Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Posted: July 15, 2013 Filed under: Legal Case, New York, Racing, Release (pre-injury contract not to sue) | Tags: 10 Kilometer Run, Inc., Maureen S. Bateman, Model Release, New York, New York City, New York Marathon, New York Roadrunners Club, New York Supreme Court, Perrier, Photo Release, Photograph Release, Plaintiff, Release, Sport Photo and EMS, Summary judgment Leave a commentTo Read an Analysis of this decision see: Is a Photo Release valid when it is in a Release?
Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Maureen S. Bateman, Plaintiff, against Sport Photo and EMS, Inc., Defendants.
No. 81 Civ. 4790 (MJL)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1983 U.S. Dist. LEXIS 15461
July 14, 1983
COUNSEL: [*1] J. DENNIS McGRATH, ESQ., 321 East 89th Street, New York, New York 10028, for plaintiff.
ROGERS & WELLS, 200 Park Avenue, New York, New York 10166, for defendants.
OPINION BY: LOWE
OPINION
MEMORANDUM OPINION AND ORDER
MARY JOHNSON LOWE, D. J.
This action, brought pursuant to New York Civil Rights Law Sections 50 and 51, was originally commenced in New York Supreme Court. The action was subsequently removed by the defendants to this Court. Plaintiff alleges that defendants used a photograph of her taken during the 1980 Perrier 10 Kilometer Run in New York Ciry, for advertising purposes, without her written consent, in violation of the above-mentioned statute. 1 Defendants have moved for summary judgment on the ground that plaintiff signed a release on her entry blank which gave the New York Roadrunners Club [“NYRRC”] and its assigns “full permission… to use any photographs, video tapes, motion pictures, recordings, or any other record of this event [the Perrier 10 Kilometer Run] for any legitimate purpose.” Defendants claim that NYRRC assigned the rights, acquired by virtue of plaintiff’s release, to Sportphoto for use in connection with Sportphoto’s business of soliciting [*2] mail order sales of photographs from contestants in competitive foot races.
1 Briefly stated, defendants’ business operates as follows. Defendants’ employees take photographs of runners as they participate in a race. Thereafter, defendants obtain the names and addresses of the participants from the sponsor of the race, and mail the participants “proof cards” of the photograph along with an offer to sell them a color copy of the photograph. During the course of the Perrier 10K defendants took plaintiff’s photograph, which was subsequently purchased by plaintiff’s husband. Plaintiff does not object to the sending of the proof card or the sale of her photograph to her husband. Rather, plaintiff objects to the use of her photograph as part of an advertisement of defendants’ Special Poster Offer”. Almost 6,000 copies of the Special Poster Offer, including plaintiff’s photograph, were printed and mailed to participants in the 1981 New York Marathon. (Evenson Dep. at 55).
Plaintiff argues that there are two major issues of material fact which preclude the granting of summary judgment in favor of defendants; first, whether plaintiff, by signing the so-called “release”, consented [*3] to the use of her photograph for advertising purposes unrelated to the event in which she was running; and second, whether there was a valid assigment by NYRRC to Sportphoto. The Court agrees that there are genuine issues of material fact in this case which render summary judgment inappropriate.
The parties’ dispute concerning the correct interpretation of the “release” centers around the use of the phrase “for any legitimate purpose”. Defendants argue that “legitimate” should be given its dictionary meaning, which would clearly encompass advertising and commercial purposes. Plaintiff responds, and the Court agrees, that the phrase should not be construed without reference to the “circumstances under which the entry blank was signed, and the purpose for which it was required – getting a number to run a race.” Plaintiff’s Op. Memo., at 20.
[HN1] The law is clear with respect to the interpretation of releases generally that their “meaning and coverage necessarily depend as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did [*4] not desire or intend to dispose of”. Cahill v. Regan, 5 N.Y.2d 292, 299, 184 N.Y.S.2d 348, 354, 157 N.E.2d 505, 510, quoted in Tarantola v. Williams, 48 AD 2 552 371 N.Y.S.2d 136, 139. The ultimate question in this case is whether, in light of all of the surrounding circumstances, the parties could reasonably have intended plaintiff’s signature on her entry blank to signify her consent to the use of her photograph for commercial purposes in connection with a different race a year and a half later; or whether, as plaintiff contends, the only use contemplated was promotional activity in connection with the race plaintiff was then entering. 2 The Court is convinced on the record before it that this question should be resolved by the trier of fact.
2 Plaintiff’s affidavit makes clear that if a photograph of her running in the Perrier 10K appeared in an article about that race, or if the sponsor of the race showed a video-tape of the race, in which plaintiff happened to appear she would deem those uses “legitimate” within the meaning of the release. Bateman Aff. P29.
This case is not, as defendants suggest, analagous to cases in which courts have broadly construed releases [*5] entered into by professional models and actors. Unlike the plaintiffs in those cases, who knowingly signed releases for commercial purposes in pursuit of their careers, the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace. What constitutes a “legitimate use” of an individual’s photograph may vary from one context to another. Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.
Plaintiff also claims that there is a genuine issue of material fact with respect to whether defendants were the assignees of whatever rights NYRRC obtained by virtue of the entry blank “release”. Plaintiff acknowledges that there was a verbal agreement in 1979 (and renewed thereafter), between NYRRC and defendants giving defendants the exclusive right to take photographs of runners at the Perrier 10K for subsequent mail order sale. However, she argues that this agreement did not constitute an “assignment” of any rights on the entry blank; nor did it contemplate the use of one runner’s photograph for advertising directed at other runners.
Defendants maintain that [*6] in construing the agreement between NYRRC and defendants, the intent of the parties is controlling. They argue that in this case, the intent of the parties has been explicitly set out in the affidavits of Mr. Lebow, president of the NYRRC, and Mr. Evenson, president of defendants. Both Mr. Lebow and Mr. Evenson state that NYRRC intended to assign defendants the right to use runners’ photographs for all legitimate purposes, including advertising in connection with defendants’ business of selling photographs by mail. It is defendants’ position that in light of these clear expressions of intent, the assignment issue should be resolved as a matter of law.
Plaintiff argues that the rest of the evidence, including portions of Mr. Evenson’s own deposition testimony, contradicts the statements of Mr. Lebow and Mr. Evenson with respect to their intent at the time the agreement was reached, and thus raises a triable issue of fact. For example, Mr. Evenson testified during his deposition that he and Mr. Lebow never discussed the language of the entry blank “release”, the assignment of rights under the entry blank “release”, or the use of a participant’s photograph in the manner challenged [*7] herein, during negotiations for the agreement.Mr. Lebow testified that he could not recall whether these issues had been discussed. Defendants respond that the parties need not have anticipated or discussed every specific application of the agreement so long as the agreement was sufficiently broad to encompass those applications.
We find that the plaintiff has raised questions of credibility and intent which, even where the evidence weighs strongly in favor of one side, are better left to the trier of fact.
For the reasons stated above, defendants’ motion for summary judgment is hereby denied.
It is So Ordered.
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Colorado Department of Transportation new Share the Road Campaign
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Hello Friends of the Colorado River!Ready for some summer fun?! Today we are launching a photo contest, the winner of which will receive a free raft trip through the Gates of Lodore on the Green River in Dinosaur National Monument!
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Release saves riding school, even after defendant tried to show plaintiff how to win the case.
Posted: July 8, 2013 Filed under: Assumption of the Risk, California, Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue) | Tags: CA, California, California law, correctly, Defendant, dismount, dive, Duty of care, equestrian, Equine, extreme departure, Gross negligence, Horse, horseback riding, inappropriate, Inc., inherently, instructor, Jim Moss, jumping, lesson, Manual, material fact, Mill Creek Equestrian Center, misconduct, Negligence, notice of appeal, Ordinary Negligence, Plaintiff, recommended, Release, rider, riding, ring, risks inherent, Sport, standard of conduct, Summary judgment, totally outside, training, triable issue, United States, willful Leave a commentAs an expert you just can’t state facts, you have to prove your facts.
Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218
Plaintiff: Nicole Azad
Defendant: Mill Creek Equestrian Center, Inc.
Plaintiff Claims: negligence and gross negligence
Defendant Defenses: Release
Holding: for the defendant
This is a horseback riding case. The plaintiff was a beginner rider taking lessons from the defendant. The defendant’s instructor placed her in the jumping ring for training. Another horse in the ring spooked, which spooked the horse the plaintiff was riding. The plaintiff’s horse jumped the ring fence. The plaintiff fell off breaking her leg.
The plaintiff had signed a release before starting the lessons. The release was well labeled stating on each page that it was a release. The release also had a notice right above the signature line indicating the signor was giving up their legal rights.
The release, however, specifically stated that it did not prevent claims for gross negligence.
The plaintiff sued for negligence and after getting educated by the defendant, for gross negligence. The trial court dismissed the case after the defendant filed a motion for summary judgment. The plaintiff appealed.
Summary of the case
On appeal the plaintiff claimed:
…there are material issues of fact regarding whether the release was clear and whether it exempted the challenged conduct. She also argues MCEC increased the risk to Azad beyond that inherent in horseback riding.
The court first looked at the validity of the release against a case argued by the plaintiff that found a release was insufficient. The court then only compared the release in this case to the arguments made in the case raised by the plaintiff.
The release was a two-page document. On the first page, it contained a titled, “LIABILITY RELEASE AND INDEMNITY AGREEMENT.” On all other pages, it stated, “RIDING INSTRUCTION AGREEMENT AND LIABILITY RELEASE FORM.” Above the signature line, there was a statement that the signer was aware of the legal issues and acknowledgement of the legal issues.
The court found the release worked to stop claims of ordinary negligence but not gross negligence.
The court then reviewed California law on the duty owed by instructors in sports.
By consenting to participate in a sport that includes risks, a person consents to assume the risks inherent in the sport. A person does not consent to a breach of a duty by another that increases the risks inherent in the sport. “‘[A] purveyor of recreational activities owes a duty to a patron to not increase the risks inherent in the activity in which the patron has paid to engage. . . .'”
A sports instructor must intentionally injury a student or engages in conduct that is totally outside the range of ordinary activity to be liable. Other than those two issues, the participant assumes the risk of the sport.
… a sports instructor breaches a duty of care only “‘if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity.’
In this case, the plaintiff had not raised any issues or facts, other than statements of the plaintiff’s expert witness who could support a claim of gross negligence. The plaintiff’s expert alleged the actions of the defendant were grossly negligent but did not demonstrate any facts showing an “extreme departure from the ordinary standard of conduct.” The court also pointed out the plaintiff stated the instructor was inadequately trained but not support her statement with proof.
The court in stating there was not proof of gross negligence stated:
Gross negligence is defined as “‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘” This definition is similar to the standard employed in Kahn – conduct totally outside the range of ordinary activity.
The court upheld the dismissal of the plaintiff’s complaint.
So Now What?
This release had 2 great points. The title and the heading on each page said this is a release. I’ve continuously stated that you cannot hide your release in other documents. It must be presented as a release to the signor and must plainly set forth the signor is giving up their legal rights.
However, don’t help the plaintiff sue you? Here the release said this document is no good if you prove I was grossly negligent. So what did the plaintiff need to do, prove gross negligence to win.
The facts of the case were pretty tame, and the injury to the plaintiff was relatively minor.
The court did look at what it would take to prove gross negligence from reviewing other cases. One was having a manual and showing an extreme departure from the manual.
If you write it down as the “way,” you better follow it.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor 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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Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218
Posted: July 8, 2013 Filed under: Assumption of the Risk, California, Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Release (pre-injury contract not to sue) | Tags: Appeal, Assumption of risk, Azad, Bruno, California Courts of Appeal, correctly, dismount, dive, equestrian, Equestrianism, extreme departure, Gross negligence, Horse, horseback riding, inappropriate, inherently, instructor, jumping, lesson, Los Angeles County Superior Court, Manual, material fact, misconduct, notice of appeal, Ordinary Negligence, recommended, rider, riding, ring, risks inherent, Sport, standard of conduct, Summary judgment, totally outside, training, triable issue, willful Leave a commentTo Read an Analysis of this decision see: Release saves riding school, even after the defendant tried to show the plaintiff how to win the case.
Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218
Nicole Azad, Plaintiff and Appellant, v. Mill Creek Equestrian Center, Inc., Defendant and Respondent.
B169611
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT
2004 Cal. App. Unpub. LEXIS 11218
December 13, 2004, Filed
NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.
PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC070887. Paul G. Flynn, Judge.
DISPOSITION: Affirmed.
COUNSEL: Law Offices of Diane Goldman and Diane Goldman for Plaintiff and Appellant.
Clinton & Clinton, David A. Clinton and Katherine M. Fesler for Defendants and Respondents.
JUDGES: COOPER, P. J.; RUBIN, J., FLIER, J. concurred.
OPINION BY: COOPER
OPINION
Appellant injured herself falling off a horse during a horseback riding lesson. In this appeal, she challenges the award of summary judgment entered in favor of the equestrian center. Reviewing the record de novo, we find Azad released all claims other than gross negligence and willful misconduct. She does not allege any willful misconduct. Because she provides no evidence of gross negligence, the trial court correctly entered summary judgment. We shall affirm.
FACTUAL BACKGROUND
[*2] The facts interpreted in the light most favorable to Azad indicate the following. On March 16, 2001, Nicole Azad, an inexperienced rider, had a private horseback riding lesson at Mill Creek Equestrian Center, Inc. (MCEC). Prior to her lesson, she signed a release of liability, which was part of a two page document. Each page of the release contained a heading identifying it as a release.
During Azad’s lesson, she rode a horse named Bruno and was instructed by Sandra Samel. Samel chose to hold the lesson in a ring known as the jumping ring even though it was not the ring commonly used for beginning lessons. At the same time as Azad’s lesson, other riders were in the jumping ring including Courtney Leonard. Leonard rode a horse named Dan, who had been injured. Leonard fell off Dan, and Dan started running. In response to Dan, Bruno started running. Azad was unable to gain control over Bruno. Samel did not instruct Azad to immediately dismount and did not grab Bruno’s reins. Bruno jumped the fence, which was not as high as the standard in the industry. Azad fell off Bruno and fractured her leg.
Azad’s expert, Jill Cooke, opined that the height of the railings in the jumping ring [*3] ranged from two to two and a half feet where industry standard was three and a half feet. Cooke also concluded that “separated schooling areas are recommended.” According to Cooke, Samel should have chosen a different ring for Azad’s lesson, one dedicated to inexperienced riders. Cooke also concluded that Samel should have instructed Azad to dismount Bruno and should have held Bruno’s reigns. Cooke opined that “Ms. Samel’s failure to act promptly and appropriately to protect her student thereby created new risk to [Ms. Azad], over and above those inherent in the sport.”
PROCEDURAL BACKGROUND
Azad filed a complaint for negligence against MCEC and alleged that MCEC committed both negligence and gross negligence. MCEC moved for summary judgment.
The trial court granted MCEC’s motion for summary judgment. The court found that Azad’s express waiver was valid and that the assumption of risk doctrine applied. Azad appealed. The notice of appeal was filed after the order granting summary judgment but before judgment was entered. Construing the notice of appeal liberally, we deem this an appeal from the judgment which was subsequently entered. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn 7.) [*4]
DISCUSSION
Azad argues there are material issues of fact regarding whether the release was clear and whether it exempted the challenged conduct. She also argues MCEC increased the risk to Azad beyond that inherent in horseback riding.
I. Express Assumption of Risk
Prior to her horse back riding lesson, Azad signed the following release:
“I agree that in consideration for this stable allowing my participation in this activity, under the terms set forth herein and in the MILL CREEK RULES AND REGULATIONS of which I received a copy, read, and understand, I the rider and the parent or legal guardian thereof if a minor, and on behalf of my heirs, administrators, personal representative or assigns, do agree to hold harmless, release and discharge MILL CREEK EQUESTRIAN CENTER, its owners, agents, employees, officers, directors, representatives, assigns, members, owner(s) of premises and trails, affiliated organizations, insurers, and others acting on its behalf (hereinafter collectively referred to as associates) of and from all claims, demands, causes of action and legal liability whether the same be known or unknown, anticipated or unanticipated, due to MILL CREEK [*5] EQUESTRIAN CENTER’S and/or its associates ordinary negligence; and I do further agree that except in the event of MILL CREEK EQUESTRIAN CENTER’S gross negligence and willful and wanton misconduct, I shall not bring any claims, demands, legal actions and causes of action against MILL CREEK EQUESTRIAN CENTER and ITS ASSOCIATES as stated above in this clause, for any economic and non-economic losses due to bodily injury, death, property damage sustained by me and/or my minor child and/or legal ward in relation to the premises and operations of MILL CREEK EQUESTRIAN CENTER to include while riding, handling, or otherwise being near horses owned by or in the care, custody and control of MILL CREEK EQUESTRIAN CENTER, whether on or off the premises of MILL CREEK EQUISTRIAN CENTER. I further understand that all riding engaged in at MILL CREEK EQUESTRIAN CENTER is solely at my own risk and that MILL CREEK EQUESTRIAN CENTER is not liable for any injury which may occur to me on its premises, whether bodily injury or otherwise. I further agree to release MILL CREEK EQUESTRIAN CENTER, its agents and employees from any and all liability for any injuries I may sustain while riding and agree to [*6] indemnify and hold MILL CREEK EQUESTRIAN CENTER harmless as to all claims, actions, damages, costs and expenses, including attorney’s fees, arising therefrom. [P] The aforesaid release and limitation of liability includes, without limitation, any obligations of MILL CREEK EQUESTRIAN CENTER with respect to consequential damage and negligent behavior of any of its employees. . . .” (Emphasis added.)
A. Validity of the Release
Citing Conservatorship of Estate of Link (1984) 158 Cal. App. 3d 138, 141-142, 205 Cal. Rptr. 513 (Link), Azad argues that the release is not enforceable because it is not readily identifiable as a release. In Link, the court found that a release should be distinguished from other paragraphs of the document; a release should be conspicuous; and a release must clearly convey that rights are being released. (Ibid.)
The release satisfies the Link criteria. It contains the title “LIABILITY RELEASE AND INDEMNITY AGREEMENT.” Each page of the two page document contains a heading which is printed in bold print and underlined “RIDING INSTRUCTION AGREEMENT AND LIABILITY RELEASE FORM.” Above the signature line, in a paragraph [*7] titled “signer statement of awareness,” there is an acknowledgment of understanding the liability release, which Azad signed. Unlike in Link, the release does not appear to be “calculated to conceal and not to warn the unwary.” (Link, supra, 158 Cal. App. 3d at p. 141.)
Azad claims that it is not clear “what conduct is exempted from liability.” She faults the release for “simultaneously purporting to encompass claims based upon [ordinary negligence] and excluding claims based upon [gross negligence].” Azad points out that, in Continental Ins. Co. v. American Protection Industries (1987) 197 Cal. App. 3d 322, 242 Cal. Rptr. 784, a case not involving a release, the court held “in light of the adoption of the doctrine of comparative negligence in California, any attempt to categorize gross negligence separately from ordinary negligence is unnecessary.” (Id. at p. 330.) Continental Insurance Co., however, did not hold that the distinction between ordinary and gross negligence never is relevant or is inherently ambiguous. To the contrary, it recognized that the distinction remained viable where a statute proscribes gross negligence. [*8] (Id. at p. 329.) The express contractual provision distinguishing between ordinary and gross negligence is not inherently ambiguous.
Thus, the release covers conduct other than gross negligence and intentional misconduct. 1 Azad does not allege intentional misconduct. In the next section, we consider whether Azad has provided any evidence of gross negligence.
1 MCEC argues that the “Release was specific enough to warn Appellant, and to convey that Respondents would not be held liable for any physical injury to Appellant.” While the release discusses liability for “any injury” it expressly excludes “gross negligence and willful and wanton misconduct.”
II. Implied Assumption of Risk
By consenting to participate in a sport that includes risks, a person consents to assume the risks inherent in the sport. (Knight v. Jewett (1992) 3 Cal.4th 296, 311.) A person does not consent to a breach of a duty by another that increases the risks inherent in the sport. (Ibid.) [*9] “‘[A] purveyor of recreational activities owes a duty to a patron to not increase the risks inherent in the activity in which the patron has paid to engage. . . .'” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1005 (Kahn).)
In Kahn, supra, 31 Cal.4th at p. 996, our high court considered the doctrine of assumption of the risk in the context of a lawsuit against a swimming instructor. The court held that a sports instructor breaches a duty of care only “‘if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity.'” (Ibid.) The court further found evidence of reckless conduct sufficient to raise a triable issue of material fact where a swim coach required a student to dive into a shallow pool without providing her any training, after promising she would not be required to dive. (Id. at p. 996.) The court specifically relied on the following evidence: “the lack of training in the shallow-water dive disclosed by plaintiff’s evidence, especially in the face of the sequences training recommended in the [*10] Red Cross manual submitted by plaintiff; the coach’s awareness of plaintiff’s deep-seated fear of such diving; his conduct in lulling her into a false sense of security through a promise that she would not be required to dive, thereby eliminating any motivation on her part to learn to dive safely; his last-minute breach of that promise under the pressure of a competitive meet; and his threat to remove her from the team or at least the meet if she refused to dive.” (Id. at p. 1012.)
Here, Azad has alleged gross negligence on the part of both her instructor and the equestrian center. Gross negligence is defined as “‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186, quoting Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 138, 181 Cal. Rptr. 732.) This definition is similar to the standard employed in Kahn – conduct totally outside the range of ordinary activity. Therefore, we consider whether Azad has provided any evidence of an extreme departure from the ordinary standard of conduct. [*11] 2
2 Both parties cite numerous cases decided under an ordinary negligence standard, including this division’s decision in Giardino v. Brown (2002) 98 Cal.App.4th 820. We need not assess the applicability of these cases in light of Kahn because here Azad expressly released claims of ordinary negligence.
Azad relies almost exclusively on evidence from her expert, Cooke. However Cooke’s testimony does not demonstrate an extreme departure from the ordinary standard of conduct. Cooke states that the railing should have been higher, it was “recommended” that a ring be used for only one lesson, the choice of rings was “inappropriate,” and Samel’s response was “inappropriate.” Samel should have “immediately had her student dismount.” Cooke also states that Samel was “inadequately trained,” but provides no basis for this conclusion. Thus, this case is not like Kahn, where the plaintiff provided an established training manual and showed an extreme departure from this manual in that there was [*12] evidence she received no training at all. Because Azad identifies no extreme departure from the ordinary standard of conduct, she fails to raise a triable issue of material fact. The trial court correctly entered summary judgment in favor of MCEC. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
DISPOSITION
The judgment is affirmed.
COOPER, P. J.
We concur:
RUBIN, J.
FLIER, J.
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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 Filed under: Climbing Wall, Louisiana | Tags: belay, Climbing, Defendant, Grigri, Indoor, Louisiana, Recreation, Rock climbing 1 CommentEducation 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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Ravey v. Rockworks, LLC, Et Al. 12-1305 (La.App. 3 Cir. 04/10/13); 2013 La. App. LEXIS 720 (La. App. 2013)
Posted: July 1, 2013 Filed under: Climbing Wall, Legal Case, Louisiana | Tags: Civil Air Patrol, Grigri, Louisiana, United States district court, University of Louisiana Leave a commentRavey v. Rockworks, LLC, Et Al. 12-1305 (La.App. 3 Cir. 04/10/13); 2013 La. App. LEXIS 720
Carl Ravey v. Rockworks, LLC, Et Al.
12-1305
Court of Appeal of Louisiana, Third Circuit
12-1305 (La.App. 3 Cir. 04/10/13); 2013 La. App. LEXIS 720
April 10, 2013, Decided
NOTICE:
THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.
PRIOR HISTORY: [*1]
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. C-20113689. HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE.
DISPOSITION: AFFIRMED.
COUNSEL: Michael J. Remondet, Jr., Jeansonne & Remondet, Lafayette, LA, COUNSEL FOR DEFENDANTS/APPELLEES: Rockworks, LLC, Colony Speciality Ins. Co.
Kilyun Luke Williamson, Williamson, Fontenot & Campbel, Baton Rouge, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS: Carl Ravey.
JUDGES: Court composed of John D. Saunders, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
OPINION BY: JOHN D. SAUNDERS
OPINION
SAUNDERS, J.
This case involves a suit by the patron of a rock climbing facility against the facility for negligence in training and supervision. The trial court granted the facility’s motion for summary judgment and dismissed the suit. We affirm.
FACTS AND PROCEDURAL HISTORY:
On August 14, 2010, Plaintiff-Appellant, Carl Ravey (“Ravey”), as a mentor for youth, was visiting Lafayette, Louisiana with the Civil Air Patrol, which operates out of Ascension Parish, Louisiana. The Civil Air Patrol is comprised of children aged twelve to eighteen. The group was in Lafayette for a training exercise at the University of Louisiana at Lafayette. While in Lafayette, the group of sixteen young men and [*2] women, with their adult chaperones, and with a Civil Air Patrol Unit from Hammond, Louisiana, visited Rok Haus to use the climbing facilities.
Upon their arrival, the participants paid their individual fees and initiated a group safety training exercise with Adelle Anderson (“Anderson”), one of the employees at Rok Haus that evening. The attendees received training and instruction on climbing safety and the safe use of climbing equipment in a fifteen to twenty minute safety meeting known as a “belay check.” Every climber at Rok Haus is harnessed and equipped with a safety rope, which is attended to and operated by a “belayer,” who controls the safety rope through a locking device known as a Grigri. The belayer’s job is to look after the climber’s ropes and to operate the Grigri. In order to release the rope to allow a climber to descend, the belayer must pull a lever on the side of the Grigri.
Following safety training, Ravey began to climb the rock wall while tethered to his belayer, David Kelley (“Kelley”), a fourteen-year-old member of the Civil Air Patrol. The group climbed for approximately forty-five minutes when Ravey, [Pg 2] upon reaching the top of the wall, a distance of approximately [*3] twenty to twenty-four feet from the ground, fell almost all the way to the ground. He was partially suspended, but fell far enough such that his leg impacted the floor and was injured. As Ravey fell, the safety rope fed freely through the locking device indicating that Kelley was holding the lever in the open position. When Kelley released the lever, the Grigri locking device engaged and the rope arrested Ravey’s fall, but Ravey’s leg had already made contact with the floor and was injured.
Ravey brought this action alleging negligence on the part of Rok Haus and its affiliates/insurer. Rok Haus filed a motion for summary judgment alleging no duty was breached on the part of Rok Haus and that there was no genuine issue of material fact so judgment was proper as a matter of law. The trial court granted the motion for summary judgment and dismissed Ravey’s claims. Ravey appeals.
ASSIGNMENTS OF ERROR:
Ravey sets forth the following assignments of error:
1. The trial court erred in granting the motion for summary judgment as there is an increased duty to provide training and supervision when minors are involved in an inherently dangerous activity.
2. The trial court erred in granting the motion [*4] for summary judgment as there are genuine issues of material fact regarding the adequacy of training received by the Ravey party prior to engaging in a hazardous activity and regarding the adequacy of the supervision provided after training.
LAW AND ANALYSIS:
Standard of Review
[HN1] When an appellate court reviews a district court’s judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is [Pg 3] appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638.
[HN2] A motion for summary judgment shall be granted when “the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966. “[I]f reasonable persons could only reach one conclusion, then there is no need for trial on that issue and summary judgment is appropriate.” [*5] Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765-66 (quoting Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751). A fact is “material” when “its existence or nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery.” Smith, 639 So.2d at 751.
1. Heightened Duty
The first issue raised on appeal deals with the issue of negligence on the part of Rok Haus. [HN3] In order for liability to attach under a duty-risk analysis, 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. Pinsonneault v. Merch. & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270.
[HN4] “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.” Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 292 (La.1993). 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, [*6] and correction thereof or a warning to the invitee of the danger.” Alexander v. Gen. Acc. Fire & [Pg 4] Life Assur. Corp., 98 So.2d 730, 732 (La.App. 1 Cir. 1957). “[M]embers of [gyms] are owed a duty of reasonable care to protect them from injury on the premises.” Thomas v. Sport City, Inc., 31,994 (La.App. 2 Cir. 06/16/99), 738 So.2d 1153, 1157. “This duty necessarily includes a general responsibility to ensure that their members know how to properly use gym equipment.” Id.
Ravey argues that rock climbing at Rok Haus is an unreasonably dangerous activity such that it requires a heightened duty. In support of this argument, he cites Prier v. Horace Mann Ins. Co., 351 So.2d 265 (La.App. 3 Cir. 1977), writ denied, 352 So.2d 1042 (La.), where the court found that a greater degree of care must be exercised by a school if a student uses an inherently dangerous object or engages in an activity where it is reasonably foreseeable that an accident or injury may occur.
In Prier, the court stated that [HN5] a teacher could not be “liable in damages unless it is shown that he or she, by exercising the degree of supervision required by the circumstances, might have prevented the act which caused the damage, [*7] and did not do so.” Prier, 351 So.2d at 268. “It is also essential to recovery that there be proof of negligence in failing to provide the required supervision and proof of a causal connection between that lack of supervision and the accident.” Id. It further explained:
Again, the school board cannot foresee and guard against all the dangers incident to the rashness of children. It is not the insurer of the lives or safety of children. The school board, through the principals and/or the teachers, are expected to take reasonable precautions and care to avoid injury to the students.
Id at 269 (quoting Whitfield v. East Baton Rouge Parish Sch. Bd., 43 So.2d 47 (La.App. 1 Cir. 1949)).
[HN6] As with school boards, gyms are not the insurers of the lives or safety of the patrons of the club. See Gatti v. World Wide Health Studios of Lake Charles, Inc., [Pg 5] 323 So.2d 819 (La.App. 2 Cir. 1975). A gym cannot be expected to foresee or guard against all dangers incident to the rashness of its patrons. Furthermore, the gym must only take reasonable precautions under the circumstances to avoid injury. To prove negligence on the part of Rok Haus, Ravey must show both a failure to provide reasonable training [*8] and supervision under the circumstances, as well as proof of a causal connection between this lack of reasonable training/supervision and the accident.
As a gym, Rok Haus owed a duty of reasonable care under the circumstances. The equipment was visually inspected prior to usage and was functioning properly after the incident.1 Ravey and Kelley 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 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.
1 The particular Grigri (hand brake) in question remained in use for approximately one year after the incident.
It cannot be said that Rok Haus acted unreasonably in training its patrons on the proper use of the climbing equipment and in assisting the patrons with the equipment. Rok Haus employees provided the usual training to Ravey and his belayer. The employees observed them [*9] using the equipment properly before allowing them to climb on their own. The Rok Haus employees also continued to supervise the climbers after training. There is no evidence that the measures taken by Rok Haus’ employees to protect its patrons were inadequate under the circumstances and that a lack of supervision/training caused the accident. There [Pg 6] has not been a showing of both a failure to provide proper supervision and training along with a causal link to the incident in question. As such, there is no evidence that Rok Haus breached its duty of as a gym owner. Because the first element of negligence has not been sustained, the other four will not be addressed.
2. Adequacy of Training & Supervision
The final issue raised on appeal is whether there is a genuine issue of material fact as to the adequacy of training and supervision provided by Rok Haus. The existence of evidence as to inadequacy of training and supervision is essential to plaintiff’s cause of action. Without evidence as to said inadequacy, summary judgment was proper. See La.Code Civ.P. art. 966.
Rok Haus mandates a “belay check” safety session before any patrons climb the rock walls. During the belay check, the [*10] patrons are assisted with donning their harnesses and fastening themselves to the safety ropes. When a patron is climbing the wall, he is attached to a rope that runs up to a pulley anchored to the ceiling. From the pulley, the rope runs down to the belayer. The belayer wears a harness which is anchored to the floor and attached to the Grigri, through which the rope from the ceiling pulley runs. The function of the Grigri is to clamp the rope if the climber should fall. It is designed such that it is automatically clamps the rope if there is a sudden pull on the rope. In order to feed slack to the climber so that he may descend, the belayer must manually pull a lever to release the clamp on the rope.
The members of the Civil Air Patrol were instructed in pairs. Ravey and Kelly were given instructions on how to climb the wall and use the equipment properly. When climbing higher than ten feet along the wall, as Ravey was doing, climbers and belayers are required to wear harnesses attached to a safety rope. After instructions and assistance in donning the protective gear, the climber and [Pg 7] belayer were instructed in the proper method of belaying. Thereafter, the belayers handle the [*11] ropes under the instructors’ supervision.
Once the instructor determines the belayer can handle the safety ropes correctly, the belayers are instructed in the proper procedure for lowering a climber. 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.
There is no evidence to suggest that Rok Haus did not act reasonably in training [*12] its patrons on the proper use of the climbing equipment and in assisting the patrons in donning the equipment. Each patron who belays (operates the safety control device, the Grigri, and controls the safety rope) is personally instructed on the proper belaying techniques and is observed to ensure that the patron is capable of operating the equipment correctly before they are allowed to belay on their own. Furthermore, after completion of the safety check and practice, the climbers remained under the supervision and watch of two supervisors. The absence of evidence as to the material facts of inadequate training and inadequate supervision [Pg 8] makes summary judgment appropriate. As such, summary judgment as to the adequacy and training and supervision was proper.
We note that 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 risk associated with these and other physically-challenging sports are well recognized. [HN7] The duty on the gym operator, when these types of sports are conducted, is that of providing a sound and secure environment for undertaking [*13] a clearly risky form of recreation and not that of removing every element of danger inherent in rock climbing, weight lifting, or swimming. The duty imposed on the gym is one of reasonable care under the circumstances. Ravey focuses on the age of the boy holding the rope and argues that he should have been given more training because of his age. However, Ravey points to no authority suggesting that fourteen year olds are not adequately mature to perform this kind of activity or that the training was inadequate in this instance. The record contains no evidence to suggest the training was inadequate or that a person of fourteen years would need more training than was given to teach him to perform. It is this total absence of evidence that drives the summary judgment process and, in this case, compels affirmation.
CONCLUSION:
The record contains no evidence to suggest that the duty of Rok Haus to provide training and supervision was not done reasonably under the circumstances. Furthermore, there is no genuine issue of material fact as to the adequacy of training received by the Ravey party prior to engaging in climbing and regarding the adequacy of the supervision provided after training.
Costs [*14] of this appeal are assessed to Ravey.
AFFIRMED
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States that allow a parent to sign away a minor’s right to sue
Posted: June 26, 2013 Filed under: Alaska, California, Colorado, Delaware, Minnesota, Minors, Youth, Children, North Dakota, Ohio, Release (pre-injury contract not to sue) Leave a commentIf your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
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An example of adults and money getting in the way of kids has fun
Posted: June 25, 2013 Filed under: Minors, Youth, Children | Tags: AdventureTravel, Attorney at law, Jim Moss, Kids, minors, Organized Sports, playgrounds, RecreationLaw, Ropes course, Swing sets Leave a commentIf more playgrounds were like this, more kids would be outside and more adults would be happier.
What happens when adults tell kids how to have fun. You get structure, organization, injuries and lawsuits. You get budgets and planning and rules. What do
Two playground sets at Hudson Springs Park in Hudson, Ohio. \
kids get…..not much!
Read this article. Tear Down the Swing Sets
It looks at what happens when you allow kids to play with each other without structure, without rules, without “equipment.” Some of the studies looked at kids playing with sand or foam blocks and having more fun than any kids have with playground equipment.
When was the last time you looked at kids playing on a playground and came up with a thought like this? “These children are intent, they are cooperative, they are resourceful.”
However, with so much “adult,” community planning and legal involvement we ended up with this.
Then the grownups got skittish. Down came the merry-go-rounds and the jungle gyms, and in their place, a landscape of legally-insulated, brightly-colored, spongy-floored, hard-plastic structures took root. Today, walking onto a children’s playground is like exiting the interstate: Regardless of where you are, you see the exact same thing.
The article also looks at keeping kids safe and finds that does not work. 1. It is not possible and 2 it does not help kids to grow and mature. Kids need to know, experience and understand risk. The head of England’s Royal Society for the Prevention of Accidents said, “…children should be exposed to a certain degree of risk, not because an activity is risky per se but because it is fun, exciting, and challenging.”
This is awesome.” Kids who are bored stay inside and staying inside is ultimately far worse for your health than a broken arm.”
Kids need to be kids to learn about risks, to have fun and to grow. That does not require the intervention, direction or control of adults.
English: Kids playground (Photo credit: Wikipedia)
For Similar Articles about this:
This article takes a real look at the risks parents allow their children to face http://rec-law.us/Zwk2yp
What do you think? Leave a comment.
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Plaintiff tried multiple ways to sue whitewater rafting company
Posted: June 24, 2013 Filed under: Assumption of the Risk, Maryland, Whitewater Rafting | Tags: Boat, Common Carrier, Failure to Rescue, Federal Rule of Evidence, first aid, Laurel Highlands River Tours, MARYLAND, MD, Paddling, Raft, Raft guide, Recreation, Whitewater Rafting Leave a commentPlaintiff premises claims do not apply to a whitewater rafting company.
Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)
Plaintiff: James A. Sanders
Defendant: Laurel Highlands River Tours, Incorporated; Laurel Highlands River Tours of Maryland, Incorporated
Plaintiff Claims: (1) he properly presented a “failure to warn claim”; (2) Laurel was strictly liable as a common carrier; (3) the district court abused its discretion in refusing to permit him to supplement the medical expert’s affidavit; (4) the district court erred in finding that the original affidavits were insufficient; and (5) the district court erred in finding that he failed to offer proof from which a reasonable jury could find Laurel negligent in failing to rescue him sooner
Defendant Defenses: no duty to warn Sanders of the dangers of the white-water rafting trip; that he failed to produce evidence that Laurel breached a duty to rescue him at the earliest opportunity; and that he failed to establish causation as to his claim that Laurel failed to adequately treat his injury
Holding: for the defendant
The plaintiff in this case went whitewater rafting previously with the defendant. During his second trip, he fell out of the raft injuring his knee. He later developed a staph infection from the injury. Cases where the plaintiff argues the first aid care was improper or negligent are extremely rare. However, the court rules on a technicality that throws out the plaintiff’s first aid claim and does not provide us with any direction in this area of the law.
During the trip, the plaintiff fell out of the raft and swam about 100 yards until he was rescued. During the swim, he was injured when he struck his knee on something. An employee of the defendant applied an ice bag and an elastic bandage on the trip. The Plaintiff eventually went to a hospital where he was diagnosed with a laceration and a fractured knee cap. The plaintiff later had surgery but developed a staph infection.
The plaintiff asserted the raft guide had the opportunity to rescue him but “the raft guide instructed his companions not to attempt to retrieve him until they got to calmer water.”
The plaintiff filed suit claiming, “that Laurel breached a duty to warn him of the dangers of rafting and that Laurel failed to rescue him at the earliest opportunity. His main claim, as the district court perceived it, was that Laurel failed to render proper first aid, and this was the cause of his subsequent infection.”
Summary of the case
The Plaintiff was a citizen of Alabama. The defendant raft company was located in Pennsylvania. The river where the accident occurred is the upper Youghiogheny in Maryland. The plaintiff sued the defendant in Federal District Court. The parties agreed that a Maryland court, the state where the accident occurred was the proper site for the venue of the case.
This section of the Youghiogheny was described by the court as “most difficult of all categories of river runs.” The court made that determination by using a book that describes the rivers and ratings in the east. The court is silent on how this book was accepted by the court and introduced into evidence.
Most books like this are brought into the evidentiary change through the Federal Rule of Evidence (F.R.E.) 803(18) Learned Treatises. The rules of evidence control what evidence is introduced at trial both as documents or things and what witnesses may say. F.R.E. 803(18) states:
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
Normally, the rules of evidence require a person to prove the document or book as what the evidence is, and that it is real. If you were trying to introduce the raft company brochure as a piece of evidence, you would have to have the owner or a corporate officer of the company on the stand and testify that the brochure was the brochure.
A Learned Treatise is different in two ways. The first is you do not need the author or the publisher to admit the treatise, the book into evidence. If the treatise is relied upon by an expert witness, testified as a reliable authority in the field or recognized as the authority by the court or the general public, the information in the treatise is accepted in the case. The second issue is everything in the treatise is accepted without additional testimony. Normally, it might take two or three experts to examine a river section and applying the American Whitewater Associations rating system determine the river rating. However, a book that is generally accepted in the whitewater community or by a recognized expert in the field is accepted by the court as a learned treatise under F.R.E. 803(18). Once the book is admitted, every page and statement in the book is admitted.
An important point in most recreational cases is what information the plaintiff had to assist him in his decision to engage in the sport. If the information is lacking the plaintiff introduces the evidence to prove the defendant was hiding things or did not give proper notice of the release or the dangers. If the brochure does a good job of pointing out the risks and the requirements, the defense introduces the brochure into trial. In this case, the plaintiff was mailed a brochure by the defendant. The brochure was reviewed by the court, and the Court pointed out three points in the brochure.
1) Although we spare no effort to assure you a safe trip, it must be understood that whitewater rafting does include some danger. We can assume no responsibility for personal safety . . . . We will ask that you sign a liability form.
2. Experience is a must everyone in your group should have rafted the Cheat [a river classified as lower in difficulty than the upper Youghiogheny] several times at various water levels.
3. Upper Youghiogheny – advanced to expert level. The upper Youghiogheny . . . is the ultimate challenge in white-water rafting.
The defendant also gave the trip participants a safety talk, oral warnings as the court described them at the meeting point and at the river put in. The plaintiff denies hearing the warnings. However, the court referenced the warnings in the opinion giving credibility to them. Finally, the plaintiff signed a release for this trip; the second release signed by the defendant, which the court quoted from:
As a condition of acceptance, I certify that I am an able swimmer, in good health, and understand the sport of white-water rafting. I further understand the potential hazards of the sport of white-water touring and realize that I could fall out of the raft or even capsize in a raft in rough water (rapids). I realize this could possibly result in serious injury. I relieve and save harmless Laurel Highland River Tours, Inc., their Directors, Officers, Stockholders, Employees and Helpers, of any responsibility for all claims of any nature whatsoever . . . .
Failure to Rescue
The Appellate court adopted the District Court’s analysis and finding regarding the claim that the defendant was not rescued quickly. Because the only testimony about whether the rescue was quick enough was the plaintiff’s there was no proof to validate the claim. The court stated an expert witnesses needed to testify that the plaintiff should have been rescued sooner. The plaintiff’s statements were insufficient under Maryland law to prove a claim of negligence.
This claim and the court’s review did not investigate the issue of keeping the majority safe at the expense of one. In a raft and in some cases on a mountain, the guide must evaluate the risk of the rescue to the entire boat, not to the swimming customer. If rescuing the one customer in the river will put the entire boat at risk, the customer will swim a while longer. This point must be made and explained to your guests both in writing and in any safety talk. It is important for the customer in the water to know that their rescue is up to them. It is important for the people in the boat to understand they have to get the boat to a safe area and then rescue so they do not risk themselves needlessly or just quit paddling believing they should grab the swimmer.
Negligent in failing to render first aid.
The claim of negligently failing to properly render first aid is an extremely rare claim. The court again looked at the evidence presented and ruled the evidence was insufficient to meet a claim of negligence; “that the medical evidence failed to show that the infection was caused by improper first aid.” By this court the court stated, there was nothing but the plaintiff’s allegations about how he was injured. Courts want expert testimony from people in the field to rule on scientific, technical or areas of information outside of the general knowledge of the public.
Failure to Warn
The plaintiff argued that the defendant failed to “warn Sanders [the plaintiff] of the extreme danger of the particular section of river they would be traversing.”
The court first examined whether there was a general duty to warn in a non-landowner liability case. The court found that a general duty to warn exists in numerous situations. The court used the example that a stable had a duty to warn a rider of a horse with dangerous propensities.
To establish a duty to warn, the court must look at the following factors: “foreseeability and certainty of harm; policy of preventing harm; closeness of connection between conduct and harm; moral blame; burden on defendant; and insurability.” Looking at the factors the court determined that “A white-water outfitter who arranges and guides customers on rafting trips owes a general duty of care to its customers. The general duty may require, in some circumstances, that Laurel provide a warning to its patrons.”
The warnings that the defendant gave the plaintiff were adequate as a matter of law according to the court. Warnings only need to be reasonable, not the best warnings possible. The court also found the plaintiff had notice of the risks because he had taken a prior whitewater rafting trip and because the risks of whitewater rafting are obvious: “…the general danger of white-water rafting is a risk apparent to anyone about to embark on such a trip.”
Finally, the court determined that the plaintiff’s claim that whitewater rafting was a common carrier, and thus due to a higher standard of care was without merit. By this the court meant, there was no legal or factual basis to discuss the issue.
So Now What?
There is no real information you can take from this case that we have not previously discussed. However, it does show how far some plaintiffs will go to get around and sue for an injury. The defendant had done a good job of putting out to the public information on the risks of the activity which allowed the court to make the decisions to deny the plaintiff’s claims.
Other Common Carrier Cases
WA Zip line lawsuit dismissed because the plaintiff admitted he should have understood the risk http://rec-law.us/L3IfG1
Electronic release upheld in Florida federal court for surfing on a cruise ship http://rec-law.us/LPSLWS
New Hampshire season pass release protects ski area from claim for injury due to snowmobile accident http://rec-law.us/XaQSpf
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Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)
Posted: June 24, 2013 Filed under: Assumption of the Risk, Legal Case, Maryland, Whitewater Rafting | Tags: Common Carrier, Failure to Rescue, first aid, Laurel, Laurel Highland, Laurel Highlands River Tours, MARYLAND, MD, Raft, United States Court of Appeals, Whitewater Rafting, Youghiogheny River Leave a commentSanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)
James A. Sanders, Plaintiff-Appellant, v. Laurel Highlands River Tours, Incorporated; Laurel Highlands River Tours of Maryland, Incorporated, Defendants-Appellees.
No. 92-1060
United States Court of Appeals for the Fourth Circuit
1992 U.S. App. LEXIS 15094
May 5, 1992, Argued
June 29, 1992, Decided
Notice: Rules of the Fourth Circuit Court of Appeals may limit citation to unpublished opinions. Please refer to the rules of the United States Court of Appeals for this circuit.
Subsequent History: Reported as Table case at 1992 U.S. App. LEXIS 22122
Prior History: Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-91-1507-S)
Disposition: Affirmed
Counsel: Argued: Richard Evan Jordan, Washington, D.C., for Appellant.
Howard J. Schulman, Baltimore, Maryland, for Appellee.
Judges: Before Ervin, Chief Judge, Hamilton, Circuit Judge, and Howard, United States District Judge for the Eastern District of North Carolina, sitting by designation.
Opinion by: Per Curiam
Opinion
Opinion
Per Curiam:
James A. Sanders appeals the order of the district court granting summary judgment in favor of Laurel Highlands River Tours, Inc. (Laurel) on his claims arising from injuries he received while on a white-water rafting trip. Sanders also appeals the district court’s denial of his motion for reconsideration of the judgment. The district court granted summary judgment on the grounds that Laurel had no duty to warn Sanders of the dangers of the white-water rafting trip; that he failed to produce evidence that Laurel breached a duty to rescue him at the earliest opportunity; and that he failed to establish causation as to his claim that Laurel failed to adequately treat his injury.
Although the district court erred in ruling that the theory of failure to warn, other than as applied to landowners, does not arise outside of the product liability context, we affirm its decision on the grounds that, as a matter of law, the warnings given to Sanders were adequate and he assumed the risk of undertaking the white-water rafting trip.
I
Laurel is a corporation engaged in the business of outfitting and guiding customers who wish to raft down rivers and their rapids in the Pennsylvania area. One of the guided white-water tours is on the upper portion of the Youghiogheny River in Western Maryland. This portion of the Youghiogheny is classified, according to an industry guide, as within the most difficult of all categories of river runs, suitable for experts. Armstead, Whitewater Rafting in Eastern North America, (2d ed. 1989).
Sanders contracted with Laurel for himself and three of his friends. This trip was not the first Sanders took. On October 24, 1987, Sanders went on a rafting trip with Laurel on the lower Youghiogheny, a run classified as lower in difficulty than the upper Youghiogheny. Prior to the lower Youghiogheny trip, Sanders signed a release of liability which stated in part that he “realized I could fall out of the raft or even capsize in rough water (rapids). I realize this could result in serious injury.” (Exhibit, Joint Appendix (J.A.) 34). On July 20, 1988, Sanders made the reservation for the upper Youghiogheny trip. Sanders concedes that he received, prior to this trip, a brochure that stated, in relevant part:
1)Although we spare no effort to assure you a safe trip, it must be understood that whitewater rafting does include some danger. We can assume no responsibility for personal safety . . . . We will ask that you sign a liability form. (J.A. 44).
2.Experience is a must everyone in your group should have rafted the Cheat [a river classified as lower in difficulty than the upper Youghiogheny] several times at various water levels. (J.A. 40).
3.Upper Youghiogheny – advanced to expert level. The upper Youghiogheny . . . is the ultimate challenge in white-water rafting.
Sanders denies, and we accept for purposes of reviewing this summary judgment, that he heard the oral warnings that Laurel submits it gave about the dangers of white-water rafting in general and the upper Youghiogheny in particular. Laurel asserts that it gave such warnings at the meeting point for participants and the embarkation point at the river. There is no question, however, that Sanders signed a waiver and release card, before both the first trip and the ill-fated one. The card stated, directly above his signature and directly below information he filled out:
As a condition of acceptance, I certify that I am an able swimmer, in good health, and understand the sport of white-water rafting. I further understand the potential hazards of the sport of white-water touring and realize that I could fall out of the raft or even capsize in a raft in rough water (rapids). I realize this could possibly result in serious injury. I relieve and save harmless Laurel Highland River Tours, Inc., their Directors, Officers, Stockholders, Employees and Helpers, of any responsibility for any and all claims of any nature whatsoever . . . . (J.A. 34).
Laurel transported the customers to the drop-off point. At the drop-off point, the customers were given further instructions and outfitted with helmets and life preservers.
Early in the trip, Sanders fell out of the raft and claims he was forced to traverse approximately 100 yards of the rapids bodily. He asserts that, prior to his injury, there was an opportunity for him to be safely retrieved, but that the raft guide instructed his companions not to attempt to retrieve him until they got to calmer water. Sanders injured his knee at some point when he struck a rock and claims that he also suffered an open wound on the knee at that time. A Laurel employee rendered first aid which consisted of applying an ice cap and an elastic bandage to the injured area.
The next morning, Sanders went to an emergency room where he was treated and told to seek further care closer to home. The emergency room records indicate that he had an abrasion and a fractured knee cap. He later had surgery performed on his knee to repair the fracture. Four days later, Sanders developed a staph infection in the upper thigh.
Sanders does not claim that Laurel owed him a duty to prevent him from falling out of the raft. He does assert that Laurel breached a duty to warn him of the dangers of rafting and that Laurel failed to rescue him at the earliest opportunity. His main claim, as the district court perceived it, was that Laurel failed to render proper first aid and this was the cause of his subsequent infection.
The parties focused much of their pre-trial efforts on the purported release which Sanders signed prior to the trip. The district court, however, found it unnecessary to consider this issue.
First, the district court found that the only basis for the claim that he should have been rescued sooner was Sanders’ opinion. The district court ruled that such an opinion concerning when it was safe to get Sanders back into the raft probably required the testimony of an expert, but even if it did not, Sanders’ statements were mere “adjectival descriptions” which, under Maryland law, would be insufficient to prove negligence. (Order, J.A. 254). Sanders’ second claim for relief was that Laurel’s employee was negligent in failing to properly render first aid to him because his wound was not properly cleaned. Here the district court focused on the medical evidence concerning causation, finding that the medical evidence failed to show that the infection was caused by improper first aid.
Sanders filed a motion for reconsideration and attached a supplemental affidavit from one of his medical experts in which the expert specifically opined that the lack of first aid was the cause of the subsequent staph infection. Sanders also claimed that the district court failed to consider his “failure to warn claim.” This failure to warn claim was based on Laurel’s supposed duty to warn Sanders of the extreme danger of the particular section of river they would be traversing.
The district court in its order on reconsideration noted that a “failure to warn” theory of recovery, outside of the landowner liability context, was limited in application to product liability cases. In addition, the district court refused to give Sanders a”second bite at the apple” by supplementing the medical expert’s affidavit. To do so, the court felt, would substantially diminish the purpose and utility of summary judgment.
Sanders appeals on the grounds that: (1) he properly presented a “failure to warn claim”; (2) Laurel was strictly liable as a common carrier; (3) the district court abused its discretion in refusing to permit him to supplement the medical expert’s affidavit; (4) the district court erred in finding that the original affidavits were insufficient; and (5) the district court erred in finding that he failed to offer proof from which a reasonable jury could find Laurel negligent in failing to rescue him sooner.
Laurel argues on appeal against these assertions. It also contends that it was not liable as a matter of law because Sanders knew of the danger and voluntarily assumed the risk, because Sanders agreed, before his injury, to unconditionally release Laurel from any liability, and because Laurel adequately warned Sanders of the dangers involved.
II
Sanders, a citizen of Alabama, brought this suit in federal court against Laurel, a corporate citizen of Pennsylvania, on the basis of diversity. The parties agreed that the law of the locus, Maryland, applied to the action.
[HN1] Appellate review of the granting of a party’s motion for summary judgment is de novo, and the court of appeals uses the same standard as the district court. Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir. 1979).
Initially, it must be noted that the district court erred in holding that a defendant can have no duty to warn outside of landowner and product liability law. See, e.g., Eisel v. Bd. of Educ. of Montgomery Co., 597 A.2d 447 (Md. 1991) (holding that the failure of a school counselor to inform parents of a student’s suicide ideation was grounds for liability of the school); B.N v. K.K., 538 A.2d 1175 (Md. 1988) (holding that the failure of a person to warn his sexual partner that he had genital herpes was grounds for liability for transmission of the disease). [HN2] A duty to warn does extend beyond product liability or landowner liability cases if a warning is called for as a result of one party’s general duty to another.
For example, the owner of a horse with a known dangerous propensity must warn a rider of that danger since that is the appropriate way for him to respond to his duty to his customer. See, e.g., Bass v. Quinn Robins Co., 216 P.2d 944 (Idaho 1950). An airline has a duty to warn a passenger of turbulence it knows is likely to occur. Brittain v. Piedmont Aviation, Inc., 120 S.E.2d 72 (N.C. 1961). An airline may have a duty to warn of conditions of flight if it knows they may affect a passenger with a particular sensitivity to those conditions. Paolone v. American Airlines, Inc., 706 F. Supp. 11 (S.D. N.Y. 1989).
In Eisel, the court discussed [HN3] the factors under which a tort duty arises; these factors are: foreseeability and certainty of harm; policy of preventing harm; closeness of connection between conduct and harm; moral blame; burden on defendant; and insurability. 597 A.2d at 452-55. A white-water outfitter who arranges and guides customers on rafting trips owes a general duty of care to its customers. The general duty may require, in some circumstances, that Laurel provide a warning to its patrons. We decline to hold, as the district court effectively does, that Laurel has no duty to warn of the danger of the rafting trip it sells to its customers.
In this case, however, the error proved harmless because the warnings given, as a matter of law, were adequate. * The district court based its opinion on the proposition that there was no duty to warn. Because the record is clear and the facts apparent, however, we need not remand for consideration. Cf. Federal Deposit Insur. Corp. v. Jones, 846 F.2d 221 (4th Cir. 1988).* The district court correctly noted that the warnings Laurel gave were adequate as a matter of law and that the general dangers of white-water rafting are apparent. However, it assumed for purposes of summary judgment that this was not the case and based its holding on other grounds.
There can be no real dispute that Laurel gave Sanders adequate warnings of the hazards of white-water rafting in general and the enhanced hazards of rafting the upper Youghiogheny in particular. Warnings need only be reasonable, they need not be the best possible warnings in the circumstances. Nolan v. Dillon, 276 A.2d 36 (Md. 1971). In this case, Laurel provided several warnings of the general risks and at least one specific warning that Sanders could fall out and be injured. A more specific or adequate warning could not be required.
Furthermore, it is uncontestable that Sanders had previously been on a white-water rafting experience and had twice signed release cards that specifically warned of the dangers of falling out, capsizing and injury. Even if Sanders neither heard nor read the many warnings given him, the general danger of white-water rafting is a risk apparent to anyone about to embark on such a trip. See Saenz v. Whitewater Voyages, Inc., 226 Cal. 3d 768, 276 Cal. Rptr. 672 (1st Dist. 1990).
Given the obviousness of the general risks involved, the warnings given of the specific risk from which Sanders was injured, and his previous rafting experience, Sanders assumed the risk of his injury. [HN4] Under Maryland law, participants assume the obvious and apparent risks of engaging in such sports. Nesbitt v. Bethesda Country Club, 314 A.2d 738 (Md. App. 1974). Clearly under Maryland law, if a plaintiff, as here, voluntarily exposes himself to a known danger of which he was warned or otherwise knows of, he has assumed the risk that danger poses. Gibson v. Beaver, 226 A.2d 273 (Md. 1967).
III
With regard to the claims that Laurel failed to rescue Sanders at the earliest opportunity and that it failed to render proper first aid, we have considered the briefs and the arguments of the parties and affirm on the reasoning of the district court. Sanders v. Laurel Highlands River Tours, Inc., No. CA-91-1507-S (D. Md. Nov. 15, 1991). We further find the claim that Laurel was strictly liable as a common carrier to be without merit. Accordingly, the decision of the district court is affirmed.
AFFIRMED
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Dolores River Boating Advocates is looking for a Program Coordinator
Posted: June 21, 2013 Filed under: Paddlesports, Rivers and Waterways | Tags: Dolores River, Non-Profit, Program Coordinator Leave a comment
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Want a job rowing a boat or motor rig in the Grand Canyon?
Posted: June 20, 2013 Filed under: Michigan, Triathlon, Youth Camps, Zip Line | Tags: Arizona, Boatman, Grand Canyon, Grand Canyon National Park, National Parks and Monuments, Park, Travel and Tourism, United States Leave a commentHello everyone,
Poster for Grand Canyon National Park, Arizona, USA (Photo credit: Wikipedia)
There are 2 small craft operator (whitewater boat operator) positions now open in Grand Canyon National Park. The positions opened today, June 17th and will be open for applications until July 12th. The positions have a 4 year term. You can access the job posting/descriptions/requirements and apply online at:
https://www.usajobs.gov/GetJob/ViewDetails/345603000
This information came from the Grand Canyon River Guides Association. If you love the Grand Canyon, you should be a member.
Plaintiff uses standards of ACCT to cost defendant $4.7 million
Posted: June 17, 2013 Filed under: Challenge or Ropes Course, Climbing Wall, South Carolina | Tags: Alpine Towers, Alpine Towers International, Carowinds, Fort Mills, Grigri, negligent design, negligent training, paraplegic, Petzl, Punitive damages, strict liability, Trango 1 CommentJudgment included $1,110,000 in punitive damages, which is not covered by insurance and not dischargeable in bankruptcy.
Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171
Plaintiff: Lawrence Keeter, Ronald Travis Keeter, and Rebecca Keeter,
Defendant: Alpine Towers International, Inc., and Ashley Sexton
Plaintiff Claims: strict liability, negligent design, and negligent training
Defendant Defenses: (1) judgment notwithstanding the verdict as to all causes of action and punitive damages, (2) a new trial, (3) an order requiring Larry to elect between the three causes of action, (4) set-off of the settlement paid by Fort Mill.
Holding: for the plaintiff’s in the amount of $3,400,500.00 actual damages and $1,110,000.00 in punitive damages.
This is the appeal that I first reported at “$4.7 million-dollar verdict in climbing wall case against Alpine Towers in South Carolina Court” The plaintiff at the time of his injury was a 17-year-old student who after falling 20’ was rendered a paraplegic.
This is sad, tragic, and honestly, a disaster of a case for both the defendant and the plaintiff. Worse, this case will have far-reaching effects into the climbing wall and ropes’ course industry. It probably won’t have any effect on those association’s writing standards; however, here again, this case is proof that writing standards by an association creates the cause of action needed by the plaintiff to win and in this case, win big.
The facts of the case are convoluted and made so not by what happened, but by the contracts created by the defendant.
The defendant built an Alpine Tower and sold it to an amusement park, Carowinds. The owner, Fort Mill purchased the Alpine Tower from Carowinds. Fort Mill (former defendant who probably settled out of the case) hired the defendant Alpine Towers International “to move it, install it, and train Fort Mill’s faculty to use it safely.” The term “it” in the sentence means the alpine tower. The contract to provide those services was probably the normal contract used when selling a tower by the defendant because it referred to Alpine Towers as the “Seller.” This came back to haunt the defendant because a seller has a greater degree of liability than just a mover. The agreement stated the seller would do much more than just move the tower.
The plaintiff was climbing the tower with another student belaying him. The belay rope became stuck in the belay device. The instructor was close by, and the student attempted to un-stick the rope herself. In doing so the belayer lost control of the rope, and the climber/plaintiff fell to the ground breaking his back. The plaintiff was rendered a paraplegic by the fall.
The plaintiff sued based on three causes of action.
(1) Alpine Towers was strictly liable for the manufacture and sale of a defective and unreasonably dangerous product; (2) Alpine Towers negligently designed the climbing tower without adequate safety equipment, instructions, and warnings; and (3) Alpine Towers was negligent in failing to properly train Fort Mill’s faculty on how to safely use the climbing tower, particularly in failing to train the faculty to teach student belayers to safely use the belay system.
The jury found for the plaintiff and his parents on all causes of action and awarded the plaintiff damages.
It awarded $500.00 for strict liability, $900,000.00 in actual damages and $160,000.00 in punitive damages for negligent design of the tower, and $2,500,000.00 in actual damages and $950,000.00 in punitive damages for Alpine Tower’s negligence in training Fort Mill’s faculty. The jury also returned a verdict for Larry’s parents for $240,000.00 in actual damages.
Summary of the case
The defendant appealed only the injured plaintiff’s claims and judgment, not the plaintiff’s parent’s claims. The defendant lost all of its arguments on appeal.
The first issue and the third most aggravating issue in this decision was how the court accepted the jury’s decision on the strict liability theory claim. The plaintiff’s experts argued that the belay device being used on the tower was operated manually and if the defendant has supplied automatic devices the fall would not have occurred.
…Gerald George, Ph.D., testified that the Trango Jaws relies on the absence of human error to safely belay a climber. He explained that it was feasible to use an alternative design for the climbing tower incorporating a belay device called a GriGri.
“Absence of human error” is how all accidents occur.
Dr. George testified that without incorporating a “fail-safe” belay device such as the GriGri into the design of a climbing tower used for students, the climbing tower is defective and unreasonably dangerous.
So by using a particular belay device, which was not part of the climbing wall, the defendant was strictly liable. The defendant was liable for the injury because the tower was “defective” based upon the choice of belay devices.
The next issue was the negligent design claim. Negligent design in South Carolina is a failure to exercise due care with the focus on the conduct of the seller or manufacturer. The proof the court accepted in this case was:
[Plaintiff] presented evidence that Alpine Towers conducted a ten-year study ending in 1999 that concluded the majority of accidents on its climbing towers were caused by human error, specifically belayers dropping their climbers.
Proof of the negligent design claim is knowing you have a problem that injures people and failing to do anything about it. The study was the proof of the knowledge, and the plaintiff’s injury was proof of failing to do anything about the problem.
Granted, it seems to be a stretch to apply design to belayers dropping climbers; however, if you look at the structure as including the ropes and belay devices, then the claim makes more sense.
The negligent training claims the final claim and the one that will create the most problems for other people within the industry. The contract signed by the defendant for moving the tower stated that defendant would teach the owner how to use the tower. The purchaser, Fort Mill, intended to use it to teach climbing and belaying. The defendant had manuals, curriculums and classes in how to belay; however, it did not teach the owner how to teach how to belay.
First, Alpine Towers uses a written syllabus when it conducts classes to teach adults how to belay. However, it did not provide the syllabus to Fort Mill to enable Fort Mill to effectively teach students. Second, the belay system designed by Alpine Towers relies on a faculty supervisor to ensure the students are properly belaying the climbers. In addition to [defendant’s employee’s] testimony as to where the faculty supervisor should be positioned, the CEO of Alpine Towers, Joe Lackey, testified, “the staff member should stand directly behind the climber, . . . not thirty feet away.”
However, it gets worse. The plaintiff’s expert testified that no one should belay until they have been tested.
Moreover, despite knowing that Fort Mill would be teaching students to belay and that students were more susceptible to making belaying errors than adults, Alpine Towers did not teach Fort Mill that it should test the students’ competency before allowing them to belay a climber. [Plaintiff’s expert] testified “as a matter of course in my industry, participants are tested,” including whether they are “able to . . . belay in a competent manner, catch falls, lower somebody . . . off a climb.”
However, the statements of the plaintiff’s experts were reinforced by the trade association that the defendant belonged to and that his own employees served on.
Alpine Towers has several employees who serve on the standards committee for the Association for Challenge Courses Technology, which [defendant] called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested.
Once again, the trade association (or as the defendant described it the “climbing society”) created standards which instead of helping the defendant win a trial, were used at trial to prove the defendant was negligent.
The final defense to the jury verdict raised by the defendant was Intervening Causation. Basically, this is an argument that something happened after the negligent acts of the defendant caused by a third party who either relieved the defendant of liability or is the real cause of the injury. If the intervening act was foreseeable, then it does not break the chain of liability between the parties. To be a defense, the intervening act must be the “bolt of lightning” without a thunderstorm, which came out of nowhere.
The test for whether a subsequent negligent act by a third party breaks the chain of causation to insulate a prior tortfeasor from liability is whether the subsequent actor’s negligence was reasonably foreseeable. “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.”
The defendant argued that the actions of the belayer, a co-defendant and the Fort Mill’s actions were an intervening cause. However, in this case, the acts of the defendant were foreseeable. In fact, for the belayer dropping a climber, the defendant had a study which showed what would happen.
So Now What?
The list of errors here is massive. Those errors were magnified by the plaintiff’s experts and trade association to which it belonged.
Marketing makes promises that Risk Management (actually your insurance company in most cases) must pay for. Here the wrong agreement was used where too many promises were made that were not kept by the defendant. If you put it in writing, you better make sure you are doing it; you have to complete the terms of the contract.
Add to that the language of the agreement using the term seller. The defendant created greater liability for itself. A mover moves; a seller agrees to move, set up, and in this case train.
It appears the plaintiff hired better experts. The court quoted from two of the plaintiff’s experts liberally. The court did not make a single quote from the defendant’s experts, or even mention if the defendant had an expert witness.
The defendant did a ten-year study on how people were injured using its towers. As usual, with a study that is not thought-out or done so with legal help, even when there could be legal consequences. The study was used by the plaintiff and the court to prove how negligent the design of the tower was. The study showed that most people were injured by belayers that dropped the climbers. That is what happened in this case.
The defendants own study showed the event was foreseeable, and occurred frequently. That was all the proof the plaintiff needed. If you do a study about injuries, you better solve the problems the study identifies. You just can’t look at the study and say, wow, what a great study.
Remember the big maps in ski patrol headquarters at ski resorts. Patrols used to stick a push pin or mark on the map were accidents occurred. Those maps are no longer found at the headquarters because they were proof that the ski area knew that accidents occurred at the locations with lots of holes in the map. If the injured skier can show his injury occurred at a holey part of the map, winning became much easier.
The worst part of this case is not in how it affects the defendant. The worst part is how this is going to affect climbing walls and rope’s courses across the US.
· Instructors are going to have to stand behind belayers.
· Instructional manuals have to be written in conjunction with an attorney. In this case, valuable information was removed from the manual which the judge attributed to a cause leading to the accident.
· Belay devices are going to be a nightmare. Do you use one that does not fail, but that humans fail to use properly or do you use a static device.
· Before allowing anyone to belay anywhere in the future the belayer is going to have to be tested.
The coup d’état or fait accompli of the case was the judge accepted that the defendant, who had several employees serving on the ACCT standards committee, failed to meet the standards created by the ACCT. What standard? The standard created on how to teach and test belayers.
Alpine Towers has several employees who serve on the standards committee for the Association for Challenge Courses Technology, which Lackey called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested.
Then the defendants own instruction manual was quoted by the court as proof the defendant had not followed its own standards.
Ashley testified she was not given a written test, but was required to do a “demonstration” and be watched by a faculty member to make sure she “knew how to do it.” There was no evidence; however, that Alpine Towers took any steps to ensure Fort Mill gave an adequate test of her competency. In fact, Alpine Towers’ instruction manual says only that students “will demonstrate proficiency in belaying before being permitted to belay.”
This is an appellate court decision; I searched but could not find out if this has been appealed to the South Carolina Supreme Court. Hopefully……
What do you think? Leave a comment.
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Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171
Posted: June 17, 2013 Filed under: Challenge or Ropes Course, Climbing Wall, Contract, Legal Case, South Carolina | Tags: Alpine Towers, Alpine Towers International, belay, Belay device, Business, Carowinds, Climbing, Fort Mills, Grigri, negligent design, negligent training, paraplegic, Petzl, Punitive damages, Recreation, Rock climbing, strict liability, Trango 1 CommentKeeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171
Lawrence Keeter, Ronald Travis Keeter, and Rebecca Keeter, Appellants/Respondents, v. Alpine Towers International, Inc., and Ashley Sexton, Defendants, Of Whom Alpine Towers International, Inc., is Respondent/Appellant.
Opinion No. 4995
COURT OF APPEALS OF SOUTH CAROLINA
399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171
December 6, 2011, Heard
June 27, 2012, Filed
SUBSEQUENT HISTORY: Rehearing denied by Keeter v. Alpine Towers Int’l, Inc., 2012 S.C. App. LEXIS 248 (S.C. Ct. App., July 31, 2012)
PRIOR HISTORY: [***1]
Appeal From York County. Appellate Case No. 2009-137246. John C. Hayes, III, Circuit Court Judge.
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
COUNSEL: Richard A. Harpootlian and Graham L. Newman, both of Richard A. Harpootlian, P.A., of Columbia, for Appellants/Respondents.
Charles E. Carpenter, Jr., and Carmon V. Ganjehsani, of Carpenter Appeals & Trial Support, LLC, of Columbia, and Thomas C. Salane, of Turner, Padget, Graham & Laney, P.A., of Columbia, for Respondent/Appellant.
JUDGES: FEW, C.J. KONDUROS, J., concurs. THOMAS, J., concurring in a separate opinion.
OPINION BY: FEW
OPINION
[*184] [**893] FEW, C.J.: Lawrence “Larry” Keeter and his parents brought this action against Alpine Towers International, Inc., for strict liability, negligent design, and negligent training after Larry broke his back and became a paraplegic as a result of a fall to the ground from a climbing tower designed, manufactured, and installed by Alpine Towers. The jury awarded actual and punitive damages in favor of Larry and actual damages in favor of his parents for Larry’s medical bills. After both sides filed post-trial motions, the trial court entered separate judgments in favor of Larry and his parents. Alpine Towers appeals the trial court’s decision [***2] to deny its motions for directed verdict and judgment notwithstanding the verdict (JNOV) as to actual and punitive damages, and its motion for a new trial due to an alleged error as to apportionment. Larry appeals the trial court’s ruling requiring him to elect between his three causes of action. We affirm the denial of Alpine Towers’ motions. However, we hold the trial court incorrectly interpreted the jury’s verdict and erred in requiring [*185] Larry to elect. We remand to the trial court with instructions to enter judgment in Larry’s favor against Alpine Towers in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. 1
1 The judgment in favor of Larry’s parents is not affected by this appeal.
I. Facts
On May 5, 2006, the senior students at Fort Mill High School (Fort Mill) participated in a spring fling recreational field day. During field day, Larry fell more than twenty feet from the climbing tower to the ground. When he hit the ground, Larry broke a vertebra and was rendered a permanent paraplegic. He was seventeen.
Alpine Towers originally sold the climbing tower to Carowinds amusement park near Charlotte, North Carolina. Fort Mill bought the tower from Carowinds [***3] in July 2004 and hired Alpine Towers to move it, install it, and train Fort Mill’s faculty to safely use it. Fort Mill’s contract with Alpine Towers identifies Alpine Towers as “seller” and provides: “Installation includes all hardware, materials, . . . labor, . . . design work, . . . and staff training.” The wooden climbing tower is fifty feet tall, has three sides, and is shaped liked an hourglass. The central safety feature of any climbing tower is the belay system. 2 Alpine Towers designed the belay system on this climbing tower to include four participants–the climber, a primary belayer, a back-up belayer, and a faculty supervisor. The system requires the climber to wear a harness, which is secured to a climbing rope. The rope passes through a pulley at the top of the tower and down to a belay device secured to the ground at the base of the tower. The rope is threaded through the belay device, which uses bends in the rope to create friction to control the speed at which the rope passes through the device. As the [**894] climber ascends, the belayer guides the rope through the belay device to keep the rope taut. If the climber falls from the tower while climbing, [*186] the belayer uses the friction [***4] the belay device creates on the rope to keep the rope from passing back through the device, and thus protects the climber from falling all the way to the ground.
2 Alpine Towers’ instruction manual defines “belay” as “the rope or technique . . . that is used to protect a climber from falling to the ground.” See also Merriam-Webster Collegiate Dictionary 111 (11th ed. 2004) (defining belay as “the securing of a person or a safety rope to an anchor point (as during mountain climbing)”).
After a successful climb, or in the event the climber falls before completing the climb, the belayer lowers the climber to the ground in a controlled fashion by guiding the rope back through the belay device. The friction created on the rope allows the belayer to control the speed of the climber’s descent. 3 Because of the hourglass shape of the tower, a climber being lowered to the ground by the belayer is suspended in air, away from the side of the tower.
3 Alpine Towers’ CEO explained that “not very much” strength is required to hold a climber in the air because the weight is transferred through the belay device to the rope attached to the ground, so that a lightweight belayer can easily lower even a heavy [***5] climber.
Ashley Sexton, a senior at Fort Mill, served as Larry’s primary belayer. Fort Mill trained Ashley to belay as a part of the Junior ROTC program. Larry had never been trained in belaying or climbing, but successfully climbed to the top of the tower. Ashley testified that while she was lowering Larry to the ground “the rope . . . got[] tight in the [belay device] almost as if it were stuck” and would not move. Neither Ashley nor anyone at Fort Mill had been taught what to do if the rope became stuck in the belay device. When Ashley tried to free the rope, she lost the assistance of the device, was unable to control the rope, and Larry fell more than twenty feet to the ground.
Alpine Towers designed the belay system on the climbing tower and trained Fort Mill’s faculty how to use it. Alpine Towers provided no notice or warning to Fort Mill’s faculty that the climbing rope could get stuck in the belay device it designed into the system. Alpine Towers also provided no training or instruction on how the belayer or faculty supervisor should handle the situation if it did. Alpine Towers chose not to incorporate into the design a readily available, automatically locking belay device [***6] Larry’s experts testified would have stopped Larry’s fall. Alpine Towers did not train Fort Mill’s faculty to require the faculty supervisor to stand directly beside the belayer, which Alpine Towers admitted at trial [*187] should always be done to ensure that proper procedures were followed in the climb and to assist the belayers in the event of a situation like the one that resulted in Larry’s fall. When Larry fell, no back-up belayer was present, and no faculty supervisor was close enough to assist Ashley.
II. Procedural History
All of Larry’s damages were caused by the broken back he suffered as a result of his fall. Larry asserted three causes of action presenting three alternative theories of Alpine Towers’ liability for those damages: (1) Alpine Towers was strictly liable for the manufacture and sale of a defective and unreasonably dangerous product; (2) Alpine Towers negligently designed the climbing tower without adequate safety equipment, instructions, and warnings; 4 and (3) Alpine Towers was negligent in failing to properly train Fort Mill’s faculty on how to safely use the climbing tower, particularly in failing to train the faculty to teach student belayers to safely use the belay [***7] system.
4 Because Alpine Towers did the “design work” for the installation of the tower at Fort Mill, Larry’s negligent design theory includes allegations of negligence in failing to design the tower to meet the specific safety needs of Fort Mill.
Larry also filed suit against Ashley for negligence. Larry’s parents filed suit against Alpine Towers and Ashley for Larry’s medical bills. Larry and his parents settled with Fort Mill before filing suit and dismissed Ashley as a defendant before trial. The jury returned a verdict for Larry on each cause of action. It awarded $500.00 for strict liability, 5 $900,000.00 in actual damages and $160,000.00 in punitive damages for negligent design of the tower, and $2,500,000.00 in actual damages and $950,000.00 in punitive [**895] damages for Alpine Tower’s negligence in training Fort Mill’s faculty. The jury also returned a verdict for Larry’s parents for $240,000.00 in actual damages.
5 The jury originally returned a verdict on the strict liability cause of action in favor of Larry, but with zero damages. After the trial court instructed the jury that it must either award damages to Larry or find in favor of Alpine Towers, it returned a $500.00 award.
[*188] Alpine [***8] Towers filed a post-trial motion seeking (1) judgment notwithstanding the verdict as to all causes of action and punitive damages, (2) a new trial, (3) an order requiring Larry to elect between the three causes of action, (4) set-off of the settlement paid by Fort Mill, and (5) apportionment under the Contribution Among Joint Tortfeasors Act. The trial court denied the JNOV, new trial, and apportionment motions. The court required Larry to elect between his causes of action and ordered that the settlement from Fort Mill be set-off against Larry’s recovery from Alpine Towers. Larry also filed a post-trial motion asking the trial court to enter judgment in the cumulative amount of the damage awards rather than require him to elect. The court denied Larry’s motion and ordered that judgment be entered in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages on the negligent training cause of action.
III. Alpine Towers’ Appeal
A. Directed Verdict and JNOV–Actual Damages
[HN1] “In ruling on motions for directed verdict and JNOV, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the [***9] party opposing the motions.” McMillan v. Oconee Mem’l Hosp., Inc., 367 S.C. 559, 564, 626 S.E.2d 884, 886 (2006). “When we review a trial judge’s . . . denial of a motion for directed verdict or JNOV, we reverse only when there is no evidence to support the ruling or when the ruling is governed by an error of law.” Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 42, 691 S.E.2d 135, 145 (2010).
In its motions for directed verdict and JNOV, Alpine Towers contested all liability issues, including the sufficiency of the evidence supporting each of Larry’s causes of action. In its Statement of Issues on Appeal, Alpine Towers contends only that the trial court should have granted its motions because the chain of causation was broken as a matter of law. Specifically, Alpine Towers contends the chain of causation was broken by (1) “the intervening and superseding negligent [*189] acts of Fort Mill High School and Ashley Sexton in failing to follow the warnings, directions, and instructions for proper use of the Tower” and (2) “the intervening and superseding negligent acts of Fort Mill High School in failing to undertake its independent duty to properly supervise its students.” However, because [***10] both Larry and Alpine Towers address in their briefs the sufficiency of the evidence supporting each of Larry’s causes of action, we do as well. We find ample evidence to support the jury’s verdict as to each. We also find ample evidence that Ashley’s negligence and any negligence by Fort Mill was foreseeable to Alpine Towers, and thus their negligence does not break the chain of causation from Alpine Towers’ tortious conduct.
1. Strict Liability
In his strict liability theory, Larry focused on Alpine Towers’ design of the climbing tower to incorporate a belay device called Trango Jaws. The Trango Jaws is operated manually and requires the belayer to properly position the climbing rope in the Trango Jaws to create the friction necessary to stop the rope and then control the rate of the climber’s descent. Larry’s expert witness in biomechanics and sports safety, Gerald George, Ph.D., testified that the Trango Jaws relies on the absence of human error to safely belay a climber. He explained that it was feasible to use an alternative design for the climbing tower incorporating a belay device called a GriGri. 6
6 The GriGri costs approximately $75, and the Trango Jaws costs approximately $24. [***11] The CEO of Alpine Towers testified the difference in cost is an “inconsequential amount of money.”
The GriGri is a mechanical device that, when properly threaded, does not rely on the absence of human error. In the event the belayer loses control of the rope, the GriGri automatically stops the rope, and thus protects the climber from falling to the ground. Larry’s climbing wall safety expert, Dan Hague, testified that the GriGri “locks up automatically, . . . you’re not relying on the actions of the belayer to lock the device up.” [**896] He emphasized that the automatic stopping feature of the GriGri is particularly important when students are belaying climbers because of the heightened likelihood of human error. To account for this foreseeable risk, Hague “always uses the GriGri with kids.” In Hague’s opinion, “this injury would not have occurred had a GriGri [*190] been in use that day.” As a normal part of its business, Alpine Towers sells the GriGri for a variety of uses, including on its own climbing towers. Dr. George testified that without incorporating a “fail-safe” belay device such as the GriGri into the design of a climbing tower used for students, the climbing tower is defective and unreasonably [***12] dangerous.
Alpine Towers’ argument that the evidence in support of Larry’s strict liability cause of action is insufficient is that there is no evidence the tower “was in a defective condition, unreasonably dangerous to the user . . . when it left the hands of the defendant.” See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 539, 462 S.E.2d 321, 326 (Ct. App. 1995). However, the evidence discussed above amply supports the jury’s finding that it was. Moreover, the GriGri qualifies as a “reasonable alternative design” as required under Branham v. Ford Motor Co., 390 S.C. 203, 225, 701 S.E.2d 5, 16 (2010). The trial court correctly denied Alpine Towers’ directed verdict and JNOV motions as to strict liability.
2. Negligent Design
[HN2] “A negligence theory imposes the additional burden on a plaintiff ‘of demonstrating the defendant . . . failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault.'” Branham, 390 S.C. at 210, 701 S.E.2d at 9 (quoting Bragg, 319 S.C. at 539, 462 S.E.2d at 326). In his negligent design theory, Larry also relied on the evidence that Alpine Towers should [***13] have used the GriGri in designing a climbing tower to be used by students, particularly student belayers. However, in addition to evidence that the tower was defective and unreasonably dangerous without the GriGri, Larry presented evidence that Alpine Towers failed to exercise reasonable care in the design. Specifically, Larry presented evidence that Alpine Towers conducted a ten-year study ending in 1999 that concluded the majority of accidents on its climbing towers were caused by human error, specifically belayers dropping their climbers. Despite this knowledge, Alpine Towers chose not to design for human error by including a belay device that would automatically lock and prevent the rope from passing back through the [*191] device, thus preventing a fall to the ground such as the one Larry suffered.
Moreover, Larry’s experts testified to several breaches of Alpine Towers’ duty of reasonable care in designing the warnings and instructions on the tower. In particular, Larry’s experts testified faculty supervisors should be instructed to remain within reaching distance of active belay ropes. Alpine Towers’ employee John Mordhurst conceded this instruction was necessary. Mordhurst testified [***14] a faculty supervisor should be at each belay point, and “[t]hey should be . . . in a position to intervene to grab a rope, . . . so they should be right next to the belayers and belay monitors.” In the 1997 edition of Alpine Towers’ instruction manual for the climbing tower, the section entitled “The Belay System” includes this requirement: “[P]rograms should require staff to check the belayer’s and climber’s systems prior to climbing and lowering; . . . the staff member should stand directly beside the climber.” However, Alpine Towers omitted the statement containing this requirement from the 2004 edition of the instruction manual, the edition it provided to Fort Mill.
Additionally, Dr. George testified Alpine Towers should have placed end user warnings on the tower for someone like Larry, who climbed for the first time without any instruction, and Ashley, who never received an instruction manual. Dr. George explained this was necessary to ensure an inexperienced climber such as Larry will know the dangers of climbing and understand how the belay system is designed to work before deciding to begin a climb. This evidence amply supports the jury’s finding that Alpine Towers failed to [***15] exercise reasonable care in designing a defective and unreasonably dangerous climbing tower. Therefore, the trial court was correct to deny Alpine Towers’ motions as to negligent design.
[**897] 3. Negligent Training
In his negligent training theory, Larry presented evidence that despite knowing Fort Mill’s faculty would not be doing most of the belaying, but rather would be teaching students to belay, Alpine Towers did not instruct the faculty how to teach belaying. Larry proved several key facts in support of this claim. First, Alpine Towers uses a written [*192] syllabus when it conducts classes to teach adults how to belay. However, it did not provide the syllabus to Fort Mill to enable Fort Mill to effectively teach students. Second, the belay system designed by Alpine Towers relies on a faculty supervisor to ensure the students are properly belaying the climbers. In addition to Mordhurst’s testimony as to where the faculty supervisor should be positioned, the CEO of Alpine Towers, Joe Lackey, testified, “the staff member should stand directly behind the climber, . . . not thirty feet away.” The obvious purpose of this requirement is to enable the supervisor to keep the students from making errors [***16] and, if they do, to prevent the tragic consequences Larry suffered. However, Larry presented evidence that Alpine Towers did not teach this to the faculty at Fort Mill. One member of Fort Mill’s faculty who attended the Alpine Towers course testified he did not recall being told that a faculty supervisor should stand beside the belayer. When asked why the requirement that “the staff member should stand directly beside the climber” in the 1997 instruction manual was not included in the 2004 edition, Lackey responded, “I’m not sure why it was taken out.”
Moreover, despite knowing that Fort Mill would be teaching students to belay and that students were more susceptible to making belaying errors than adults, Alpine Towers did not teach Fort Mill that it should test the students’ competency before allowing them to belay a climber. Hague testified “as a matter of course in my industry, participants are tested,” including whether they are “able to . . . belay in a competent manner, catch falls, lower somebody . . . off a climb.” He explained:
In a climbing setting you have to be able to assess whether or not the group as a whole is making progress. . . . Since we’re talking about life safety [***17] here and not about math, if someone is not learning at the same rate as the group, you can’t just move to the next topic. You have to slow down. You have to be able to address that one person until everybody’s caught up. In addition, at the end of the training, there needs to be some type of discrete competency test.
Alpine Towers has several employees who serve on the standards committee for the Association for Challenge [*193] Courses Technology, which Lackey called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested. 7
7 Ashley testified she was not given a written test, but was required to do a “demonstration” and be watched by a faculty member to make sure she “knew how to do it.” There was no evidence, however, that Alpine Towers took any steps to ensure Fort Mill gave an adequate test of her competency. In fact, Alpine Towers’ instruction manual says only that students “will demonstrate proficiency in belaying before being permitted to belay.”
This evidence provides ample support for the jury’s finding that Alpine Towers [***18] was negligent in failing to properly train the Fort Mill faculty on how to safely use the tower, and thus the trial court properly denied Alpine Towers’ motions as to negligent training.
We affirm the trial court’s decision to deny Alpine Towers’ motions for directed verdict and JNOV as to the sufficiency of the evidence supporting all three of Larry’s causes of action.
4. Intervening Causation
[HN3] The test for whether a subsequent negligent act by a third party breaks the chain of causation to insulate a prior tortfeasor from liability is whether the subsequent actor’s negligence was reasonably foreseeable. “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.” McKnight v. S.C. Dep’t of Corr., 385 S.C. 380, 387, 684 S.E.2d 566, 569 [**898] (Ct. App. 2009) (internal quotation marks omitted). The trial court properly charged the jury as follows:
The chain of causation between a defendant’s negligence and the injury itself may be broken by the independent intervening acts or omissions of another person over whom the defendant had no control. In order to decide whether an intervening act breaks the chain of causation, [***19] you must determine whether the intervening act or omission was reasonably foreseeable by the defendant. If the intervening act or omission was a probable consequence of the defendant’s negligence, the defendant is responsible for the plaintiff’s [*194] injuries. If, however, you find that the intervening act or omission was not foreseeable, the defendant is not liable.
By finding in favor of Larry, the jury necessarily found the actions of Ashley and Fort Mill were foreseeable, and therefore the chain of causation was not broken to insulate Alpine Towers from liability. There is ample evidence to support this finding. See Cody P. v. Bank of Am., N.A., 395 S.C. 611, 621-22, 720 S.E.2d 473, 479 (Ct. App. 2011) (“Only in rare or exceptional cases may the question of proximate cause be decided as a matter of law. . . . If there may be a fair difference of opinion regarding whose act proximately caused the injury, then the question of proximate cause must be submitted to the jury.” (internal quotation marks and citations omitted)).
Larry presented evidence that Alpine Towers knew Fort Mill would be using high school students to belay climbers, that adolescents are more susceptible to belaying errors [***20] than adults, and that Alpine Towers conducted a study concluding human error is the most common cause of falls to the ground from climbing towers. Dr. George testified Alpine Towers “knew or should have known . . . of these risks.” He stated it was not merely foreseeable, but “almost predictable,” that high school students would not follow proper procedures for belaying climbers. Hague testified that he has trained “thousands and thousands” of people in belaying over fifteen years, including “many hundreds” of adolescents, he takes different approaches to training depending on the maturity level of the belaying student, adolescents “routinely do not” follow procedures, and Alpine Towers “could easily foresee that adolescents aren’t going to follow all the procedures.”
Therefore, the primary risk associated with the use of a climbing tower is that the belayer, back-up, or faculty supervisor might make an error belaying the climber. Each of Larry’s theories of recovery focused on the allegation that Alpine Towers failed to design for and train against human error in belaying and the supervision of students belaying. This is not a “rare or exceptional” case in which the issue of proximate [***21] cause may be decided as a matter of law. Alpine Towers’ argument that “the intervening and superseding negligent acts of Fort Mill High School and Ashley Sexton” broke the chain of causation fails because there is ample evidence in [*195] the record that precisely the same human error that resulted in Larry’s injury was not only foreseeable to Alpine Towers, but was actually foreseen. Accordingly, we find the trial court properly submitted the question of proximate cause to the jury, and we affirm its decision to deny Alpine Towers’ motions for directed verdict and JNOV as to intervening causation.
B. Directed Verdict and JNOV–Punitive Damages
Alpine Towers also argues the trial court erred in denying its directed verdict and JNOV motions as to punitive damages. We disagree.
[HN4] “When ruling on a directed verdict motion as to punitive damages, the circuit court must view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party.” Hollis v. Stonington Dev., LLC, 394 S.C. 383, 393-94, 714 S.E.2d 904, 909 (Ct. App. 2011) (internal quotation marks omitted). This court applies the same standard as the circuit court. 394 S.C. at 394, 714 S.E.2d at 910. [***22] “The issue of punitive damages must be submitted to the jury if more than one reasonable inference can be drawn from the evidence as to whether the defendant’s behavior was reckless . . . .” Mishoe v. QHG of Lake City, Inc., 366 S.C. 195, 201, 621 S.E.2d 363, 366 (Ct. App. 2005). “Recklessness implies the doing of a negligent [**899] act knowingly; it is a conscious failure to exercise due care. If a person of ordinary reason and prudence would have been conscious of the probability of resulting injury, the law says the person is reckless . . . .” Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011) (internal citation and quotation marks omitted).
Larry made two separate claims for punitive damages against Alpine Towers: (1) for reckless behavior in its design of the climbing tower and (2) for reckless behavior in its failure to properly train the Fort Mill faculty on how to safely use the climbing tower. The jury awarded punitive damages on each claim, so we address each independently.
As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in designing the tower, Larry presented evidence that Alpine Towers knew the majority [*196] of accidents occurring on its [***23] climbing towers were caused by human error by belayers and back-up belayers. Mordhurst conceded that of the three options for a belay device in the design of a climbing tower, “the GriGri has [the] highest likelihood of arresting the fall” of a climber and thus protecting him from falling to the ground if the belayer loses control of the rope. Lackey testified the additional cost of a GriGri is “inconsequential.” Alpine Towers’ decision to design its climbing tower to incorporate the Trango Jaws instead of the GriGri under these circumstances is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless design to the jury. 392 S.C. at 287, 709 S.E.2d at 612.
As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in failing to properly train the Fort Mill faculty, in addition to the evidence discussed above, Alpine Towers knew Fort Mill would be using student belayers, whom Alpine Towers knew to be less attentive to following procedures and more susceptible to errors in belaying than adults. Nevertheless, [***24] Alpine Towers (1) chose not to train Fort Mill’s faculty to teach others, particularly students; (2) did not include in the training materials given to Fort Mill the syllabus Alpine Towers uses to teach belaying; (3) removed from its training manual the specific instruction for faculty supervisors to “stand directly behind the climber”; (4) did not teach Fort Mill to follow the industry practice of testing belayers on the basic skills of belaying before allowing them to belay climbers; and (5) did not inform Fort Mill it had the option of an automatically locking belay device such as the GriGri to compensate for the greater risk posed by the use of student belayers. This also is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless training to the jury. Id.
Accordingly, we affirm the trial court’s decision to deny Alpine Towers’ directed verdict and JNOV motions as to punitive damages.
[*197] C. Apportionment of Fort Mill’s Fault
Alpine Towers contends it is entitled to a new trial because the trial court did not allow the jury to [***25] consider the fault of Fort Mill when it apportioned fault under section 15-38-15 of the South Carolina Code (Supp. 2011). 8 However, our ruling affirming the jury’s award of punitive damages makes it unnecessary to address this issue as [HN5] the apportionment statute “does not apply to a defendant whose conduct is determined to be . . . reckless.” § 15-38-15(F).
8 After the jury’s verdict as to liability, the trial court required it to apportion fault between Alpine Towers and Ashley. The jury determined that Ashley was 60% at fault and Alpine Towers was 40% at fault. The jury was not asked to consider the fault of Fort Mill.
IV. Larry’s Appeal
Larry appeals the trial court’s post-trial ruling entering judgment in his favor in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages. He contends the trial court erred in interpreting the verdicts as “three awards” and requiring him to elect which cause of action would be his remedy. We agree.
[HN6] “Election of remedies involves a choice between different forms of redress [**900] afforded by law for the same injury . . . . It is the act of choosing between inconsistent remedies allowed by law on the same set of facts.” Taylor v. Medenica, 324 S.C. 200, 218, 479 S.E.2d 35, 44-45 (1996). [***26] Larry asserted three causes of action, but sought only one remedy–damages–for only one injury–a broken back. When a plaintiff seeks only one remedy, there is nothing to elect. See Adams v. Grant, 292 S.C. 581, 586, 358 S.E.2d 142, 144 (Ct. App. 1986) (“Where a plaintiff presents two causes of action because he is uncertain of which he will be able to prove, but seeks a single recovery, he will not be required to elect.”).
The trial court in this case recognized that Larry’s three causes of action sought only one remedy. In its post-trial order, the court wrote:
Here, both products liability claims and the negligence claim represent three theories for recovery for the same injury and damages–personal injuries sustained by [Larry] in his [*198] fall. [Larry] had one fall and all his injury and damages flow therefrom regardless of the number of acts of omission or commission of [Alpine Towers].
Because Larry sought only one remedy, the doctrine of election of remedies does not apply. [HN7] “As its name states, the doctrine applies to the election of ‘remedies’ not the election of ‘verdicts.'” Austin, 387 S.C. at 57, 691 S.E.2d at 153 (defining a “‘remedy’ as ‘[t]he means by which . . . the violation [***27] of a right is . . . compensated.'” (quoting Black’s Law Dictionary 1163 (5th ed. 1979))).
This court addressed a similar situation in Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (Ct. App. 1998). The plaintiff in Creach “bit down on a hard substance in a steak biscuit made by Sara Lee Corporation,” “experience[d] severe pain,” and had to undergo “extensive dental work.” 331 S.C. at 463, 502 S.E.2d at 923-24. She sued Sara Lee and others “alleging negligence, breach of warranty, and strict liability.” 331 S.C. at 463, 502 S.E.2d at 923. After a verdict for Creach on all three causes of action, Sara Lee asked the trial judge to require her to elect her remedy. The judge refused to do so, and this court affirmed, holding “while the complaint stated three different causes of action, only one recovery was sought and only one recovery was awarded. Under these circumstances, no election was required.” 331 S.C. at 464, 502 S.E.2d at 924 (citing Taylor, 324 S.C. at 218, 479 S.E.2d at 44-45). Creach supports our holding that because Larry sought one remedy for one injury, the trial court erred in requiring him to elect.
Nevertheless, the trial court and this court must ensure that Larry [***28] does not receive a double recovery. See Collins Music Co. v. Smith, 332 S.C. 145, 147, 503 S.E.2d 481, 482 (Ct. App. 1998) ( [HN8] “It is well settled in this state that there can be no double recovery for a single wrong and a plaintiff may recover his actual damages only once.” (internal quotation marks omitted)). The determination of whether a verdict grants a double recovery begins with the trial court’s responsibility to interpret the verdict in order to ascertain the jury’s intent. The trial court interpreted the jury’s verdict in this case to be “three awards,” and therefore “inconsistent” because [*199] it allowed Larry a double recovery. We find the trial court erred in its interpretation of the verdict.
The error arose from the verdict form. Because Larry asserted three causes of action, the trial court correctly fashioned the verdict form to require the jury to write its verdict for each cause of action. However, because Larry sought only one remedy–damages–and because the amount of those damages could not vary from one cause of action to another, the trial court should have required the jury to write one amount for Larry’s actual damages, and should not have permitted the jury to write [***29] a damages amount for each of the three causes of action. The use of the three blanks for damages in the verdict form left the verdict ambiguous as to the amount of damages the jury intended to award.
[HN9] To determine the jury’s intent in an ambiguous verdict, the court should consider the entire proceedings, focusing on the events and circumstances that reasonably indicate what the jury intended. See Durst v. S. Ry. Co., 161 S.C. 498, 506, 159 S.E. 844, 848 (1931) (stating “the construction of a verdict should, and can, depend upon, not only the language used by the jury, but other things occurring in the trial may be, and [**901] should be, properly regarded in determining what a jury intended to find”); Howard v. Kirton, 144 S.C. 89, 101, 142 S.E. 39, 43 (1928) (stating it is “the duty of the trial judge to decide what the verdict meant, and, in reaching his conclusion thereabout, it was his duty to take into consideration not only the language of the verdict, but all the matters that occurred in the course of the trial”); see also 75B Am. Jur. 2d Trial § 1545 (2007) (“In the interpretation of an ambiguous verdict, the court may make use of anything in the proceedings that serves to show with [***30] certainty what the jury intended, and, for this purpose, reference may be had, for example, to the pleadings, the evidence, the admissions of the parties, the instructions, or the forms of verdict submitted.”).
To correctly interpret the verdict in this case, the trial court was required to consider several indications of the jury’s intention as to damages. First, the court should have considered its own conclusion that Larry sought only one remedy–damages–and that all of his damages flowed from the broken back resulting from his fall from the tower. Thus, it was not [*200] possible for the damages to vary from one cause of action to another. Second, after the jury returned the verdicts, Larry made a motion asking the court to inquire of the jury whether it meant for the damages awarded to be cumulative. Alpine Towers did not object to the request. While the jury was still in the courtroom, the judge asked the forelady if the jury intended the verdicts to be cumulative.
The Court: . . . Before you leave, I’ve got one last question. On the three causes of action you have awarded different amounts of damages. . . . Was it the jury’s intention to award those cumulatively, that is they add up to [***31] [$3.4 million and $500.00] . . . or did you simply mean that the damages as to each cause of action were to be separate . . . .
Forelady: Ask me that again.
. . .
The Court: . . . You have ordered [$500.00] on one, [$900,000.00] on one, and [$2.5 million] on one. Is it the jury’s intention that those are to be added, that is cumulative, or is the jury’s intention that as to each cause of action that award applies only to that cause of action?
Forelady: It’s cumulative.
The Court: Okay. How about . . . as to the punitive, you had [$160,000.00] and [$950,000.00], which adds up . . . to [$1.1 million] [sic]. Is it the same for that also?
Forelady: It’s cumulative.
The trial court then asked each side separately if there was “anything else before the jury’s dismissed?” Both Larry and Alpine Towers answered that they had nothing further, and the trial court dismissed the jury. 9
9 The trial court found, and Alpine Towers argues on appeal, that Larry should have sought further inquiry into the jury’s intent and that his failure to do so forecloses his argument that the jury intended the verdicts to be cumulative. We disagree. Larry is the party who initially asked the court to inquire whether the [***32] jury intended the verdict to be cumulative. Larry’s counsel stated to the court “you can either inquire of the jury here in the courtroom or you can send them out, whatever you’re comfortable with.” Alpine Towers’ counsel stated, “I wouldn’t oppose that request.” The trial court then made the decision to ask only the forelady. The forelady’s answer, “It’s cumulative,” was the answer Larry was looking for, and therefore Larry had no reason to inquire further on that subject. Alpine Towers, who at that point did have reason to inquire further, said nothing. Therefore, to the extent the lack of further inquiry should be considered, we believe it should be held against Alpine Towers.
[*201] In the context that Larry sought, and could obtain, only one damages award for the same injury, this dialogue adequately demonstrates the jury intended the damage amounts written in the three blanks on the verdict form to be added together for a total award to Larry of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. However, there was more to indicate this was the jury’s intention. During deliberations the jury sent a note to the court stating the jurors were deadlocked as to whether to award [***33] $4.5 million or $5 million and asking for suggestions. The court responded that it had no suggestions. The total amount of damages awarded, including the amount awarded to Larry’s parents, was $4.75 million, 10 which is between the two amounts [**902] listed in the note. Further, the court should have considered that it gave the jury no basis on which to find different damage awards on different causes of action. In fact, the only place in the damages instruction where the court differentiated between the causes of action at all was to explain to the jury it may award punitive damages only on the negligence theories of recovery.
10 At the point of the trial when the jury sent this note, the court had not instructed the jury it must award damages on the strict liability claim or find for the defendant. Thus, the $500.00 damages awarded on that cause of action is not included in this figure.
This court has stated that [HN10] “it is the duty of the court to sustain verdicts when a logical reason for reconciling them can be found.” Daves v. Cleary, 355 S.C. 216, 231, 584 S.E.2d 423, 430 (Ct. App. 2003). In fulfilling this duty, we may not substitute our judgment for that of the jury. See Lorick, 153 S.C. at 319, 150 S.E. at 792 [***34] (stating the court has a right to give “effect to what the jury unmistakably found” but cannot “invade the province of the jury”). The jury’s verdict in this case is readily reconciled as we have explained. We can discern no other way to interpret the verdict consistent with the applicable law and the facts of this case, nor can we find in the record any reason to believe this interpretation does not reflect the intent of the jury. Moreover, during arguments on post-trial motions, counsel for Alpine Towers explained to the trial court what he believed the jury did:
[*202] Let me tell you what I think happened. . . . [When they sent the note asking for suggestions,] they advised that they had arrived at a general block of the amount of the damages that they wanted to give to compensate Mr. Keeter. What they then did because the verdict form is listed in such a way that it says actual damages and punitive damages leaving both blank that they went through and parceled out the total amount of compensatory damages that they wanted to award . . . . And the damages for all three claims are identical . . . , there is no differentiation on the damages . . . . [T]hey arrived at a larger figure then [***35] they parceled it up to fill in the blanks. 11
Interpreting the verdict based on “all the matters that occurred in the course of the trial,” Howard, 144 S.C. at 101, 142 S.E. at 43, we disagree with the trial court and find the jury did not make an “inconsistent damages award.” See 75B Am. Jur. 2d Trial § 1556 (2007) (“In order for a verdict to be deemed inconsistent, there must be inconsistencies within each independent action rather than between verdicts in separate and distinct actions.”). Rather, we find that the jury intended the amounts to be added together for a total verdict in Larry’s favor of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. Accordingly, we hold the trial court erred in its interpretation of the verdicts and judgment should have been entered in the cumulative amount of actual and punitive damages the jury wrote on the verdict form for each of Larry’s causes of action.
11 In fairness to counsel, the statement was made as part of his argument that the verdicts were inconsistent. However, we believe the statement accurately explains why the jury put different damage amounts in different blanks.
V. Conclusion
For the reasons explained above, we affirm [***36] the trial court’s decision to deny Alpine Towers’ motions for directed verdict, JNOV, and for a new trial. We reverse the trial court’s interpretation of the jury verdict and remand with instructions that judgment be entered against Alpine Towers in favor of Larry Keeter in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages.
[*203] AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
KONDUROS, J., concurs.
CONCUR BY: THOMAS
CONCUR
THOMAS, J., concurring in a separate opinion.
THOMAS, J.: I concur with the majority as to Alpine Towers’ appeal. As to Larry’s appeal, I concur in result. I agree that this case does not involve the need to elect remedies or an inconsistent verdict. I write separately to clarify that questioning the entire jury and then conforming the jury’s verdict to the jury’s intent are the best practices for ensuring a valid verdict.
[**903] First, when a party raises a question about the jury’s intent for the verdict, the best practice is to poll all of the jurors or allow the foreperson to answer the court’s questions after consulting with the entire jury. Lorick & Lowrance, Inc. v. Julius H. Walker Co., 153 S.C. 309, 314-15, 150 S.E. 789, 791 (1929). The need to clarify the jury’s [***37] intent almost invariably arises when the language used on the verdict form is problematic. Without an inquiry of the remaining jurors, questioning only the foreperson unnecessarily risks that the jury’s precise intent will remain unknown. This danger is heightened by the likelihood of arguments that the foreperson misunderstood the court’s questions or provided a response not reflecting the entire jury’s intent.
Second, if the initial inquiry shows the jury’s intent differs from what the jury wrote on the verdict form, the best practice is to either send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. Id. at 314-15, 150 S.E. at 791. After the jury is discharged, the court may construe the verdict in a manner that diverges from the language used by the jury only when the surrounding circumstances make the jury’s intent unmistakable and the court’s construction reflects that intent. Id. at 319-20, 150 S.E. at 792-93.
I disagree with the majority’s statement in footnote 9 that Larry had no reason to seek further inquiry of the jury’s intent after the foreperson testified the actual and punitive damages amounts [***38] were cumulative. The movant has the most [*204] incentive to ask the court to send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. These practices best ensure the verdict reflects the jury’s intent, and a verdict rendered in accordance with them is nearly impossible to attack by arguing the jury’s intent is unclear. See Billups v. Leliuga, 303 S.C. 36, 39, 398 S.E.2d 75, 76 (Ct. App. 1990) (stating “a jury verdict should be upheld when it is possible to do so and carry into effect the jury’s clear intention,” and holding the jury’s intent was clear despite “some confusion in the jury’s initial written verdict” because the foreperson testified as to the jury’s intent, the clerk published the jury’s intent after the foreperson put the intent in writing, and the remaining jurors were polled to ensure their intent complied with the published intent); cf. Joiner v. Bevier, 155 S.C. 340, 351, 354-55, 152 S.E. 652, 656-57 (1930) (stating the court has the “duty to enforce a verdict, not to make it” and holding that despite some initial difficulty in getting the jury to render a verdict proper in form, the jury’s intent [***39] was “entirely clear” when the verdict after a second set of deliberations “corresponded exactly” with the special findings obtained prior to sending the jury back to deliberate). Moreover, if the above practices are not used, the movant risks having to meet its burden of establishing that the jury’s intent is absolutely clear using solely the surrounding circumstances of the case. Lorick, 153 S.C. at 319-20, 150 S.E. at 792-93. Here, the jury did not conform the verdict to its intent, nor was the jury polled. 12 Therefore, because the burden to establish the jury’s intent remains on Larry as the movant, 13 he must establish the jury’s intent was unmistakable based on the surrounding circumstances of the case.
12 In fairness to Larry, he asked the trial court to determine whether the verdict in his favor was intended to be cumulative. He suggested to the trial court, “[E]ither inquire of the jury . . . in the courtroom or . . . send them out.” The trial court instead only questioned the foreperson in the presence of the other jurors.
13 In discussing the movant’s incentive and burden, I am not referring to our rules of preservation. This issue is preserved because Larry sufficiently raised [***40] it to the trial court by seeking to clarify the jury’s intent in the above-suggested manner before the jury was discharged and the trial court ruled on his motion.
[*205] Despite the uphill battle undertaken in this case to establish the jury’s intent, I agree to remand for an entry of judgment against Alpine Towers in favor of Larry for $3,400,500.00 actual damages and $1,110,000.00 punitive damages. The surrounding circumstances of this case make the jury’s intent unmistakable. Taken together, the forelady’s testimony, the jury note, the jury charge, the total damages awarded, and the single injury alleged can lead to only one conclusion: the jury intended to award Larry [**904] $3,400,000 in actual damages 14 and $1,110,000 in punitive damages.
14 This amount omits the damages awarded for the strict liability claim because the jury note was sent before the jury re-deliberated the strict liability claim.
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Colorado Department of Transportation looking to hire a Bicycle/Pedestrian Specialized Analyst
Posted: June 14, 2013 Filed under: Colorado, Cycling | Tags: AdventureTravel, Attorney at law, Bicycling, Colorado, Colorado Department of Transportation, Cycling, Denver, Department of Transportation, Jim Moss, Pedistrian, Rock climbing Leave a commentYou’ll be dodging big trucks but making a difference!
Colorado Department of Transportation (Photo credit: Wikipedia)
Class Title: GENERAL PROFESSIONAL IV
Type of Announcement: This position is open only to Colorado state residents.
Closing Date/Time: Wed. 06/26/13 11:59 PM Mountain Time
Primary Physical Work Address: 4201 East Arkansas Ave., Denver, CO 80222
Salary: $4,733.00 – $6,828.00 Monthly
FLSA Status: Exempt; position is not eligible for overtime compensation.
Job Type: Full Time
Location: Denver Metro, Colorado
How To Apply: Thank you for your interest. Submit an on-line application by clicking the link below or submit a State of Colorado Application for Announced Vacancy and all supplemental questions according to the instructions provided below. Failure to submit a complete and timely application may result in the rejection of your application. Applicants are responsible for ensuring that application materials are received by the appropriate Human Resources office before the closing date and time listed above.
If not applying on-line, submit application to: CDOT Workforce Staffing Attn: Erin Hardin, 4201 E. Arkansas Ave. Suite 290, Denver, CO 80222
Department Contact Information: Erin Hardin, 303.757.9797, erin.hardin@state.co.us
Methods of Appointment: Appointment to the vacancy or vacancies represented by this announcement is expected to be from the eligible list created. However, at the discretion of the appointing authority, the position(s) may be filled by another method of appointment for a valid articulated business reason.
Transcripts Required: An unofficial copy of transcripts must be submitted at the time of application. Transcripts from colleges or universities outside the United States must be assessed for U.S. equivalency by a NACES educational credential evaluation service. This documentation is the responsibility of the applicant and must be included as part of your application materials. Failure to provide a transcript or credential evaluation report may result in your application being rejected and you will not be able to continue in the selection process for this announcement.
For more information and to apply go to: http://rec-law.us/12HqwTG
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Strava wins lawsuit claim it was responsible for cyclist death
Posted: June 11, 2013 Filed under: Assumption of the Risk, California, Cycling | Tags: assumption of the risk, Berkeley California, Cycling, Flint, King of the Mountain, Law, Lawsuit, Litigation, Plaintiff, Strava, Summary judgment Leave a commentHopefully, Strava can receive sanctions for defending against this stupid suit.
Background:
Strava is an online website where cyclists and/or runners can post their ride/run information, track changes, share their ride/run information and on certain sections of the country be rated as the “king” of the section. The plaintiff was king of the mountain which is the shortest amount of time to climb and descend.
The plaintiff lost his ranking as king of a mountain. He was attempting to regain this title when he was struck and killed by a car.
His family filed suit claim that Strava was liable.
Stupid right!
Strava filed a motion for summary judgment, which was granted by the court. Simply, the deceased assumed the risk of his injuries, or in this case, the plaintiff assumed the risk of his death. “Plaintiff’s claim is precluded as a matter of law because Mr. Flint impliedly assumed the risks of bicycling…” and “that the defendant (Strava) has shown that bicycling is an inherent risky activity.”
As part of its defense, Strava countersued the plaintiffs. I was never able to find a specific statement as to the claims of the countersuit. The status of those claims is unknown. However, I hope they are still alive and Strava can recover its costs and attorney’s fees for defending this action.
This from a guy who hates lawsuits, but once in a while, for both sides, it should be done.
See Strava wins dismissal of civil suit over Berkeley deathor One-year-old lawsuit against Strava dismissed
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Inflatable climbing wall case injury from a party thrown by a health club stretched the release
Posted: June 10, 2013 Filed under: California, Climbing Wall, Release (pre-injury contract not to sue) | Tags: California, Climbing, Climbing Wall, Health club, Indoor, Inflatable Climbing Wall, Paramount, Recreation, Release 2 CommentsIt took an appeal of the issues to win, the trial court held for the plaintiff.
Citation: Vinson v. Paramount Pictures Corporation et al., 2013 Cal. App. Unpub. LEXIS 3380
Plaintiff: Robert Vinson
Defendant: Paramount Pictures Corporation et al.,
Plaintiff Claims: (1) the trial court erred in denying appellants’ motion for nonsuit because a release and waiver signed by Vinson precluded a finding of liability; (2) the trial court erred in finding the primary assumption of the risk doctrine did not apply, and its failure to instruct the jury on the relevant duty owed by appellants was prejudicial; and (3) the trial court abused its discretion by granting a partial new trial on the limited issue of damages.
Defendant Defenses: Release
Holding: Case dismissed based on the release
The case arises from a fall off an inflatable climbing wall at a party. The party was hosted by a health club. The plaintiff had joined a health club or employee club and when he signed a release. It is not clear from the case what the purpose of the club was, but it seems to be a fitness club.
As part of the function of the club, the club hosted a party or event. The party had numerous amusements, including a climbing wall which was operated by a third party. The two individuals operating/belaying the wall claimed they had received an hour’s lesson in how to operate the wall, including how to belay climbers and had not seen the instructions on how to operate the inflatable wall.
The plaintiff argued no one gave him any instructions on how to put on the harness or how to climb on the wall.
While being lowered the plaintiff claimed he fell from the top of the wall landed on the inflatable apron and then bounced onto the concrete. The operators testified the plaintiff was bouncing on the wall and fell when he was 50 to 70% of the way down and never hit the concrete.
The plaintiff sued for his injuries. The trial court threw out the release and a jury awarded the plaintiff $70,000. The plaintiff and defendant appealed.
Summary of the case
The plaintiff appealed the jury trial arguing he was not awarded enough money. The defendant appealed arguing the release should have stopped the suit. The court looked at the release and finding the release was valid did not look at the plaintiff’s appellate arguments.
The court looked at negligence law in California and found generally; persons have a duty to use due care to avoid injuring others, and they can be liable if they do breach the duty causing injury.
A release under California law must be “must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.” The defining legal issue in determining if a release was valid was:
…whether the particular risk of injury [plaintiff] suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release.
The court had to piece together the language in the release; however, the court could find the scope of the release covered “events” of the club, which included the climbing wall and therefore, the release was valid and stopped the claims of the plaintiff.
So Now What?
First, this is another case where a release for one purpose was stretched to cover another. Luckily, it worked. Probably, the event or the climbing wall should have had its own release. The risks found in a gym are different than the risks found at a party, unless the gym had a climbing wall. Even if there was a climbing wall, the release for a gym is not written for an event.
Second, the obvious issues of how the inflatable climbing wall was operated should raise red flags. If you hire a third party to come to your event and run an activity with greater than normal risks, simple falls, at a party, then look into how the risk will be run and maybe the training and/or experience of the people operating the event or amusement.
Third, based upon the wide disparity opinions on what happened, there was no post-accident follow up. No one collected any witness statements, took pictures, or attempted to determine what happened. Granted the plaintiff’s version of events will always differ from the defendants. But one side or the other can always be bolstered by a little paperwork.
Taking care of the injured plaintiff is always the first priority. However, normally there is someone who could have collected statements and taken pictures.
Fourth and Last, the statement by the court “whether the particular risk of injury suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release” is great news and at the same time an excuse for using poor releases. It is hard to describe the mental and emotional toll of a trial and an appeal.
However, I can describe the cost. You will have weeks away from your work for both, you and employees. Essentially, a trial will require you to hire someone to replace you part-time and at least another employee full-time to employee to replace others.
It isn’t worth it. Get a well-written release for your business, company or activity.
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Vinson v. Paramount Pictures Corporation et al., 2013 Cal. App. Unpub. LEXIS 3380
Posted: June 9, 2013 Filed under: California, Climbing Wall, Legal Case, Release (pre-injury contract not to sue) | Tags: Climbing Wall, Los Angeles County Superior Court, Paramount Pictures, Plaintiff, Rock climbing, Vinson Leave a commentVinson v. Paramount Pictures Corporation et al., 2013 Cal. App. Unpub. LEXIS 3380
Robert Vinson, Plaintiff and Respondent, v. Paramount Pictures Corporation et al., Defendants and Appellants.
B237965
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
2013 Cal. App. Unpub. LEXIS 3380
May 14, 2013, Opinion Filed
NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
PRIOR HISTORY: [*1]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC446030, Michelle R. Rosenblatt, Judge.
DISPOSITION: Reversed and remanded.
CORE TERMS: rope, inflatable, unambiguous, climbing, nonsuit, rock-climbing, fitness, economic damages, new trial, injury suffered, sponsored, noneconomic damages, climber’s, climb, private agreement, ordinary negligence, recreational activities, expressing, misconduct, membership, participating, partial, harness, signing, pulley, top, risk of injury, claims of negligence, injuries resulting, preclude liability
COUNSEL: Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller; Matthew B. Stucky; Pollard Mavredakis Cranert Crawford & Stevens and Terrence L. Cranert for Defendants and Appellants.
Law Offices of I. Allan Oberman, I. Allan Oberman; and Debra Fischl for Plaintiff and Respondent.
JUDGES: EPSTEIN, P. J.; MANELLA, J., SUZUKAWA, J. concurred.
OPINION BY: EPSTEIN, P. J.
OPINION
Appellants Paramount Pictures Corporation, Viacom, Inc. and Elite Special Events, Inc. (collectively appellants) appeal from a money judgment in favor of respondent Robert Vinson. The jury awarded Vinson past economic damages sustained after a fall from an inflatable rock-climbing wall at an event hosted and sponsored by appellants, finding appellants’ negligence caused the harm to Vinson. They contend: (1) the trial court erred in denying appellants’ motion for nonsuit because a release and waiver signed by Vinson precluded a finding of liability; (2) the trial court erred in finding the primary assumption of the risk doctrine did not apply, and its failure to instruct the jury on the relevant duty owed by appellants was prejudicial; [*2] and (3) the trial court abused its discretion by granting a partial new trial on the limited issue of damages.
We conclude the release signed by Vinson was valid as to the rock-climbing activity underlying his claims. Vinson expressly consented to waive any claims based on injuries incurred while participating in any activities sponsored by appellants, precluding liability. We reverse the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Vinson was a member of the Paramount “Studio Club” (the Club). To be a member of the Club, he was required to complete an application and pay a fee. The application contained a section entitled “Assumption of Risk and Release” (the Release). The Release provided, in relevant part: “By enrolling as a member in [the Club], member hereby acknowledges that from time to time the Club sponsors certain events and activities that might present a risk of harm to the participants. In consideration of the Club’s arranging such events and activities . . . , member hereby assumes all risks associated with or resulting from such participation and member . . . releases . . . [appellants] of and from any and all claims . . . , which member may have or which may hereafter accrue [*3] on account of . . . any and all known and unknown, foreseen and unforeseen bodily and personal injuries . . . resulting or to result from any accident . . . which may occur as a result . . . of the member’s participation in any of the events or activities sponsored by the Club.” In January 2009, Vinson signed the application and initialed the Release provision.
In December 2009, the Club held a holiday party at Paramount Studios. The party included carnival games, food booths and performances. One attraction was an inflatable rock-climbing wall. The wall was approximately 30 feet tall with inflated protrusions which serve as hand and foot holds for potential climbers. When climbing on this type of wall, a climber is strapped into a harness connected to a rope. The rope then passes through a pulley at the top of the wall and loops back down to an operator of the wall. That operator uses a device called a grigri to control the amount of rope let out. The parties presented conflicting accounts of what occurred during Vinson’s participation in this activity.
Vinson claimed he was given no instruction on how to secure the harness or how to climb the wall. He testified that once he reached [*4] the top of the wall, he asked the two operators attending the wall what to do next. Vinson said the operators told him to remove his hands from the wall, grab the rope, and lean back. Shortly thereafter, all of the tension in the rope gave way and Vinson went into a free fall. He stated that he hit an inflatable apron at the base of the wall, bounced at least three feet into the air, then came crashing down on the concrete pavement surrounding the wall.
Appellants presented testimony that the operator holding the rope for Vinson gave him instructions on how to put on the harness and how to climb the wall. Once Vinson reached the top, he began to jump up and down off the wall and push back and forth, in response to encouragement from his friends below. Testimony indicated that the operator holding the rope told Vinson to stop and eventually began lowering him down the wall. At some point between 50 and 75 percent down the wall, enough slack was released on the rope to allow Vinson to reach the bottom. Vinson jumped and landed on the inflatable apron and, according to both of the operators, never hit the concrete.
Based on testimony from the operators themselves and an expert in rock-wall [*5] climbing, the operators should have had full control of the rope at all times, regardless of what the climber was doing. The amount of rope released from such a mechanism is solely controlled by the operators and thus the pace of a climber’s descent is determined by the operator releasing rope through the pulley system. The operators testified that neither of them had seen the manual that accompanied the inflatable wall and provided detailed instructions on how to operate it. The operator who controlled Vinson’s climb received only one hour of training. An expert testified that one half to a full day of training is typical, followed by constant supervision during the first day of operating a wall. The expert testified that, based on the evidence, the operator in this case failed to understand the mechanics of the pulley system and was negligent in his operation during Vinson’s climb. Vinson produced evidence that he suffered physical and psychological injuries as a result of the fall, leading to lost wages and lost earnings.
Vinson brought suit against appellants for past and future economic damages and past and future noneconomic damages. At the close of Vinson’s evidence, appellants [*6] moved for nonsuit on two grounds. First, they argued the Release, signed by Vinson, constituted a waiver of any claims arising out of participation in any events at the Club, precluding liability. The trial court found the Release was “not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties” and denied appellants’ motion on that ground. Second, they argued the primary assumption of the risk doctrine should apply to preclude liability because Vinson assumed the risks inherent in climbing the wall. They argued that general negligence principles did not apply, and because there was no evidence that the operators increased the risk of injury beyond that inherent in the activity, a nonsuit should be granted. The court found the climbing of an inflatable rock wall was somewhere between a carnival ride and a sport. It concluded the doctrine did not apply and denied the motion for nonsuit.
The jury returned a verdict for Vinson, finding appellants were negligent and that their negligence caused Vinson’s injuries. It awarded Vinson $70,620 in past economic damages, but nothing for future economic damages and nothing for the noneconomic damages [*7] he sought. Vinson moved for new trial limited to the issue of general damages or, in the alternative, for an addittur in an amount to be determined by the court. The court concluded there was no proper reason for the jury to award Vinson over $70,000 in special damages yet find that he did not incur any pain and suffering as a result of the incident. It reasoned that even if the jury found Vinson was malingering, and thereby inflating his claim for general damages, awarding no noneconomic damages was improper. The court granted Vinson’s motion for a partial new trial subject to appellants’ consent to an additur in the amount of $80,000. Appellants declined to accept the additur, and this appeal followed.
DISCUSSION
Appellants contend the trial court erred in denying their motion for nonsuit on two grounds. They argue the court should have found Vinson’s signature on the Release precluded liability. They also argue that even if the Release did not bar the claim, voluntarily participating in the climbing activity involved an assumption of the risk that negated appellants’ duty to eliminate the risks inherent in that activity.
Persons generally have a duty to use due care to avoid injuring [*8] others, and liability may result if their negligent conduct causes injury to another. (Civ. Code, § 1714; Knight v. Jewett (1992) 3 Cal.4th 296, 315.) However, a private party may expressly agree to release any claims of negligence against another by contract; such an agreement “is valid unless it contravenes public policy.” (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1292, p. 686; see also City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 758 [future liability for ordinary negligence generally may be released].)1 Implied assumption of the risk, on the other hand, involves exemption from liability based on the nature of a specific activity and the relationship of the parties to that activity, rather than on an express agreement. (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 228.)
1 Our Supreme Court has noted that California courts have invalidated releases of liability for ordinary negligence when it is determined that the “particular release concerns a service that transcends a purely private agreement and affects the public interest.” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 757-758.) But, private agreements [*9] made in connection with various sporting events or recreational activities generally have been upheld, as they do not involve necessary services and therefore do not contravene public policy or “transcend the realm of purely private matters.” (Id. at p. 759.) We find this release, signed in consideration for participation in various activities at a private club, constitutes “a purely private agreement”; Vinson’s participation in the rock-climbing activity did not involve necessary services and was a recreational activity well within the broad range of activities in which a number of California cases have upheld express waivers. (Id. at pp. 757, 759-760.)
“To be effective, a written release purporting to exculpate a tortfeasor from future negligence or misconduct must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.” (Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490, declined to follow by Madison v. Superior Court (1988) 203 Cal.App.3d 589, 602, fn. 9.) “‘It is also necessary that the expressed terms of the agreement be applicable to the particular misconduct of the defendant . . . .’ [Citation.].” (Ibid., italics omitted.) [*10] “With respect to the question of express waiver, the legal issue is not whether the particular risk of injury [plaintiff] suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1484.)
The trial court denied appellants’ motion for nonsuit based on the signing of the Release, concluding it did not apply to Vinson’s claim because the “release [did] not ensure that [Vinson] knew the risks and hazards of this activity when he was signing a waiver of liability for negligence” on appellants’ part. The court reasoned that the Release was “not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties.”
Appellants argue the Release was explicitly intended to cover any activity at the Club and was sufficiently unambiguous to cover the activity at issue. They argue it was unnecessary to specifically identify rock-climbing as a covered activity, or the risks involved, in order for the Release to be effective. We agree.
Here, the plain language of the Release is explicit as to its breadth. According to its terms, the signer [*11] was releasing “any and all claims” against appellants based on “any and all injuries” resulting from “any accident” arising out of his or her “participation in any of the events or activities sponsored by the Club.” Vinson argues the specific activity involved here, inflatable rock wall climbing, was not comprehended by the release. Similarly, the trial court relied on the theory that the Release failed to identify the specific risk involved or that the risks were unknown to Vinson when he signed it. However, “[w]hen a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357.) “While it is true that the express terms of any release agreement must be applicable to the particular misconduct of the defendant [citation], that does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 601.) Furthermore, “[t]he inclusion of the term ‘negligence’ is simply [*12] not required to validate an exculpatory clause.” (Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 67.)
In Sanchez v. Bally’s Total Fitness Corp., supra, 68 Cal.App.4th at page 67, the court dealt with a release in the fitness center context. The court found the defendant health club unremarkably foresaw potential injuries to members of its club and rationally required them to sign a release and assumption of risk as a condition of membership. (Ibid.) The release broadly covered injuries “‘arising out of or connected with the use of the fitness center.”‘ (Id. at p. 69.) The court found the release covered the injury suffered by the plaintiff as it occurred while using the fitness center.
In Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at page 1358, the court discussed a release signed by the plaintiff upon joining the defendant fitness center. The release stated the signer was waiving liability for injuries suffered while on the defendant’s premises, “‘whether using exercise equipment or not.'” (Ibid.) The court found the purpose of the release was to protect the defendant from future liability in consideration for granting the plaintiff access to defendant’s premises. [*13] (Ibid.) The plaintiff was then injured while adjusting a television on defendant’s premises. (Id. at p. 1355.) The court rejected the plaintiff’s argument that the release should not apply to an activity which was secondary to his membership in the fitness center, especially when the risk of a falling television was not known to him at the time the release was signed. (Id. at pp. 1357-1359.) The court concluded that the broad, unambiguous language of the release served to preclude liability on the part of the defendant for any injuries suffered by plaintiff on defendant’s premises. (Id. at p. 1358.)
Here, Vinson signed a release of all claims for any injuries suffered on appellants’ premises in consideration for membership in the Club and access to certain events. Similar to the releases discussed in the cases above, we find the language of the release signed by Vinson broad and unambiguous. The fact that the activity resulting in the injury was not specifically mentioned in the express terms of the release does not make it ineffective. Having consented to release any claims against appellants based on injuries incurred while participating in any activities at the Club, Vinson absolved [*14] appellants of liability for ordinary negligence during his participation in this particular activity.
Because we have concluded Vinson expressly released appellants from liability, thereby serving as a bar to his claim of negligence, appellants’ contentions regarding primary assumption of the risk are moot.
Appellants also contend the jury’s decision to award substantial economic damages, but no noneconomic damages, was clearly a compromise verdict. They argue the trial court’s granting of a partial new trial solely on the issue of damages was an abuse of discretion, and a full new trial should have been ordered. Again, we need not address this issue as we have concluded the negligence claim was precluded by Vinson’s signing of the Release.
DISPOSITION
The judgment is reversed, and the case remanded with instructions. Appellants to have their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
Minors and Releases
Posted: June 5, 2013 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Colleges and Universities, education, minors, parent, PowerPoint, Presentation, Release, Right to Sue, San Antonio, Sport and Recreation Law Association, SRLA, Texas, TX Leave a commentWhere can a parent sign away a minor’s right to sue and where that will not work.
Audience: Sport and Recreation Law Association
Location: San Antonio, Texas
Date: 2009
Presentation: Minors and Releases http://rec-law.us/ZjzUK9
This presentation was given to highlight why minors cannot sign a release and why only a few states have allowed a parent to sign away a minor’s right to sue.
For other articles about this subject or for the latest information about the topic see:
States that allow a parent to sign away a minor’s right to sue http://rec-law.us/z5kFan
$5 Million because a church took a kid skiing and allowed him to……..skihttp://rec-law.us/wCXYBH
A Parent (or Guardian) is still in control of a child, no matter what the volunteer may want. http://rec-law.us/zN0jcl
Adult volunteer responsibility ends when the minor is delivered back to his parents. http://rec-law.us/wynrnO
Alabama follows the majority of states and does not allow a parent to sign away a minor’s right to sue. http://rec-law.us/Aegeo3
Courtney Love in Outdoor Recreation Law http://rec-law.us/yEpdBR
Delaware decision upholds a release signed by a parent against a minor’s claims http://rec-law.us/MWKMmt
Delaware holds that mothers signature on contract forces change of venue for minors claims.http://rec-law.us/JMvEMv
Iowa does not allow a parent to sign away a minor’s right to sue. http://rec-law.us/AaLwBF
Maine decision on minor injured in ski school conforms how most states will interpret the facts. http://rec-law.us/yxZN2M
Maine follows the majority and does not allow a parent to sign away a minor’s right to sue. http://rec-law.us/zPfJ9V
Minnesota decision upholds parent’s right to sign away a minor’s right to sue. http://rec-law.us/xyeuOH
New Florida law allows a parent to sign away a child’s right to sue for injuries. http://rec-law.us/Au1dGE
North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations http://rec-law.us/ACYg0m
North Dakota decision allows a parent to sign away a minor’s right to sue.http://rec-law.us/SDYQHG
Ohio Appellate decision upholds the use of a release for a minor for a commercial activity. http://rec-law.us/LuYZbv
Release stops suit for falling off horse at Colorado summer Camp. http://rec-law.us/wtRyK5
Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele. http://rec-law.us/yVPR8S
States that allow a parent to sign away a minor’s right to sue http://rec-law.us/z5kFan
Statutes and prospective language to allow a parent to sign away a minor’s right to sue. http://rec-law.us/zkGtcW
Texas follows majority with appellate court decision holding a parent cannot sign away a minor’s right to sue. http://rec-law.us/MCh75O
Texas makes it easier to write a release because the law is clear. http://rec-law.us/yBjZBb
Wrong release for the activity almost sinks YMCA http://rec-law.us/A9AW0P
You’ve got to be kidding: Chaperone liable for the death of girl on a trip http://rec-law.us/zqxJTf
Remember the law changes constantly, this presentation may be out of date. Check back at www.recreation-law.com and with your attorney to make sure the information is still valid.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Good News ASI was dismissed from the lawsuit
Posted: June 3, 2013 Filed under: Climbing Wall, Release (pre-injury contract not to sue), Washington | Tags: ASI, Climbing Rope, Climbing Wall, Jim Moss, Kosseff, Negligence, Rock climbing, Super Shut, Washington, Whitman College Leave a commentBad news, the post-accident investigation proved the college was negligent according to the court.
Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)
Plaintiff: Stephanie Foster, et al.
Defendant: Alex Kosseff, et al.
Plaintiff Claims: Negligence: Plaintiff was the intended beneficiary of the defendant’s work;
Defendant Defenses: No duty owed to the plaintiff
Holding: For the defendant
This is a follow-up to the article, I wrote Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry. The original article was about a motion to dismiss which the defendant safety audit company lost.
This article is the result of a motion for summary judgment filed on behalf of the defendant auditor which the court granted.
The plaintiff was a student at the defendant college, Whitman College, and also worked in the Outdoor Program at the college. While working the plaintiff was asked to bring down the ropes still on the climbing wall. She climbed up to a platform next to the wall and removed the ropes. She then “hooked” into the remaining rope intending to rappel suffering severe injuries to her spine.
The initial report prepared by the defendant auditors (meaning the individuals and the company the individual(s) worked for) was titled “Draft Risk Management Audit.” The report included extensive language about what the audit would and would not do and was quoted by the court.
The college hired the same auditor to investigate the accident. (Can you say conflict of interest?) The auditor submitted a report on his investigation into the accident. The report stated that the plaintiff had climbed above the Super Shut anchors which released the rope causing her to fall.
The court reviewed the accident report prepared by the defendant and made the following statement.
Thus, Kosseff concluded that both Whitman College and Ms. Foster were negligent in using the Super Shut anchors for a purpose for which they were not designed.
Summary of the case
The first argument the court reviewed was whether the plaintiff was an intended beneficiary of the work with the defendant auditor. The court quickly found that to be true. The Draft Audit stated the audit was being done for the college, employees, and students. The college hired the audit for the benefit of the college, students, and employees.
The second issue discussed was the scope of an audit. The court first went through the elements to prove negligence and what makes up the first part of the element’s duty, under Washington’s law.
There are four elements in a common law negligence claim in Washington: duty, breach, causation and damages. As to the first element, a duty of care is defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Whether a duty of care exists is a matter of law to be decided by the court rather than by a jury. This is a “threshold question” which involves three separate inquiries: “Does an obligation exist? What is the measure of care required? To whom and with respect to what risks is the obligation owed?”
Under Washington’s law, someone who inspects the premises of another does not become the insurer of anyone injured by the negligence of the inspection. In most states, an inspecting party is only “liable for undiscovered hazards which he or she undertook to discover in the first place.” Meaning, you are only liable for what you say you are going to discover and don’t.
Consequently, the defendant could not be liable, unless he had agreed to inspect the elements of the wall. The audit was directed at procedures and programs, not equipment. On top of that, even if the audit looked at equipment, it did not look at how that equipment was used or in this case, misused.
Because the audit was not directed at the equipment that caused the accident, the defendant auditor was dismissed from the suit.
So Now What?
1. If you are a college, with a climbing wall, it needs to be inspected by engineers.
2. If you are a college, do not create a conflict of interest by hiring the company that gave you a review to investigate an accident that the review might have missed. Again, can you say Conflict of Interest?
3. If you are any business do not have an accident investigated by anyone other than who your attorney or insurance company hires. Here, the defendant with the conflict of interest nailed the defendant college to the judgment wall with its report.
Because the report was not done by legal counsel, the report can be used by the plaintiff to prove the defendant was negligent. That, however, will not be too difficult since the court in this decision already came to that conclusion based upon the accident report. However, a report that was protected by privilege would not have hung the defendant.
Although the plaintiff is probably upset that one defendant was dismissed, they have to be happy with the decision because of this issue.
The initial outcome of this case is good; the company being paid to review the college was dismissed from the case. However, the long-term effects are multiple.
· Initially, the one defendant won, but only by sinking its co-defendants.
· Long term, colleges are going to be hesitant to build climbing walls because this case is going to settle or go to trial for a large amount of money. Spinal cord injuries are multimillion-dollar cases.
· The entire industry has to wise up. Contracts that are created by legitimate risk management firms will be signed in advance and have tons of disclaimer and indemnification language. However, the issue is not who can sue or defend who, but what are you getting for your money?
As a side note, this part of the Draft Audit was quoted by the court.
If an accident does occur, participation in this voluntary program can protect the organization’s reputation and serve, if necessary, as part of a legal defense.
Instead of a defense, it created a legal claim and proof of negligence…….
Relevant Cases:
Other Cases concerning Climbing Walls:
Gross Negligence beats a release…but after the trial
Poorly written release gave the plaintiff’s the only chance they had to win
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 |
Outdoor Recreation Insurance, Risk Management, and Law
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, 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.
If you are interested in having me write your release, download the form and return it to me.
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Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)
Posted: June 3, 2013 Filed under: Climbing Wall, Legal Case, Release (pre-injury contract not to sue), Washington | Tags: Climbing Wall, Fall, Gary Foster, Risk Management, Ropes, Stephanie Foster, Susan Foster, THOMAS O. RICE, Washington, Whitman College, William S Finger 1 CommentTo Read an Analysis of this decision see
Good News ASI was dismissed from the lawsuit
Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)
Stephanie Foster, et al., Plaintiffs, v. Alex Kosseff, et al., Defendants.
NO: 11-CV-5069-TOR
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON
2013 U.S. Dist. LEXIS 40566
March 22, 2013, Decided
March 22, 2013, Filed
PRIOR HISTORY: Foster v. Kosseff, 2013 U.S. Dist. LEXIS 5380 (E.D. Wash., Jan. 14, 2013)
COUNSEL: [*1] For Stephanie Foster, Gary Foster, Susan Foster, Plaintiffs: Allen M Ressler, LEAD ATTORNEY, Ressler and Tesh PLLC, Seattle, WA; William S Finger, LEAD ATTORNEY, Frank & Finger PC, Evergreen, CO.
For Alex Kosseff, Adventure Safety International LLC, Defendants: Heather C Yakely, LEAD ATTORNEY, Evans Craven & Lackie PS – SPO, Spokane, WA.
JUDGES: THOMAS O. RICE, United States District Judge.
OPINION BY: THOMAS O. RICE
OPINION
ORDER GRANTING DEFENDANT ALEX KOSSEFF’S AND DEFENDANT ADVENTURE SAFETY INTERNATIONAL’S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is a motion for summary judgment filed by Defendants Alex Kosseff and Adventure Safety International (ECF No. 80). This matter was heard with oral argument on March 22, 2013. William S. Finger appeared on behalf of the Plaintiffs. Heather C. Yakely appeared on behalf of Defendants Alex Kosseff and Adventure Safety International. The Court has reviewed the briefing and the record and files herein, and is fully informed.
BACKGROUND
Defendants Alex Kosseff (“Kosseff”) and Adventure Safety International LLC (“ASI”) have moved for summary judgment on Plaintiffs’ negligence claims. Defendants assert that these claims fail as a matter of law because neither Kosseff nor ASI [*2] owed Plaintiff Stephanie Foster (“Ms. Foster”) a duty of care to identify the dangerous condition which caused her to fall from the Whitman College climbing wall on April 28, 2008.
FACTS
Ms. Foster enrolled as a freshman at Whitman College in the fall of 2007. During the 2007-2008 academic year, Plaintiff enrolled in several rock climbing classes offered through the Whitman College Outdoor Program (“Outdoor Program”). She also accepted a paid position as a student climbing instructor for the Outdoor Program. As a result of this coursework and employment, Plaintiff participated in several climbing sessions on a sport climbing wall located on the Whitman College campus.
On April 28, 2008, Ms. Foster was summoned to the climbing wall by her supervisor, Brien Sheedy (“Sheedy”) to assist in removing several climbing ropes that were hanging from the top of the wall. At Sheedy’s direction, Ms. Foster ascended the wall, climbed atop a platform adjacent to the wall, and removed all but one of the ropes. Having completed her task, Ms. Foster lowered herself back onto the climbing wall with the intention of rappelling down the wall using the remaining rope. Shortly after beginning her descent, however, [*3] the remaining rope became unhooked from two “Super Shut” anchors located near the top of the wall. The release of the rope caused Ms. Foster to free fall approximately 35 feet to the ground, resulting in serious permanent injury to her spine.
In April of 2007, one year prior to Ms. Foster’s fall, Whitman College hired ASI to perform a “risk management audit” of the Outdoor Program. The purpose and scope of this audit are central to the outcome of this case. Unfortunately, the terms of the agreement between Whitman College and ASI were never reduced to writing. In any event, it is undisputed that the audit was conducted by Defendant Alex Kosseff (“Kosseff”) over the course of four days on the Whitman College campus. It is further undisputed that Whitman College paid $3,000 for the audit.
During the course of the audit, Kosseff met with several students and administrators who were involved with the Outdoor Program. He also observed several regularly-scheduled activities, including an open climbing wall session, a pool session offered to students in a kayaking class, a climbing wall session offered to students in a rock climbing class, a training session for an upcoming climbing competition, [*4] and a debriefing session for a glacier mountaineering course. ECF No. 153-5 at 7.
After completing his site visit, Kosseff prepared and submitted a written report of his findings and recommendations to Whitman College. The authenticity of this document, which bears the title, “Draft Risk Management Audit,” (hereafter “audit report”) is undisputed. 1 The audit report contains several passages which are relevant to the issues raised in the instant motion. One such passage, under the heading “Audit Process Introduction” reads as follows:
The ASI Risk Management Audit program is a voluntary program aimed at improving risk management practices in outdoor education and recreation. This program has been designed by ASI and the audit process is handled by one of our experienced staff members. We recognize that each program is unique and that one standardized risk management plan will not work for every organization. With this in mind, the ASI Risk Management audit process does not prescribe specific approaches, but rather aims to assess that different aspects [of] risk management are being addressed.
ASI’s audit program is designed as an accessible step for organizations that want to reduce the [*5] risk of an accident taking place. It gives organizational management, clients/students, and others confidence that prudent steps are being taken to manage hazards. If an accident does occur, participation in this voluntary program can protect the organization’s reputation and serve, if necessary, as part of a legal defense. ASI’s audit program focuses exclusively on risk management and safety concerns and does not address educational, marketing, business and financial management, or other issues.
ECF No. 153-5 at 5.
1 ASI apparently contemplated issuing a final draft after Whitman College had reviewed and implemented its recommendations, but no final draft was ever issued. ECF No. 84-1 at Tr. 35-36.
In another passage, under the heading “Audit Program Disclaimer,” the audit report states:
The nature of Adventure Safety International Risk Management Audit is to gain a general understanding of the risk management practices at the time of the review. This is done primarily through review of the self assessment responses supplied by the management of the program being accredited. This is supplemented with onsite observation and interviews, which occur during a brief site visit.
The major aim [*6] of this voluntary audit is to benchmark the program against the risk management guidelines that ASI believes will promote good risk management practice. The benchmarks have been established, at three levels, in many (but not all) areas of risk management planning. The intent is to identify and share good practice amongst outdoor programs and over time to raise the level of risk management practice.
The audit cannot provide any guarantee that future operations will be free of safety incidents. Rather the audit documents that at the time of the review risk management practices met or exceeded risk management guidelines established by ASI and based on current industry practices.
ECF No. 153-5 at 6.
Finally, the audit report documents ASI’s substantive findings and recommendations across 27 different program evaluation criteria. These criteria vary widely, ranging from training and oversight of activity leaders to safety of passenger vans and drivers. Included among these criteria are ratings for “Equipment” and “Facilities.” ECF No. 153-5 at 30, 35. The audit report assigns the Outdoor Program the highest rating in both categories, noting that the quality of the program’s equipment was “exceptional,” [*7] and that those responsible for the program routinely inspect facilities for potential safety hazards. ECF No. 153-5 at 30, 35.
Shortly after Ms. Foster’s fall on April 28, 2008, Whitman College hired ASI to investigate the cause of the accident. ASI assigned Kosseff to conduct the investigation. Kosseff ultimately concluded that the accident occurred as a result of Plaintiff climbing above the Super Shut anchors and subsequently descending below them. According to Kosseff, the Super Shut anchors were not designed to accommodate a person climbing above them; rather, the anchors were designed for use only at “dead end” locations on a sport climbing wall. Kosseff further noted that the manufacturer of the anchors had issued warnings against climbing above them, noting that the risk of a climbing rope becoming disengaged from an anchor in this situation was about “50/50.” Thus, Kosseff concluded that both Whitman College and Ms. Foster were negligent in using the Super Shut anchors for a purpose for which they were not designed.
In the instant lawsuit, Plaintiffs assign fault to Kosseff for failing to identify the risks posed by the Super Shut anchors during the ASI’s risk management audit. [*8] Had Kosseff identified these risks and reported them to Whitman College, Plaintiffs assert, the problem could have been corrected before Ms. Foster was injured. For the reasons discussed below, the Court finds that ASI’s duty of care arising from the risk management audit did not extend to identifying the risk posed by improper use of the Super Shut anchors.
DISCUSSION
The Court may grant summary judgment in favor of a moving party who demonstrates “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The burden then shifts to the non-moving party to identify specific genuine issues of material fact which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.
For [*9] purposes of summary judgment, a fact is “material” if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute as to any such fact is “genuine” only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. In ruling on a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Finally, the court may only consider evidence that would be admissible at trial. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002).
A. Plaintiff Was an Intended Beneficiary of the Risk Management Audit
In its prior order denying Defendants’ motion to dismiss, the Court remarked that, in its view, the viability of Plaintiffs’ negligence claim hinged on their ability to establish that Ms. Foster was an intended third-party beneficiary of the contract between ASI and Whitman College. ECF No. 72 at 10 (citing Burg v. Shannon & Wilson, Inc., 110 Wash. App. 798, 807-08, 43 P.3d 526 (2002)). Specifically, the Court commented that, in order to avoid summary dismissal of this claim, Plaintiff would need to establish, [*10] as a threshold matter, that “ASI agreed to undertake the risk management audit for the benefit of the college’s employees and students rather than for the benefit of the college itself.” ECF No. 72 at 10.
Having reviewed the record on summary judgment, the Court finds that Plaintiffs have established a triable question of fact on this issue. First, the Draft Risk Management Audit indicates that ASI’s audit program is designed to “give[] organizational management, clients/students, and others confidence that prudent steps are being taken to manage hazards.” ECF No. 153-5 at 5 (emphasis added). Second, the Director of the Outdoor Program, Brien Sheedy, testified during his deposition that the risk management audit was designed to minimize risks to “all users” of the Outdoor Program, including students and employees. ECF No. 153-10 at 34-35. Third, Whitman College’s chief financial officer, Peter Harvey, testified that the college typically takes an “across the board” approach to risk management by attempting to mitigate risks to students, employees and faculty. ECF No. 153-8 at 25. Finally, Whitman College’s president, George Bridges, testified that he would expect any risk management [*11] audit commissioned by the college “to protect the school and the employees and the students.” ECF No. 153-9 at 44. A rational jury could find from this evidence that Ms. Foster, as an employee and student of Whitman College, was an intended beneficiary of the contract for the risk management audit.
B. The Danger Posed by Misuse of the Super Shut Anchors Was Beyond the Scope of ASI’s Risk Management Audit
There are four elements to a common law negligence claim in Washington: duty, breach, causation and damages. Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 605, 257 P.3d 532 (2011). As to the first element, a duty of care is defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wash.2d 442, 449, 243 P.3d 521 (2010) (internal quotation and citation omitted). Whether a duty of care exists is a matter of law to be decided by the court rather than by a jury. Osborn v. Mason Cnty., 157 Wash.2d 18, 23, 134 P.3d 197 (2006). This is a “threshold question” which involves three separate inquiries: “Does an obligation exist? What is the measure of care required? To whom and with respect to what [*12] risks is the obligation owed?” Affiliated FM Ins. Co., 170 Wash.2d at 449. In deciding whether the law imposes a duty of care, a court must balance “considerations of logic, common sense, justice, policy, and precedent.” Id. at 450 (internal quotations and citations omitted).
Here, Defendants contend that they did not owe Ms. Foster a duty of care to discover the danger posed by misuse of the Super Shut anchors. The Court agrees. In Washington, a private party who inspects another’s premises for safety hazards may be liable to third parties for injuries caused by the inspecting party’s negligence. See Sheridan v. Aetna Cas. & Surety Co., 3 Wash.2d 423, 439-40, 100 P.2d 1024 (1940); (liability insurer which inspected cargo elevator for safety hazards liable to third party who was injured as a result of insurer’s failure to discover dangerous condition); Nielson v. Wolfkill Corp., 47 Wash. App. 352, 359-60, 734 P.2d 961 (1987) (injured worker’s cause of action for negligent safety inspection performed by Department of Labor and Industries inspector barred by Washington Industrial Insurance Act); see also Restatement (Second) of Torts § 324A(b) (1965) (“One who undertakes, gratuitously or for consideration, to render [*13] services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if he has undertaken to perform a duty owed by the other to the third person.”).
Nevertheless, the act of inspecting another’s premises for safety hazards does not transform the inspecting party into a de facto insurer against any and all risks. Although the Court has not located any cases directly on-point in the State of Washington, courts in other jurisdictions have held that an inspecting party is only liable for undiscovered hazards which he or she undertook to discover in the first place. See, e.g., Procter & Gamble Co. v. Staples, 551 So.2d 949, 955-56 (Ala. 1989) (“In defining the nature of the duty undertaken by a voluntary [safety] inspection, two aspects must be considered–the physical scope of the undertaking and the degree of scrutiny and action mandated by conditions observed or reasonably observable.”) (quotation and citation omitted); Winslett v. Twin City Fire Ins. Co., 141 Ga. App. 143, 232 S.E.2d 638, 639 (Ga. App. 1977) (no liability [*14] to third party for failing to discover dangerous condition on construction crane where “evidence was uncontradicted that no detailed inspections of machinery or equipment were contemplated or made”); Lavazzi v. McDonald’s Corp., 239 Ill. App. 3d 403, 606 N.E.2d 845, 849-50, 179 Ill. Dec. 1013 (Ill. App. 1992) (inspectors hired by restaurant to perform food safety inspections at supplier’s plant not liable for negligent inspection where inspectors “did not specifically focus any attention . . . on the piece of equipment involved in the injury”). In other words, the weight of authority from other jurisdictions counsels that an inspecting party’s liability for negligent inspection must be circumscribed by the scope of the inspection actually performed.
The Court concludes that “considerations of logic, common sense, justice, policy, and precedent” support adoption of this rule. See Affiliated FM Ins. Co., 170 Wash.2d at 450. Contrary to Plaintiffs’ assertions, an inspecting party’s duty of care is not synonymous with the foreseeability of a particular injury occurring. As Defendants correctly note, this argument improperly collapses the duty of care and causation elements of a negligence claim. In Washington, a negligence plaintiff [*15] must make a “threshold showing” that the defendant owed her a duty of care before proceeding to the issues of whether the defendant breached its duty and whether the breach was a foreseeable cause of the plaintiff’s injury. See Munich v. Skagit Emergency Commc’ns Ctr., 175 Wn.2d 871, 877, 288 P.3d 328 (2012). While foreseeability can sometimes inform the scope of a duty owed, it cannot create the duty of care in the first instance. Michaels, 171 Wn.2d at 608. Indeed, equating duty with foreseeability in the context of a safety inspection would lead to a perverse result: an inspector would be legally obligated to report each and every manner in which a person might conceivably be injured–regardless of how obvious, inherent or attenuated the danger might be. This result would effectively transform safety inspectors into de facto insurers against all risks. As a matter of logic and public policy, the better approach is to define an inspector’s duty of care according to the types of hazards that were actually targeted by his or her inspection.
Applying this rule to the instant case, the Court finds that the hazard which caused Ms. Foster’s fall–misuse of the Super Shut anchors–was simply beyond [*16] the scope of the risk management audit that ASI performed. As a threshold matter, Plaintiffs have failed to establish that ASI undertook to inspect any individual pieces of equipment maintained by the Outdoor Program. In his deposition, Kosseff testified unequivocally that the Outdoor Program’s equipment was beyond the scope of ASI’s audit:
There were hundreds and hundreds of pieces of equipment within this program. Each of those pieces of equipment, especially the climbing [equipment], have specific ways in which they’re used. There — I was not looking at how this equipment would be utilized in this situation. I was looking at how the college conducted their systems for managing risk.
ECF No. 84-1 at Tr. 94. Similarly, Brien Sheedy states in his declaration that he “understood and expected that the [audit] would not review specific equipment utilized in the Outdoor Program, for example the Fixe Super Shut anchors, as that type of inspection was not envisioned by the audit process based upon the information [he] learned from [Kosseff]” prior to hiring ASI. ECF No. 82 at ¶ 6. Although this testimony is somewhat self-serving, Plaintiffs have not rebutted it.
Moreover, even assuming for [*17] the sake of argument that ASI was charged with inspecting individual pieces of equipment, it could not reasonably have been expected to identify hazards stemming from potential misuse of the equipment. As Defendants correctly note, the Super Shut anchors which Ms. Foster was using at the time of the accident did not truly “fail.” Rather, the anchors did something that they were designed to do–i.e., release a climbing rope–when Ms. Foster used them for an unsupported application.
To whatever extent Kosseff understood the danger of the Super Shuts releasing a rope in this scenario, he was not obligated to address it with Whitman College. ASI did not contract with Whitman College to address dangers caused by misuse of the Outdoor Program’s equipment. While there is no written contract evidencing the scope of work that ASI agreed to perform, the audit report prepared by Kosseff is highly informative. Having reviewed the audit report in its entirety, the Court finds that the purpose of the risk management audit was to improve Whitman College’s safety practices rather than to identify and catalog specific safety hazards. Indeed, there is no evidence that ASI agreed to perform a detailed “safety [*18] inspection” of specific outdoor equipment, buildings, vehicles, etc. Nor is there any evidence that Kosseff actually undertook to perform an inspection at that minute level of detail.
In the final analysis, there is simply no evidence that ASI agreed or undertook to examine the virtually countless ways in which the Outdoor Program’s climbing equipment could have been dangerously misused. Accordingly, Plaintiffs have not met their burden of establishing that ASI owed Ms. Foster a duty of care to discover and report the danger posed by misuse of the Super Shut anchors. In the absence of a duty of care, Plaintiffs cannot prevail on their negligence claim. Defendants’ motion for summary judgment is granted.
ACCORDINGLY, IT IS HEREBY ORDERED:
1. The motion for summary judgment filed by Defendants Alex Kosseff and Adventure Safety International (ECF No. 80) is GRANTED. Plaintiffs’ claims against these Defendants are DISMISSED with prejudice.
2. Plaintiffs’ claim against Defendant Fixe Industry, which has never been served in this action, is DISMISSED without prejudice.
3. All pending motions are DENIED as moot.
The District Court Executive is hereby directed to enter this Order and a judgment [*19] accordingly, provide copies to counsel, and CLOSE the file.
DATED March 22, 2013.
/s/ Thomas O. Rice
THOMAS O. RICE
United States District Judge
G-YQ06K3L262
http://www.recreation-law.com
News May 27, 2013
Posted: May 31, 2013 Filed under: Climbing, Cycling, Mountaineering, Paddlesports, Ski Area, Skiing / Snow Boarding | Tags: Alabama, Arapahoe Basin, California, Cycling, Kenai Peninsula, MISSISSIPPI, Mountaineering, Nebraska, Paddlesports, Six Mile Creek, skiing, YMCA Leave a commentRundown of weekly news that might be of interest!
Legal
The age that minors become adults.
I am constantly writing about the different legal issues of minors, here you can check on what that means for your state.
The age when a minor becomes an adult is currently 18 in 47 states. Alabama and Nebraska state law says an adult is someone who is 19 or older and Mississippi an adult is 21 or older.
There are exceptions for all the laws on minority in each state. A minor can become an adult if they marry, if they are emancipated or by special statutory exceptions.
Against the law now for kids to not pay attention?
Parents sue because kids were playing. Group of kids on a YMCA outing to a miniature golf course were playing around. One kid hit another in the mouth with a golf club and injured the girl. The parents are suing for inadequate supervision.
How many adults would you have to have to keep kids from playing around? 10 kids, 20 adults? The only result of these suits is kids are not going to be taken care of by adults except their parents.
Commercial whitewater fatality on the Kenai Peninsula‘s Six Mile Creek.
Skiing
Vail just got bigger!
Vail resorts just signed a 50 year lease to run The Canyons in Utah. This will make the Vail Season pretty amazing. Nine resorts (the PR forgot about #A-Basin) will be available to season pass holders in three states: CO, UT and CA.
Is resort a fake? Town is
New 23 lift resort has been approved in #BC Canada. Approval was granted by a town council of a town that does not exist…..
Paddlesports
Rituals v. Habits
Great article about how commercial boatman, sometimes pick up habits that become rituals in the Grand Canyon.
If you can call water flowing between concrete walls on a concrete floor a river……
The Los Angeles River is now open to the public again. Or at least 2.5 miles of it.
Training
Future Career or future disability
Training kids too hard to early does not create great athletic prodigies, only injuries.
#Nike has stopped its support for #LiveStrong.
Mountaineering
Climb meaning sitting in you easy chair with a beer
New iOs App allows you to climb Mtn Everest.
One way to get down
Video of a base jump? Paraglide off Mt. Everest
Overachievers!
Not satisfied to climb Mt #Everest once, David Liano Gonzalez climbed it twice, in the same season, once from the South Side (Nepalese) and once from the North Side (Chinese).
It’s still climbing….right?
Companies are considering putting a ladder on the Hilliary Step on Mt. Everest. There is already a ladder on the North side.
Nepal demanding payment for summit broadcast
There are actually rules for climbing Mt. #Everest. One of those is you cannot #broadcast from sacred areas. The summit is a sacred area. Now Nepal wants paid for a broadcast.
OR Business
Things change
#Nike has stopped its support for #LiveStrong.
OR Life
Animals are amazing
Video of amazing ways that animals defend themselves.
Oh, I’m a survivor
What happens after 400 years under a #glacier and the glacier retreats? Well if you are a #Moss you start to grow again.
This is just so wrong
10 Apps for Enjoying the Great Outdoors
Environment
With Glaciers retreating the mountains are coming down also.
Cycling
Infographic for cycling pre-ride checklist.
Mind the Ride
A bike riding group, Denver Cruisers (http://rec-law.us/17t1bOD) which rides every Wednesday night around downtown Denver has created a bicycle awareness campaign.
The campaign is pretty stark, very good and great for a group just not to promote themselves.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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The age that minors become adults.
Posted: May 29, 2013 Filed under: Minors, Youth, Children, State | Tags: Adult, Adulthood, Age of Majority, Age of Minority, Alabama, MISSISSIPPI, Nebraska, statute Leave a commentI am constantly writing about the different legal issues of minors, here you can check on what that means for your state.
The age when a minor becomes an adult is currently 18 in 47 states. Alabama and Nebraska state law says an adult is someone who is 19 or older and Mississippi an adult is 21 or older.
There are exceptions for all the laws on minority in each state. A minor can become an adult if they marry, if they are emancipated or by special statutory exceptions.
Age of Majority
|
State |
Statute |
Age of adulthood |
|
Alabama |
Ala. Code tit. § 26-1-1 (age 19) and § 26-10A-2 § 27-14-25, § 27-14-5 (contract for insurance at age 15), § 30-4-16 (18 to get married). |
19 |
|
Alaska |
Alaska Stat. § 25.20.010(1977). |
18 |
|
Ariz. Rev. Stat. § 1-215 (1973). |
18 |
|
|
Arkansas |
Ark. Stat. Ann. § 57-103 (Supp. 1977). |
18 |
|
California |
Cal. Civ. Code § 25 (West Supp. 1978). |
18 |
|
Colorado |
Colo. Rev. Stat. § 13-22-101 (1973) |
18 |
|
Connecticut |
Conn. Gen. Stat. Ann. § 1-1d (West Supp. 1978) |
18 |
|
Delaware |
Del. Code tit. 6 § 2705 (Revised 1974) |
18 |
|
Florida |
Fla. Stat. Ann. § 743.07 (West Supp. 1978) |
18 |
|
Georgia |
Ga. Code Ann. § 74-104 (Revision 1973) |
18 |
|
Hawaii |
Haw. Rev. Stat. § 577-1 (Supp. 1975) |
18 |
|
Idaho |
Idaho Code § 29-101 (1967), § 32-101 (Supp. 1978) |
18 |
|
Illinois |
Ill. Ann. Stat. ch. 3 § 131 (Smith- Hurd 1978) |
18 |
|
Indiana |
Ind. Code Ann. § 34-1-2-5.5 (Burns Supp. 1977) |
18 |
|
Iowa |
Iowa Code Ann. § 599.1 (West Supp. 1978) |
18 |
|
Kansas |
Kan. Stat. Ann. § 38-101 (1973). |
18 |
|
Kentucky |
Ky. Rev. Stat. Ann. § 2.015 (Baldwin 1975) |
18 |
|
Louisiana |
La. Civ. Code Ann. art. 1782 (West 1952), art. 37 (West Supp. 1978) |
18 |
|
Maine |
Me. Rev. Stat. tit. 1 § 73 (Supp. 1973) |
18 |
|
Maryland |
Md. Com. Law Code Ann. § 1-103(a) (1975) |
18 |
|
Massachusetts |
Mass. Ann. Laws. ch. 4, § 7(48) (Michie/Law Coop Supp. 1978) |
18 |
|
Michigan |
Mich. Comp. Laws Ann. § 722.52 (Supp. 1978) |
18 |
|
Minnesota |
Minn. Stat. Ann. § 645.45(14) (West Supp. 1978) |
18 |
|
Mississippi |
Miss. Code Ann. § 1-3-27 (1972) However in other statutes defines minors as over 18 § 81-5-61 (minors may rent safety deposit boxes), § 93-3-11 (homestead exemption), § 93-19-1 (real estate), § 97-37-13 (illegal to give a minor weapons, under age 18), |
21 |
|
Missouri |
Mo. Ann. Stat. § 431.055 (Vernon Supp. 1978) |
18 |
|
Montana |
Mont. Rev. Codes Ann. § 64-101 (Supp. 1977) |
18 |
|
Nebraska |
Neb. Rev. Stat. § 38-101 (Reissue 1974) |
19 |
|
Nevada |
Nev. Rev. Stat. § 129.010 (1977) |
18 |
|
New Hampshire |
N.H. Rev. Stat. Ann. § 21-B:1 (Supp. 1977) |
18 |
|
New Jersey |
N.J. Stat. Ann. § 9:17B-3 (West 1976) |
18 |
|
New Mexico |
N.M. Stat. Ann. § § 12-2-2 (K); 28-6-1 (1978 Replacement Vol.) |
18 |
|
New York |
N.Y. Gen. Oblig. Law § 3-101 (McKinney 1978) |
18 |
|
North Carolina |
N.C. Gen. Stat. § 48A-2 (1976 Replacement Vol.) |
18 |
|
North Dakota |
N.D. Cent. Code § 14-10-01 (1971 Replacement Vol. Supp. 1977) |
18 |
|
Ohio |
Ohio Rev. Code Ann. § 3109.01 (Page Supp. 1977) |
18 |
|
Oklahoma |
Okla. Stat. Ann. tit. 15 § § 11, 13 (West 1972) |
18 |
|
Oregon |
Or. Rev. Stat. § 109.510 (1977 Replacement Vol.) |
18 |
|
Pennsylvania |
73 Pa. Cons. Stat. § 2021 (Purdon Supp. 1978) |
18 |
|
Rhode Island |
R.I. Gen. Laws § 15-12-1 (Supp. 1977) |
18 |
|
South Carolina |
S.C. Const. art. 17 § 14 (1973, amended 1975) |
18 |
|
South Dakota |
S.D. Codified Laws Ann. 26-1-1 (Revision 1976) |
18 |
|
Tennessee |
Tenn. Code Ann. § 1-313 (Supp. 1977) |
18 |
|
Texas |
Tex. Rev. Civ. Stat. Ann. art. 5923b (Vernon Supp. 1978) |
18 |
|
Utah |
Utah Code Ann. § 15-2-1 (Supp. 1977) |
18 |
|
Vermont |
Vt. Stat. Ann. tit. 1 § 173 (Supp. 1978) |
18 |
|
Virginia |
Va. Code § 1-13-42 (1973 Replacement Vol.) |
18 |
|
Washington |
Wash. Rev. Code § 26.28.015 (1976) |
18 |
|
West Virginia |
W. Va. Code § 2-3-1 (Supp. 1978) |
18 |
|
Wisconsin |
Wis. Stat. Ann. § 990.01(20) (West Supp. 1978) |
18 |
|
Wyoming |
Wyo. Stat. § 8-3-103 (a) (i) & (a) (iv), § 16-3-101 (1977) |
18 |
Like everything, statutes change when legislators decide something needs corrected. Although this list is probably fairly stagnant, you should make sure you are aware of the age of adulthood in each of the states where you operate.
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: jim@rec-law.us
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Alabama, Nebraska, Mississippi, Minor, Adult, Age of Adulthood,
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USA Pro Challenge offers riders chance to shine
Posted: May 28, 2013 Filed under: Cycling | Tags: Bicycle Racing, Cycling, Fort Collins Colorado, Larimer County, Larimer County Colorado, New Belgium, Northern Colorado, Red Feather Lakes Colorado, UnitedHealthcare, USA Pro Challenge Leave a comment
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Recreation Law 