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Plaintiff cannot assume a risk which is not inherent in the activity or which he does not know.

The decision lacks any real information on how a carabiner detached from a harness on a mobile climbing wall. However, the decision makes the correct determination on whether the plaintiff assumed the risk under New York law.

Stillman v Mobile Mountain, Inc., 2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149

State: New York, Supreme Court of New York, Appellate Division, Fourth Department

Plaintiff: Jacob Stillman

Defendant: Mobile Mountain, Inc.

Plaintiff Claims: negligence

Defendant Defenses: Assumption of the Risk and lack of constructive notice of an alleged defect

Holding: for the Plaintiff

Year: 2018

Summary

This case looks at assumption of risk as a defense, when the risk assumed is not “visible” or known to the injured plaintiff. The plaintiff fell from a mobile climbing wall when the carabiner used in the belay detached. The defense of assumption of risk failed because the risk was concealed or unreasonably enhanced according to the court.

Facts

The defendant set up its mobile climbing wall at the Eden Corn Festival. While climbing the carabiner detached from the harness and the plaintiff fell 18′ to the ground.

The climbing wall amusement attraction included a safety harness worn by the patron and a belay cable system that attached to the harness by use of a carabiner. There is no dispute that the carabiner detached from the safety harness worn by plaintiff, and that plaintiff fell approximately 18 feet to the ground below.

The defendant filed a motion to dismiss based on assumption of the risk and the defendant did not have any notice that the “defective” part of the wall was defective. What part of the wall that was defined as defective was never identified. The trial court denied the defendants motion and the defendant appealed.

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

Assumption of the risk in New York is a defense in athletic or recreational activities. If you engage in the activity, you assume the risks that are inherent in the activity.

The doctrine of assumption of the risk operates “as a defense to tort recovery in cases involving certain types of athletic or recreational activities” A person who engages in such an activity “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”

However, a plaintiff cannot assume risks that the plaintiff does not know about, that are concealed, or are created due to the reckless or intentional conduct of the defendant.

However, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced”

However, the analysis the court used to deny the plaintiff’s motion was the defendant failed to prove that falling from a climbing wall was an inherent risk of climbing.

Here, we conclude that the court properly denied that part of defendant’s motion based on assumption of the risk inasmuch as it failed to meet its initial burden of establishing that the risk of falling from the climbing wall is a risk inherent in the use and enjoyment thereof

It seems to be confusing to say the risk of falling off a wall, suspended in the air is not obvious. However, this is a New York decision, which are always brief. Therefore, the statement of the court encompasses the real risk, that the carabiner or part of the system would fail allowing the plaintiff to fall.

More importantly, the plaintiff could not assume the risk of the carabiner failing because it is not an inherent risk of the sport and because there is no way the plaintiff could have known, seen, or discovered the risk.

So Now What?

The decision lacks more information than it provides. How did the carabiner become detached? Carabiners do not fail and there is nothing indicating the carabiner did fail. Consequently, either the carabiner was never attached properly or the plaintiff opened the carabiner.

The decision does follow other decisions like this in all other states. How it is explained is just a little confusing.

What do you think? Leave a comment.

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Stillman v Mobile Mountain, Inc., 2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149

Stillman v Mobile Mountain, Inc., 2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149

[**1] Jacob Stillman, Plaintiff-Respondent, v Mobile Mountain, Inc., Defendant-Appellant, et al., Defendants.

543 CA 17-01915

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149

June 8, 2018, Decided

June 8, 2018, Entered

CORE TERMS: climbing, defective condition, carabiner, festival, harness, constructive notice, failed to meet, dangerous condition, premises liability, summary judgment, attraction, amusement, worn

COUNSEL: [*1] OSBORN, REED & BURKE, LLP, ROCHESTER (JEFFREY P. DIPALMA OF COUNSEL), FOR DEFENDANT-APPELLANT.

CONNORS LLP, BUFFALO (LAWLOR F. QUINLAN, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

JUDGES: PRESENT: SMITH, J.P., CARNI, DEJOSEPH, AND TROUTMAN, JJ.

OPINION

Appeal from an order of the Supreme Court, Erie County (Mark J. Grisanti, A.J.), entered March 28, 2017. The order, insofar as appealed from, denied that part of the motion of defendant Mobile Mountain, Inc., seeking summary judgment dismissing the complaint against it.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he fell from an artificial rock climbing wall amusement attraction owned and operated by Mobile Mountain, Inc. (defendant) at the Eden Corn Festival. Insofar as relevant to this appeal, defendant moved for summary judgment dismissing the complaint against it on the grounds that the action is barred by the doctrine of assumption of the risk and, in the alternative, that it lacked constructive notice of any alleged defective condition causing the accident and injuries. Supreme Court denied that part of the motion, [*2] and we affirm.

The climbing wall amusement attraction included a safety harness worn by the patron and a belay cable system that attached to the harness by use of a carabiner. There is no dispute that the carabiner detached from the safety harness worn by plaintiff, and that plaintiff fell approximately 18 feet to the ground below.

The doctrine of assumption of the risk operates “as a defense to tort recovery in cases involving certain types of athletic or recreational activities” (Custodi v Town of Amherst, 20 NY3d 83, 87, 980 N.E.2d 933, 957 N.Y.S.2d 268 [2012]). A person who engages in such an activity “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” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). However, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced” (Custodi, 20 NY3d at 88). Here, we conclude that the court properly denied that part of defendant’s motion based on assumption of the risk inasmuch as it failed to meet its initial burden of establishing that the risk of falling from the climbing wall is a risk inherent in the use and enjoyment thereof (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]).

Defendant further contends that the court [*3] erred in denying that part of its motion based on lack of constructive notice of any alleged defective condition in the carabiner or the climbing wall. We reject that contention. Defendant casts the alleged defective condition as a dangerous condition on the property giving rise to premises liability (see generally Gordon v American Museum of Natural History, 67 NY2d 836, 837-838, 492 N.E.2d 774, 501 N.Y.S.2d 646 [1986]), and it thereafter attempts to establish its lack of liability based upon its lack of constructive notice of that condition (see generally Depczynski v Mermigas, 149 AD3d 1511, 1511-1512, 52 N.Y.S.3d 776 [4th Dept 2017]). Even [**2] assuming, arguendo, that the alleged defective condition constitutes a “dangerous condition on property” (Clifford v Woodlawn Volunteer Fire Co., Inc., 31 AD3d 1102, 1103, 818 N.Y.S.2d 715 [4th Dept 2006] [internal quotation marks omitted]), we conclude that defendant failed to establish either its own level of legal interest in the premises or its rights and obligations associated therewith. Indeed, the record is devoid of evidence regarding who owned the real property where the festival was held. Further, although defendant’s president testified at his deposition that defendant had a “contract” to operate the climbing wall at the festival, defendant failed to submit a copy of that contract or to otherwise establish the terms of or the identity of any other party to the alleged contract. We therefore conclude that defendant [*4] failed to meet its burden on that part of its motion based on premises liability (see generally Alvarez, 68 NY2d at 324).

Entered: June 8, 2018