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Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.

Release thrown out because of New York’s anti-release statute and condition causing plaintiff’s injury was the risk was “un-assumed, concealed or unreasonably increased” eliminating assumption of the risk claim.

McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

State: New York, Supreme Court of New York, Kings County

Plaintiff: Meghan McDonald

Defendant: Brooklyn Boulders, LLC

Plaintiff Claims: negligence,

Defendant Defenses: Release and Assumption of the Risk

Holding: for the Plaintiff

Year: 2016

Summary

Another case where it appears, the court was more on the plaintiff’s side then neutral. However, you must play with the cards you are dealt. Here a person injured at a climbing gym survived a motion for summary judgment because the release violated New York’s release law, and she could not assume the risk of the mats separating because it was not obvious or known to her.

Facts

The plaintiff was an employee of another climbing wall business. She was the coach of the climbing team there. She was at the defendant’s climbing wall business either to coach her team or to climb personally, which were in dispute. While climbing on an overhang she fell and her foot went between the mats causing her injury.

The plaintiff did not pay to climb because the clubs had reciprocal agreements allowing employees to climb at other gyms for free. The mats were Velcroed together. The plaintiff sued. The defendant club filed a motion for summary judgment, and this is the court’s response to that motion.

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

The defendant argued the release should stop the plaintiff’s lawsuit, and she assumed the risk of her injury.

The plaintiff argued New York General Obligations Law (GOL) §5-326 made the release unenforceable.

The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect

New York General Obligations Law (GOL) §5-326 has been held to not apply to teaching, Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003). Because the plaintiff was there with students, the defendant argued the statute did not apply.

However, the plaintiff argued she was not teaching, just climbing with friends who were former students.

In support of her position that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work.

The other defense to New York General Obligations Law (GOL) §5-326 is there was no fee paid by the plaintiff to climb at the defendant gym. She was there because of the reciprocal program in place with her employer.

The court agreed she was not teaching and found she had paid a fee to climb at the defendant’s gym. Because the program was part of her employment compensation, she had paid a fee by taking advantage of the opportunity as an employee.

In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of their employment and thus could be considered compensation.

The final defense was assumption of the risk. The plaintiff said she had never been to that area of the gym before, however, she did scan the area before climbing.

Under NY law, the assumption of risk defense is defined as:

The assumption of the risk defense is based on the proposition that “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”

By engaging in the activity or sport the plaintiff gives consent to the risks and limits the duty owed by the defendant. However, the risks of the activity, according to this court must be “fully comprehended or perfectly obvious.” The court then determined “Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks.”

Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’

The Velcro connection holding the mats together was an injury for the jury to determine because the court found the condition was a concealed risk.

So Now What?

It is pretty skanky (legal word) for an employee of one gym, climbing for free, to sue another gym. I suspect the lawsuit was probably a subrogation claim where her health insurance was attempting to recover for her medical bills. However, that is just speculation.

New York General Obligations Law (GOL) §5-326 is read differently by ever judge that reviews it. Some simply say it does not apply and allows the release to prevail. Any court that seems to do an analysis of the law seems to rule on the side of the plaintiff lately. The late is left over from the days when consumers did not know what a release was and were caught off guard when they risked their neck in gyms.

However, the chances of it being repealed are slim, too many plaintiffs use the law so having a recreation business in New York requires more work on the part of the recreation provider to prove assumption of the risk.

Video’s, lengthy assumption of the risk agreements outlining the known and unknown risks and more in-depth classes for beginners and new people at the gym will be required in this jurisdiction.

Can you see this climbing coach being told she must take a one-hour class on climbing because she has never been to the gym before?

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

[**1] Meghan Mcdonald, Plaintiff, – against – Brooklyn Boulders, LLC., Defendant. Index No. 503314/12

503314/12

SUPREME COURT OF NEW YORK, KINGS COUNTY

2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

April 12, 2016, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: climbing, mat, climb, team, rock climbing, recreational, leave to amend, affirmative defense, risk doctrine, instructional, bouldering, void, appreciated, concealed, teaching, training, wasn’t, amend, sport’, Rock, gym, matting, reciprocal agreement, public policy, dangerous condition, unreasonably, amusement, watching, unaware, advice

JUDGES: [*1] PRESENT: HON. MARK I. PARTNOW, J.S.C.

OPINION BY: MARK I. PARTNOW

OPINION

Upon the foregoing papers, defendant Brooklyn Boulders, LLC (defendant or Brooklyn Boulders) moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff Meghan McDonald’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.

[**2] Background

Plaintiff is employed as a program director and head coach of a youth rock climbing team at The Rock Club, an indoor rock climbing gym in New Rochelle, New York and has been so employed since 2006. On September 1, 2011, plaintiff went to Brooklyn Boulders with some of the members of her youth climbing team and other adults. Brooklyn Boulders is an indoor rock climbing and bouldering facility located in Brooklyn, New York. Plaintiff testified that this trip was a treat for her team and that she would be climbing that day too. It is undisputed that plaintiff signed a waiver before she began climbing and that she did not pay an entry fee pursuant to a reciprocal agreement in place between The Rock Club and Brooklyn Boulders as well as other rock climbing facilities. After [*2] approximately one and a half hours of bouldering with her team, plaintiff went to an area of the bouldering wall known as The Beast, which is very challenging in that it becomes nearly horizontal for some distance. It was her first time on the Beast, although she had been to Brooklyn Boulders on prior occasions. Plaintiff testified that she visually inspected the area below the Beast before she began her climb. Lance Pinn, the Chief Marketing Officer, President and founder of Brooklyn Boulders testified that there was foam matting system in place, with matting wall to wall in the area of the Beast. The largest pieces available were 9 feet by 7 feet so the area where the foam pieces met when placed on the ground was covered with Velcro to keep the foam matting pieces flush together.

[**3] Plaintiff finished her upward climb and then climbed down as far as she could and then looked down below to make sure there were no shoes in her way and that her spotter was out of the way. She stated that she knew that there were mats underneath so she jumped down a distance of approximately five feet. Her right foot landed on the mat but her left foot landed on the Velcro strip where two floor mats met. [*3] She testified that her left foot went through the Velcro into a space between the two mats. Plaintiff sustained an ankle fracture as a result and required surgeries and physical therapy.

Brooklyn Boulders’ Motion

Brooklyn Boulders moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.

Defendant argues that the liability waiver that plaintiff signed when she entered the facility releases it from liability. Defendant maintains that plaintiff was an expert climber and coach and understood the meaning of the waiver and appreciated the assumption of risk involved in the activity that she was engaged. Defendant also points out that she did not pay a fee to climb that day based upon the reciprocal program in place with other climbing facilities. Defendant claims that plaintiff was instructing her students that day as they observed her climbing and point to her testimony as follows:

[**4] Q: And were you teaching them, you know, what to do and what not to do?

A: I wasn’t teaching them, but if they had a question [*4] they would ask me hey, should I do this or do this or what do you think of this move I always give advice. (Page 30, lines 12-17).

Q. Did you ever teach any or give any instruction there?

A. Just of terms of like in my kids I probably give instruction everywhere I go. There are so many people that climb at Brooklyn Boulders that are total beginners. I’m often spotting brand new people and telling them how to spot one another. (Page 45, lines 5-12).

Defendant notes that although General Obligations Law (GOL) §5-326 renders contract clauses which release certain entities from liability void as against public policy, activities which are “instructional” as opposed to recreational are found to be outside the scope of GOL §5-326. Defendant maintains that here, plaintiff was at Brooklyn Boulders to instruct her team members and thus GOL §5-326 is not applicable. Moreover, defendant argues that the waiver at issue was explicit, comprehensive and expressly provided that Brooklyn Boulders was released from liability for personal injuries arising out of or connected with plaintiff’s participation in rock climbing.

In support of its motion, defendant submits the signed waiver which states, in pertinent part:

I acknowledge [*5] that climbing on an artificial climbing wall entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential [**5] qualities of the activity. I have examined the Climbing Wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the Climbing Wall, including but not limited to:

a:. All manner of injury resulting from my falling off or from the Climbing Wall and hitting the floor, wall faces, people or rope projections, whether permanently or temporarily in place, loose and/or damaged artificial holds, musculoskeletal injuries and/or overtraining; head injuries; or my own negligence . . . I further acknowledge that the above list is not inclusive of all possible risks associated with the Climbing Wall and related training facilities and I agree that such list in no way limits the extent or reach of this Assumption of Risk, Release and Indemnification . . .

Defendant also argues that since plaintiff did not pay a fee to climb that day that her activity was [*6] outside the scope of GOL §5-326.

Next defendant argues that the assumption of risk doctrine bars plaintiff’s claims because, as a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation in such event.

Finally, defendant argues that it should be allowed to amend its answer to assert the affirmative defense of release. Defendant contends that it was unaware of the existence of the release and waiver when it served its answer. Moreover, defendant contends that plaintiff will not be prejudiced because she was, in fact, questioned about the release that she signed during her deposition.

[**6] Plaintiff opposes defendant’s motion arguing that General Obligations Law §5-326 renders the waiver and release that she signed void. She points out that defendant is attempting to circumvent this law by asserting that the activity in which plaintiff was involved was instructional as opposed to recreational and misstates her testimony in an attempt to mislead the court. Plaintiff contends that such behavior should be sanctioned. In support of her position [*7] that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work. (Page 62, lines 5-13). She further points to the following testimony:

Q: In September of 2011 when you went there on the date in question what was your purpose of being there?

A: I went there with a handful of kids who are on my climbing team, but it wasn’t a specific training day. Usually when we go it would be for training but this was just like a fun day. I was going to climb with them.

Q: And were they climbing around you.

A: Yeah, they were.(page 29, lines 14-25).

Q: And were you supervising them?

A: I wasn’t their active supervisor. I’m a coach though so I’m always watching what they do. But this was one of the few times that I was actually going to be climbing so it was kind of a treat for them I guess to be able to climb with me.

[**7] Q: Were they watching you?

A: A few of them were watching me yeah.

Q: And were [*8] you teaching them, you know, what to do and what not to do?

A: I wasn’t teaching them, but if they had a question they would ask me hey, should I do this or do this or what do you think of this move I always give advice (page 30, lines 2-17).

Plaintiff also contends that defendant incorrectly argues that GOL §5-326 does not apply because she cannot be classified a user since she did not pay to climb that day. In this regard, plaintiff contends that she is indeed a user and the law is applicable because there was a reciprocal agreement between the gym at which she was employed and Brooklyn Boulders pursuant to which employees were not required to pay a fee to use either gym. Thus, she contends the value of the reciprocity agreement is the compensation.

Next, plaintiff argues that the assumption of risk doctrine is not applicable where the risk was un-assumed, concealed or unreasonably increased. Plaintiff argues that the question of whether the gap in the mats at Brooklyn Boulders is a commonly appreciated risk inherent in the nature of rock climbing necessitates denial of the summary judgment motion. She claims that she did not assume the risk that there would be a gap in the matting that was in [*9] place as protection from a fall. Moreover, plaintiff maintains that defendant fails to proffer any evidence demonstrating when the mats were last inspected prior to plaintiff’s accident.

Plaintiff argues that issues as to whether dangerous or defective conditions exist on property and whether the condition is foreseeable can only be answered by a jury. Thus, she [**8] contends that whether the condition of the mats was dangerous and/or defective is an issue of fact and that defendant has failed to proffer any evidence that the mats were in a reasonably safe condition.

Finally, plaintiff opposes defendant’s request to amend its answer to add the affirmative defense of waiver. Plaintiff argues that the existence of the waiver was known and that it is disingenuous at best to assert otherwise. Plaintiff contends that this request, post note of issue, is highly prejudicial to plaintiff.

In reply, defendant argues that plaintiff’s demand for sanctions lacks merit and that plaintiff’s testimony establishes that she was in fact, instructing her students when her accident occurred. Defendant contends that the waiver applies. Next defendant claims that as far as inspection of its equipment it had a [*10] route setting department that checked its walls and mats and that bouldering climbers were responsible for enuring their own safety when climbing. Finally, defendant argues that the assumption of risk doctrine applies and that plaintiff visually inspected the area before the accident and that the Velcro covers were visible and moreover, she had the option to use additional mats underneath her while climbing. Defendant further contends that the mats did not constitute a dangerous condition. Finally, Brooklyn Boulders reiterates its request for leave to amend its answer to assert the affirmative defense.

[**9] Discussion

Leave to Amend

Generally, in the absence of prejudice or surprise to the opposing party, leave to amend pleadings should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (Yong Soon Oh v Hua Jin, 124 AD3d 639, 640, 1 N.Y.S.3d 307 [2015]; see Jones v LeFrance Leasing Ltd. Partnership, 127 AD3d 819, 821, 7 N.Y.S.3d 352 [2015]; Rodgers v New York City Tr. Auth., 109 AD3d 535, 537, 970 N.Y.S.2d 572 [2013]; Schwartz v Sayah, 83 AD3d 926, 926, 920 N.Y.S.2d 714 [2011]). A motion for leave to amend is committed to the broad discretion of the court (see Ravnikar v Skyline Credit-Ride, Inc., 79 AD3d 1118, 1119, 913 N.Y.S.2d 339 [2010]). However, where amendment is sought after the pleader has filed a note of issue, “a trial court’s discretion to grant a motion to amend should be exercised with caution” (Harris v Jim’s Proclean Serv., Inc., 34 AD3d 1009,1010, 825 N.Y.S.2d 291 [3d Dept 2006]).

Here, while the court is not satisfied with counsel’s explanation that he was unaware of the [*11] existence of the release and waiver signed by plaintiff at the time that the original answer was served, the court notes that plaintiff was questioned about the release and waiver during her May 6, 2014 deposition so the court finds that there is no surprise of prejudice in allowing defendant leave to serve its amended answer and assert the affirmative defense of release and waiver. Accordingly, that branch of defendant’s motion seeking leave to amend its answer to the complaint to include this affirmative defense is granted.

[**10] General Obligations Law §5-326

GOL §5-326 states that:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall [*12] be deemed to be void as against public policy and wholly unenforceable.

Such contracts or agreements are void as against public policy unless the entity can show that its facility is used for instructional purposes as opposed to recreational purposes. “The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F.Supp.2d 92, 99 [1998]; McDuffie v Watkins Glen Int’l, 833 F. Supp. 197, 202 [1993] ). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411, 743 N.Y.S.2d 539 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463, 643 N.Y.S.2d 668 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370, 618 N.Y.S.2d 428 [1994] ), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145, 484 N.Y.S.2d 719 [1985] ), have been found to be outside the scope of the statute. “In assessing whether a facility is instructional or recreational, courts have [**11] examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility” (Lemoine v Cornell Univ., 2 AD3d 1017, 1019, 769 N.Y.S.2d 313 [2003], lv denied 2 NY3d 701, 810 N.E.2d 912, 778 N.Y.S.2d 459 [2004]). In cases involving a mixed use facility, courts have focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Id. At 1019; see Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, 32 F Supp 2d at 99). Where [*13] a facility “promotes . . . a recreational pursuit, to which instruction is provided as an ancillary service,” General Obligations Law § 5-326 applies even if the injury occurs while receiving instruction (Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 249, 835 N.Y.S.2d 170 [2007]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175, 710 N.Y.S.2d 54 [2000]).

Here, defendant asserts that GOL §5-326 is not applicable because plaintiff was at Brooklyn Boulders to instruct her team members. The court disagrees. Plaintiff’s testimony establishes that she was at Brooklyn Boulders with her team for a day of fun and not to teach them how to climb. Her testimony that she would give advice to the students if they asked does not rise to the level of providing rock climbing instruction on that day. Moreover, the court notes that the cases invloving the exemption for instrctional activities generally involve the person being instructed sustaining an injury and not the person who was providing the instruction. In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, [**12] where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of [*14] their employment and thus could be considered compensation. Accordingly, the court finds that the release and waiver signed by plaintiff is void pursuant to GOL §5-326.

Assumption of Risk

The assumption of the risk defense is based on the proposition that “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” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; Paone v County of Suffolk, 251 AD2d 563, 674 N.Y.S.2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Rosenbaum v Bayis Ne’Emon Inc., 32 AD3d 534, 820 N.Y.S.2d 326 [2d Dept 2006]; Colucci v Nansen Park, Inc., 226 AD2d 336, 640 N.Y.S.2d 578 [2d Dept 1996]). A plaintiff is deemed to have given consent limiting the duty of the defendant who is the proprietor of the sporting facility “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]). Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City of New York, 29 AD3d 649, 816 N.Y.S.2d 499 [2d Dept 2006]; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 N.Y.S.2d 663 [2d Dept 1992]). It is well settled that “awareness of [**13] risk is not to be determined in a vacuum. It is, rather, to [*15] be assessed against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]; see also Benitez v New York City Bd. of Educ., 73 NY2d 650, 657-658, 541 N.E.2d 29, 543 N.Y.S.2d 29 [1989]; Turcotte v Fell, 68 NY2d 432, 440, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]; Latimer v City of New York, 118 AD3d 420, 421, 987 N.Y.S.2d 58 [2014]). When applicable, the assumption of risk doctrine “is not an absolute defense but a measure of the defendant’s duty of care” (Turcotte v Fell, 68 NY2d at 439). Thus, “a gym or athletic facility cannot evade responsibility for negligent behavior ‘by invoking a generalized assumption of risk doctrine as though it was some sort of amulet that confers automatic immunity’ (Jafri v Equinox Holdings, Inc., 2014 N.Y. Misc. LEXIS 5330, 4-5 [Sup. Ct, New York County quoting Mellon v Crunch & At Crunch Acquisition, LLC, 32 Misc 3d 1214[A], 934 N.Y.S.2d 35, 2011 NY Slip Op 51289[U] [Sup Ct, Kings County 2011]; Livshitz v United States Tennis Assn. Natl. Tennis Ctr., 196 Misc 2d 460, 466, 761 N.Y.S.2d 825 [Sup Ct, Queens County 2003]).

Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’ (Morgan, 90 NY2d at 485. quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970, 591 N.E.2d 1184, 582 N.Y.S.2d 998 [1992]; Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 134 AD3d 887, 889, 22 N.Y.S.3d 467 [2d Dept 2015]; Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d 675, 678, 961 N.Y.S.2d 178 [2d Dept 2013]). Participants, however, do not assume risks which have been unreasonably increased or [**14] concealed over and above the usual dangers inherent in the activity (see Morgan, 90 NY2d at 485; Benitez, 73 NY2d at 657-658; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113 [2002]).

In this regard, the court finds that plaintiff has raised a question of fact regarding whether the condition of the mats, with the Velcro connection, increased the risk in the danger [*16] of the activity and caused a concealed dangerous condition. Thus it cannot be said that plaintiff assumed the particular risk that was present and caused her injuries.

Based upon the foregoing, that branch of Brooklyn Boulders motion seeking summary judgment dismissing plaintiff’s complaint is denied.

The foregoing constitutes the decision and order of the court.

ENTER,

/s/ Mark I Partnow

J. S. C.

HON. MARK I PARTNOW

SUPREME COURT JUSTICE


NY determines that falling off a wall is a risk that is inherent in the sport. Plaintiff argued it wasn’t???

Plaintiff also argued the standards of the trade association created a legal liability on the part of the defendant. Trade association standards come back to haunt the business the standards were created to protect.

Ho v Steep Rock Bouldering, LLC, 2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)

State: New York: Supreme Court of New York, New York County

Plaintiff: Min-Sun Ho

Defendant: Steep Rock Bouldering, LLC

Plaintiff Claims: negligence

Defendant Defenses: Assumption of the Risk (although a release was signed it was not raised as a defense)

Holding: For the Defendant

Year: 2018

Summary

This case borders on the absurd because of the plaintiff’s claims and the statements of the plaintiff’s expert.

At the same time, this case borders on the scary because the standards of the trade association were used effectively to put a big dent in the defendant’s defenses.

It came down to simple logic. If you are ten to twelve feet off the ground is there an inherent risk that you could fall? Because it was to the court, the Plaintiff assumed the risk of her injuries, and her case was dismissed.

Facts

The plaintiff took a climbing class as a student in high school. Over a decade later, she signed up online to go bouldering at the defendant’s bouldering facility. She also checked out the defendant’s Facebook page.

She and her roommate went to the gym. At the gym, she realized that this was different from the climbing she had done in high school. She signed an electronic release, which she did not read. She also was questioned by an employee of the gym about her previous climbing experience. When talking with the employee she did not ask any questions.

She started bouldering and understood the grade system of what she was climbing. She had climbed once or twice to the top of the route she chose and down climbed or jumped after coming half-way down.

On her third or fourth climb, she was a few feet from the top of the wall when she fell. She landed on her right arm, tearing ligaments and breaking a bone which required surgery.

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

The decision first goes through the deposition testimony of the manager or the bouldering gym. The testimony was fairly straight forward, even talking about rules the gym had were not covered.

The next discussion was over the plaintiff’s expert witness. I’m just going to quote the decision.

After his review, Dr. Nussbaum opined that Plaintiff should have been provided with the following: a harness, a rope, or some similar safety device; a spotter; an orientation; and an introductory lesson. Dr. Nussbaum opined further that the only time a harness or similar device is not required is “when the wall is low, less than 8 feet[,] and where it is angled so that a [climber] cannot fall directly down[,] but simply slides down the angled wall. Here, the wall was high and not angled, and therefore the safety devices including the harness and rope are required.”

The plaintiff probably would not have fallen off a V1 on a slanted wall, if you can call a slanted wall a V1 or V2. More importantly with holds on the wall you would have not slid off, you have bounced off the holds as you slid down.

Dr. Nussbaum opined further that the reading Steep Rock Bouldering waiver form, which Plaintiff did not, would not mean that the reader understands or assumes the risk. Dr. Nussbaum opined further that the padding “likely” gave Plaintiff a “false sense of security” and “no appreciation of the risk here.”

Judges are responsible of interpreting the law in litigation. An opinion by an expert on a contract would not be allowed into evidence. More importantly, nothing in the background of the expert indicates any training or experience in what someone like the plaintiff would understand in reading a contract.

However, then it circled back around to industry practices. The plaintiff’s expert:

…cited to the Climbing Wall Association’s (“CWA”) Industry Practices § 4.06 and opined further that Defendant’s gym should have provided “a thorough orientation to bouldering and how to mitigate the risk of predictable falls” per the CWA guidelines.

Citing to CWA’s Industry Practices § 4.01, Dr. Nussbaum opined further:

“[Plaintiff’s] ‘level of qualification or access to the climbing should [have been] checked upon entering and prior to climbing in the facility.’ In the absence of demonstrated proficiency in climbing, [Plaintiff] should have been ‘supervised by staff or a qualified climbing partner, or her access to the facility must [have] be[en] limited accordingly.’ In the case at hand, there was a cursory transition from the street into the gym and the commencement of climbing. [Plaintiff] was simply asked if she had previous climbing-experience and essentially told ‘here’s the wall, have at it.'”

Citing to CWA’s Industry Practices § 4.02, Dr. Nussbaum opined further:

“[T]he climbing gym staff should [have] utilize[d] a screening process before allowing potential clients to access the climbing wall/facility. The purpose of the screening is to determine the ‘new client’s ability to climb in the facility’ and ‘to assess the client’s prior climbing experience, knowledge and skills (if any).’ [Plaintiff] was not asked about how long she had been climbing, whether or not she had experience at a climbing gym or facility, how often or how recently she had climbed, and/or the type of climbing she had done. She was not asked if she had knowledge of or experience bouldering. Again, she was simply asked if she had prior climbing experience, reflecting a wholly inadequate screening process.”

The Defendant’s expert did a great job of countering the claims made by the plaintiff’s expert. However, it is difficult to argue the language of a trade association is meant to mean something else when quoted by the plaintiff’s expert.

The court looked at the issue focusing on one main point. Did the plaintiff know and appreciate the risks of falling? This seems absurd to me. One of the basic fears that I think everyone has is a fear of falling. How it manifests itself may be different in different people, but everyone is afraid of falling.

The plaintiff in her testimony and the testimony of the expert witness made this the central point of the litigation and one the court had a difficult time reaching a conclusion on.

The court first looked at the assumption of risk doctrine in New York.

“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity.”

I cannot believe that when you are ten feet from the ground, there is not some form of awareness of the risk of falling.

The court then looked at the necessary elements of risk to determine what was inherent in a sport and what that means to the plaintiff and defendant.

“Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” However, “[s]ome of the restraints of civilization must accompany every athlete onto the playing field. Thus, the rule is qualified to the extent that participants do not consent to acts which are reckless or intentional.” “[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.” In assessing whether a plaintiff had the appropriate awareness to assume the subject risk, such “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.”

Boiled down, when you assume the risks of a sport or recreational activity:

In assuming a risk, Plaintiff has “given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.”

The court was then able to find that the plaintiff had assumed the risk.

The Court finds that injury from falling is a commonly appreciable risk of climbing–with or without harnesses, ropes, or other safety gear–and that Plaintiff assumed this risk when she knowingly and voluntarily climbed Defendant’s gym’s climbing wall for the third or fourth time when she fell. To hold that Defendant could be liable for Plaintiff’s injuries because it allowed her to climb its wall without a rope and harness would effectively make the sport of bouldering illegal in this state.

However, what an agonizing intense effort for the courts to come to what seems to be a fairly simple conclusion. When you are standing 10′ in the air, do you feel apprehension about falling off. If you do and you stay there you assume the risk of falling I think.

So Now What?

I’ve written before about how easy it is to write about New York decisions. They are short and quick. One or two pages. This decision is fifteen pages long, an unbelievable long decision in New York. An unbelievable long decision for what I believe to be an extremely simple and basic concept. Did the plaintiff understand she could get hurt if she fell from the wall?

Yet the plaintiff made the court work hard to decide she assumed the risk. The plaintiff made an argument that the court found compelling enough to take 15 pages to determine if are 10′ in the air are you apprehensive.

There are several take a ways from this decision.

The decision indicates the plaintiff signed a release electronically. However, it was never raised as a defense. Probably because of New York General Obligations Law § 5-326. This law states releases are not valid at places of amusement. There has been one decision in New York were a release for a climbing wall injury was upheld; however, the court specifically distinguished that issues saying the climbing wall was for educational purposes since it was at a university and not a recreational situation. Read 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 industry standards came back to play a role in the decision. There are dozens of arguments in favor of an industry creating standards. There is one argument on why they should not be made. Plaintiff’s use them to attack the people the standards were meant to protect.

No matter how many reasons why it might be a good thing; it fails in all of those reasons when it is used in court to beat a defendant over the head and prove they were wrong. A piece of paper, written by members of the industry, with the industry logo and name on it is proof to any juror that this is the way it must be done. If not, why would the piece of paper be written? Why would the industry and everyone else take the time and energy to create the rule, print it and hand out if that was the way it was supposed to be done.

So, then it is left up to the defense expert to find a way to prove that the piece of paper is wrong. That is impossible in 99% of the cases. As a member of the association, as a person who helped make the piece of paper, you are now saying what you did was wrong? It is not going to fly.

Here the defendant’s expert could not. So, he did not, his opinion walked all around the issue but did not bring up the standards that the plaintiff through at the court. Granted, the plaintiff had taken the standards and twisted them and their meaning in an attempt to apply them to this case, in a way that they were not meant to be. However, it is difficult to say to a judge or juror the plaintiff’s expert twisted the standards, and they don’t mean that. Of course, that is what the judge and jury would expert.

Thankfully, the defendant’s expert was great and just refused to take on the plaintiff’s expert and the far-out statements he made.

Here the plaintiff used the industry standards in an attempt to prove the defendant had breached its duty of care to the plaintiff. Here the name had been changed by the association over the years to lessen their impact and damage in a courtroom from standards to practices. However, they were still used to bludgeon the defendant who had probably paid to help create them.

Standards do not create value in a courtroom for defendants. You cannot say we did everything right, see read this and throw the standards at the judge and jury. However, we all need to learn from our mistakes, and we need ideas on how to get better. Besides there is always more than one way to do everything.

Create ideas, best practices, anything that allows different ways of doing things so the plaintiff cannot nail you down to one thing you did wrong. The simple example is there is no one way to belay. Yet standards for various industries have superficially set forth various ways over the years you “must” belay. Body belays went out decades ago with the introduction of belay devices. Yet when your lead is on a precarious move, and the piece below him might not be able to take the full weight of a fall, a body belay works because it helps absorb the energy and spread the belay over time putting less pressure on the pro.

There is no magic solution to everything and spending hours and dollars trying to tell the world, there is, will only come back to haunt you.

What do you think? Leave a comment.

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Ho v Steep Rock Bouldering, LLC, 2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)

Ho v Steep Rock Bouldering, LLC, 2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)

[**1] Min-Sun Ho, Plaintiff, – v – Steep Rock Bouldering, LLC, Defendant. INDEX NO. 150074/2016

150074/2016

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)

January 2, 2018, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: climbing, bouldering, rock, gym’s, rope, harness, spotter, opined, climb, climber, falling, affirmation, feet, mat, climbed, sport, orientation, roommate, height, summary judgment, top, spotting, assumption of risk, instructor, padding, false sense of security, indoor, reply, quotation, skill

JUDGES: [*1] PRESENT: Hon. Robert D. KALISH, Justice.

OPINION BY: Robert D. KALISH

OPINION

Motion by Defendant Steep Rock Bouldering, LLC pursuant to CPLR 3212 for an order granting summary judgment against Plaintiff Min-Sun Ho is granted.

BACKGROUND

I. Overview

Plaintiff brought this action seeking damages for injuries she sustained on October 12, 2015, while at Defendant’s bouldering gym, Steep Rock Bouldering. Plaintiff alleges, in sum and substance, that, due to the negligence of Defendant, she fell from Defendant’s gym’s indoor climbing wall and landed on her right arm, tearing ligaments and breaking a bone in the arm and elbow area, which required surgery. Defendant argues, in sum and substance, that Plaintiff assumed the risk of injury from a fall at its gym and that its gym provided an appropriate level of safety and protection for boulderers through warnings, notices, an orientation, equipment, and the nature of the climbing wall itself. As such, Defendant argues it had no further duty to Plaintiff. Plaintiff argues, in sum and substance, that she did not assume the risk of an injury from falling off of the climbing wall.

[**2] II. Procedural History

Plaintiff commenced the instant action against Defendant on January 5, 2016, [*2] by e-filing a summons and a complaint alleging a negligence cause of action. (Goldstein affirmation, exhibit A.) Defendant answered on March 28, 2016, denying all the allegations in the complaint and asserting 21 affirmative defenses, including Plaintiff’s assumption of the risk. (Goldstein affirmation, exhibit B.)

The examination before trial (“EBT”) of Plaintiff was held on February 14, 2017. (Goldstein affirmation, exhibit E [Ho EBT].) The EBT of Defendant, taken of witness Vivian Kalea (“Kalea”), was held on February 23, 2017. (Goldstein affirmation, exhibit F [Kalea EBT].) Plaintiff provided Defendant with her liability expert’s disclosure pursuant to CPLR 3101 (d) on or about March 27, 2017. (Goldstein affirmation, exhibit G.) Plaintiff filed the note of issue in this action on May 4, 2017. (Goldstein affirmation, exhibit J.)

On or about May 25, 2017, Defendant moved to strike Plaintiff’s note of issue. On or about May 30, 2017, Plaintiff cross-moved to preclude certain expert and medical testimony from Defendant at trial due to Defendant’s alleged failure to provide timely disclosures. Defendant provided Plaintiff with its liability expert’s disclosure pursuant to CPLR 3101 (d) on or about June 16, 2017. [*3] (Goldstein affirmation, exhibit H.) On June 29, 2017, Defendant noticed the instant motion On July 14, 2017, this Court ordered Defendant’s motion to strike and Plaintiff’s cross motion to preclude withdrawn per the parties’ stipulation, dated July 6, 2017.

Defendant now moves for an order pursuant to CPLR 3212 granting it summary judgment and dismissing this action with prejudice.

III. Plaintiff’s EBT

Plaintiff Min-Sun Ho stated that she and her roommate intended to climb the indoor wall at Steep Rock Bouldering on October 12, 2015. (Ho EBT at 12, lines 17-23.) Plaintiff further stated that her roommate had joined Defendant’s gym several weeks prior to October 12, 2015. (Id. at 13, lines 12-13; at 14, lines 2-3, 13-25.) Plaintiff further stated that, prior to October 12, 2015, in high school, she took a rock climbing class once a week for a semester. (Id. at 15, lines 16-25.) Now in her thirties, Plaintiff stated that she was able to recall the class, the basic commands for climbing, and the techniques for climbing. (Id. at 20, lines 5-2.1; at 22, lines 17-21.)

[**3] Plaintiff stated that, on October 12, 2015, she looked up Defendant’s gym’s Facebook page and observed people climbing at Steep Rock Bouldering without ropes or harnesses. [*4] (Id. at 27, lines 7-11; at 29, lines 15-20.) Plaintiff further stated that she then signed up online for a one-month membership at Steep Rock Bouldering. (Id. at 28, lines 15-20.) Plaintiff further stated that she had also heard from her roommate, before October 12, 2015, that there were no harnesses or ropes at Steep Rock Bouldering. (Id. at 30, lines 6-13.) Plaintiff further stated that, on October 12, 2015, Plaintiff’s roommate again explained that Defendant’s gym does not have harnesses or ropes. (Id. at 29, line 25; at 30, lines 2-5.) Plaintiff stated she was not aware, prior to October 12, 2015, that the term “bouldering” refers to a form of rock climbing without harnesses or ropes. (Id. at 85, lines 2-7.)

Plaintiff stated that, upon arriving at Steep Rock Bouldering on October 12, 2015, she observed a reception desk and a climbing wall to her left where she saw more than three people climbing. (Id. at 31, lines 17-23; at 32, line 25; at 33, lines 2-3.) Plaintiff further stated that she believed the climbing wall was about 15 feet tall. (Id. at 32, lines 4-20.) Plaintiff further stated that the receptionist asked if Plaintiff had rock climbed before and that she answered that she had, a long time ago. (Id. at 47, lines 2-8.) Plaintiff stated she signed [*5] an electronic waiver form at the reception desk. Plaintiff, at the time of the EBT, stated she did not recall having read any of the waiver except for the signature line. (Id. at 43, lines 11-19.)

Plaintiff stated that, after signing the waiver, she waited while the receptionist called a man over to Plaintiff and her roommate. Plaintiff stated she herself believed the man who came over was another Steep Rock Bouldering employee. (Id. at 45, lines 10-25; at 46, lines 2-4.) Plaintiff stated’ that the man told Plaintiff “something along the lines of that’s the wall as you can see, it’s self-explanatory.'” (Id. at 46, lines 11-12.) Plaintiff further stated that the man also told her “[t]hose are the bathrooms.” (Id. at 49, lines 2-3.) Plaintiff further stated that the man asked her if she had rock climbed before and that she answered “yeah, a while ago.” (Id. at 49, lines 7-10.) Plaintiff stated that the man did not say he was an instructor or take Plaintiff anywhere and that neither the man nor the receptionist said anything about an instructor. Plaintiff further stated that she did not have an orientation or an instructor at Defendant’s gym. (Id. at 47, lines 15-23; at 48, lines 21-25.) Plaintiff further stated she that did not see any instructional [*6] videos. (Id. at 80, lines 19-22.) Plaintiff further stated that she had felt comfortable not having an instructor and climbing the walls without any harnesses or ropes. (Id. at 81, lines 17-22.)

[**4] Plaintiff stated that, after speaking with the man, she changed into climbing shoes which she stated she recalled borrowing from Steep Rock Bouldering. (Id. at 48, lines 5-20.) Plaintiff further stated that she then put her and her roommate’s belongings away in a cubby and started getting ready to climb. (Id. at 49, lines 13-18.) Plaintiff stated that she had observed mats in front of the climbing wall on the floor. (Id. at 49, lines 19-24.) Plaintiff stated that she had further observed “quite a few” people who she thought were other climbers and their friends climbing the wall or watching and giving tips on holds. (Id. at 50, lines 5-21; at 55, lines 6-10.)

Plaintiff stated she was told before she started climbing that the holds on the climbing wall are tagged according to their difficulty and that the levels of difficulty marked “V0 or V1” are the “easiest.” (Id. at 54, lines 2-20.) Plaintiff further stated that, after waiting a few minutes, she herself climbed to the top of the climbing wall on level V1 on her first attempt. (Id. at 55, lines 16-19, 24-25; at [*7] 56, lines 2-9.) Plaintiff further stated that she did not think it took very long to make the climb. (Id. at 56, lines 10-11.) Plaintiff stated she and her roommate took turns climbing the wall. (Id. at 63, lines 12-16.) Plaintiff further stated that, while she herself was climbing, her roommate was on the mat watching her climb. (Id. at 63, lines 17- 22.) Plaintiff stated that she herself climbed again once or twice without incident. (Id. at 56, lines 16-19; at 57, lines 18-21.) Plaintiff stated that, on her third or fourth climb, she herself had made it about a couple of feet from the top of the wall before she fell. (Id. at 57, lines 3-10, 15-25; at 58, lines 2-9.) Plaintiff stated that her roommate was watching her when she fell. (Id. at 63, line 22.)

Plaintiff stated that she had not fallen from a climbing wall prior to October 12, 2015. (Id. at 59, lines 2-7.) Plaintiff further stated she did not think she could fall, nor did she think about falling, when she bought her membership, when she first saw the wall when she entered the building, or when she first started climbing. (Id. at 59, lines 13-25; at 60, lines 2-8, 17-19.) Plaintiff further stated that did not see anyone else fall at Steep Rock Bouldering prior to her own fall, but did see people [*8] jumping down from “[s]omewhere above the middle” and “closer to the top” of the climbing wall instead of climbing down. (Id. at 60, lines 9-16.)

Plaintiff stated she herself climbed down the wall after her first climb, but then became more “confident” and climbed down halfway and then jumped in subsequent successful climbs. (Id. at 60, lines 22-25; at 61, lines 2-6.) Plaintiff further stated that, immediately before she fell, she was climbing up the wall and reaching to the side. (Id. at 61, lines 7-13.) Plaintiff further stated that she then grabbed onto a knob, looked down, and saw a man looking up at her. (Id. at 62, [**5] lines 2-7.) Plaintiff was asked at the EBT “[w]hen you looked down, did you think about falling or if you could fall?” In reply, Plaintiff stated “I was a little scared. When I looked down, I was a lot higher than I thought I was.” (Id. at 62, lines 12-15.) Plaintiff stated that she had wanted to come back down at this time. (Id. at 62, lines 24-25; at 63, lines 2-4.) Plaintiff further stated that she fell after she saw the man looking up at her. (Id. at 62, line 8.) Plaintiff was asked at the EBT “[d]o you know why you fell?” and answered, “I don’t know exactly.” (Id. at 62, lines 5-6.)

IV. Defendant’s EBT

Vivian Kalea stated that, at the [*9] time of her EBT, she was the general manager of Steep Rock Bouldering. (Kalea EBT at 6, lines 4-7.) Kalea further stated that, on October 12, 2015, she was a closing manager and youth team coach at Steep Rock Bouldering. (Id. at 6, lines 8-12.)

Kalea stated that she was at Steep Rock Bouldering when Plaintiff was injured and filled out the related injury report form. (Id. at 13, lines 19-21.) Kalea stated that the injury report indicated that Plaintiff was a member of Steep Rock Bouldering and had paid a fee to use the gym prior to her injury. (Id. at 16, lines 12-13.) Kalea stated that the injury report further indicated that Plaintiff fell from a yellow V1 level of difficulty, about three moves from the top, and landed on her right side. (Id. at 19, lines 6-9; at 31, lines 15-21; at 34, line 25.)

Kalea stated that V1 is a beginner’s level of difficulty. (Id. at 34, lines 13-15.) Kalea further stated that, the higher the number is after the “V,” the greater the level of difficulty. Kalea stated that the “V” designation is not a description of a specific height or location. (Id. at 33, lines 9-14.) Kalea further stated that V2 is also a beginner’s level. (Id. at 33, lines 23-25, at 34, lines 2-4.) Kalea further stated that the wall Plaintiff was on had a “slight incline” but was “mostly [*10] vertical” and “[c]lose to 90 degrees. (Id. at 41, lines 11-25; at 42, lines 2-4.)

Kalea stated that Steep Rock Bouldering offered climbing shoe rentals and chalk for climbers on October 12, 2015. (Id. at 9, lines 20-21; at 10, line 14.) Kalea further stated that the climbing shoes provide support for climbing activities by improving friction and power to the big toe and that the chalk gives the climbers a better grip on whatever it is they are holding onto. (Id. at 21, lines 18-25; at 22, lines 2-25; at 23, lines 2-A.) Kalea further stated that the padded area in front of the climbing wall was over a foot thick on October 12, 2015, and was there to help absorb the shock from a fall. (Id. at 23, lines 5-18.) Kalea further stated that a [**6] spotter, “somebody who guides a climber to fall down,” was not required at Steep Rock Bouldering on October 12, 2015. (Id. at 49, lines 19-25.)

Kalea stated that the climbing walls at Steep Rock Bouldering are 14 feet high and that the holds do not all go to the top. (Id. at 24, lines 17-19.) Kalea further stated that the holds are of different textures, sizes, and appearances and that their locations can be changed to create varying paths up the wall and establish the difficulty of a given level. (Id. at 24, lines [*11] 16-25; at 25, lines 2-17; at 29, lines 2-5.) Kalea further stated that climbers at Steep Rock Bouldering do not climb with ropes or harnesses. (Id. at 40, line 25; at 41, line 2.)

Kalea stated that Steep Rock Bouldering employees ask whether it is a new member’s first time bouldering “to clarify that they understand the risk of bouldering.” (Id. at 21, lines 13-17.) Kalea further stated that every climber is supposed to receive an oral safety orientation from Steep Rock Bouldering staff prior to climbing that consists of the following:

“It consists of understanding the person’s climbing experience, their experience bouldering. That they understand that bouldering is a dangerous sport. How every fall in a bouldering environment is a ground fall. It goes over how the climbs are kind of situated, so everything is by color and numbers. It goes over that we do encourage down climbing in the facility. So that means when you reach the top of the problem, which is not necessarily the top of the wall, but the finishing hold, you climb down about halfway before you jump, if you do want to jump. It goes over how to best fall.”

(Id. at 46, lines 2-24; at 47, lines 3-16.) Kalea stated that the giving such an orientation is [*12] standard in the climbing industry and was required at Steep Rock Bouldering on October 12, 2015. (Id. at 48, lines 3-10.) Kalea further stated that “[i]t is made clear to everyone who walks in the door that they are going to receive a safety orientation” and that staffs failure to do so would be breaking Steep Rock Bouldering’s rules. (Id. at 48, lines 17-21.) Kalea was asked at the EBT to assume that Plaintiff was told “essentially . . . there is the wall, it’s self explanatory [sic] and that’s all the person did” and was then asked “[i]f that is all that was said, is that a proper safety instruction orientation?” (Id. at 49, lines 3-17.) Kalea replied, “[i]t is not.”

[**7] V. Plaintiff’s Liability Expert

Plaintiff retained Dr. Gary G. Nussbaum as its liability expert. Dr. Nussbaum has a Masters of Education and an Education Doctorate in Recreation and Leisure Studies from Temple University. Dr. Nussbaum has 45 years of experience in the adventure education, recreation, and climbing field with a variety of teaching credentials related specifically to climbing. In forming his opinion, Dr. Nussbaum reviewed photographs of the climbing wall used by Plaintiff on the date of her injury, the injury report, the waiver form, [*13] and the EBT transcripts.

After his review, Dr. Nussbaum opined that Plaintiff should have been provided with the following: a harness, a rope, or some similar safety device; a spotter; an orientation; and an introductory lesson. Dr. Nussbaum opined further that the only time a harness or similar device is not required is “when the wall is low, less than 8 feet[,] and where it is angled so that a [climber] cannot fall directly down[,] but simply slides down the angled wall. Here, the wall was high and not angled, and therefore the safety devices including the harness and rope are required.” (Broome affirmation, exhibit 1 [aff of Nussbaum], at 3.)

Dr. Nussbaum opined that a person of Plaintiff’s skill level was a novice and needed to be taught “how to climb, how to come down, and even how to fall safely. None of this was done or provided.” (Id. at 4.) Dr. Nussbaum opined further that “[a]s a new climber, [Plaintiff] did not appreciate the risk” involved with bouldering. (Id.) Dr. Nussbaum opined further that the reading Steep Rock Bouldering waiver form, which Plaintiff did not, would not mean that the reader understands or assumes the risk. (Id.) Dr. Nussbaum opined further that the padding “likely” [*14] gave Plaintiff a “false sense of security” and “no appreciation of the risk here.” (Id.)

Dr. Nussbaum opined that, because Steep Rock Bouldering does not offer rope climbing, its climbing wall requires that the climber “climb down, climb partway down and jump the remainder, fall down in a controlled manner, or simply fall down if he or she loses control.” (Id. at 5.) Dr. Nussbaum cited to the Climbing Wall Association’s (“CWA”) Industry Practices § 4.06 and opined further that Defendant’s gym should have provided “a thorough orientation to bouldering and how to mitigate the risk of predictable falls” per the CWA guidelines. (Id.)

[**8] Citing to CWA’s Industry Practices § 4.01, Dr. Nussbaum opined further:

“[Plaintiff’s] ‘level of qualification or access to the climbing should [have been] checked upon entering and prior to climbing in the facility.’ In the absence of demonstrated proficiency in climbing, [Plaintiff] should have been ‘supervised by staff or a qualified climbing partner, or her access to the facility must [have] be[en] limited accordingly.’ In the case at hand, there was a cursory transition from the street into the gym and the commencement of climbing. [Plaintiff] was simply asked if she had previous [*15] climbing-experience and essentially told ‘here’s the wall, have at it.'”

(Id. at 6.)

Citing to CWA’s Industry Practices § 4.02, Dr. Nussbaum opined further:

“[T]he climbing gym staff should [have] utilize[d] a screening process before allowing potential clients to access the climbing wall/facility. The purpose of the screening is to determine the ‘new client’s ability to climb in the facility’ and ‘to assess the client’s prior climbing experience, knowledge and skills (if any).’ [Plaintiff] was not asked about how long she had been climbing, whether or not she had experience at a climbing gym or facility, how often or how recently she had climbed, and/or the type of climbing she had done. She was not asked if she had knowledge of or experience bouldering. Again, she was simply asked if she had prior climbing experience, reflecting a wholly inadequate screening process.”

(Id.)

Dr. Nussbaum opined that spotting is an advanced skill requiring training for the spotter to spot effectively and safely. As such, Dr. Nussbaum stated, Plaintiff’s roommate “was not a spotter and had no skill and no training to be one.” (Id. at 3.) Dr. Nussbaum opined further that Steep Rock Bouldering was required to enforce its spotter [*16] requirement by providing an adequately skilled spotter or ensuring that an intended spotter has the requisite skill set. (Id. at 5.) Dr. Nussbaum opined further that, if Steep Rock Bouldering chooses not to require spotting, it is then required to “emphasize, encourage and instruct in the safest ways to descend, including falling [**9] techniques. . . . [It] did not enforce its spotting requirement nor [sic] provide proper instruction in falling techniques.” (Id. at 7.)

VI. Defendant’s Liability Expert

Defendant retained Dr. Robert W. Richards as its liability expert. Dr. Richards is a founding member of the CWA and is currently affiliated with CWA as an expert in risk management. Dr. Richards has been involved in the climbing wall industry since 1992. Dr. Richards stated that, as there are no set regulations for climbing facilities, the CWA intends to assist the industry in defining, understanding, and implementing a set of responsible management, operational, training, and climbing practices. (Goldstein affirmation, exhibit I [aff of Richards], ¶ 2.) Dr. Richards further stated that the CWA’s Industry Practices is a sourcebook for the operation of manufactured climbing walls. (Id. ¶ 3.)

In forming his opinion, [*17] Dr. Richards performed a site inspection of Steep Rock Bouldering’s climbing wall on June 22, 2017. (Id. ¶ 20.) Dr. Richards observed at the site inspection that Defendant’s gym had “Climb Smart” posters, indicating the risks of bouldering, displayed in multiple locations. Dr. Richards stated that these signs were also present on October 12, 2015. (Id.) Dr. Richards observed further that the climbing wall is approximately thirteen feet, six inches tall when measured from the top of the padded area around the wall. (Id. ¶ 30:) Dr. Richards stated that this was also the height of the wall on October 12, 2015. (Id.)

Dr. Richards describes the sport of bouldering as follows:

“Bouldering is the form of climbing that is performed without the use of safety ropes and typically on a climbing surface that is low enough in height that a fall from the wall will not be fatal. Bouldering walls in climbing gyms may range from ten to twenty feet in height. The [CWA] states that average bouldering wall heights in the climbing wall industry are between twelve and fifteen feet. Climbers who boulder are referred to as boulderers . . . .”

(Id. ¶¶ 13-14.) Dr. Richards stated “[a] specific climb is referred [*18] to as a . . . ‘problem’ and is usually marked with colored tape or colored holds which are attached to the artificial climbing wall.” (Id. ¶ 7 [punctuation omitted].)

[**10] Dr. Richards opined that bouldering entails an inherent risk of injury from falls. (Id. ¶ 4.) Dr. Richards opined further that it is not possible to eliminate this risk “without altering the very essence of the sport.” (Id.) Dr. Richards opined further that the most common injuries in climbing gyms are to the extremities which can result from falls of any height. (Id. ¶ 15.)

Dr. Richards opined further that the risk inherent to bouldering was communicated to Plaintiff by means of a written liability release and an orientation. (Id. ¶ 17.) Dr. Richards stated that Plaintiff signed a liability release form and completed an orientation. (Id. ¶¶ 17, 31.) Dr. Richards stated further that the liability release form included the following language: “I have examined the climbing wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the climbing wall, including but not limited to: [injuries] resulting from falling off or coming down from the climbing wall . . . .” (Id. ¶ [*19] 17.)

Dr. Richards opined further that, having visited approximately “200 gyms” since 1992, he has never been to a gym that requires climbers to have spotters and strictly enforces that requirement. (Id. ¶¶ 1, 22-23.) Dr. Richards stated that spotting was developed for outdoor bouldering to guide the fall of boulderers in an environment where there are typically little or no padded surfaces to protect the head. (Id. ¶ 24.) Dr. Richards stated that the CWA does not require spotters when bouldering on artificial climbing walls and that it is not a common practice in the industry to require such spotters. (Id. ¶ 25.) Dr. Richards further stated that the padded landing surfaces in gyms reduce many of those dangers that a spotter would help to mitigate outdoors. (Id.) Dr. Richards opined that, as such, use of a spotter in an indoor climbing gym is of “limited benefit” and “may cause injury to the boulderer and spotter if the climber were to fall directly on the spotter.” (Id.)

Dr. Richards opined further that the purpose of Defendant gym’s padded landing surface around its climbing wall is “to mitigate potential injuries to the head and neck.” (Id. ¶ 26.) Dr. Richards opined further that, [*20] while the padding may “provide some cushioning for falls,” per Annex E to the CWA’s Industry Practices, “[p]ads are not designed to mitigate or limit extremity injuries, although they may do so.” (Id.) Dr. Richards stated that, while there was no industry standard regarding the type, amount, or use of such padding in October 2015, a typical surface in October 2015 would have “consisted of four to six inches of foam padding or other impact attenuation [**11] material with a top layer of gymnastic carpet or vinyl that covers the underlying padding.” (Id. ¶¶ 27-28.) Dr. Richards further stated that Defendant’s gym used foam pads of a twelve-inch depth that ran continuously along the climbing wall and extended twelve feet out from the wall on October 12, 2015. (Id. ¶ 29.)

ARGUMENT

I. Defendant’s Affirmation in Support

Defendant alleges in its papers that it has a place of business that includes a bouldering climbing gym in New York City on Lexington Avenue. (Affirmation of Goldstein ¶ 14.) Defendant further alleges that its gym has a continuous climbing wall that is approximately 30 to 40 feet wide and 14 feet tall and has climbing holds which are textured objects bolted into the wall which climbers [*21] can grab onto with their hands and stand upon with their feet. (Id. ¶¶ 14, 16.)

Defendant argues, in the main, that Plaintiff assumed the inherent risk associated with climbing an indoor wall and with bouldering when she chose to climb Defendant’s gym’s bouldering wall. (Memorandum of law of Goldstein, at 1.) Defendant argues Plaintiff was able to make an informed estimate of the risks involved in bouldering and that she willingly undertook them. (Id. at 3-4.) Defendant further argues that Plaintiff was aware of the potential for injury from a fall because she is an intelligent adult familiar with the laws of gravity and had prior wall climbing experience in an indoor setting (albeit with ropes). (Id. at 4.) Defendant further argues that Plaintiff was aware of the risks associated with climbing because, before she was injured, Plaintiff watched other climbers ascend and descend its climbing wall and climbed up and down the wall herself without incident several times, even feeling comfortable enough to jump from halfway down the wall as opposed to climbing all the way down. (Id. at 8-9.) Defendant further argues that Plaintiff voluntarily and knowingly engaged in the bouldering activity and that her fall was a common, albeit [*22] unfortunate, occurrence. (Id. at 10.)

Defendant argues that falling is inherent to the sport of climbing, that falling cannot be eliminated without destroying the sport, and that injuries resulting from falling from a climbing wall are foreseeable consequences inherent to bouldering. (Id.) Defendant further argues that the risk of falling from Defendant’s gym’s climbing wall was open and obvious to Plaintiff. (Id. at 5.) Defendant further argues that Plaintiff did not request further instruction beyond what Steep Rock [**12] Bouldering provided on October 12, 2015, and that Plaintiff was comfortable climbing without ropes or a harness. (Id. at 5-6.) Defendant argues that Plaintiff’s allegation that she did not receive proper instruction is pure conjecture and will only invite the jury to speculate about what further instruction Plaintiff would have received had she sought it out. (Id. at 6.)

Defendant argues that there was no unique risk or dangerous condition in Defendant’s gym on October 12, 2015, over and above the usual dangers inherent to bouldering. Defendant further argues that Defendant has the right to own and operate a gym that offers bouldering, only, and not rope climbing. (Id. at 7.) Defendant further argues that the height [*23] of its gym’s climbing wall and the depth of its surrounding padding were well within what was typical of other climbing facilities in October 2015. (Id.) Defendant further argues that it had no duty to provide a spotter or supervise Plaintiff’s climbing. (Id. at 7-8.)

Defendant argues that Plaintiff’s expert has not cited to any standards or rules that would have required that Defendant provide Plaintiff with a spotter or supervise Plaintiff’s climbing or that would justify an opinion that negligence on the part of Defendant proximately caused Plaintiff’s accident. (Id. at 8, 10.) Defendant further argues that Plaintiff’s expert fails to acknowledge that Plaintiff engaged in a rope climbing class every week for a semester. (Id. at 10.) Defendant further argues that Plaintiff’s expert has never visited Steep Rock Bouldering and that therefore any assertions that Plaintiff’s expert will make are conclusory and insufficient to demonstrate Defendant’s negligence.

II. Plaintiff’s Affirmation in Opposition

Plaintiff argues in her papers that the affidavit of her liability expert, Dr. Gary G. Nussbaum, establishes Defendant’s negligence and Plaintiff’s lack of appreciation and understanding of the risk. (Affirmation of Broome, at 1.) Plaintiff further [*24] argues that she had a false sense of security because of the thick mats around the climbing wall and that she therefore did not appreciate the risk. (Id. at 1-2.) Plaintiff further argues that her climbing experience at Steep Rock Bouldering was very different from her prior experience with climbing, which was limited to one semester of indoor climbing class 12-13 years prior to the incident, in high school, involving a rope, harness, spotter, and instructor. (Id. at 2; aff of Ho, at 2.) At the time of the incident, Plaintiff was age 30 and had never done any rock climbing again after the high school class. (Aff of Ho, at 2.)

[**13] Plaintiff argues that she believed the padding beneath the climbing wall would prevent “any injury whatsoever.” (Id. at 4.) Plaintiff further argues that this was her belief even though she signed a release of liability because she did not read it. (Id. at 3.) Plaintiff further argues that she was given no orientation or instructor on October 12, 2015, but was only told where the wall was and that it was “self-explanatory.” (Id.) Plaintiff further argues that the release she signed is void and unenforceable because she paid a fee to use Defendant’s gym. (Affirmation of Broome, at 2.)

Plaintiff argues that Defendant was negligent in failing to [*25] provide Plaintiff with a rope, a harness, instruction, an orientation, and a spotter. (Id. at 3.) Plaintiff further argues that the assertions of Defendant’s liability expert, Dr. Robert W. Richards, regarding posters on the wall at Steep Rock Bouldering are irrelevant and erroneous because he visited the facility 1.75 years after Plaintiff’s accident and claims the posters were in place on the date of the accident. (Id.)

III. Defendant’s Reply Affirmation in Support

Defendant argues in its reply papers that Plaintiff did not have a false sense of security because Plaintiff: (1) was aware that Defendant’s gym only supplied climbing shoes and climbing chalk; (2) observed that none of the other climbers were asking for a rope or a harness; (3) testified that she felt comfortable climbing without harness, a rope, or an instructor; (4) knew prior to her injury that the climbing paths have different difficulty levels and that she was at a beginner level; and (5) had already, prior to her injury, climbed the wall two to three times without incident, reached the top of the wall, and jumped from the wall to the floor from halfway up the wall. (Reply affirmation of Goldstein, at 1-2; reply memorandum of law of Goldstein [*26] ¶ 3.) Defendant further argues that Plaintiff’s claim of having a false sense of security is disingenuous because she plainly observed the conditions of the climbing wall and the padded mats, was able to approximate the height of the wall, and, at age 30, was fully aware of, paid to engage in, and voluntarily undertook a form of climbing that involves neither ropes nor harnesses. (Reply memorandum of law of Goldstein ¶ 4.)

Defendant argues that Plaintiff has overlooked Dr. Richards’ explanation that a spotter has limited benefit and may cause injury to the climber and spotter if the climber were to fall directly onto the spotter. (Id. ¶ 5.) Defendant further argues that climbers utilizing a rope and harness may also sustain injury from falls when climbing. (Id. ¶ 6.)

[**14] Defendant argues that Plaintiff cannot prove by a preponderance of the evidence that Defendant proximately caused Plaintiff’s injury because Plaintiff herself testified that she does not know why she fell, and mere speculation regarding causation is inadequate to sustain a cause of action. (Id. ¶ 5.)

Defendant further argues that Plaintiff was aware of and assumed the risk that, in climbing a wall without ropes and harnesses–or [*27] a spotter–she could sustain an immediate physical injury from a fall. (Id. ¶¶ 4-5, 9.)

IV. Oral Argument

On November 13, 2017, counsel for the parties in the instant action appeared before this Court for oral argument on Defendant’s instant motion for summary judgment. Stephanie L. Goldstein, Esq. argued on behalf of Defendant and Alvin H. Broome, Esq. argued on behalf of Plaintiff.

Defendant argued that this is an assumption of the risk case in which Plaintiff fell during participation in a sport–bouldering–which, by definition, is rock climbing without ropes or harnesses. (Tr at 2, lines 23-25; at 3, lines 8-18.) Defendant further argued that Plaintiff had no reasonable expectation there would be ropes or harnesses at Steep Rock bouldering. Plaintiff stated that her roommate told her that climbing at Steep Rock Bouldering would involve no ropes or harnesses. (Id. at 4, lines 5-13.) Plaintiff further stated that she observed photographs of people using the gym on Facebook at parties–prior to going to Defendant’s gym–without ropes or harnesses. (Id. at 4, lines 15-19.) Plaintiff further stated that she saw people climbing at the gym in person before she climbed and that none of them were using ropes [*28] or harnesses. (Id. at 4, lines 20-24.)

Defendant argued that Plaintiff was additionally noticed as to the dangers inherent to bouldering by the electronic waiver, which she signed. (Id. at 5, lines 3-18.) Defendant clarified that it is not moving to dismiss the instant action on waiver grounds and acknowledged that Plaintiff’s signing the waiver did not absolve Defendant of liability. (Id. at 5, lines 13-14.) Defendant argued that Plaintiff was further noticed by an individual, an employee of Defendant, who explained to Plaintiff prior to her climbing about the wall and the climbing paths. (Id. at 5, lines 19-23.) Defendant argued that Plaintiff was further noticed by her own experience of climbing up and down the wall two to three times without any [**15] incident and with jumping off of the wall prior to her fall. (Id. at 5, line 26; at 6, line 2; at 7, lines 11-16.) Defendant was comfortable climbing without equipment or an instructor. (Id. at 7, lines 6-10.)

Defendant argued that it cannot enforce a statement on its waiver that a climber is not to climb without a spotter. Defendant argued that this is for four reasons: because spotting does not prevent injury, because spotting was developed when bouldering was outside, because spotting [*29] can only act to attempt to protect the head and neck outdoors–and indoors the padding provides this function–and because spotting may endanger the spotter. Defendant stated that spotting is not enforced at its gym. Defendant further stated that its liability expert has not seen this requirement enforced at any of the 200 gyms he has traveled to which do have this requirement on paper. (Id. at 6, lines 7-26; at 7, lines 2-5.)

Defendant argued that falling when climbing a wall is a common, foreseeable occurrence at a climbing facility. (Id. at 8, lines 3-5.) Defendant further argued that Plaintiff is an intelligent woman, 30 years old at the time of her injury, with a degree in biology. As such, Defendant argued that Plaintiff knew the laws of gravity: what goes up, must come down. (Id. at 8, lines 6-9.) Defendant further argued that a person is said to have assumed the risk if he or she participates in an activity such as climbing where falling is an anticipated and known possibility. (Id. at 9, lines 9-13.) Defendant further argued that Plaintiff testified that she does not know what caused her to fall. (Id. at 7, lines 21-23.)

Plaintiff argued in opposition that Defendant’s own rules required a spotter for climbers and that [*30] Defendant broke its rule and therefore proximately caused Plaintiff’s injury. (Id. at 9, lines 24-26; at 10, lines 2-6; at 11, lines 11-16, 24-25; at 12, lines 15-21.) Plaintiff further argued that “in every kind of climbing you are required to have a rope, a harness, something to prevent an injury and a fall.” (Id. at 12, lines 11-13.) Plaintiff further argued that a spotter “will say lift your arms, turn to the side” as a person begins to fall. (Id. at 11, lines 24-25.)

Plaintiff further argued that proximate cause has been established and the real question for the Court is whether Plaintiff assumed the risk. (Id. at 12, lines 22-25.) Plaintiff argued that “unusually thick” mats around the climbing wall gave Plaintiff a false sense of security. (Id. at 13, line 8.) Plaintiff further argued that Plaintiff saw people fall onto the soft matted floor without getting hurt, and therefore assumes this is a safe sport, but it is not. Plaintiff argued that assumption of risk is a subjective standard and that Plaintiff was a novice who had only [**16] climbed with ropes and harnesses prior to the day of her injury and thus did not assume the risk of “falling on a soft mat and breaking an elbow.” (Id. at 10, lines 7-10; at 14, lines 13-16.)

Plaintiff [*31] argued that there is a distinction between assuming the risk that one could fall from a climbing wall and assuming the risk that one could be injured from the fall. Plaintiff further argued that Plaintiff assumed the former, not the latter, in part because of a false sense of security due to the mats and not having a spotter. (Id. at 14, lines 23-26; at 15, lines 2-23; at 16, lines 2-9.) Plaintiff further argued that the mats that are placed by the climbing wall are “extremely substantial,” “for the sole purpose of preventing injury,” and “designed supposedly to prevent injury from a fall, and . . . didn’t.” (Id. at 16, lines 16-20.)

Plaintiff argued that, as a matter of law, because the mats were there, Plaintiff cannot be held to the belief that she was going to get hurt when she went up the climbing wall. (Id. at 16, lines 22-24.) Plaintiff clarified that she is not claiming the mat was inadequate. (Id. at 16, line 21.) Plaintiff argued that there was no assumption of injury from climbing or falling normally from the Defendant’s gym’s climbing wall. (Id. at 17, lines 13-14.) Plaintiff argued further that Plaintiff “did not assume the risk of being injured by a fall, period.” (Id. at 18, line 20.)

Defendant argued in reply that Plaintiff [*32] was bouldering, which by definition involves no ropes or harnesses, and did so voluntarily. (Id. at 23, lines 11-12.) Defendant further argued that Plaintiff’s liability expert cites to no regulations, standards, or rules that would quantify his reasoning why there should have been ropes, harnesses, or a spotter, or why the mat gave Plaintiff a false sense of security. (Id. at 23, lines 17-22.) Defendant further argued that the law says that when someone assumes the risk, they are assuming the risk inherent to the activity, and that assumption of injury specifically is not required. (Id. at 23, line 26; at 24, lines 2-5.) Defendant further argued that, in the instant case, the risk inherent to bouldering is falling, and that falling from a height may result in injury. As such, Defendant argued, Plaintiff assumed the risk. (Id. at 24, lines 4-18.)

Defendant further argued that there was no negligent hidden condition and nothing wrong with the wall or the mats. (Id. at 24, lines 20-21, 24-25.) Defendant argued that a climbing wall of 13 to 14 feet and mats of 12-inch thickness, as here, are typical. (Id. at 24, lines 25-26; at 25, lines 2-3.) Defendant further argued that stating that Plaintiff fell because she did not have a rope or harness [*33] is speculation insufficient to defeat a motion for summary judgment. (Id. at 25, lines 4-6.)

[**17] DISCUSSION

I. The Summary Judgment Standard

“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor, and he must do so by tender of evidentiary proof in admissible form.” (Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980] [internal quotation marks and citation omitted].) “Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution.” (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81, 790 N.E.2d 772, 760 N.Y.S.2d 397 [2003].) “On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party.” (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503, 965 N.E.2d 240, 942 N.Y.S.2d 13 [2012] [internal quotation marks and citation omitted].) In the presence of a genuine issue of material fact, a motion for summary judgment must be denied. (See Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231, 385 N.E.2d 1068, 413 N.Y.S.2d 141 [1978]; Grossman v Amalgamated Hous. Corp., 298 A.D.2d 224, 226, 750 N.Y.S.2d 1 [1st Dept 2002].)

II. The Assumption of Risk Doctrine

“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent [*34] in the activity.” (Cruz v Longwood Cent. School Dist., 110 AD3d 757, 758, 973 N.Y.S.2d 260 [2d Dept 2013].) “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” (Id.) However, “[s]ome of the restraints of civilization must accompany every athlete onto the playing field. Thus, the rule is qualified to the extent that participants do not consent to acts which are reckless or intentional.” (Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986].) “[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.” (Morgan v State, 90 NY2d 471, 485, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997] [internal quotation marks omitted].) In assessing whether a plaintiff had the appropriate awareness to assume the subject risk, such “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.” (Id. at 485-486.)

[**18] In 1975, the state legislature codified New York’s comparative fault law when it passed what is now CPLR 1411, “Damages recoverable when contributory negligence [*35] or assumption of risk is established.” CPLR 1411 provides:

“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”

Notwithstanding the text of CPLR 1411, the Court of Appeals has held that, in certain circumstances, a plaintiff’s assumption of a known risk can operate as a complete bar to recovery. The Court of Appeals refers to this affirmative defense as “primary assumption of risk” and states that “[u]nder this theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.” (Custodi v Town of Amherst, 20 NY3d 83, 87, 980 N.E.2d 933, 957 N.Y.S.2d 268 [2012] [internal quotation marks omitted].) In assuming a risk, Plaintiff has “given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do [*36] or leave undone.” (Turcotte v Fell, 68 NY2d 432, 438, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986], quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed].)

Nonetheless, the doctrine of primary assumption of risk has often been at odds with this state’s legislative adoption of comparative fault, and as such has largely been limited in application to “cases involving certain types of athletic or recreational activities.” (Custodi, 20 NY3d at 87.) In Trupia ex rel. Trupia v Lake George Cent. School Dist., Chief Judge Lippman discussed the uneasy coexistence of the two doctrines:

“The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in facilitating free and vigorous participation in athletic activities. We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these [**19] beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context [*37] and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation that the Legislature has deemed applicable to any action to recover damages for personal injury, injury to property, or wrongful death.”

(14 NY3d 392, 395-96, 927 N.E.2d 547, 901 N.Y.S.2d 127 [2010] [internal quotation marks and emendation omitted].) Writing two years later, Chief Judge Lippman further explained the scope of primary assumption of risk in Bukowski v Clarkson University:

“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities s aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Relatedly, risks which are commonly encountered or ‘inherent’ in a sport, such as being struck by a ball or bat in baseball, are risks [*38] for which various participants are legally deemed to have accepted personal responsibility. The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions.”

(19 NY3d 353, 356, 971 N.E.2d 849, 948 N.Y.S.2d 568 [2012] [internal quotation marks and emendation omitted].)

III. Defendant Has Shown Prima Facie that Plaintiff Assumed the Risk of Injury from Falling from Defendant’s Gym’s Climbing Wall, and Plaintiff Has Failed to Raise a Genuine Issue of Material Fact in Response

Based upon the Court’s reading of the submitted papers and the parties’ oral argument before it, the Court finds that Defendant has shown prima facie that Plaintiff assumed the risks associated with falling from Defendant’s gym’s climbing wall, including injury. Defendant has shown prima facie that Plaintiff voluntarily participated in the sporting activity of bouldering at Steep Rock Bouldering and assumed the risks inherent therein. Specifically, Defendant has [**20] referred to Plaintiff’s deposition testimony, which was sufficient to establish that Plaintiff: (1) had experience with rock climbing; (2) was aware of the conditions of the climbing wall from observations both at a distance–from looking online at Facebook and watching others–and [*39] up close on her two or three successful climbs prior to her injury; and (3) was aware that a person could drop down from the wall, as Plaintiff had herself already jumped down from the wall of her own accord.

In response, Plaintiff fails to raise a genuine issue of material fact. Steep Rock Bouldering’s climbing wall is of an average height for bouldering walls according to Dr. Richards. Dr. Nussbaum’s assertion that climbing on any wall of a height of eight feet or more requires a harness or similar device is conclusory, unsupported by citation, and, ultimately, unavailing.

To require harnesses and ropes at Steep Rock Bouldering would fundamentally change the nature of the sport. Bouldering is a type of climbing that does not require ropes or harnesses. The Court finds that injury from falling is a commonly appreciable risk of climbing–with or without harnesses, ropes, or other safety gear–and that Plaintiff assumed this risk when she knowingly and voluntarily climbed Defendant’s gym’s climbing wall for the third or fourth time when she fell. To hold that Defendant could be liable for Plaintiff’s injuries because it allowed her to climb its wall without a rope and harness would effectively [*40] make the sport of bouldering illegal in this state. To do so would fly in the face of the reasoning in Trupia that such “athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and . . . that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise.” (14 NY3d at 395-96.)

In dismissing the instant case, the Court notes that the facts here are distinguishable from those in Lee v Brooklyn Boulders, LLC ( NYS3d , 2017 NY Slip Op 08660, 2017 WL 6347269, *1 [2d Dept, Dec. 13, 2017, index No. 503080/2013]) and McDonald v. Brooklyn Boulders, LLC (2016 N.Y. Misc. LEXIS 5211, 2016 WL 1597764, at *6 [Sup Ct, Kings County Apr. 12, 2016]). Both cases involved plaintiffs who were injured when they jumped down from the climbing wall–at the same defendant’s bouldering facility–and each plaintiff’s foot landed in a gap between the matting. In both cases, summary judgment was denied because there was a genuine issue of material fact concerning whether the gap in the matting presented a concealed risk. Here, Plaintiff does not contend that she was injured by such a concealed risk, but essentially argues she should not have been allowed to [**21] voluntarily engage in the sport of bouldering. For the reasons previously stated, this Court finds such an argument to be [*41] unavailing.

CONCLUSION

Accordingly, it is

ORDERED that Defendant Steep Rock Bouldering, LLC’s motion pursuant to CPLR 3212 for an order granting Defendant summary judgment against Plaintiff Min-Sun Ho is granted; and it is further

ORDERED that the action is dismissed; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of Defendant; and it is further

ORDERED that counsel for movant shall serve a copy of this order with notice of entry upon Plaintiff and upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158M), who are directed to mark the court’s records to reflect the dismissal of this action.

The foregoing constitutes the decision and order of the Court.

Dated: January 2, 2018

New York, New York

/s/ Robert D. Kalish, J.S.C.

HON. ROBERT D. KALISH


Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania

Release blocked the claims for negligence; however, the gross negligence claims relied on assumption of the risk as a defense. The release helped prove the plaintiff assumed the risk, but I suspect that defense would only work in a bouldering case like this.

Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767

State: Pennsylvania: Superior Court of Pennsylvania

Plaintiff: Rebecca Mcgarry

Defendant: Philly Rock Corp

Plaintiff Claims: gross negligence in that the defendant

Defendant Defenses: Assumption of the Risk

Holding: For the Defendant

Year: 2015

The plaintiff and her husband wanted to try something new, so they went to the defendant indoor climbing facility. The plaintiff signed the release and took a class in belaying and use of the belay equipment.

Around the facility were numerous signs warning of the risks of the activity: bathrooms, reception desk, and pillars in the building. There was also a sign about mat placement that the plaintiff remembered and drew correctly during her depositions.

On their second visit, the plaintiff tried bouldering. The bouldering area had mats; however, the mats were moveable and were supposed to be moved by the people bouldering. The plaintiff was approximately four feet of the ground when she jumped off. She did not move the mats prior to bouldering and did not look for the mats when she jumped. She shattered her ankle, which required three surgeries.

The plaintiff sued, and the case went to trial on the issue of the gross negligence of the defendant. The release precluded all the negligence claims of the plaintiff. As in most states (if not all) a release is not valid for gross negligence claims. “Because McGarry signed a waiver, no one in this case disputes that McGarry was required to prove that PRC was grossly negligent to recover.

The jury awarded the plaintiff $150,000 for her gross negligence claims. The defendants filed a motion for Judgment Notwithstanding the Verdict (JNOV). This motion, JNOV, requests the judge to overrule the jury and grant the defendant’s motion for dismissal. The judge did and the plaintiff appealed.

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

The plaintiff appealed claiming the trial court made four errors of the law. The first two were based on the procedural issues associated with the JNOV. The third was whether the trial court correctly applied the assumption of the risk doctrine, and the final issue was whether the court properly denied the introduction of evidence that the defendant’s employees had not been trained properly.

The court started by defining gross negligence as per Pennsylvania law.

Gross negligence has . . . been termed the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others. Additionally, gross negligence has been described as an extreme departure from ordinary care or the want of even scant care [and] . . . as [a] lack of slight diligence or care, and [a] conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party . . . .

[G]ross negligence is clearly more egregious than ordinary negligence.

Under Pennsylvania law, if the plaintiff assumed the risk which caused her injury, then the defendant does not owe the plaintiff any further duty. The trial court found the plaintiff had assumed the risk based on the following:

McGarry knew that there was a risk in bouldering, knew she could be injured from a height of four feet, knew she was jumping from the wall without looking for the mats, and jumped anyway. The trial court also found that, because the dangers were obvious, PRC reasonably could expect that McGarry would take steps to protect herself, precluding a finding that PRC was grossly negligent.

The plaintiff countered by staging she could only assume the risks she understood. Since there was no written safety material, and she had not been trained in how to use the mats or a spotter, she could not assume the risk.

McGarry first notes that assumption of risk is subjective and that McGarry only could assume a risk that she understood. McGarry argues that, because there were no written safety materials, McGarry did not know how to position the mats or how to use a spotter to avoid injury.

The court looked at the assumption of risk doctrine. As in most (if not all) states assumption of the risk as a defense was merged into comparative negligence. However, in Pennsylvania the Supreme Court had not eliminated assumption of the risk as a defense, it was now only in disfavor.

In Pennsylvania, the doctrine of assumption of the risk is defined as:

[A]ssumption of risk is established as a matter of law only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Mere contributory negligence does not establish assumption of risk. Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff’s injuries. In order to prevail on assumption of risk, the defendant must establish both the “awareness of the risk” prong and the “voluntariness” prong.

Assumption of the risk eliminates a duty from the defendant.

If the case is viewed from the perspective of a duty analysis, the evidence presented at trial establishes that [the plaintiff] voluntarily encountered a known risk, thereby obviating any duty which might otherwise have been owed him by [the defendant]. Under this analysis, the case is controlled by the assumption of risk principle that one who voluntarily undertakes a known risk thereby releases the defendant from any duty of care.

The court quoted another Pennsylvania decision to explain what elimination of the duty from the defendant meant.

Similarly, “[w]hen an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpoint to the possessor’s lack of duty to protect the invitee from those risks.”

The court then applied those definitions to the present case. The first analysis was whether the dangers were open and obvious. (Jumping from four feet high I believe is obvious to everyone in the world) The court found the dangers had been pointed out to the plaintiff.

Multiple signs throughout the facility warned that climbing and bouldering are dangerous and may result in serious injury. Additionally, the danger of these activities “is well understood by virtually all individuals of adult age.” Falling and causing a injury to an ankle or wrist is a “common, frequent, and expected” risk of climbing or bouldering.

The plaintiff had also admitted during her deposition that she knew of the risks.

Further, McGarry knew of and appreciated the risk. McGarry testified that she knew there were risks in bouldering and that she knew she could be injured when jumping even from a height of four feet. McGarry saw the sign stressing the importance of mat placement and drew it from memory much later at her deposition. Despite knowing that mats and their placement were important, McGarry nonetheless did not look before she jumped and landed in the wrong place.

The court also found that the fact the plaintiff had signed a release; she knew she was responsible for her injuries.

McGarry also acknowledged that she signed a waiver, which she understood meant that she was responsible for any injuries. She then voluntarily proceeded with the activity despite her appreciation of that risk.

The court then went back to the testimony to sum the assumption of the risk defense and why it agreed with the trial court. “However, McGarry’s own testimony compels the trial court’s finding that she assumed the risk, which, as a matter of law, precludes a verdict in her favor.”

The next issue was the application of the assumption of the risk defense to a claim of gross negligence. Because assumption of the risk removed the necessary duty from the defendant, there could be no gross negligence. In Pennsylvania once the plaintiff assumes the risk the defendant has no further duty to the plaintiff, with respect to the duty the plaintiff is assuming.

…we conclude that McGarry’s assumption of the risk barred her recovery regardless of whether PRC was grossly negligent. Because the evidence supported the trial court’s conclusion that McGarry as-sumed the risk of injury, PRC owed no duty to McGarry and, therefore, was not legally responsible for her injury.

If there is no duty, there is no negligence. To prove negligence, the plaintiff must prove there was a duty, a breach of that duty, an injury proximately caused by the breach and damages. Failing to prove all four points and the plaintiff does not prove her case. If the case is not proved, then the defense has no need to present any defenses because there was no negligence.

The final issue the court reviewed was the plaintiffs claim the employees were not sufficiently trained.

Finally, McGarry complains that the trial court erred in precluding her from introducing evidence regarding whether PRC’s employees were trained or qualified. McGarry argues that this evidence was relevant and should have been presented to the jury.

The court found this was not at issue. Because the plaintiff did not receive instruction on bouldering from an employee of the defendant, the training and qualifications were immaterial.

Because McGarry did not receive instruction from PRC employees, the trial court reasoned that if PRC was obligated to provide instruction to clients as part of its duty, PRC would be negligent regardless of whether it’s the employees were adequately trained. If PRC was not obligated to provide instruction to clients, then PRC would not be negligent regardless of employee training.

The defendant did not have a required bouldering class and told the plaintiff to ask questions which the plaintiff did not do. However, because her complaint did not involve the training, she received or how her questions were answered, the training and qualifications of the defendant employees did not matter.

The appellate court agreed with the trial court and upheld the dismissal of the case.

So Now What?

First, this is another example where the risks of the activity should be included in your release. Here the court found the release proved the plaintiff had assumed the risk of her injury.

The next issue is the training issue. This issue seemed to have been developed by the plaintiff’s expert witness. Besides training he stated the defendant was below the standard of the industry in the following ways.

Mr. Andres testified that some of the safety signs were placed where they were unlikely to be noticed. Some of the signs warned about possible dangers, but gave no instructions about how to avoid those risks. Mr. Andres testified that belaying and bouldering are different and that, in bouldering, mat placement, the use and limitations of mats, and how to control one’s descent are important. Mr. Andres opined that it was insufficient to have signs instructing clients to ask an employee about climbing or safety because novice climbers may not know what to ask in order to participate safely.

You will see experts making many, and in a few case’s extremely absurd claims to assist the plaintiff in making his or her claim. Signs that warned but did not instruct which the plaintiff ignored anyway mat placement and controlling your descent when falling was argued by the plaintiff’s expert.

I think mat placement is pretty obvious. You put the mats where you think you may land. As far as controlling your descent, I’m lost. I’ve tried a lot of things when falling, clawing the air, kicking madly, flapping my arms and screaming may make me feel better at the time but did nothing to “control my descent.”

I go back to education on this type of claim again. The more you educate your client the less likely they might get hurt and the less likely they can sue. The problem always is. How do you educate a client and then who do you prove you educated them.

In my opinion, that is where the business website comes in. The more information and videos you can put on the website the better. When you post these videos be real. Post the right way and the wrong way, show the risks and show people being stupid. Just make sure you point out when someone is doing something wrong that you make sure that is indicated on the video.

You can then require people to watch the videos before starting the activity, or you can have them acknowledge in the release, they have watched the videos. You can also tell them in your marketing or communications to watch the videos to learn more about climbing or whatever the activity is.

This case was decided in October of 2015. I believe the time to appeal is only thirty (30) days, and it does not appear that an appeal has been filed in this case. However, until a longer period of time has run, this case might be appealed and possibly over turned by the Pennsylvania Supreme Court.

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Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767

Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767

Rebecca Mcgarry, Appellant v. Philly Rock Corp., Appellee

No. 3326 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

2015 Pa. Super. Unpub. LEXIS 3767

October 15, 2015, Decided

October 15, 2015, Filed

NOTICE: NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37

PRIOR HISTORY: [*1] Appeal from the Order of November 19, 2014. In the Court of Common Pleas of Chester County. Civil Division at No.: No. 12-13367.

JUDGES: BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J. MEMORANDUM BY WECHT, J.

OPINION BY: WECHT

OPINION

MEMORANDUM BY WECHT, J.:

Rebecca McGarry (“McGarry”) appeals the November 19, 2014 order. In that order, the trial court granted Philly Rock Corp.’s (“PRC”) post-trial motion and entered a judgment notwithstanding the verdict in favor of PRC. We affirm.

The trial testimony supports the following factual history.1 On March 5, 2011, McGarry and her husband, Peter, went to PRC, an indoor rock-climbing facility, because they wanted to try a new activity. Notes of Testimony (“N.T.”), 7/14/2014, at 3-4. On that day, McGarry signed a waiver and then took an introductory course on belaying equipment. Id. at 4-6. McGarry understood that the waiver meant that if she were injured, PRC would not be at fault. Id. at 37. McGarry also understood at the time that she signed the waiver that there were risks involved in rock climbing and that injuries were possible. Id. at 39. McGarry returned on March 12, 2011, and participated in rock-climbing again. Id. at 7.

1 The entire trial was not transcribed; only [*2] the testimony of three witnesses, the jury instructions, and the argument for PRC’s motion for a non-suit are available. The trial court did not provide a detailed factual history. From the transcripts available, it appears that the testimony of at least two PRC employees and one other defense witness is not available. Therefore, our ability to relate the history of this case is limited. Other testimony was included in the reproduced record. However, we may not consider any documents that are not in the certified record. Commonwealth v. Preston, 2006 PA Super 170, 904 A.2d 1, 7 (Pa. Super. 2006).

McGarry and Peter returned to PRC again on March 16, 2011, and went to the bouldering area.2 Id. at 8. McGarry received no instruction on bouldering, but watched other climbers. Id. at 9-10. Peter attempted the wall first and successfully completed his climb. Id. at 10. McGarry then attempted the wall. Id. at 12. Peter had placed a mat under her. Id. at 11. McGarry climbed about four feet, then jumped off the wall. Id. at 12. McGarry acknowledged that she knew that there was a risk of injury when jumping from a height of four feet. Id. at 42-43. McGarry did not look to see where the mats were before she jumped. Id. at 45. When she jumped, McGarry rolled her left ankle. Id. at 17. McGarry testified that the mats were in the [*3] correct position, but that she jumped in the wrong place and landed between two mats.3 Id. at 46-47. McGarry heard a crunch, felt pain, and was taken to Phoenixville Hospital by ambulance. Id. at 18.

2 When “top-roping,” the climber’s harness is fastened to a rope that runs upward through or over an anchor. The other end of the rope is controlled, with the use of safety equipment, by the “belayer.” In the event that the climber falls, the belayer is able to hold the rope fast, arresting the climber’s fall. In bouldering, the activity at issue in this case, the climber is not attached to any safety equipment.

3 McGarry told her physicians that she fell on the floor instead of the mat. Id. at 45.

McGarry’s ankle was fractured, requiring surgery. During surgery, screws and plates were inserted into her ankle. Id. at 20. McGarry had a second surgery in September 2011. Id. at 24. She also received physical therapy for a year after the injury. Id. at 23. A third surgery and more physical therapy followed in December 2012. Id. at 26. Because of the ankle injury, McGarry had difficulty walking long distances, standing for long periods of time, running, and jumping. Id. at 29.

McGarry testified that she could not recall seeing signs with warnings and [*4] information that were posted by the bathrooms, at the reception desk, or on pillars in the building. Id. at 39-40. However, McGarry indicated that she recalled a sign about mat placement and was able to draw it from memory at her deposition. Id. at 41-42.

On December 24, 2012, McGarry filed a complaint against PRC, in which she alleged that PRC’s negligence and/or gross negligence caused her injury.4 The jury trial was held in July 2014.

4 The complaint also included a claim for loss of consortium on behalf of Peter.

At trial, Corey Andres, who was qualified as an expert in sports and recreation venues and industries, testified for McGarry. N.T., 7/15/2014, at 11. Mr. Andres testified that some of the safety signs were placed where they were unlikely to be noticed. Id. at 41. Some of the signs warned about possible dangers, but gave no instructions about how to avoid those risks. Id. at 47, 52. Mr. Andres testified that belaying and bouldering are different and that, in bouldering, mat placement, the use and limitations of mats, and how to control one’s descent are important. Id. at 54. Mr. Andres opined that it was insufficient to have signs instructing clients to ask an employee about climbing or safety because novice climbers [*5] may not know what to ask in order to participate safely. Id. at 57-58. Mr. Andres testified that PRC’s reliance upon signs for safety information about bouldering, rather than requiring instruction, was inadequate. Id. at 71. Mr. Andres acknowledged that McGarry was told in her belaying course that she should ask staff if she had questions about bouldering, but that McGarry did not do so. Id. at 81. He also acknowledged that there was a sign that instructed about correct placement of mats, how to land on the mat, and how to avoid injury. Id. at 99-101. Mr. Andres opined that PRC’s standard of care required compulsory instruction as suggested by industry literature. Id. at 83.

David Rowland, PRC’s president, also testified. N.T., 7/16/2014, at 3. Rowland testified that PRC offered an optional bouldering course. Id. at 7. He agreed that correct mat placement was important and could reduce the likelihood of injury. Id. at 13-14. However, Rowland testified that the climber was responsible for placing the mats, even if the climber was inexperienced. Id. at 15-16. Rowland admitted that there were no written rules or instruction manuals beyond the signs posted in the facility. Id. at 22. PRC recommends that climbers rely upon spotters to guide them to safe [*6] landing spots, but it was not mandatory. Id. at 27-28.

At the close of McGarry’s case, PRC moved for a non-suit. N.T., 7/16/2014 (Argument), at 3. The trial court heard argument on the motion and decided that the evidence did not support punitive damages. Therefore, the court decided not to submit that issue to the jury. Id. at 11. Recognizing that non-suit was a close issue, the trial court denied the motion and permitted the defense to present its case. Id. at 11-12. PRC also moved for a directed verdict at the close of evidence, which the trial court also denied. Id. at 13-14.

On July 16, 2014, the jury reached its verdict. It found that PRC was grossly negligent, that PRC’s gross negligence was the cause of McGarry’s injuries, that McGarry was contributorily negligent, and that PRC and McGarry were each fifty percent at fault. The jury awarded McGarry $150,000 without a reduction for her own negligence.

On July 25, 2014, PRC filed a post-trial motion in which it sought judgment notwithstanding the verdict (“JNOV”). PRC asserted that the trial court had erred in not granting its motions for non-suit and/or a directed verdict, that McGarry had failed to prove gross negligence as a matter of law, that the jury disregarded [*7] the court’s instructions on assumption of risk and gross negligence, and that McGarry’s expert was not qualified. On November 19, 2014, the trial court granted PRC’s motion and entered JNOV. The trial court concluded that it erred in failing to grant the motion for directed verdict because the evidence did not support a finding of gross negligence, and that McGarry knowingly and voluntarily accepted a risk, which relieved PRC’s duty to McGarry. Order, 11/19/2014, at 1-2 n.1.

On November 25, 2014, McGarry filed a notice of appeal. On November 26, 2014, the trial court directed McGarry to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and McGarry timely complied. The court filed a Pa.R.A.P. 1925(a) opinion on February 2, 2015.

McGarry raises four issues for our review:

1. Did the Trial Court commit an error of law and/or abuse its discretion when the Trial Court misapplied the standard for j.n.o.v., which requires that j.n.o.v. be granted only where the movant is entitled to judgment as a matter of law and/or evidence was such that no two reasonable minds could disagree that the outcome should have been in favor of the movant?

2. Did the Trial Court commit an error of law and/or [*8] abuse its discretion when the Trial Court granted a motion for j.n.o.v., after the jury had been instructed on the law of gross negligence, applied the facts, and determined that [PRC’s] conduct reached the level of gross negligence?

3. Did the Trial Court commit an error of law and/or abuse its discretion in applying the assumption of risk doctrine in granting [PRC’s] post[-]trial motion?

4. Did the Trial Court commit an error of law and/or abuse its discretion when the Trial Court prohibited [McGarry] from presenting evidence as to the training vel non of employees of [PRC] at trial?

McGarry’s Brief at 5.

McGarry’s first two issues relate to the trial court’s entry of JNOV. Additionally, the third issue, related to assumption of risk, is intertwined with JNOV. As such, we discuss them together. Our standard of review of a trial court’s ruling on a motion for JNOV is as follows:

In reviewing a trial court’s decision whether or not to grant judgment in favor of one of the parties, we must consider the evidence, together with all favorable inferences drawn therefrom, in the light most favorable to the verdict winner. Our standard[s] of review when considering the motions for a directed verdict and [*9] judgment notwithstanding the verdict [JNOV] are identical. We will reverse a trial court’s grant or denial of a [directed verdict or JNOV] only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.

There are two bases upon which a [directed verdict or JNOV] can be entered; one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that, even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in his favor. Whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Campisi v. Acme Markets, Inc., 2006 PA Super 368, 915 A.2d 117, 119 (Pa. Super. 2006) (quotation omitted). See Berg v. Nationwide Mutual Insurance Co., Inc., 2012 PA Super 88, 44 A.3d 1164 (Pa. Super. 2012).

Hall v. Episcopal Long Term Care, 2012 PA Super 205, 54 A.3d 381, 395 (Pa. Super. 2012) (bracketed material in original).

Because McGarry signed a waiver, no one in this case disputes that McGarry was required to prove that PRC was grossly negligent to recover. Gross negligence has been defined as follows: [*10]

Gross negligence has . . . been termed the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others. Additionally, gross negligence has been described as an extreme departure from ordinary care or the want of even scant care [and] . . . as [a] lack of slight diligence or care, and [a] conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party . . . .

[G]ross negligence is clearly more egregious than ordinary negligence.

Ratti v. Wheeling Pittsburgh Steel Corp., 2000 PA Super 239, 758 A.2d 695, 704-05 (Pa. Super. 2000) (citations and quotation marks omitted).

The trial court granted PRC’s motion for JNOV because it found that McGarry had assumed the risk of injury, which was open and obvious. Trial Court Opinion (“T.C.O.”), 2/15/2015, at 5. Because McGarry assumed the risk, PRC owed her no further duty. Id. at 5-6. Based upon McGarry’s testimony, the trial court found that McGarry knew that there was a risk in bouldering, knew she could be injured from a height of four feet, knew she was jumping from the wall without looking for the mats, and jumped anyway. Id. at 7-8. The trial court also found that, because the dangers were obvious, PRC reasonably could expect that McGarry would [*11] take steps to protect herself, precluding a finding that PRC was grossly negligent. Id. at 8-9.

In response, McGarry first notes that assumption of risk is subjective and that McGarry only could assume a risk that she understood. McGarry argues that, because there were no written safety materials, McGarry did not know how to position the mats or how to use a spotter to avoid injury. McGarry’s Brief at 21-23. McGarry also observes that her expert witness testified that the lack of instruction contributed to her injury, the jury was instructed on assumption of risk, and the jury decided that McGarry did not appreciate the risk. By setting aside that decision, McGarry contends that the trial court invaded the province of the jury. Id. at 24-25. McGarry also argues that the facts of this case were such that the trial court erred in deciding that the risks were so open and obvious that reasonable minds could not disagree upon the issue of duty. Id. at 25-27. Finally, McGarry notes that the assumption of risk doctrine has fallen out of favor with the passage of the comparative negligence statute. However, despite the applicability of assumption of risk, McGarry argues that the jury was instructed adequately about [*12] both doctrines and that the trial court erred in upsetting that verdict. Id. at 27-28.

“Assumption of risk is a judicially created rule [based in the common law that] did not protect [individuals] from the consequences of their own behavior . . . . The doctrine, however, has fallen into disfavor, as evidenced by our [S]upreme [C]ourt’s two . . . attempts to abolish or limit it.” Staub v. Toy Factory, Inc., 2000 PA Super 87, 749 A.2d 522, 528 (Pa. Super. 2000) (en banc). Our Supreme Court has noted that “the complexity of analysis in assumption of risk cases makes it extremely difficult to instruct juries.” Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107, 1108 (Pa. 1993) (plurality). Courts also have questioned whether the doctrine serves a purpose following Pennsylvania’s adoption of comparative negligence. See id. at 1109; Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 570 (Pa. Super. 2000); Staub, 749 A.2d at 528; see also Zeidman v. Fisher, 2009 PA Super 161, 980 A.2d 637, 640 (Pa. Super. 2009) (“We acknowledge the continuing vitality of the assumption of risk doctrine remains in doubt.”). However, despite its difficulties, the doctrine remains the law of Pennsylvania. See Bullman, 761 A.2d at 570 (“[A]s the doctrine has not been formally abolished by our Supreme Court, we are obligated to apply the doctrine despite its less than wholehearted support.”); Staub, 749 A.2d at 528 (“[U]ntil our [S]upreme [C]ourt or our legislature abrogates assumption of risk in negligence cases, the doctrine remains viable . . . .”). Therefore, we review the trial court’s application of assumption of risk. [*13]

The doctrine has been defined as follows:

[A]ssumption of risk is established as a matter of law only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Mere contributory negligence does not establish assumption of risk. Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff’s injuries. In order to prevail on assumption of risk, the defendant must establish both the “awareness of the risk” prong and the “voluntariness” prong.

Staub, 749 A.2d at 529 (citations and quotation marks omitted). Assumption of risk has been compared to estoppel:

It might be assumed, for purposes of an assumption of risk analysis, that the defendant(s) was negligent, and at least partly responsible for the injury sustained, nevertheless, given the circumstances in which the injury was sustained, the plaintiff is essentially “estopped” from pursuing an action against the defendant because it is fundamentally unfair to allow the plaintiff to [*14] shift responsibility for the injury to the defendant when the risk was known, appreciated and voluntarily assumed by the plaintiff.

Bullman, 761 A.2d at 570. The doctrine also has been viewed, as the trial court did here, in relation to duty:

If the case is viewed from the perspective of a duty analysis, the evidence presented at trial establishes that [the plaintiff] voluntarily encountered a known risk, thereby obviating any duty which might otherwise have been owed him by [the defendant]. Under this analysis, the case is controlled by the assumption of risk principle that one who voluntarily undertakes a known risk thereby releases the defendant from any duty of care.

Howell, 620 A.2d at 1110-11. Similarly, “[w]hen an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpoint to the possessor’s lack of duty to protect the invitee from those risks.” Zeidman, 980 A2.d at 642.

The risk that is appreciated and accepted must also be “the specific risk that occasioned injury.” Bullman, 761 A.2d at 571. For instance, assumption of risk did not apply when a student was injured by a discharged ceremonial [*15] cannon, when the student was not aware that the cannon could cause the type of injury sustained and because the cannon had always required more force to discharge than the student applied when he was injured. Id. at 572 (citing Struble v. Valley Forge Military Academy, 445 Pa. Super. 224, 665 A.2d 4 (Pa. Super. 1995)). An installer working on stilts, while appreciating a general risk of falling, had not assumed the risk of slipping on a piece of vinyl siding when he had cleared a path of debris and did not see the siding. Id. (citing Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129 (Pa. Super. 1996)). In Bullman, a girl assumed the risk of traversing a plank over an excavation ditch because the risk was open and obvious, but she did not assume the risk of falling through insulation board covering a porch that appeared to be solid because that risk was not appreciated. Id. at 573-74.

In spectator sports, we have found assumption of risk or no duty for risks that are “common, frequent, and expected,” such as being hit by a batted ball or by a hockey puck, but not when the risk is “not inherent in the amusement activity,” such as tripping over a beam or falling in a hole in a walkway at a stadium. Zeidman, 980 A.2d at 642-43. In Zeldman, the plaintiff raised sufficient issues of material fact to overcome a motion for summary judgment based upon assumption of risk when he was struck by [*16] a golf ball hit by his golfing companion. The plaintiff went ahead to check that the golfing group ahead of his group was off the green and was returning to the tee. Assumption of risk was not available at summary judgment because the plaintiff raised an issue of material fact as to whether he had reason to expect that his golfing companion would hit a shot off the tee while he was en route. Id. at 641.

Turning to this case, we first must consider whether the danger was open and obvious. The testimony supported the conclusion that it was. Multiple signs throughout the facility warned that climbing and bouldering are dangerous and may result in serious injury. Additionally, the danger of these activities “is well understood by virtually all individuals of adult age.” Bullman, 761 A.2d at 573. Falling and causing a injury to an ankle or wrist is a “common, frequent, and expected” risk of climbing or bouldering. Zeidman, 980 A.2d at 642.

Further, McGarry knew of and appreciated the risk. McGarry testified that she knew there were risks in bouldering and that she knew she could be injured when jumping even from a height of four feet. McGarry saw the sign stressing the importance of mat placement and drew it from memory much later at her deposition. [*17] Despite knowing that mats and their placement were important, McGarry nonetheless did not look before she jumped and landed in the wrong place. McGarry also acknowledged that she signed a waiver, which she understood meant that she was responsible for any injuries. She then voluntarily proceeded with the activity despite her appreciation of that risk. Based upon this testimony, no two reasonable minds could fail to conclude that McGarry understood and appreciated the specific risk of injury associated with jumping from four feet without first looking for the mat. Although McGarry argues that the lack of instruction about correct mat placement did not fully apprise her of the risk, the lack of instruction would be relevant only to PRC’s negligence, which is not at issue as McGarry assumed the risk and PRC had no further duty toward her. Therefore, the trial court did not err in finding that McGarry assumed the risk.

McGarry argues that the trial court ignored the standard for granting JNOV and, instead, supplanted the jury’s findings with its own. McGarry contends that the trial court ignored evidence that was favorable to her, particularly the opinion of her expert witness. McGarry’s [*18] Brief at 10-15.

As noted in Hall, supra, in reviewing a grant of JNOV, we must consider the evidence in the light most favorable to the verdict winner and we will reverse only upon a showing that the trial court made a legal error or abused its discretion.

It is axiomatic that, “[t]here are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.” Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1007 (Pa. 1992) (citations omitted). To uphold JNOV on the first basis, we must review the record and conclude “that even with all the factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second [we] review the evidentiary record and [conclude] that the evidence was such that a verdict for the movant was beyond peradventure.” Id.

Rohm & Haas Co. v. Cont’l Cas. Co., 566 Pa. 464, 781 A.2d 1172, 1176 (Pa. 2001) (citation modified).

Having reviewed the incomplete record that we have been provided,5 we conclude that, even viewing the evidence in the light most favorable to McGarry, the trial court did not err in granting JNOV. Even if we accept Mr. Andres’ testimony that PRC was negligent [*19] in failing to provide instruction on bouldering and mat placement and that PRC’s signs were inadequate to instruct McGarry how to avoid injury, McGarry testified that she knew the risk of injury in bouldering, and that she proceeded despite that risk. As noted, as part of an assumption of risk analysis, we may presume PRC was negligent and partly responsible for McGarry’s injuries. See Bullman, supra. In fact, the jury found that PRC was partially responsible. However, McGarry’s own testimony compels the trial court’s finding that she assumed the risk, which, as a matter of law, precludes a verdict in her favor. The trial court did not err or abuse its discretion in awarding JNOV.

5 “[T]he ultimate responsibility of ensuring that the transmitted record is complete rests squarely upon the appellant and not upon the appellate courts.” Preston, 904 A.2d at 7.

McGarry also asserts that the jury was charged accurately and thoroughly regarding gross negligence. McGarry contends that the jury’s finding of gross negligence was supported by the facts of the case, including that the bouldering course was optional, that PRC did not have written safety policies, that the policy on the use of spotters was unclear, and that no [*20] instruction was given on proper mat placement. McGarry’s Brief at 16-20.

While expressing no opinion as to whether the evidence supported a finding of gross negligence, we conclude that McGarry’s assumption of the risk barred her recovery regardless of whether PRC was grossly negligent. Because the evidence supported the trial court’s conclusion that McGarry assumed the risk of injury, PRC owed no duty to McGarry and, therefore, was not legally responsible for her injury.

Finally, McGarry complains that the trial court erred in precluding her from introducing evidence regarding whether PRC’s employees were trained or qualified. McGarry argues that this evidence was relevant and should have been presented to the jury. McGarry’s Brief at 29.

“Generally, an appellate court’s standard of review of a trial court’s evidentiary rulings is whether the trial court abused its discretion. . . .” Buckman v. Verazin, 2012 PA Super 216, 54 A.3d 956, 960 (Pa. Super. 2012). “Evidence is . . . relevant if it tends to prove or disprove a material fact in issue.” McManamon v. Washko, 2006 PA Super 245, 906 A.2d 1259, 1274 (Pa. Super. 2006).

The trial court sustained PRC’s relevance objection to questions regarding the training of PRC’s employees. Because McGarry did not receive instruction from PRC employees, the trial court reasoned that if PRC was obligated [*21] to provide instruction to clients as part of its duty, PRC would be negligent regardless of whether its the employees were adequately trained. If PRC was not obligated to provide instruction to clients, then PRC would not be negligent regardless of employee training. T.C.O. at 1 n.1.

McGarry has not set forth a compelling argument as to why the proposed testimony would have been relevant. McGarry states:

[T]he training was relevant because [Rowland] testified that staff members were available to answer questions for [McGarry]. Had the instructors been qualified or properly trained, they would have known to instruct [McGarry] in the specific risks associated with bouldering, including proper mat placement, spotting and the dangers associated with failure to do so, which were the true risks of bouldering.

McGarry’s Brief at 29. The evidence in question would have invited the jury to speculate about what instruction McGarry would have received had she sought it out. However, the evidence made clear that there was no required bouldering class, that PRC expected people who were bouldering to ask questions of staff members, and that McGarry did not do so. Had McGarry sought instruction and been [*22] injured, or had McGarry complained regarding the care she received from PRC staff after her injury, then staff training would be relevant. That was not the case, and the trial court did not abuse its discretion in determining that the testimony was not relevant.

Order affirmed.

Judgment Entered.

Date: 10/15/2015


Poorly written release failing to follow prior state Supreme Court decisions, employee statement, no padding and spinning hold send climbing wall gym back to trial in Connecticut.

Release failed the CT Supreme Court test for releases, and the appellate court slammed the climbing wall.

Lecuna v. Carabiners Fairfield, LLC, 2014 Conn. Super. LEXIS 2610

State: Connecticut, Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Stamford

Plaintiff: Isadora Machado Lecuna

Defendant: Carabiners Fairfield, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release

Year: 2014

Holding: for the plaintiff

The plaintiff sued the climbing gym when she fell from a climbing wall injuring her knee and leg. The plaintiff was bouldering when a hold spun causing her to fall. She fell suffering her injuries. She claimed that there was no one there to spot her, and the landing was not padded.

The defendants filed a motion for summary judgment based on the release the plaintiff had signed when she joined the gym. The trial court granted the dismissal based on the motion, and the plaintiff appealed.

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

The court starts off fairly quickly stating the motion for summary judgment failed for four reasons. The first was the court did not see the spinning hold as an inherent risk of the sport of climbing. The plaintiff also argued that since the area has just been opened that day to the public, the hold should have been checked before opening, which the judge also bought.

The court found “…that there is clearly an unresolved question of fact whether the risk of loose or spinning holds in the new bouldering area were, or could have been, minimized.”

The second issue was the employee who was supposed to spot the plaintiff had walked away. This was proved to the court by the statement by the employee apologizing upon his return: “…staff member apologized to the plaintiff and admitted he should not have left.”

The third issue was the bouldering cave there the accident occurred only had carpet over concrete instead of padding. The standard for this gym was padding, because the gym had padding every place else. If you are going to change or alter the safety equipment in your operation, you need to notice the people in the release and place notices where they can be seen.

The final decision was the release being used by the plaintiff did not meet the requirements for a release in Connecticut. The Supreme Court of Connecticut decision Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) set forth six factors for a release to be valid in Connecticut.

This court did not list the factors that the release under question failed; it just stated this decision missed three of the six.

Fourth, the court does not agree that existing Connecticut Supreme Court authority supports the enforceability of the waiver/release agreement signed by the plaintiff. The Hanks decision set out six factors to consider when determining whether the waiver/release here violated public policy. At least three of these factors could, after a full development of the record, be found to weigh against enforcement of the agreement plaintiff signed.

Based on these four factors the court quickly sent the case back for trial.

So Now What?

This decision was short and sweet and really only looked at the evidence of the plaintiff. Either the defendant release was so terrible the court could not deal with it or the actions of the defendant were such the court was not going to allow the defendant to win.

There was not a single argument supporting any position of the defendant in the decision. That is odd.

When writing a release you list the major risks, the minor risks and the risks that occur all the time. A spinning hold is something that occurs with enough frequency at a climbing gym that it should be listed in your release. That in turn might have wiped out the first argument the court objected to.

Anything you say in the heat of the moment is admitable as evidence under the excited utterance exception to the hearsay evidentiary rule. That means it is easy to get these statements into the record. Make sure your staff is trained in how to respond physically and orally to problems.

No matter what if there is a Supreme Court decision in your state that lists the requirements for a release to be valid you better well make sure your release meets those requirements.

What do you think? Leave a comment.

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