Appellate court slams climbing gym, all climbing gyms in New York with decision saying not climbing gym can use a release.

A climbing gym is a recreational facility. As such, under New York law, the court found all releases fail at climbing gyms. Short, simple and broad statement leaves little room to defend using a release in New York.

Citation: Lee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660

State: New York; Supreme Court of New York, Appellate Division, Second Department

Plaintiff: Jennifer Lee, et al.

Defendant: Brooklyn Boulders, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release and Assumption of the Risk

Holding: For the Plaintiff

Year: 2017

Summary

A climber fell between the mats at a climbing gym injuring her ankle. The release was thrown out because a climbing gym is a recreational facility and assumption of the risk did not prevail because the Velcro holding the mats together hid the risk.

Facts

The plaintiff Jennifer Lee (hereinafter the injured plaintiff) allegedly was injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap between two mats. According to the injured plaintiff, the gap was covered by a piece of Velcro.

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

The trial court dismissed the defendant’s motion for summary judgment, and the defendant appealed. There were two issues the defendant argued on appeal: Release and Assumption of the Risk.

The court threw out the release in a way that makes using a release in New York at a climbing gym difficult if not impossible.

Contrary to the defendant’s contention, the release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature. Therefore, the release does not bar the plaintiffs’ claims.

The court threw out the release with a very far-reaching statement. “the defendant’s facility is recreational in nature.” It is unknown if the defendant tried to argue educational issues such as in Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)

The court then looked at the defense of assumption of the risk.

Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Moreover, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation

This court would seem to agree with an assumption of the risk defense based on statements made in case law set out above.

However, the facts in this case do not lead to such a clear decision. Because the gap between the mats was covered by Velcro, the court thought the Velcro concealed the risk.

Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing.

The Velcro, which was designed to keep the mats from separating, concealed the gap, which injured the plaintiff’s foot, when she landed between the mats. The defense of assumption of the risk was not clear enough for the court to decided the issue. Therefore assumption of the risk must be decided by a jury.

Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, regardless of the sufficiency of the opposition papers

So Now What?

It is getting tough to defend against claims and injuries in New York, specifically in climbing gyms. For an almost identical case factually see: Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.

Obviously, the facts in the prior New York climbing gym case, where the plaintiff fell between the mats provided the “track” used by this plaintiff in this lawsuit.

If your climbing gym has mats held together with Velcro or some other material, paint the material yellow or orange and identify that risk in your release or assumption of the risk agreement.

Assumption of the risk may still be a valid defense see NY determines that falling off a wall is a risk that is inherent in the sport. Unless you are teaching a class or some other way to differentiate your gym or that activity from a recreational activity, you are going to have to beef up your assumption of the risk paperwork and information to stay out of court.

What do you think? Leave a comment.

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

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