Louisiana does not allow the use or releases. A trampoline park tried to use an assumption of risk agreement with an arbitration clause and liquidated damage’s clause which the LA Supreme Court found to be a contract of Adhesion.
Posted: March 26, 2018 Filed under: Louisiana | Tags: Adhesion Contract, Contract of Adhesion, Indoor Trampoline Park, Louisiana, Louisiana Supreme Court, Trampoline, Trampoline Park Leave a commentIf you are going to have check boxes, then every paragraph has to have check boxes.
Duhon v. Activelaf, LLC and Lloyds, London, 2016-0818 (La. 10/19/16); 2016 La. LEXIS 2089
State: Louisiana, Supreme Court of Louisiana
Plaintiff: James Duhon
Defendant: Activelaf, LLC, D/B/A Skyzone Lafayette and Underwriters at Lloyds, London
Plaintiff Claims: Negligence
Defendant Defenses: Mandatory Arbitration
Holding: for the Plaintiff
Year: 2016
Summary
Louisiana does not allow the use of a release so amusement and recreation businesses always scramble to find ways to protect themselves. However, you can go too far.
This trampoline park had an arbitration clause hidden in a paragraph. The Louisiana Supreme Court determined that made the agreement and adhesion contract and voided the agreement.
Facts
The plaintiff sued. The defendant filed a motion to require mandatory arbitration as required under the agreement. The trial court denied the motion, and the defendant appealed. The defendant appealed the trial court decision to the appellate court which upheld the mandatory arbitration clause. The plaintiff appealed, and the Supreme Court of Louisiana reversed the appellate court and held the arbitration clause was not enforceable.
Louisiana does not allow the use of a release. See States that do not Support the Use of a Release. Louisiana Civil Code Art. 2004 (2015) voids all releases.
The contract, as explained by the court, has terms that become important in this decision’s analysis. The contract included a video and photography release, allowed the defendant to email the signors, waives the signor’s right to sue, mandatory arbitration clause and a liquidated damage’s clause requiring the signor to pay the defendant $5,000 if the plaintiff sued.
Three paragraphs then had boxes next to them had that to be checked. The rest of the paragraphs did not.
The total issues of the agreement, the fact the important clauses were not identified, and only three paragraphs required check boxes were of issue before the court.
Analysis: making sense of the law based on these facts.
The court found that signing the agreement electronically did not mean anything.
As an initial matter, we note the electronic nature of the Agreement in this case is of no legal consequence and does not fundamentally change the principles of contract. Louisiana law gives legal effect to both electronic contracts and signatures. We interpret and analyze the terms of the Agreement using the same rules that we would apply to oral and written contracts.
Louisiana law, like federal law, favor arbitration clauses. Arbitration does not require on the court system, allows hiring of an agreeable arbiter by the parties, is much cheaper and much quicker than a trial.
The plaintiff argued the agreement in this case was adhesive. If a contract is found to be an adhesion contract, the contract is void. The court defined an adhesion contract as:
Broadly defined, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms.
The court stated that just because a contract was a standard form contract does not immediately mean it was an adhesion contract. “Therefore, we are not willing to declare all standard form contracts adhesionary; rather, we find standard form serves merely as a possible indicator of adhesion.”
The court then looked at other cases and came up with the following test to determine if the arbitration clause in a contract was adhesionary. The court must look at:
(1) the physical characteristics of the arbitration clause, (2) the distinguishing features of the arbitration clause, (3) the mutuality of the arbitration clause, and (4) the relative bargaining strength of the parties.
The test is not a definitive test, but one that the court must use and apply to all arbitration clauses and evaluate each clause.
Using those four requirements the court looked at the clause in this agreement.
The first problem the court found was the arbitration clause was hidden in the agreement. There was no check box for the paragraph which contained the clause, no heading, no bold type, nothing to indicate there was an important clause in the paragraph.
However, the lack of distinguishing features and the specific placement of the arbitration clause serve to conceal the arbitration language from Sky Zone patrons. The Agreement is structured with check boxes next to the first three paragraphs, followed by five additional paragraphs without corresponding check boxes.
Additionally, the paragraph containing the arbitration clause contained several different legal points. Consequently, the court thought the arbitration clause was hidden in the agreement and difficult to find.
Thus, looking at the Agreement as a whole, the arbitration language appears to be the only specific provision not relegated to a separate paragraph or set apart in some explicit way. Here, the two-sentence provision mandating arbitration is camouflaged within the confines of an eleven-sentence paragraph, nine of which do not discuss arbitration. The effect of the placement of the arbitration language is to cloak it within a blanket of boilerplate language regarding rules and risks of participating in the Sky Zone activities.
Consequently, the court held the plaintiff did not consent to the arbitration clause.
The court then went on to find more issues with the agreement. The court found there was no mutuality in the arbitration clause. Meaning the plaintiff was bound to arbitrate and the defendants were not.
The court was also disturbed when it found a punitive provision which required an injured patron, if they sued, to pay the defendant $5,000.00 within sixty days of filing a lawsuit. The $5,000 would earn interest at 12% per year.
Even more troublesome in this case is the punitive provision compelling patrons to pay Sky Zone liquidated damages of $5,000 within sixty days should the patron file suit, with legal interest added at 12% per year. Sky Zone has no mutual obligation in the Agreement.
The court found the arbitration clause was adhesionary and unenforceable.
Considering the lack of mutuality together with the obscure placement of the arbitration language in the Agreement, and in comparison to the contract in Aguillard, we are compelled to find the arbitration clause in the Sky Zone Agreement is adhesionary and unenforceable.
The case could proceed to trial.
The decision had two short concurring decisions and one dissenting decision.
So Now What?
Here three items doomed the defendant. The first was the check boxes. Electronically, the check boxes do not provide the same problems as with a paper agreement. However, having three check boxes next to relatively unimportant clauses and no check boxes next to the clause at issue disturbed the court and found it an attempt to hide the arbitration clause from signors.
The second was the fact a major clause in a contract was hidden. It was mixed in a paragraph with other legal clauses and not pointed out as an important clause.
The third was the clause requiring the plaintiff to pay the defendant if they filed suit. Honestly, this one caught me off guard. There was no legal basis for it. Nothing was required by a party to do or not to do such as sue and lose. Filing a lawsuit was going to cost the plaintiff $5,000.
Arbitration clauses are good in those states that do not recognize a release. See States that do not Support the Use of a Release. You do not want to use an arbitration clause if you are in a state where releases are valid. Arbitration does not allow motions; you just go to a hearing. When you have the opportunity to win by using the release, the arbitration clause may set you up for a longer fight. Also, arbitrators are more than likely to split decisions, providing some benefit to both sides of the arbitration.
Many state laws encouraging arbitration clauses also limit the types of damages an arbitrator can award. Many do not allow an arbitrator to award punitive damages. If you are in a recreation industry where damages may be excessive, arbitration may provide a benefit.
A release allows you to win without having to pay the plaintiff anything. If you have a state that supports a release, use a release.
Arbitration clauses require more work than simply requiring arbitration. You need to define what type of arbitration, where and how the rules will be applied. You just can’t require it without knowing what you are getting yourself into.
For other cases looking at Louisiana law on releases and recreation see:
Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Articles looking at arbitration clauses in outdoor recreation.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Posted: October 5, 2015 Filed under: Climbing Wall, Louisiana, Release (pre-injury contract not to sue), Risk Management | Tags: assumption of the risk, Climbing Wall, Climbing Wall Manual, College, Manual, risk management plan, Safety Clinic, University Leave a commentLouisiana law prohibits the use of a release. That complicates any recreational activity in the state. However, the greater risk is creating a checklist for the plaintiff or in this case the court to use to determine if you breached the duty of care you owed the plaintiff.
State: Louisiana
Plaintiff: Brandy Lynn Fecke, Stephen C. Fecke, and Karen Fecke
Defendant: The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College
Plaintiff Claims:
Defendant Defenses:
Holding: For the Plaintiff
Year: 2015
Louisiana State University converted a racquetball court into a climbing “gym.” It had two bouldering walls and one climbing wall. The climbing wall was 19′ climbing high, and the two bouldering walls were 13′ 1″ high. The plaintiff and a friend went to the climbing wall to work on a required assignment for an “Outdoor Living Skills Activity” course.
Upon arrival, the plaintiff paid to climb and signed a document entitled “Rock Climbing Wall Climbing Wall Participation Agreement.” The agreement was determined by the court to be a release which is void under Louisiana law. (See States that do not Support the Use of a Release.)
The plaintiff and her friend were then were asked if they had climbed before. The plaintiff had climbed twice ten years prior. They received some instruction, which was at issue during the appeal. The plaintiff choose to boulder because she did not want to wear a harness and bouldering was the easiest.
The court understood bouldering, which is quite unusual.
Bouldering is when a climber, with a partner standing behind the climber to act as a spotter in case the climber needs assistance, climbs up to a certain point on the wall and then traverses the wall side-to-side, in order to develop proficiency in climbing.
After bouldering to the top of the wall the plaintiff attempted to down climb and got stuck.
She lost her footing and hung from the wall. When she lost her grip after hanging for a few seconds, she let go of the wall and pushed herself away from the wall. As she fell, Ms. Fecke twirled around, facing away from the wall.
The plaintiff sustained severe injuries to her ankle that required three surgeries prior to the trial and might require more.
The case went to trial. The trial court dismissed the release because of La. C.C. art. 2004.
Louisiana Civil Code
Book 3. Of the different modes of acquiring the ownership of things
Code Title 4. Conventional obligations or contracts
Chapter 8. Effects of conventional obligations
Section 4. Damages
La. C.C. Art. 2004 (2015)
Art. 2004. Clause that excludes or limits liability
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.
Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
The jury awarded the plaintiff $1,925,392.72 and additional $50,000 to her mother for loss of consortium. The trial court reduced the damages to $1,444,044.54, and the loss of consortium claim was reduced to $37,500. The judgment also received interest at 6.0%.
The University appealed.
Analysis: making sense of the law based on these facts.
The first issue on the appeal was the application of Louisiana law on the amount of money awarded as damages. This first issue will not be examined here. The second issue was whether the Rock Climbing Wall Participation Agreement was properly excluded during trial.
Originally, the Rock Climbing Wall Participation Agreement was excluded based on a Motion in Limine filed by the plaintiff. A Motion in Limine is a motion filed by a party that argues the evidence of the other side should be excluded because it violates a rule of evidence, or it violates the law. Arguing this type of issue in front of the jury just makes the jury wonder what you are hiding, and you want to have your arguments correct and in advance. A Motion in Limine is the most powerful motion in a litigator’s bag after the motion for summary judgment.
The defendant raised the issue at trial to have the Rock Climbing Wall Participation Agreement entered into evidence and lost that argument also. The trial court did read to the jury a summary of parts of the Rock Climbing Wall Participation Agreement that did not violate the constitution on releases.
The issue the university argued to allow the Rock Climbing Wall Participation Agreement to be entered into evidence and see by the jury was:
Ms. Fecke was sufficiently educated and understood the inherent risk of injury associated with the activity she was about to undertake and that the LSU UREC employees had properly screened Ms. Fecke prior to allowing her to climb the wall. The LSU Board avers that the Agreement constituted Ms. Fecke’s acknowledgment of the risks of climbing the wall, which is a significant factor in determining her fault, and that this information should have been presented to the jury.
The court found that paragraph four of the agreement violated the Louisiana State Constitution, (La. C.C. art. 2004). “Based on our review of the proffered Agreement, paragraph four is null pursuant to La. C.C. art. 2004 because it, in advance, excludes the liability of the LSU Board for causing physical injury to Ms. Fecke.”
The university argued the rest of the Rock Climbing Wall Participation Agreement should be allowed to be introduced to a jury because it would help the jury determine the risk assumed by the plaintiff and consequently, the percentage of damages she was responsible for.
The court then looked at when and how under Louisiana law, liability (negligence) was determined.
For liability for damages to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element).
The court determined that rock climbing was recreational and like other, activities involved a substantial degree of risk. The duty of the climbing wall operator or gym operator was one of reasonable care, to provide a sound and secure environment.
Rock climbing is a recreational activity that involves substantial risk. Many other recreational activities such as weight lifting and swimming also involve a substantial degree of risk. The risks associated with these and other physically-challenging sports are well recognized. The duty on the gym operator, when these types of sports are conducted, is one of reasonable care under the circumstances — to provide a sound and secure environment for undertaking a clearly risky form of recreation and not that of removing every element of danger inherent in rock climbing.
The last sentence is important as the court found the climbing wall operator did not have a duty to warn about the potential for injury because of gravity. “The LSU Board did not have a duty to warn Ms. Fecke as a climber about the potential effect of gravity. A warning that “if you fall you might get hurt,” is obvious and universally known.”
The court did determine that to be found liable the gym must have failed to provide training and supervision and there must be a connection between the failure to train and supervise and the injury.
A gym and its facilities are not the insurers of the lives or safety of its patrons. A gym cannot be expected to foresee or guard against all dangers. Furthermore, the gym must only take reasonable precautions under the circumstances to avoid injury. To prove negligence on the part of the LSU Board, Ms. Fecke must show both a failure to provide reasonable training and supervision under the circumstances, as well as proof of a causal connection between the lack of reasonable training/supervision and the accident.
This was where the university lost the case. The university had created an extensive “Indoor Climbing Wall Manual” that covered all aspects of operating the climbing wall. It was probably created as a way to avoid liability. In this case the court used, the Indoor Climbing Wall Manual became a checklist to prove the defendant was liable.
The LSU UREC maintains an “Indoor Climbing Wall Manual,” which governs the rules, use, and maintenance of the indoor rock wall climbing facility. The manual requires the following of all employees of the indoor rock wall climbing facility:
The manual proved the climbing wall failed to train and failed to supervise. Nothing like your own documents proving the plaintiffs case.
The manual required all employees to know and enforce all rules of the climbing wall. The court then found ten rules in the manual that must be followed. The court then found additional rules that had to be followed beyond the first ten.
Furthermore, the LSU UREC employees are required to instruct patrons who intend to climb in accordance with the guidelines contained in a “safety clinic” document. The safety clinic requires the LSU UREC employees to give examples of danger areas and instruct climbers where to fall on crash pads, which must be placed underneath bouldering climbers at all times.
The rules went on to require the climbers be instructed in spotting techniques and have the climbers demonstrate spotting techniques. “The safety clinic also requires the LSU UREC employees to demonstrate how to properly descend the wall, and in the event of a fall, how to properly land on the ground to reduce injuries.”
The next two pages of the court’s opinion are running through the climbing manual as a checklist for everything the employees of the climbing wall failed to do. There was contradictory testimony, including one witness who said the plaintiff’s friend was in a position to spot but when she fell he moved away. However, the court did not seem to find the employees statements to be persuasive.
After our de novo review of the testimony and evidence presented at trial, we conclude that the LSU UREC employees failed to properly instruct, demonstrate, and certify that Ms. Fecke and Mr. Culotta understood the proper techniques for climbing the bouldering wall in accordance with their duties as described in the LSU UREC “Indoor Climbing Wall Manual” and the safety clinic document.
Legally, the climbing manual of the wall created the duty and the proof of the breach of the duty necessary to prove the case for the plaintiff.
Consequently, when reviewing whether the agreement should be allowed to be entered as evidence the appellate court decided that it might have been instructional to the jury.
The only portion of the excluded Agreement that might have prejudiced the LSU Board’s case is the portion in paragraph five wherein Ms. Fecke certified that she “agree[d] to abide by all rules of the sport as mandated by LSU University Recreation.” As discussed above, however, instruction as to those “rules” was not provided to Ms. Fecke by the LSU UREC employees nor was she properly screened or supervised as she climbed the bouldering wall.
However, the court also found that even if instructional, it was not sufficient of an issue to reverse the decision.
Thus, we find that the trial court legally erred in excluding a redacted version of the Agreement; however, we hold that the trial court’s error was not prejudicial. The inclusion of the remainder of the Agreement at trial could not have permissibly changed the jury’s verdict based on our de novo review of the record.
The court then went back and looked at how the damages were determined. Ultimately, the damages were lowered to $650,000.
So Now What
You can have manuals and checklists and other pieces of paper that tell your employees what they must do. However, if you do have these pieces of paper, you better have another employee standing around making sure everything on the paper is done.
If you write it down, call it a standard, a manual, procedure it will become proof that you owed a duty to someone and breached that duty. Your own documents are proof that you are negligent.
Here a comprehensive manual was written to protect patrons of the climbing gym, and it ended up being an easy way for the court to find the gym had failed in its duty. Where did the court find the duty? In the climbing wall, manual easily laid out in lists.
This case is relevant in another light. If your state law says releases are not valid, you may not want to risk using one. You would be better off creating an acknowledgement of risk form for guests to sign.
Better, create video showing guests what they can and should do and more importantly what they should not do. Have the guest acknowledge in the assumption of the risk form, that they have watched the video. That helps prove the guest knew and assumed the risk of the activity.
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Louisiana Civil Code
Posted: September 30, 2015 Filed under: Louisiana, Release (pre-injury contract not to sue) | Tags: Louisiana, Release, Releases / Waivers Leave a commentLouisiana Civil Code
Book 3. Of the different modes of acquiring the ownership of things
Code Title 4. Conventional obligations or contracts
Chapter 8. Effects of conventional obligations
Section 4. Damages
La. C.C. Art. 2004 (2015)
Art. 2004. Clause that excludes or limits liability
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.
Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
Fecke v. The Board of Supervisors of Louisiana State University, 2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357
Posted: September 26, 2015 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, Louisiana | Tags: assumption of the risk, Climbing Wall, Climbing Wall Manual, College, Manual, risk management plan, Safety Clinic, University Leave a commentFecke v. The Board of Supervisors of Louisiana State University, 2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357
Brandy Lynn Fecke, Stephen C. Fecke, and Karen Fecke versus The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College
NO. 2015 CA 0017
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357
July 7, 2015, Judgment Rendered
NOTICE:
THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.
SUBSEQUENT HISTORY: Rehearing denied by Fecke v. Bd. of Supervisor, 2015 La. App. LEXIS 1644 (La.App. 1 Cir., Sept. 3, 2015)
Rehearing denied by Fecke v. Bd. of Supervisiors, 2015 La. App. LEXIS 1679 (La.App. 1 Cir., Sept. 3, 2015)
PRIOR HISTORY: [*1] On Appeal from the 19th Judicial District Court. In and for the Parish of East Baton Rouge, State of Louisiana. No. C584652. The Honorable R. Michael Caldwell, Judge Presiding.
DISPOSITION: REVERSED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.
COUNSEL: John Neale deGravelles, Baton Rouge, Louisiana, Attorney for Plaintiffs/Appellees, Brandy L. Fecke, Stephen C. Fecke, and Karen Fecke.
James D. “Buddy” Caldwell, Attorney General, Patrick E. Henry, Darrell J. Saltamachia, John L. Dugas, Special Assistant Attorneys General, Baton Rouge, Louisiana and J. Elliott Baker, Special Assistant Attorney General, Covington, Louisiana, Attorneys for Defendant/Appellant, The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.
JUDGES: BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ. Guidry. J. concurs in the result.
OPINION BY: DRAKE
OPINION
[Pg 2] DRAKE, J.
The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (“LSU Board”) appeals a judgment on a jury verdict that awarded damages to the plaintiff for injuries she sustained in an indoor rock wall climbing accident. For the following reasons, we reverse and amend portions of the judgment and affirm as amended.
FACTS AND PROCEDURAL [*2] HISTORY
It is undisputed that on the evening of December 3, 2008, Brandy Lynn Fecke sustained injuries when she fell from a bouldering wall located at the LSU Recreation Center (“LSU UREC”) indoor rock climbing wall facility. Ms. Fecke, then a 23-three-year-old senior at LSU, and a fellow classmate, Chad Culotta, visited the indoor rock climbing facility to complete a required assignment for an Outdoor Living Skills Activity course. The indoor rock climbing facility at the LSU UREC is housed in a remodeled racquetball court. LSU converted the court into the rock climbing wall facility, with three rock wall climbing options: (i) a 19′ climbing wall; (ii) a 13′ 1″ bouldering wall located on the rear wall; (iii) and a 13′ 1″ bouldering wall located on a side wall.
After Ms. Fecke and Mr. Culotta paid for admission to enter the indoor rock climbing wall facility and received a receipt, the LSU UREC employees working the night of the accident signed Ms. Fecke and Mr. Culotta’s course forms to verify their completion of the rock wall climbing assignment for their Outdoor Living Skills Activity course. Ms. Fecke also executed a Rock Climbing Wall Participation Agreement, which was provided [*3] to her by the LSU UREC employees. The student workers inquired into their previous experience with rock climbing. Ms. Fecke testified that she climbed a rock wall twice before — once when she was eight years old and a second time when she was ten years old. Ms. Fecke also testified that she had “top lined” previously, that is, that she knew about [Pg 3] climbing a wall wearing a harness and using safety ropes, i.e., belay ropes. The employees proceeded to go through the instructions for the rock wall climbing experience. They explained to Ms. Fecke and her classmate that they could climb the 19′ climbing wall with top ropes while wearing a harness, or they could climb one of the 13′ 1″ bouldering walls. Ms. Fecke wanted to climb the “easiest wall” and opted to climb the rear bouldering wall, which did not require her to wear a harness or climb with belay ropes. Bouldering is when a climber, with a partner standing behind the climber to act as a spotter in case the climber needs assistance, climbs up to a certain point on the wall and then traverses the wall side-to-side, in order to develop proficiency in climbing.
After instruction and a climbing demonstration by one of the employees, [*4] Ms. Fecke’s classmate climbed up and then traversed down the wall. Ms. Fecke then climbed the wall. After reaching the top of the wall, Ms. Fecke began her descent; however, she got stuck while traversing down the wall and was unable to climb down any further. She lost her footing and hung from the wall. When she lost her grip after hanging for a few seconds, she let go of the wall and pushed herself away from the wall. As she fell, Ms. Fecke twirled around, facing away from the wall. Ms. Fecke landed on her left foot and sustained multiple fractures to the talus bone in her left ankle, known as a comminuted talus fracture. Due to the severity of the fractures, Ms. Fecke underwent three surgeries and will require additional surgery, including either a permanent ankle fusion or an ankle replacement.
Ms. Fecke and her parents, Stephen and Karen Fecke, brought suit against the LSU Board for damages Ms. Fecke sustained as a result of the accident. Following a three-day jury trial, the jury returned a verdict in favor of Ms. Fecke, Karen Fecke, and Stephen Fecke and against the LSU Board, and awarded damages. The jury allocated 75% of the fault to the LSU Board and 25% of the fault to Ms. [*5] Fecke and awarded damages to Ms. Fecke as follows:
[Pg 4] Physical Pain and Suffering, Past and Future: $150,000.00
Mental Pain and Suffering, Past and Future: $125,000.00
Loss of Enjoyment of Life: $75,000.00
Permanent Disability and Scarring: $165,000.00
Past Medical Expenses: $60,392.72
Fecke Future Medical Expenses: $1,000,000.00
Loss of Future Earnings: $350,000.00
TOTAL: $1,925,392.72
Additionally, the jury awarded damages to Karen Fecke as follows:
Loss of Consortium and Society: $50,000.00
The jury awarded no damages to Stephen Fecke for loss of consortium and society.
Six months later, the trial court signed a judgment on October 3, 2014, and after adjusting the jury’s damage award based on the fault allocation, awarded damages to Ms. Fecke as follows:
Physical Pain and Suffering, Past and Future: $112,500.00
Mental Pain and Suffering, Past and Future: $93,750.00
Loss of Enjoyment of Life: $56,250.00
Permanent Disability and Scarring: $123,750.00
Past Medical Expenses: $45,294.54
Fecke Future Medical Expenses: $750,000.00
Loss of Future Earnings: $262,500.00
TOTAL: $1,444,044.54
[Pg 5] The trial court also awarded Ms. Fecke all costs of the proceedings plus 6.0% judicial interest from the date [*6] of judicial demand until paid, pursuant to La. R.S. 13:5112(C). Furthermore, the trial court ordered that after being reduced for attorney’s fees and costs, Ms. Fecke’s future medical care award of $750,000 (plus judicial interest) be placed in a reversionary trust in accordance with La. R.S. 13:5106(B)(3)(c).1 Additionally, the trial court awarded damages to Karen Fecke as follows:
Loss of Consortium and Society: $37,500.00
The trial court also awarded Karen Fecke all costs of the proceedings plus 6.0% judicial interest from the date of judicial demand until paid, pursuant to La. R.S. 13:5112(C). Finally, the trial court cast the LSU Board with all costs of court, including but not limited to, the expert witness fees as follows:
Dan Pervorse: $3,500.00
Dr. James Lalonde: $1,400.00
Dr. John F. Loupe: $900.00
Stephanie Chalfin: $1,500.00
Harold Asher: $3,000.00
The LSU Board now appeals the October 3, 2014 final judgment of the trial court, assigning three errors to the trial court’s application of the law pertinent to this case.
1 Although this point will be discussed more thoroughly in the first assignment of error, we note here, for clarification purposes, that the trial court’s judgment names the reversionary trust the “Future Medical Care Trust.” We observe [*7] the label “Future Medical Care Trust” appears nowhere in La. R.S. 13:5106, nor in any other provision in the Louisiana Governmental Claims Act, La. R.S. 13:5101-5113.
LAW AND DISCUSSION
Standard of Review
[HN1] The appellate court’s review of factual findings is governed by the manifest error/clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So. 2d 1120, 1127 (La. 1987). Thus, if there is no reasonable factual basis in the record for the fact-finder’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a fact-finder’s factual finding only if, after reviewing the record in its entirety, it determines the finding was clearly wrong. See Stobart v. State, through Dept, of Transp. and Dev., 617 So. 2d 880, 882 (La. 1993).
[HN2] A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews [*8] the trial court’s finding as to issues of material fact, the [Pg 6] appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731, 735. However, the above approach need not be considered when a jury has made some factual findings favorable to each party, and when the legal error affected only one of the findings, but does not interdict the entire fact-finding process. The appellate court should proceed to evaluate each jury finding pertinent to liability in order to determine the applicability of the manifest error rule to each. If only one of the jury’s factual findings is tainted by the application of incorrect principles of law that are prejudicial, the appellate court’s de novo review is limited to the jury finding so affected. Rideau v. State Farm Mut. Auto. Ins. Co., 06-0894 (La. App. 1 Cir. 8/29/07), 970 So. 2d 564, 571, writ denied, 07-2228 (La. 1/11/08), 972 So. 2d 1168.
Assignment of Error 1:
In the first assignment of error, the LSU Board contends the trial court erred by ordering that attorney’s fees and costs were payable out of Ms. Fecke’s damage award for her future medical care. The LSU Board further contends that the trial court erred by awarding Ms. Fecke interest on that award. Ms. Fecke counters that she is [*9] entitled by statute to receive interest on her future medical care damage award, and she further argues that the trial court is authorized by statute to award contractual attorney fees from that award prior to establishing the terms and provisions of a reversionary trust, which is to be created for her future medical care expenses. Thus, the first issue before this court is whether any interest, attorney’s fees, or costs are due and collectible by Ms, Fecke and her attorneys on and out of her damage award against LSU for future medical care. [HN3] As the facts in this matter are not in dispute and the issue on this assignment of error is purely one of the statutory interpretation of La. R.S. 13:5106, a section of the Louisiana [Pg 7] Governmental Claims Act, this court will review the matter de novo, without deference to the legal conclusion of the trial court, and determine whether the error was prejudicial to the case. Turner v. Willis Knighton Med. Ctr., 12-0703 (La. 12/4/12), 108 So. 3d 60, 62; Duzon v. Stallworth, 01-1187 (La. App. 1 Cir. 12/11/02), 866 So. 2d 837, 861, writ denied sub nom., Duzon ex rel. Cmty. of Acquets & Gains v. Stallworth, 03-0589 (La. 5/2/03), 842 So. 2d 1101, and writ denied, 03-0605 (La. 5/2/03), 842 So. 2d 1110.
[HN4] Suits against the State of Louisiana, a state agency, or a political subdivision must be brought pursuant to the Louisiana Governmental Claims Act, La. R.S. 13:5101-5113 (“Act”). The Act applies to any suit in contract or for injury to person or property. La. R.S. 13:5101(B). Pursuant [*10] to the Act, the Legislature appropriates certain funds to pay claims against the State, its agencies, and political subdivisions. La. R.S. 13:5106(B)(1). The Act caps a claimant’s damages for personal injury at $500,000.00, exclusive of property damage, medical care and related benefits, loss of earnings, and loss of future earnings. La. R.S. 13:5106(B)(1).
[HN5] When a trial court determines that a plaintiff in a suit for personal injury against the state or a state agency is entitled to medical care and related benefits2 incurred subsequent to judgment, i.e. future medicals, the provisions of the Future Medical Care Fund (“FMCF”), La. R.S. 39:1533.2, apply to such cases. Louisiana Revised Statutes 13:5106(B)(3)(c) is the controlling statutory authority for personal injury claims against the state or a state agency:
In any suit for personal injury against the state or a state agency wherein the court pursuant to judgment determines that the claimant is entitled to medical care and related benefits that may be incurred [Pg 8] subsequent to judgment, the court shall order that all medical care and related benefits incurred subsequent to judgment be paid from the Future Medical Care Fund as provided in R.S. 39:1533.2. Medical care and related benefits shall be paid directly to the provider as they are incurred [*11] . Nothing in this Subparagraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided but with the requirement that they shall be paid in accordance with this Subparagraph. [Emphasis added.]
[HN6] The FMCF is administered by the Office of Risk Management, through the Treasurer of the State of Louisiana. La. R.S. 39:1533.2(B).
2 Louisiana Revised Statutes 13:5106(D)(1) provides that:
[HN7] “Medical care and related benefits” for the purpose of this Section means all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services.
In contrast, [HN8] when a trial court determines that a plaintiff in a suit for personal injury against a political subdivision is entitled to medical care and related benefits incurred subsequent to judgment, a reversionary trust is established for the benefit of the plaintiff and all future medical care is paid pursuant to the reversionary trust instrument. Louisiana Revised Statutes 13:5106(B)(3)(a)3 is the controlling statutory authority for personal injury claims against political subdivisions:
In any suit for personal injury [*12] against a political subdivision wherein the court, pursuant to judgment, determines that the claimant is entitled to medical care and related benefits that may be incurred subsequent to judgment, the court shall order that a reversionary trust be established for the benefit of the claimant and that all medical care and related benefits incurred subsequent to judgment be paid pursuant to the reversionary trust instrument. The reversionary trust instrument shall provide that such medical care and related benefits be paid directly to the provider as they are incurred. Nothing in this Paragraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided, but with the requirement of establishing a reversionary trust. [Emphasis added.]
The Act [HN9] does not limit the rights of a claimant to contract with respect to attorney’s fees and costs when the claimant’s future medical care is paid from a reversionary [Pg 9] trust established by a political subdivision for that claimant’s future medical care. As provided for in Louisiana Revised Statutes 13:5106(D)(3):
[HN10] “Reversionary trust” means a trust established by a political subdivision for [*13] the exclusive benefit of the claimant to pay the medical care and related benefits as they accrue, including without limitation reasonable and necessary amounts for ah diagnosis, cure, mitigation, or treatment of any disease or condition from which the injured person suffers as a result of the injuries, and the sequelae thereof, sustained by the claimant on the date the injury was sustained. The trustee shall have the same fiduciary duties as imposed upon a trustee by the Louisiana Trust Code. Nothing herein shall limit the rights of claimants to contract with respect to attorney fees and costs. [Emphasis added.]
3 Louisiana Revised Statutes 13:5106(B)(3)(a) and (D)(3), [HN11] relative to the creation of reversionary trusts, were added by 1996 La. Acts No. 63, § 1 (effective May 9, 1996). 2000 La. Acts No. 20, § 1 (effective July 1, 2000) amended La. R.S. 13:5106(B)(3)(a) and (D)(3) to provide that the creation of reversionary trusts for the payment of future medical care specifically applies to personal injury claims against political subdivisions.
To ascertain which of the Act’s provisions regarding damage awards apply to Ms. Fecke’s case — either the provision applicable to an award against the state or a state agency, La. R.S. 13:5106(B)(3)(c), or the provision applicable to damage awards against [*14] a political subdivision, La. R.S. 13:5106(B)(3)(a) — this court must determine whether the LSU Board is classified as the “state or a state agency” or as a “political subdivision.” The Act defines a “state agency” as “any board, commission, department, agency, special district, authority, or other entity of the state.” La. R.S. 13:5102(A). The Act defines a “political subdivision” as “[a]ny parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency.” La. R.S. 13:5102(B)(1).
[HN12] The starting point in the interpretation of any statute is the language of the statute itself. Whitley v. State ex rel. Bd. of Supervisors of Louisiana State Univ. Agr. Mech. College, 11-0040 (La. 7/1/11), 66 So. 3d 470, 474. When the wording of a section of the revised statutes is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. La. C.C. art. 9; La. R.S. 1:4. “Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language.” La. R.S. 1:3. [Pg 10] Based on the clear language of La. R.S. 13:5102(A) and (B), the LSU Board is a state agency.4 Because the LSU Board is a state agency, the Act’s provision applicable to [*15] awards for future medical care against the state or a state agency – La. R.S. 13:5106(B)(3)(c) DMASH applies to the instant case. Thus, the trial court legally erred in applying La. R.S. 13:5106(B)(3)(a) to this case. That legal error became prejudicial when the trial court rendered judgment on the jury’s verdict and ordered that Ms. Fecke’s damage award for her future medical care be placed in a reversionary trust, which the trial court referred to as a “Future Medical Care Trust.”5 We therefore amend the portion of the trial court’s October 3, 2014 final judgment that refers to a “Future Medical Care Trust” to refer to the “Future Medical Care Fund.”
4 We note that there is constitutional and statutory authority for the classification of the LSU Board as a state agency. We also note there is jurisprudence that has previously applied the Act to suits involving the LSU Board. In those instances, courts applied the provisions of the Act applicable to state agencies to the LSU Board. See La. Const, art. VIII, § 7; La. R.S. 13:5102(A): La. R.S. 39:1527(1); Whitley, 66 So. 3d at 476; LeBlanc v. Thomas, 08-2869 (La. 10/20/09), 23 So. 3d 241, 246; Student Govt. Association of Louisiana State Univ. Agr. & Meek College, Main Campus, Baton Rouge v. Board of Supervisors of Louisiana State Univ. Agr. & Meek College, 262 La. 849, 867-68, 264 So. 2d 916, 922 (1972) (Barham, J., dissenting); Hunter v. Louisiana State Univ. Agr. & Meek College ex rel. Louisiana Health Care Services Center for Univ. Hosp. at New Orleans, 10-1406 (La. App. 4 Cir. 6/8/11), 77 So. 3d 264, 267, reversed on other grounds, 11-2841 (La. 3/9/12), 82 So. 3d 268.
5 The trial court’s judgment ordered that Ms. Fecke’s future medicals be placed in a “Future Medical Care Trust” in accordance with La. R.S. 13:5106(B)(3)(c); however, as we have discussed, Section 5106(B)(3)(c) applies [*16] to the state and state agencies and governs the placement of a claimant’s future medicals in the Future Medical Care Fund, not a trust.
In addition to its argument that the trial court legally erred in establishing a reversionary trust for Ms. Fecke’s future medical care instead of ordering that those benefits be paid from the FMCF, the LSU Board further contends that the trial court legally erred when it (i) ordered that costs and judicial interest be paid out of and earned on Ms. Fecke’s damage award for future medicals, and (ii) ordered that attorney’s fees be taken out of that award prior to the establishment of a reversionary trust.
[Pg 11] Section 5106(B)(3)(c), referring to La. R.S. 39:1533.2, [HN13] provides that a claimant’s future medicals are paid from the FMCF “directly to the provider as they are incurred.” The FMCF is established by La. R.S. 39:1533.2, which provides:
[HN14] A. There is hereby established in the state treasury the “Future Medical Care Fund”, hereinafter referred to as the “fund”. The fund shall consist of such monies transferred or appropriated to the fund for the purposes of funding medical care and related benefits that may be incurred subsequent to judgment rendered against the state or a state agency [*17] as provided by R.S. 13:5106 and as more specifically provided in R.S. 13:5106(B)(3)(c). All costs or expenses of administration of the fund shall be paid from the fund.
B. The fund shall be administered by the treasurer on behalf of the office of risk management for the benefit of claimants suing for personal injury who are entitled to medical care and related benefits that may be incurred subsequent to judgment. Except for costs or expenses of administration, this fund shall be used only for payment of losses associated with such claims. At the close of each fiscal year, the treasurer shall transfer to the Future Medical Care Fund from the Self-Insurance Fund an amount equal to the monies expended from the Future Medical Care Fund during that fiscal year. Monies in the fund shall be invested by the state treasurer in the same manner as monies in the state general fund. Interest earned on investment of monies in the fund shall be deposited in and credited to the fund. All unexpended and unencumbered monies in the fund at the end of the fiscal year shall remain in the fund. [Emphasis added.]
Ms. Fecke is entitled to receive costs and interest on her damage award in accordance with La. R.S. 13:5112 of the Act; however, pursuant to La. R.S. 39:1533.2 (which [*18] the Act refers to in Section 13:5106(B)(3)(c)), any interest specifically earned on the award for Ms. Fecke’s future medical care “shall be deposited in and credited to” the FMCF. Thus, to the extent that the October 3, 2014 judgment of the trial court awards interest directly to Ms. Fecke’s on her future medical care award, that portion of the judgment is hereby vacated.
[HN15] With regard to costs and attorney’s fees, this court notes that when a reversionary trust is established by a political subdivision for the payment of a claimant’s future medical care and related benefits, the statute does not limit the rights of a claimant to contract with respect to attorney fees and costs. La. R.S. 13:5106(D)(3) [Pg 12]. Ms. Fecke argues that this provision of the Act authorizes the trial court to approve her contract with her lawyer for reasonable attorney’s fees which may be deducted from the jury’s damage award for her future medical care, prior to the establishment of the reversionary trust. Ms. Fecke’s contention regarding reversionary trusts is valid, but, as we have previously held, the reversionary trust provisions contained in La, R.S. 13:5106(B)(3)(a) and (D)(3) do not apply to her suit for personal injury against the LSU Board.
Louisiana Revised Statutes 13:5106(D)(1) defines “[m]edical [*19] care and related benefits” as “all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services.” Thus, the only monies to be paid to a provider from the FMCF for Ms. Fecke’s future medical care are those things defined in Section 13:5106(D)(1). Nowhere in the statutes pertaining to the FMCF does it provide for costs or attorney’s fees to be paid therefrom. Furthermore, costs and attorney’s fees are not “medical care and related benefits” set forth in La. R.S. 13:5106(D)(1). See Starr v. State ex rel. Dept. of Transp. & Dev., 46,226 (La. App. 2 Cir. 6/17/11), 70 So. 3d 128, 144, writs denied, 11-1835 (La. 10/21/11), 73 So. 3d 386, 11-1952 (La. 10/21/11), 73 So. 3d 387, 11-1625 (La. 10/21/11), 73 So. 3d 388 and 12-2146 (La. 10/12/12), 98 So. 3d 877.
We also note that a lump sum is not placed in the FMCF on Ms. Fecke’s behalf, out of which costs and attorney’s fees could be paid directly to her attorneys. As set forth in the statutory scheme, Ms. Fecke’s future medical care will be paid from the FMCF directly to her medical provider as her medical care is incurred.6 La. R.S. 13:5106(B)(3)(c). Therefore, the portions of the October 3, 2014 judgment of the trial court, which ordered that costs and attorney’s fees be [Pg 13] paid out of Ms. Fecke’s damage award for her future medical care, are hereby vacated.
6 The statutory scheme that creates and governs the organization and management of the FMCF is analogous to the statutory scheme that creates and governs the “Patient’s Compensation Fund,” the fund established for the payment of medical malpractice claims. See La. R.S. 40:1299.43-44.
Assignment [*20] of Error 2:
In its second assignment of error, the LSU Board contends that the trial court erred in excluding from trial a one-page Rock Climbing Wall Participation Agreement (“Agreement”) that was provided to Ms. Fecke by the LSU UREC employees, which she executed prior to climbing the wall on the day of her accident. Prior to trial, Ms. Fecke filed a motion in limine to exclude the Agreement, arguing that the document constituted a waiver of liability to release the LSU Board from any and all liability for causing injury to Ms. Fecke. Such exclusion of liability waivers are null under Louisiana law. See La. C.C. art. 2004. The LSU Board opposed the motion. A hearing was held on Ms. Fecke’s motion in limine the day before commencement of the jury trial. The trial court granted the motion excluding the Agreement.
On the second day of the jury trial, the LSU Board moved to re-consider the motion in limine to exclude the Agreement. The LSU Board argued that portions of the Agreement unrelated to the liability waiver, such as certifications regarding Ms. Fecke’s health, mental, and physical condition should be permitted into evidence. The trial court considered entering into evidence a version of the Agreement [*21] that redacted any mention of a waiver of liability; however, the trial court reasoned that a redacted document may cause confusion for the jury who might speculate over the contents of the redacted portions of the Agreement. Recognizing the need to provide the information contained in the “non-waiver of liability” paragraphs of the Agreement to the jury without causing confusion, the trial court opted to instruct the jury that Ms. Fecke certified to the LSU UREC employees that she was in good health and had no mental or physical conditions [Pg 14] that would interfere with her safety or the safety of others. The parties stipulated to the disclosure, and counsel for the LSU Board proffered the Agreement.
On appeal, the LSU Board argues that the Agreement was more than a mere waiver of liability. It argues that the Agreement establishes that Ms. Fecke was sufficiently educated and understood the inherent risk of injury associated with the activity she was about to undertake and that the LSU UREC employees had properly screened Ms. Fecke prior to allowing her to climb the wall. The LSU Board avers that the Agreement constituted Ms. Fecke’s acknowledgment of the risks of climbing the wall, [*22] which is a significant factor in determining her fault, and that this information should have been presented to the jury. Ultimately, the LSU Board contends the Agreement is relevant, highly probative, and its exclusion from evidence materially prejudiced the LSU Board in its ability to defend against Ms. Fecke’s allegations of negligence and the alleged breach of duty owed as the owner of the rock wall climbing facility. Specifically, the LSU Board argues that Ms. Fecke’s acknowledgement regarding the risk of bodily injury, representations regarding her physical and mental capacity and understanding that she alone was to determine whether she was fit to participate in the activity, and her agreement to direct any questions to the climbing wall staff constituted her informed consent and acknowledgement of the risk of climbing the indoor rock wall and are significant factors in determining her fault.
[HN16] All relevant evidence is admissible, except as otherwise provided by law. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. The trial [*23] court has great discretion in its consideration of evidentiary matters such as motions in limine. See Heller v. Nobel Insurance Group, 00-0261 (La. 2/2/00), 753 So. 2d 841. Thus on review, an appellate court must determine whether the [Pg 15] trial court abused its great discretion in ruling on a motion in limine. Id. [HN17] Pursuant to La. C.C.P. art. 1636, when a trial court rules against the admissibility of any evidence, the court shall either permit the party offering such evidence to make a complete record thereof or permit the party to make a statement setting forth the nature of the evidence. Article 1636 is mandatory, not discretionary. Williams v. Williams, 06-2491 (La. App. 1 Cir. 9/14/07), 970 So. 2d 633, 640. The purpose of requiring a proffer is to preserve excluded evidence so that the testimony or evidence is available for appellate review of a trial court’s erroneous ruling. When legal error has been found and a complete record has been made through a proffer, the appellate court is able to conduct a de novo review of the record, including the proffered evidence, to render a decision on appeal. Id. We now review the proffered Agreement de novo to determine whether the trial court committed legal error in excluding the Agreement and whether that legal error prejudiced the LSU Board’s defense.
The Agreement is a one-page document signed by Ms. Fecke [*24] that contains eight paragraphs. The first three paragraphs provide as follows:
I understand and agree that there is a risk of serious injury to me while utilizing University Recreation facilities, equipment, and programs and recognize every activity has a certain degree of risk, some more than others. By participating, I knowingly and voluntarily assume any and all risk of injuries, regardless of severity, which from time to time may occur as a result of my participation in athletic and other activities through LSU University Recreation.
I hereby certify I have adequate health insurance to cover any injury or damages that I may suffer while participating, or alternatively, agree to bear all costs associated with any such injury or damages myself.
I further certify that I am in good health and have no mental or physical condition or symptoms that could interfere with my safety or the safety of others while participating in any activity using any equipment or facilitates of LSU University Recreation. I understand and agree that I alone am responsible to determine whether I am physically and mentally fit to participate, perform, or utilize the activities, programs, equipment or facilities [*25] available at Louisiana State University, and that I am not relying on any advice from LSU [Pg 16] University Recreation in this regard. To the extent I have any questions or need any information about my physical or mental condition or limitations, I agree to seek professional advice from a qualified physician.
The fourth paragraph of the Agreement provides as follows:
Further, I hereby RELEASE AND HOLD HARMLESS, the State of Louisiana, the Board of Supervisors of Louisiana State University and Agricultural & Mechanical College, and its respective members, officers, employees, student workers, student interns, volunteers, agents, representatives, institutions, and/or departments from any and all liability, claims, damages, costs, expenses, personal injuries, illnesses, death or loss of personal property resulting, in whole or in part, from my participation in, or use of, any facility, equipment, and/or programs of Louisiana State University.
The remaining paragraphs of the Agreement provide as follows:
I will wear proper protective equipment and I agree to abide by all rules of the sport as mandated by LSU University Recreation.
I, the undersigned, am at least eighteen (18) years of age [*26] or have a parent/legal guardian’s signature, will not use an auto-belay system if weighing less than 90 pounds, am physically fit, have read this participation agreement, and understand its terms and conditions. I agree not to climb onto the top of the structure and stay directly under the rope or belay system I am using. Any certifications, including belay certifications, are good only at the LSU’s Baton Rouge campus, Student Recreation Center, and are not transferable to any other person.
Any questions concerning equipment to be used should be directed to Climbing Wall Staff prior to engaging in this activity. The wall is not designed for rappelling from the top of the tower. Doing so may result in serious physical injury to the participant and/or bystanders.
At various times throughout the semester, University Recreation will be taking digital images, photographs, and/or videotapes of patrons [for] educational, promotional and informational purposes for use in department related print materials and on our Web site. When/if your likeness or image is used in a publication, there will be no identifying information provided. [Emphasis added.]
Louisiana Civil Code article 2004 provides:
[HN18] Any clause is null that, in advance, [*27] excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.
Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
[Pg 17] Based on our review of the proffered Agreement, paragraph four is null pursuant to La. C.C. art. 2004 because it, in advance, excludes the liability of the LSU Board for causing physical injury to Ms. Fecke. The trial court properly excluded that portion of the Agreement from consideration by the jury. The issue then becomes whether a redacted version of the Agreement, with the remaining paragraphs that do not exclude or limit the liability of the LSU Board, should have come into evidence. As per the agreement of the parties, the trial court gave the jury an instruction, instead of providing a redacted version of the Agreement, and disclosed these minimal facts to the jury:
They stipulate that when Brandy Fecke arrived at the LSU Recreational Center on that evening she certified to them that she was in good health and had no mental or physical condition or symptoms that could interfere with her safety or the safety of others while participating in any [*28] activity using any equipment or facilities of LSU University Recreation; further, that she was at least 18 years of age and was physically fit. So that’s again, as I said, a stipulation is the parties agree those are the facts and they don’t need to have witnesses and so forth testify to that.
Despite the trial court’s instruction to the jury, the LSU Board argues that each paragraph of the Agreement is highly probative as to the fault of the parties and that this probative value substantially outweighs any potential confusion or misleading of the jury that could have resulted from the introduction of the Agreement at trial. During the jury trial, a rock climbing expert for the plaintiff, Dan Pervorse, testified regarding the LSU Board’s duty to Ms. Fecke. Mr. Pervorse stated that the LSU Board failed to provide Ms. Fecke with an adequate warning as to the potential for significant physical injury associated with rock climbing. He further stated that the LSU UREC employees failed to properly screen and instruct Ms. Fecke prior to allowing her to climb. Mr. Pervorse further testified that the LSU Board failed to follow proper safety procedures, including the requirement that a climber [*29] who is bouldering must have a spotter standing behind the climber to provide assistance to the climber and help prevent injuries. [Pg 18] The LSU Board argues that had it been allowed to enter the Agreement into evidence and use it during its cross-examination of Mr. Pervorse, his expert testimony would have been significantly diminished and may have resulted in a different allocation of fault to the LSU Board.
[HN19] Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of La. C.C. art 2315. For liability for damages to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element). Rideau, 970 So. 2d at 573.
[HN20] Rock climbing is a recreational [*30] activity that involves substantial risk. Many other recreational activities such as weight lifting and swimming also involve a substantial degree of risk. The risks associated with these and other physically-challenging sports are well recognized. The duty on the gym operator, when these types of sports are conducted, is one of reasonable care under the circumstances — to provide a sound and secure environment for undertaking a clearly risky form of recreation and not that of removing every element of danger inherent in rock climbing. Ravey v. Rockworks, LLC, 12-1305 (La. App. 3 Cir. 4/10/13), 111 So. 3d 1187, 1192. The LSU Board did not have a duty to warn Ms. Fecke as a climber about the potential effect of gravity. A warning that “if you fall you might get hurt,” is obvious and universally known. See Henshaw v. Audubon Park Com’n., 605 So. 2d 640, 643 (La. App. 4 Cir.) [Pg 19], writ denied, 607 So. 2d 570 (La. 1992).
A gym and its facilities are not the insurers of the lives or safety of its patrons. A gym cannot be expected to foresee or guard against all dangers. Furthermore, the gym must only take reasonable precautions under the circumstances to avoid injury . Ravey, 111 So. 3d at 1190-91. To prove negligence on the part of the LSU Board, Ms. Fecke must show both a failure to provide reasonable training and supervision under the circumstances, as well as [*31] proof of a causal connection between the lack of reasonable training/supervision and the accident. See Ravey, 111 So. 3d at 1191.
The LSU UREC maintains an “Indoor Climbing Wall Manual,” which governs the rules, use, and maintenance of the indoor rock wall climbing facility. The manual requires the following of all employees of the indoor rock wall climbing facility:
1. Full knowledge of facilities and programs ….
2. Ability to seek answers to questions.
3. Provide consistency and continuity.
4. Carry out assigned routine and non-routine tasks.
5. Follow and enforce staff and program policies and procedures.
6. Maintain a safe and enjoyable recreation environment.
Employees are required to know and enforce all climbing wall and LSU UREC rules.
The manual distinguishes between the climbing wall and the bouldering wall. The climbing wall utilizes a safety rope belay system, where a climber climbs the wall while strapped into a harness and is “belayed” via ropes by an LSU UREC employee. Bouldering, as opposed to rope climbing while wearing a harness, does not involve the use of ropes and requires the climber to traverse the boulder wall from side-to-side instead of climbing up the wall. The manual lists the following [*32] rules for bouldering:
[Pg 20] 1. Before bouldering the climber must check in at the desk.
2. The number of climbers at any one time may be limited to ensure proper supervision. When people are using climbing ropes, bouldering on walls behind them, may be stopped. Bouldering may be limited based on climber’ s/belayer’s location on the wall.
3. The climber may not boulder above or below any other climbers and must be sure that pants pockets are empty.
4. A bouldering sequence may be marked with tape.
5. Only the climbing staff may switch holds if necessary.
6. Spotting is required as bouldering can become quite demanding and may involve moves increasing the possibility of the climber coming off the wall in an awkward position. A spotter is required, to provide assistance to prevent injuries. Help all spotters to make sure that they are using proper technique and understand the purpose of spotting.
7. Participants are required to properly use crash pads at all times, a spotter may help to position crash pads.
8. Intentional jumping off the wall is not allowed. Please, climb down.
9. Please remove all hand jewelry and long necklaces. Clean athletic shoes, running shoes, or climbing shoes are the [*33] only shoes permitted. Shirts must be worn at all times. Tie hair back when necessary.
10. Be safe, be creative, have fun! [Emphasis added.]
Furthermore, the LSU UREC employees are required to instruct patrons who intend to climb in accordance with the guidelines contained in a “safety clinic” document. The safety clinic requires the LSU UREC employees to give examples of danger areas and instruct climbers where to fall on crash pads, which must be placed underneath bouldering climbers at all times. The safety clinic requires the LSU UREC employees to give an example of the technique of spotting and have the participating climbers demonstrate spotting. Section 6 of the safety clinic provides:
a. Every climber must request a spotter when applicable, i.e. when climbing at one’s limit or climbing into a situation that could yield a long or awkward fall.
b. Proper spotting techniques:
i. The role of the spotter is to first assist the climber in landing properly on their feet in the upright position. Secondly, to protect the climber’s head from hitting something hard (floor, wall, etc).
ii. Hands up, thumbs in (spoons not forks).
iii. Dominant leg back, to use as a brace.
iv. Do not catch the climber; [*34] help them regain proper balancing while landing.
[Pg 21] The safety clinic also requires the LSU UREC employees to demonstrate how to properly descend the wall, and in the event of a fall, how to properly land on the ground to reduce injuries.
At trial, Ms. Fecke, her friend Mr. Culotta, and the two LSU UREC employees who were working the night of the accident, Emanuel Andrews and Andrew Whitty, testified as to the events.7 Ms. Fecke testified that after having her course form signed and executing the Agreement, Mr. Whitty gave Ms. Fecke and Mr. Culotta a “few minutes or so” of instruction. She stated that the climbing wall employees made no clear distinction between rope climbing with a harness or bouldering. Mr. Whitty asked if she wanted to wear a harness, but she declined, stating that she and Mr. Culotta wanted to climb “whatever [wall] was easiest,” to which he indicated they could climb the back 13′ 1″ bouldering wall located on the rear wall. Ms. Fecke also testified that Mr. Whitty indicated to her that most people climbed without a harness and that it was “up to her” whether she wanted to climb while wearing a harness. Mr. Culotta suggested that she wear a harness, which Ms. [*35] Fecke took as a joke stating, “[t]he worker at the wall didn’t make me feel like it was necessary and said most people didn’t, so I didn’t think it was something I had to do.”
7 The deposition of Andrew Whitty was read in open court.
Ms. Fecke testified that the employees did not ask her to demonstrate her climbing ability. She further stated that the employees did not explain the technique of climbing with a spotter or that spotting was required in order to climb the boulder wall and that she and Mr. Culotta never spotted each other. In terms of climbing instruction given by the employees, Ms. Fecke testified that “[o]ne of the guys climbed about half the wall quickly and came back down” in about thirty seconds and asked if they had any questions, which she stated she and Mr. Culotta [Pg 22] did not have at the time. Ms. Fecke testified that there wasn’t anything she “didn’t get” in terms of instruction about climbing the wall.
Mr. Culotta testified that he and Ms. Fecke arrived at the indoor rock wall climbing facility about an hour before closing. He stated that after he and Ms. Fecke indicated their relative climbing experience, the employees gave a “few minutes” of “some basic instruction,” [*36] and one of the employees demonstrated climbing up the wall in about thirty seconds. Mr. Culotta stated that he did not remember any discussion of the spotting technique during the instruction by the climbing wall employees. Mr. Culotta further testified that he never spotted Ms. Fecke.
Andrew Whitty, one of the climbing wall employees working the night of Ms. Fecke’s accident, testified that he went over the rules and regulations of the climbing facility with Ms. Fecke and Mr. Culotta since they were both new climbers. Mr. Whitty testified that if a patron was new to the climbing wall, the employees would have to give a “brief sort of instruction” during which the employees would go over certain things,” such as the difference between climbing with a rope and bouldering. Mr. Whitty stated that since Ms. Fecke and Mr. Culotta opted to climb the boulder wall since it was more convenient, he went over spotting techniques. Mr. Whitty testified that Mr. Culotta was spotting Ms. Fecke at the time of her fall. Mr. Whitty stated that he could not recall if there was a policy in place at the LSU UREC that required a spotter for a climber on the bouldering wall. He also could not recall whether [*37] there was policy or procedures manual for the climbing wall, and if there was, he stated he did not refer to it often. Mr. Whitty testified that climbers were not tested for proficiency prior to climbing.
Emanuel Andrews, the other employee working the night of Ms. Fecke’s accident, witnessed Ms. Fecke as she fell from the wall. Mr. Andrews was standing approximately twenty feet from where Ms. Fecke and Mr. Culotta were [Pg 23] climbing, in the middle of the room, Mr. Andrews testified that while Ms. Fecke climbed the wall, Mr. Culotta was standing in the correct position to spot her, but that as she fell, Mr. Culotta moved away from the wall and out of the spotting position.
We also note that the plaintiff’s expert on rock wall climbing, Mr. Pervorse, testified that the spotting technique, which should be used any time a climber traverses a bouldering wall, involves “having a good stance, one foot forward, one foot back, slightly wider than shoulder width so that you have a good support base and, then your hands up.” He further stated that the purpose of spotting is to “slow [the climbers] fall, to keep them upright, keep them from falling over and hurting their self further by potentially [*38] falling off a mat and hitting their head, to help steadying them when they do land.”
After our de novo review of the testimony and evidence presented at trial, we conclude that the LSU UREC employees failed to properly instruct, demonstrate, and certify that Ms. Fecke and Mr. Culotta understood the proper techniques for climbing the bouldering wall in accordance with their duties as described in the LSU UREC “Indoor Climbing Wall Manual” and the safety clinic document. While the employees may have explained the spotting technique, Ms. Fecke and Mr. Culotta both testified that neither spotted the other as they climbed. Despite the LSU Board’s contention that the Agreement represents Ms. Fecke’s acknowledgment of the risks involved in rock wall climbing, as stated above, those risks are well-known. The only portion of the excluded Agreement that might have prejudiced the LSU Board’s case is the portion in paragraph five wherein Ms. Fecke certified that she “agree[d] to abide by all rules of the sport as mandated by LSU University Recreation.” As discussed above, however, instruction as to those “rules” was not provided to Ms. Fecke by the LSU UREC employees nor was she properly screened or supervised [*39] as she climbed the bouldering wall.
[Pg 24] Paragraph four of the Agreement is null because it, in advance, excludes the liability of the LSU Board for causing physical injury to Ms. Fecke, but the remaining paragraphs of the Agreement are not illegal waivers of liability. Thus, we find that the trial court legally erred in excluding a redacted version of the Agreement; however, we hold that the trial court’s error was not prejudicial. The inclusion of the remainder of the Agreement at trial could not have permissibly changed the jury’s verdict based on our de novo review of the record.
Assignment of Error 3:
In the third and final assignment of error, the LSU Board asserts that the trial court improperly instructed the jury on the award of damages for the “loss of future earnings” when the trial court should have instructed the jury on damages for the “loss of future earning capacity.” It is undisputed that at the time of Ms. Fecke’s accident, she was an unemployed senior college student at LSU. Ms. Fecke later graduated from LSU with a degree in kinesiology and obtained a secondary degree as a physical therapy assistant. At the time of trial, she was employed as a physical therapy assistant, [*40] but testified that she had recently taken on a less strenuous, and lower paid, physical therapy assistant job due to her injuries. The LSU Board argues that because Ms. Fecke was unemployed at the time of her accident, she suffered no loss of earning or loss of future earnings, but rather suffered a loss of future earning capacity.
The distinction between a damage award for the loss of future earnings and the loss of future earning capacity is crucial in this case because as a state agency, the LSU Board’s liability for damages for an award of loss of future earning capacity is included in the $500,000.00 cap on damages pursuant to La. R.S. 13:5106(B)(1). In contrast, damages for a loss of future earnings, as was awarded by the jury to Ms. Fecke based on the instruction given by the trial court, are excluded from the $500,000.00 damages cap, La. R.S. 13:5106(B)(1); see also [Pg 25] Cooper v. Public Belt R.R., 03-2116 (La. App. 4 Cir. 10/6/04), 886 So. 2d 531, 539, writ denied, 04-2748 (La. 1/28/05), 893 So. 2d 75 (the $500,000.00 cap on damages in actions against governmental units applied to damages for loss of future earning capacity; loss of future earning capacity was not the same as a loss of future earnings, and thus, it did not fall within an exception to the cap). It therefore behooves this court to determine whether or not the jury [*41] instruction given by the trial court on a loss of future earnings was proper.
Louisiana Code of Civil Procedure article 1792(B) [HN21] requires a district judge to instruct the jury on the law applicable to the case submitted to them. The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate. Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61 So. 3d 507, 573. The question here is whether the district judge adequately instructed the jury, as that concept has been defined in the jurisprudence:
[HN22] Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error.
Wooley, 61 So. 3d at 574 (citing Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08), 983 So. 2d 798, 804.).
Generally, the giving of an allegedly erroneous jury instruction will not constitute grounds for reversal unless the instruction is erroneous and the complaining [*42] party has been injured or prejudiced thereby. In fact, Louisiana jurisprudence is well established that a reviewing court must exercise great restraint before it reverses a jury verdict due to an erroneous jury instruction. Wooley, 61 So. 3d at 574. When a reviewing court finds the jury was erroneously instructed and the error probably [Pg 26] contributed to the verdict, an appellate court must set aside the verdict. Wooley, 61 So. 3d at 574.
[HN23] In order to determine whether an erroneous jury instruction was given, reviewing courts must assess the targeted portion of the instruction in the context of the entire jury charge to determine if the charges adequately panicle the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its determination. The ultimate inquiry on appeal is whether the jury instructions misled the jury to such an extent that the jurors were prevented from dispensing justice. The law is clear the review function is not complete once error is found. Prejudice to the complaining party cannot automatically be assumed from the mere fact of an error. Instead, the reviewing court must then compare the degree of the error with the [*43] adequacy of the jury instructions as a whole and the circumstances of the case. Wooley, 61 So. 3d at 574.
Louisiana Revised Statutes 13:5106(D)(2) [HN24] defines “loss of future earnings” as “any form of economic loss which the claimant will sustain after the trial as a result of the injury … which forms the basis of the claim.” In contrast, loss of earning capacity is not the same as lost earnings. Rather, earning capacity refers to a person’s potential. Batiste v New Hampshire Ins. Co., 94-1467 (La. App. 3 Cir. 5/3/95), 657 So. 2d 168, 170, writ denied, 95-1413 (La. 9/22/95), 660 So. 2d 472. The Louisiana Supreme Court has held that damages for a loss of earning capacity should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury. Earning capacity in itself is not necessarily determined by actual loss. Hobgood v. Aucoin, 574 So. 2d 344, 346 (La. 1990); Folse v. Fakouri, 371 So. 2d 1120, 1124 (La. 1979). The claimant need not be working or even in a certain profession to recover an award for loss of future earning capacity. Brandao v. Wal-Mart Stores, Inc., 35,368 (La, App. 2 Cir. 12/19/01), 803 So. 2d 1039, 1043 [Pg 27], writ denied, 02-0493 (La. 4/26/02), 814 So. 2d 558. Damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he [*44] never profited from it monetarily. Hobgood, 574 So 2d at 346; Folse, 371 So. 2d at 1124.
[HN25] An award for loss of earning capacity is inherently speculative and cannot be calculated with absolute certainty. The most the courts can do is exercise sound discretion and make an award that in light of all facts and circumstances is fair to both parties while not being unduly oppressive to either. In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiffs current condition disadvantages her in the work force. Henry v. National Union Fire Ins. Co., 542 So. 2d 102, 107, writ denied, 544 So. 2d 405 (La. 1989) and 544 So. 2d 405 (La. 1989). Factors to be considered in fixing awards for loss of earning capacity include: age, life expectancy, work life expectancy, past work record, appropriate discount rate, the annual wage rate increase or productivity increase, prospects for rehabilitation, probable future earning capacity, loss of earning ability, and the inflation factor or decreasing purchasing power of the applicable currency. Henry, 542 So. 2d at 107; Brandao, 803 So. 2d at 1043.
Experts at trial testified that Ms. Fecke would likely have to change career paths — from a [Pg 28] physical therapy assistant to a job in a more sedentary position — at some undetermined point [*45] in the future due to her injuries. Stephanie Chalfin, a vocational rehabilitation expert, presented options for potential new careers for Ms. Fecke. Harold Asher, a certified public accountant and an expert in the projection of economic loss testified as to Ms. Fecke’s potential maximum salary as a physical therapy assistant (which was provided by Ms. Chalfin). Mr. Asher then calculated the difference between the hypothetical salary and Ms. Fecke’s potential earning capacity under three scenarios: Ms. Fecke remaining in her field as a physical therapy assistant, obtaining employment as a social worker, or obtaining employment as a rehabilitation counselor. Mr. Asher projected his figures over the anticipated work life of Ms. Fecke and considered a number of factors including her age, how long he expected her to continue working, her motivation to work, growth rate, and wages anticipated each year of her work life.
The jury instructions were lengthy, and this is the only reference therein to a damage award for “loss of future earnings”:
Under the loss of future earnings component of damages, the plaintiff is entitled to recover damages for the deprivation of what she should have earned [*46] but for the injury. Such damages are calculated on the plaintiff’s ability to earn money in her chosen career compared to what she can now earn because of her injury. In determining such an award, you may consider plaintiff’s physical condition and mental status before and after this incident, her work record, her earnings in prior years, the probability or improbability that she would have earned similar amounts in the remainder of her work life, and similar factors. And since, if you make an award, plaintiff would be receiving today sums of money that otherwise she would only receive over a number of years in the future, the law requires that you discount or reduce it to its present value, which is what the experts in this case have already done.
The LSU Board objected to the jury instruction given by the trial court regarding damages for “loss of future earnings.” The trial court, after citing to the Fourth Circuit’s decision in Cooper, 886 So. 2d 531, and the Louisiana Supreme Court’s decision in Folse, 371 So. 2d 1120, stated:
The cases dealing with loss of future earnings dealt with cases where the injured plaintiff was already in a certain career or profession or job description and they could not continue on in that same [*47] job. The evidence in this case was that Ms. Fecke was, despite her injury, able to qualify and go into her chosen profession of physical therapy assistant, but because of her injury will not be able to continue in that type of employment and must therefore seek other employment which may or may not pay less, as indicated by the experts who testified.
[Pg 29] So for that reason, I felt that this was more loss of future earnings as opposed to loss of earning capacity. So that’s why I gave that charge as opposed to a future earning capacity charge or a future earning capacity entry on the verdict form.
Unlike the trial court’s reasoning, [HN26] the Louisiana Supreme Court has drawn a distinction between “pecuniary loss” and a “loss of earning capacity.” The supreme court explained the rationale behind the concept of loss of future earning capacity as opposed to loss of future earnings by stating that “the theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.” Folse, 371 So. 2d at 1123. Further, by noting that proof of loss of future earning capacity does not require proof of future monetary loss, the supreme court reinforces [*48] the conclusion that loss of future earning capacity is not an “economic loss” within the intendment of La. R.S. 13:5106(D)(2). See Folse, 371 So. 2d at 1123. Therefore, like the Fourth Circuit in Cooper, we hold that “pecuniary loss,” as used in Folse by the supreme court, is synonymous with “economic loss” as employed in La. R.S. 13:5106(D)(2). See Cooper, 886 So. 2d at 539. Thus, Ms. Fecke suffered a loss of future earning capacity as a result of her injury. It is impossible for her to receive an award for loss of earnings or loss of future earnings because she suffered no economic loss as a result of her accident since she was unemployed at the time.
The jury awarded damages estimated on Ms. Fecke’s potential to earn money in the future, which is her future earning capacity. Based on the law, the expert testimony, and the evidence introduced at trial, we find that the trial court’s instruction regarding loss of future earnings was erroneous. Furthermore, we find that the error was prejudicial to the LSU Board, particularly with regard to the $500,000.00 liability cap, pursuant to La. R.S. 13:5106(B)(1), on a damage award for a loss of future earning capacity. The error resulted in an award to Ms. Fecke that was a larger amount than she was statutorily entitled to receive. The judgment [Pg 30] warrants [*49] amendment based on the degree of this error combined with the adequacy of the jury instructions as a whole and the circumstances of this case. Therefore, we amend the portion of the October 3, 2014 judgment of the trial court, which awarded Ms. Fecke damages for loss of future earnings, to award Ms. Fecke those damages as her loss of future earning capacity. We furthermore amend the judgment to cap Ms. Fecke’s damages, exclusive of her medical care and related benefits, at $500,000.00 in accordance with La. R.S. 13:5106(B)(1).
We further note that the modification of Ms. Fecke’s damages award extinguishes the loss of consortium award to Karen Fecke. Louisiana Revised Statutes 13:5106(D)(4) [HN27] provides that “‘[d]erivative claims’ include but are not limited to claims for survival or loss of consortium.” A claim for loss of consortium pursuant to La. C.C. art. 2315(B) is a derivative claim, derived from damages to the primary plaintiff. An award of general damages in the maximum amount of $500,000.00 as allowed by statute in actions against state agencies and/or political subdivisions of the state serves to legally extinguish any derivative awards for loss of consortium, services, and society. See Jenkins v. State ex rel. Dept. of Transp, & Dev., 06-1804 (La. App. 1 Cir. 8/19/08), 993 So. 2d 749, 778, writ denied, 08-2471 (La. 12/19/08), 996 So. 2d 1133. We therefore reverse the trial court’s judgment in part and vacate [*50] the award of damages for loss of consortium to Karen Fecke.
DECREE
We amend the portion of the trial court’s October 3, 2014 final judgment, which orders that Ms. Fecke’s award of $750,000.00 for medical care and related benefits incurred subsequent to judgment be placed in a reversionary “Future Medical Care Trust,” to order that Ms. Fecke’s award of $750,000,00 for medical care and related benefits incurred subsequent to judgment be paid from the Future Medical Care Fund in accordance with La. R.S. 39:1533.2. The portions of the [Pg 31] judgment awarding interest directly to Ms. Fecke and ordering that attorney’s fees and costs be paid out of Ms. Fecke’s damage award for her medical care and related benefits incurred subsequent to judgment are hereby reversed. Furthermore, the portion of the October 3, 2014 judgment of the trial court, which awarded Ms. Fecke damages in the following amounts:
Physical Pain and Suffering, Past and Future: $112,500.00
Mental Pain and Suffering, Past and Future: $93,750.00
Loss of Enjoyment of Life: $56,250.00
Permanent Disability and Scarring: $123,750.00
Loss of Future Earnings: $262,500.00
TOTAL (exclusive of medical care and related benefits) $648,750.00
is hereby amended [*51] to cap the total amount of damages, exclusive of medical care and related benefits, to $500,000.00 as mandated by La. R.S. 13:5106(B)(1). We reverse and vacate the trial court’s award for loss of consortium to Karen Fecke. The remainder of the judgment is affirmed,
REVERSED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.
Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR. Court finds (or confuses) both no duty owed to prove negligence and assumption of the risk on the part of the deceased.
Posted: June 16, 2014 Filed under: Assumption of the Risk, Louisiana, Rivers and Waterways | Tags: Amite River, assumption of the risk, CPR, Custody and Control, drowning, Limited liability company, Livery, Louisiana, Tubing Leave a commentLouisiana is one state that does not allow the use of a release. (See States that do not Support the Use of a Release.) This limits the possible defenses in LA.
Parveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
Date of the Decision: March 23, 2012
Plaintiff: Neelam Parveen, Individually and on Behalf of Mansoor Raja and their Minor Children
Defendant: Tiki Tubing, LLC and Abc Insurance Company
Plaintiff Claims: negligence, gross negligence, duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River. Also failure of the employees of the defendant to perform CPR properly.
Defendant Defenses:
Holding: for the defendant tubing livery
The plaintiff is the husband of the deceased and mother of their children.
The defendant was a tubing rental (livery) operation on the Amite River in Louisiana. For the fee the defendant provides parking, a bus ride to the put in, tubes and a beach entry and exit. The Amite River is advertised by the defendant on it’s website at 1” to 3” deep with 6”-8” holes. The river is slow moving and smooth.
The defendant also states “Tiki . . . and its affiliates assume no liability for personal injury or loss of personal property.” The defendant provides life jackets free of charge however customers are not required to wear them. No one was aware of a prior drowning on the river. No employees of the defendant were trained in life saving or first aid or CPR.
The deceased was accompanied by two other companions. One of the three printed the other names on the release. The deceased did not sign the release. The three were also given safety instructions.
The men started leaving their tubes and swimming downstream for a short distance before waiting for the current to bring their tube to them. At some point the deceased went under the surface and did not come up. Eventually an employee found the deceased and got him to the surface.
A companion started CPR and was assisted by four other people including some employees of the defendant.
The plaintiff filed suit which was dismissed after the defendant filed a motion for summary judgment. The plaintiff appealed.
Summary of the case
The court outlined the plaintiff’s claims as:
Broadly stated, the plaintiff maintains that Tiki had custody of the tubing route on the Amite River and, accordingly, that Tiki owed its patrons a duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River.
The plaintiff also alleges that once Tiki employees involved themselves in attempted life-saving procedures on Raja, those employees assumed a duty to perform those life-saving measures properly.
Under Louisiana law a tort is defined as:
The elements of a cause of action in tort are fault, causation, and damage. The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Although the determination of whether to assign a legal duty is fact-specific, the issue of whether there is a duty ultimately is a question of law.
The court found that to prove her case the plaintiff must prove:
(1) Tiki is the custodian of the portion of the Amite River that includes the tubing route; (2) that portion of the Amite River is defective and that the defect presented an unreasonable risk of harm; (3) Tiki knew or should have known of the defect; (4) the plaintiff was damaged by the defect; and (5) Tiki could have prevented the damage to the plaintiff by the exercise of reasonable care, which Tiki failed to exercise.
Failure to prove one element defeats the plaintiff’s claims.
The court first looked at whether or not the defendant had control over the river to be liable for it. The court defines this as the defendant having custody and control over the river. To determine whether the defendant had the requisite custody and control the court held it had to consider:
(1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing. “The person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another.” This court has held that a state-owned river cannot be in the custody of a landowner.
Even if the plaintiff could prove the defendant’s “custody” of the river, the plaintiff would also have to prove that the river section at issue was defective.
This court has held that the “existence of a hole in a natural lake, that renders the depth of the lake deeper than other portions, would not, ipso facto, constitute a defective. Further, “variations in water depth within natural swimming areas are standard.” Citing this court in Johnson, the Fourth Circuit has concluded that there is no distinction between a hole in a lake and a drop off in a river. The plaintiff fails to establish that the deeper pocket in this natural body of water constitutes a defect for purposes of Article 2317.1.
The conditions of the river at the time of the decedents drowning were all conditions that under Louisiana law were inherent risks and thus assumed by the deceased.
The court next looked the risks of tubing.
Tubing has been defined as an activity that is obviously and inherently dangerous. Drowning because of currents is a natural and inevitable risk to swimmers in a natural body of water. When a risk is obvious, there is no duty to warn or protect against it.
The court concluded the deceased voluntarily left this tube to swim in the river without a life jacket.
The court then looked at the issue of failure to perform CPR properly. Under Louisiana law if a person voluntarily undertakes a “task that he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable or prudent manner.”
Although the plaintiff’s expert witness stated that CPR was performed improperly, no one was able to claim that the actions of the defendant employees were “unreasonable, imprudent, or, more importantly, a cause-in-fact of Raja’s death or that there was a reasonable probability that proper CPR would have been lifesaving in these circumstances.”
The court found since no one could point that a specific employee or employees had done something wrong in performing CPR then that claim must also fail.
The court upheld the trial courts motion for summary judgment with this statement.” Despite not being a good swimmer, Raja willingly entered the river without a life jacket and chose to swim away from his tube. It was Raja’s own imprudent actions that led to his tragic death.”
So Now What?
Louisiana law came from the Napoleonic code. Consequently the laws in Louisiana are generally different, other than the protections afforded by the US constitution. Louisiana does not allow the use of a release to stop claims.
C.C. Art. 2004 (2005)
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
See States that do not Support the Use of a Release.
Here the court seemed to combine the issue to find the defendant owed no duty to the deceased and the deceased assumed the risk of the activity which lead to his death, without using the terms specifically.
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Parveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
Posted: June 8, 2014 Filed under: Assumption of the Risk, Legal Case, Louisiana, Rivers and Waterways | Tags: Amite River, assumption of the risk, CPR, Custody and Control, Defendant, drowning, Livery, Louisiana, Tiki, Tiki bar, Tubing Leave a commentParveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
Neelam Parveen, Individually and on Behalf of Mansoor Raja and their Minor Children Versus Tiki Tubing, LLC and Abc Insurance Company
NO. 2011 CA 1477
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
March 23, 2012, Judgment Rendered
NOTICE: NOT DESIGNATED FOR PUBLICATION.
PLEASE CONSULT THE LOUISIANA RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Writ denied by Parveen v. Tiki Tubing, LLC, 90 So. 3d 1063, 2012 La. LEXIS 1798 (La., June 15, 2012)
PRIOR HISTORY: [*1]
On Appeal from the 21st Judicial District Court, in and for the Parish of Livingston, State of Louisiana. District Court No. 128,216. The Honorable Elizabeth P. Wolfe, Judge Presiding.
DISPOSITION: AFFIRMED.
COUNSEL: Nicholas M. Graphia, Monroe, La., Counsel for Plaintiff/Appellant, Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children.
C. David Vasser, Jr., Baton Rouge, La., Counsel for Defendant/Appellee, Tiki Tubing, L.L.C.
JUDGES: BEFORE: CARTER, C.J., PARRO AND HIGGINBOTHAM, JJ.
OPINION BY: CARTER
OPINION
[Pg 2] CARTER, C.J.
The plaintiff appeals the summary judgment dismissing her suit for damages arising from the drowning death of her husband. For the reasons that follow, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Tiki Tubing, L.L.C. (Tiki) is a commercial enterprise located on the banks of the Amite River. During peak summer months, Tiki employs 10-15 full time employees. For a fee, Tiki provides customers with parking, tube rental, a bus ride upstream, and a beach entry and exit on the river. The tubing route on the Amite River takes approximately four hours to complete. The Tiki website describes the Amite River as “smooth and slow moving and … 1 to 3 feet deep with a few deeper holes from [*2] 6 to 8 feet deep.” The website continues: “All bodies of water have some inherent risks. Tiki . . . and its affiliates assume no liability for personal injury or loss of personal property.” The tubers are grouped together at the Tiki hut and bused upstream to the ingress point on the river. At this point, the tubers select their tubes and enter the water.
According to John Fore, the managing member of Tiki, there are no warning signs posted at the hut or along the river. Tiki provides life jackets free of charge to customers; however, customers are not required to wear them. Neither Fore nor the Tiki employees were aware of any prior drowning on the tubing route. There are no lifeguards or rescuers on staff, and employees are not trained in water safety or in cardiopulmonary resuscitation (CPR). Tiki employees do not travel the river with the tubers, and there is no emergency equipment along the river route or at the Tiki [Pg 3] facility. Tiki does hire off-duty Livingston Parish Deputies as independent contractors to assist with crowd control, public drinking, drugs, broken glass, and unlocking of cars. The deputies are not posted on the tubing route; they are not hired to handle medical [*3] emergencies.
On June 21, 2009, 37-year-old Mansoor Raja and two of his friends decided to tube the Amite River. Raja had never tubed before, and after reading about Tiki from its internet website, Raja, Akhlaq Akhtar, and Tariq Mehmood drove to the facility. The group was presented with a liability waiver at the hut, and Akhtar printed all three men’s names on the bottom of the sheet.1 Although Raja was with Akhtar when Akhtar completed the form, Raja did not read or sign the waiver. Akhtar remembered the men being given a document containing safety instructions and that this information also was posted on a board. According to Akhtar, all three men read the instructions, which specifically mentioned the availability of life jackets. Akhtar asked the other men if they needed life jackets, but the general consensus was that the water would not be deep enough and that the life jackets were not needed. The waiver sheet is the only “warning” at the Tiki facility.
1 The waiver is entitled “Participant’s Agreement, Release, and Assumption of Risk.” The bottom of the form has multiple lines upon which customers write their names.
The three men boarded the bus, rode upstream, retrieved their tubes, [*4] and entered the river. According to Akhtar, Raja and Mehmood were playing around and getting caught in trees in the water. Akhtar tried to rush the other two men along so that they would not get separated from the group. The water was shallow, and Raja and Mehmood were leaving their tubes and [Pg 4] swimming freely in the river. The three men continued in this fashion for 15 to 20 minutes.
On the river trip, Raja was “getting excited.” He would leave his tube, swim downstream with the current, then wait for his tube to float to him. Raja did this four or five times. The men stopped to take a photograph, after which Raja said he would swim just one more length. Suddenly, while swimming ahead of his tube, Raja disappeared under the water. Then, Mehmood began having trouble in the water. Akhtar floated toward his friends and was able to help Mehmood get hold of the tube and out of the water. Raja, however, panicked and was unable to grasp the tube. According to Akhtar, the water was “too far deep” and moving much faster underneath the surface. Akhtar did not leave his tube in an attempt to pull Raja from the water because, according to Akhtar, the water was too deep and the current would [*5] have pulled him under too. Akhtar explained: “If you go to somebody who’s drowning, he’ll take you with him even if you are [a] good swimmer….”
Other floaters, noticing the commotion, began calling for help; the authorities were alerted with a call to 911, and another tuber ran toward the ingress point where several employees were working to notify them that someone was “lost.” Christopher Seese, a teenage employee of Tiki, stated that he first thought someone had simply gotten off his tube and run off. Upon realizing there was a problem, three employees ran to the scene. Fifteen to twenty tubers were sitting on the beach, and several tubers were swimming around in the deeper area of the river. The employees immediately entered the river. It took Christopher five to ten minutes to [Pg 5] locate Raja in the eight-foot-deep pocket in the river by dragging his foot in the water. Raja’s body was resting against a submerged log. According to Christopher, the current in the pocket was no stronger than the rest of the river; however, the water was deeper. It was estimated that it took an additional three to four minutes to get Raja out of the water and onto the shore.
Raja was brought to [*6] the shore, and another tuber was the first to attempt CPR. Because he was on the opposite side of the river, Akhtar estimated that it took him ten minutes to get to Raja after he was pulled from the water. Upon reaching shore, Akhtar observed that the unidentified tuber was performing CPR incorrectly, so Akhtar took over.2 Akhtar blew air into Raja’s chest, and Tiki employee Jacob Bourgeois assisted with chest compressions. Ultimately, four different people performed chest compressions on Raja, assisting Akhtar with CPR until the rescue helicopter arrived. According to Akhtar, Raja’s pulse was restored and he was warm to the touch prior to the arrival of paramedics and being airlifted to a hospital. Raja’s death certificate indicates he died the next day, June 22, 2009.
2 Akhtar explained that he had received training in CPR during military service.
Raja’s surviving spouse, Neelam Parveen, filed this wrongful death and survival action for damages against Tiki and its insurer, alleging Tiki’s negligent acts and omissions were a proximate cause of Raja’s death. After answering the petition, Tiki filed a motion for summary judgment, alleging Tiki did not breach any legal duty to Raja. Subsequent [*7] to the filing of Tiki’s motion for summary judgment, but prior to the hearing on the motion, the trial court granted the plaintiff leave to file a supplemental and amending [Pg 6] petition for damages. Therein the plaintiff alleged that she was entitled to punitive damages under general maritime law in that Tiki’s conduct was grossly negligent, reckless, and wanton. Thereafter, the plaintiff filed an opposition to Tiki’s motion for summary judgment, with attachments thereto, as well as a supplemental opposition.
Following a hearing, the trial court granted Tiki’s motion for summary judgment, and the plaintiff’s claims against Tiki were dismissed with prejudice. The plaintiff appeals, asserting several arguments in support of her position that summary judgment was improperly granted.
SUMMARY JUDGMENT
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La. App. 1 Cir. 9/10/10), 47 So. 3d 1024, 1027, writ denied, 10-2227 (La. 11/19/10), 49 So. 3d 387. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions [*8] on file, together with 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. Proc. Ann. art. 966B. Summary judgment is favored and designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Proc. Ann. art. 966A(2).
Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. All Crane, 47 So. 3d at 1027. On a motion for summary judgment, the burden of proof is on the mover. La. Code Civ. Proc. Ann. art. 966C(2) [Pg 7]. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Id. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary [*9] burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966C(2); All Crane, 47 So. 3d at 1027.
In ruling on a motion for summary judgment, the court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter but, instead, to determine whether there is a genuine issue of triable fact. All Crane, 47 So. 3d at 1027. A court cannot make credibility decisions on a motion for summary judgment. Id. In deciding a motion for summary judgment, the court must assume that all of the witnesses are credible. Id. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Id. Whether a particular fact in dispute is “material” for summary judgment purposes is viewed in light of the substantive law applicable to the case. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d 131, 137.
[Pg 8] DISCUSSION
The plaintiff advances several theories of recovery for the alleged negligence or gross negligence of Tiki. [*10] Broadly stated, the plaintiff maintains that Tiki had custody of the tubing route on the Amite River and, accordingly, that Tiki owed its patrons a duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River. The plaintiff also alleges that once Tiki employees involved themselves in attempted life-saving procedures on Raja, those employees assumed a duty to perform those life-saving measures properly.
The elements of a cause of action in tort are fault, causation, and damage. Seals v. Morris, 410 So. 2d 715, 718 (La. 1981). The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Id. Although the determination of whether to assign a legal duty is fact-specific, the issue of whether there is a duty ultimately is a question of law. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376 (La. App. 1 Cir. 5/9/03), 849 So. 2d 622, 627, writ denied, 03-1579 (La. 10/3/03), 855 So. 2d 315. The inquiry is whether the plaintiff [*11] has any law–statutory, jurisprudential, or arising from general principles of fault– to support her claim. Faucheaux v. Terrebonne Consol. Government, 615 So. 2d 289, 292 (La. 1993); Fredericks v. Daiquiris & Creams of Mandeville, L.L.C, 04-0567 (La. App. 1 Cir. 3/24/05), 906 So. 2d 636, 639, writ denied, 05-1047 (La. 6/17/05), 904 So. 2d 706.
[Pg 9] Under Louisiana Civil Code article 2317, “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” Louisiana Civil Code article 2317.1 modifies Article 2317 and provides in pertinent part:
[The] custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
The plaintiff alleges that in accordance with Article 2317.1, Tiki, as custodian3 of the tubing route on the Amite River, owed a duty to its patrons [*12] to employ safety measures to prevent drowning and to discover any unreasonably dangerous condition and to either correct the condition or warn of its existence. In order to prevail on a claim of negligence under Articles 2317 and 2317.1, the plaintiff will have the ultimate burden at trial of proving by a preponderance of the evidence each of the following elements: (1) Tiki is the custodian of the portion of the Amite River that includes the tubing route; (2) that portion of the Amite River is defective and that the defect presented an unreasonable risk of harm; (3) Tiki knew or should have known of the defect; (4) the plaintiff was damaged by the defect; and (5) Tiki could have prevented the damage to the plaintiff by the exercise of reasonable care, which Tiki failed to exercise. See Riggs v. Opelousas General Hosp. Trust Authority, 08-591 (La. App. 3 Cir. 11/5/08), 997 So. 2d 814, 817. Failure to prove any one of these elements will defeat the [Pg 10] plaintiff’s claim and thus establish the defendant’s entitlement to summary judgment. See Grogan v. Women’s and Children’s Hospital, Inc., 07-1297 (La. App. 3 Cir. 4/16/08), 981 So. 2d 162, 165.
3 There are no allegations or evidence [*13] suggesting that Tiki owned the area of the river, or the land abutting that portion of the river, in which Raja drowned.
The Louisiana Supreme Court has instructed that determining who has custody of a thing is a fact-driven determination. Dupree v. City of New Orleans, 99-3651 (La. 8/31/00), 765 So. 2d 1002, 1009. Courts should consider: (1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing. Dupree, 765 So. 2d at 1009. “The person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another.” Id. at 1009. This court has held that a state-owned river cannot be in the custody of a landowner. See Tobey v. State, 454 So. 2d 144, 145 (La. App. 1st Cir. 1984) (a tubing accident did not result from any condition of the land).
Even if the plaintiff were to establish that material issues of fact remain in dispute regarding custody of the tubing route on the Amite River, the plaintiff also must prove that the portion of the Amite River at issue suffered from a vice or defect in order to recover damages under Articles 2317 [*14] and 2317.1. A defect is defined as a condition that creates an unreasonable risk of harm. Moory v. Allstate Ins. Co., 04-0319 (La. App. 1 Cir. 2/11/05), 906 So. 2d 474, 480, writ denied, 05-0668 (La. 4/29/05), 901 So. 2d 1076. The record establishes that Raja drowned in an area of the river described as a drop or a deep pocket. This court has held that the “existence of a hole in a natural lake, that renders the depth of the lake deeper than other portions, would not, ipso facto, constitute a defective [Pg 11] condition.”4 Johnson v. City of Morgan City, 99-2968 (La. App. 1 Cir. 12/22/00), 787 So. 2d 326, 330-31, writ denied, 01-0134 (La. 3/16/01), 787 So. 2d 315. Further, “variations in water depth within natural swimming areas are standard.” Johnson, 787 So. 2d at 330. Citing this court in Johnson, the Fourth Circuit has concluded that there is no distinction between a hole in a lake and a drop off in a river. Sevin v. Parish of Plaquemines, 04-1439 (La. App. 4 Cir. 4/27/05), 901 So. 2d 619, 623-24, writ denied, 05-1790 (La. 1/27/06), 922 So. 2d 550. The plaintiff fails to establish that the deeper pocket in this natural body of water constitutes a defect for purposes of Article 2317.1.
4 Moreover, [*15] not every defect gives rise to statutory liability under Articles 2317 and 2317.1. Ruschel v. St. Amant, 11-78 (La. App. 5 Cir. 5/24/11), 66 So. 3d 1149, 1153. The defect must be of such a nature as to constitute a dangerous condition that reasonably would be expected to cause injury to a prudent person using ordinary care under the circumstances. Ruschel, 66 So. 3d at 1153.
The plaintiff argues that Tiki had a duty to provide an adequate and correct warning to customers regarding the dangers of tubing and the depth and current of the Amite River, and also had a duty to post lifeguards along the tubing route.5 Tubing has been defined as an activity that is obviously and inherently dangerous. See Tobey, 454 So. 2d at 146. Drowning because of currents is a natural and inevitable risk to swimmers in a natural body of water. See Hall v. Lemieux, 378 So. 2d 130, 132 (La. App. 4th Cir. 1979), [Pg 12] writ denied, 381 So. 2d 1220 (La. 1980). When a risk is obvious, there is no duty to warn or protect against it. Moory, 906 So. 2d at 478. Akhtar described Raja as “not a good swimmer.”6 Despite his limited swimming abilities and knowing that the water was over his head in parts, Raja voluntarily [*16] left his tube to swim freely in the river without a life jacket, allowing the current to carry him away from his tube.
5 Louisiana’s general negligence liability provision is found in Louisiana Civil Code article 2315. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under Article 2315. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So. 2d 270, 275. In order for liability to attach under a duty-risk analysis, the plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault, 816 So. 2d at 275-76.
6 During the few times that Akhtar and Raja swam together in a pool, Raja would swim one pool length at a time, keeping [*17] his head out of the water the entire time. Raja would go in water over his head; however, he would hold onto a “pipe.”
Finally, citing to Harris v. Pizza Hut of La., Inc., 455 So. 2d 1364 (La. 1984), the plaintiff argues that Tiki assumed a duty when its employees attempted life-saving measures on Raja and then breached that duty by improperly performing CPR on Raja. In Harris, the supreme court held that a restaurant had a duty, once it hired a security guard, to have that guard protect patrons from the criminal activities of third persons in a reasonable and prudent manner. Id. at 1369. This court has recognized that the negligent breach of an assumed duty may create civil liability. McGowan v. Victory and Power Ministries, 99-0235 (La. App. 1 Cir. 3/31/00), 757 So. 2d 912, 914. If a person voluntarily or gratuitously undertakes a task that he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable or prudent manner. McGowan, 757 So. 2d at 914; see La. Civ. Code Ann. art. 2315.
Tiki employees acknowledged having no formal CPR training. Akhtar stated that he had been trained in CPR, and Akhtar was performing breathing assistance on Raja, while several [*18] others–including Tiki employees–assisted with chest compressions on Raja. The affidavit of the [Pg 13] plaintiff’s expert, Dr. Adam Broussard, set forth the CPR guidelines and concluded that, based on Jacob’s deposition, “the responders did not correctly perform CPR.” Dr. Broussard’s affidavit establishes that early CPR “performed correctly is the single most important intervention that can be performed in the field by a lay person.”
Raja was pulled from the water after being submerged for at least ten minutes. Akhtar stated that when Raja was brought up to the surface, he was not moving and not conscious. Akhtar began breathing into Raja with the assistance of four others, who took turns doing chest compressions. Akhtar observed that after the second person’s turn with chest compressions, Raja was warm to the touch and a pulse was discernible. Although Dr. Broussard’s affidavit establishes that CPR was performed improperly, his affidavit does not establish that the efforts of Tiki employees were unreasonable, imprudent, or, more importantly, a cause-in-fact of Raja’s death or that there was a reasonable probability that proper CPR would have been lifesaving in these circumstances.
CONCLUSION
The [*19] plaintiff failed to produce factual evidence sufficient to establish that she would be able to meet her burden at trial of proving by a preponderance of the evidence all of the elements of a cause of action in negligence or gross negligence. Despite not being a good swimmer, Raja willingly entered the river without a life jacket and chose to swim away from his tube. It was Raja’s own imprudent actions that led to his tragic death. See Sevin, 901 So. 2d at 624. For the above-stated reasons, we affirm the trial court’s grant of summary judgment in favor of the defendant, Tiki [Pg 14] Tubing, L.L.C, dismissing the suit filed against it by Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children. Costs of this appeal are assessed to the plaintiff, Neelam Parveen.
AFFIRMED.
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Retailer has no duty to fit or instruct on fitting bicycle helmet
Posted: September 9, 2013 Filed under: Cycling, Louisiana | Tags: Bell Sports, bicycle, Bicycle helmet, City of Amite, Cycling, Cycling Helmet, duty, helmet, Inc., Louisiana, Louisiana Supreme Court, Sears Roebuck and Co. 1 CommentLouisiana Supreme Court set forth how a court decides if there should be a duty or to create a duty.
Carrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251
Plaintiff: Herman Carrier, Individually and in His Capacity as the Administrator of the Estate of his Minor Child, Herman Blake Carrier, and his Wife, Wendy Wallace Carrier
Defendant: City of Amite, Bell Sports, Inc., and Sears Roebuck and Co.
Plaintiff Claims: negligence failure to properly fit the helmet and instruct on the use of the helmet
Defendant Defenses: no duty
Holding: For the defendant (retailer) Sears Roebuck and Co.
The plaintiff’s in this case are a mother, father and six-year-old child. The parents went into a Sears store and purchased a bicycle helmet for the child. They did not ask for or receive any assistance in purchasing the helmet.
The boy was riding on the municipal tennis court when he had an accident. The plaintiffs sued the city that owned the tennis court, the helmet manufacturer and Sears Roebuck where they purchased the helmet.
Sears filed a motion for summary judgment arguing they had no duty to fit or instruct on the use of the helmet. The trial court granted the motion. The Appellate court reversed finding the trial court committed error in dismissing the case. Sears filed this appeal to the Louisiana Supreme Court.
Summary of the case
In this case, it was the responsibility of the plaintiff to prove negligence. The first step in that would be to prove that the defendant owed the plaintiff a duty to provide a point of sale fitting instruction for bicycle helmets.
“In the instant case, plaintiffs do not identify any Louisiana statutory or jurisprudential authority which establishes a specific duty on the part of a retailer to fit bicycle helmets at the point of sale.” The only thing the plaintiff could point to was the opinion of its expert that the defendant owed a duty. However the expert could not point to any authorities, research or other retailers that supported his statement. “Courts have held that experts may not rely on their own conclusions as authority in the absence of any objective support.”
The court stated the considerations that need to be covered before a duty can be created.
…it is necessary for the court to determine whether the rule is intended to protect him from the particular harm alleged, an inquiry which involves both the duty and causation elements of the negligence formulation. The court must make a policy determination in light of the unique facts of the case. Thus, the duty-risk analysis requires the court to take into account the conduct of each party as well as the particular circumstances of the case. In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association between the plaintiff’s harm and the defendant’s conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant’s activity; moral considerations, particularly victim fault; and precedent as well as the direction in which society and its institutions are evolving.
Applying the above requirements to this case, the court found no reason to create a duty upon the part of a retailer to provide a point of sale fitting instructions for bicycle helmets. “Under these circumstances, we find the responsibility to determine whether the helmet was properly fitted should rest with plaintiffs, not Sears.”
So Now What?
There are two important things that come from this decision. The first is no duty exists unless your industry, your community, or you create one. Unless you advertise you are going to do something, market yourself or write your requirements down, it is difficult for the plaintiff to prove you owe them anything, a duty or money.
The second is the list of requirements the court set forth to determine if a duty has been created. It is not as easy to review as a list; however, it provides some factors that you can review to make sure you are not creating liability that does not exist.
· Make sure you know the issues you must do when dealing with your business, program or job.
· Don’t create liability if you don’t have too.
What do you think? Leave a comment.
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Carrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251
Posted: September 9, 2013 Filed under: Cycling, Legal Case, Louisiana | Tags: Bell Sports, bicycle, Bicycle helmet, City of Amite, Cycling, Cycling Helmet, duty, helmet, Inc., Louisiana, Sears, Sears Roebuck and Co., Summary judgment, Wal-Mart, Walmart Leave a commentCarrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251
Herman Carrier, Individually and in His Capacity as the Administrator of the Estate of his Minor Child, Herman Blake Carrier, and his Wife, Wendy Wallace Carrier versus City of Amite, Bell Sports, Inc., and Sears Roebuck and Co.
No. 2010-CC-0007
SUPREME COURT OF LOUISIANA
2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251
October 19, 2010, Decided
SUBSEQUENT HISTORY: Rehearing denied by Carrier v. City of Amite, 2010 La. LEXIS 3053 (La., Dec. 10, 2010)
PRIOR HISTORY: [**1]
ON WRIT OF CERTIORARI FROM THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TANGIPAHOA.
Carrier v. City of Amite, 6 So. 3d 893, 2009 La. App. LEXIS 215 (La.App. 1 Cir., 2009)
DISPOSITION: REVERSED AND RENDERED.
COUNSEL: Stephen Dale Cronin, GUGLIELMO, MARKS, SCHUTTE, TERHOEVE & LOVE; John David Ziober, KENNON, ODOM & DARDENNE, APC, For Applicant.
Arthur W. Landry, Jeanne Andry Landry, ARTHUR W. LANDRY AND JEANNE ANDRY LANDRY, ATTORNEYS; Christopher M. Moody; John Ernest William Baay, II, Ernest Paul Gieger, Jr., GIEGER, LABORDE & LAPEROUSE, LLC; Thomas Reginald Hightower, Jr., THOMAS R. HIGHTOWER, JR., APLC, For Respondent.
OPINION
[*1247] PER CURIAM *
* Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.
We granted certiorari in this case to determine whether this retail seller has a duty to instruct buyers on the proper method of wearing and fitting bicycle helmets. For the reasons that follow, we conclude plaintiffs failed to establish any legal duty on the part of the retailer under the facts presented.
UNDERLYING FACTS AND PROCEDURAL HISTORY
This case arises from an incident in which six-year-old Blake Carrier was injured while riding his bicycle on a municipal tennis court on May 29, 2002. At the time of the accident, Blake was wearing a bicycle helmet his parents allegedly purchased from Sears, Roebuck and Co. (“Sears”) in December 2001.
[Pg 2] Subsequently, Blake’s parents filed the instant suit against several defendants, including Sears. 1 Plaintiffs alleged Sears [*1248] failed to properly fit the helmet and instruct them regarding its correct use.
1 Also named as defendants were Bell Sports, Inc. (the manufacturer of the helmet), and the City of Amite (the owner [**2] of the tennis court). These defendants are not at issue for purposes of this opinion.
During discovery, plaintiffs produced an expert in the area of bicycle safety, James Green. In his deposition, Mr. Green stated he advised his clients to instruct their buyers on the proper use and fit of bicycle helmets. However, Mr. Green admitted he knew of no rules or laws requiring retailers to fit and instruct buyers of bicycle helmets. Mr. Green also explained his clients did not include Sears.
Sears filed both a motion in limine and a motion for summary judgment. In support of the motion in limine, Sears argued Mr. Green had no basis for his conclusion that retailers had a duty to fit and instruct buyers on the proper way to wear a bicycle helmet. In support of the motion for summary judgment, Sears argued retailers had no duty to buyers to fit and instruct on the proper use of bicycle helmets.
The district court granted Sears’ motion in limine to exclude Mr. Green’s testimony, and further granted Sears’ motion for summary judgment to dismiss all claims against Sears.
Plaintiffs appealed. On appeal, the court of appeal reversed, finding the district court erred in deciding the duty issue without [**3] first determining that the expert’s testimony was inadmissible under the factors identified in Daubert v. [Pg 3] Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and State v. Foret, 628 So. 2d 1116 (La. 1993). Accordingly, the court of appeal reversed the judgment granting the motion for summary judgment, and remanded the case to the district court for further proceedings. Carrier v. City of Amite, 08-1092 (La. App. 1 Cir. 2/13/09), 6 So. 3d 893, writ denied, 09-919 (La. 6/5/09), 9 So. 3d 874.
[Pg 4] On remand, Sears re-urged both the motion in limine and the motion for summary judgment. 2 After a hearing, the district court denied Sears’ motions.
2 On remand, Sears filed a pleading captioned “Motion for Hearing on Summary Judgment and Motion in Limine for Purposes of Issuance of Oral Reasons for Judgment, or Alternatively, Motion Requesting Written Reasons for Judgment.” Plaintiffs assert this motion was procedurally improper, because nothing in the court of appeal’s opinion indicated the case was being remanded for entry of reasons. However, the record reveals Sears filed its original motion for summary judgment and motion in limine, as well as [**4] supporting exhibits, into the record at the hearing. Thus, despite the caption of the motion, we believe Sears expanded its pleadings to reurge its motion for summary judgment and motion in limine. See La. Code Civ. P. art. 1154.
Sears sought supervisory review of this ruling. The court of appeal denied the writ, with one judge dissenting.
Upon Sears’ application, we granted certiorari to consider the correctness of the district court’s decision. Carrier v. City of Amite, 10-0007 (La. 3/12/10), 29 So. 3d 1241.
DISCUSSION
The central question presented in this case is whether plaintiffs established a legal duty on the part of a retailer, such as Sears, to provide point-of-sale fitting instructions for bicycle helmets. In Lemann v. Essen Lane Daiquiris, Inc., 05-1095 at p. 8 (La. 3/10/06), 923 So. 2d 627, 633, we discussed the principles for determining the existence of a legal duty:
[HN1] A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Meany v. Meany, 94-0251, p. 6 (La. 7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Peterson v. Gibraltar Savings and Loan, 98-1601, 98-1609, p. 7 (La. 5/18/99), 733 So. 2d 1198, 1204; Mundy v. Department of Health and Human Resources, 620 So.2d 811, 813 (La. 1993); [**5] [*1249] Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 292 (La. 1993). In [Pg 5] deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. See Socorro v. City of New Orleans, 579 So.2d 931, 938 (La. 1991). The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Faucheaux, 615 So. 2d at 292; Perkins, 98-2081 at 22, 756 So. 2d at 404.
In the instant case, plaintiffs do not identify any Louisiana statutory or jurisprudential authority which establishes a specific duty on the part of a retailer to fit bicycle helmets at the point of sale. Rather, plaintiffs seek to establish the existence of industry standards, including best practices, which they claim are relevant to determine whether a general duty is owed.
At this juncture, the parties dedicate a large part of their briefs to discussing whether the district court properly qualified Mr. Green as an expert on the subject of point-of-sale assistance in the sale of bicycle accessories. However, we find we need not [**6] resolve the question of Mr. Green’s qualifications under the unique facts presented, because we find that Mr. Green’s testimony, even if accepted, is insufficient to establish any factual basis for a duty on the part of Sears.
In his deposition, Mr. Green testified as follows:
They came out with a mass market approach to the Wal-Marts, etcetera, the Sears, the Lowe’s, whoever, that wanted to sell bikes, where they just wanted to get bikes and components out there into the commerce stream. They don’t provide point-of-sale service at all. You have, you have two families of retail organizations here. I maintained ever since I saw this developing some years ago that this mass market approach is not a good thing, that if you’re going to be a reputable retailer and I tell my clients that, if you’re going to be a reputable retailer, you must properly instruct at the point-of-sale from everything to how to operate a quick release, to how to fit a helmet, to never ride at night without a light on your bike, that kind of thing. It should be done at the point-of-sale, because bikes aren’t toys, they’re, they’re vehicles. [emphasis added]
[Pg 6] Although Mr. Green testified the fitting of bicycle [**7] helmets “should” be done at the point of sale, he cited no authority for this proposition other than his own opinion. To the contrary, when asked whether any regulations existed requiring a retailer to provide point-of-sale instructions on fitting bicycle helmets, Mr. Green testified, “[n]o, there’s nothing written up as a standard.”
Similarly, in response to Sears’ interrogatories, plaintiffs admitted Mr. Green did not rely on any formal requirements in support of his position:
INTERROGATORY NO. 4
Please identify any and all standards, state or federal regulations, engineering, helmet manufacturer, department store and/or retail association periodicals, documents or guidelines which your expert, James M. Green, relies upon in opining that an industry standard existed in November, 2001 requiring that retailers of bicycle helmets must give point of sale instructions on proper sizing and fitting.
ANSWER TO INTERROGATORY NO. 4:
There is no requirement but perfectly clear instructions provided by BHSI. Most reputable retailers do fit at the [*1250] point of sale. These include REI, Performance Bicycle, Brooklyn Bike Shop, and any bike shop who belong to the Independent Bicycle Retailer Organization [**8] (now known as the National Bicycle Dealers Association (NBDA). There are currently 6000 shops who belong to NBDA who employ helmet fit at point of sale (See attached documentation from NBDA). The NBDA also outlined the differences between a reputable shop and a mass merchant shop on the safety issue. (See attached documentation from NBDA). [emphasis in original]
A review of the documentation attached to plaintiffs’ answer to Interrogatory No. 4 reveals none of these documents set forth an industry standard which would mandate the fitting of bicycle helmets by a retailer at the point of sale. Moreover, Mr. Green admitted he did not know if Sears belonged to any bicycle safety industry group.
[Pg 7] Under these circumstances, we must conclude Mr. Green’s testimony reflects his own personal opinion as to what a retailer should do, and is not based on any objective standards establishing what a retailer is required to do. Courts have held that [HN2] experts may not rely on their own conclusions as authority in the absence of any objective support. See Grdinich v. Bradlees, 187 F.R.D. 77 (S.D.N.Y. 1999) (holding the expert’s testimony was without foundation because “[w]ithout ‘industry standards’ [**9] to rely upon, [the expert] seems to base his conclusions on his own authority”). Thus, Mr. Green’s testimony does not establish the existence of any statutes, regulations, or industry standards which would support the finding of a duty on a retailer to fit bicycle helmets at the point of sale.
Additionally, as a matter of policy, we find no ground for recognizing such a duty based on general principles of tort law. In Meany v. Meany, 94-0251 at p. 6 (La. 7/5/94), 639 So. 2d 229, 233, we discussed the policy considerations to be taken into account in determining whether the law imposes a duty under particular facts:
[HN3] When a plaintiff articulates a general rule or principle of law that protects his interests, it is necessary for the court to determine whether the rule is intended to protect him from the particular harm alleged, an inquiry which involves both the duty and causation elements of the negligence formulation. The court must make a policy determination in light of the unique facts of the case. Thus, the duty-risk analysis requires the court to take into account the conduct of each party as well as the particular circumstances of the case. Socorro v. City of New Orleans, 579 So.2d 931, 938 (La. 1991). [**10] In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association between the plaintiff’s harm and the defendant’s conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant’s activity; moral considerations, particularly victim [Pg 8] fault; and precedent as well as the direction in which society and its institutions are evolving. Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1161 (La. 1988); William E. Crow, The Anatomy of a Tort, 22 Loy. L. Rev. 903 (1976).
Applying these precepts to the instant case, we believe the policy considerations militate against the finding of any duty on the part of a retailer to provide point-of-sale fitting instructions for bicycle helmets. Under current societal norms, we do not believe it is reasonable to require mass-marketing [*1251] retailers, such as Sears, to offer specialized point-of-sale advice on the thousands of products they sell. Rather, it is typically understood the consumer will ask [**11] for assistance, if it is required. In the instant case, the deposition testimony of Mr. Carrier establishes he never asked for any assistance at the time he purchased the helmet. Moreover, Mr. and Mrs. Carrier testified in their respective depositions that they believed the helmet, which was purchased as a Christmas gift for Blake, fit him properly; indeed, Mrs. Carrier testified it “was the best-fitting helmet [Blake] ever had.” Mrs. Carrier admitted she did not consult the instructions for fitting the helmet, and testified the instructions “probably got thrown away because we’ve had helmets before so we know how to use them.” 3 Under these circumstances, we find the responsibility to determine whether the helmet was properly fitted should rest with plaintiffs, not Sears.
3 Interestingly, Mr. Green opined that the manufacturer’s instruction on use and fit in this case were “the best I’ve ever seen.” Nonetheless, Mr. Green stated he believed point-of-sale assistance on fit was necessary in part, because consumers frequently failed to consider the instructions on fit and use provided by manufacturers. However, Mr. Green conceded that such a duty did not exist in the case of mail-order [**12] purchases. This dichotomy in Mr. Green’s testimony reveals the fallacy in his conclusions. We believe the more consistent approach is to place the duty on the consumer to determine the product he or she purchased is appropriate for its intended use.
In summary, we conclude that under the facts presented, there is no legal duty which would require Sears to provide fitting instructions for bicycle [Pg 9] helmets at the point of sale. In the absence of any legal duty, Sears is entitled to summary judgment as a matter of law.
DECREE
For the reasons assigned, the judgment of the district court is reversed. The motion for summary judgment filed by Sears, Roebuck Co. is granted, and judgment is entered in its favor dismissing the claims of plaintiffs with prejudice.
REVERSED AND RENDERED.
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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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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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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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Louisiana Sales Representative
Posted: March 17, 2013 Filed under: Louisiana | Tags: Contract, IC, Independent Sales Rep, Louisiana, Rep, STATUTES Leave a commentLOUISIANA STATUTES ANNOTATED
LOUISIANA REVISED STATUTES
TITLE 51. TRADE AND COMMERCE
CHAPTER 1. IN GENERAL
PART 8. UNFAIR TRADE
SUBPART F. SALES REPRESENTATIVES
GO TO LOUISIANA STATUTES ARCHIVE DIRECTORY
La. R.S. 51:441 (2012)
§ 51:441. Definitions
(1) “Commission” means compensation paid a sales representative by a principal in an amount based on a percentage of the dollar amount of certain orders for or sales of the principal’s product.
(2) “Principal” means a person who:
(a) Repealed by Acts 1995, No. 487, § 2.
(b) Manufactures, produces, imports, or distributes a product for sale to customers who purchase the product for resale;
(c) Uses a sales representative to solicit orders for the product; and
(d) Compensates the sales representative in whole or in part by commission.
(3) “Sales representative” means a person who solicits, on behalf of a principal, orders for the purchase at wholesale of the principal’s product.
(4) “Termination” means the end of services performed by a sales representative for a principal whether by discharge, resignation, or expiration of a contract.
HISTORY: Acts 1988, No. 774, § 1, eff. July 18, 1988; Acts 1995, No. 487, §§ 1, 2.
§ 51:442. Contract
If there is a written contract between a principal and a sales representative under which the sales representative solicits wholesale orders within this state, it shall set forth the method by which the sales representative’s commission shall be computed and paid. The principal shall provide the sales representative with a copy of the contract.
§ 51:443. Payment of commissions; timely payment
Upon termination of any written or oral compensation agreement between a sales representative and a principal, the principal shall pay all commissions due the sales representative as specified in the agreement or, if not specified, no later than the thirtieth working day after the date of termination.
§ 51:444. Attorney fees and damages
A judgment or decree issued in any action brought by a sales representative for the payment of commissions by a principal may include payment by the principal of attorney fees and treble damages incurred by the sales representative.
§ 51:445. Certain venue provisions invalid
A. Any provision in a written or oral contract or agreement providing for the payment of commissions by a principal to a sales representative which purports to establish exclusive venue in a state other than Louisiana is hereby declared to be null and void and against the public policy of this state and such provision shall be void and unenforceable.
B. Any provision in a written or oral contract or agreement which requires waiver of this Section or which would frustrate or circumvent the provisions of this Section shall be null and void and of no force and effect.
C. A principal who is not a resident of this state and who enters into a contract subject to the provisions of this Subpart is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.
D. The provisions of this Subpart do not invalidate or restrict any other right or remedy available to a sales representative or preclude a sales representative from seeking to recover in one action on all claims against a principal.
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States that do not Support the Use of a Release
Posted: December 16, 2010 Filed under: Arizona, Hawaii, Louisiana, Montana, Release (pre-injury contract not to sue), West Virginia | Tags: Duty of care, Insurance, Law, Liability insurance, Louisiana, Montana, Release, Virginia 9 CommentsAssumption of the risk is your best defense in these states
These states do not allow a recreational business or program to use a release to stop litigation.
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State |
Citation |
Issues |
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Releases are Void |
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C.C. Art. 2004 (2005) |
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party. |
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MCA § 27-1-702 |
All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law. |
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Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890) |
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Use of a Release is Restricted |
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Arizona |
Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53 |
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New Mexico |
Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48 P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25 |
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West Virginia |
Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649; 1994 W. Va. LEXIS 161 |
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Use of Releases is Probably Void |
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Connecticut |
Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330 |
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Wisconsin |
Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 |
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Vermont |
Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127 |
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Specific uses of Releases are Void |
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Alaska |
Sec. 05.45.120(a). Use of liability releases |
A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced. |
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Hawaii |
King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004) |
Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release |
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New York |
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable. |
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