [*12] against a political subdivision wherein the court, pursuant to judgment, determines that the claimant is entitled to medical care and related benefits that may be incurred subsequent to judgment, the court shall order that a reversionary trust be established for the benefit of the claimant and that all medical care and related benefits incurred subsequent to judgment be paid pursuant to the reversionary trust instrument. The reversionary trust instrument shall provide that such medical care and related benefits be paid directly to the provider as they are incurred. Nothing in this Paragraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided, but with the requirement of establishing a reversionary trust. [Emphasis added.]

The Act [HN9] does not limit the rights of a claimant to contract with respect to attorney’s fees and costs when the claimant’s future medical care is paid from a reversionary trust established by a political subdivision for that claimant’s future medical care. As provided for in Louisiana Revised Statutes 13:5106(D)(3):

[HN10] “Reversionary trust” means a trust established by a political subdivision for [*13] the exclusive benefit of the claimant to pay the medical care and related benefits as they accrue, including without limitation reasonable and necessary amounts for ah diagnosis, cure, mitigation, or treatment of any disease or condition from which the injured person suffers as a result of the injuries, and the sequelae thereof, sustained by the claimant on the date the injury was sustained. The trustee shall have the same fiduciary duties as imposed upon a trustee by the Louisiana Trust Code. Nothing herein shall limit the rights of claimants to contract with respect to attorney fees and costs. [Emphasis added.]

Louisiana Revised Statutes 13:5106(B)(3)(a) and (D)(3), [HN11] relative to the creation of reversionary trusts, were added by 1996 La. Acts No. 63, § 1 (effective May 9, 1996). 2000 La. Acts No. 20, § 1 (effective July 1, 2000) amended La. R.S. 13:5106(B)(3)(a) and (D)(3) to provide that the creation of reversionary trusts for the payment of future medical care specifically applies to personal injury claims against political subdivisions.

To ascertain which of the Act’s provisions regarding damage awards apply to Ms. Fecke’s case — either the provision applicable to an award against the state or a state agency, La. R.S. 13:5106(B)(3)(c), or the provision applicable to damage awards against [*14] a political subdivision, La. R.S. 13:5106(B)(3)(a) — this court must determine whether the LSU Board is classified as the “state or a state agency” or as a “political subdivision.” The Act defines a “state agency” as “any board, commission, department, agency, special district, authority, or other entity of the state.” La. R.S. 13:5102(A). The Act defines a “political subdivision” as “[a]ny parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency.” La. R.S. 13:5102(B)(1).

[HN12] The starting point in the interpretation of any statute is the language of the statute itself. Whitley v. State ex rel. Bd. of Supervisors of Louisiana State Univ. Agr. Mech. College, 11-0040 (La. 7/1/11), 66 So. 3d 470, 474. When the wording of a section of the revised statutes is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. La. C.C. art. 9; La. R.S. 1:4. “Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language.” La. R.S. 1:3. Based on the clear language of La. R.S. 13:5102(A) and (B), the LSU Board is a state agency.⁴ Because the LSU Board is a state agency, the Act’s provision applicable to [*15] awards for future medical care against the state or a state agency – La. R.S. 13:5106(B)(3)(c) DMASH applies to the instant case. Thus, the trial court legally erred in applying La. R.S. 13:5106(B)(3)(a) to this case. That legal error became prejudicial when the trial court rendered judgment on the jury’s verdict and ordered that Ms. Fecke’s damage award for her future medical care be placed in a reversionary trust, which the trial court referred to as a “Future Medical Care Trust.”⁵ We therefore amend the portion of the trial court’s October 3, 2014 final judgment that refers to a “Future Medical Care Trust” to refer to the “Future Medical Care Fund.”

4 We note that there is constitutional and statutory authority for the classification of the LSU Board as a state agency. We also note there is jurisprudence that has previously applied the Act to suits involving the LSU Board. In those instances, courts applied the provisions of the Act applicable to state agencies to the LSU Board. See La. Const, art. VIII, § 7; La. R.S. 13:5102(A): La. R.S. 39:1527(1); Whitley, 66 So. 3d at 476; LeBlanc v. Thomas, 08-2869 (La. 10/20/09), 23 So. 3d 241, 246; Student Govt. Association of Louisiana State Univ. Agr. & Meek College, Main Campus, Baton Rouge v. Board of Supervisors of Louisiana State Univ. Agr. & Meek College, 262 La. 849, 867-68, 264 So. 2d 916, 922 (1972) (Barham, J., dissenting); Hunter v. Louisiana State Univ. Agr. & Meek College ex rel. Louisiana Health Care Services Center for Univ. Hosp. at New Orleans, 10-1406 (La. App. 4 Cir. 6/8/11), 77 So. 3d 264, 267, reversed on other grounds, 11-2841 (La. 3/9/12), 82 So. 3d 268.

5 The trial court’s judgment ordered that Ms. Fecke’s future medicals be placed in a “Future Medical Care Trust” in accordance with La. R.S. 13:5106(B)(3)(c); however, as we have discussed, Section 5106(B)(3)(c) applies [*16] to the state and state agencies and governs the placement of a claimant’s future medicals in the Future Medical Care Fund, not a trust.

In addition to its argument that the trial court legally erred in establishing a reversionary trust for Ms. Fecke’s future medical care instead of ordering that those benefits be paid from the FMCF, the LSU Board further contends that the trial court legally erred when it (i) ordered that costs and judicial interest be paid out of and earned on Ms. Fecke’s damage award for future medicals, and (ii) ordered that attorney’s fees be taken out of that award prior to the establishment of a reversionary trust.

Section 5106(B)(3)(c), referring to La. R.S. 39:1533.2, [HN13] provides that a claimant’s future medicals are paid from the FMCF “directly to the provider as they are incurred.” The FMCF is established by La. R.S. 39:1533.2, which provides:

[HN14] A. There is hereby established in the state treasury the “Future Medical Care Fund”, hereinafter referred to as the “fund”. The fund shall consist of such monies transferred or appropriated to the fund for the purposes of funding medical care and related benefits that may be incurred subsequent to judgment rendered against the state or a state agency [*17] as provided by R.S. 13:5106 and as more specifically provided in R.S. 13:5106(B)(3)(c). All costs or expenses of administration of the fund shall be paid from the fund.

B. The fund shall be administered by the treasurer on behalf of the office of risk management for the benefit of claimants suing for personal injury who are entitled to medical care and related benefits that may be incurred subsequent to judgment. Except for costs or expenses of administration, this fund shall be used only for payment of losses associated with such claims. At the close of each fiscal year, the treasurer shall transfer to the Future Medical Care Fund from the Self-Insurance Fund an amount equal to the monies expended from the Future Medical Care Fund during that fiscal year. Monies in the fund shall be invested by the state treasurer in the same manner as monies in the state general fund. Interest earned on investment of monies in the fund shall be deposited in and credited to the fund. All unexpended and unencumbered monies in the fund at the end of the fiscal year shall remain in the fund. [Emphasis added.]

Ms. Fecke is entitled to receive costs and interest on her damage award in accordance with La. R.S. 13:5112 of the Act; however, pursuant to La. R.S. 39:1533.2 (which [*18] the Act refers to in Section 13:5106(B)(3)(c)), any interest specifically earned on the award for Ms. Fecke’s future medical care “shall be deposited in and credited to” the FMCF. Thus, to the extent that the October 3, 2014 judgment of the trial court awards interest directly to Ms. Fecke’s on her future medical care award, that portion of the judgment is hereby vacated.

[HN15] With regard to costs and attorney’s fees, this court notes that when a reversionary trust is established by a political subdivision for the payment of a claimant’s future medical care and related benefits, the statute does not limit the rights of a claimant to contract with respect to attorney fees and costs. La. R.S. 13:5106(D)(3). Ms. Fecke argues that this provision of the Act authorizes the trial court to approve her contract with her lawyer for reasonable attorney’s fees which may be deducted from the jury’s damage award for her future medical care, prior to the establishment of the reversionary trust. Ms. Fecke’s contention regarding reversionary trusts is valid, but, as we have previously held, the reversionary trust provisions contained in La, R.S. 13:5106(B)(3)(a) and (D)(3) do not apply to her suit for personal injury against the LSU Board.

Louisiana Revised Statutes 13:5106(D)(1) defines “[m]edical [*19] care and related benefits” as “all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services.” Thus, the only monies to be paid to a provider from the FMCF for Ms. Fecke’s future medical care are those things defined in Section 13:5106(D)(1). Nowhere in the statutes pertaining to the FMCF does it provide for costs or attorney’s fees to be paid therefrom. Furthermore, costs and attorney’s fees are not “medical care and related benefits” set forth in La. R.S. 13:5106(D)(1). See Starr v. State ex rel. Dept. of Transp. & Dev., 46,226 (La. App. 2 Cir. 6/17/11), 70 So. 3d 128, 144, writs denied, 11-1835 (La. 10/21/11), 73 So. 3d 386, 11-1952 (La. 10/21/11), 73 So. 3d 387, 11-1625 (La. 10/21/11), 73 So. 3d 388 and 12-2146 (La. 10/12/12), 98 So. 3d 877.

We also note that a lump sum is not placed in the FMCF on Ms. Fecke’s behalf, out of which costs and attorney’s fees could be paid directly to her attorneys. As set forth in the statutory scheme, Ms. Fecke’s future medical care will be paid from the FMCF directly to her medical provider as her medical care is incurred.⁶ La. R.S. 13:5106(B)(3)(c). Therefore, the portions of the October 3, 2014 judgment of the trial court, which ordered that costs and attorney’s fees be paid out of Ms. Fecke’s damage award for her future medical care, are hereby vacated.

6 The statutory scheme that creates and governs the organization and management of the FMCF is analogous to the statutory scheme that creates and governs the “Patient’s Compensation Fund,” the fund established for the payment of medical malpractice claims. See La. R.S. 40:1299.43-44.

Assignment [*20] of Error 2:

In its second assignment of error, the LSU Board contends that the trial court erred in excluding from trial a one-page Rock Climbing Wall Participation Agreement (“Agreement”) that was provided to Ms. Fecke by the LSU UREC employees, which she executed prior to climbing the wall on the day of her accident. Prior to trial, Ms. Fecke filed a motion in limine to exclude the Agreement, arguing that the document constituted a waiver of liability to release the LSU Board from any and all liability for causing injury to Ms. Fecke. Such exclusion of liability waivers are null under Louisiana law. See La. C.C. art. 2004. The LSU Board opposed the motion. A hearing was held on Ms. Fecke’s motion in limine the day before commencement of the jury trial. The trial court granted the motion excluding the Agreement.

On the second day of the jury trial, the LSU Board moved to re-consider the motion in limine to exclude the Agreement. The LSU Board argued that portions of the Agreement unrelated to the liability waiver, such as certifications regarding Ms. Fecke’s health, mental, and physical condition should be permitted into evidence. The trial court considered entering into evidence a version of the Agreement [*21] that redacted any mention of a waiver of liability; however, the trial court reasoned that a redacted document may cause confusion for the jury who might speculate over the contents of the redacted portions of the Agreement. Recognizing the need to provide the information contained in the “non-waiver of liability” paragraphs of the Agreement to the jury without causing confusion, the trial court opted to instruct the jury that Ms. Fecke certified to the LSU UREC employees that she was in good health and had no mental or physical conditions that would interfere with her safety or the safety of others. The parties stipulated to the disclosure, and counsel for the LSU Board proffered the Agreement.

On appeal, the LSU Board argues that the Agreement was more than a mere waiver of liability. It argues that the Agreement establishes that 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, [*22] which is a significant factor in determining her fault, and that this information should have been presented to the jury. Ultimately, the LSU Board contends the Agreement is relevant, highly probative, and its exclusion from evidence materially prejudiced the LSU Board in its ability to defend against Ms. Fecke’s allegations of negligence and the alleged breach of duty owed as the owner of the rock wall climbing facility. Specifically, the LSU Board argues that Ms. Fecke’s acknowledgement regarding the risk of bodily injury, representations regarding her physical and mental capacity and understanding that she alone was to determine whether she was fit to participate in the activity, and her agreement to direct any questions to the climbing wall staff constituted her informed consent and acknowledgement of the risk of climbing the indoor rock wall and are significant factors in determining her fault.

[HN16] All relevant evidence is admissible, except as otherwise provided by law. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. The trial [*23] court has great discretion in its consideration of evidentiary matters such as motions in limine. See Heller v. Nobel Insurance Group, 00-0261 (La. 2/2/00), 753 So. 2d 841. Thus on review, an appellate court must determine whether the trial court abused its great discretion in ruling on a motion in limine. Id. [HN17] Pursuant to La. C.C.P. art. 1636, when a trial court rules against the admissibility of any evidence, the court shall either permit the party offering such evidence to make a complete record thereof or permit the party to make a statement setting forth the nature of the evidence. Article 1636 is mandatory, not discretionary. Williams v. Williams, 06-2491 (La. App. 1 Cir. 9/14/07), 970 So. 2d 633, 640. The purpose of requiring a proffer is to preserve excluded evidence so that the testimony or evidence is available for appellate review of a trial court’s erroneous ruling. When legal error has been found and a complete record has been made through a proffer, the appellate court is able to conduct a de novo review of the record, including the proffered evidence, to render a decision on appeal. Id. We now review the proffered Agreement de novo to determine whether the trial court committed legal error in excluding the Agreement and whether that legal error prejudiced the LSU Board’s defense.

The Agreement is a one-page document signed by Ms. Fecke [*24] that contains eight paragraphs. The first three paragraphs provide as follows:

I understand and agree that there is a risk of serious injury to me while utilizing University Recreation facilities, equipment, and programs and recognize every activity has a certain degree of risk, some more than others. By participating, I knowingly and voluntarily assume any and all risk of injuries, regardless of severity, which from time to time may occur as a result of my participation in athletic and other activities through LSU University Recreation.

I hereby certify I have adequate health insurance to cover any injury or damages that I may suffer while participating, or alternatively, agree to bear all costs associated with any such injury or damages myself.

I further certify that I am in good health and have no mental or physical condition or symptoms that could interfere with my safety or the safety of others while participating in any activity using any equipment or facilitates of LSU University Recreation. I understand and agree that I alone am responsible to determine whether I am physically and mentally fit to participate, perform, or utilize the activities, programs, equipment or facilities [*25] available at Louisiana State University, and that I am not relying on any advice from LSU University Recreation in this regard. To the extent I have any questions or need any information about my physical or mental condition or limitations, I agree to seek professional advice from a qualified physician.

The fourth paragraph of the Agreement provides as follows:

Further, I hereby RELEASE AND HOLD HARMLESS, the State of Louisiana, the Board of Supervisors of Louisiana State University and Agricultural & Mechanical College, and its respective members, officers, employees, student workers, student interns, volunteers, agents, representatives, institutions, and/or departments from any and all liability, claims, damages, costs, expenses, personal injuries, illnesses, death or loss of personal property resulting, in whole or in part, from my participation in, or use of, any facility, equipment, and/or programs of Louisiana State University.

The remaining paragraphs of the Agreement provide as follows:

I will wear proper protective equipment and I agree to abide by all rules of the sport as mandated by LSU University Recreation.

I, the undersigned, am at least eighteen (18) years of age [*26] or have a parent/legal guardian’s signature, will not use an auto-belay system if weighing less than 90 pounds, am physically fit, have read this participation agreement, and understand its terms and conditions. I agree not to climb onto the top of the structure and stay directly under the rope or belay system I am using. Any certifications, including belay certifications, are good only at the LSU’s Baton Rouge campus, Student Recreation Center, and are not transferable to any other person.

Any questions concerning equipment to be used should be directed to Climbing Wall Staff prior to engaging in this activity. The wall is not designed for rappelling from the top of the tower. Doing so may result in serious physical injury to the participant and/or bystanders.

At various times throughout the semester, University Recreation will be taking digital images, photographs, and/or videotapes of patrons [for] educational, promotional and informational purposes for use in department related print materials and on our Web site. When/if your likeness or image is used in a publication, there will be no identifying information provided. [Emphasis added.]

Louisiana Civil Code article 2004 provides:

[HN18] Any clause is null that, in advance, [*27] 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.

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 trial court properly excluded that portion of the Agreement from consideration by the jury. The issue then becomes whether a redacted version of the Agreement, with the remaining paragraphs that do not exclude or limit the liability of the LSU Board, should have come into evidence. As per the agreement of the parties, the trial court gave the jury an instruction, instead of providing a redacted version of the Agreement, and disclosed these minimal facts to the jury:

They stipulate that when Brandy Fecke arrived at the LSU Recreational Center on that evening she certified to them that she was in good health and had no mental or physical condition or symptoms that could interfere with her safety or the safety of others while participating in any [*28] activity using any equipment or facilities of LSU University Recreation; further, that she was at least 18 years of age and was physically fit. So that’s again, as I said, a stipulation is the parties agree those are the facts and they don’t need to have witnesses and so forth testify to that.

Despite the trial court’s instruction to the jury, the LSU Board argues that each paragraph of the Agreement is highly probative as to the fault of the parties and that this probative value substantially outweighs any potential confusion or misleading of the jury that could have resulted from the introduction of the Agreement at trial. During the jury trial, a rock climbing expert for the plaintiff, Dan Pervorse, testified regarding the LSU Board’s duty to Ms. Fecke. Mr. Pervorse stated that the LSU Board failed to provide Ms. Fecke with an adequate warning as to the potential for significant physical injury associated with rock climbing. He further stated that the LSU UREC employees failed to properly screen and instruct Ms. Fecke prior to allowing her to climb. Mr. Pervorse further testified that the LSU Board failed to follow proper safety procedures, including the requirement that a climber [*29] who is bouldering must have a spotter standing behind the climber to provide assistance to the climber and help prevent injuries. The LSU Board argues that had it been allowed to enter the Agreement into evidence and use it during its cross-examination of Mr. Pervorse, his expert testimony would have been significantly diminished and may have resulted in a different allocation of fault to the LSU Board.

[HN19] Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of La. C.C. art 2315. 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). Rideau, 970 So. 2d at 573.

[HN20] Rock climbing is a recreational [*30] 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. Ravey v. Rockworks, LLC, 12-1305 (La. App. 3 Cir. 4/10/13), 111 So. 3d 1187, 1192. 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. See Henshaw v. Audubon Park Com’n., 605 So. 2d 640, 643 (La. App. 4 Cir.), writ denied, 607 So. 2d 570 (La. 1992).

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 . Ravey, 111 So. 3d at 1190-91. 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 [*31] proof of a causal connection between the lack of reasonable training/supervision and the accident. See Ravey, 111 So. 3d at 1191.

1. Full knowledge of facilities and programs ….

2. Ability to seek answers to questions.

3. Provide consistency and continuity.

4. Carry out assigned routine and non-routine tasks.

5. Follow and enforce staff and program policies and procedures.

6. Maintain a safe and enjoyable recreation environment.

Employees are required to know and enforce all climbing wall and LSU UREC rules.

The manual distinguishes between the climbing wall and the bouldering wall. The climbing wall utilizes a safety rope belay system, where a climber climbs the wall while strapped into a harness and is “belayed” via ropes by an LSU UREC employee. Bouldering, as opposed to rope climbing while wearing a harness, does not involve the use of ropes and requires the climber to traverse the boulder wall from side-to-side instead of climbing up the wall. The manual lists the following [*32] rules for bouldering:

1. Before bouldering the climber must check in at the desk.

2. The number of climbers at any one time may be limited to ensure proper supervision. When people are using climbing ropes, bouldering on walls behind them, may be stopped. Bouldering may be limited based on climber’ s/belayer’s location on the wall.

3. The climber may not boulder above or below any other climbers and must be sure that pants pockets are empty.

4. A bouldering sequence may be marked with tape.

5. Only the climbing staff may switch holds if necessary.

6. Spotting is required as bouldering can become quite demanding and may involve moves increasing the possibility of the climber coming off the wall in an awkward position. A spotter is required, to provide assistance to prevent injuries. Help all spotters to make sure that they are using proper technique and understand the purpose of spotting.

7. Participants are required to properly use crash pads at all times, a spotter may help to position crash pads.

8. Intentional jumping off the wall is not allowed. Please, climb down.

9. Please remove all hand jewelry and long necklaces. Clean athletic shoes, running shoes, or climbing shoes are the [*33] only shoes permitted. Shirts must be worn at all times. Tie hair back when necessary.

10. Be safe, be creative, have fun! [Emphasis added.]

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 safety clinic requires the LSU UREC employees to give an example of the technique of spotting and have the participating climbers demonstrate spotting. Section 6 of the safety clinic provides:

a. Every climber must request a spotter when applicable, i.e. when climbing at one’s limit or climbing into a situation that could yield a long or awkward fall.

b. Proper spotting techniques:

i. The role of the spotter is to first assist the climber in landing properly on their feet in the upright position. Secondly, to protect the climber’s head from hitting something hard (floor, wall, etc).

ii. Hands up, thumbs in (spoons not forks).

iii. Dominant leg back, to use as a brace.

iv. Do not catch the climber; [*34] help them regain proper balancing while landing.

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.

At trial, Ms. Fecke, her friend Mr. Culotta, and the two LSU UREC employees who were working the night of the accident, Emanuel Andrews and Andrew Whitty, testified as to the events.⁷ Ms. Fecke testified that after having her course form signed and executing the Agreement, Mr. Whitty gave Ms. Fecke and Mr. Culotta a “few minutes or so” of instruction. She stated that the climbing wall employees made no clear distinction between rope climbing with a harness or bouldering. Mr. Whitty asked if she wanted to wear a harness, but she declined, stating that she and Mr. Culotta wanted to climb “whatever [wall] was easiest,” to which he indicated they could climb the back 13′ 1″ bouldering wall located on the rear wall. Ms. Fecke also testified that Mr. Whitty indicated to her that most people climbed without a harness and that it was “up to her” whether she wanted to climb while wearing a harness. Mr. Culotta suggested that she wear a harness, which Ms. [*35] Fecke took as a joke stating, “[t]he worker at the wall didn’t make me feel like it was necessary and said most people didn’t, so I didn’t think it was something I had to do.”

7 The deposition of Andrew Whitty was read in open court.

Ms. Fecke testified that the employees did not ask her to demonstrate her climbing ability. She further stated that the employees did not explain the technique of climbing with a spotter or that spotting was required in order to climb the boulder wall and that she and Mr. Culotta never spotted each other. In terms of climbing instruction given by the employees, Ms. Fecke testified that “[o]ne of the guys climbed about half the wall quickly and came back down” in about thirty seconds and asked if they had any questions, which she stated she and Mr. Culotta did not have at the time. Ms. Fecke testified that there wasn’t anything she “didn’t get” in terms of instruction about climbing the wall.

Mr. Culotta testified that he and Ms. Fecke arrived at the indoor rock wall climbing facility about an hour before closing. He stated that after he and Ms. Fecke indicated their relative climbing experience, the employees gave a “few minutes” of “some basic instruction,” [*36] and one of the employees demonstrated climbing up the wall in about thirty seconds. Mr. Culotta stated that he did not remember any discussion of the spotting technique during the instruction by the climbing wall employees. Mr. Culotta further testified that he never spotted Ms. Fecke.

Andrew Whitty, one of the climbing wall employees working the night of Ms. Fecke’s accident, testified that he went over the rules and regulations of the climbing facility with Ms. Fecke and Mr. Culotta since they were both new climbers. Mr. Whitty testified that if a patron was new to the climbing wall, the employees would have to give a “brief sort of instruction” during which the employees would go over certain things,” such as the difference between climbing with a rope and bouldering. Mr. Whitty stated that since Ms. Fecke and Mr. Culotta opted to climb the boulder wall since it was more convenient, he went over spotting techniques. Mr. Whitty testified that Mr. Culotta was spotting Ms. Fecke at the time of her fall. Mr. Whitty stated that he could not recall if there was a policy in place at the LSU UREC that required a spotter for a climber on the bouldering wall. He also could not recall whether [*37] there was policy or procedures manual for the climbing wall, and if there was, he stated he did not refer to it often. Mr. Whitty testified that climbers were not tested for proficiency prior to climbing.

Emanuel Andrews, the other employee working the night of Ms. Fecke’s accident, witnessed Ms. Fecke as she fell from the wall. Mr. Andrews was standing approximately twenty feet from where Ms. Fecke and Mr. Culotta were climbing, in the middle of the room, Mr. Andrews testified that while Ms. Fecke climbed the wall, Mr. Culotta was standing in the correct position to spot her, but that as she fell, Mr. Culotta moved away from the wall and out of the spotting position.

We also note that the plaintiff’s expert on rock wall climbing, Mr. Pervorse, testified that the spotting technique, which should be used any time a climber traverses a bouldering wall, involves “having a good stance, one foot forward, one foot back, slightly wider than shoulder width so that you have a good support base and, then your hands up.” He further stated that the purpose of spotting is to “slow [the climbers] fall, to keep them upright, keep them from falling over and hurting their self further by potentially [*38] falling off a mat and hitting their head, to help steadying them when they do land.”

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. While the employees may have explained the spotting technique, Ms. Fecke and Mr. Culotta both testified that neither spotted the other as they climbed. Despite the LSU Board’s contention that the Agreement represents Ms. Fecke’s acknowledgment of the risks involved in rock wall climbing, as stated above, those risks are well-known. 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 [*39] as she climbed the bouldering wall.

Paragraph four of the Agreement is null because it, in advance, excludes the liability of the LSU Board for causing physical injury to Ms. Fecke, but the remaining paragraphs of the Agreement are not illegal waivers of liability. 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.

Assignment of Error 3:

In the third and final assignment of error, the LSU Board asserts that the trial court improperly instructed the jury on the award of damages for the “loss of future earnings” when the trial court should have instructed the jury on damages for the “loss of future earning capacity.” It is undisputed that at the time of Ms. Fecke’s accident, she was an unemployed senior college student at LSU. Ms. Fecke later graduated from LSU with a degree in kinesiology and obtained a secondary degree as a physical therapy assistant. At the time of trial, she was employed as a physical therapy assistant, [*40] but testified that she had recently taken on a less strenuous, and lower paid, physical therapy assistant job due to her injuries. The LSU Board argues that because Ms. Fecke was unemployed at the time of her accident, she suffered no loss of earning or loss of future earnings, but rather suffered a loss of future earning capacity.

The distinction between a damage award for the loss of future earnings and the loss of future earning capacity is crucial in this case because as a state agency, the LSU Board’s liability for damages for an award of loss of future earning capacity is included in the $500,000.00 cap on damages pursuant to La. R.S. 13:5106(B)(1). In contrast, damages for a loss of future earnings, as was awarded by the jury to Ms. Fecke based on the instruction given by the trial court, are excluded from the $500,000.00 damages cap, La. R.S. 13:5106(B)(1); see also Cooper v. Public Belt R.R., 03-2116 (La. App. 4 Cir. 10/6/04), 886 So. 2d 531, 539, writ denied, 04-2748 (La. 1/28/05), 893 So. 2d 75 (the $500,000.00 cap on damages in actions against governmental units applied to damages for loss of future earning capacity; loss of future earning capacity was not the same as a loss of future earnings, and thus, it did not fall within an exception to the cap). It therefore behooves this court to determine whether or not the jury [*41] instruction given by the trial court on a loss of future earnings was proper.

Louisiana Code of Civil Procedure article 1792(B) [HN21] requires a district judge to instruct the jury on the law applicable to the case submitted to them. The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate. Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61 So. 3d 507, 573. The question here is whether the district judge adequately instructed the jury, as that concept has been defined in the jurisprudence:

[HN22] Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error.

Wooley, 61 So. 3d at 574 (citing Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08), 983 So. 2d 798, 804.).

Generally, the giving of an allegedly erroneous jury instruction will not constitute grounds for reversal unless the instruction is erroneous and the complaining [*42] party has been injured or prejudiced thereby. In fact, Louisiana jurisprudence is well established that a reviewing court must exercise great restraint before it reverses a jury verdict due to an erroneous jury instruction. Wooley, 61 So. 3d at 574. When a reviewing court finds the jury was erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. Wooley, 61 So. 3d at 574.

[HN23] In order to determine whether an erroneous jury instruction was given, reviewing courts must assess the targeted portion of the instruction in the context of the entire jury charge to determine if the charges adequately panicle the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its determination. The ultimate inquiry on appeal is whether the jury instructions misled the jury to such an extent that the jurors were prevented from dispensing justice. The law is clear the review function is not complete once error is found. Prejudice to the complaining party cannot automatically be assumed from the mere fact of an error. Instead, the reviewing court must then compare the degree of the error with the [*43] adequacy of the jury instructions as a whole and the circumstances of the case. Wooley, 61 So. 3d at 574.

Louisiana Revised Statutes 13:5106(D)(2) [HN24] defines “loss of future earnings” as “any form of economic loss which the claimant will sustain after the trial as a result of the injury … which forms the basis of the claim.” In contrast, loss of earning capacity is not the same as lost earnings. Rather, earning capacity refers to a person’s potential. Batiste v New Hampshire Ins. Co., 94-1467 (La. App. 3 Cir. 5/3/95), 657 So. 2d 168, 170, writ denied, 95-1413 (La. 9/22/95), 660 So. 2d 472. The Louisiana Supreme Court has held that damages for a loss of earning capacity should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury. Earning capacity in itself is not necessarily determined by actual loss. Hobgood v. Aucoin, 574 So. 2d 344, 346 (La. 1990); Folse v. Fakouri, 371 So. 2d 1120, 1124 (La. 1979). The claimant need not be working or even in a certain profession to recover an award for loss of future earning capacity. Brandao v. Wal-Mart Stores, Inc., 35,368 (La, App. 2 Cir. 12/19/01), 803 So. 2d 1039, 1043, writ denied, 02-0493 (La. 4/26/02), 814 So. 2d 558. Damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he [*44] never profited from it monetarily. Hobgood, 574 So 2d at 346; Folse, 371 So. 2d at 1124.

[HN25] An award for loss of earning capacity is inherently speculative and cannot be calculated with absolute certainty. The most the courts can do is exercise sound discretion and make an award that in light of all facts and circumstances is fair to both parties while not being unduly oppressive to either. In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiffs current condition disadvantages her in the work force. Henry v. National Union Fire Ins. Co., 542 So. 2d 102, 107, writ denied, 544 So. 2d 405 (La. 1989) and 544 So. 2d 405 (La. 1989). Factors to be considered in fixing awards for loss of earning capacity include: age, life expectancy, work life expectancy, past work record, appropriate discount rate, the annual wage rate increase or productivity increase, prospects for rehabilitation, probable future earning capacity, loss of earning ability, and the inflation factor or decreasing purchasing power of the applicable currency. Henry, 542 So. 2d at 107; Brandao, 803 So. 2d at 1043.

Experts at trial testified that Ms. Fecke would likely have to change career paths — from a physical therapy assistant to a job in a more sedentary position — at some undetermined point [*45] in the future due to her injuries. Stephanie Chalfin, a vocational rehabilitation expert, presented options for potential new careers for Ms. Fecke. Harold Asher, a certified public accountant and an expert in the projection of economic loss testified as to Ms. Fecke’s potential maximum salary as a physical therapy assistant (which was provided by Ms. Chalfin). Mr. Asher then calculated the difference between the hypothetical salary and Ms. Fecke’s potential earning capacity under three scenarios: Ms. Fecke remaining in her field as a physical therapy assistant, obtaining employment as a social worker, or obtaining employment as a rehabilitation counselor. Mr. Asher projected his figures over the anticipated work life of Ms. Fecke and considered a number of factors including her age, how long he expected her to continue working, her motivation to work, growth rate, and wages anticipated each year of her work life.

The jury instructions were lengthy, and this is the only reference therein to a damage award for “loss of future earnings”:

Under the loss of future earnings component of damages, the plaintiff is entitled to recover damages for the deprivation of what she should have earned [*46] but for the injury. Such damages are calculated on the plaintiff’s ability to earn money in her chosen career compared to what she can now earn because of her injury. In determining such an award, you may consider plaintiff’s physical condition and mental status before and after this incident, her work record, her earnings in prior years, the probability or improbability that she would have earned similar amounts in the remainder of her work life, and similar factors. And since, if you make an award, plaintiff would be receiving today sums of money that otherwise she would only receive over a number of years in the future, the law requires that you discount or reduce it to its present value, which is what the experts in this case have already done.

The LSU Board objected to the jury instruction given by the trial court regarding damages for “loss of future earnings.” The trial court, after citing to the Fourth Circuit’s decision in Cooper, 886 So. 2d 531, and the Louisiana Supreme Court’s decision in Folse, 371 So. 2d 1120, stated:

The cases dealing with loss of future earnings dealt with cases where the injured plaintiff was already in a certain career or profession or job description and they could not continue on in that same [*47] job. The evidence in this case was that Ms. Fecke was, despite her injury, able to qualify and go into her chosen profession of physical therapy assistant, but because of her injury will not be able to continue in that type of employment and must therefore seek other employment which may or may not pay less, as indicated by the experts who testified.

So for that reason, I felt that this was more loss of future earnings as opposed to loss of earning capacity. So that’s why I gave that charge as opposed to a future earning capacity charge or a future earning capacity entry on the verdict form.

Unlike the trial court’s reasoning, [HN26] the Louisiana Supreme Court has drawn a distinction between “pecuniary loss” and a “loss of earning capacity.” The supreme court explained the rationale behind the concept of loss of future earning capacity as opposed to loss of future earnings by stating that “the theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.” Folse, 371 So. 2d at 1123. Further, by noting that proof of loss of future earning capacity does not require proof of future monetary loss, the supreme court reinforces [*48] the conclusion that loss of future earning capacity is not an “economic loss” within the intendment of La. R.S. 13:5106(D)(2). See Folse, 371 So. 2d at 1123. Therefore, like the Fourth Circuit in Cooper, we hold that “pecuniary loss,” as used in Folse by the supreme court, is synonymous with “economic loss” as employed in La. R.S. 13:5106(D)(2). See Cooper, 886 So. 2d at 539. Thus, Ms. Fecke suffered a loss of future earning capacity as a result of her injury. It is impossible for her to receive an award for loss of earnings or loss of future earnings because she suffered no economic loss as a result of her accident since she was unemployed at the time.

The jury awarded damages estimated on Ms. Fecke’s potential to earn money in the future, which is her future earning capacity. Based on the law, the expert testimony, and the evidence introduced at trial, we find that the trial court’s instruction regarding loss of future earnings was erroneous. Furthermore, we find that the error was prejudicial to the LSU Board, particularly with regard to the $500,000.00 liability cap, pursuant to La. R.S. 13:5106(B)(1), on a damage award for a loss of future earning capacity. The error resulted in an award to Ms. Fecke that was a larger amount than she was statutorily entitled to receive. The judgment warrants [*49] amendment based on the degree of this error combined with the adequacy of the jury instructions as a whole and the circumstances of this case. Therefore, we amend the portion of the October 3, 2014 judgment of the trial court, which awarded Ms. Fecke damages for loss of future earnings, to award Ms. Fecke those damages as her loss of future earning capacity. We furthermore amend the judgment to cap Ms. Fecke’s damages, exclusive of her medical care and related benefits, at $500,000.00 in accordance with La. R.S. 13:5106(B)(1).

We further note that the modification of Ms. Fecke’s damages award extinguishes the loss of consortium award to Karen Fecke. Louisiana Revised Statutes 13:5106(D)(4) [HN27] provides that “‘[d]erivative claims’ include but are not limited to claims for survival or loss of consortium.” A claim for loss of consortium pursuant to La. C.C. art. 2315(B) is a derivative claim, derived from damages to the primary plaintiff. An award of general damages in the maximum amount of $500,000.00 as allowed by statute in actions against state agencies and/or political subdivisions of the state serves to legally extinguish any derivative awards for loss of consortium, services, and society. See Jenkins v. State ex rel. Dept. of Transp, & Dev., 06-1804 (La. App. 1 Cir. 8/19/08), 993 So. 2d 749, 778, writ denied, 08-2471 (La. 12/19/08), 996 So. 2d 1133. We therefore reverse the trial court’s judgment in part and vacate [*50] the award of damages for loss of consortium to Karen Fecke.

DECREE

We amend the portion of the trial court’s October 3, 2014 final judgment, which orders that Ms. Fecke’s award of $750,000.00 for medical care and related benefits incurred subsequent to judgment be placed in a reversionary “Future Medical Care Trust,” to order that Ms. Fecke’s award of $750,000,00 for medical care and related benefits incurred subsequent to judgment be paid from the Future Medical Care Fund in accordance with La. R.S. 39:1533.2. The portions of the judgment awarding interest directly to Ms. Fecke and ordering that attorney’s fees and costs be paid out of Ms. Fecke’s damage award for her medical care and related benefits incurred subsequent to judgment are hereby reversed. Furthermore, the portion of the October 3, 2014 judgment of the trial court, which awarded Ms. Fecke damages in the following amounts:

Physical Pain and Suffering, Past and Future: $112,500.00

Mental Pain and Suffering, Past and Future: $93,750.00

Loss of Enjoyment of Life: $56,250.00

Permanent Disability and Scarring: $123,750.00

Loss of Future Earnings: $262,500.00

TOTAL (exclusive of medical care and related benefits) $648,750.00

is hereby amended [*51] to cap the total amount of damages, exclusive of medical care and related benefits, to $500,000.00 as mandated by La. R.S. 13:5106(B)(1). We reverse and vacate the trial court’s award for loss of consortium to Karen Fecke. The remainder of the judgment is affirmed,

REVERSED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.

G-YQ06K3L262

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Article misunderstands and misses the point in tracking accidents and incidents

Posted: August 19, 2015 | Author: Recreation Law | Filed under: Climbing Wall | Tags: Accident Reports, CBJ, Climbing Business Journal, Climbing Wall, Climbing Wall Association, Incident Reports | 2 Comments

Climbing Business Journal article looked at the legal issues of climbing gyms tracking accidents. What you need to know is the legal nightmare comes when you track incidents/accidents and do nothing.

The article is titled: Should Gyms Be Reporting Accidents? It attempts to look at the issue of tracking incidents and accidents at a climbing facility. However several important points are ignored or missed in the article. The article looks at legal issues the way a lot of attorneys do. Do it this way or that way. You need to solve problems, you need to understand the problem (put on a harness and climb a wall or belay someone), and you need to quit writing crap down.

Nothing in the article is wrong, nothing in the article solves the problem.

The article looks at the issues of tracking and not tracking however it ignored the real legal costs and any solutions.

Any time you “track” or maintain a list of incidents or accidents that information can be used against you. The article covers this issue and looks at the risks but does not explain the risks. The hardest thing for a plaintiff’s attorney to prove is what the incident that injured his or her client foreseeable? That is proved by an expert witness or if the defendant has a list of similar accidents by the defendant themselves.

Foreseeable means did or should have the defendant known that type of incident or accident could occur. A stack of incident forms that show similar incidents proves it. Not solving the problem indicated by the form shows you are an uncaring money hungry business.

Keeping a list of your prior accidents or incidents can assist the plaintiff in proving you were negligent.

The second issue is one you “track” or keep a record, you can’t get rid of the record. Once made it around forever. Consequently you may have to hand over years of records showing how you have allowed screw ups or even caused them.

That list can also then be fertile ground for the plaintiff’s bar to prove other claims against other gyms or to find new plaintiffs. Unless you can get the court to allow you to scrub the contact information of your guest that was part of the accident, you are giving the plaintiff’s bar the name of another possible client.

The reason for collecting the information is to prevent further similar accidents. Most organizations have stacks of reports and very little to show for it. Consequently you have given the plaintiff’s bar even more legal ammunition to prove you are an uncaring defendant. You have one or dozens of incident reports which you did nothing about and you look even worse.

The plaintiff’s may use the fact against you that you do not collect the information; they can try but it probably less damaging that a stack of incidents. A better result is below.

Once you develop an incident or accident collection system, you develop the idea that unless you have a stack of paper, you don’t have a problem. You develop the attitude that until the paperwork is done nothing to worry about. That can’t be farther from the truth.

You want to keep your guests safe, open your eyes and ears and pay attention. The experience and training you receive should be used to prevent injuries and incidents, not create a great form.

As the owner or manager of a gym, a raft company, a summer camp you really need a form to solve a problem. Get out of the office and to where the problem occurred, open your eyes, talk to you staff and make changes right then!

Do you collect and set yourself up for losing litigation or do you not collect and continue to allow people to get hurt (which is how several people will review this article.) You do neither.

If you have a problem, deal with it immediately. Collect the information you insurance company needs. Collect witness statements. You don’t really need to do anything more. What you need to do is solve the problem.

Don’t tell me that the only way to solve a problem is to fil out a piece of paper.

What solves problems is your and your staff getting together immediately after the incident or accident and determining what happened and what you can do to prevent it Solve the problem don’t write about it.

Why don’t you track incidents and accidents? Because we solve them rather than tack them!

SOLVE THE PROBLEM, DON’T WRITE ABOUT IT.

It is the writer’s job to write about problems, don’t hire one and don’t try and become one.

You don’t need a collection of reports to find problems. You need to open your eyes and ears and find problems and solve them. You wait for a report to be completed and you are sitting on a keg of dynamite.

1. Don’t’ wait to read a report to recognize you may have a problem. Get in front of problems. Listen to guests, staff and react.

2. If you have a problem solve it, correct it, fix it. It requires action, not paper to see issues and solve problems.

3. Don’t create a system create a solution.

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Lecuna v. Carabiners Fairfield, LLC, 2014 Conn. Super. LEXIS 2610

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By Recreation Law Rec-law@recreation-law.com James H. Moss

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Poorly written release failing to follow prior state Supreme Court decisions, employee statement, no padding and spinning hold send climbing wall gym back to trial in Connecticut.

Posted: February 23, 2015 | Author: Recreation Law | Filed under: Climbing Wall, Connecticut, Release (pre-injury contract not to sue) | Tags: Bouldering, Climbing Wall, Connecticut, Hold, Padding, Release | Leave a comment

Release failed the CT Supreme Court test for releases, and the appellate court slammed the climbing wall.

State: Connecticut, Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Stamford

Plaintiff: Isadora Machado Lecuna

Defendant: Carabiners Fairfield, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release

Year: 2014

Holding: for the plaintiff

The plaintiff sued the climbing gym when she fell from a climbing wall injuring her knee and leg. The plaintiff was bouldering when a hold spun causing her to fall. She fell suffering her injuries. She claimed that there was no one there to spot her, and the landing was not padded.

The defendants filed a motion for summary judgment based on the release the plaintiff had signed when she joined the gym. The trial court granted the dismissal based on the motion, and the plaintiff appealed.

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

The court starts off fairly quickly stating the motion for summary judgment failed for four reasons. The first was the court did not see the spinning hold as an inherent risk of the sport of climbing. The plaintiff also argued that since the area has just been opened that day to the public, the hold should have been checked before opening, which the judge also bought.

The court found “…that there is clearly an unresolved question of fact whether the risk of loose or spinning holds in the new bouldering area were, or could have been, minimized.”

The second issue was the employee who was supposed to spot the plaintiff had walked away. This was proved to the court by the statement by the employee apologizing upon his return: “…staff member apologized to the plaintiff and admitted he should not have left.”

The third issue was the bouldering cave there the accident occurred only had carpet over concrete instead of padding. The standard for this gym was padding, because the gym had padding every place else. If you are going to change or alter the safety equipment in your operation, you need to notice the people in the release and place notices where they can be seen.

The final decision was the release being used by the plaintiff did not meet the requirements for a release in Connecticut. The Supreme Court of Connecticut decision Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) set forth six factors for a release to be valid in Connecticut.

This court did not list the factors that the release under question failed; it just stated this decision missed three of the six.

Fourth, the court does not agree that existing Connecticut Supreme Court authority supports the enforceability of the waiver/release agreement signed by the plaintiff. The Hanks decision set out six factors to consider when determining whether the waiver/release here violated public policy. At least three of these factors could, after a full development of the record, be found to weigh against enforcement of the agreement plaintiff signed.

Based on these four factors the court quickly sent the case back for trial.

So Now What?

This decision was short and sweet and really only looked at the evidence of the plaintiff. Either the defendant release was so terrible the court could not deal with it or the actions of the defendant were such the court was not going to allow the defendant to win.

There was not a single argument supporting any position of the defendant in the decision. That is odd.

When writing a release you list the major risks, the minor risks and the risks that occur all the time. A spinning hold is something that occurs with enough frequency at a climbing gym that it should be listed in your release. That in turn might have wiped out the first argument the court objected to.

Anything you say in the heat of the moment is admitable as evidence under the excited utterance exception to the hearsay evidentiary rule. That means it is easy to get these statements into the record. Make sure your staff is trained in how to respond physically and orally to problems.

No matter what if there is a Supreme Court decision in your state that lists the requirements for a release to be valid you better well make sure your release meets those requirements.

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Benavidez v. The University of Texas — Pan American, 2014 Tex. App. LEXIS 11940

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By Recreation Law Rec-law@recreation-law.com James H. Moss

Lecuna v. Carabiners Fairfield, LLC, 2014 Conn. Super. LEXIS 2610

Posted: February 9, 2015 | Author: Recreation Law | Filed under: Climbing Wall, Connecticut, Legal Case, Release (pre-injury contract not to sue) | Tags: Bouldering, Climbing Wall, Connecticut, Hold, Release | Leave a comment

Lecuna v. Carabiners Fairfield, LLC, 2014 Conn. Super. LEXIS 2610

Isadora Machado Lecuna v. Carabiners Fairfield, LLC

FSTCV136017951S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF STAMFORD-NORWALK AT STAMFORD

2014 Conn. Super. LEXIS 2610

October 23, 2014, Decided

October 23, 2014, Filed

NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

CORE TERMS: summary judgment, bouldering, climbing, loose, issue of material facts, minimized, genuine, matter of law, genuine issue, material fact, party opposing, question of fact, inherent risk, unresolved, staff member, falling, matting

JUDGES: [*1] Taggart D. Adams, Judge Trial Referee.

OPINION BY: Taggart D. Adams

OPINION

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (115.00)

I. Background

The plaintiff Isadora Lecuna has sued Carabiners, the owner and operator of a recreational climbing facility, alleging that she suffered injuries at the facility including a fractured foot and several tears of ligaments, tendons and muscles in her left knee and leg when she fell from a climbing wall that was allegedly unsafe due to the negligence of the defendant and its agents. At the time of injury, Lecuna was “bouldering” in one of the defendant’s bouldering caves. The defendant describes bouldering “as a type of climbing in which the individual climber is not affixed to any ropes or belaying harnesses.” Def. Memo., 1 Dkt. Entry 115.00. Among the allegations of negligence were that one of the climbing hold attachments on the wall turned or came loose, that an attendant was not present to break her fall, and that the surface she fell to was not cushioned.

Several months before the plaintiff’s fall she had signed an agreement with Carabiners waiving claims of liability and acknowledging the risks of participation at the Carabiners facility included: “Falling [*2] off the wall; loose and or damaged artificial holds . . . falling to the ground.” Carabiners has moved for summary judgment dismissing the complaint largely, as set forth in its memorandum, on the basis of this waiver and release. Lecuna has filed a memorandum of law, an affidavit and excerpts from her deposition transcript in opposition. Carabiners filed a reply memorandum and an affidavit of a purported expert.

II. Scope of Review

Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.” Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1985). ‘The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.” Appleton v. Board of Education, supra, 254 Conn. 209. “A material fact has been defined adequately and simply as [*3] a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The trial court, in the context of a summary judgment motion may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.” Maffucci v. Royal Park, Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998). “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” Appleton v. Board of Education, supra, 254 Conn. 209.

III. Discussion

The motion for summary judgment is denied for four reasons. First, there is a question of fact that the loose climbing handle on the bouldering wall that caused the plaintiff’s fall is an inherent risk of the plaintiff’s activity that should be legitimately assumed. The court is aware of the assertions in Carabiner’s papers that it is common in climbing [*4] gyms for holds to work loose and create a “spinner” or shifting hold, a condition that cannot be minimized by the exercise of due care. See Carabiner Memorandum, 2-3, 13 (Dkt. Entry 115.00); Robert Richards affidavit, ¶6 (Dkt. Entry 124.00). These conclusory statements are unsupported by any factual evidence. Moreover, the plaintiff has testified that the bouldering wall she fell from had just been opened to the public that day. Lecuna Memorandum, Exhibit C, 86, Dkt. Entry 123.00. Even if it were established that holds may turn or spin over time, it seems elementary that they should have been tested prior to opening day. In Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) the Connecticut Supreme Court described inherent risks as being beyond the control of the recreation area operator and not able to be minimized by the operator’s exercise of reasonable care. Id., 336 n.12. The court finds that there is clearly an unresolved question of fact whether the risk of loose or spinning holds in the new bouldering area were, or could have been, minimized.

Second, there is evidence in the record that the Carabiner’s staff member assigned to “spotting” the plaintiff while she was on the wall had walked away from that post when the fall occurred and the [*5] staff member apologized to the plaintiff and admitted he should not have left. Pl. Memo., Exhibit C 110-11, 123. Third, there was evidence that the new bouldering area did not have the “thick” “gymnastics kind” of floor matting that existed in the older areas but only offered “carpeted concrete.” Id., 53. This circumstance also raises an unresolved fact question of whether the risk of bouldering could, or should, have been minimized by the additional fall protection afforded by more substantial matting.

Fourth, the court does not agree that existing Connecticut Supreme Court authority supports the enforceability of the waiver/release agreement signed by the plaintiff. The Hanks decision set out six factors to consider when determining whether the waiver/release here violated public policy. See Hanks, supra, 276 Conn. 328. At least three of these factors could, after a full development of the record, be found to weigh against enforcement of the agreement plaintiff signed.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit

Posted: December 4, 2014 | Author: Recreation Law | Filed under: Climbing Wall, Contract, Release (pre-injury contract not to sue), Texas | Tags: Appeal, Attorney's fee, Climbing, Climbing Wall, Figure 8 Knot, Harness, Rec Center, Recreational Use Act, Tort Claims Act, University, University of Texas, University Rec Center | Leave a comment

Court looks at whether a release will defeat a claim for gross negligence but does not decide the case on that issue. Case is confusing, because court discussed defenses that were not applicable. Plaintiff waived all but the gross negligence claims.

State: Texas, Court of Appeals

Plaintiff: Rolando Benavidez

Defendant: The University of Texas — Pan American

Plaintiff Claims: failure to properly use the climbing equipment and properly supervise [Benavidez] during the climb, Under the theory of respondeat superior, Benavidez claimed that his injuries were caused by the negligence and gross negligence of UTPA (University of Texas– Pan American), negligent use of tangible personal property in that UTPA breached its “legal duty to [Benavidez] to provide supervision of [Benavidez], use safe equipment with [Benavidez], and to properly secure [Benavidez’s] harness prior to climbing.” negligent use or condition of real property in that UTPA breached its duty to provide a safe climbing wall for Benavidez and failed to use ordinary care to protect Benavidez from an unreasonably dangerous condition. UTPA had subjective awareness of a high degree of risk and acted with “conscious indifference to the rights, safety, or welfare of [Benavidez] or others similarly situated.

Defendant Defenses: Release, Recreational Use Statute and the Texas Tort Claims Act

Holding: For the defendant

Year: 2014

The plaintiff was climbing at the university’s climbing wall. He signed a release to climb. On the back of the release was a set of rules about climbing that the plaintiff also had to sign. i.e. Two legal documents on one sheet of paper.

The plaintiff argued the rules on the backside of the agreement were part of the contract. Because the climbing wall had not followed the rules, the release was no longer valid and the defendant had acted negligently and gross negligently.

While climbing the plaintiff reached the top of the wall and was told to lean back while he was lowered. The plaintiff fell 33’ suffering injuries. Based on witness statements of other employees of the wall, it appeared the figure 8 (knot) used to tie the plaintiff’s harness to the rope had been tied incorrectly.

The trial court dismissed the case, awarded costs against the plaintiff based on the Texas Tort Claims Act, and the plaintiff appealed.

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

The court first looked at the Texas Tort Claim Act and its application to the case.

As a governmental unit, UTPA is immune from both suit and liability unless the Tort Claims Act has waived that immunity. Section 101.021 of the Tort Claims Act has been interpreted as waiving sovereign immunity in three general areas: “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.”

The court then brought in the Texas Recreational Use Statute. Under the Texas Recreational Use Statute, a state landowner (governmental entity) can only be liable for gross negligence.

When injury or death results on state-owned, recreational land, the recreational use statute limits the state’s duty even further to that owed by a landowner to a trespasser, which means that the State only waives immunity for conduct that rises to the level of gross negligence.

The university is state land, and the climbing wall is on the land. It was used for recreation and probably as a student for free, although this was not discussed in the case. Consequently, the Texas Recreational Use Act protected the university from negligence claims.

With the ordinary negligence claims gone, the court turned to the gross negligence claims and looked at the release. Under Texas law to be valid, a release must:

(1) provide fair notice by being conspicuous, and (2) comply with the express negligence doctrine. To be conspicuous, a release must be written, displayed, or presented such that a reasonable person against whom it is to operate ought to have noticed it. A release satisfies the express negligence doctrine if it expresses the intent of the parties to exculpate a party for its own negligence.

The burden is on the defendant, the person relying on the defense of release, to prove the validity of the release and the requirements set forth by the court.

The court then looked at whether the release then barred the claim for gross negligence. The court reviewed several Texas cases; however, the court did not decide whether a release in this situation barred a claim for gross negligence. The court found the gross negligence claim was not raised on the appeal.

For a legal argument to be argued in the court, there are two basic components that must be met before any argument can be made. The argument must be made in the trial court and in many cases an objection to the court’s ruling made. Second the issue must be argued in the statements (pleadings) at the appellate court also. Here, although argued in the trial court the issue was not argued or probably raised at the appellate court.

The court then went back to the release to see if the release was still valid. The plaintiff claimed the defendant violated the release because it failed to follow the rules on the reverse side of the release. Because the rules were on the document called the release the plaintiff argued they were part of the release. Those rules set forth how the climbers and allegedly the gym was supposed to act. One of the rules required all knots to be checked by specific persons at the gym, which was not done in this case, and allegedly not done at all until after the plaintiff’s injury.

Arguing the rules and release were one document, the plaintiff stated the failure to follow the rules was a material breach of the contract. A material breach or avoidance of the contract voids it.

Under Texas law, a release is a contract and is subject to avoidance just like any other contract. When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent. This court is bound to read all parts of a contract together to ascertain the agreement of the parties. The contract must be considered as a whole. Moreover, each part of the contract should be given full effect.

A prior material breach one that occurs before the execution of the contract discharges the parties from the contractual obligations. “Under the theory of prior material breach, a party is discharged from its contractual obligations based on the other party’s material breach of the contract.”

Execution of the contract means the contract by its terms has not been completed. Meaning there is part so the contract that have not been complied with by one or more parties. Here the failure of the gym to check the plaintiff’s knot was prior to the climbing of the plaintiff. “Under the theory of prior material breach, a party is discharged from its contractual obligations based on the other party’s material breach of the contract.”

Under Texas law for a court to determine if a prior material breach to occur the court must determine the following:

(1) the extent to which the injured party will be deprived of the benefit which he reasonably expected;

(2) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

(3) the extent to which the party failing to perform or to offer performance will suffer forfeiture;

(4) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; and

(5) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

This court also examined whether or not checking the knot was a condition precedent. A condition precedent requires one thing to occur before the rest of the contract must be done.

Alternatively, a condition precedent is an event that must occur or act that must be per-formed before rights can accrue to enforce an obligation. Ordinarily, terms such as “if,” “provided that,” “on condition that,” or similar conditional language indicate the intent to create a condition precedent. Conditions precedent, which can cause forfeiture of a contractual right, are not favored under the law, and we will not construe a contract provision as a condition precedent unless we are compelled to do so by language that may be construed in no other way.

However, the court found that the language of the safety rules did not relate to the language of the release. The safety rules, overall, were simply rules the plaintiff was to follow and was not part of the contract. “…the safety policy’s side of the document, by its clear language, does not indicate that UTPA promised to comply with the policies or that compliance with the policies by UTPA…”

However, reading the safety policies document as a whole, we find that the language of the agreement placed the sole responsibility on the climber to ensure that the procedures in the safety polices were followed.

Because we find that, by its clear language, the waiver and release form did not express the intent of either party to condition the release from liability on any performance by UTPA and did not include a promise by UTPA to follow the safety policies as consideration for the contract, we conclude that UTPA did not breach or fail to satisfy a condition of the release contract.

The remaining issues before the court were dismissed because without a negligence claim, they were also decided. The appellate court affirmed the trial court’s dismissal of the plaintiff’s claims and the award of costs under the Texas rules of civil procedure.

Costs are not attorney fees. Costs are the cost of going to trial, the filing fee, witness fees, possibly deposition costs, etc. Most states allow the winning side to recover costs of a trial.

So Now What?

This was close. It was obvious by the amount of time the court spend discussing the issue of a material breach that the language on the back of the release was an issue for the court. Always remember a release is a contract. You don’t buy a house with a laundry list on the back. You don’t rent an apartment with state driving laws on the back. Releases are contracts, and you need to make sure there is no issue that the document you are having your guests sign. A Release must be a contract and nothing else.

The university, because it was a state college was subject to broader and more protective statutes that provided defenses, than a private commercial gym or a private college. A state’s tort claims act provides a broad range for protection.

Whether or not a state’s recreational use statute provides protection for governmental agencies is different in each state. If you are in this position, you should check with counsel to see what protection any state statutes may provide.

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Benavidez v. The University of Texas — Pan American, 2014 Tex. App. LEXIS 11940

Posted: November 14, 2014 | Author: Recreation Law | Filed under: Climbing Wall, Release (pre-injury contract not to sue), Texas | Tags: Climbing, Climbing Wall, Rec Center, University, University of Texas, University Rec Center | Leave a comment

To Read an Analysis of this decision see: University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit

Benavidez v. The University of Texas — Pan American, 2014 Tex. App. LEXIS 11940

Rolando Benavidez, Appellant, v. The University of Texas — Pan American, Appellee.

NUMBER 13-13-00006-CV

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI – EDINBURG

2014 Tex. App. LEXIS 11940

October 30, 2014, Delivered

October 30, 2014, Filed

PRIOR HISTORY: [*1] On appeal from the 92nd District Court of Hidalgo County, Texas.

COUNSEL: FOR APPELLANT: Hon. Russell Jackson, Law Office of Thomas J. Henry, Corpus Christi, TX.

FOR APPELLEE: Hon. Elsa Giron Nava, Tort Litigation Division, Austin, TX.

JUDGES: Before Chief Justice Valdez and Justices Rodriguez and Garza. Memorandum Opinion by Chief Justice Valdez.

OPINION BY: ROGELIO VALDEZ

OPINION

MEMORANDUM OPINION

Memorandum Opinion by Chief Justice Valdez

By three issues, which we construe as four, appellant Rolando Benavidez, challenges the trial court’s order granting appellee The University of Texas-Pan American’s (UTPA) plea to the jurisdiction. Benavidez argues that: (1) the release form he signed did not preclude his lawsuit because UTPA did not abide by the safety policies listed on the back of the form; (2) the Texas Recreational Use Statute did not preclude the lawsuit because Benavidez’s pleadings at least raised a fact issue regarding gross negligence; (3) the trial court erred by granting UTPA’s objections to his evidence; and (4) the trial court erred by ordering Benavidez to pay UTPA’s court costs. We affirm.

I. Background

This suit arises out of injuries sustained by Benavidez after falling from a climbing wall on the campus of UTPA. Prior to climbing the wall, the belayer, an employee of UTPA, tied a rope to a harness attached to Benavidez. While Benavidez climbed the wall, the belayer [*2] held on to the opposite end of the rope. After reaching the top of the wall, the belayer instructed Benavidez to “let go.” Subsequently, Benavidez fell thirty-three feet from the top of the wall, breaking his ankle in multiple places and suffering a lumbar spine compression fracture. Another employee of UTPA witnessed Benavidez fall and immediately came to his aid. She provided deposition testimony in which she explained that the figure eight-knot which is used to tie the rope to the harness was “either not tied properly, or not tied at all.”

Before he climbed the wall, Benavidez signed a waiver/release from liability. On the front of the page, the form stated:

By signing this agreement you give up your right to bring a court action to recover compensation or obtain any other remedy for any injury to yourself or your property or for your death however caused arising out of your use of the University of Texas Pan-American Climbing Wall now or any time in the future.

Also on the front of the page, under the heading, “Release/Indemnification and Covenant Not to Sue”, the form stated:

In consideration of my use of the Climbing Wall, I the undersigned user, . . . HEREBY DO RELEASE University [*3] of Texas Pan American . . . from any cause of action, claims, or demands of any nature whatsoever, including but not limited to a claim of negligence . . . against the University on account for personal injury, property damage, death or accident of any kind arising out of or in any way related to my use of the Climbing Wall, whether that use is SUPERVISED OR UNSUPERVISED, howsoever the injury or damages is caused, including, but not limited to the negligence of the University.

Benavidez initialed under this clause in the blank provided. Benavidez then initialed in the spaces provided under paragraphs stating that he: (1) would indemnify and hold harmless UTPA from all causes of action; (2) had full knowledge of the risks associated with climbing the wall; (3) was in good health and had no physical limitations precluding his safe use of the climbing wall; and (4) was of lawful age and was competent to enter into a legally binding agreement. Appellee signed and dated the bottom of the front page of the document in the space provided.

On the backside of the Waiver and Release from Liability, under the title “SAFETY POLICIES AND RULES”, it stated, inter alia:

I Rolando Benavidez [name written [*4] by Benavidez in space provided] accept full responsibility for my own safety while in the UTPA climbing Wall area. I agree to abide by, and help enforce the following safety policies and rules:

o To enter the climbing area, you must have signed a waiver of liability/assumption of the risk and turn into the climbing wall Supervisor.

o Climbers must check in/out at the Climbing Wall desk during operation hours.

o Before each climbing the entrance instructor and belayer must check each climber to ensure that the knot and harness buckle are correctly fastened and that the belay system and belayers harness buckles are safe.

o The belayer must keep their brake hand on the rope and eyes on the climber at all times.

o Belayers must belay while standing up: NO belaying from benches, seated, or in a reclined position.

. . . .

o No food or open drink containers allowed in the climbing wall area.

o No loose chalk.

o No obscene language.

. . . .

o No Jewelry

. . . .

o Any infraction of these rules will result in loss of climbing privileges. Repeated infractions will result in loss of future privileges for inappropriate or unsafe behavior.

These rules were included in a list of twenty-four safety policies and [*5] rules, all listed as bullet points. At the bottom of the document in bold letters, the document stated, “I acknowledge that I have read and agree to abide by the Wellness and recreational Sports Complex safety polices and Rules.” Underneath this statement, Benavidez printed and signed his name.

At the hearing on the plea to the jurisdiction, deposition testimony was admitted in which the belayer explained that although he believed at the time that he tied the knot securing the rope to the harness properly, he must not have appropriately tied a double figure-eight knot as he was instructed to do. The belayer also testified that an entrance examiner did not check the knot before Benavidez began his climb and that UTPA never followed that policy until after Benavidez’s accident occurred.

Benavidez filed suit under section 101.021 of the Texas Tort Claims Act. In his pleadings, Benavidez alleged that his injuries resulted from the belayer’s “failure to properly use the climbing equipment and properly supervise [Benavidez] during the climb.” Under the theory of respondeat superior, Benavidez claimed that his injuries were caused by the negligence and gross negligence of UTPA. Benavidez alleged a cause of [*6] action for negligent use of tangible personal property in that UTPA breached its “legal duty to [Benavidez] to provide supervision of [Benavidez], use safe equipment with [Benavidez], and to properly secure [Benavidez’s] harness prior to climbing.” Benavidez also alleged a cause of action for negligent use or condition of real property in that UTPA breached its duty to provide a safe climbing wall for Benavidez and failed to use ordinary care to protect Benavidez from an unreasonably dangerous condition. In addition, Benavidez alleged that UTPA had subjective awareness of a high degree of risk and acted with “conscious indifference to the rights, safety, or welfare of [Benavidez] or others similarly situated.”

UTPA filed a plea to the jurisdiction alleging that it did not waive immunity under the Texas Tort Claims Act because (1) Benavidez signed a waiver of liability prior to climbing the wall releasing UTPA from liability “for all damages complained of” by Benavidez, and (2) pursuant to the Texas Recreational Use Statute, which further limits a State entity’s waiver of immunity to circumstances in which the State entity fails to exercise a duty of care owed by a landowner to trespasser, [*7] Benavidez was required to demonstrate gross negligence in his pleadings and failed to do so. Benavidez responded by conceding that the Texas Recreational Use Statute applied to his claim and required him to prove gross negligence. Benavidez however contended that, (1) by his pleadings, he raised a fact issue on gross negligence; and (2) he could avoid enforcement of the release from liability as to all of his claims because UTPA committed a prior material breach or failed to satisfy a precondition of the contract by failing to comply with the safety polices.

After holding a hearing, the trial court entered an order granting UTPA’s plea to the jurisdiction and ordered Benavidez to pay UTPA’s court costs. This appeal followed.

II. Standard of Review

[HN1] We review a plea to the jurisdiction under a de novo standard of review. Westbrook v. Penley, 231 S.W. 3d 389, 394 (Tex. 2007). A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). When reviewing whether a plea was properly granted, we first look to the pleadings to determine if jurisdiction is proper, construing them liberally in favor of the plaintiff and looking to the pleader’s intent. Id. at 226. “If a plea to the jurisdiction challenges the existence of jurisdictional facts, [*8] we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised,” even where those facts may implicate the merits of the cause of action. Id. at 227. If that evidence creates a fact issue as to the jurisdictional issue, then it is for the fact-finder to decide. Id. at 227-28. “However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Id. at 228. In considering this evidence, we “take as true all evidence favorable to the nonmovant” and “indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” City of Waco v. Kirwan, 298 S.W.3d 618, 621-22 (Tex. 2009).

III. Texas Torts Claim Act

[HN2] As a governmental unit, UTPA is immune from both suit and liability unless the Tort Claims Act has waived that immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(A) (West, Westlaw through 2013 3d C.S.). Section 101.021 of the Tort Claims Act has been interpreted as waiving sovereign immunity in three general areas: “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). Pursuant to section 101.021, a governmental unit in the state is liable for:

[HN3] (1) property damage, personal [*9] injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West, Westlaw through 2013 3d C.S.).

In addition, the parties do not dispute that the Texas Recreational Use Statute applies to this case. [HN4] When injury or death results on state-owned, recreational land, the recreational use statute limits the state’s duty even further to that owed by a landowner to a trespasser, which means that the State only waives immunity for conduct that rises to the level of gross negligence. Id. § 75.002 (West, Westlaw through 2013 3d C.S.); see also id. [HN5] §§ 75.003(g) (“To the extent that this chapter limits the liability of a governmental unit under circumstances in which the governmental [*10] unit would be liable under [the Tort Claims Act], this chapter controls.”), 101.058 (same); State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006).

IV. Release/Waiver of Liability

a. Applicable Law

[HN6] A release operates to extinguish a claim or cause of action and is an absolute bar to the released matter. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). The Texas Supreme Court has held that in order to be valid, a release must (1) provide fair notice by being conspicuous, and (2) comply with the express negligence doctrine. Id. To be conspicuous, a release must be written, displayed, or presented such that a reasonable person against whom it is to operate ought to have noticed it. See id. 510 (adopting the definition from Tex. Bus. & Com. Code Ann. § 1.201(b)(1) (West, Westlaw through 2013 3d C.S.)). A release satisfies the express negligence doctrine if it expresses the intent of the parties to exculpate a party for its own negligence. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989).

The party seeking the protections of a release asserts an affirmative defense. Dresser, 853 S.W.2d at 509. It is therefore the defendant’s burden to establish all elements of the affirmative defense. Id. UTPA argues that it did not waive immunity under the Texas Tort Claims Act because it would not be liable as a private party as it established an affirmative defense as a matter of law. See [*11] Tex. Civ. Prac. & Rem. Code Ann. § 101.021. Accordingly, we apply a traditional summary judgment evidentiary burden to the UTPA’s contention as we would to a private party’s reliance on a release from liability prior to trial. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Galveston Indep. Sch. Dist. v. Clear Lake Rehab. Hosp., L.L.C., 324 S.W.3d 802, 807 (Tex. App.–Houston [14th Dist.] 2010, no pet.) (reasoning that [HN7] a governmental entity’s challenge to jurisdictional facts implicating the merits of the plaintiff’s lawsuit “mirrors traditional summary-judgment practice”). The burden was therefore on UTPA to provide evidence establishing that Benavidez had released it from liability on the claims before the court. Clear Lake Rehab. Hosp., L.L.C., 324 S.W.3d at 811.

b. Discussion

In its plea to the jurisdiction, UTPA argued that it did not waive immunity from Benavidez’s Texas Tort Claims Act suit because Benavidez executed the release contract, which “released [UTPA] of all liability for the damage complained of in [Benavidez’s] cause of action.”¹ Specifically, UTPA asserted that because the release was executed, Benavidez’s “suit is barred in its entirety and [UTPA] moves for dismissal as a matter of law.” Moreover, both in its plea to the jurisdiction and on appeal UTPA described the release from liability as the “real issue before the court,” and UTPA framed its Texas Recreational Use Statute defense as an alternative [*12] argument, asking the trial court to address the issue if it found that the release was not enforceable. In his appellate brief, Benavidez concedes that UTPA’s plea to the jurisdiction was based on two alternative defenses: “(1) [Benavidez] waived all personal injury claims in a waiver/release from liability form . . . ; and (2) [Benavidez’s] claims are barred by the recreational use statute.”

1 This Court has never held that a state entity’s affirmative defense is a proper basis for granting a plea to the jurisdiction. In its plea to the jurisdiction, UTPA relied on Texas Engineering Extension Service v. Gifford, in which the Waco Court of appeals reversed a denial of a plea to the jurisdiction because it found that the plaintiff had executed a release from liability. No. 10-11-00242-CV, 2012 Tex. App. LEXIS 2030, 2012 WL 851742, at *4 (Tex. App.–Waco Mar. 14, 2012, no pet.) (mem. op.). The Gifford court reasoned that under the Texas Tort Claims Act:

A governmental unit is liable for personal injury if the government would be liable, were it a private person, according to Texas law. [The plaintiff’s] execution of the release and indemnity agreement extinguished any liability owed by [the defendant]. Because a private person would not be liable for [the [*13] plaintiff’s] personal injuries, [the defendant] has not waived its sovereign immunity.

Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West, Westlaw through 2013 3d C.S.)). In this appeal, we need not determine whether we agree with this analysis. Benavidez does not argue that UTPA’s affirmative defense of release is an improper basis for an order granting a plea to the jurisdiction; therefore, we cannot reverse the trial court’s judgment on this basis and we decline to consider this issue. Tex. R. App. P. 47.1. Accordingly, for purposes of this appeal only, we assume without deciding that the affirmative defense of release, if established as a matter of law, may be a valid basis upon which to grant a plea to the jurisdiction.

Notably, while Benavidez did not specifically plead separable causes of action for negligence and gross negligence, he did claim that the injuries alleged were caused by the negligence and gross negligence of UTPA and that UTPA exhibited “conscious indifference to the rights, safety, or welfare of [Benavidez] or others similarly situated.” Moreover, in his motion for summary judgment, response to the plea to the jurisdiction, and appellate brief and at the hearing on [*14] the plea and at oral arguments on appeal, Benavidez conceded that the Texas Recreational Use Statue applied to his lawsuit, which required him to show gross negligence. He thereby effectively abandoned any separate claim of ordinary negligence, to the extent that it was originally pleaded, and proceeded only with a suit for gross negligence.

By granting the plea to the jurisdiction, which alleged that Benavidez released all claims against UTPA, the trial court therefore held that Benavidez released UTPA from liability for gross negligence. There is some disagreement among the courts of appeals as to whether a party may validly release claims of gross negligence. Some courts have held that negligence and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.–Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.–San Antonio 1994, writ denied). In contrast, the Dallas Court of Appeals recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915, 926 (Tex. App.–Dallas 2013, no pet.). The Dallas Court reasoned that the public policy requiring an express release from negligence [*15] also requires an express release from gross negligence. See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.–Beaumont 1986, no writ).

This Court has never addressed the issue of whether a release from liability for gross negligence is separable from a release of liability from negligence, or whether a release of liability for gross negligence violates public policy. See Blankenship v. Spectra Energy Corp., 13-12-00546-CV, 2013 Tex. App. LEXIS 10169, 2013 WL 4334306, at *5 n.6 (Tex. App.–Corpus Christi Aug. 15, 2013, no pet.) (declining to decide whether a party may release claims of gross negligence because the release was unenforceable for failure to satisfy fair notice requirements and because summary judgment evidence conclusively negated the gross negligence claim). Here, we cannot decide this issue because it has not been raised. Tex. R. App. P. 47.1. On appeal, Benavidez effectively concedes that the release form purports to release UTPA from liability for all personal injury claims, but relies solely on contract defenses as an attempt to avoid enforcement of the release. He does not challenge enforcement of the release on the ground that it was inapplicable to his gross negligence claims; similarly [*16] he does not argue that the release of his gross negligence claims was invalid because it did not comply with fair notice requirements or because it violated public policy. See id. Moreover, Benavidez did not present any of these arguments to the trial court. See. id. R. 33.1.

Accordingly, we now address Benavidez’s first issue, in which he contends that he can avoid enforcement of the release contract because the belayer failed to properly tie the knot, and because UTPA failed to follow its own policy that required an entrance instructor to check the knot after it was tied. Benavidez argues that these actions constituted either a prior material breach of the release contract or a failure to satisfy a precondition of the contract. We disagree.

[HN8] Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). This court is bound to read all parts of a contract together to ascertain the agreement of the parties. See Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 180 (Tex.1965). The contract must be considered as a whole. Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex.1987); Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Moreover, each part of the contract should be given full effect. [*17] See Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex.1987).

[HN9] Under the theory of prior material breach, a party is discharged from its contractual obligations based on the other party’s material breach of the contract. See Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 198 (Tex. 2004) (determining that a party was released from further contractual obligations when the other party materially breached). In order for a material breach of contract to occur, the party seeking avoidance must be deprived of part of its consideration or an expected benefit of the contract.² See id. at 199.

2 [HN10] Texas courts have adopted the factors set forth in the Restatement (Second) of Contracts for determining the materiality of a breach:

(1) the extent to which the injured party will be deprived of the benefit which he reasonably expected;

(2) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

(3) the extent to which the party failing to perform or to offer performance will suffer forfeiture;

(4) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; and

(5) the extent to which the behavior of the party failing to perform or to offer to perform comports [*18] with standards of good faith and fair dealing.

Mustang Pipeline Co., v. Driver Pipeline Co., 134 S.W.3d 195, 199 (Tex. 2004); Restatement (Second) of Contracts § 241(a) (1981).

Alternatively, [HN11] a condition precedent is an event that must occur or act that must be performed before rights can accrue to enforce an obligation. See Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992). Ordinarily, terms such as “if,” “provided that,” “on condition that,” or similar conditional language indicate the intent to create a condition precedent. Criswell v. European Crossroads Shopping Ctr., 792 S.W.2d 945, 948 (Tex.1990). Conditions precedent, which can cause forfeiture of a contractual right, are not favored under the law, and we will not construe a contract provision as a condition precedent unless we are compelled to do so by language that may be construed in no other way. See Reilly, 727 S.W.2d at 530.

As an initial matter, we cannot conclude that under the plain language of the contract, the safety policies listed on the back of the waiver are part of Benavidez’s agreement to release UTPA from liability on the front of the document; therefore, UTPA could not breach or fail to satisfy a condition of the release contract by failing to follow the safety policies. See Mustang Pipeline Co., 134 S.W.3d at 198; Criswell, 792 S.W.2d at 948. Here, the separate sides of the document constitute separate agreements that were each signed separately by Benavidez; moreover, they contain separate promises to perform [*19] distinct duties. In the agreement on the front of the page, Benavidez agreed to release UTPA from liability for its own negligence resulting from any injury. In the agreement on the back of the page, Benavidez again agreed to accept full responsibility for any accident and agreed to comply with the safety policies listed on the form. In addition, the language of the document reveals that the safety policies referred to the release clause only by requiring the prospective climber to complete the release form before climbing the wall. This in no way indicates that the safety policies are part of the consideration or a condition of the waiver/release from liability.³

3 Benavidez also refers us to deposition testimony from the coordinator of campus activities in which he agreed that both the back and front of the document are part of one agreement. This testimony however does not indicate that the safety policies were consideration for or a precondition of the release from liability. Moreover, the coordinator’s testimony did not indicate that he was giving a legal opinion on whether both sides of the agreement constitute one contract.

In fact, the language of the release clause explicitly states [*20] that the consideration for the release is the climber’s opportunity to climb the wall. Further, the clause stipulates, in capital letters, that the release applies whether climbing is “SUPERVISED OR UNSUPERVISED,” which indicates that UTPA was not promising to undertake any duty or conditioning the release on any action other than providing the climber with access to the climbing wall.

Moreover, even if we were to consider the two sides of the document as one agreement, the safety policies side of the document, by its clear language, does not indicate that UTPA promised to comply with the policies or that compliance with the policies by UTPA was consideration for or a condition precedent of Benavidez’s agreement to release UTPA from liability. See Forbau, 876 S.W.2d at 133. Benavidez argues that the bullet point stating, “Before each climbing the entrance instructor and belayer must check each climber to ensure that the knot and harness buckle are correctly fastened” indicates that UTPA undertook an affirmative contractual duty to follow this policy as part of Benavidez’s agreement to waive liability.⁴ However, reading the safety policies document as a whole, we find that the language of the agreement placed [*21] the sole responsibility on the climber to ensure that the procedures in the safety polices were followed. See Reilly, 727 S.W.2d at 529. At the top of the safety policy side of the document, it specifically states, “I Rolando Benavidez [name written by Benavidez in the space provided] accept full responsibility for my own safety while in the UTPA climbing Wall area. I agree to abide by, and help enforce the following safety policies and rules.” The safety policies are listed as bullet points beneath this agreement. The language Benavidez refers to is listed among multiple bullet points mostly relating to Benavidez’s conduct, such as “no jewelry” and “no obscene language.” As is clear from the plain language of the agreement, these are policies that Benavidez agreed to abide by and help enforce; no language indicates that UTPA agreed to comply with the policies or that the policies were consideration for or a condition precedent of the release from liability.

4 On appeal, Benavidez claims that the word “before”, used as part of the safety polices, indicates that the bullet point was a condition precedent of the contract. Criswell v. European Crossroads Shopping Ctr., 792 S.W.2d 945, 948 (Tex. 1990). However, the term indicates that the safety policies were to be complied with before Benavidez [*22] climbed the wall not before he released UTPA from liability or before the contract could be enforceable. See id.

Further, the final bullet point of the safety policies stated that, “Any infraction of these rules will result in loss of climbing privileges. Repeated infractions will result in loss of future privileges and possibly additionally sanctions . . . .” The fact that the climber was subject to punishment for failure to follow the policies further indicates that the document was intended to require the climber to comply with and ensure compliance with the safety polices, and was not a promise to comply with the policies by UTPA.

Finally, at the bottom of the safety policies, directly before Benavidez’s signature, it explicitly states: “I acknowledge that I have read and agree to abide by the Wellness and recreational Sports Complex safety polices and Rules.” Neither this language nor any other language on either side of the document indicates that Benavidez premised his acceptance of responsibility on or expected the benefit of the performance of any duty on the part of UTPA. See Mustang Pipeline Co., 134 S.W.3d at 198; Criswell, 792 S.W.2d at 948.

Because we find that, by its clear language, the waiver and release form did not express the intent [*23] of either party to condition the release from liability on any performance by UTPA and did not include a promise by UTPA to follow the safety policies as consideration for the contract, we conclude that UTPA did not breach or fail to satisfy a condition of the release contract. See Forbau, 876 S.W.2d at 133. Therefore, Benavidez could not avoid enforcement of the release. See Mustang Pipeline Co., 134 S.W.3d at 198; Criswell, 792 S.W.2d at 948. We overrule Benavidez’s first issue.

V. Remaining Issues

Because we are affirming the order granting the plea to the jurisdiction based on the trial court’s finding that Benavidez released UTPA from liability on all of his claims, we need not address Benavidez’s second issue in which he argues that the Texas Recreational Use Statute does not bar his suit because he pleaded facts sufficient to raise a fact issue on gross negligence. Tex. R. App. P. 47.1. Moreover, we assume without deciding that all of the evidence presented by Benavidez was admissible; therefore, we need not address Benavidez’s third issue in which he argues that the trial court erred by sustaining UTPA’s objections to his evidence. Id.

Finally, Benavidez argues that the trial court erred by awarding UTPA court costs. [HN12] Under Texas Rule of Civil Procedure 131, the “successful party to a suit shall recover [*24] court costs incurred therein, except where otherwise provided.” Tex. R. Civ. P. 131. A successful party, under the rule, has been defined as “one that obtains a judgment vindicating a civil right.” Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 612 (Tex. App.–Houston [14th Dist.] 2006, pet. denied). Benavidez argues that the trial court could not award court costs because to this date, no judgment has been issued by the trial court. However, Benavidez cites no law, and we find none, indicating that the trial court may not award court costs pursuant to Texas Rule of Civil Procedure 131 in an order granting a plea to the jurisdiction. See Tex. R. Civ. P. 131. Accordingly, we overrule Benavidez’s fourth issue.

VI. Conclusion

We affirm the trial court’s order granting UTPA’s plea to the jurisdiction

/s/ Rogelio Valdez

ROGELIO VALDEZ

Chief Justice

Delivered and filed the 30th day of October, 2014.

Alaskan Supreme Court upholds releases for climbing gym and sets forth requirements on how releases will be upheld in AK

Posted: September 1, 2014 | Author: Recreation Law | Filed under: Alaska, Climbing Wall, Release (pre-injury contract not to sue) | Tags: Alaska, Attorney's fee, Climbing Wall, Contract, Lawsuit, Legends, Release, Supreme Court | Leave a comment

Decision points out what not to do in a release which has great information for everyone.

Plaintiff: Claire A. Donahue

Defendant: Ledgends, Inc. d/b/a Alaska Rock Gym

Plaintiff Claims: negligent failure to adequately train and supervise its instructors and violations of the Uniform Trade Practices and Consumer Protection Act (UTPA)

Defendant Defenses: release

Holding: for the defendant

Year: 2014

In three prior cases, the Alaskan Supreme Court had stated that releases were valid under Alaskan law; however, the releases in front of the court for review, failed for specific reasons. In this case, all the requirements to write a release according to the court were present.

The plaintiff in this case had decided that learning to climb was her next goal. The plaintiff’s second class was bouldering. At one point, she was 3-4’ off the ground and told to jump down by a gym instructor. The gym used mats for its landing padding. She jumped breaking her tibia in four places.

The plaintiff then sued the climbing gym for negligence and violation of the Uniform Trade Practices and Protection Act (UTPA). The trial court upheld the release and dismissed the claims of the plaintiff, and the plaintiff appealed.

Summary of the case

This case is full of interesting and useful information. I’ll tackle it by subject matter rather than the order the court goes through it.

UTPA

The UTPA as identified in Alaska can be found in some form in all states. It is a consumer protection statute to provide consumers with greater benefits and damages if they are ripped off by someone or a business. Most are called consumer protection acts. Alaska joined the majority of states and said that consumer protection statutes did not apply to personal injury claims. The court dismissed this claim.

Offer of Judgment

The court also looked at the offer of judgment made by the defendant and resulting attorney fees awarded to the defendants. In Colorado and Alaska and probably most states, if the defendant makes an offer of settlement or offer of judgment, they are stating we will give the plaintiff $XX in this amount, and the case ends. However, if the plaintiff does not win that amount or a percentage of that amount, then the defendant can be awarded attorney fees or a percentage of its attorney fees.

The statute has a two-prong approach. First, it eliminates a lot of lawsuits quite quickly when the damages are close enough to the offer made by the defendant to get the plaintiff to think. It also makes the plaintiff to do an honest evaluation of the amount of money they can realistically receive in a lawsuit.

Here the plaintiff did not recover any money so the defendant was awarded 20% of their attorney fees per the statute.

Relevant Facts of the Case

The actual facts are stated in the decision are important.

Donahue completed her first class on harnessed climbing on March 23, 2008, and returned for a second class on May 11. When class began she was told that the day’s focus would be on bouldering, or unharnessed climbing on low walls. She did not express any hesitation. She climbed for almost two hours, successfully ascending and descending a number of routes. During this time, she saw other people drop from the wall without injury. After another successful ascent at the end of the lesson, she felt unable to climb down using the available holds. Her feet were somewhere between three and four-and-a-half feet from the ground. Her instructor suggested that she drop to the mat and told her to be sure to bend her knees. Donahue landed awkwardly and broke her tibia in four places. She was attended to immediately by Rock Gym personnel and a physician who happened to be present.

The court pointed out several facts surrounding the case. The ones in favor of the defendant were:

There were signs posted around the gym warning of the dangers of climbing. The plaintiff had never climbed before, but she was a runner, cyclists, kite boarder and had worked as a commercial river guide in Colorado. The plaintiff testified that she understood the risks of the activities and felt competent to make decisions about that risk for herself.

The ones in favor of the plaintiff were: Advertising of the gym gave the impression to the plaintiff that learning with the defendant was a safe way to learn how to climb. The defendant had run ads in the newspaper that stated:

[T]the only safe place in town to hang out.

Trust us, it still exists. . . . [E]very child in your family will be reminded of what it’s all about — friends and fun.

[Y]ou have nothing to lose and everything to gain.

(Marketing makes promises that risk management must pay for?)

Analysis of Prior Release law by the Court

The court outlined the three reasons it had thrown out releases in three earlier cases. The first decision, a release was used as a defense to a claim by a passenger in a plane that crashed.

We ruled that “[i]ntent to release a party from liability for future negligence must be conspicuously and unequivocally expressed.” We also held that a release must use the word “negligence” to establish the required degree of clarity, something the release in Kissick did not do. Further, since liability for “death” was not specifically disclaimed and the term “injury” was ambiguous, we held that the release did not apply to claims for wrongful death, construing it against the drafter.

The second release was thrown out in a case involving driving all-terrain vehicles. The public policy argument was reviewed in this case, and the court found a recreational release did not violate public policy. The court did find, however:

We did decide, however, that the release did not conspicuously and unequivocally express an intent to release the defendants from liability for the cause of the exact injury that occurred — a rollover when the plaintiff drove over a big rock hidden in tall grass. The release covered the inherent risks of ATV riding, but we found that it also included “an implied and reasonable presumption that the course [was] not unreasonably dangerous.” We found there to be fact questions about whether “the course posed a risk beyond ordinary negligence related to the inherent risks of off-road ATV riding assumed by the release,” and we held that summary judgment for the defendants on the basis of the release was therefore, improper.

The third decision involved the same defendant as in the present case, Ledgends, Inc. In that case the plaintiff fell and her foot slipped through two floor mats injuring her.

…language in the release that was problematic because it was internally inconsistent: the release stated that the gym would try to keep its facilities safe and its equipment in good condition, but it simultaneously disclaimed liability for actions that failed to meet such standards.

This last issue is critical to review when writing a release. See below.

Requirements for a Release to be Valid under Alaskan law

The court then outlined the six things a release under Alaskan law must meet to be valid.

(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage);

(2) a waiver of negligence must be specifically set forth using the word “negligence”;

(3) these factors must be brought home to the releasor in clear, emphasized language by using simple words and capital letters;

(4) the release must not violate public policy;

(5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and

(6) the release agreement must not represent or insinuate standards of safety or maintenance.

Simply put the requirements of a release in Alaska are simple clear and very precise. I would surmise that 90% of the releases written in the US would fail to meet one or more of the requirements required in Alaska.

A review of the specifics required by the court is educational.

1. You can’t just have a one-paragraph release waiving negligence. Under Alaskan law, you have to list the possible risks. Here the court found the list describing what can happen to you in a climbing gym adequate. Falling is an obvious one for rock climbing but you probably also have to list rope burns, different ways you can fall, belayer issues as well as equipment failure.

You also cannot use one release to cover a multitude of risks anymore. The risks of rock climbing do not include drowning (outside of Thailand) which are a part of rafting. You will have to have a release for each group of risks to identify those risks.

2. You have to have a release that releases the defendant from negligence. Alaska is not going to allow you to skirt the issue. Your release must use the word negligence and have the signor, sign away their right to sue for your negligent acts.

3. The important language cannot be hidden, small type, etc. More importantly; the entire document must be a standalone document, and the releasing language set out, emphasized and capitalized.

Under Alaskan law, I would suspect that most “health club” releases found in the membership sign up may not meet these requirements. Those are documents were the majority of the language covers your promise to pay and there is a paragraph or two in the middle waiving any claims you may have.

(The language concerning payment allows the health club to sell the contract to a third party. The health club receives a fixed amount, usually about 50% of the total value immediately. The third party is then the one sending you the demand letter and trying to collect from you when you quit going to the club.)

4. The release of liability language must be specific. This issue is similar to the first issue, but it requires specific action in the release. You must state you are not liable for negligence AND the risks you outline in the release and others. This requires you to have more than a simple negligence clause. Your negligence clause must be written to cover all aspects of the risk you are required to put in your release.

5. The Fifth and Sixth requirements are similar. This is one I’ve been arguing for years. You can’t promise one thing and then not meet the promise. The court specifically stated you cannot say your state you follow a standard and then fail to meet that standard. (Sound familiar?)

If you say you follow the standards of the ACA, AEE, CWA or any other organization that writes standards for your activity you must meet those standards! You cannot say your equipment is kept up to date and then have shoddy equipment. You can’t say your employees are all trained in first aid and have a custodian who is not. No longer can you say you meet 80% of the standards or hope your release will get you out of those you don’t meet. If you state you meet the standards, yours or others, Alaska release law (contract law) states you must meet the standards.

If you marketing is making a promise that you fail to meet, in Alaska your release cannot get you out of failing to meet the promise. Whether or not this applies to advertising not found in the release will be interesting. However, I suspect if the plaintiff says I want to the defendant because their door said they meet the standards of ABC, and they failed to meet those standards; the defense in Alaska may not include a release.

The defendant was successful; the plaintiff’s claims were dismissed, and we have a decision providing an outline on how releases should be written in Alaska.

So Now What?

Many times in an effect to “soften” the way the release sounds to your clients you may make statements or promises in the release about how you or your equipment will operate or be maintained. In this decision, the court pointed out in its prior decision that those promises in a release will void the release if they are not kept.

There is no way to “soften” a release. Any time you do you are creating a contract with cross purposes. On one hand, you are attempting to prevent a lawsuit if someone is injured. On the other hand, you are promising that people won’t be injured. If you are promising someone won’t be injured why have the release? More importantly the courts have found that you can’t promise safety and when you fail to meet your promise, use the release to prevent the lawsuit over your promise.

A release is a contract. This court looked at the entire contract and found that promises in the contract were met. Promises in prior contracts that were not met voided the release.

This decision places stricter requirements on releases then in several other courts; however, the decision outlines how to be successful when writing a release in Alaska and all other states.

What do you think? Leave a comment.

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Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153

Posted: August 31, 2014 | Author: Recreation Law | Filed under: Alaska, Climbing Wall, Legal Case, Release (pre-injury contract not to sue) | Tags: AK, Alaska, Bouldering, Claire Donahue, Climbing Gym, Climbing Wall, Defendant, Donahue, Ledgends, Negligence, Plaintiff, Release, Rock Gym | Leave a comment

To Read an Analysis of this decision see

Alaskan Supreme Court upholds releases for climbing gym and sets forth requirements on how releases will be upheld in AK

Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153

Claire A. Donahue, Appellant and Cross-Appellee, v. Ledgends, Inc. d/b/a Alaska Rock Gym, Appellee and Cross-Appellant.

Supreme Court Nos. S-14910/14929, No. 6932

SUPREME COURT OF ALASKA

2014 Alas. LEXIS 153

August 1, 2014, Decided

NOTICE:

THIS OPINION IS SUBJECT TO CORRECTION BEFORE PUBLICATION IN THE PACIFIC REPORTER. READERS ARE REQUESTED TO BRING ERRORS TO THE ATTENTION OF THE CLERK OF THE APPELLATE COURTS.

PRIOR HISTORY: [*1] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge. Superior Court No. 3AN-10-07305 CI.

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-Plaintiff alleged injured party’s negligence claim failed because a release stated waived risks, used “negligence,” stated important factors in emphasized language, specifically disclaimed liability, did not imply safety standards conflicting with a release, was not contested on public policy grounds, and was not modified by advertising; [2]-The Uniform Trade Practices and Consumer Protection Act, AS 45.50.471 et seq., did not apply because conflicts with a personal injury claim barred assuming such a legislature intent, which “ascertainable loss of money or property” in AS 45.50.531(a) did not state; [3]-It was no clear error to find defendant gym waived Alaska R. Civ. P. 68 attorney’s fees because it only raised its offer of judgment when seeking fees under an indemnity clause, and only raised enhanced fees under Alaska R. Civ. P. 82, before its reconsideration motion.

OUTCOME: Judgment affirmed.

COUNSEL: Christine S. Schleuss, Law Office of Christine S. Schleuss, Anchorage, for Appellant and Cross-Appellee.

Tracey L. Knutson, Girdwood, for Appellee and Cross-Appellant.

JUDGES: Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION BY: MAASSEN

OPINION

MAASSEN, Justice.

I. INTRODUCTION

This case arises from an injury at a climbing gym. Claire Donahue broke her tibia during a class at the Alaska Rock Gym after she dropped approximately three to four-and-a-half feet from a bouldering wall onto the floor mat. Before class Donahue had been required to read and sign a document that purported to release the Rock Gym from any liability for participants’ injuries.

Donahue brought claims against the Rock Gym for negligence and violations of the Uniform Trade Practices and Consumer Protection Act (UTPA). The Rock Gym moved for summary judgment, contending that the release bars Donahue’s negligence claim. It also moved to dismiss the UTPA claims on grounds that the act does not apply to personal injury claims and that Donahue failed to state a prima facie [*2] case for relief under the act. Donahue cross-moved for partial summary judgment on the enforceability of the release as well as the merits of her UTPA claims. The superior court granted the Rock Gym’s motion and denied Donahue’s, then awarded attorney’s fees to the Rock Gym under Alaska Civil Rule 82.

Donahue appeals the grant of summary judgment to the Rock Gym; the Rock Gym also appeals, contending that the superior court should have awarded fees under Alaska Civil Rule 68 instead of Rule 82. We affirm the superior court on all issues.

II. FACTS AND PROCEEDINGS

Ledgends, Inc. does business as the Alaska Rock Gym, a private indoor facility that is open to the public. Its interior walls have fixed climbing holds and routes; for a fee, it provides classes and open gym or free climbing time. There are signs posted around the Rock Gym warning of the dangers of climbing, including falling; at her deposition Donahue did not dispute that the signs were there when she visited the gym.

Donahue had been thinking about trying rock climbing for several years, and she finally decided in March 2008 to attend a class at the Rock Gym called “Rockin’ Women.” She testified that she chose the class because she thought it could be tailored to specific [*3] skill levels, and because she “got the impression [from the advertisements] that that is the type of group it was, that it was a . . . safe way to learn to climb.” She also testified she understood that the essential risk of climbing is falling.

Donahue had no rock climbing experience, but she was an occasional runner and cyclist and had pursued other high-risk athletic activities such as kite-boarding. She had been a river guide on the Colorado River after college. She had engaged in physical occupations such as commercial fishing and construction. She testified that she understood the nature of risky activities and felt competent to decide about them for herself. In connection with other recreational activities, she had signed releases and waivers similar to the one she signed at the Rock Gym. She testified that she understood that parties who sign contracts generally intend to be bound by them.

When Donahue arrived at the Rock Gym for her first class, she was given a document entitled “Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement — Alaska Rock Gym.” She was aware of the document’s nature and general intent but testified that although [*4] she signed it voluntarily, she did not read it closely.

The release contains nine numbered sections on two single-spaced pages. There is also an unnumbered introductory paragraph; it defines the Rock Gym to include, among others, its agents, owners, participants, and employees, as well as “all other persons or entities acting in any capacity on its behalf.”

Section one of the release contains three paragraphs. The first recites the general risks of rock climbing, including injury and death, and explains that these risks are essential to the sport and therefore cannot be eliminated. The second paragraph lists about a dozen specific risks inherent in rock climbing, including “falling off the climbing wall,” “impacting the ground,” “the negligence of other[s],” and “my own negligence[,] inexperience, . . . or fatigue.” The third paragraph asserts that the gym and its instructors “seek safety, but they are not infallible.” It describes some errors instructors might make, including being ignorant of a participant’s abilities and failing to give adequate warnings or instructions. The final sentence in the third paragraph reads, “By signing this [release], I acknowledge that I AM ULTIMATELY RESPONSIBLE [*5] for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals, or activities.”

Section two begins, “I expressly agree and promise to accept and assume all the risks . . .”; it then highlights the voluntary nature of participation in Rock Gym activities.

Section three is the clause that releases the Rock Gym from liability (the releasing clause). It reads in full,

I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym’s] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].

The next six sections of the release address other issues: indemnification for attorney’s fees, certification that the participant is fit to climb, permission to provide first aid, permission to photograph for promotional purposes, the voluntariness of participation and signing the release, and jurisdiction for claims arising from the release.

The ultimate paragraph is printed in bold. It reads in part,

By signing this [*6] document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.

Finally, centered on the second page, in bold capital letters directly above the signature line, the release reads: “I HAVE HAD SUFFICIENT OPPORTUNITY TO READ THIS ENTIRE DOCUMENT. I HAVE READ AND UNDERSTOOD IT, AND I AGREE TO BE BOUND BY ITS TERMS.”

Donahue’s hand-printed name and the date appear on the first page of the release, and her initials are at the bottom of the page; her signature appears on the second page, along with her printed name, her contact information, and the date.

Donahue completed her first class on harnessed climbing on March 23, 2008, and returned for a second class on May 11. When class began she was told that the day’s focus would be on bouldering, or unharnessed climbing on low walls. She did not express any hesitation. She climbed for almost two hours, successfully ascending and descending a number of routes. [*7] During this time she saw other people drop from the wall without injury. After another successful ascent near the end of the lesson, she felt unable to climb down using the available holds. Her feet were somewhere between three and four-and-a-half feet from the ground. Her instructor suggested that she drop to the mat and told her to be sure to bend her knees. Donahue landed awkwardly and broke her tibia in four places. She was attended to immediately by Rock Gym personnel and a physician who happened to be present.

The Rock Gym had run various advertisements during the two years preceding Donahue’s accident, using a number of different slogans. One newspaper ad, running on at least three occasions, stated: “[T]the only safe place in town to hang out.” Another Rock Gym ad showed an adult bouldering and a child climbing while harnessed; its text contained the same slogan and added, in part, “Trust us, it still exists. . . . [E]very child in your family will be reminded of what it’s all about — friends and fun.” A third ad described climbing programs for everyone in the family and said, “[Y]ou have nothing to lose and everything to gain.” In an affidavit, Donahue testified she had read these ads.

Donahue [*8] sued the Rock Gym for negligent failure to adequately train and supervise its instructors. She alleged that the Rock Gym was liable for its employee’s negligent instruction to drop from the bouldering wall. She also alleged a violation of the Unfair Trade Practices and Consumer Protection Act, contending that the Rock Gym’s advertisements “misleadingly advertised [the gym] as a safe place where users of its services had nothing to lose and everything to gain.”

The Rock Gym moved for summary judgment on all of Donahue’s claims. She opposed the motion and cross-moved for partial summary judgment herself, arguing that the Rock Gym had violated the UTPA as a matter of law and that the release she had signed was null and void.

The superior court granted the Rock Gym’s motion and denied Donahue’s cross-motion. It then granted the Rock Gym, as prevailing party, partial attorney’s fees under Civil Rule 82(a)(3).

III. STANDARDS OF REVIEW

[HN1] We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact.¹ In making this determination, we construe the facts in favor of the non-moving party.² If the record fails to reveal a genuine factual dispute and the moving [*9] party was entitled to judgment as a matter of law, the trial court’s grant of summary judgment must be affirmed.³

1 Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013) (citing Yost v. State, Div. of Corps., Bus. & Prof’l Licensing, 234 P.3d 1264, 1272 (Alaska 2010)).

2 Id. (citing McCormick v. City of Dillingham, 16 P.3d 735, 738 (Alaska 2001)).

3 Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012).

[HN2] We decide questions of law, including statutory interpretation, using our independent judgment.⁴ We will adopt the most persuasive rule of law in light of precedent, reason, and policy.⁵ This requires us, when interpreting statutes, to “look to the meaning of the language, the legislative history, and the purpose of the statute.”⁶

4 Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska 2003).

5 ASRC Energy Servs. Power & Commc’ns, LLC v. Golden Valley Electric Ass’n, 267 P.3d 1151, 1157 (Alaska 2011).

6 Id.

[HN3] “A superior court’s determination whether waiver occurred is a question of fact that we review for clear error.”⁷

7 Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).

IV. DISCUSSION

A. The Release Is Enforceable And Bars Donahue’s Negligence Claims.

Three cases define Alaska law on pre-activity releases from liability.⁸ [HN4] These cases consistently state that such releases are not per se invalid;⁹ in each of the cases, however, we concluded that the release at issue did not bar the plaintiff’s claim.

8 Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991).

9 Kerr, 91 P.3d at 961-62 (noting that “under Alaska law pre-recreational exculpatory releases are held to a very high standard of clarity”); Moore, 36 P.3d at 631 (noting that “an otherwise valid release is ineffective when releasing a defendant from liability would violate public policy” (emphasis added)); Kissick, 816 P.2d at 191 (“A promise not to [*10] sue for future damage caused by simple negligence may be valid.” (quoting 15 Samuel Williston, A Treatise on the Law of Contracts § 1750A, at 143-45 (3d ed. 1972)); see also Mitchell v. Mitchell, 655 P.2d 748, 751 (Alaska 1982) (upholding provision not to sue in settlement agreement and noting that, “[a]s a matter of law, . . . a valid release of all claims will bar any subsequent claims covered by the release”).

Kissick v. Schmierer involved a plane crash that caused the deaths of all four people aboard.¹⁰ The three passengers had signed a covenant not to sue before they boarded the plane.¹¹ They agreed in the release not to bring a claim “for any loss, damage, or injury to [their] person or [their] property which may occur from any cause whatsoever.”¹² When the passengers’ surviving spouses filed wrongful death claims against the pilot, their claims were allowed to proceed despite the release.¹³ We ruled that [HN5] “[i]ntent to release a party from liability for future negligence must be conspicuously and unequivocally expressed.”¹⁴ We also held that a release must use the word “negligence” to establish the required degree of clarity, something the release in Kissick did not do.¹⁵ Further, since liability for “death” was not specifically disclaimed and the term “injury” [*11] was ambiguous, we held that the release did not apply to claims for wrongful death, construing it against the drafter.¹⁶

10 Kissick, 816 P.2d at 188.

11 Id. at 189.

12 Id.

13 Id.

14 Id. at 191 (citations omitted).

15 Id. (citing W.Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, at 483-84 (5th ed.1984) (footnotes omitted)).

16 Id. at 191-92.

The second case, Moore v. Hartley Motors, involved an injury during a class on driving all-terrain vehicles (ATVs).¹⁷ We first addressed whether the plaintiff’s signed release violated public policy.¹⁸ We noted that the type of service involved was neither essential nor regulated by statute;¹⁹ these factors, along with the voluntariness of the plaintiff’s participation, persuaded us that the defendants ²⁰ had no “decisive advantage in bargaining strength.”²¹ We therefore held that the release did not violate public policy.²²

17 36 P.3d 628, 629 (Alaska 2001).

18 Id. at 631-32.

19 Id. at 631-32 (noting that ATV riding is similar to parachuting, dirt biking, and scuba diving, for which releases have been upheld in other jurisdictions).

20 The defendants included the dealer that sold the plaintiff the ATV and referred her to the safety course, the ATV Safety Institute that developed the curriculum, and the individual instructor. Id. at 629.

21 Id. at 631-32.

22 Id.

We did decide, however, that the release did not conspicuously and unequivocally [*12] express an intent to release the defendants from liability for the cause of the exact injury that occurred — a rollover when the plaintiff drove over a big rock hidden in tall grass.²³ The release covered the inherent risks of ATV riding, but we found that it also included “an implied and reasonable presumption that the course [was] not unreasonably dangerous.”²⁴ We found there to be fact questions about whether “the course posed a risk beyond ordinary negligence related to the inherent risks of off-road ATV riding assumed by the release,” and we held that summary judgment for the defendants on the basis of the release was therefore improper.²⁵

23 Id. at 632.

24 Id.

25 Id. at 633-34.

The third case, Ledgends, Inc. v. Kerr, involved the same rock gym as this case.²⁶ It involved a similar injury as well, sustained when the plaintiff fell from a bouldering wall.²⁷ Unlike Donahue, however, who landed squarely on the floor mat, the plaintiff in Kerr was allegedly injured when her foot slipped through the space between two floor mats.²⁸ The plaintiff alleged the gym knew of the defect in the landing area but had failed to fix it.²⁹

26 91 P.3d 960 (Alaska 2004).

27 Id. at 961.

28 Id.

29 Id.

The superior court, whose order we approved and attached as an appendix to our opinion, cited Kissick [*13] for the notion that a pre-activity release for tortious conduct must be “clear, explicit, and comprehensible in each of its essential details.”³⁰ The superior court also noted the requirement that “such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the release.”³¹ With these principles in mind, the superior court pointed to language in the release that was problematic because it was internally inconsistent: the release stated that the gym would try to keep its facilities safe and its equipment in good condition, but it simultaneously disclaimed liability for actions that failed to meet such standards.³² The superior court construed this ambiguity against the drafter and held that the release was not valid as a bar to the plaintiff’s negligence claims, a holding we affirmed.³³

30 Id. at 961-62 (quoting Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991)) (internal quotation marks omitted).

31 Id. at 962 (quoting Kissick, 816 P.2d at 191) (internal quotation marks omitted).

32 Id. at 963.

33 Id.

In this case, the superior court concluded that Kissick, Moore, and Kerr, considered together, meant that [HN6] “an effective liability release requires six characteristics.” We agree with the superior court’s formulation of the list:

(1) the risk being waived must [*14] be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language by using simple words and capital letters; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.

The superior court found that each of these characteristics was satisfied in this case, and again we agree.³⁴

34 Donahue does not challenge the release on public policy grounds, so the fourth characteristic of a valid release is satisfied here. Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities. Kissick, 816 P.2d at 191 (“A promise not to sue for future damage caused by simple negligence may be valid.” (internal citations [*15] and quotation marks omitted)). The New Jersey Supreme Court, in a case involving claims against a health club, held that liability releases in gym cases do not violate public policy in part because gyms remain liable for their gross negligence or recklessness — levels of culpability not alleged in this case. Stelluti v. Casapenn Enters., 203 N.J. 286, 1 A.3d 678, 681 (N.J. 2010); see also City of Santa Barbara v. Super. Ct., 41 Cal. 4th 747, 62 Cal. Rptr. 3d 527, 161 P.3d 1095, 1102-03 (Cal. 2007) (surveying jurisdictions and concluding that “[m]ost, but not all” hold that releases of ordinary negligence in recreational activities do not violate public policy but “the vast majority of decisions state or hold that such agreements generally are void” if they attempt to release “aggravated misconduct” such as gross negligence).

1. The risks being waived (falling and instructor negligence) are specifically and clearly set forth.

[HN7] A conspicuous and unequivocal statement of the risk waived is the keystone of a valid release.³⁵ Here, the release clearly and repeatedly disclosed the risk of the specific injury at issue: injury from falling while climbing. The following are excerpts from the Rock Gym’s release:

I specifically acknowledge that the inherent risks associated with rock climbing . . . include[], but [are] not limited to: falling off of the climbing wall, . . . impacting [*16] the ground . . . , general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant’s limits, . . . my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue . . . .

To the extent that the risk at issue is the risk of hitting the ground after falling (or dropping in what is essentially an intentional fall), the first characteristic of a valid release is satisfied by this language.

35 Kerr, 91 P.3d at 961; Moore v. Hartley Motors, Inc., 36 P.3d 628, 632 (Alaska 2001); Kissick, 816 P.2d at 191.

Rather than focusing on her injury, however, Donahue focuses on its alleged cause, which she argues was the negligent training and supervision of Rock Gym instructors and the consequently negligent instructions she was given. She claims that the release did not specifically and clearly set forth this risk, and that she was therefore unaware that she was waiving the right to sue for instructor negligence.

But the release did cover this risk. The first paragraph expressly incorporates “employees” into the definition of the entity being released. The release further warns that Rock Gym “instructors, [*17] employees, volunteers, agents or others . . . are not infallible” and that “[t]hey may give inadequate warnings or instructions.” In its on-site interactions with the public, the Rock Gym necessarily acts through its instructors and other employees; Donahue knew she would be taking a class and that classes require instructors. It would not be reasonable to conclude that the Rock Gym sought a release only of those claims against it that did not involve the acts or omissions of any of its employees, and we cannot construe the release in that way.³⁶ We agree with the superior court’s conclusion that “the Release clearly expresses that it is a release of liability for the negligence of the releasor-participant, other participants, climbers, spotters or visitors, as well as [the Rock Gym’s] negligence, including [Rock Gym] employees.”

36 See Kahn v. E. Side Union High Sch. Dist., 31 Cal. 4th 990, 4 Cal. Rptr. 3d 103, 75 P.3d 30, 40 (Cal. 2003) (holding that “the risks associated with learning a sport may themselves be inherent risks of the sport. . . . [A]nd . . . liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student’s abilities” (internal citations and quotation marks omitted)).

Donahue also argues that [*18] she could not understand the risks involved due to the release’s appearance and presentation. However, even viewing the facts in the light most favorable to her, the record does not support her argument. Although Donahue did not carefully read the release before signing it,³⁷ she was aware she was signing a liability release. She has signed a number of such documents in the past and was familiar with their general purpose. When asked to read the release at her deposition, she testified that she understood the pertinent risks it described. There is no reason to believe that she would have found it less comprehensible had she read it at the time she signed it.

37 [HN8] Failure to read a contract in detail before signing it is no defense to its enforceability. Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991).

2. The waiver of negligence is specifically set forth using the word “negligence.”

Kissick and Kerr both emphasize that a valid release from liability for negligence claims requires use of the word “negligence.”³⁸ This requirement is met here.

38 Kerr, 91 P.3d at 961; Kissick, 816 P.2d at 191.

The Rock Gym’s release first lists negligence among the inherent risks of climbing (“the negligence of other climbers or spotters or visitors or participants” and “my own negligence”). It then provides: [*19] “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the Rock Gym].” (Emphasis added.) The phrase “any and all claims” is thus expressly defined to include claims for negligence.

Cases from other jurisdictions support the conclusion that the language in the Rock Gym’s release covers all of Donahue’s negligence claims. In Rosencrans v. Dover Images, Ltd., the plaintiff was injured on a motocross track after falling from his bike and being struck by two other riders.³⁹ A California Court of Appeal concluded that the signed waiver releasing the track from liability for “any losses or damages . . . whether caused by the negligence of [the Releasees] or otherwise” precluded the plaintiff’s claim “for ordinary negligence as well as negligent hiring and supervision” of employees at the racetrack (though it did not release the track from liability for gross negligence — a claim not made here).⁴⁰

39 192 Cal. App. 4th 1072, 122 Cal. Rptr. 3d 22, 27 (Cal. App. 2011).

40 Id. at 30. See also Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App. 2002) (“Negligent hiring, retention, and supervision claims are all simple negligence causes of action based on an [*20] employer’s direct negligence rather than on vicarious liability.” (citations omitted)).

In short, the requirement that a waiver of negligence be specifically set out using the word “negligence” is satisfied by the Rock Gym’s release.

3. The important factors are brought home to the releasor in clear, emphasized language with simple words and capital letters.

Donahue argues that although “negligence” is expressly mentioned and disclaimed in the release, its placement at the end of long sentences written in small font rendered its presence meaningless to her. Quoting a California case, she argues that when the risk of negligence is shifted, a layperson “should not be required to muddle through complex language to know that valuable, legal rights are being relinquished.”⁴¹ Donahue also cites New Hampshire and Washington cases in which the structure and organization of releases obscured the language that purported to shield the defendants from claims.⁴² These cases considered factors such as “whether the waiver is set apart or hidden within other provisions, whether the heading is clear, [and] whether the waiver is set off in capital letters or in bold type.”⁴³ In one Washington case, a release [*21] was invalidated because the releasing language was in the middle of a paragraph.⁴⁴

41 Conservatorship of the Estate of Link v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 158 Cal. App. 3d 138, 205 Cal. Rptr. 513, 515 (Cal. App. 1984).

42 See Wright v. Loon Mtn. Recreation Corp., 140 N.H. 166, 663 A.2d 1340, 1342 (N.H. 1995); Johnson v. UBAR, LLC, 150 Wn. App. 533, 210 P.3d 1021, 1023 (Wash. App. 2009).

43 Johnson, 210 P.3d at 1023 (citing Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (Wash. 1971)).

44 Baker, 484 P.2d at 407.

Fundamentally, Donahue argues that the Rock Gym’s release was so ambiguous and laden with legalese that she lacked any real ability to understand that she was agreeing to release the Rock Gym from the negligence of its instructors. She complains of the release’s “lengthy, small-printed, and convoluted” language which required a “magnifying glass and lexicon” to decipher. She points out that the clause purporting to release the Rock Gym from liability is not obvious or emphasized through bold print or capital letters. She testified at her deposition that she believed the waiver shielded the gym only “from frivolous lawsuits, from people blaming them for something that’s not their fault.”

It is true that the release’s text is small and the releasing clause is in the middle of the document toward the bottom of the first page. But the clauses addressing negligence do not appear to be “calculated to conceal,” as Donahue argues. Though not highlighted, they are in a logical place where they cannot be missed by someone who reads the release. The clause releasing the Rock Gym from liability is [*22] a single sentence set out as its own numbered paragraph, and it is not confusing or needlessly wordy.⁴⁵ The inherent risks of climbing are enumerated in great detail but using ordinary descriptive language that is easy to understand.⁴⁶ Several sentences are devoted to the role of the gym’s “instructors, employees, volunteers, agents or others,” stating that they “have difficult jobs to perform,” that they “seek safety, but they are not infallible,” and that they may “be ignorant of mine or another participant’s fitness or abilities” and “may give inadequate warnings or instructions.”

45 Paragraph 3 of the release reads: “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym’s] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].”

46 Paragraph 1 of the release lists the inherent risks of climbing as including “but . . . not limited to”:

falling off of the climbing wall, being fallen on or impacted by other participants, poor or [*23] improper belaying, the possibility that I will be jolted or jarred or bounced or thrown to and fro or shaken about while climbing or belaying, entanglement in ropes, impacting the ground and/or climbing wall, loose or dropped or damaged ropes or holds, equipment failure, improperly maintained equipment which I may or may not be renting from [the Rock Gym], displaced pads or safety equipment, belay or anchor or harness failure, general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant[‘s] limits, the negligence of other climbers or spotters or visitors or participants who may be present, participants giving or following inappropriate “Beta” or climbing advice or move sequences, mine or others’ failure to follow the rules of the [Rock Gym], my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue — some or all of which may diminish my or the other participants’ ability to react or respond.

Because [HN9] releases should be read “as a whole” in order to decide whether they “clearly [*24] notify the prospective releasor or indemnitor of the effect of signing the agreement,”⁴⁷ we consider these provisions in the context of the entire document. Three other sections of emphasized text mitigate Donahue’s complaints about ambiguity and incomprehensibility. First, section one reads in part, “I AM ULTIMATELY RESPONSIBLE for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals or activities” (bold in original). This alone makes it clear to the reader that the Rock Gym, to the extent it is allowed to do so, intends to shift responsibility to the climber regardless of the actions of anyone else. Second, a final unnumbered paragraph, set out in bold letters, reads in part: “By signing this document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.” And finally, directly above the lines where Donahue entered her signature, her printed name, her contact [*25] information, and the date, the release reads, in bold and capital letters, “I HAVE READ AND UNDERSTOOD [THE RELEASE], AND I AGREE TO BE BOUND BY ITS TERMS.” If Donahue had read the release and found herself genuinely confused about any of its terms, she was prominently notified that she should inquire about it before signing.

47 Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991).

The New Hampshire case on which Donahue relies, Wright v. Loon Mountain Recreation Corp., examined the release in question to determine whether “a reasonable person in the position of the plaintiff would have understood that the agreement clearly and specifically indicated the intent to release the defendant from liability for its own negligence.”⁴⁸ Applying that test here, we conclude that a reasonable person in Donahue’s position could not have overlooked or misunderstood the release’s intent to disclaim liability. Our case law’s third characteristic of a valid release is therefore satisfied.

48 140 N.H. 166, 663 A.2d 1340, 1343-44 (N.H. 1995); see also Johnson, 210 P.3d at 1021 (holding reasonable persons could disagree about the conspicuousness of the release provision in the waiver, and remanding for trial).

4. Regardless of whether falling and instructor negligence are inherent risks of rock climbing, the release specifically disclaims [*26] liability for them.

The fifth characteristic set forth by the superior court ⁴⁹ is that “if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so.”⁵⁰ This requirement stems from the release’s ill-defined scope in Moore; the injury that occurred — arguably caused by an unreasonably dangerous ATV training course — was not obviously included in the inherent risks of riding ATVs, which the signed release did intend to cover.⁵¹ Here, in contrast, the injury and its alleged causes are all expressly covered by the release, as explained above. Negligence claims are specifically contemplated, as are “falls,” “impact” with the ground, and “inadequate warnings or instructions” from Rock Gym instructors. Regardless of whether these are inherent risks of climbing, they are specifically covered by the release. This characteristic of a valid release is therefore satisfied.

49 As noted above, the fourth characteristic of a valid release — that it not violate public policy — is not at issue on this appeal. See supra note 34.

50 See Moore v. Hartley Motors, Inc., 36 P.3d 628, 633-34 (Alaska 2001).

51 Id.

5. The release does not represent or imply standards of safety or maintenance that [*27] conflict with an intent to release negligence claims.

The sixth characteristic of a valid release is that it does not imply standards of safety or maintenance that conflict with an intent to waive claims for negligence.⁵² The Rock Gym argues that nothing in the release confuses its purpose, unlike the release at issue in Kerr, which at least implicitly promised that equipment would be kept “in good condition.”⁵³ We agree. In fact, far from providing assurances of safety, the release highlights the fallibility of the Rock Gym’s employees, equipment, and facilities, explicitly stating that the equipment may “fail,” “malfunction[,] or be poorly maintained” and that the staff is “not infallible,” may be ignorant of a climber’s “fitness or abilities,” and “may give inadequate warnings or instructions.”

52 See Ledgends, Inc. v. Kerr, 91 P.3d 960, 962-63 (Alaska 2004).

53 Id. at 963.

Donahue agrees that the release is not internally inconsistent, but she argues that the advertisements run by the Rock Gym had the same confounding impact on her understanding of it as the release’s language about equipment maintenance had in Kerr. She contends that she relied on the ads’ assurances that the gym was “a safe place” and the class “would be a safe way to learn to climb” when [*28] she enrolled in the climbing class. She argues that these assurances created ambiguity that, as in Kerr, requires that the release be interpreted in a less exculpatory way.

Although extrinsic evidence may be admissible as an aid to contract interpretation,⁵⁴ the release here clearly defines climbing as an inherently risky activity. And we have said that

[HN10] where one section deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is a conflict, the specific section will control over the general.⁵⁵

Were we to give the Rock Gym’s advertisements any weight in our analysis of the release, we would not find that their use of the word “safe” overrode the release’s very clear warnings about the specific risks of climbing.

54 Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004) (citing Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996)).

55 Id. (quoting Estate of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978)).

Because the advertisements cannot reasonably be considered as modifications to the release, and because the release does not otherwise contain implicit guarantees of safety or maintenance that could confuse its purpose, we find the final requirement of a valid release to be satisfied. The release thus satisfies all characteristics of a valid release [*29] identified by our case law, and we affirm the superior court’s grant of summary judgment to the Rock Gym on this issue.

B. The UTPA Does Not Apply To Personal Injury Claims.

[HN11] Under the UTPA, “[a] person who suffers an ascertainable loss of money or property as a result of another person’s act or practice declared unlawful by AS 45.50.471 may bring a civil action to recover for each unlawful act or practice three times the actual damages . . . .”⁵⁶ Donahue alleges that, by publishing ads that gave the impression the Rock Gym was safe, the Rock Gym engaged in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce” which are unlawful under the statute.⁵⁷ [HN12] We have not yet decided whether the statutory phrase “loss of money or property” includes personal injury claims. We now hold that it does not.

56 AS 45.50.531(a) (emphasis added).

57 AS 45.50.471(a).

[HN13] The UTPA was “designed to meet the increasing need in Alaska for the protection of consumers as well as honest businessmen from the depredations of those persons employing unfair or deceptive trade practices.”⁵⁸ The act protects the consumer from deceptive sales and advertising practices,⁵⁹ and it protects honest businesses from their unethical [*30] competitors.⁶⁰ Donahue concedes that we have limited the UTPA to “regulating practices relating to transactions involving consumer goods and services.”⁶¹ She contends, however, that because we have never restricted the types of damages available for conduct within the UTPA’s reach, damages for personal injury should be recoverable.

58 W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1052 (Alaska 2004) (quoting House Judiciary Committee Report on HCSCS for S.B. 352, House Journal Supp. No. 10 at 1, 1970 House Journal 744) (court’s emphasis and internal quotation marks omitted).

59 See, e.g., Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1244-45 (Alaska 2007) (affirming superior court’s award of treble damages against a car dealer for its insistence on enforcing an invalid contract); Pierce v. Catalina Yachts, Inc., 2 P.3d 618, 624 (Alaska 2000) (holding unconscionable sailboat manufacturer’s warranty in favor of buyers).

60 See, e.g., Garrison v. Dixon, 19 P.3d 1229, 1230-31, 1236 (Alaska 2001) (holding suit to be frivolous where real estate buyer’s agents sued competitors, alleging false and misleading advertising); Odom v. Fairbanks Mem’l Hosp., 999 P.2d 123, 127, 131-32 (Alaska 2000) (holding viable physician’s claims against hospital for retaliatory and anticompetitive behavior).

61 See Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059, 1062 (Alaska 2011) (holding the UTPA does not apply to residential leases) (citing Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 1002 (Alaska 1999) (holding the UTPA does not apply to the sale of standing timber because it is real property rather than a consumer good)).

The superior court observed that there is nothing [*31] in the UTPA’s legislative history to support Donahue’s contention that the Alaska Legislature intended the act “to expand liability for personal injury or wrongful death or to supplant negligence as the basis for such liability.” The superior court identified “significant incongruities between the elements of common law personal injury claims and the UTPA, which suggest that the two claims cannot be reconciled.” The court explained:

For most of the past twenty years the Alaska Legislature has enacted and amended, in various forms, multiple iterations of tort reform aimed at reducing, not expanding, the scope of civil liability for personal injury and wrongful death. Expanding UTPA liability to personal injury and wrongful death would contradict many of the tort reform provisions enacted by the legislature in AS 09.17.010-080. For example, AS 09.17.020 allows punitive damages only if the plaintiff proves defendant’s conduct was outrageous, including acts done with malice or bad motives, or with reckless indifference to the interest of another person. The UTPA, on the other hand, does not require such a culpable mental state and almost as a matter of course allows a person to receive trebled actual damages. [*32] AS 09.17.060 limits a claimant’s recovery by the amount attributable to the claimant’s contributory fault; the UTPA, in contrast, does not provide a contributory fault defense. Moreover, AS 09.17.080 apportions damages between multiple tortfeasors whereas the UTPA does not permit apportionment of damages. A UTPA cause of action for personal injury or wrongful death would sidestep all of these civil damages protections.

We agree with the superior court that [HN14] the private cause of action available under the UTPA conflicts in too many ways with the traditional claim for personal injury or wrongful death for us to assume, without clear legislative direction, that the legislature intended the act to provide an alternative vehicle for such suits. The language of AS 45.50.531(a) — “ascertainable loss of money or property” — does not provide that clear direction. The legislature is well aware of how to identify causes of action involving personal injury and wrongful death, does so in other contexts,⁶² and declined to do so in this statute.

62 See, e.g., AS 04.21.020(e) (for purposes of statute governing civil liability of persons providing alcoholic beverages, ” ‘civil damages’ includes damages for personal injury, death, or injury to property of a person”); [*33] AS 05.45.200(4) (in statutes governing liability of ski resorts, “‘injury’ means property damage, personal injury, or death”); AS 09.10.070(a) (providing general statute of limitations for “personal injury or death”); AS 09.17.010 (limiting noneconomic damages recoverable “for personal injury or wrongful death”); AS 46.03.825(b)(1) (providing that limitations on oil spill damages do not apply to “an action for personal injury or death”).

Other states have similar laws, and their courts’ interpretations are helpful. Section 531(a) has a counterpart in Oregon’s UTPA, which likewise allows private actions by those who suffer a “loss of money or property.”⁶³ The Oregon Court of Appeals, considering an action for personal injuries occurring after a mechanic allegedly misrepresented the state of a car’s brakes, held that the UTPA was not a vehicle for the pursuit of personal injury claims.⁶⁴ It held that the Act plainly had a restitutionary purpose — “i.e., restitution for economic loss suffered by a consumer as the result of a deceptive trade practice.”⁶⁵ It noted the lack of any legislative history “to the effect that by the adoption of that provision the legislature intended to confer upon private individuals a new cause of action for personal injuries, including [*34] punitive damages and attorney fees,” or of “any decisions to that effect by the courts of any of the many other states which have adopted similar statutes.”⁶⁶ It emphasized the availability of common law remedies, which provided a range of possible causes of action for personal injury — negligence, breach of warranty, and strict products liability — and noted that these remedies provide for a more expansive range of damages, such as pain and suffering, not available under the UTPA.⁶⁷

63 ORS 646.638(1); ORS 646.608.

64 Gross-Haentjens v. Leckenby, 38 Ore. App. 313, 589 P.2d 1209, 1210-11 (Or. App. 1979).

65 Id. at 1210; see also Fowler v. Cooley, 239 Ore. App. 338, 245 P.3d 155, 161 (Or. App. 2010).

66 Gross-Haentjens, 589 P.2d at 1210-11.

67 Id. at 1211. Other courts have reached similar conclusions. See Beerman v. Toro Mfg. Corp., 1 Haw. App. 111, 615 P.2d 749, 754 (Haw. App. 1980) (“[T]hough individual actions based on damage to a consumer’s property may be within the purview of [the Hawaii consumer protection act], the scope of the statutes does not extend to personal injury actions.”); Kirksey v. Overton Pub, Inc., 804 S.W.2d 68, 73 (Tenn. App. 1990) (“We must hold that the General Assembly intended for the Consumer Protection Act to be used by a person claiming damages for an ascertainable loss of money or property due to an unfair or deceptive act or practice and not in a wrongful death action.”); Stevens v. Hyde Athletic Indus., Inc., 54 Wn. App. 366, 773 P.2d 871, 873 (Wash. App. 1989) (“We hold actions for personal injury do not fall within the coverage of the [Washington consumer protection act].”).

We agree with the reasoning of the Oregon court and conclude that Alaska’s [*35] UTPA does not provide the basis for a claim for personal injury.

C. The Superior Court Did Not Clearly Err In Finding That The Rock Gym Waived Any Claim For Rule 68 Attorney’s Fees.

The superior court granted the Rock Gym, as the prevailing party, 20 percent of its reasonable, actual attorney’s fees under Civil Rule 82(b)(2). [HN15] Twenty percent of “actual attorney’s fees which were necessarily incurred” is the presumptively reasonable award for a party who prevails in a case resolved short of trial but who does not recover a money judgment.⁶⁸

68 See Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010) (“Awards made pursuant to the schedule of Civil Rule 82(b) are presumptively correct.”).

The Rock Gym contends that it should have been awarded fees under Civil Rule 68 instead. [HN16] Rule 68 provides that (a) where an adverse party makes an offer to allow judgment entered against it in complete satisfaction of the claim, and (b) the judgment finally entered is at least five percent less favorable to the offeree than the offer, the offeree shall pay a percentage of the reasonable actual attorney’s fees incurred by the offeror from the date of the offer, the percentage depending on how close the parties are to trial when the offer is made. The Rock Gym made a Rule 68 offer of judgment on February 7, 2012, over two months before [*36] the April trial date. Donahue rejected the offer. Under these facts, once judgment was granted in the Rock Gym’s favor, the conditions for an award of 30 percent of “the offeror’s reasonable actual attorney’s fees” under the Rule 68 schedule were satisfied.⁶⁹

69 Alaska R. Civ. P. 68(b)(3). We note that the award of fees under Rule 68 was likely to be only nominally greater than that under Rule 82. Rule 68 affects only fees incurred after the date the offer is made, here February 7, 2012. The parties had already completed their summary judgment briefing by that time, and summary judgment was entered a month later.

The question presented here, however, is whether the Rock Gym waived any request for Rule 68 fees. The Rock Gym initially argued to the superior court that it should be awarded full fees because of express language in the release, which reads:

Should [the Rock Gym] or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.

While arguing this point, the Rock Gym noted in a footnote that it was eligible for full fees under AS 09.30.065 (the statute authorizing the Rule 68 procedure). But it made that observation only in support of its argument [*37] for full fees under the release. Its motion did not otherwise mention Rule 68; rather, as an alternative to fees under the indemnity clause, the Rock Gym asked the court to use its discretion to award up to 80 percent of its fees under Rule 82 — far more than the scheduled award of 20 percent — in light of Donahue’s “vexatious” behavior, particularly having complicated the case with claims under the UTPA.

The superior court denied the Rock Gym’s request for full fees based on the release and ordered it to submit an affidavit detailing its counsel’s billings. The order also stated, “Plaintiff should address the effect, if any, of defendant’s Rule 68 offer on the amount of fees that may be awarded.” The Rock Gym submitted the required fee affidavit and also moved for reconsideration, again arguing that full fees should be awarded under the release’s indemnity clause; again relying on Rule 82 as an alternative; and failing to mention Rule 68 at all. Donahue submitted no response.

The superior court again rejected the Rock Gym’s argument based on the release’s indemnity clause and ordered the Rock Gym to submit a more detailed fee affidavit. The Rock Gym filed another affidavit which did not address the offer of judgment. [*38]

In its third order, the superior court again rejected the Rock Gym’s request for full attorney’s fees and awarded 20 percent of its fees under Rule 82(b)(2). The Rock Gym again moved for reconsideration. This time the Rock Gym argued that it was entitled to 30 percent of its fees under Rule 68, relying on the footnote in its first motion to contend that the argument was not waived.⁷⁰

70 As noted above, the increased percentage of attorney’s fees would only apply to those fees incurred after the date the offer of judgment was made; the amount at issue thus appears to be minimal.

The superior court then issued its fourth order on fees. It reaffirmed its Rule 82 award, finding that the Rock Gym had not adequately or timely made a claim under Rule 68. The court observed that the Rock Gym’s failure to make the claim earlier was likely a “tactical decision, initially, to pursue full attorney fees based on indemnity rather than present all of its alternative fee award theories at once.”

[HN17] The superior court’s finding that the Rock Gym waived a request for fees under Rule 68 is reviewed for clear error.⁷¹ We see no clear error here. The Rock Gym’s reference to its offer of judgment in its motion for attorney’s fees was made only to support its [*39] request for full fees under the indemnity provision of the release; the only alternative it expressly requested was an award of enhanced fees under Rule 82. As the superior court observed, it was not the court’s duty in this context “to solicit additional arguments for a moving party.”⁷² Nor was the superior court obliged to consider the Rule 68 argument when it was raised for the first time in motions for reconsideration.⁷³ And under the circumstances of this case, including the modest difference between fee awards under Rule 82 and Rule 68 and an apparent deficiency in the Rule 68 offer itself,⁷⁴ we cannot see plain error.⁷⁵

71 See Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).

72 See, e.g., Forshee v. Forshee, 145 P.3d 492, 498 (Alaska 2006).

73 See Haines v. Cox, 182 P.3d 1140, 1144 (Alaska 2008) (holding that the plaintiff’s submission of evidence only when she moved for reconsideration forecloses her claim that the court abused its discretion by failing to rely on that evidence); Koller v. Reft, 71 P.3d 800, 805 n.10 (Alaska 2003) (noting that superior court is not obliged to consider documents presented for the first time with a motion for reconsideration).

74 The offer did not encompass the Rock Gym’s counterclaim against Donahue for contractual indemnity. See Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1089 (Alaska 2008) (“Both Rule 68 and AS 09.30.065 . . . implicitly require that an offer of judgment include all claims between the parties and be capable of completely resolving the case by way of a final [*40] judgment if accepted.”).

75 [HN18] The plain error doctrine requires a party to prove that the error waived below was “so prejudicial that failure to correct it will perpetuate a manifest injustice.” Forshee, 145 P.3d at 500 n.36 (quoting Hosier v. State, 1 P.3d 107, 112 n.11 (Alaska App. 2000)) (internal quotation marks omitted).

V. CONCLUSION

The judgment of the superior court is AFFIRMED.

G-YQ06K3L262

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A climbing wall or a rope’s course are structures. The components already have ASTM standards the sole issue is whether or not they were put together properly.

Posted: April 15, 2014 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Climbing Wall, Zip Line | Tags: ASTM, ASTM International, Building, challenge course, Climbing, Climbing Wall, Contractor, Engineer, Inspections, Recreation, Ropes course | Leave a comment

Operations need special reviews, but the structure is nothing that different from the building it is in or close too.

I’m always asked to recommend a person to check out a ropes course or a climbing wall. These people are looking for someone who may be self-appointed, maybe knowledgeable, (or maybe not) a person who makes a living check these.

I rarely refer them to someone with that title in the industry. I first ask them if a local contractor or engineer as ever looked at their course.

The structures have a different purpose than the carpenter or engineers are used to, but the construction should not be.

We keep forgetting that climbing walls and rope’s courses are just structures no different from a building. Each of the components has an ASTM standard. An Engineer or contractor can check to see if it was constructed properly and what needs to be done to get it up to speed.

We forget that the foundation of any building or anything attacked to the building is engineering.

By whom and how often should you have your course inspected?

Any time you feel insecure about your course or wall or your insurance company requires it.

Who should inspect your course or wall?

An engineer or contract should inspect your course at least every couple of years or as the engineer or contractor tells you. You can bring in someone with the industry credentials in the other years or with them. You can have someone come in and look at your operation anytime.

I tell my clients to find another operator and trade days. Go check out their course on one day and have them check out your course on another day. That will spot issues you may have, and you probably will learn some new ideas. No use having “inspectors” only who knows new ways of doing things.

I would suspect that if you are part of a larger organization, a college, university or camp that the company or college engineer will tell you when and how often they want the structure inspected.

A bolt is a bolt, whether it holds up a wall or a climbing wall.

What do you think? Leave a comment.

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See Human error blamed for Grapevine climbing wall death

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So if you write standards, you can, then use them to make money when someone sues your competitors.

Posted: January 2, 2014 | Author: Recreation Law | Filed under: Climbing Wall | Tags: Alpine Tower, Climbing Wall, Expert Witness, Industry, Lawsuit, Standards | Leave a comment

I’m sort of speechless (but I can still type) about this whole thing. The amount of money lost in the lawsuit, the way the lawsuit was lost and now this article. The expert witness for the plaintiff seems not to be interested in protecting the industry.

This article describes a tragedy. A climber failed to clip into an auto belay. At the top of the climb she let go, falling to her death. What is the interesting, the article is not the results of the investigation into her death, it is the statements by the “expert” who is quoted.

“It is a well-known problem in the industry,” said [expert], who is a climbing gym owner in Virginia. He helped write industry safety standards, and provide expert witness testimony for people who are injured in gym accidents.

“My opinion is, yes, a gym has some responsibility to make sure that you’re warned and protected to some degree from yourself,” Hague said.

Maybe he was quoted wrong? However, I doubt it. He was an expert for the plaintiff in Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171 which cost the defendant $4.7 million. I wrote about this case in Plaintiff uses standards of ACCT to cost defendant $4.7 million.

What is going to happen if someone is injured in his gym? Do you believe any other gym owners will line up to testify about any breach of standards?

The expert may be correct about his assessment on whether the standards are breached. However, there are a lot of adages about messing around in your own industry.

His statement about the gym having a responsibility to make sure that you’re warned and protected to some degree from yourself……really? Maybe I don’t want you to protect me?

So how do you know that the person helping you write standards is not there to sue you over the standards that are being written? It happens. The playground industry has created standards so tough and expensive to meet it is cheaper to bull doze a playground than to meet the standards. See Playgrounds will be flat soon. However, that could be better for the kids. See An example of adults and money getting in the way of kids has fun.

This is another way that writing standards comes back to haunt you. You create experts who can then show that you are liable.

What do you think? Leave a comment.

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

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Sometimes you get screwed; here Petzl was shafted by the court.

Posted: December 30, 2013 | Author: Recreation Law | Filed under: Climbing Wall, New York | Tags: Climbing Wall, Defective Design, Failure to Warn, Gear Loop, Harness, Inc., Petzl, Petzl USA, Product liability, Sport Rock International, Town Sports International, Warning label | 1 Comment

In this product liability case, improper use of a climbing harness at a climbing wall led to a lawsuit. The injured climber was climbing at the gym and helped by an untrained employee. In this case, when a judge wants you to pay, you are going to suffer.

In this case, a manufacturer (Petzl) sold climbing harnesses to a climbing wall builder (Sport Rock International, Inc.) who sold a harness to a New York- climbing gym. A gym employee attached a beginner climber to the harness using a gear loop rather than the normal tie in points. The employee had little training and knew not to tie into the gear loop but accidentally did so. The beginning climber fell thirty feet when the gear loop ripped and was injured.

Anaya v Town Sports International, Inc., et al., 2007 NY Slip Op 7875; 2007 N.Y. App. Div. LEXIS 10819

Plaintiff: Joseph Anaya

Defendant: Town Sports International, Inc., et al., Sport Rock International, Inc., et al. (et al in this case means and others, including Petzl America, Inc.)

Plaintiff Claims: negligence and strict products liability (defectively designed and insufficient warnings)

Defendant Defenses:

Holding: mostly for the plaintiff

The plaintiff sued under theories of negligence and strict product’s liability. The strict product’s liability claims were for defective design of the harness and insufficient warnings on the harness. The warning issue was specifically for failure to warn of where the correct tie in point on the harness was located.

The climbing wall was also sued for negligence and product liability. The climbing wall settled with the injured plaintiff and was not part of this lawsuit. In this case, the climbing wall was a retailer because the harness, although not technically sold to a consumer, was moved into the consumer market by the climbing gym. In a product liability lawsuit, all entities in the chain of sale from the manufacturer to the consumer are brought into court.

The climbing wall and manufacturer filed separate motions for summary judgment, and the trial court granted the motions. The plaintiff appealed, and the appellate court reversed the decision of the trial court and sent the case back down for trial.

Summary of the case

To prove a case for product liability based on defective design in New York the plaintiff must prove “the product was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury….” This argument is similar to the proximate causation argument for a simple negligence claim; however, it is reversed. The plaintiff must prove he was injured first and that the cause of his injury was substantially caused by the design flaws of the product.

With respect to the first element — whether the product was not reasonably safe — the proper inquiry is “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner”

In balancing the product’s risks against its utility and cost, the following factors must be considered: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design”

This test is a little more reversed than you first might think about it. The reasonable man test is not that of the manufacturer but of someone in the community with the average knowledge and experience of a person in the community. For those things, we all know and understand such as driving, eating at a restaurant or going to a movie, the test makes sense. We understand how everything works and what we believe is best because we have experienced it.

However, for those activities or actions only practiced or experienced by a few, that test creates an education problem. You must educate the judge and the jury and convince them that the standard you are arguing is reasonable. This is difficult when they may have no idea what you are talking about.

This is a no-win test for the harness manufacturer because attempting to argue that more warnings would either defeat the use of the harness, defeat the ability to use the harness, or cost too much to create and attach to the harness is simply impossible to do. That means the test is comparing the cost of adding additional labels that warn of the risk of tying into a gear loop versus the potential for injury. The potential for injury is almost absolute, thus the manufacturer is going to fail that test 99 times out of 100 if not all the time.

For rock climbing, it is impossible to meet the test in most situations because so few people understand rock climbing. They have no experience in tying into a harness and climbing a wall. To many the whole concept is alien and scary.

While a few people who are not climbers may understand how a harness works, it is likely that knowledge will be based on work harnesses, which have no gear loops and can only be used one way. This difference alone leads to confusion and misunderstanding. If the government, OSHA, does not allow or require gear loops why did the climbing wall manufacturer have them on its harness. The harness is only seen as safety item, not as a way to haul gear and a chalk bag….as well as catch a fall.

The court made this conclusion.

Since the harness was undoubtedly meant to bear the weight of a climber, it was reasonably foreseeable that a climber might attempt to attach a safety line to various parts thereof and expect those parts to bear his weight.

Simple statement for the court to make. The harness is meant to catch the wear in a fall; therefore, all parts of the harness should be able to catch the wearer in a fall.

The manufacturers of climbing harnesses make the gear loops appear flimsy so that a climber would know not to tie into a gear loop. Whether this is an effective way to warn people that a gear loop is not meant to catch a fall was determined by the court to be a question of law to be determined by the jury. Consequently, the court had issues and did not reverse the trial court and sending the case back for trial.

The failure to warn argument was then reviewed by the court. The test of failure to warn is “A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known.”

Petzl warned about the gear loop in the manual. There was also a small label with a skull and crossbones on it, which directed the user to read the manual. The flaw in this situation is the harness had been sold to a climbing wall where it would be used by dozens of climbers, none the owner of the harness and none having access to the manual.

An expert witness for the plaintiff testified that the skull and crossbones label was insufficient to give rise to notice to the consumer of the risk of tying into the gear loop. Here again, the question of fact was one that had to be determined by a jury.

What makes this case so difficult to accept is, the gear loops and labels used by Petzl are standard in the industry. We, in the industry are used to the labels and understand them. Again, the test is not of someone in the industry but of a reasonable man walking down any street, in any town USA.

The defendants then argued that the employee of the climbing gym was an intervening person between the defendant’s acts (making and selling the harness) and the injury. However, the judge rejected this argument because the intervening act cannot be a defense if it is foreseeable that someone would tie into a gear loop.

The manufacturer admitted to knowing of other cases in which people tied into the gear loop of harnesses. This knowledge then eliminated the defense that the injury was unreasonably foreseeable. This test looks at whether or not the average person in the community could guess that a person would tie in incorrectly and whether this knowledge should have been known by the manufacture. Since the manufacturer knew of similar situations then it was foreseeable.

One of the issues that jumps out of this case in reading the decision, is the court wanted to use language that assisted the plaintiff or at least was incorrect. A perfect example was calling the belay rope the safety line.

So Now What?

If you are a manufacturer, you must make sure that your warnings are sufficient that people not associated with the industry can understand their meaning. Here the appellate court had probably never worn a harness and could not understand or see the risk the warning label was attempting to identify.

If believe your market is big enough, then selling a harness to beginners (climbing gyms) that is simple and requires no warning labels might work. With no opportunity to tie into anywhere but the one tie point you eliminate this need. However, you have also eliminated part of the market that wants to get a beginning harness that can grow as their experience does. I.e. a harness that has a gear loop.

Another way would be to eliminate the warnings found in the manual and permanently attach them to the harness. A laminated or plastic card could hang from the chalk bag loop and be obvious to any climber. Beginners are not going to worry about 10 grams of weight the warning card would add to the harness. Sell the harness only to climbing gyms or rope’s courses, etc. and supply a dozen cards with each harness. Require the purchaser to put a new card on the harness anytime a harness is found without one.

Another possibility is to create a more direct relationship between the manufacturer and the user. Not the consumer but climbing walls, zip lines, rope’s courses, and guide services, etc. This relationship, if contractual (and in writing) can say that for a discount, the parties will indemnify each other, follow the rules and consider the relationship a commercial transaction, not that of a consumer transaction.

Even though Petzl had the requisite warning label on its harness, and even though it is common knowledge among anyone with any experience as a climber tying into a gear loop is not safe (as the climbing gym employee did), Petzlbecame a party to the lawsuit once an appellate court decided that the warning labels on the harness, which have been used in several other industries, were not adequate to keep the harness manufacture out of court.

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.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

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Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

Posted: December 30, 2013 | Author: Recreation Law | Filed under: Climbing Wall, Legal Case, New York | Tags: Climbing Wall, Defective Design, Failure to Warn, Gear Loop, Harness, Inc., Petzl, Petzl USA, Product liability, Sport Rock International, Town Sports International, Warning label | Leave a comment

To read an Analysis of this decision see Before a meeting a volunteer leader has no duty to protect the youth. Besides kids throw snowballs.

Joseph Anaya, Plaintiff-Appellant, v Town Sports International, Inc., et al., Defendants, Sport Rock International, Inc., et al. Defendants-Respondents. Index 101027/03

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

October 18, 2007, Decided

October 18, 2007, Entered

COUNSEL: Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant.

Callan, Koster, Brady & Brennan, LLP, New York (Marc R. Wilner of counsel), for Sport Rock International, Inc., respondent.

Goldberg Segalla LLP, Mineola (Joanna M. Roberto of counsel), for Petzl America, Inc., respondent.

JUDGES: Friedman, J.P., Nardelli, Sweeny, McGuire, Malone, JJ.

OPINION

[**485] [***600] Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 24, 2006, which, to the extent appealed from as limited by the briefs, granted the separate motions of defendants Sport Rock International (Sport Rock) and Petzl America, Inc. (Petzl) for summary judgment dismissing the complaint as against them, unanimously modified, on the law, the motions denied with respect to plaintiff’s claims based on design defect and [***601] failure to warn, and otherwise affirmed, without costs.

Plaintiff sustained severe personal injuries when he fell from a height of approximately 30 feet while descending a rock climbing wall that was operated by defendant Town Sports International, Inc. of West Nyack (TSI). The accident occurred because an employee of TSI tied the safety line plaintiff was using to a non-weight bearing gear loop on the harness plaintiff was wearing; the line should have been tied to the “anchor point” of the harness. As plaintiff descended the wall the gear loop tore away from the harness, causing plaintiff’s fall. The harness was sold to TSI by Sport Rock and manufactured by Petzl.

Plaintiff asserts causes of action for, among other things, negligence and strict products liability. Plaintiff asserts that Sport Rock and Petzl are liable for his injuries because the safety harness was defectively designed and insufficient warnings were provided regarding where on the harness the safety line was supposed to be tied. Sport Rock moved for summary judgment dismissing the complaint and all other claims as asserted against it, and Petzl moved separately for similar relief. Plaintiff cross-moved for a special trial preference and to dismiss the affirmative defenses of Sport Rock and Petzl premised on [**486] the alleged absence of personal jurisdiction over those defendants. Supreme Court granted the motions of Sport Rock and Petzl, and denied plaintiff’s cross motion. Plaintiff appeals, as limited by his brief, from those portions [*2] of the order that granted the motions of Sport Rock and Petzl. ¹

1 Plaintiff settled this action with TSI.

Petzl’s argument that plaintiff failed to oppose its motion before Supreme Court and that plaintiff therefore lacks standing to maintain this appeal is without merit. Plaintiff expressly opposed the motions of Sport Rock and Petzl for the reasons stated by TSI in its opposition to the motions.

[HN1] To establish a prima facie case for strict products liability based on defective design, the plaintiff must show that “the product was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107, 450 N.E.2d 204, 463 N.Y.S.2d 398 [1983]). With respect to the first element — whether the product was not reasonably safe — the proper inquiry is “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” (id. at 108). In balancing the product’s risks against its utility and cost, the following factors must be considered: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design” (id. at 109).

Since the harness was undoubtably meant to bear the weight of a climber, it was reasonably foreseeable that a climber [***602] might attempt to attach a safety line to various parts thereof and expect those parts to bear his weight. In fact, both these defendants admitted that novice climbers had been known to attach safety lines to gear loops and other parts of the harness. Rather than designing the gear loop to be weight bearing, or omitting it from the design, Petzl decided to make it appear flimsy in the expectation that the user would not attempt to attach a line to it. Whether this decision was reasonable in view [**487] of the questionable utility of a gear loop on a harness used for indoor rock climbing and the serious risk posed is a question for the jury (Voss, 59 NY2d at 108-109; see also Denny v Ford Motor Co., 87 NY2d 248, 662 N.E.2d 730, 639 N.Y.S.2d 250 [1995]).

Triable issues of fact also exist regarding plaintiff’s cause of action for strict products liability based on failure to warn. [HN2] “A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known” (Liriano v Hobart Corp., 92 NY2d 232, 237, 700 N.E.2d 303, 677 N.Y.S.2d 764 [1998]). This rule applies with equal force to distributors and retailers (see Godoy v Abamaster of Miami, 302 AD2d 57, 754 N.Y.S.2d 301 [2003]). Foreseeing the potential that harness users might tie safety lines to gear loops, Petzl warned against such conduct. This warning appeared in the manual accompanying the harness and in a technical notice. A small label on the harness contained a “skull and cross-bones” symbol and directed the user to refer to the manual and technical notice. There is expert evidence, however, that these warnings were inadequate because no warning on the harness itself specifically advised against tying a safety line to the gear loop. Thus, the sufficiency of the warnings must be determined by a jury.

Contrary to the assertions of Sport Rock and Petzl, we cannot determine as a matter of law that the conduct of TSI’s employee was a superseding act.

[HN3] Where the acts of a third person intervene between the defendant’s conduct and [*3] the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, 414 N.E.2d 666, 434 N.Y.S.2d 166 [1980]).

Here, TSI’s employee testified that she knew the safety line was not to be tied to the gear loop. However, she did not know what purpose the gear loop served, and accidently tied the safety line to it. While it appears that this employee had minimal training on the proper use of the harness and had not read the manual or technical notice, the record does not permit a finding that the employee’s conduct was unforeseeable as a matter of law. The record is replete with evidence indicating the foreseeability of the risk that novice users of the harness (or for that matter other inexperienced persons such as the employee) might mistakenly tie safety lines to gear loops. Had the harness been [**488] designed without a gear loop or with a weight bearing gear loop, or had clearer warnings been on the harness itself, the accident may have been prevented. Accordingly, triable issues of fact exist regarding whether the alleged defective design [***603] of the harness, the alleged inadequate warnings, or both, was a substantial factor in causing plaintiff’s injuries (see id. [“Because [HN4] questions concerning what is foreseeable and what is normal may be the subject of varying inferences … these issues generally are for the fact finder to resolve”]).

Plaintiff’s remaining contentions are without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 18, 2007

Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)

Posted: August 26, 2013 | Author: Recreation Law | Filed under: Climbing Wall, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: Bacchiocchi v Ranch Parachute Club, Bouldering, Cause of action, Climbing Wall, Cornell University, education, Ithaca, New York, Release, Rock climbing, Supreme Court | 4 Comments

Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)

Decided and Entered: December 11, 2003

93723

[*1]Nadine Lemoine, Appellant, v Cornell University, Respondent.

Memorandum and Order

Calendar Date: October 15, 2003

Before: Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ.

Lo Pinto, Schlather, Solomon & Salk, Ithaca

(Raymond M. Schlather of counsel), for appellant.

Nelson E. Roth, Cornell University, Ithaca, for

respondent.

Cardona, P.J.

Appeal from an order of the Supreme Court (Mulvey, J.), entered January 2, 2003 in Tompkins County, which granted defendant’s motion to dismiss the complaint.

Plaintiff alleges that she sustained injuries on January 30, 2000, when she fell from the Lindseth Climbing Wall at defendant’s university during the first session of a seven-week basic rock climbing course offered by defendant’s outdoor education program. She had taken the same course eight years earlier, but had not taken any further instruction in the intervening years. Plaintiff registered, paid the tuition for the class, watched the orientation video describing safety procedures and signed a release holding defendant harmless from liability for, inter alia, any injuries caused by use of the climbing wall, including those caused by defendant’s own negligence. Plaintiff, as a climbing student, also signed a “Contract to Follow Lindseth Climbing Wall Safety Policies,” which included a promise that she would not climb above the yellow “bouldering” line without the required safety equipment. Prior to the accident, plaintiff, who was not wearing safety equipment, alleged that she was climbing with most of her body above the bouldering line. At the time, plaintiff and approximately 10 other students were under the supervision of two instructors. As she descended, instructor Michael Gilbert allegedly told her where to place her hands and feet. Plaintiff asserts that she lost her footing and fell to the floor [*2]below, which she described as “virtually unpadded.”[FN1] Thereafter, plaintiff commenced this action asserting negligence and gross negligence. Defendant moved to dismiss based upon the release and the safety contract, as well as a claim that plaintiff failed to set forth a cause of action [FN2]. Supreme Court granted defendant’s motion, prompting this appeal.

Plaintiff contends that the release and safety contract are void as against public policy by operation of statute, and, as a result, Supreme Court erred in granting defendant’s motion to dismiss. General Obligation Law § 5-326 states in pertinent part:

“Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”

The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F Supp 2d 92, 99 [1998]; McDuffie v Watkins Glen Intl., 833 F Supp 197, 202 [1993]). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370 [1994]), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145 [1985]), have been found to be outside the scope of the statute.

In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility (see Fusco v Now & Zen, 294 AD2d 466, 467 [2002]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175-176 [2000]; Baschuk v Diver’s Way Scuba, supra at 370). Difficulties arise in this area of law in situations where a person is injured at a mixed-use facility, namely, one which provides both recreation and instruction. In some cases, courts have found that General Obligations Law § 5-326 voids the particular release where the facility provides instruction only as an “ancillary” [*3]function, even though it is a situation where the injury occurs while receiving some instruction (see e.g. Bacchiocchi v Ranch Parachute Club, supra at 175-176; Wurzer v Seneca Sport Parachute Club, 66 AD2d 1002, 1002-1003 [1978]). In other mixed-use cases, courts focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, supra at 99).

Here, plaintiff points out that her enrollment in the class entitled her to a discounted fee rate in the event that she sought use of the climbing wall on nonclass days and, additionally, defendant allowed its students, alumni and graduates of the rock climbing course to use the wall as long as they paid the regular fee and watched the safety video. Consequently, plaintiff, citing Bacchiocchi v Ranch Parachute Club (supra), argues that since this facility is both recreational and instructional, General Obligations Law § 5-326 must apply. While it may be true that defendant’s facility is a mixed use one, given that defendant is unquestionably an educational institution, along with the fact that the brochure and course materials in the record indicate that the purpose of the climbing wall facility was “for education and training in the sport of rockclimbing,” it is apparent that any recreational use of the wall by nonstudents would be ancillary to its primary educational purpose (cf. Bacchiocchi v Ranch Parachute Club, supra). Furthermore, even focusing primarily on plaintiff’s purpose at the facility, it is undisputed herein that she enrolled in the course, paid tuition, not a fee, for lessons and was injured during one of her instructional periods (cf. Scrivener v Sky’s the Limit, supra at 281). Therefore, under all the circumstances, we find that Supreme Court properly found the statute to be inapplicable.

Having found that the release and safety contract were not voided by the statute, we now decide whether they are dispositive in this case (cf. Gross v Sweet, 49 NY2d 102, 107 [1979]). For example, the release unambiguously acknowledges, inter alia, the inherent risks of rock climbing and the use of the climbing wall, including the risk of injury from falling off the wall onto the floor below, which is what plaintiff describes as happening in this case. The release further holds defendant harmless from liability from any negligence, including that related to plaintiff’s supervised or unsupervised use of the wall. Given plaintiff’s signature and initials on these documents, we conclude that dismissal was proper.

Turning to plaintiff’s contention that, even if the statute is applicable, defendant’s motion to dismiss should not have been granted because the release and safety contract, standing alone, would not defeat a claim adequately alleging gross negligence (see Amica Mut. Ins. Co. v Hart Alarm Sys., 218 AD2d 835, 836 [1995]). Significantly, gross negligence is reckless conduct that borders on intentional wrongdoing and is “different in kind and degree” from ordinary negligence (Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, 297 AD2d 430, 431 [2002]; see e.g. Green v Holmes Protection of N.Y., 216 AD2d 178, 178-179 [1995]). Where a complaint does not allege facts sufficient to constitute gross negligence, dismissal is appropriate (see Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, supra at 431). Even assuming that plaintiff’s specific allegations are true, we agree with Supreme Court that they constitute only ordinary negligence and cannot survive the motion to dismiss.

The remaining arguments raised by plaintiff have been examined and found to be either unpersuasive or rendered academic by our decision herein.

Crew III, Carpinello, Rose and Lahtinen, JJ., concur.

ORDERED that the order is affirmed, with costs.

Footnotes

Footnote 1: The incident report form, which plaintiff disputes, states that she “decided to jump down.” Defendant’s employees also assert that the floor was padded and plaintiff was four feet from the ground at the time that she left the wall.

Footnote 2: We note that although defendant’s motion states that it is pursuant CPLR 3211 (a) (1) and (7), it appears from the language therein that it is also premised upon CPLR 3211 (a) (5).

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Louisiana does not allow the use of a release so great training of its patrons saved this climbing wall.

Posted: July 1, 2013 | Author: Recreation Law | Filed under: Climbing Wall, Louisiana | Tags: belay, Climbing, Defendant, Grigri, Indoor, Louisiana, Recreation, Rock climbing | 1 Comment

Education saves the day.

Ravey v. Rockworks, LLC, Et Al. 12-1305 (La.App. 3 Cir. 04/10/13); 2013 La. App. LEXIS 720

Plaintiff: Carl Ravey

Defendant: Rockworks, LLC, Colony Specialty Ins. Co.

Plaintiff Claims:

1. There is an increased duty to provide training and supervision when minors are involved in an inherently dangerous activity.

2. There are genuine issues of material fact regarding the adequacy of training received by the plaintiff party prior to engaging in a hazardous activity and regarding the adequacy of the supervision provided after training.

Defendant Defenses:

Holding: For the Defendant

The more you educate your guests the greater your success at a great trip and a win in court.

This case was based on a Civil Air Patrol Group (CAP) going to a climbing gym as part of its training. The CAP is composed of adults and minors; the plaintiff in this case was an adult in the group. The group went to the defendant’s climbing facilities as part of its training.

The participants paid the individual fees and then attended a 15-20-minute group training with an employee of the climbing wall. After the group training, the participants received training in pairs as belayer and climber. After that training, the belayer and climber were supervised. The plaintiff had climbed 5-6 times before he fell. The belayer was using a GriGri and held the brake open. The belayer released the break lever catching the plaintiff but not before he broke his leg.

The belayer for the plaintiff was 14 at the time of the accident.

The plaintiff brought a suit for negligence, which was dismissed after the defendant filed a motion for summary judgment.

Summary of the case

The first issue was whether the defendant owed the plaintiff a heightened duty of care because a minor was belaying him and/or because climbing is an inherently dangerous activity. The court then looked at what is required to prove negligence in Louisiana: “….a plaintiff must prove five separate elements: (1) duty, (2) breach, (3) cause-in-fact, (4) scope of duty/scope of risk, and (5) actual damages.”

The elements are basically the same as in any other state; they are just further identified and broken down into five requirements rather than the normal four in Louisiana. Most other states define negligence as duty, breach of duty, injury, damages proximately caused to the breach.

The court also explained the elements of duty in Louisiana.

Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law–statutory, jurisprudential, or arising from general principles of fault–to support his claim. The duty owed to an invitee “is that of reasonable and ordinary care, which includes the prior discovery of reasonably discoverable conditions of the premises that may be unreasonably dangerous, and correction thereof or a warning to the invitee of the danger

This duty necessarily includes a general responsibility to ensure that their members know how to properly use gym equipment.

The court did state that rock climbing is an “unreasonably dangerous activity” that requires a heightened duty upon the part of the gym owner. However, proof of that is evidenced of failing to provide the required supervision which has causation with the lack of supervision and the accident. Gyms are not the insurers of the safety of the patrons.

To prove negligence on the part of Rok Haus [defendant], Ravey [plaintiff] must show both a failure to provide reasonable training and supervision under the circumstances, as well as proof of a causal connection between this lack of reasonable training/supervision and the accident.

The defendant owed the plaintiff a duty of reasonable care. That was met, in the eyes of the court by the plaintiff.

The equipment was visually inspected prior to usage and was functioning properly after the incident. Ravey and Kelley [plaintiff and belayer] were given proper instructions on how to climb the wall and use the equipment properly. Ravey and Kelley were also observed using the equipment to lower climbers properly before they were allowed to climb and belay by themselves. During the time the group was climbing prior to the accident, two Rok Haus [defendant] employees observed the group to ensure they were using the gym’s equipment properly. Ravey made five or six successful climbs on the wall of the gym prior to the accident.

The next issue was whether the trainings the plaintiff and belayer received were adequate. Again, the court referred to the same set of facts.

The belayers must then operate the rope and the Grigri under the supervision of an instructor. After demonstrating an ability to belay the instructor, the belayers are allowed to belay volunteer climbers in the group under the supervision of the instructor.

This safety training session lasted approximately fifteen to twenty minutes. The members of the Civil Air Patrol group were individually instructed in safe climbing and belaying techniques and were observed operating the equipment properly before being allowed to climb and belay on their own. After receiving their safety training in the proper methods of belaying, Ravey, Kelley, and the rest of the Civil Air Patrol group climbed for forty-five minutes to an hour. During this time, two supervisors were present who observed the group to ensure that they were using the gym’s equipment properly. Ravey made five or six climbs on the wall prior to his accident.

The court stated that rock climbing involved substantial risk as a recreational activity. However, that risk was no different from weight lifting or swimming. The duty of the gym owner is to provide a “sound and secure” environment for undertaking any risk activity. There is no requirement to insure against any accident or injury.

The plaintiff could not point to any authority stating that a 14-year-old could not belay or any fact indicating the gym had not provided enough training. Consequently, the court upheld the dismissal of the complaint.

So Now What?

Here the climbing gym won because they had thoroughly trained the participants in climbing, belaying and the procedures of the gym. It also helped that the plaintiff had been belayed successfully 5-6 times prior to the incident which caused his injury.

The plaintiff also could not point out anything that the gym had done or failed to do that contributed to the injury. The training showed the participants how to belay; the belayer simply failed to use the belay device properly.

Education is what will save you. The more you educate your guests the more fun they will have. The more you educate your guests the safer they will be. The more you educate your guests the more prepared they will be. The more you educate your guests, the greater the chance you can prove you did not do anything wrong. The more you educate your guests the more you can prove your guests knew and undertook the risks.

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