Advertisements

Western State University unveiling Outdoor Industry MBA for 2018-19

A Western instructor climbs a mountain with students

Photo by Eric Phillips.

The School of Graduate Studies at Western State Colorado University recently announced the formation of a new and innovative opportunity. Starting with the 2018-19 academic year, Western will offer an Outdoor Industry MBA.
The two-year, online program includes an MBA core as well as specific tracks for either the product or service side of the outdoor-recreation economy, which generates $887 billion annually in consumer spending, according to the Outdoor Industry Association. The program also includes residencies, immersion experiences and guest lectures from outdoor industry experts.

“The Outdoor Industry MBA at Western will give graduate students the tools and connections necessary to make forward-thinking change within this fast-growing industry,” said program director Pete Sherman. “We have a unique approach to class scheduling where we offer the industry-specific courses first. This way, students can apply content from class immediately to the workplace.”

Ideal candidates have a bachelor’s degree, professional experience in the industry and the desire to take their career to the next level. They have a lifestyle rooted in the outdoors, an aspiration to foster growth in this environmentally conscious, sustainable business sector and an interest in strengthening their network within the outdoor industry.

“The Outdoor Industry MBA’s clear focus on the business acumen required to lead the outdoor-recreation industry’s multibillion dollar economy is a significant measurement of Western’s and Colorado’s commitment to our talent pipeline,” said Luis Benitez, director of the Colorado Outdoor Recreation Industry Office.

Classes for Western’s inaugural Outdoor Industry MBA cohort begin Sept. 24, pending accreditation approval. For more information about this one-of-a-kind academic program, visit western.edu/outdoor-industry-mba.

“Western has always been a feeder school for the outdoor industry,” said Adam Howard ’97, president and CEO of Height of Land Media, publisher of Alpinist, Backcountry and Cross Country Skier magazines. “Given its location and culture around outdoor pursuits, I can’t think of a school more poised to bring this MBA program to fruition.”

For More Information Start Here: https://www.western.edu/news/western-unveiling-outdoor-industry-mba-2018-19

 

 

 

Advertisements

Northern Arizona Univeristy now has an Online MS in Parks and Recreation Management

a1e6fc6e-38f6-4ea0-9fbf-8a55452960dd.png

Master of Science in Parks and Recreation Management

at Northern Arizona University

blank.gif
Thinking about attending graduate school? The Master of Science in Parks and Recreation Management might be perfect for you. This challenging program prepares parks and recreation managers for leadership roles in public and commercial organizations. The program emphasizes the development of a manager’s ability to forecast and address the evolution recreation and utilize optimal practices in leadership, management, and in the delivery of recreational services. Specific attention is directed at leadership issues, agency management, the utilization of geographic information systems, legal issues, diversity perspective, and in emerging trends in park, leisure, tourism, and recreation. For more details and application information, please visit the Master of Science in Parks and Recreation Management website.
blank.gif
Join our graduate program!

Apply Online

Park Rangers Reading Map
Don’t wait, apply today! Scholarships are available.
For more information contact the
Chair of Geography, Planning, and Recreation:Dr. Alan Lew at Alan.Lew or call 928-523-2650
Copyright © 2017 Northern Arizona University,
College of Social and Behavioral Sciences, All rights reserved.Our mailing address is:
5 E McConnell Dr
PO Box: 15700
Flagstaff, AZ 86011

“Marketing makes promises Risk Management has to pay for” in this case, the marketing eliminated the protection afforded by the warning labels

Cornell and a manufacturer of a piece of equipment used in a gym at Cornell were being sued by an injured student who used the equipment. The court definitely was leaning towards the student; however, the student had come to court prepared, (and backed by a lot of money I’m guessing.)

Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

State: Pennsylvania, United States District Court for the Eastern District of Pennsylvania

Plaintiff: Randall Duchesneau

Defendant: Cornell University and Tumbltrak

Plaintiff Claims: Product Liability, Failure to Warn, requesting punitive damages

Defendant Defenses:

Holding: No duty, Failure to state a claim, Assumption of Risk & Release?

Year: 2012

This case spent four years getting to this point, and it is obvious the court is a little tired of the litigation. Consequently, the facts are difficult to determine.

It seems the plaintiff was a beginning gymnast and injured himself on a piece of equipment at the Cornell University gym called the Tumbletrak. The extents of his injuries are never clear, but based on the number of experts the plaintiff hired and the lengthy fight; I guess his injuries were extensive.

This case was being heard in a Pennsylvania Federal Court with a Michigan and a New York Defendant. That fact alone is confusing.

The decision is based on motions for summary judgment filed by both Cornell and the manufacturer Tumbletrak.

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

The court first examines the manufacture’s motion for summary judgment. The first issue the manufacturer claimed the plaintiff failed to establish the minimum facts necessary to go to trial; the plaintiff is not entitled to punitive damages, and the plaintiff assumed the risk. The court first looked at what was required to establish a failure to warn case. Meaning a manufacturer has a duty to warn users of the product of the risks and failed to do so.

Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause of the injury to plaintiff; and (4) the plaintiff suffered loss or damage.

The burden is on the plaintiff to prove the failure to warn of the risk by the manufacturer was the cause of the plaintiff’s injury.

This burden includes adducing proof that a user of the product at issue would have read and heeded a warning had one been given. Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.”

Failure to warn can be denied both by proving the plaintiff read and heeded the risk or knew of the risk prior to using the equipment. The manufacturer argued the risk was open and obvious, which does not require proof because the plaintiff should have seen the risk.

T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding

In a footnote at this point, the court states the plaintiff signed a release stating he understood the risks; however, nothing else is mentioned about the release in the rest of the decision.

One way to defend against a motion for summary judgment is to argue there are enough facts or issues that make the facts relied upon by the defendant an issue.  Meaning if enough facts are in dispute, the motion for summary judgement cannot be granted. This is what the plaintiff did through his experts.

Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA, not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. [Emphasize added]

Here the manufacturer shot his defense down before the product left the assembly plant by confusing risk management and marketing. Teddy bears doing the activities unspotted that the warning allegedly warns against eliminated the warning in the court’s eyes. (And rightfully so!) If the manufacturer shows cartoons doing the act without regard for safety, then the act must be safe, no matter what the warning says. If the warning can be located.

In a scary statement, the court held that failure to read the warnings on the product is not an issue in a failure to warn case.

However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.”

The court based this analysis on the many different statements by witnesses who seemed to go in every direction, but all stated they never saw the warning.

Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter.

A warning does not exist unless the consumer can’t miss it. Meaning the warning must be in the consumer’s face every time they go to use a product. On top of that the warning must be in the manual, in some states on the packaging and maybe on a hangtag with the product.

The failure to warn claim was sustained and would be decided at trial.

The court then looked at the assumption of the risk defense brought by the defendant manufacturer. The court started this analysis looking at the requirements to prove a negligence claim in a product case.

To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff.

However, assumption of the risk in a product’s case is a little more stringent then in a recreation case. “Assumption of risk is frequently applied to claims arising out of participation in sporting events.” In sporting or recreation cases, the risk is clear and understood by all involved and to be effective the risk was not altered or enhanced by the defendant. In a product’s case the requirements are slightly different.

Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. To establish assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” This determination depends in part on the openness and obviousness of the risk.

Again, the case goes back to did the plaintiff know of the risks. Where the risks open and obvious or can you prove under the law the plaintiff knew of the risk. Because no one ever saw the warning, the warning had no value. That left it up to a jury to decide if the plaintiff knew the risk of the sport or activity.

The next argument was a motion to eliminate a punitive damages claim by the manufacturer arguing the case should be tried under Michigan’s law because the manufacturer was based in Michigan. Michigan does not allow punitive damages, unless they are expressly authorized by statute.

There has been a prior argument about the jurisdiction and venue of the case decided by a prior judge. (Which is alone confusing since none of the defendants are located in Pennsylvania where the court sits, however, the court is applying New York law?) Because of the prior decision, this court followed it and ruled that New York law would be applied to the facts of the case, and punitive damages were going to be at issue.

Cornell University was then giving a shot at its motions starting with the punitive damages issue. Cornell claimed the plaintiff had not presented any evidence that could support a punitive damages claim. The plaintiff responded arguing facts that could prove a punitive damages claim against the university.

(1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.”

The court defined the requirements to prove a punitive damages claim.

As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness.”

The court found there was sufficient evidence to support a possible punitive damages claim.

There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.

Cornell next argued that the plaintiff assumed the risk and there was no evidence proving causation. Cornell was arguing a breach of a duty was not related to the injury. There was no causation between the two which is required to prove negligence.

The court found that Cornell’s case law did not apply correctly to the facts of this case. That means the case law facts were sufficiently different from the facts of this case, that the law could not be interpreted the same way. “Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here.”

On the causation issues the judge found the plaintiff had presented enough evidence that there could be an issue leading to punitive damages against the college.

Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.

Both defendants failed in their motion for summary judgment, and the decision was to allow the case to proceed to trial.

So Now What?

I have not been able to find the outcome of this case. Meaning it probably settled. The entire issue was the warning on the product; it was not clear; it was not visible, and it could not be seen in normal use.

If you manufacture products and your product poses a risk to the user, then you need to notify the consumer as often and as many were possible that you can. User manuals, hangtags, the container or bag the product is shipped in and on the product itself. It is also not enough that you can say the label or warning is there; the user must be able to see the warning……every time.

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

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2017 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Cornell University, Cornell, Tumbl Trak, Gymnastic, Gym, Open and Obvious, Failure to Warn, Assumption of the Risk, Punitive Damages, Summary Judgment, Causation,

 


Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

Randall Duchesneau, Plaintiff, v. Cornell University, et al., Defendants.

CIVIL ACTION NO. 08-4856

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2012 U.S. Dist. LEXIS 106412

July 31, 2012, Decided

July 31, 2012, Filed

PRIOR HISTORY: Duchesneau v. Cornell Univ., 2011 U.S. Dist. LEXIS 135211 (E.D. Pa., Nov. 22, 2011)

CORE TERMS: warning, summary judgment, trampoline’s, assumption of risk, punitive damages, unaware, gymnasium, warn, partial, failure to warn, novice, user, assumed risk, inappropriate, punitive, flip, matter of law, warning label, recklessness, supervision, performing, gymnastic, enhanced, hazard, adduce, facie, causation, choice of law, applicable law, case of failure

COUNSEL:  [*1] For RANDALL DUCHESNEAU, Plaintiff: STEWART J. EISENBERG, LEAD ATTORNEY, DANIEL JECK, DANIEL JOSEPH SHERRY, JR., DINO PRIVITERA, KENNETH MICHAEL ROTHWEILER, EISENBERG, ROTHWEILER, WINKLER, EISENBERG & JECK, P.C., PHILADELPHIA, PA; MICHAEL CHOI, CHOI & ASSOCIATES, ELKINS PARK, PA.

For CORNELL UNIVERSITY, Defendant, Cross Claimant: RICHARD B. WICKERSHAM, JR., LEAD ATTORNEY, POST & SCHELL, P.C., PHILADELPHIA, PA; JOE H. TUCKER, JR., THE TUCKER LAW GROUP, ONE PENN CENTER AT SUBURBAN STATION, PHILADELPHIA, PA.

For TUMBLTRAK, Defendant, Cross Defendant: DANIEL J. MCCARTHY, SUSAN R. ENGLE, LEAD ATTORNEYS, MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS LLP, PHILADELPHIA, PA.

JUDGES: C. DARNELL JONES, II, UNITED STATES DISTRICT JUDGE.

OPINION BY: C. DARNELL JONES, II

OPINION

Jones, II, U.S.D.J.

MEMORANDUM

Before the Court is Defendant Tumbl Trak’s (“T-Trak”) Motion for Partial Summary Judgment (Docket No. 169); Cornell University’s Motion for Summary Judgment (Docket No. 171); Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172); and extensive briefing related thereto. 1

1 This matter has been crawling along, with a stunning amount of motion practice and briefing, for years now. The parties and  [*2] this Court are well aware of the tortured factual and procedural background of this case, and setting it forth at length again here would be a waste of judicial resources. Rather, I limit the discussion herein to specific facts as may be relevant to resolution of the Motion.

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). To defeat a motion for summary judgment, disputes must be both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and (2) genuine, meaning the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which  [*3] that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. An issue is genuine if the fact finder could reasonably return a verdict in favor of the nonmoving party with respect to that issue. Anderson, 477 U.S. at 249. In reviewing a motion for summary judgment, the court does not make credibility determinations and “must view facts and inferences in the light most favorable to the party opposing the motion.” Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).

T-Trak’s Motion for Partial Summary Judgment

T-Trak seeks partial summary judgment on three bases: (1) Plaintiff cannot establish a prima facie case of failure to warn; (2) Plaintiff is not entitled to punitive damages; and (3) Plaintiff assumed the risk of serious injury when using the Tumbl Trak apparatus (“TTA”). I address these seriatim.

Failure to Warn

Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause  [*4] of the injury to plaintiff; and (4) the plaintiff suffered loss or damage. Humphrey v. Diamant Boart, Inc., 556 F. Supp. 2d 167, 179 (E.D.N.Y. 2008); McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997). The duty to warn can be breached by either “the complete absence of warnings as to a particular hazard,” or “the inclusion of warnings which are insufficient.” Johnson v. Johnson Chem. Co., 183 A.D.2d 64, 588 N.Y.S.2d 607, 610 (N.Y. App. Div. 1992). The adequacy of a warning is normally a question of fact to be determined at trial. Nagel v. Bros. Int’l Foods, Inc., 34 A.D.3d 545, 825 N.Y.S.2d 93, 95 (N.Y. App. Div. 2006).

2 On November 23, 2011, U.S. Magistrate Judge Lynne A. Sitarski analyzed choice of law inquiries in this case and determined New York law applies throughout. Additionally, no party disputes the application of New York law to the failure to warn and assumption of risk claims here. Accordingly, I apply New York law to those claims.

Plaintiff has the burden of proving that T-Trak’s failure to warn was a proximate cause of his injury. See Mulhall v. Hannafin, 45 A.D.3d 55, 841 N.Y.S.2d 282, 285 (N.Y. App. Div. 2007). This burden includes adducing proof that a user of the product at issue would have read and heeded  [*5] a warning had one been given. Sosna v. Am. Home Prods., 298 A.D.2d 158, 748 N.Y.S.2d 548, 549 (N.Y. App. Div. 2002). Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.” Humphrey, 556 F. Supp. 2d at 179-80 (citing Liriano v. Hobart Corp. (Liriano I), 92 N.Y.2d 232, 700 N.E.2d 303, 308, 677 N.Y.S.2d 764 (1998)).

T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” Def.’s Mot. Part. Summ. J. (hereinafter “Def.’s Br.”) 21. More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding [TTA].” Id. T-Trak relies on, inter alia, the following record evidence:

o “Plaintiff, educated in physics, knew that what goes up will come down.” Id. 22; see id. Ex. H, at 380-81.

o Plaintiff  [*6] signed a waiver that stated he understood the risks and dangers associated with gymnastics. Id. Ex. F.

o There was a small warning label on the TTA which stated that any activity “creates the possibility of catastrophic injury, including paralysis or even death from falling on the head or neck. Id. Ex. G.

o Plaintiff “was aware of the safety concept of spotting and had done it in high school as a member of the cheerleading squad.” Id. 23; see id. Ex. H, at 432.

 

Based on these facts, T-Trak contends that “common sense” would have informed an individual that he or she was risking landing on their head by using the TTA, and, as such, T-Trak had no legal duty to warn Plaintiff. Id. 24.

However, there are significant disputes of material fact as to which, if any, hazards associated with the TTA were open and obvious (i.e., could be objectively ascertained) by a similarly-situated novice gymnast. Notably, Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA,  [*7] not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. Pl.’s Resp. Def. T-Trak’s Mot. Part. Summ. J. (hereinafter “Pl.’s Resp. Br.”) Ex. D, at 8-9. Dr. Vigilante’s report clearly suggests there were conflicting messages as to (1) the dangers associated with particular uses of the TTA; (2) how novices should perform backflips off the TTA; and (3) what is the appropriate level of supervision for safety purposes while using the TTA. Dr. Vigilante’s view of the facts is obviously in conflict with that of T-Trak. Cf. Repka v. Arctic Cat, Inc., 20 A.D.3d 916, 798 N.Y.S.2d 629, 631 (N.Y. App. Div. 2005) (triable issue of fact concerning sufficiency of warnings raised through expert).

Apparently as a fallback position, T-Trak also asserts that because Plaintiff never sought to view the warnings prior to his accident, he cannot advance a failure to warn claim. However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.” Johnson, 588 N.Y.S.2d at 611.  [*8] This fact alone is insufficient to secure summary judgment. See Humphrey, 556 F. Supp. 2d at 180-81 (holding plaintiff’s admission that he did not read the warning label or operating instructions on equipment not dispositive under New York law in connection with failure to warn claim). Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. 3 Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter. 4 See Pl.’s Resp. Br. Ex. T.

3 This evidence is buttressed by the fact that T-Trak’s own warnings expert testified at his deposition that the warnings on the TTA were deficient, illegible, and violative of relevant industry standards pertaining to size. Pl.’s Resp. Br. Ex. S.

4 I do not find T-Trak’s argument that Plaintiff submitted a “sham affidavit” to be convincing.

In sum, this evidence of record establishes  [*9] sufficient material disputes of fact as to the level of awareness Plaintiff or any other objective, novice gymnast would have had concerning the danger of specific injuries while performing specific maneuvers on the TTA. Moreover, T-Trak has been unable to adduce undisputed evidence that Plaintiff would have disregarded a proper warning. Accordingly, summary judgment on the failure to warn claim is inappropriate.

Assumption of Risk

T-Trak contends it is entitled to summary judgment on Plaintiff’s negligence claim based on the principle of assumption of risk. 5 To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff. Martinez v Capital One, N.A.,     F. Supp. 2d    , 2012 U.S. Dist. LEXIS 42214, No. 10 Civ. 8028(RJS), 2012 WL 1027571, at *10 (S.D.N.Y. Mar. 27, 2012). Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 431 (S.D.N.Y. 1999); Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964, 967-68, 510 N.Y.S.2d 49 (1986). To establish  [*10] assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” Hedstrom, 76 F. Supp. 2d at 432 (citing Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490, 495 (N.Y. App. Div. 1993)). This determination depends in part on the openness and obviousness of the risk. Id.

5 This argument applies only to Plaintiff’s negligence claim, as New York law does not favor an assumption of risk defense to strict liability claims. Auto. Ins. Co. of Hartford v. Electrolux Home Prods., Inc., 2011 U.S. Dist. LEXIS 12652, 2011 WL 1434672, at *2 (W.D.N.Y. 2011).

Assumption of risk is frequently applied to claims arising out of participation in sporting events. See, e.g., Goodlett v. Kalishek, 223 F.3d 32, 34 (2d Cir. 2000) (airplane racing); Rochford v. Woodloch Pines, Inc., 824 F. Supp. 2d 343, 349-51 (E.D.N.Y. 2011) (golf); Ducrepin v. United States, 964 F. Supp. 659, 664-65 (E.D.N.Y. 1997) (basketball); Mc Duffie v. Watkins Glen Int’l, Inc., 833 F. Supp. 197, 201-02 (W.D.N.Y. 1993) (auto racing); Morgan v. State, 90 N.Y.2d 471, 481-82, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997) (bobsledding and karate, but not tennis where facility’s negligence in failing to repair torn net unduly increased  [*11] the risk); Benitez v. N.Y.C. Bd. of Educ., 73 N.Y.2d 650, 541 N.E.2d 29, 33-34, 543 N.Y.S.2d 29 (1989) (football); Joseph v. N.Y. Racing Ass’n, 28 A.D.3d 105, 809 N.Y.S.2d 526, 529 (N.Y. App. Div. 2006) (horseback riding); Hawley v. Binghamton Mets Baseball Club Inc., 262 A.D.2d 729, 691 N.Y.S.2d 626, 627-28 (N.Y. App. Div. 1999) (baseball). It has even been applied in some (but not all) cases involving jumping on a trampoline. 6 However these cases have a unifying theme — clear risks that were known yet disregarded by the plaintiff, with no negligence by the defendant that enhanced the risk. In cases where the plaintiff was unaware of the risk, or where the defendant’s negligence amplified the risk, summary judgment has not been granted. See, e.g., Clarke v. Peek ‘N Peak Recreation, Inc., 551 F. Supp. 2d 159, 163 (W.D.N.Y. 2008) (ski resort owner’s alleged negligence may have enhanced assumed risk); Hedstrom, 76 F. Supp. 2d at 435-36 (beginning trampoline user unaware and not sufficiently warned of risks); Repka, 798 N.Y.S.2d at 632-33 (assumed risk unduly increased by use of defective snowmobile without adequate warnings); Kroll, 764 N.Y.S.2d at 731 (plaintiff unaware of risk of trampoline’s defect). T-Trak argues vociferously that “Plaintiff  [*12] should have been aware of the risk of injury.” Def.’s Br. 31 (emphasis added). While it is true that Plaintiff had some experience with cheerleading and gymnastics, there is evidence he was a novice nonetheless. Additionally, as discussed supra, there is direct testimony that Plaintiff did not view any warnings and thus was not made explicitly aware of the contents thereof. There is further, disputed testimony as to the reasons why Plaintiff was unaware of the warnings, including evidence that the warnings were patently insufficient and no participant saw or became aware of their contents that day. The survey of trampoline cases herein makes it clear that the use of a trampoline has not been deemed inherently risky as a matter of New York law. All of these relevant disputes — namely, as to Plaintiff’s expertise, knowledge, the sufficiency and quality of the warnings, and the obvious nature of the risk to a casual user of the TTA — preclude this Court from absolving T-Trak on the grounds of assumption of risk. T-Trak’s duty to Plaintiff, if any, is properly an issue for trial.

6 Application of assumption of risk is a fact-specific endeavor, including in trampoline cases, which tend to  [*13] be decided depending on whether the plaintiff was aware of and appreciated the risk in using the trampoline. A plaintiff may prevail where he adduces evidence that he was unaware of the risk of using a trampoline and that he used the trampoline in an ordinary fashion. See, e.g., Hedstrom, 76 F. Supp. 2d at 427, 435 (finding no assumption of risk where plaintiff was a total beginner who did not see warning label and who used trampoline in a “fairly typical manner”); Kroll v. Watt, 309 A.D.2d 1265, 764 N.Y.S.2d 731, 731 (N.Y. App. Div. 2000) (affirming denial of summary judgment on assumption of risk where plaintiff’s awareness of risk of trampoline tipping over and thus causing plaintiff’s injury was a triable issue of fact). On the other hand, assumption of risk applies where the risk of the activity is inherent or where the injured party fully understands, appreciates, and voluntarily assumes the risk through participation. Goodlett, 223 F.3d at 36-37. New York courts have barred the recovery of plaintiffs injured while jumping on a trampoline where the plaintiff was aware of the risk or performed a particularly risky maneuver. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006)  [*14] (affirming application of assumption of risk where plaintiff failed to provide evidence that he was unaware of risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (2005) (finding assumption of risk where plaintiff was aware and appreciative of risk of using trampoline and used it nonetheless); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 728 (N.Y. App. Div. 1998) (holding assumption of risk applicable where plaintiff ignored sign warning against use of trampoline by two or more participants at the same time and then engaged in such activity).

Punitive Damages

U.S. Magistrate Judge Lynne A. Sitarski thoroughly and cogently examined choice of law issues in this case in deciding Defendant Cornell University’s Motion to Establish Applicable Law. See Duchesneau v. Cornell Univ., No. 08-4856, 2011, 2011 U.S. Dist. LEXIS 135211, WL 5902155, at *1 (E.D. Pa. Nov. 23, 2011) (order granting applicable law). T-Trak did not participate in the Motion to Establish Applicable Law. Rather, T-Trak asserts in the instant Motion that, while New York law is almost universally applicable in this case, Michigan law operates to bar recovery of punitive damages. In short, T-Trak contends that because it is domiciled  [*15] in Michigan and the alleged punitive conduct (design and labeling of the product) occurred in Michigan, Michigan law should apply to Plaintiff’s claim for punitive damages. Unsurprisingly, Michigan law bars punitive damage awards unless expressly authorized by statute, which is not the case here. See Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 685 N.W.2d 391, 400 (2004). Plaintiff maintains that New York law properly governs all aspects of this matter, including his punitive damages claim. New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton v. Brown & Williamson Holdings, Inc., 498 F. Supp. 2d 639, 653 (S.D.N.Y. 2007).

Judge Sitarski aptly laid out the applicable conflicts of law framework and conducted a thorough analysis of asserted interests, and this Court need not repeat the legal discussion at length here. Judge Sitarski concluded that New York law applied to Plaintiff’s claims against Cornell, including with regard to punitive damages and contributory negligence. I reach the same conclusion as to T-Trak for substantially the same reasons. Here, T-Trak knew the TTA was to be delivered and used in New York, and, indeed,  [*16] the TTA was used continuously in New York for many years prior to the accident. Generally speaking, courts applying the Pennsylvania choice of law contacts analysis to product liability matters have applied the law of the state where the product was used and where the accident occurred. Shields v. Consol. Rail Corp., 810 F.2d 397, 399-400 (3d Cir. 1987); U.S. Airways, Inc. v. Elliott Equip. Co., Inc., 2008 U.S. Dist. LEXIS 76043, 2008 WL 4461847 (E.D. Pa. Sept. 29, 2008). Plaintiff’s accident was non-fortuitous, and therefore great deference is given to New York as to the law which should apply. LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069 (3d Cir. 1996).

Under the contacts analysis, New York has many compelling interests here: (1) the TTA is located in New York; (2) the accident occurred in New York; (3) Cornell contracted to purchase the TTA in New York; (4) Plaintiff was a student in New York; (5) Plaintiff, although a Pennsylvania resident, received treatment for his injuries in New York; and (6) the key Waiver Agreement in this case governs activities in New York and has its validity determined by New York law. The contacts with Michigan are markedly less. T-Trak’s headquarters is in Michigan. Some design and  [*17] testing of the TTA took place in Michigan. However, the TTA and its warnings were designed by a Washington resident, and the component parts of the TTA were manufactured in multiple states other than Michigan (including the pads which containing the warnings). The actual T-Trak dealer who negotiated the New York contract of sale for the TTA with Cornell was based in Georgia. Finally, the TTA was assembled in New York by Cornell from constituent pieces delivered from various locations. 7

7 These circumstances are readily distinguishable from those in Kelly v. Ford Motor Co., 933 F. Supp. 465 (E.D. Pa. 1996), upon which T-Trak heavily relies. In Kelly, much of the design, testing, assembly, and warning label placement occurred in various Michigan locales under the close coordination of Ford. As mentioned above, T-Trak did not even manufacture or assembly any parts of the TTA in Michigan. Kelly is not persuasive.

Accordingly, I conclude New York law applies to the question of punitive damages against T-Trak. Upon review of the record, I find Plaintiff has adduced sufficient evidence to allow the claim for punitive damages to proceed.

Cornell’s Motion for Partial Summary Judgment on Punitive [*18] Damages

Cornell claims that Plaintiff has failed to adduce any evidence that could justify punitive damages under New York law. Plaintiff responds that “Cornell’s relevant conduct is textbook-appropriate” in terms of punitive damages for multiple reasons: (1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.” See Pl.’s Resp. Opp’n Def. Cornell’s Mot. Summ. J. Punit. Damages 2-3.

As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton, 498 F. Supp. 2d at 653. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct  [*19] constitutes willful or wanton negligence or recklessness.” Buckholz v. Maple Garden Apts., LLC, 38 A.D.3d 584, 832 N.Y.S.2d 255, 256 (N.Y. App. Div. 2007); see also Mahar v. U.S. Xpress Enters., 688 F. Supp. 2d 95, 110 (N.D.N.Y. 2010) (allowing punitive damages in rare cases of egregious and willful conduct that is morally culpable); Black v. George Weston Bakeries, Inc., No. 07-CV-853S, 2008, 2008 U.S. Dist. LEXIS 92031, WL 4911791, at *7 (W.D.N.Y. Nov. 13, 2008) (permitting punitive damages where conduct constitutes conscious disregard of others); Bohannon (ex rel. Estate of Dolik) v. Action Carting Envtl. Servs., Inc., No. 06-CV-5689 (JG), 2008 U.S. Dist. LEXIS 40516, 2008 WL 2106143, at *3 (E.D.N.Y. May 20, 2008) (recognizing utter indifference to the safety of others warrants granting punitive damages).

Upon review of the record, I concur with Plaintiff that there is more than enough evidence to allow Plaintiff’s punitive damages claim to proceed. There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would  [*20] amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.

III. Cornell’s Motion for Summary Judgment

Cornell moves for summary judgment on two bases: (1) Plaintiff assumed the risk of using the TTA and Cornell had no duty to supervise the use of gymnastic equipment by novices, and (2) there is no evidence as to causation concerning Cornell. There are so many material disputes of fact between Plaintiff and Cornell that a lengthy explication of them would be a waste of resources. Suffice it to say that, despite occasional rhetoric to the contrary, Plaintiff and Cornell disagree about nearly every major fact or opinion of record that relates to the issues raised in the Motion. 8 Specific to assumption of risk (discussed supra), there are considerable disputes over whether Plaintiff knew or appreciated the risks of the TTA. Cornell’s  [*21] assertions to the contrary appear to be mostly self-serving statements. Because Plaintiff has adduced plentiful evidence (testimony, admissions, experts) in support of the position that he was not aware of the relevant risk and could not be expected to be aware of that risk, summary judgment is obviously inappropriate. 9

8 These two parties have repeatedly filed briefs of excessive length (50-100 pages each), including unnecessary bolded or italicized text for emphasis, in which they highlight disputes of fact ad infinitum.

9 This conclusion is buttressed by the fact that, as discussed supra, there are even disputes of material fact as to whether (1) the risk of harm was obvious, open, or hidden, and (2) the risk of harm was enhanced by Cornell’s own actions.

Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006) (finding experienced gymnast with six years of instruction assumed known risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (N.Y. App. Div. 2005) (holding plaintiff assumed risk of using trampoline where she failed to  [*22] adduce evidence that she was unaware of the potential for injury); Palozzi v. Priest, 280 A.D.2d 986, 720 N.Y.S.2d 676, 676 (N.Y. App. Div. 2001) (affirming application of assumption of risk to teenager injured while “fake wrestling” on trampoline); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 729 (N.Y. App. Div. 1998) (noting plaintiff assumed risk of “double jumping” despite warnings on trampoline that were deemed adequate as a matter of law); Williams v. Lombardini, 38 Misc. 2d 146, 238 N.Y.S.2d 63, 64-65 (N.Y. Sup. Ct. 1963) (determining plaintiff assumed risk where he admitted seeing rule that prohibited “difficult tricks” but attempted front flip on trampoline anyway). As discussed supra, summary judgment based on assumption of risk is inappropriate where there is a question as to appreciation or understanding of risk. 10 See Hedstrom, 76 F. Supp. 2d at 435-36 (recognizing no assumption of risk by beginning trampoline user who was unaware and not sufficiently warned of risks); Kroll, 764 N.Y.S.2d at 731 (deciding plaintiff did not assume risk because she was unaware of trampoline’s defect). Application of assumption of risk at summary judgment is especially inappropriate here because New York law disfavors using the  [*23] doctrine in cases where there are allegations of reckless or intentional conduct, or concealed or unreasonably increased risks. 11 Morgan, 90 N.Y.2d at 485; see, e.g., Charles v. Uniondale Sch. Dist. Bd. of Educ., 91 A.D.3d 805, 937 N.Y.S.2d 275, 276-77 (N.Y. App. Div. 2012) (denying summary judgment where issues of fact existed as to whether defendant unreasonably increased risk by failing to provide head and face protection to plaintiff lacrosse player); Miller v. Holiday Valley, Inc., 85 A.D.3d 1706, 925 N.Y.S.2d 785, 788 (N.Y. App. Div. 2011) (rejecting summary judgment because plaintiff submitted evidence that defendant’s negligent failure to stop ski lift caused plaintiff’s injuries); Repka, 798 N.Y.S.2d at 632-33 (dismissing summary judgment motion because lack of adequate warnings may have unduly enhanced snowmobile’s concealed defect). In short, I do not find that Cornell is entitled to judgment as a matter of law based on the assumption of risk doctrine.

10 Cornell argues that the warning notice on the TTA itself establishes total assumption of risk. However, a vast portion of the evidence in this case (almost all of it disputed) is about whether the TTA’s warnings were seen, sufficient, or effective. In  [*24] other words, Cornell relies on a highly disputed factual conclusion concerning the adequacy of the warning to justify summary judgment on assumption of risk grounds. This Court cannot follow.

11 I am completely unpersuaded by Cornell’s argument concerning its total lack of a duty of care to a novice student using equipment in the Teagle Gymnasium. N.Y. Gen. Oblig. Law § 5-326 (McKinney 1976) (voiding gymnasium waivers); Eddy v. Syracuse Univ., 78 A.D.2d 989, 433 N.Y.S.2d 923 (App. Div. 1980) (concluding questions of negligence, foreseeability of injury, and duty to protect gym users are all proper issues for a jury); Lorenzo v. Monroe Comm. Coll., 72 A.D.2d 945, 422 N.Y.S.2d 230 (1979) (finding questions of fact existed as to whether defendant provided adequate supervision in gymnasium). Much of Cornell’s arguments are bootstrapped onto a conclusion of assumption of risk — i.e., because a student assumed the risk, the defendant college owes no duty with respect to the dangers inherent in the activity. As discussed, this Court cannot conclude at this stage that there was any assumption of risk. In addition, this Court will not revisit its previous rulings as to the issue of the prior academic year waiver despite Cornell’s  [*25] apparent invitation.

Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). 12 Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.

12 Cornell spends considerable time “debunking” these experts in briefs, often by reference to the testimony of others. By doing so, Cornell highlights some of the very disputes that preclude summary judgment.

Conclusion

Tumbl Trak maintains that Plaintiff cannot prove it inadequately warned him against use of its product.  [*26] Cornell suggests that this case involves nothing more than a “luckless accident” that resulted from Plaintiff’s voluntary participation in vigorous athletic activity. Plaintiff disagrees. He believes that he was harmed by (1) a device with grossly inadequate warnings, and (2) an institution which engaged in a course of conduct of gymnasium operation and supervision which was reprehensible and reckless. Based on the record before me, Plaintiff is entitled to put these questions to a jury.

An appropriate Order follows.

ORDER

AND NOW, this 31st day of July, 2012, it is hereby ORDERED that:

  1. Defendant Tumbl Trak’s Motion for Partial Summary Judgment (Docket No. 169) is DENIED.
  2. Cornell University’s Motion for Summary Judgment (Docket No. 171) is DENIED.
  3. Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172) is DENIED.
  4. The Case Management Order dated April 20, 2012 remains in force.

In addition, this Court has briefly reviewed the initial pre-trial filings in this matter and noticed that they do not conform with the Chambers Policies and Procedures, available at http://www.paed.uscourts.gov. The rules contained therein are not optional, and are to be followed  [*27] to the letter. No party has ever represented to this Court that they cannot work with their colleagues to fulfill their responsibilities under these procedures. Here, it appears the parties have, at least, failed to properly prepare their joint proposed jury instructions and joint proposed voir dire. Instead, three different versions of each document were separately filed by three different parties — a situation that the Chambers Policies obviously sought to preclude. The parties are specifically directed to review the Chambers Policies and Procedures, Civil Cases, Subsection E, which provide two pages of instructions as to the proper preparation and presentation of these and other pre-trial submissions. 13 It is ORDERED that the parties promptly withdraw any non-conforming filings and submit appropriately-prepared ones by August 31, 2012.

13 Parties are expected to be familiar with all Policies and Procedures by the time of the final pre-trial conference, especially the items concerning exhibits, courtroom operation, and attorney conduct during a trial.

BY THE COURT:

/s/ C. Darnell Jones, II

  1. DARNELL JONES, II, U.S.D.J.

 


Arizona University did not owe student a duty of care during a study abroad program when the students organized an “off campus” trip, which resulted in a student’s death

Two different issues determine most outcomes in lawsuits against college & universities, whether the class was for credit or not and whether the incident occurred off campus or on campus.

Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

State: Arizona, Court of Appeals of Arizona, Division One

Plaintiff: Elizabeth Boisson

Defendant: Arizona Board Of Regents, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad

Plaintiff Claims: negligence

Defendant Defenses: no duty owed

Holding: for the defendant

Year: 2015

The deceased signed up for an international study abroad trip in China through the defendant university. While in China, the deceased and several other students organized a trip to Everest base camp. While at Everest base camp the deceased suffered altitude sickness and died.

From China, you can drive to the North Side base camp of Everest, which is at 19,000 feet.

During a student-organized trip, 14 study abroad students — including Morgan — flew to Lhasa, Tibet. The students then drove to the Mount Everest base camp a few days later. While at base camp, which is approximately 18,000 feet above sea level, Morgan developed and then died of altitude sickness.

The trial court dismissed the plaintiff’s claims based on the defendant’s motion for summary judgment. This appeal followed.

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

The court first looked at the requirements to prove negligence in Arizona.

Although described in various ways, a plaintiff alleging a claim for negligence under Arizona common law has the burden to show: (1) duty; (2) breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation and (5) resulting damages.

Arizona uses a five-step test for negligence when most other states use a four-point test. The difference is Arizona expands the definition of proximate causation requiring an actual cause and a proximate cause to prove negligence.

Of the five steps, the first, whether or not there was a duty, is a decision that is made by the court.

The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” . . . .

Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.

Foreseeability is not an issue under Arizona’s law. Whether or not the defendant could foresee the injury to the plaintiff does not come into play when determining if a duty existed.

The court then looked at the duties owed by a college in Arizona to a student. Most duties arise when the relationships between the school and the student are custodial. Arizona does owe students a duty of reasonable care for on campus activities.

However, the duties owed for off-campus  activities by a university to a student are different.

Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.

This analysis has seven steps to determine the duty owed, if any, by an Arizona college.

…Arizona cases have identified the following factors in determining whether an off-campus activity is deemed a school activity: (1) the purpose of the activity, (2) whether the activity was part of the course curriculum, (3) whether the school had supervisory authority and responsibility during the activity, and (4) whether the risk students were exposed to during the activity was independent of school involvement. Courts elsewhere also have looked at whether (5) the activity was voluntary or was a required school activity; (6) whether a school employee was present at or participated in the activity or was expected to do so and (7) whether the activity involved a dangerous project initiated at school but built off campus.

Here the trip was conceived and organized by the students. The students dealt with a Chinese tour company to make the arrangements. Not all the students in the study abroad program undertook the trip. The college offered no academic credit for the trip, and the trip was not in the curriculum of the program.

Defendants had no supervisory authority over, or responsibility for, the trip, and no faculty or staff went on the trip. The risk of altitude sickness was present independent of any involvement by Defendants and the trip did not involve a potentially dangerous project initiated at school but built off campus. Accordingly, applying these factors, the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty under Arizona law.

The plaintiff hired an expert witness who stated that the university absolutely had a duty to the plaintiff. However, the court ignored the expert finding the determination of a duty was solely within the province of the court, and the expert witness’s opinion did not matter.

The trial court’s determination was upheld because the appellate court found that the school owed no duty to the deceased.

So Now What?

One important thing that parents seem to forget when their sons and daughters leave for college is not only are they leaving home, but they are also leaving any real supervision, custody or control. Colleges and universities are not baby sitters or parents and parents probably should be reminded of that fact.

Here, the effects were disastrous; however, the issues were clear. A group of students left campus to do something. Where campus is, did not matter and where the students went did not matter. Whether or not the effects of altitude on a student at 19, 000 did also not matter because the college did not arrange, run, manage or control the students.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:clip_image002_thumb.jpg

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, College, University, Duty, Duty Owed, Negligence, Study Abroad, Wrongful Death, No Duty Owed,

 


Doctrine of Primary Assumption of Risk precludes a student for suing for injuries in a for credit college karate class

Ohio holds there is no difference between a sport and recreation and a for credit class sport, assumption of the risk applies evenly to both.

Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County

Plaintiff: Aaron S. Morgan

Defendant: Kent State University et al.

Plaintiff Claims: Negligence

Defendant Defenses: primary assumption of the risk and release

Holding: for the Defendant

Year: 2016

The plaintiff enrolled in a for credit karate class with the defendant university. The syllabus stated the students would be using holds, releases, throwing punches and kicks, that the students were expected to protect themselves from. Students were also expected to wear a mouth guard and padded gloves.

The course syllabus for beginning karate listed objectives for the students, including: “[d]emonstrat[ing] basic self-defense techniques including release from various holds and counter attacks, joint locks and throws.” Additionally, the syllabus listed a variety of fighting techniques, including punches and kicks, that the students were expected to perform. Students enrolled in the class were required to wear a mouth guard and padded gloves.

One day the plaintiff was sparring with the instructor. The instructor was not wearing padded gloves. The student was expected to protect himself from punches. If the student dropped their guard, normally the exercise was paused till the student was able to protect themselves again.

In this case as the plaintiff lost his footing he dropped his guard and the instructor punched him in the face.

On October 24, 2012, while appellant was sparring with Malecki, he lost his balance and dropped his guard. When appellant dropped his guard, Malecki punched appellant in the face. According to appellant, Malecki’s palm struck him on the nose. Malecki was not wearing padded gloves when he struck appellant. Appellant’s nose immediately started bleeding. Malecki and a student employee helped to stop appellant’s bleeding and then filled out an incident report. Appellant later sought medical care and was told that he suffered a nasal fracture.

The student suffered injuries from the punch and sued. Lawsuits in against the State of Ohio are brought in the Ohio Court of Claims. Kent State University is a state school, owned by the State of Ohio.

The Court of Claims granted the defendants motion for summary judgment and the student appealed to the Ohio Appellate Court.

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

The plaintiff argued four different reasons why the Court of Claims decision should be reversed. The appellate court looked at the second argument first. That argument was the doctrine of primary assumption of risk as defined in Ohio did not apply to his claim.

The court first examined the requirements to establish a negligence claim under Ohio law.

“[I]n order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.” “Under the law of negligence, a defendant’s duty to a plaintiff depends on the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position.”

A defendant has a duty to plead assumption of the risk if it is applicable in a case. That duty means the defense is an affirmative defense and must be plead with the answer or lost.

Ohio recognizes three different Assumption of the Risk defenses.

Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Ohio courts have historically applied the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities.

Primary assumption of the risk is the defense that is argued when a participant in a sporting event is injured by an inherent risk of the activity.

“Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.”

An inherent risk in a sport or activity is one that is so much a part of the sport that to eliminate the risk, the sport would not exist. If there is not inherent risk, then a claim of negligence may occur.

When applied to sporting events in Ohio, the knowledge or consent of the injured plaintiff is not at issue. It is not what the plaintiff knew or assumed that is important, it is solely a question of the risks of the sport.

When considering a defense of primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Thus, even persons “‘entirely ignorant of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game. The law simply deems certain risks as accepted by plaintiff regardless of actual knowledge or consent.

Primary assumption of the risk is a look at the sport or activity, not the plaintiff, the plaintiff’s knowledge or ascent to the activity.

…’primary assumption of [the] risk requires an examination of the activity itself and not plaintiff’s conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.’

If the risk is an inherent risk of the activity, then the doctrine of primary assumption of the risk applies and the defendant did not owe a duty to the plaintiff. If no duty is owed, then no breach occurred. If no duty is owed then no negligence occurred.

“The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” “‘Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.'”

The court found the risks the plaintiff suffered were an inherent risk of karate and the plaintiff assumed the inherent risks of the sport.

The Court of Claims found that “[t]here is no question that the martial arts class was a sports or recreational activity with an inherent risk of injury.” Furthermore, the Court of Claims found that “[p]hysical contact between participants during karate sparring is simply a foreseeable hazard of the activity.”

Karate is a recreational activity involving physical contact in the form of punches, kicks, and other techniques as detailed in the course outline for the beginning karate course in which appellant was enrolled. Thus, by its very nature, karate, as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated. Indeed, the course outline notes that a “mouthguard; sparring gloves; athletic supporter w/cup” are required. As danger is inherent in karate, it is common knowledge that such danger exists, and appellant’s injury occurred during the course of participating in the inherently dangerous activity, we find that the doctrine of primary assumption of the risk applies in this case.

Because the risk was inherent, it was assumed and the plaintiff had no claim because there was no negligence.

Under the doctrine of primary assumption of the risk, KSU owed no duty to protect appellant from the inherent risks of the activity. As a result, appellant is precluded from establishing a prima facie case of negligence, and the trial court did not err in granting KSU’s motion for summary judgment.

After making this finding, the court held that the plaintiff’s first and third assignment of error were moot. Moot meaning no longer at issue because of the finding on the second assignment of error by the court.

The fourth assignment of error was a procedural claim for attorney fees and the court ruled no attorney fees were to be paid to the plaintiff.

The appellate court agreed with the lower courts and the case was dismissed.

So Now What?

First it is always interesting to see how a court will rule when a student is injured in a for credit class at a college or university. The syllabus is always entered as an exhibit. Consequently, as a professor, lecturer, instructor, adjunct or whatever word someone has coined to describe the person in front of a classroom out of high school, make sure you syllabus includes the risk of the activity.

This might mean your syllabus becomes an assumption of the risk document. A syllabus in many states is an agreement between the student and the college (without a signature, but never the less a contract). Consequently use that opportunity to inform the student of the risks they may encounter in your class.

Second, if you are doing an activity where the court may not fully understand the risks of the activity, you need to prepare that defense in advance of any litigation. Do not limit your documents to identifying just the inherent risks of an activity, but all of the risks of an activity. Have videos available or on your website for your guests to review so they understand what is going to happen and what the real risks are.

Most importantly, do what you do best. Educate. The more your students know before their desks, they should fully understand all aspects of what they are going to encounter.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:clip_image0024_thumb.jpg

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Karate, Sport, Recreation, Kent State University, for credit, class,

 


Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

Morgan, v. Kent State University et al., 2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

Aaron S. Morgan, Plaintiff-Appellant, v. Kent State University et al., Defendants-Appellees.

No. 15AP-685

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2016-Ohio-3303; 54 N.E.3d 1284; 2016 Ohio App. LEXIS 2160

June 7, 2016, Rendered

COUNSEL: On brief: David B. Spalding, for appellant.

On brief: Michael DeWine, Attorney General, and Lee Ann Rabe, for appellee Kent State University.

JUDGES: DORRIAN, P.J. BROWN and SADLER, JJ., concur.

OPINION BY: DORRIAN

OPINION

[**1287] (REGULAR CALENDAR)

DECISION

DORRIAN, P.J.

[*P1] Plaintiff-appellant, Aaron S. Morgan, appeals the June 19, 2015 judgment of the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee Kent State University (“KSU”). For the following reasons, we affirm the judgment of the Court of Claims.

I. Facts and Procedural History

[*P2] During the period of time relevant to the present matter, appellant was a student at KSU’s Stark campus. In the fall semester 2012, appellant enrolled in a beginning karate class taught by Edward C. Malecki, an employee of KSU. Appellant had no experience in martial arts before enrolling in the beginning karate class, but had a general idea of what karate entailed through movies and television.

[*P3] The course syllabus for beginning karate listed objectives for the students, including: “[d]emonstrat[ing] basic self defense techniques including release from various holds and counter attacks, joint [***2] locks and throws.” (Apr. 17, 2015 KSU Mot. for Summ. Jgmt., Ex. D.) Additionally, the syllabus listed a variety of fighting techniques, including punches and kicks, that the students were expected to perform. Students enrolled in the class were required to wear a mouth guard and padded gloves.

[*P4] As part of the class, students were required to spar with one another and with the instructor using only “light physical contact.” (Malecki Dep. at 52.) According to Malecki, there was no bodily or facial contact permitted either by the students or the instructor. During the sparring, students practiced guarding themselves using their hands in defensive postures in front of their body. It was not uncommon for students to make mistakes, such as dropping their guard by lowering their hands. When a student would drop his or her guard, the instructor would stop the sparring procedure until the student resumed guarding himself or herself.

[*P5] On October 24, 2012, while appellant was sparring with Malecki, he lost his balance and dropped his guard. When appellant dropped his guard, Malecki punched appellant in the face. According to appellant, Malecki’s palm struck him on the nose. Malecki was not wearing [***3] padded gloves when he struck appellant. Appellant’s nose immediately started bleeding. Malecki and a student employee helped to stop appellant’s bleeding and then filled out an incident report. Appellant later sought medical care and was told that he suffered a nasal fracture.

[*P6] On July 15, 2014, appellant filed a complaint in the Court of Claims asserting claims for negligence and negligent hiring against KSU. On March 31, 2015, appellant filed a motion for partial summary judgment and attorney fees and expenses pursuant to Civ.R. 37(C). On April 17, 2015, KSU filed a motion for summary judgment and a memorandum contra appellant’s motion for partial summary judgment. On April 28, 2015, appellant filed a supplemental brief in support of his motion for attorney fees and expenses. On April 28, 2015, appellant filed a reply brief in support of his motion for summary judgment.

[*P7] On June 19, 2015, the Court of Claims filed an entry granting KSU’s motion for summary judgment and denying appellant’s motion for attorney fees and expenses.

II. Assignments of Error

[*P8] Appellant appeals and assigns the following four assignments of error for our review:

[**1288] [I.] The trial court erred in holding that the broad and general [***4] language contained in the Waiver, which neither Kent State University nor Aaron Morgan intended to apply to academic or physical education classes, effectively released the Appellee from liability resulting from the Appellant being struck in the face by his instructor during a class the Appellant subsequently enrolled in through the University.

[II.] The trial court erred in holding that the Appellant’s claim against Kent State University is barred by the doctrine of primary assumption of risk.

[III.] The trial court erred in failing to grant Plaintiff-Appellant’s Motion for Partial Summary Judgment, as to the issue of liability.

[IV.] The trial court erred by its failure to rule on Plaintiff-Appellant’s Motion for Attorney Fees and Expenses pursuant to Civ.R. 37(C).

For ease of discussion, we consider appellant’s assignments of error out of order.

III. Discussion

A. Second Assignment of Error

[*P9] In his second assignment of error, appellant asserts the Court of Claims erred in holding that his claim for negligence was barred by the doctrine of primary assumption of the risk.

[*P10] [HN1] “[I]n order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury [***5] resulting proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981), citing Feldman v. Howard, 10 Ohio St.2d 189, 193, 226 N.E.2d 564 (1967). “Under the law of negligence, a defendant’s duty to a plaintiff depends on the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position.” Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 11, citing Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645, 1992 Ohio 42, 597 N.E.2d 504 (1992).

[*P11] [HN2] “Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Schnetz v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 207, 2011-Ohio-3927, ¶ 21, 959 N.E.2d 554 (10th Dist.), citing Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10, 924 N.E.2d 906 (10th Dist.). Ohio courts have historically applied the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities. Crace at ¶ 12, citing Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-696, 2008-Ohio-1421, ¶ 8, citing Anderson v. Ceccardi, 6 Ohio St.3d 110, 114, 6 Ohio B. 170, 451 N.E.2d 780 (1983).

[*P12] [HN3] “Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.” Morgan at ¶ 13, citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio- 3656, ¶ 12, 857 N.E.2d 1255 (10th Dist.). See Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), paragraph one of the syllabus. Underlying the doctrine is the rationale that certain risks are [***6] so inherent in some activities that they cannot be eliminated, and therefore a person participating in such activities tacitly consents to the risks involved. Crace at ¶ 13, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist. [**1289] 1987). “The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that ‘(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.'” Morgan at ¶ 13, quoting Santho at ¶ 12.

[*P13] “‘To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.), citing Westray v. Imperial Pools & Supplies, Inc., 133 Ohio App.3d 426, 432, 728 N.E.2d 431 (6th Dist.1999). “Where the risk at issue is not inherent, then a negligence standard applies.” Id.

[*P14] [HN4] The Supreme Court of Ohio has explained the applicability of the doctrine of primary assumption of the risk and the rationale underlying it as follows:

Acts that would give rise to tort liability for negligence on a city street or in a backyard are not negligent in the context of a game where such an act is foreseeable and within the rules. For instance, a golfer who hits practice balls in his backyard [***7] and inadvertently hits a neighbor who is gardening or mowing the lawn next door must be held to a different standard than a golfer whose drive hits another golfer on a golf course. A principal difference is the golfer’s duty to the one he hit. The neighbor, unlike the other golfer or spectator on the course, has not agreed to participate or watch and cannot be expected to foresee or accept the attendant risk of injury. Conversely, the spectator or participant must accept from a participant conduct associated with that sport. Thus a player who injures another player in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence because no duty is owed to protect the victim from that conduct. Were we to find such a duty between co-participants in a sport, we might well stifle the rewards of athletic competition.

Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. See also Crace at ¶ 14.

[*P15] [HN5] When considering a defense of primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Crace at ¶ 16, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio- 379, ¶ 9, 802 N.E.2d 1116, citing Ramos v. Countryside, 137 Ill.App.3d 1028, 1031-32, 485 N.E.2d 418, 92 Ill. Dec. 607 (1985). Thus, even persons “‘entirely ignorant [***8] of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game. The law simply deems certain risks as accepted by plaintiff regardless of actual knowledge or consent.'” (Footnotes omitted.) Gentry at ¶ 12, quoting Susan M. Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law, 75 Temple L.Rev. 231, 236 (2002). In accordance with these principles, this court has stated that “‘primary assumption of [the] risk requires an examination of the activity itself and not plaintiff’s conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.'” Morgan at ¶ 15, quoting Gehri v. Capital Racing [**1290] Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997).

[*P16] [HN6] “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” Id. at ¶ 14, citing Crace at ¶ 15, citing Gentry at ¶ 11, citing Prosser & Keeton, The Law of Torts, Section 68, at 496 (5th Ed.1984). [***9] “‘Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.'” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010-Ohio-1390, ¶ 21, quoting Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996). “Because of the great impact a ruling in favor of a defendant on primary assumption of risk grounds carries, a trial court must proceed with caution when contemplating whether primary assumption of risk completely bars a plaintiff’s recovery.” Gallagher at 432.

[*P17] In Crace, this court considered the applicability of the doctrine of primary assumption of the risk. In that case, Angela Crace, a student cheerleader at KSU, asserted a claim for negligence against KSU after she was severely injured during a cheerleading practice. On the day Crace was injured, the KSU cheerleading coach assigned members of the cheerleading squad, including Crace, to various positions in a maneuver known as a the “Big K.” The Big K was essentially a human pyramid that consisted of a base, a middle layer/base, and flyers; the pyramid was two and one-half people high. Spotters were positioned on the ground to catch the flyers when they dismounted the [***10] pyramid.

[*P18] Crace and several other members of the KSU cheerleading squad had successfully performed the Big K during the previous season. However, many other members of the team had neither performed nor seen the maneuver. On the day Crace was injured, the coach assigned Crace to the position of flyer. The first two attempts at the mount failed, resulting in Crace falling from about 15 feet in the air. However, the front spotter caught Crace when she fell. Before the third attempt, the coach substituted as the rear spotter a team member who had neither seen nor participated in the Big K. On the third attempt, the substitute rear spotter failed to catch Crace as she fell from approximately 15 feet in the air. As a result, Crace’s fall was unbroken, and she fell to the ground, resulting in immediate paraplegia.

[*P19] At issue in Crace was whether the doctrine of primary assumption of the risk applied to relieve KSU of liability based on the conduct of the cheerleading coach. Crace argued that the doctrine applied only to co-participants in a recreational activity. We disagreed, finding that [HN7] the doctrine of primary assumption of the risk applies to co-participants and non-participants alike. [***11] In so finding, we noted that the analysis of the doctrine focuses exclusively on the activity itself. Thus, if the activity is one that is inherently dangerous and from which risks cannot be eliminated, primary assumption of the risk is applicable. Id. at ¶ 16, citing Gehri. In so finding, we stated:

A holding to the contrary would likely shift the focus of the analysis away from the activity and its inherent risks. The analysis would then unnecessarily focus upon the extent of the defendant’s involvement and the defendant’s classification [**1291] as a participant, nonparticipant, coach, instructor, official, operator, owner, sponsor, provider, or otherwise. Injured participants would frame their allegations sufficiently to cast a liability net just beyond the reach of Marchetti and Thompson, with no regard for the inherent risks of the activity.

Id. at ¶ 25.

[*P20] We thus rejected Crace’s argument that primary assumption of the risk could not relieve a university of liability for negligence based on the conduct of one of its coaches in a cheerleading practice. Having so concluded, we next determined based on the evidence presented at trial that suffering an injury due to a fall is an inherent risk [***12] of cheerleading. Therefore, we found that the doctrine of primary assumption of the risk applied, and, as such, KSU owed no duty to protect Crace from the inherent risk of injury related to a fall while participating in cheerleading, absent a demonstration of recklessness or intentional misconduct.

[*P21] Here, appellant contends that the trial court erred in applying the doctrine of primary assumption of the risk because “the facts of this case manifestly establish that the injury sustained by [appellant] on October 24, 2012 was * * * not a ‘foreseeable’ consequence of participating in the subject Beginning Karate class.” (Emphasis omitted.) (Appellant’s Brief at 28-29.) Appellant cites the following circumstances in support of his contention: (1) all of the students in the class were “novices in martial arts”; (2) “the students were specifically assured by the instructor that there would be no bodily contact during the class and that facial contact was explicitly prohibited”; (3) “the instructor was required to wear padded, protective gloves as a further safeguard against injury”; and (4) “when a student dropped his or her guard, the instructor was required to stop the session until the [***13] student raised his or her guard.” (Appellant’s Brief at 28.)

[*P22] Appellant suggests the court consider that he had no experience in the martial arts. However, such a suggestion “shift[s] the focus of the analysis away from the activity and its inherent risks.” Crace at ¶ 25. Appellant further suggests the court consider the instructor’s actions. This essentially is a claim that the instructor was reckless. However, appellant’s complaint did not allege reckless or intentional conduct.

[*P23] Therefore, we decline to consider the same and limit our analysis to whether the doctrine of primary assumption of the risk applies to appellant’s claim for negligence. Thus, we consider whether karate is an inherently dangerous activity from which the risks cannot be eliminated. Morgan at ¶ 15; Crace at ¶ 16.

[*P24] The Court of Claims found that “[t]here is no question that the martial arts class was a sports or recreational activity with an inherent risk of injury.” (Jgmt. Entry at 5.) Furthermore, the Court of Claims found that “[p]hysical contact between participants during karate sparring is simply a foreseeable hazard of the activity.” (Jgmt. Entry at 5.) Other courts have found that participating in martial arts involves inherent risk. Levine v. Gross, 123 Ohio App.3d 326, 330, 704 N.E.2d 262 (9th Dist.1997) (finding that the plaintiff [***14] understood the “kind of risk posed by sparring and grappling in the course of a karate lesson”); Barakat v. Pordash, 164 Ohio App.3d 328, 2005-Ohio-6095, ¶ 12, 842 N.E.2d 120 (8th Dist.) (finding in the context of martial arts that “being injured in the course of a hold or maneuver is a risk that is a foreseeable and customary risk of the sport”).

[*P25] Karate is a recreational activity involving physical contact in the form of punches, kicks, and other techniques as [**1292] detailed in the course outline for the beginning karate course in which appellant was enrolled. Thus, by its very nature, karate, as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated. Indeed, the course outline notes that a “mouthguard; sparring gloves; athletic supporter w/cup” are required. (KSU Mot. for Summ. Jgmt., Ex. D.) As danger is inherent in karate, it is common knowledge that such danger exists, and appellant’s injury occurred during the course of participating in the inherently dangerous activity, we find that the doctrine of primary assumption of the risk applies in this case. Morgan at ¶ 13, citing Santho at ¶ 12. Under the doctrine of primary assumption of the risk, KSU owed no duty to protect appellant from the inherent risks of the activity. Id. at ¶ 27 [***15] . As a result, appellant is precluded from establishing a prima facie case of negligence, and the trial court did not err in granting KSU’s motion for summary judgment. Barakat at ¶ 13, citing Gentry (“Because an inherent risk was involved, recovery is dependent upon whether the defendant’s conduct was either reckless or intentional.”); Wolfe at ¶ 21.

[*P26] Accordingly, appellant’s second assignment of error is overruled.

B. First and Third Assignments of Error

[*P27] In his first assignment of error, appellant asserts that the Court of Claims erred by holding that the waiver signed by appellant released KSU from liability for the incident on October 24, 2012. In his third assignment of error, appellant asserts that the Court of Claims erred by failing to grant appellant’s motion for partial summary judgment on the issue of liability. Having overruled appellant’s second assignment of error, appellant’s first and third assignments of error are rendered moot.

C. Fourth Assignment of Error

[*P28] In his fourth assignment of error, appellant asserts that the Court of Claims erred by failing to rule on his motion for attorney fees and expenses pursuant to Civ.R. 37(C). We begin by noting that the Court of Claims in its June 19, 2015 judgment entry granting KSU’s motion for summary judgment did in fact rule on appellant’s March 31, 2015 motion for attorney fees and expenses. [***16] Specifically, the court stated: “The court finds that there was either a good reason for [KSU’s] failure to admit or the admissions sought were of no substantial importance. The court further finds that [appellant] has not suffered prejudice regarding the responses at issue. Accordingly, [appellant’s] motion for attorney fees and expenses is denied.” (Emphasis omitted.) (Jgmt. Entry, fn. 1.)

[*P29] Civ.R. 37(C) provides as follows:

Expenses on failure to admit. [HN8] If a party, after being served with a request for admission under Rule 36, fails to admit the genuineness of any documents or the truth of any matter as requested, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. Unless the request had been held objectionable under Rule 36(A) or the court finds that there was good reason for the failure to admit or that the admission sought was of no substantial importance, the order shall be made.

[*P30] Thus, [HN9] “[a] party may deny a request for admissions, but, upon motion pursuant to Civ.R. 37(C), improper [**1293] denials [***17] may subject the responding party to sanctions.” Salem Med. Arts & Dev. Corp. v. Columbiana Cty. Bd. of Revision, 82 Ohio St.3d 193, 195, 1998 Ohio 248, 694 N.E.2d 1324 (1998). “Whether such denials are subject to Civ.R. 37(C) sanctions depends upon whether the proof at trial contradicts the denial.” Id. The party denying a later-proved matter has the burden of proving that: “(1) the request for admissions was objectionable under Civ.R. 36 (A); (2) there was a good reason for the failure to admit; or (3) the matter was of no substantial importance.” Itskin v. Restaurant Food Supply Co., 7 Ohio App.3d 127, 129, 7 Ohio B. 161, 454 N.E.2d 583 (10th Dist.1982), paragraph one of the syllabus.

[*P31] “The determination of whether to award expenses and the amount thereof, pursuant to Civ.R. 37(C), necessarily involves a matter of discretion and, thus, is a matter lying within the sound discretion of the trial court.” Id. “‘[A]buse of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140 (1983).

[*P32] Here, the Court of Claims found that there was either a good reason for the failure to admit or that the admissions were of no substantial importance. Appellant fails to demonstrate that the Court of Claims abused its discretion by denying the motion. Accordingly, we overrule appellant’s fourth assignment of error.

IV. Conclusion

[*P33] Having overruled appellant’s second and fourth assignments of error [***18] and rendered moot appellant’s first and third assignments of error, we affirm the judgment of the Court of Claims of Ohio.

Judgment affirmed.

BROWN and SADLER, JJ., concur.