Collecting accident reports without doing something with the reports guarantees you will lose a lawsuit and in this case possibly for gross negligence.
Posted: May 4, 2020 Filed under: Climbing Wall, Utah | Tags: Accident Reports, Bouldering, Bouldering Wall, Climbers, Climbing Gym, Climbing Wall, concealed, damaged, district court, Failue to Act, floor, Gross negligence, Hazard, Incident Reports, indifference, injuries, material fact, Mats, Padding, patches, quotation, reliability, simplified, slight care, Steps, Summary judgment, tear, vinyl Leave a commentClimbing gym had a collection of accident reports that were based on the same set of facts. Failure to act on the reports and solve the problem was enough proof for the Utah appellate court to hold the actions of the defendant gym were possibly grossly negligent.
Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
State: Utah; Court of Appeals of Utah
Plaintiff: Scott Howe
Defendant: Momentum LLC
Plaintiff Claims: Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area
Defendant Defenses: the actions of the defendant did not rise to the level of gross negligence.
Holding: For the Plaintiff
Year: 2020
Summary
Incident and Accident reports that have not been acted on and the issues that caused the accidents which had not been fixed, were proof that the defendant climbing gym possibly acted in a grossly negligent way.
Facts
Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.
But Momentum’s management team deemed these tear patches a hazard for tripping, so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.
Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.
In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.
Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”
The defendant Momentum filed a motion for summary judgement to dismiss the gross negligence claims of the plaintiff. The trial court judge ruled the plaintiff had shown enough action and inaction on the part of the gym that the plaintiff could proceed to trial on a claim of gross negligence. The defendant appealed this ruling.
The decision also looks at the qualifications of the plaintiff’s expert witness. However, there is nothing in the decision that warrants review here.
Analysis: making sense of the law based on these facts.
The court’s analysis of the law was quite good and balanced. It’s application of the law to the facts was clear cut. The court defined gross negligence under Utah’s law as “…the failure to observe even slight care….”
A broader definition was defined as:
“…the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff….
The court concluded its review of gross negligence with this statement about the actions of the defendant. “…Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent….”
The court then followed with this statement.
It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence,….
At this point, in the opinion it is clear the court looked at Momentum’s failure to act after collecting more than 13 incident reports as gross negligence.
It is also clear that the court believes that failure to act on the defendant’s own incident reports is a major failure of the defendant. Why have accident and incident reports if you do nothing about them.
These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding.
The court gave the climbing gym some benefit because after the first five accidents, they placed additional padding over the torn spots. However, having eight additional incidents, with the torn padding was more than the court would allow.
The court then summed up the accident reports that the defendant compiled.
…onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.
The court found that collecting injury reports, which almost identical fact situations and not doing anything about it were proof of gross negligence. The appellate court held the trial court was correct in denying the defendant climbing gym’s motion for summary judgment to dismiss the gross negligence claims.
So Now What?
Incident reports are legal explosives just waiting to go off when a plaintiff’s attorney gets them. If you collect them, then you MUST do something with them.
Each report MUST be analyzed. It must be compared with all other reports to see trends or to determine what the cause or problem is. Then something must be done to correct the problem.
If you decided the report is a rate instance or something outside of your ability to control it, then you must indicate that in your notes or on your response to the report. If a second accident occurs with the same fact situation, then it is not longer a rare case, it is something you must act on.
If not, like in this case, the reports prove foreseeability and in this case, prove that failing to act when the defendant knew a problem existed, was enough to support a claim of gross negligence.
What do you think? Leave a comment.
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Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
Posted: April 23, 2020 Filed under: Climbing Wall, Utah | Tags: Accident Reports, Bouldering, Bouldering Wall, Climbers, Climbing Gym, Climbing Wall, concealed, damaged, district court, Failue to Act, floor, Gross negligence, Hazard, Incident Reports, indifference, injuries, landing, material fact, Mats, Padding, patches, quotation, reliability, simplified, slight care, Steps, Summary judgment, tear, vinyl Leave a commentHowe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
Court of Appeals of Utah
January 3, 2020, Filed
No. 20190187-CA
[*P1] Scott Howe sued Momentum LLC under a theory of gross negligence1 for injuries he sustained while “bouldering.”2 Momentum moved for summary judgment, which the district court denied because the disputed facts were sufficient to raise a jury question. The district court also ruled that Howe’s expert (Expert) was qualified to testify on the industry standard of care. The matter is before this court on an interlocutory appeal challenging the court’s denial of the summary judgment motion and its decision to permit Expert to testify. We affirm and remand for further proceedings.
BACKGROUND3
[*P2] Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl [**2] began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.
[*P3] But Momentum’s management team deemed these tear patches a hazard for tripping,4 so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.
[*P4] Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping [**3] from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.
[*P5] In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.
[*P6] Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”
[*P7] Howe designated [**4] a liability Expert. Expert has a bachelor’s degree in chemical engineering and petroleum refining, as well as a master’s degree in metallurgical and materials engineering. His professional experience includes research and development engineering as well as forensic engineering. Expert owns a forensic engineering company that specializes in “metallurgical, materials, and mechanical failure analysis”; “materials evaluation and testing”; “product liability and analysis”; “fire and explosion cause and origin”; “industrial, recreational, and construction accident analysis”; and “chemical and mechanical systems failure analysis.” Expert has been an expert witness in numerous cases, one of which involved a mechanical failure that caused an indoor climbing accident. He has also had professional experience with evaluating impact attenuation surfaces in the ski industry.
[*P8] Expert opined that Momentum did not take appropriate steps to protect climbers in the bouldering area. Indeed, Expert concluded that
Momentum significantly elevated the risk of injury to climbers in the bouldering area by (1) failing to repair, restrict access, clearly mark, cordon off, close walls, or close areas around and [**5] near the areas where the vinyl padding cover was damaged, and by (2) placing the [mats] over the damaged areas of the padding cover, thus concealing the hazard created by the damage.
In Expert’s opinion, appropriate steps to remedy the problem could have included using “warning signs, closing the sections of the floor or wall near damaged areas,” removing the hand-and foot-holds above the damaged padding, making inaccessible the damaged padding areas, or repairing the damaged padding. During deposition testimony, Expert explained that “those are ways to prevent the public from interacting with the obvious hazard created by the opening in the pads.” This approach was based on his “engineering background and experience in dealing with hazards.” In short, his opinion is that “gluing and adhering . . . a large patch of vinyl over the tear” would have been safer than using the mats.
[*P9] Momentum moved for summary judgment, arguing the undisputed facts established that it exercised at least slight care to protect climbers using its facility, which meant Howe could not demonstrate gross negligence. Momentum also moved to exclude Expert, claiming he was unqualified to opine upon the standard of [**6] care in the indoor-climbing industry. The district court denied these motions, and Momentum successfully petitioned this court for an interlocutory appeal.
ISSUES AND STANDARDS OF REVIEW
[*P10] Momentum raises two issues on appeal. First, it claims the district court erred when it denied Momentum’s motion for summary judgment. HN1[
] Denials of summary judgment are questions of law reviewed for correctness. Glenn v. Reese, 2009 UT 80, ¶ 6, 225 P.3d 185.
[*P11] Second, Momentum claims the district court erred when it denied Momentum’s motion to exclude Expert. HN2[
] A district court’s determination regarding the admissibility of expert testimony is reviewed for abuse of discretion. Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 16, 269 P.3d 980.
ANALYSIS
I. Summary Judgment
[*P12] HN3[
] Summary judgment shall be granted “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). In this case, the district court denied Momentum’s motion for summary judgment on Howe’s claim for gross negligence, based on its finding that there were “numerous genuine issues of disputed material fact.”
[*P13]
HN4[
] In reviewing a district court’s summary judgment decision, appellate courts “must evaluate all the evidence and all reasonable inferences fairly drawn from the evidence [**7] in a light most favorable to the party opposing summary judgment to determine whether there is a material issue of fact to be tried.” Horgan v. Industrial Design Corp., 657 P.2d 751, 752 (Utah 1982). “Gross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result. Summary judgment is proper where reasonable minds could reach only one conclusion based on the applicable material facts.” Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified).
[*P14] Citing Penunuri and Blaisdell v. Dentrix Dental Systems, Inc., 2012 UT 37, 284 P.3d 616, Momentum argues that “the undisputed material facts of this case show that [it] exercised care, far more than even slight care, and was not careless or reckless, let alone to a degree that shows utter indifference,” and that therefore “the district court erred in denying Momentum’s motion for summary judgment.” (Quotation simplified.) Momentum points out that it “[u]ndisputedly . . . took steps to protect climbers from being injured by the wear and tear damage that had developed in its primary padding,” including using welded patches, “thinn[ing] out” the climbing routes, and, “[a]fter determining that the . . . patches created tripping hazards,” using the mats and monitoring their positioning. In Momentum’s view, these steps [**8] demonstrate that it took at least slight care and was not utterly indifferent to the consequences that could result from a failure to take care.
[*P15] Howe acknowledges that Momentum took these steps, but argues they were inadequate. He further asserts that Momentum’s use of the pads to cover the defective flooring concealed the risk and rendered the climbers “defenseless against the dangerous conditions known to Momentum,” and claims that his “inability to see the dangerous flooring over which he was climbing contributed to his injuries.” At oral argument before this court, Howe argued this concealment “dramatically magnified” the risk of harm.
[*P16] We note the tension between our supreme court’s recent articulation of the elements of gross negligence as “the failure to observe even slight care,” Penunuri, 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified), and the language of a subsequent paragraph suggesting that “the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff,” id. ¶ 37. We can envision situations in which the straightforward application of the elements identified [**9] in paragraph 35 might dictate a grant of summary judgment in favor of the defendant while the application of the elements identified in paragraph 37 might dictate the denial of summary judgment. But we need not explore this tension further here because Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent, even assuming that paragraph 35 sets forth the correct formulation of the elements of gross negligence.
[*P17] Although Momentum took certain steps to remedy the problem created by the deterioration of the foam padding, injury incidents continued to occur even after implementation of Momentum’s injury-avoidance strategy. HN5[
] It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence, one sufficient to withstand summary judgment. See id. ¶ 16 (“Summary judgment dismissing a gross negligence claim is appropriate where reasonable minds could only conclude that the defendant was not grossly negligent under the circumstances . . . .”). We cannot see much of a distinction [**10] between that situation and the case Howe brings here: a defendant takes some action in response to injury incidents, and therefore arguably demonstrates slight care in the beginning, but takes no additional action after injury incidents continue to occur following implementation of its original strategy. Stated another way, we are not persuaded that a defendant who simply relies on a repeatedly-failed strategy to avert injury from a known risk is entitled to judgment as a matter of law on the “slight care” question.
[*P18] In this case, five incidents, some of which involved injuries, motivated Momentum to take steps to address the problem and ultimately to place mats over the cracked foam padding. These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding. But by the time Howe was injured, eight more injuries had been reported to Momentum, even after it had thinned the routes and put down the extra pads. These eight additional climbers were injured in roughly the same manner as Howe: when they dropped from the bouldering wall [**11] onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.
[*P19] Because a reasonable finder of fact could determine, on this record, that Momentum was grossly negligent, the district court’s denial of summary judgment was appropriate.
II. Expert Testimony
[*P20] HN6[
] The Utah Rules of Evidence allow “a witness who is qualified as an expert by knowledge, skill, experience, training, or education” to “testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Furthermore, “[s]cientific, technical, or other specialized knowledge may serve as the basis for expert testimony only if there is a threshold showing that the principles or methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (3) have been reliably applied to the facts.” Id. R. 702(b).
[*P21] Momentum argues the district court [**12] abused its discretion in denying its motion to exclude Expert. First, it contends Expert’s experience as an engineer did not qualify him to testify as to the applicable standard of care in the indoor-climbing industry. Second, Momentum contends that, because Expert did not evaluate or test vinyl floor padding or the mats used to cover the damaged areas, Expert’s opinions did not meet the reliability standard imposed by rule 702 of the Utah Rules of Evidence.
[*P22] But as Howe points out, Expert’s training as a professional engineer with experience in “forensic engineering and accident analysis in recreational settings,” “slip and fall accident analysis,” and “warnings, design, and standard of care issues” qualifies him to assist the finder of fact in making a determination of the standard of care in the indoor-climbing industry.
[*P23] Expert’s proposed testimony is that Momentum acted with indifference toward the safety of its members when it placed mats over the damaged padding; Expert opines that Momentum could have and should have taken alternative steps to mitigate the effects of the worn padding. As Howe points out, and the district court agreed, this testimony “will be helpful to the jury to understand the options Momentum had [**13] in addressing the damaged vinyl” and to avoid speculation regarding its options.
[*P24]
HN7[
] Further, as to reliability, Expert’s opinion is based “upon [his] engineering education, experience, and training” and “knowledge . . . gained from being a forensic engineer . . . and studying padding and other types of accidents.” In determining whether to allow an expert to offer an opinion, the district court’s role is that of a “gatekeeper,” meant “to screen out unreliable expert testimony.” Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 28, 269 P.3d 980 (quotation simplified). The court is afforded “broad discretion” when making this determination, and we “will reverse its decision only when it exceeds the bounds of reasonability.” Id. ¶ 31 (quotation simplified). Here, the court’s determination that Expert’s opinion was sufficiently reliable does not “exceed[] the bounds of reasonability,” and we decline to reverse it. See id. (quotation simplified). Expert’s opinion meets the threshold showing of reliability and “will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Therefore the district court did not abuse its discretion in denying Momentum’s motion to exclude his testimony.
CONCLUSION
[*P25] Because there are material facts in [**14] dispute, the district court properly denied Momentum’s summary judgment motion. Furthermore, the court did not abuse its discretion in denying Momentum’s motion to exclude Expert. We affirm the district court’s rulings on these points and remand for further proceedings.
Illinois upholds release stopping a claim for injury from bouldering at defendant North Wall.
Posted: November 18, 2019 Filed under: Assumption of the Risk, Climbing Wall, Illinois, Release (pre-injury contract not to sue) | Tags: activities, Ankle, Bouldering, Bouldering Gym, Bouldering Line, Bouldering Wall, Climbers, Climbing, Climbing Wall Association, Customers, CWA, deposition, Employees, exculpatory, facilities, Falling, feet, floor, Gym, Harness, height, injuries, jumped, Manual, mat, North Wall, North Wall Incl, Open & Obvious, Open and Obvious, Open and Obvious Doctrine, parties, rock, rope, Summary judgment, trained, Trial court, video, waiver form, wanton conduct, willful, Willful and Wanton Leave a commentHowever, defendant climbing wall admitted it had not followed its own procedures or Climbing Wall Association manual with the plaintiff, law in Illinois saved defendant.
Cizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320
State: Illinois, Appellate Court of Illinois, Second District
Plaintiff: Patricia Cizek
Defendant: North Wall, Inc., d/b/a North Wall Rock Climbing Gym
Plaintiff Claims: Negligence & Willful & Wanton Negligence
Defendant Defenses: Open & Obvious & Release
Holding: For the Defendant
Year: 2018
Summary
Plaintiff was boulder for the first time and not given the normal or required introduction at the bouldering gym. She fell off the wall and missed a crash pad breaking her ankle. Court held the release she signed stopped her lawsuit.
Facts
On February 14, 2013, she attended respondent’s gym with Kosinski, a coworker. She characterized Kosinski as a “good climber, experienced.” Kosinski told her climbing was one of his hobbies. She did not think climbing would involve any risk because “[k]ids were doing it.” Further, climbing occurred at a gym, which she viewed as a “safe zone.” Also, based on what she saw on television, she believed she would be using a harness. She and Kosinski did not consume any alcohol prior to arriving at North Wall, and she was not taking any medication at the time.
When they arrived, Kosinski paid the fee. Plaintiff signed and returned a waiver form. Kosinski had climbed at North Wall before. At the time, plaintiff did not know whether Kosinski was a member at North Wall, though she later learned that he had been at the time she was injured. Plaintiff acknowledged that she did, in fact, read and understand the waiver form. She did not look at the back of the form, but she recalled that she was given only one sheet of paper. She was provided with a pair of climbing shoes.
When she first arrived, she observed “children in harnesses with ropers.” There were two large green pads that covered most of the floor. Plaintiff did not recall seeing any bulletin boards or posters. She also did not recall seeing a black line running “continuously around the parameter [sic] of the climbing wall.” At the time of the deposition, she was aware that such a line existed. Beyond signing the waiver when she arrived, she had no further interaction with respondent’s staff. Plaintiff reviewed a number of pictures of the facility and testified that it had changed since her accident. She also identified a photograph taken in October 2013 that showed where she was injured.
She and Kosinski then proceeded to the climbing wall. She asked, “What about my harness?” Kosinski said that harnesses were “more trouble than they were worth.” Plaintiff stated that she “kind of was dumbfounded.” Plaintiff proceeded to climb without a harness. Kosinski went first. He told her to follow some yellow markers, as they were for beginners. While she watched Kosinski, she did not see a black, horizontal line on the wall. Prior to climbing, Kosinski placed a mat below the area in which he intended to climb. Plaintiff found climbing “very difficult,” explaining that “[y]ou use your core.” Plaintiff would “shimmy” down when she got “sore.” She added, “[i]ts tough work getting up there, so I need[ed] to get down.” She would jump down from two to three feet off the ground. Plaintiff made three or four climbs before she was injured.
Large green mats covered almost the entire floor of the gym. There were also smaller black mats that could be placed in different locations by climbers. Kosinski was not near plaintiff when she was injured. Before being injured, plaintiff had moved to a new climbing area. She placed a black mat where she planned on climbing. A green mat also abutted the wall in that area. The black mat was three to six inches away from the wall.
Plaintiff was injured during her third attempt at climbing that day, and she did not feel comfortable climbing. She explained that she was not wearing a harness, but was trying to do her best. There was a part of the floor that was not covered by a green mat in this area, which is where plaintiff landed when she was injured. Plaintiff stated she jumped off the wall and when she landed, her right foot was on a green mat, but her left foot landed on the uncovered floor. She felt pain in her left ankle and could not put weight on it. Kosinski and an employee came over to assist plaintiff. Kosinski got plaintiff some ibuprofen. Plaintiff felt “a little dizzy.” An employee called the paramedics. The paramedics stated that plaintiff’s ankle was broken. They assisted plaintiff to Kosinski’s car, and he drove her to St. Alexius hospital. At the hospital, they x-rayed plaintiff’s ankle and confirmed that it was broken. She was given some sort of narcotic pain killer, and her ankle was placed in a cast. Plaintiff was discharged and told to follow up with an orthopedic surgeon.
She followed up with Dr. Sean Odell. Odell performed a surgery six days after the accident. He installed eight pins and a plate. Plaintiff had broken both leg bones where they intersect at the ankle. She took Norco for months following the surgery. She engaged in physical therapy for years, including what she did at home. The hardware was removed in December 2013. Her ankle continues to be stiff, she has trouble with many activities, and she takes ibuprofen for pain several times per week.
The court also went through a litany of issues the defendant climbing gym did not do with the plaintiff.
Novice climbers were supposed to sign a waiver and view a video. Spencer trained Cipri [gym manager] to go over “any and all safety procedures” with new climbers.
There was no manual on “how to run North Wall,” but there was an “unofficial manual” kept on the front desk. This was comprised of a couple of binders that concerned how to teach climbing, use of the telephone, memberships, employee conduct, and various rules. He did not recall anything specific relating to dealing with novice climbers. There was a copy of the Climbing Wall Association manual in a file-cabinet drawer; however, he never used it for anything. Cipri did not recall Spencer [gym owner] instructing him to use this manual. Spencer did train employees on climbing, particularly new hires. Cipri described Spencer as an “absentee” manager.” He would come in early in the day, and Cipri typically would not see him.
Aside from ascertaining a customer’s age and climbing experience, they did nothing else to assess his or her proficiency. They would show new climbers a video and explain the rules of the gym to them. Cipri could not say whether a copy of a manual shown to him was the manual they were actually using when he worked for respondent. However, he stated various forms shown to him, including one concerning bouldering orientation, were not used when he was there. Spencer never told Cipri to get rid of any document; rather, he was adamant about keeping such material. Weekly inspections of the premises were conducted, but no records documenting them were maintained.
One document stated, “If the facility allows bouldering, the staff provides an orientation before novice climbers are allowed to boulder without assistance or direct supervision.” Cipri testified that this was not generated by respondent, but they followed it. Employees working the counter were trained to have new customers watch a video, instruct them on safety procedures, and assess their abilities. To the left of the front door, posters from the Climbing Wall Association were displayed. There was also one near the back door. Cipri did not remember what they were about beyond that they concerned “stable rules” of the Climbing Wall Association.
On redirect-examination, Cipri agreed that beyond verbal questioning, they did not test new customers. They did not “inspect or observe climbers while they were actually climbing to determine competency.” They did “orientate climbers” and show them the video. Further, new climbers read the waiver forms. Climbers were instructed on general and bouldering safety rules. Cipri was aware of an earlier incident where a young boy cut his head while climbing. Cipri stated that it was arguable that climbing with a rope was more dangerous than bouldering because a person could get tangled in the rope. Cipri did not give plaintiff an orientation, and he had no recollection of anyone giving her one.
Employees were instructed to follow the policies of the Climbing Wall Association. If an employee did not spend time with a new customer “explaining the policies and procedures of bouldering, that would be a violation of company policy.” This is true even if the new customer is accompanied by a more experienced climber.
Obviously, the defendant gym failed to follow its own rules or the rules and ideas of the CWA that the gym, in the court’s mind, had adopted.
Analysis: making sense of the law based on these facts.
The court first looked at the issue that falling was an open and obvious risk.
In Illinois, obvious dangers include fire, drowning in water, or falling from a height.”). Thus, for the purpose of resolving this appeal and in the absence of evidence to the contrary, we will presume that plaintiff was aware that falling off the climbing wall presented certain obvious dangers.
The court moved on to review release law in Illinois. Illinois supports the use of releases, unless the contract is between parties with unequal bargaining power, violates public policy or there is a special relationship between the parties.
Absent fraud or willful and wanton negligence, exculpatory agreements of this sort are generally valid. An agreement may be also vitiated by unequal bargaining power, public policy considerations, or some special relationship between the parties; however, such issues are not present here. This court has previously explained that “[a]n exculpatory agreement constitutes an express assumption of risk insofar as the plaintiff has expressly consented to relieve the defendant of an obligation of conduct toward him [or her].
When written the release must be expressed in clear, explicit an unequivocal language. The release must also be written in a way that both parties to the contract intended to apply to the conduct of the defendant which caused the harm to the plaintiff. However, the release must not be written precisely to cover the exact conduct or exact harm.
Thus, an exculpatory agreement will excuse a defendant from liability only where an “injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.” The foreseeability of the danger defines the scope of the release.
The court found the language “…arising out of or in any way related to [her] use of the climbing gym, whether that use is supervised or unsupervised, however, the injury or damage is caused.” w sufficient to the injury the plaintiff received based on the conduct (or lack of conduct in this case) of the defendant.
The court held “In sum, the release, here is clear, pertains to use of defendant’s climbing gym, and is broad enough to encompass falling or jumping from the climbing wall.”
The court then reviewed the willful and wanton claims of the plaintiff. The court described willful and wanton as “”Conduct is “willful and wanton” where it involves a deliberate intention to harm or a conscious disregard for the safety of others. It is an “aggravated form of negligence.”
The plaintiff argued that failing to follow the defendant bouldering gym’s own policies or evaluate her abilities was proof of willful and wanton conduct. She also pointed out the defendant failed to tell her not to climb above the bouldering line.
Quickly, the court determined the plaintiff had not pled or provided any facts to support her willful and wanton claims. Even if the defendant had followed its own policies, the plaintiff could not show that would have prevented her injuries. Falling at a height above the bouldering line is an open and obvious risk so failing to tell the plaintiff not to climb high is not relevant.
The risk of falling is open and obvious and none of the arguments made by the plaintiff as to the defendants actions overcame that doctrine.
So Now What?
It is great that Illinois supports the use of releases. Even in a case where the defendant failed to follow its own policies or the “manual” of the trade association it belonged to. Even better the court did not find the CWA manual or the defendant’s failure to follow its policies as an issue that could over come the release.
However, from the court’s writing, it is obvious, that the open and obvious doctrine was the most persuasive in supporting both the release and ignoring the defendant’s actions or lack of action.
What do you think? Leave a comment.
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climbing, bouldering, gym, climbers, rope, mat, trained, exculpatory, employees, falling, rock, customers, willful, floor, trial court, facilities, harness, ankle, feet, summary judgment, waiver form, height, wanton conduct, jumped, manual, video, activities, deposition, injuries, parties
Cizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320
Posted: November 15, 2019 Filed under: Climbing Wall, Illinois, Legal Case, Release (pre-injury contract not to sue) | Tags: activities, Ankle, Bouldering, Bouldering Gym, Climbers, Climbing, Climbing Gym, Climbing Wall, Climbing Wall Association, Customers, CWA, deposition, Employees, exculpatory, facilities, Falling, feet, floor, Gym, Harness, height, Illinois, injuries, jumped, Manual, mat, North Wall, North Wall Inc., parties, rock, rope, Summary judgment, trained, Trial court, video, waiver form, wanton conduct, willful Leave a commentCizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320
Appellate Court of Illinois, Second District
March 2, 2018, Order Filed
No. 2-17-0168-U
Notice: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).
Prior History:
[**1] Appeal from the Circuit Court of McHenry County. No. 15-LA-56. Honorable Thomas A. Meyer, Judge, Presiding.
Judges: PRESIDING JUSTICE HUDSON delivered the judgment of the court. Justices Schostok and Spence concurred in the judgment.
PRESIDING JUSTICE HUDSON delivered the judgment of the court.
Justices Schostok and Spence concurred in the judgment.
ORDER
[*P1] Held: Plaintiff validly waived any cause of action stemming from defendant‘s alleged negligence and failed to identify facts from which willful and wanton conduct could be inferred; therefore, trial court‘s grant of summary judgment was proper.
[*P2]
I. INTRODUCTION
[*P3]
Plaintiff, Patricia Cizek, appeals an order of the circuit court of McHenry County granting summary judgment in favor of defendant, North Wall, Inc. (doing business as North Wall Rock Climbing Gym). For the reasons that follow, we affirm.
[*P4]
II. BACKGROUND
[*P5]
Defendant operates an indoor rock climbing gym; plaintiff was a customer at the gym when she was injured. Plaintiff and a friend, Daniel Kosinski, attended the gym. Plaintiff had never been climbing before. At some point, after having been climbing for a while, plaintiff became tired and jumped down or fell from the climbing [**2]
wall. Plaintiff‘s right foot landed on a mat, but her left foot landed on the floor. Plaintiff‘s left ankle broke.
[*P6]
In her deposition (taken December 23, 2015), plaintiff testified as follows. She stated that she had been a member of a health club for 10 years, where she primarily swam and did yoga. Prior to February 14, 2013, plaintiff had no experience rock climbing or bouldering, though she had observed people rock climbing in the past. She agreed that she understood that rock climbing involved being at a height higher than the ground.
[*P7]
On February 14, 2013, she attended respondent‘s gym with Kosinski, a coworker. She characterized Kosinski as a “good climber, experienced.“ Kosinski told her climbing was one of his hobbies. She did not think climbing would involve any risk because “[k]ids were doing it.“ Further, climbing occurred at a gym, which she viewed as a “safe zone.“ Also, based on what she saw on television, she believed she would be using a harness. She and Kosinski did not consume any alcohol prior to arriving at North Wall, and she was not taking any medication at the time.
[*P8]
When they arrived, Kosinski paid the fee. Plaintiff signed and returned a waiver form. Kosinski [**3]
had climbed at North Wall before. At the time, plaintiff did not know whether Kosinski was a member at North Wall, though she later learned that he had been at the time she was injured. Plaintiff acknowledged that she did, in fact, read and understand the waiver form. She did not look at the back of the form, but she recalled that she was given only one sheet of paper. She was provided with a pair of climbing shoes.
[*P9]
When she first arrived, she observed “children in harnesses with ropers.“ There were two large green pads that covered most of the floor. Plaintiff did not recall seeing any bulletin boards or posters. She also did not recall seeing a black line running “continuously around the parameter [sic] of the climbing wall.“ At the time of the deposition, she was aware that such a line existed. Beyond signing the waiver when she arrived, she had no further interaction with respondent‘s staff. Plaintiff reviewed a number of pictures of the facility and testified that it had changed since her accident. She also identified a photograph taken in October 2013 that showed where she was injured.
[*P10]
She and Kosinski then proceeded to the climbing wall. She asked, “What about my harness?“ Kosinski [**4]
said that harnesses were “more trouble than they were worth.“ Plaintiff stated that she “kind of was dumbfounded.“ Plaintiff proceeded to climb without a harness. Kosinski went first. He told her to follow some yellow markers, as they were for beginners. While she watched Kosinski, she did not see a black, horizontal line on the wall. Prior to climbing, Kosinski placed a mat below the area in which he intended to climb. Plaintiff found climbing “very difficult,“ explaining that “[y]ou use your core.“ Plaintiff would “shimmy“ down when she got “sore.“ She added, “[i]ts tough work getting up there, so I need[ed] to get down.“ She would jump down from two to three feet off the ground. Plaintiff made three or four climbs before she was injured.
[*P11]
Large green mats covered almost the entire floor of the gym. There were also smaller black mats that could be placed in different locations by climbers. Kosinski was not near plaintiff when she was injured. Before being injured, plaintiff had moved to a new climbing area. She placed a black mat where she planned on climbing. A green mat also abutted the wall in that area. The black mat was three to six inches away from the wall.
[*P12]
Plaintiff was injured [**5]
during her third attempt at climbing that day, and she did not feel comfortable climbing. She explained that she was not wearing a harness, but was trying to do her best. There was a part of the floor that was not covered by a green mat in this area, which is where plaintiff landed when she was injured. Plaintiff stated she jumped off the wall and when she landed, her right foot was on a green mat, but her left foot landed on the uncovered floor. She felt pain in her left ankle and could not put weight on it. Kosinski and an employee came over to assist plaintiff. Kosinski got plaintiff some ibuprofen. Plaintiff felt “a little dizzy.“ An employee called the paramedics. The paramedics stated that plaintiff‘s ankle was broken. They assisted plaintiff to Kosinski‘s car, and he drove her to St. Alexius hospital. At the hospital, they x-rayed plaintiff‘s ankle and confirmed that it was broken. She was given some sort of narcotic pain killer, and her ankle was placed in a cast. Plaintiff was discharged and told to follow up with an orthopedic surgeon.
[*P13]
She followed up with Dr. Sean Odell. Odell performed a surgery six days after the accident. He installed eight pins and a plate. Plaintiff [**6]
had broken both leg bones where they intersect at the ankle. She took Norco for months following the surgery. She engaged in physical therapy for years, including what she did at home. The hardware was removed in December 2013. Her ankle continues to be stiff, she has trouble with many activities, and she takes ibuprofen for pain several times per week.
[*P14]
On cross-examination, plaintiff stated that she read the wavier form before she signed it (though, she added, she did not “study“ it). Other climbers were climbing without ropes, and the only people she saw using ropes were children. She was not offered a rope or harness. Plaintiff still takes prescription pain killers on occasion. However, she does not like to take it due to its side effects.
[*P15]
A discovery deposition of Daniel Kosinski was also conducted. He testified that he knew plaintiff from work. She was a travel agent that did “all the travel arrangements for [his] company.“ He and plaintiff were friends, though they do not associate outside of work.
[*P16]
Kosinski stated that rock climbing is one of his hobbies. He started climbing in 2008. He initially climbed at Bloomingdale Lifetime Fitness. They eventually offered him a job, and [**7]
he worked there for four or five years. His title was “[r]ock wall instructor.“ He described bouldering as climbing without a rope. He stated that it “is a little more intense.“ Generally, one climbs at lower levels, and there are mats, as opposed to ropes, for protection. He added that “[t]here‘s not really much instruction [to do] in terms of bouldering.“ He explained, “bouldering, there‘s just—okay, this is how high you can go and that‘s pretty much it.“ There was no bouldering line at Lifetime Fitness. However, they did have a rule that you should not climb above the height of your shoulders. A spotter is not typically required when bouldering.
[*P17]
He and plaintiff went to North Wall on February 14, 2013. He was a member and had been there “multiple times“ previously. When he first went to North Wall, he signed a waiver and viewed a video recording that concerned safety. Due to height considerations, Kosinski characterized North Wall as “pretty much a dedicated bouldering gym.“ North Wall offers top rope climbing, which Kosinski said was often used for children‘s parties.
[*P18]
Kosinski believed he was aware that plaintiff did not have any climbing experience prior to their trip to North [**8]
Wall. He could not recall whether there were any safety posters displayed. He and plaintiff had a conversation about the risks involved in rock climbing. He also explained to her what bouldering entailed and that a rope was not used. He noted that plaintiff was “shaky“ or “nervous“ on her first climb. Kosinski told plaintiff that if she was not comfortable, she should come down. He did not recall a bouldering line at North Wall and believed it was permissible to climb all the way to the top when bouldering. He did not recall whether plaintiff had been provided with climbing shoes. Plaintiff was in better than average physical condition.
[*P19]
When plaintiff was injured, she was climbing on a wall called Devil‘s Tower. It was toward the back, right of the facility. During the climb on which plaintiff was injured, Kosinski observed that plaintiff was “stuck“ at one point and could not figure out what to do next. He walked over to assist her. She was four or five feet off the ground. Plaintiff‘s left foot and hand came off the wall, and her body swung away from the wall (counterclockwise). She then fell and landed on the edge of a mat. Kosinski stated she landed “half on the mat“ and was rotating [**9]
when she landed. After plaintiff landed, Kosinski went over to check on her. Plaintiff said she believed she had broken her ankle. He did not know whether plaintiff had applied chalk to her hands before, nor did he recall what she was wearing. It did not appear that plaintiff had control of herself before she fell off the wall and injured herself. It also did not appear to him that plaintiff was attempting to get down from the wall or that she deliberately jumped.
[*P20]
Kosinski told an employee of respondent‘s to call the paramedics. Kosinski recalled an employee offering plaintiff ice. Plaintiff declined a ride to the hospital in an ambulance, and Kosinski drove her there instead.
[*P21]
Kosinski testified that he and plaintiff had never been romantically involved. He recalled that plaintiff used crutches following the injury and took some time off from work. According to Kosinski, she used crutches for “quite a while.“
[*P22]
On cross-examination, Kosinski explained that a spotter, unlike a belayer, only has limited control over a climber. A spotter “just direct[s] them to fall onto a mat and not hit their head.“ It would have been possible for plaintiff to use a rope while climbing (assuming one was [**10]
available). Kosinski stated that use of a rope might have prevented plaintiff‘s injury; however, it might also have caused another injury, such as plaintiff hitting her head on something. Kosinski agreed that he climbed twice a week or about 100 times per year. He did not recall an employee ever advising him about not climbing too high when bouldering. An automatic belayer might have lessened the force with which plaintiff landed and mitigated her injury. It was about 25 to 30 feet from the front desk to the place where plaintiff fell. The safety video new customers had to watch was about two minutes long. He did not observe plaintiff watching the video.
[*P23]
Prior to climbing, Kosinski told plaintiff that climbing was a dangerous sport and that they would be climbing without ropes. He did not recall any employee of respondent testing plaintiff with regard to her climbing abilities. After refreshing his recollection with various documents, Kosinski testified that they had been climbing for about half an hour when plaintiff was injured. He agreed that plaintiff was an inexperienced climber.
[*P24]
On redirect-examination, he confirmed that he was not present when plaintiff first checked in at North [**11]
Wall. He had no knowledge of what transpired between plaintiff and respondent‘s employees at that point.
[*P25]
Jason R. Cipri also testified via discovery deposition. He testified that he had been employed by respondent as a manager for two years, from 2012 to 2014. His immediate supervisor was Randy Spencer (respondent‘s owner). When he was hired in 2012, Cipri was trained on office procedures, logistics, how to deal with the cash register, where to put the mail, and the use of a computer system. He was also trained on dealing with customers. Cipri started climbing in 2000 and had worked for respondent for about a year around the time of plaintiff‘s injury.
[*P26]
Novice climbers were supposed to sign a waiver and view a video. Spencer trained Cipri to go over “any and all safety procedures“ with new climbers. Cipri was trained to “interact with the customers to decide and figure out their climbing ability.“ Three types of climbing occurred at North Wall: bouldering, top-rope climbing, and lead climbing (also known as sport climbing). Plaintiff was bouldering when she was injured. Bouldering does not involve the use of ropes. Cipri estimated about 90 percent (or at least the “vast majority“) of [**12]
the climbing at North Wall is bouldering. Cipri received very specific training regarding how to execute waiver forms. Customers were instructed to read the waiver form.
[*P27]
There was a “bouldering line“ on the climbing wall. People engaged in bouldering were not supposed to bring their feet above that line. The bouldering line is described in the waiver. However, Cipri explained, having a bouldering line is not common. He added, “We all kind of thought it was cute, but it didn‘t really serve a purpose.“
[*P28]
Cipri was working as a manager on the day plaintiff was injured. He recalled that an employee named Miranda, whom he called a “coach,“ came and told him that someone had been injured. He called the paramedics, as that was what plaintiff wanted. He brought plaintiff some ice. He described Kosinski (whom he initially called Eric) as a “pretty novice climber.“ Cipri did not know whether plaintiff was above the bouldering line when she fell. Plaintiff did not appear intoxicated or smell of alcohol. She did not appear to have any injuries besides the one to her ankle. Plaintiff would not have been allowed to use a rope because “you have to be certified and taken through a lesson to use the [**13]
ropes.“
[*P29]
To the left side of the customer-service counter, there were posters addressing “safety and such.“ Cipri filled out an accident report concerning plaintiff‘s injury. Cipri denied that he was terminated by respondent and that the owner ever accused him of using drugs on the job. There was no manual on “how to run North Wall,“ but there was an “unofficial manual“ kept on the front desk. This was comprised of a couple of binders that concerned how to teach climbing, use of the telephone, memberships, employee conduct, and various rules. He did not recall anything specific relating to dealing with novice climbers. There was a copy of the Climbing Wall Association manual in a file-cabinet drawer; however, he never used it for anything. Cipri did not recall Spencer instructing him to use this manual. Spencer did train employees on climbing, particularly new hires. Cipri described Spencer as an “absentee“ manager.“ He would come in early in the day, and Cipri typically would not see him.
[*P30]
Aside from ascertaining a customer‘s age and climbing experience, they did nothing else to assess his or her proficiency. They would show new climbers a video and explain the rules of the gym to them. [**14]
Cipri could not say whether a copy of a manual shown to him was the manual they were actually using when he worked for respondent. However, he stated various forms shown to him, including one concerning bouldering orientation, were not used when he was there. Spencer never told Cipri to get rid of any document; rather, he was adamant about keeping such material. Weekly inspections of the premises were conducted, but no records documenting them were maintained.
[*P31]
On cross-examination, Cipri stated that his sister had been hired to rewrite the operations manual. One document stated, “If the facility allows bouldering, the staff provides an orientation before novice climbers are allowed to boulder without assistance or direct supervision.“ Cipri testified that this was not generated by respondent, but they followed it. Employees working the counter were trained to have new customers watch a video, instruct them on safety procedures, and assess their abilities. To the left of the front door, posters from the Climbing Wall Association were displayed. There was also one near the back door. Cipri did not remember what they were about beyond that they concerned “stable rules“ of the Climbing [**15]
Wall Association.
[*P32]
Cipri did not witness plaintiff‘s accident, and he did not recall being present when she was checked in. He never had rejected a customer previously, but he had the authority to do so. He never encountered a situation where he felt it was necessary.
[*P33]
On redirect-examination, Cipri agreed that beyond verbal questioning, they did not test new customers. They did not “inspect or observe climbers while they were actually climbing to determine competency.“ They did “orientate climbers“ and show them the video. Further, new climbers read the waiver forms. Climbers were instructed on general and bouldering safety rules. Cipri was aware of an earlier incident where a young boy cut his head while climbing. Cipri stated that it was arguable that climbing with a rope was more dangerous than bouldering because a person could get tangled in the rope. Cipri did not give plaintiff an orientation, and he had no recollection of anyone giving her one.
[*P34]
Randall Spencer, respondent‘s owner, also testified via discovery deposition. Spencer testified that North Wall is “pretty much run by employees“ and he does not “have much of a role anymore.“ The business is run by a manager, Eric Paul. [**16]
Spencer did not have an independent recollection of plaintiff‘s accident. Cipri was the manager at the time. There was another manager as well named Chuck Kapayo, who Spencer described as co-managing with Cipri. Anything Spencer knew about plaintiff‘s accident he learned from Cipri or another employee named Terri Krallitsch. Usually, two people worked at any given time, although, sometimes, only one would be present.
[*P35]
Spencer identified the waiver form signed by plaintiff. However, he acknowledged that it was not the original. The purpose of the waiver was to inform a customer about the danger involved in rock climbing. Further, employees were “trained to talk about the rules and safety items when [customers] first come into the gym.“ In addition, there were posters, four of which were visible at the entrance. The posters were produced by the Climbing Wall Association as part of their Climb Smart Program. Spencer added that they say “[c]limbing is [d]angerous.“ One says “Bouldering is Dangerous Climb Smart.“ These were the only ways customers were informed of the dangers of rock climbing. Customers are not tested as to their climbing proficiency, and they are not trained unless they [**17]
sign up for a class. Customers were told not to climb above the bouldering line when bouldering.
[*P36]
Employees were instructed to follow the policies of the Climbing Wall Association. If an employee did not spend time with a new customer “explaining the policies and procedures of bouldering, that would be a violation of company policy.“ This is true even if the new customer is accompanied by a more experienced climber.
[*P37]
Spencer explained that bouldering is climbing without a rope. The bouldering line is a “little bit over three feet“ from the floor. Climbers were to keep their feet below the bouldering line. The accident report prepared by Cipri states plaintiff‘s feet were six feet off the floor when she fell. The only equipment provided by respondent to plaintiff was climbing shoes. Respondent could have provided a harness, and plaintiff could have been belayed. They did not provide chalk to plaintiff.
[*P38]
Spencer testified that the waiver form states that it “is not intended to provide a description of all risks and hazards.“ He explained that this means it is possible to get hurt in a manner not described in the waiver. There was no formal training program for employees. Managers trained [**18]
new employees, and managers themselves came to respondent already having climbing experience. In 2013, respondent had no auto-belay system in place. Spencer testified that he fired Cipri because of “suspected drug use.“
[*P39]
The released signed by plaintiff states, in pertinent part, as follows. Initially, it states that plaintiff is giving up any right of actions “arising out of use of the facilities of North Wall, Inc.“ Plaintiff then acknowledged that “the sport of rock climbing and the use of the facilities of North Wall, Inc., has inherent risks.“ It then states that plaintiff has “full knowledge of the nature and extent of all the risks associated with rock climbing and the use of the climbing gym, including but not limited to“ the following:
“1. All manner of injury resulting from falling off the climbing gym and hitting rock faces and/or projections, whether permanently or temporarily in place, or on the floor or loose. 2. Rope abrasions, entanglement and other injuries ***. 3. Injuries resulting from falling climbers or dropped items ***. 4. Cuts and abrasions resulting from skin contact with the climbing gym and/or the gym‘s devices and/or hardware. 5. Failure of ropes, slings, [**19]
harnesses, climbing hardware, anchor points, or any part of the climbing gym structure.“
Plaintiff then waived any cause of action “arising out of or in any way related to [her] use of the climbing gym whether that use is supervised or unsupervised, however the injury or damage is caused.“
[*P40]
The trial court granted summary judgment in favor of defendant. It noted that case law indicates that a competent adult recognizes the danger of falling from a height. It next observed that the waiver plaintiff signed stated that she was releasing defendant from “all manner of injury resulting from falling off the climbing gym.“ The trial court then rejected plaintiff‘s argument that this language was too general to be enforced. It further found that plaintiff had set forth no facts from which willful and wanton conduct could be inferred. This appeal followed.
[*P41]
III. ANALYSIS
[*P42]
We are confronted with two main issues. First is the effect of the waiver form signed by plaintiff. Second, we must consider whether plaintiff‘s count alleging willful and wanton conduct survives regardless of the waiver (an exculpatory agreement exempting liability for willful and wanton conduct would violate public policy (Falkner v. Hinckley Parachute Center, Inc., 178 Ill. App. 3d 597, 604, 533 N.E.2d 941, 127 Ill. Dec. 859 (1989))). [**20]
Plaintiff‘s brief also contains a section addressing proximate cause; however, as we conclude that the waiver bars plaintiff‘s cause of action, we need not address this argument.
[*P43]
A. THE WAIVER
[*P44]
The trial court granted summary judgment on all but the willful and wanton count of plaintiff‘s complaint based on plaintiff‘s execution of a waiver. As this case comes to us following a grant of summary judgment, our review is de novo. Bier v. Leanna Lakeside Property Ass‘n, 305 Ill. App. 3d 45, 50, 711 N.E.2d 773, 238 Ill. Dec. 386 (1999). Under the de novo standard of review, we owe no deference to the trial court‘s decision and may freely substitute our judgment for that of the trial court. Miller v. Hecox, 2012 IL App (2d) 110546, ¶ 29, 969 N.E.2d 914, 360 Ill. Dec. 869. Summary judgment is a drastic method of resolving litigation, so it should be granted only if the movant‘s entitlement to judgment is clear and free from doubt. Bier, 305 Ill. App. 3d at 50. It is appropriate only where “the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmovant, show that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law.“
Id. Finally, it is axiomatic that we review the result to which the trial court arrived at, rather than its reasoning. In re Marriage of Ackerley, 333 Ill. App. 3d 382, 392, 775 N.E.2d 1045, 266 Ill. Dec. 973 (2002).
[*P45]
Though we are not bound by the trial court‘s reasoning, [**21]
we nevertheless find ourselves in agreement with it. Like the trial court, we find great significance in the proposition that the danger of falling from a height is “open and obvious“ to an adult. Ford ex rel. Ford v. Narin, 307 Ill. App. 3d 296, 302, 717 N.E.2d 525, 240 Ill. Dec. 432 (1999); see also Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 448, 665 N.E.2d 826, 216 Ill. Dec. 568 (1996); Mount Zion Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 118, 660 N.E.2d 863, 214 Ill. Dec. 156 (1995) (“In Illinois, obvious dangers include fire, drowning in water, or falling from a height.“). Thus, for the purpose of resolving this appeal and in the absence of evidence to the contrary, we will presume that plaintiff was aware that falling off the climbing wall presented certain obvious dangers.
[*P46]
We also note that, in Illinois, parties may contract to limit the liability for negligence. Oelze v. Score Sports Venture, LLC, 401 Ill. App. 3d 110, 117, 927 N.E.2d 137, 339 Ill. Dec. 596 (2010). Absent fraud or willful and wanton negligence, exculpatory agreements of this sort are generally valid. Id. An agreement may be also vitiated by unequal bargaining power, public policy considerations, or some special relationship between the parties (Id.); however, such issues are not present here. This court has previously explained that “[a]n exculpatory agreement constitutes an express assumption of risk insofar as the plaintiff has expressly consented to relieve the defendant of an obligation of conduct toward him [or her].“
Falkner, 178 Ill. App. 3d at 602.
[*P47]
Agreements of this nature “must be expressed in clear, explicit [**22]
and unequivocal language showing that such was the intent of the parties.“
Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill. App. 3d 1037, 1043, 501 N.E.2d 268, 103 Ill. Dec. 247 (1986). That is, it must “appear that its terms were intended by both parties to apply to the conduct of the defendant which caused the harm.“
Id., (quoting Restatement (Second) of Torts, Explanatory Notes ‘ 496B, comment d, at 567 (1965)). Nevertheless, “The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract was entered into.“
Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 585, 559 N.E.2d 187, 147 Ill. Dec. 187 (1990). Thus, an exculpatory agreement will excuse a defendant from liability only where an “injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.“
Id. The foreseeability of the danger defines the scope of the release. Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 14, 377 Ill. Dec. 930, 2 N.E.3d 1211.
[*P48]
Numerous cases illustrate the degree of specificity required in an exculpatory agreement necessary to limit a defendant‘s liability for negligence. In Garrison, 201 Ill. App. 3d at 583, the plaintiff was injured when a weighted bar rolled off a grooved rest on a bench press and landed on his neck. The plaintiff alleged that the bench press was improperly designed and that the defendant-gym was negligent in providing it when it was not safe for its intended use. Id. [**23]
The plaintiff had signed an exculpatory agreement, which stated, inter alia:
“It is further agreed that all exercises including the use of weights, number of repetitions, and use of any and all machinery, equipment, and apparatus designed for exercising shall be at the Member‘s sole risk. Notwithstanding any consultation on exercise programs which may be provided by Center employees it is hereby understood that the selection of exercise programs, methods and types of equipment shall be Member‘s entire responsibility, and COMBINED FITNESS CENTER [sic] shall not be liable to Member for any claims, demands, injuries, damages, or actions arising due to injury to Member‘s person or property arising out of or in connection with the use by Member of the services and facilities of the Center or the premises where the same is located and Member hereby holds the Center, its employees and agents, harmless from all claims which may be brought against them by Member or on Member‘s behalf for any such injuries or claims aforesaid.“
Id. at 584.
The plaintiff argued that the agreement did not contemplate a release of liability for the provision of defective equipment. The trial court granted the defendant‘s motion [**24]
for summary judgment based on the exculpatory agreement.
[*P49]
The reviewing court affirmed. Id. at 586. It explained as follows:
“Furthermore, the exculpatory clause could not have been more clear or explicit. It stated that each member bore the ‘sole risk‘; of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the ‘entire responsibility‘ of the member.“
Id. at 585.
It further noted that the defendant “was aware of the attendant dangers in the activity and, despite the fact that plaintiff now alleges that the bench press he used was unreasonably unsafe because it lacked a certain safety feature, the injury he sustained clearly falls within the scope of possible dangers ordinarily accompanying the activity of weight-lifting.“
Id.
[*P50]
Similarly, in Falkner, 178 Ill. App. 3d at 603, the court found the following exculpatory clause exempted the defendant from liability following a parachute accident: “The Student exempts and releases the [defendant] *** from any and all liability claims *** whatsoever arising out of any damage, loss or injury to the Student or the Student‘s property while upon the premises or aircraft of the [defendant] or while [**25]
participating in any of the activities contemplated by this agreement.“ The plaintiff‘s decedent died during a parachute jump. The court placed some significance on the fact that the decedent had been a pilot in the Army Air Corp. Id.
[*P51]
Another case that provides us with some guidance is Oelze, 401 Ill. App. 3d 110, 927 N.E.2d 137, 339 Ill. Dec. 596. There, the plaintiff had signed an exculpatory agreement stating, “I hereby release SCORE Tennis & Fitness and its owners and employees from any and all liability for any damage or injury, which I may receive while utilizing the equipment and facilities and assume all risk for claims arising from the use of said equipment and facilities.“
Id. at 118. The plaintiff, who was playing tennis, was injured when she tripped on a piece of equipment that was stored behind a curtain near the tennis court she was using while she was trying to return a lob. Id. at 113. The plaintiff argued that this risk was “unrelated to the game of tennis“ and thus outside the scope of the release. Id. at 120. However, the court found that the broad language of the release encompassed the risk, relying on the plaintiff‘s agreement “to assume the risk for her use of the club‘s ‘equipment and facilities.‘”
Id.
[*P52]
Finally, we will examine Calarco, 149 Ill. App. 3d 1037, 501 N.E.2d 268, 103 Ill. Dec. 247. In that case, the plaintiff [**26]
was injured when weights from a “Universal“ gym machine fell on her hand. Id. at 1038. The trial court granted summary judgment based on an exculpatory clause. Id. at 1038-39. The clause read:
“‘In consideration of my participation in the activities of the Young Men‘s Christian Association of Metropolitan Chicago, I do hereby agree to hold free from any and all liability the [defendant] and do hereby for myself, *** waive, release and forever discharge any and all rights and claims for damages which I may have or which may hereafter accrue to me arising out of or connected with my participation in any of the activities of the [defendant].
I hereby do declare myself to be physically sound, having medical approval to participate in the activities of the [defendant].‘”
Id. at 1039.
The reviewing court reversed, finding that the language of the release was not sufficiently explicit to relieve the defendant from liability. Id. at 1043. It explained, “The form does not contain a clear and adequate description of covered activities, such as ‘use of the said gymnasium or the facilities and equipment thereof,‘ to clearly indicate that injuries resulting from negligence in maintaining the facilities or equipment would be covered by the release [**27] .” (Emphasis added.) Id.
[*P53]
In the present case, plaintiff waived any cause of action “arising out of or in any way related to [her] use of the climbing gym whether that use is supervised or unsupervised, however the injury or damage is caused.“ (Emphasis added.) This is remarkably similar to the language, set forth above, that the Calarco court stated would have been sufficient to shield the defendant in that case. Id. Likewise, in Garrison, 201 Ill. App. 3d at 585, the language that was found sufficient to protect the defendant stated that each member bore the ‘sole risk; of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the ‘entire responsibility‘ of the member.“ Again, identifying the activity involved along with an expressed intent to absolve the defendant from any liability prevailed. Here, the activity was clearly defined and plaintiff‘s intent to waive any cause related to that activity was clear. Furthermore, plaintiff‘s injury was of the sort that a participant in that activity could reasonably expect. As Oelze, 401 Ill. App. 3d at 120, indicates, language encompassing assumption of “the risk for her use of the club‘s ‘equipment and [**28]
facilities‘” is broad and sufficient to cover accidents of the sort that are related to the primary activity. See also Falkner, 178 Ill. App. 3d at 603. Here, falling or jumping off the climbing wall are things a climber can clearly expect to encounter.
[*P54]
Plaintiff cites Locke v. Life Time Fitness, Inc., 20 F. Supp. 3d 669 (N.D. Ill. 2014), a case from the local federal district court. Such cases merely constitute persuasive authority (Morris v. Union Pac. R.R. Co., 2015 IL App (5th) 140622, ¶ 25, 396 Ill. Dec. 330, 39 N.E.3d 1156); nevertheless, we will comment on it briefly. In that case, the plaintiff suffered a heart attack and died during a basketball game at a gym operated by the defendant. Id. at 671. There was an automatic defibrillator on site, but no employee retrieved it or attempted to use it. Id. The plaintiff had signed a waiver, which included the risk of a heart attack. Id. at 672. However, the waiver did not mention the defendant‘s failure to train its employees in the use of the defibrillator. Id. The Locke court held that by advancing this claim as a failure to train by the defendant, the plaintiff could avoid the effect of the waiver. Id. at 674-75.
[*P55]
We find Locke unpersuasive. Following the reasoning of Locke, virtually any claim can be recast as a failure to train, supervise, or, in some circumstances, inspect. Allowing such a proposition to defeat an otherwise valid exculpatory agreement [**29]
would effectively write such agreements out of most contracts. See Putnam v. Village of Bensenville, 337 Ill. App. 3d 197, 209, 786 N.E.2d 203, 271 Ill. Dec. 945 (2003) (“Limiting the disclaimer in the manner suggested by the plaintiffs would effectively write it out of the contract. Virtually every error in construction by a subcontractor could be recast and advanced against [the defendant] as a failure to supervise or inspect the project.“). Here, plaintiff promised to release defendant from any liability resulting from her use of the climbing wall. Moreover, we fail to see how providing additional training to employees would have impacted on plaintiff‘s perception of an obvious risk. Allowing her to avoid this promise in this manner would be an elevation of form over substance.
[*P56]
At oral argument, plaintiff relied heavily on the allegation that the spot where she landed was uneven due to the placement of mats in the area. As noted, one of plaintiff‘s feet landed on a mat and the other landed directly on the floor. According to plaintiff, the risk of landing on an uneven surface was not within the scope of the waiver she executed. This argument is foreclosed by two cases which we cite above. First, in Oelze, 401 Ill. App. 3d at 113, the plaintiff was injured while, during a game of tennis, she tripped on a piece [**30]
of equipment stored behind a curtain near the tennis court. This arguably dangerous condition was found to be within the scope of her waiver. Id. at 121-22. Furthermore, in Garrison, 201 Ill. App. 3d at 584, the plaintiff argued that an alleged defect in gym equipment rendered ineffective an exculpatory agreement which stated that the plaintiff “bore the ‘sole risk‘ of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the ‘entire responsibility‘ of the member.“
Id. at 585. In this case, assuming arguendo, there was some unevenness in the floor due to the placement of the floor mats, in keeping with Oelze and Garrison, such a defect would not vitiate plaintiff‘s waiver.
[*P57]
In sum, the release here is clear, pertains to use of defendant‘s climbing gym, and is broad enough to encompass falling or jumping from the climbing wall.
[*P58]
B. WILLFUL AND WANTON CONDUCT
[*P59]
In an attempt to avoid the effect of the exculpatory agreement, plaintiff also contends that defendant engaged in willful and wanton conduct. Conduct is “willful and wanton“ where it involves a deliberate intention to harm or a conscious disregard for the safety of others. In re Estate of Stewart, 2016 IL App (2d),151117 ¶ 72, 406 Ill. Dec. 345, 60 N.E.3d 896. It is an “aggravated [**31]
form of negligence.“
Id. Plaintiff contends that defendant should have followed its own policies and evaluated her abilities. However, plaintiff does not explain what such an evaluation would have shown or what sort of action it would have prompted one of defendant‘s employees to take that would have protected plaintiff from the injury she suffered. Plaintiff also points to defendant‘s failure to advise her not to climb above the bouldering line. As the trial court observed, the risk of falling from a height is “open and obvious“ to an adult. Ford ex rel. Ford, 307 Ill. App. 3d at 302. Plaintiff cites nothing to substantiate the proposition that failing to warn plaintiff of a risk of which she was presumptively already aware rises to the level of willful and wanton conduct. Indeed, how a defendant could consciously disregard the risk of not advising plaintiff of the dangers of heights when she was presumptively aware of this risk is unclear (plaintiff provides no facts from which an intent to harm could be inferred).
[*P60]
In short, the conduct identified by plaintiff simply does not show a willful and wanton disregard for her safety.
[*P61]
IV. CONCLUSION
[*P62]
In light of the foregoing, the judgment of the circuit court of McHenry County [**32]
is affirmed.
Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.
Posted: August 13, 2018 Filed under: Assumption of the Risk, Climbing Wall, New York, Release (pre-injury contract not to sue) | Tags: Advice, Affirmative Defense, amend, amusement, appreciated, Bouldering, Climb, Climbing, concealed, Dangerous Condition, Gym, instructional, leave to amend, mat, matting, Public Policy, reciprocal agreement, recreational, risk doctrine, rock, Rock climbing, Sport, Teaching, team, training, unaware, unreasonably, Void, wasn't, watching Leave a commentRelease 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.
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McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)
Posted: July 31, 2018 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: Advice, Affirmative Defense, amend, amusement, appreciated, assumption of the risk, Bouldering, Brooklyn Boulders, Climb, Climbing, Climbing Wall, concealed, Dangerous Condition, Gym, Indoor Climbing Wall, instructional, leave to amend, mat, Mats, matting, Public Policy, reciprocal agreement, recreational, Release, risk doctrine, rock, Rock climbing, Sport, Teaching, team, The Rock Club, training, unaware, unreasonably, Velcro, Void, wasn't, watching Leave a commentMcDonald 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???
Posted: February 12, 2018 Filed under: Assumption of the Risk, Climbing Wall, New York | Tags: Affirmation, assump-tion of risk, assumption of the risk, Bouldering, Bouldering Wall, CGA, Climb, climbed, climber, Climbing, Climbing Gym, Climbing Gym Association, Falling, false sense of security, feet, gym's, Harness, height, Indoor, Inherent Risk, instructor, mat, opined, Orientation, Padding, quotation, reply, rock, roommate, rope, skill, Sport, Spotter, spotting, Standards, Summary judgment, top, Trade association Leave a commentPlaintiff 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)
Posted: February 10, 2018 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, New York | Tags: Affirmation, Assumption of risk, assumption of the risk, Bouldering, Bouldering Wall, Climb, climbed, climber, Climbing, Climbing Wall, Falling, false sense of security, feet, gym's, Harness, height, Indoor, Inherent Risk, instructor, mat, opined, Orientation, Padding, quotation, reply, rock, roommate, rope, skill, Sport, Spotter, spotting, Summary judgment, top Leave a commentHo 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
Posted: January 4, 2016 Filed under: Assumption of the Risk, Climbing Wall, Pennsylvania | Tags: assumption of the risk, Belaying, Bouldering, Bouldering Mats, Climbing Wall, Gross negligence, Mats, Philly Rock Corp. Leave a commentRelease 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.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2015 Recreation Law (720) Edit Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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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.
Posted: February 23, 2015 Filed under: Climbing Wall, Connecticut, Release (pre-injury contract not to sue) | Tags: Bouldering, Climbing Wall, Connecticut, Hold, Padding, Release Leave a commentRelease 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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Copyright 2015 Recreation Law (720) Edit Law
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Lecuna v. Carabiners Fairfield, LLC, 2014 Conn. Super. LEXIS 2610
Posted: February 9, 2015 Filed under: Climbing Wall, Connecticut, Legal Case, Release (pre-injury contract not to sue) | Tags: Bouldering, Climbing Wall, Connecticut, Hold, Release Leave a commentLecuna v. Carabiners Fairfield, LLC, 2014 Conn. Super. LEXIS 2610
Isadora Machado Lecuna v. Carabiners Fairfield, LLC
FSTCV136017951S
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF STAMFORD-NORWALK AT STAMFORD
2014 Conn. Super. LEXIS 2610
October 23, 2014, Decided
October 23, 2014, Filed
NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
CORE TERMS: summary judgment, bouldering, climbing, loose, issue of material facts, minimized, genuine, matter of law, genuine issue, material fact, party opposing, question of fact, inherent risk, unresolved, staff member, falling, matting
JUDGES: [*1] Taggart D. Adams, Judge Trial Referee.
OPINION BY: Taggart D. Adams
OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (115.00)
I. Background
The plaintiff Isadora Lecuna has sued Carabiners, the owner and operator of a recreational climbing facility, alleging that she suffered injuries at the facility including a fractured foot and several tears of ligaments, tendons and muscles in her left knee and leg when she fell from a climbing wall that was allegedly unsafe due to the negligence of the defendant and its agents. At the time of injury, Lecuna was “bouldering” in one of the defendant’s bouldering caves. The defendant describes bouldering “as a type of climbing in which the individual climber is not affixed to any ropes or belaying harnesses.” Def. Memo., 1 Dkt. Entry 115.00. Among the allegations of negligence were that one of the climbing hold attachments on the wall turned or came loose, that an attendant was not present to break her fall, and that the surface she fell to was not cushioned.
Several months before the plaintiff’s fall she had signed an agreement with Carabiners waiving claims of liability and acknowledging the risks of participation at the Carabiners facility included: “Falling [*2] off the wall; loose and or damaged artificial holds . . . falling to the ground.” Carabiners has moved for summary judgment dismissing the complaint largely, as set forth in its memorandum, on the basis of this waiver and release. Lecuna has filed a memorandum of law, an affidavit and excerpts from her deposition transcript in opposition. Carabiners filed a reply memorandum and an affidavit of a purported expert.
II. Scope of Review
Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.” Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1985). ‘The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.” Appleton v. Board of Education, supra, 254 Conn. 209. “A material fact has been defined adequately and simply as [*3] a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The trial court, in the context of a summary judgment motion may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.” Maffucci v. Royal Park, Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998). “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” Appleton v. Board of Education, supra, 254 Conn. 209.
III. Discussion
The motion for summary judgment is denied for four reasons. First, there is a question of fact that the loose climbing handle on the bouldering wall that caused the plaintiff’s fall is an inherent risk of the plaintiff’s activity that should be legitimately assumed. The court is aware of the assertions in Carabiner’s papers that it is common in climbing [*4] gyms for holds to work loose and create a “spinner” or shifting hold, a condition that cannot be minimized by the exercise of due care. See Carabiner Memorandum, 2-3, 13 (Dkt. Entry 115.00); Robert Richards affidavit, ¶6 (Dkt. Entry 124.00). These conclusory statements are unsupported by any factual evidence. Moreover, the plaintiff has testified that the bouldering wall she fell from had just been opened to the public that day. Lecuna Memorandum, Exhibit C, 86, Dkt. Entry 123.00. Even if it were established that holds may turn or spin over time, it seems elementary that they should have been tested prior to opening day. In Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) the Connecticut Supreme Court described inherent risks as being beyond the control of the recreation area operator and not able to be minimized by the operator’s exercise of reasonable care. Id., 336 n.12. The court finds 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.
Second, there is evidence in the record that the Carabiner’s staff member assigned to “spotting” the plaintiff while she was on the wall had walked away from that post when the fall occurred and the [*5] staff member apologized to the plaintiff and admitted he should not have left. Pl. Memo., Exhibit C 110-11, 123. Third, there was evidence that the new bouldering area did not have the “thick” “gymnastics kind” of floor matting that existed in the older areas but only offered “carpeted concrete.” Id., 53. This circumstance also raises an unresolved fact question of whether the risk of bouldering could, or should, have been minimized by the additional fall protection afforded by more substantial matting.
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. See Hanks, supra, 276 Conn. 328. 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.
TAGGART D. ADAMS
JUDGE TRIAL REFEREE
Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153
Posted: August 31, 2014 Filed under: Alaska, Climbing Wall, Legal Case, Release (pre-injury contract not to sue) | Tags: AK, Alaska, Bouldering, Claire Donahue, Climbing Gym, Climbing Wall, Defendant, Donahue, Ledgends, Negligence, Plaintiff, Release, Rock Gym Leave a commentDonahue v. Ledgends, Inc., 2014 Alas. LEXIS 153
Claire A. Donahue, Appellant and Cross-Appellee, v. Ledgends, Inc. d/b/a Alaska Rock Gym, Appellee and Cross-Appellant.
Supreme Court Nos. S-14910/14929, No. 6932
SUPREME COURT OF ALASKA
2014 Alas. LEXIS 153
August 1, 2014, Decided
NOTICE:
THIS OPINION IS SUBJECT TO CORRECTION BEFORE PUBLICATION IN THE PACIFIC REPORTER. READERS ARE REQUESTED TO BRING ERRORS TO THE ATTENTION OF THE CLERK OF THE APPELLATE COURTS.
PRIOR HISTORY: [*1] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge. Superior Court No. 3AN-10-07305 CI.
CASE SUMMARY:
OVERVIEW: HOLDINGS: [1]-Plaintiff alleged injured party’s negligence claim failed because a release stated waived risks, used “negligence,” stated important factors in emphasized language, specifically disclaimed liability, did not imply safety standards conflicting with a release, was not contested on public policy grounds, and was not modified by advertising; [2]-The Uniform Trade Practices and Consumer Protection Act, AS 45.50.471 et seq., did not apply because conflicts with a personal injury claim barred assuming such a legislature intent, which “ascertainable loss of money or property” in AS 45.50.531(a) did not state; [3]-It was no clear error to find defendant gym waived Alaska R. Civ. P. 68 attorney’s fees because it only raised its offer of judgment when seeking fees under an indemnity clause, and only raised enhanced fees under Alaska R. Civ. P. 82, before its reconsideration motion.
OUTCOME: Judgment affirmed.
COUNSEL: Christine S. Schleuss, Law Office of Christine S. Schleuss, Anchorage, for Appellant and Cross-Appellee.
Tracey L. Knutson, Girdwood, for Appellee and Cross-Appellant.
JUDGES: Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
OPINION BY: MAASSEN
OPINION
MAASSEN, Justice.
I. INTRODUCTION
This case arises from an injury at a climbing gym. Claire Donahue broke her tibia during a class at the Alaska Rock Gym after she dropped approximately three to four-and-a-half feet from a bouldering wall onto the floor mat. Before class Donahue had been required to read and sign a document that purported to release the Rock Gym from any liability for participants’ injuries.
Donahue brought claims against the Rock Gym for negligence and violations of the Uniform Trade Practices and Consumer Protection Act (UTPA). The Rock Gym moved for summary judgment, contending that the release bars Donahue’s negligence claim. It also moved to dismiss the UTPA claims on grounds that the act does not apply to personal injury claims and that Donahue failed to state a prima facie [*2] case for relief under the act. Donahue cross-moved for partial summary judgment on the enforceability of the release as well as the merits of her UTPA claims. The superior court granted the Rock Gym’s motion and denied Donahue’s, then awarded attorney’s fees to the Rock Gym under Alaska Civil Rule 82.
Donahue appeals the grant of summary judgment to the Rock Gym; the Rock Gym also appeals, contending that the superior court should have awarded fees under Alaska Civil Rule 68 instead of Rule 82. We affirm the superior court on all issues.
II. FACTS AND PROCEEDINGS
Ledgends, Inc. does business as the Alaska Rock Gym, a private indoor facility that is open to the public. Its interior walls have fixed climbing holds and routes; for a fee, it provides classes and open gym or free climbing time. There are signs posted around the Rock Gym warning of the dangers of climbing, including falling; at her deposition Donahue did not dispute that the signs were there when she visited the gym.
Donahue had been thinking about trying rock climbing for several years, and she finally decided in March 2008 to attend a class at the Rock Gym called “Rockin’ Women.” She testified that she chose the class because she thought it could be tailored to specific [*3] skill levels, and because she “got the impression [from the advertisements] that that is the type of group it was, that it was a . . . safe way to learn to climb.” She also testified she understood that the essential risk of climbing is falling.
Donahue had no rock climbing experience, but she was an occasional runner and cyclist and had pursued other high-risk athletic activities such as kite-boarding. She had been a river guide on the Colorado River after college. She had engaged in physical occupations such as commercial fishing and construction. She testified that she understood the nature of risky activities and felt competent to decide about them for herself. In connection with other recreational activities, she had signed releases and waivers similar to the one she signed at the Rock Gym. She testified that she understood that parties who sign contracts generally intend to be bound by them.
When Donahue arrived at the Rock Gym for her first class, she was given a document entitled “Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement — Alaska Rock Gym.” She was aware of the document’s nature and general intent but testified that although [*4] she signed it voluntarily, she did not read it closely.
The release contains nine numbered sections on two single-spaced pages. There is also an unnumbered introductory paragraph; it defines the Rock Gym to include, among others, its agents, owners, participants, and employees, as well as “all other persons or entities acting in any capacity on its behalf.”
Section one of the release contains three paragraphs. The first recites the general risks of rock climbing, including injury and death, and explains that these risks are essential to the sport and therefore cannot be eliminated. The second paragraph lists about a dozen specific risks inherent in rock climbing, including “falling off the climbing wall,” “impacting the ground,” “the negligence of other[s],” and “my own negligence[,] inexperience, . . . or fatigue.” The third paragraph asserts that the gym and its instructors “seek safety, but they are not infallible.” It describes some errors instructors might make, including being ignorant of a participant’s abilities and failing to give adequate warnings or instructions. The final sentence in the third paragraph reads, “By signing this [release], I acknowledge that I AM ULTIMATELY RESPONSIBLE [*5] for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals, or activities.”
Section two begins, “I expressly agree and promise to accept and assume all the risks . . .”; it then highlights the voluntary nature of participation in Rock Gym activities.
Section three is the clause that releases the Rock Gym from liability (the releasing clause). It reads in full,
I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym’s] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].
The next six sections of the release address other issues: indemnification for attorney’s fees, certification that the participant is fit to climb, permission to provide first aid, permission to photograph for promotional purposes, the voluntariness of participation and signing the release, and jurisdiction for claims arising from the release.
The ultimate paragraph is printed in bold. It reads in part,
By signing this [*6] document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.
Finally, centered on the second page, in bold capital letters directly above the signature line, the release reads: “I HAVE HAD SUFFICIENT OPPORTUNITY TO READ THIS ENTIRE DOCUMENT. I HAVE READ AND UNDERSTOOD IT, AND I AGREE TO BE BOUND BY ITS TERMS.”
Donahue’s hand-printed name and the date appear on the first page of the release, and her initials are at the bottom of the page; her signature appears on the second page, along with her printed name, her contact information, and the date.
Donahue completed her first class on harnessed climbing on March 23, 2008, and returned for a second class on May 11. When class began she was told that the day’s focus would be on bouldering, or unharnessed climbing on low walls. She did not express any hesitation. She climbed for almost two hours, successfully ascending and descending a number of routes. [*7] During this time she saw other people drop from the wall without injury. After another successful ascent near the end of the lesson, she felt unable to climb down using the available holds. Her feet were somewhere between three and four-and-a-half feet from the ground. Her instructor suggested that she drop to the mat and told her to be sure to bend her knees. Donahue landed awkwardly and broke her tibia in four places. She was attended to immediately by Rock Gym personnel and a physician who happened to be present.
The Rock Gym had run various advertisements during the two years preceding Donahue’s accident, using a number of different slogans. One newspaper ad, running on at least three occasions, stated: “[T]the only safe place in town to hang out.” Another Rock Gym ad showed an adult bouldering and a child climbing while harnessed; its text contained the same slogan and added, in part, “Trust us, it still exists. . . . [E]very child in your family will be reminded of what it’s all about — friends and fun.” A third ad described climbing programs for everyone in the family and said, “[Y]ou have nothing to lose and everything to gain.” In an affidavit, Donahue testified she had read these ads.
Donahue [*8] sued the Rock Gym for negligent failure to adequately train and supervise its instructors. She alleged that the Rock Gym was liable for its employee’s negligent instruction to drop from the bouldering wall. She also alleged a violation of the Unfair Trade Practices and Consumer Protection Act, contending that the Rock Gym’s advertisements “misleadingly advertised [the gym] as a safe place where users of its services had nothing to lose and everything to gain.”
The Rock Gym moved for summary judgment on all of Donahue’s claims. She opposed the motion and cross-moved for partial summary judgment herself, arguing that the Rock Gym had violated the UTPA as a matter of law and that the release she had signed was null and void.
The superior court granted the Rock Gym’s motion and denied Donahue’s cross-motion. It then granted the Rock Gym, as prevailing party, partial attorney’s fees under Civil Rule 82(a)(3).
III. STANDARDS OF REVIEW
[HN1] We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact.1 In making this determination, we construe the facts in favor of the non-moving party.2 If the record fails to reveal a genuine factual dispute and the moving [*9] party was entitled to judgment as a matter of law, the trial court’s grant of summary judgment must be affirmed.3
1 Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013) (citing Yost v. State, Div. of Corps., Bus. & Prof’l Licensing, 234 P.3d 1264, 1272 (Alaska 2010)).
2 Id. (citing McCormick v. City of Dillingham, 16 P.3d 735, 738 (Alaska 2001)).
3 Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012).
[HN2] We decide questions of law, including statutory interpretation, using our independent judgment.4 We will adopt the most persuasive rule of law in light of precedent, reason, and policy.5 This requires us, when interpreting statutes, to “look to the meaning of the language, the legislative history, and the purpose of the statute.”6
4 Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska 2003).
5 ASRC Energy Servs. Power & Commc’ns, LLC v. Golden Valley Electric Ass’n, 267 P.3d 1151, 1157 (Alaska 2011).
6 Id.
[HN3] “A superior court’s determination whether waiver occurred is a question of fact that we review for clear error.”7
7 Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).
IV. DISCUSSION
A. The Release Is Enforceable And Bars Donahue’s Negligence Claims.
Three cases define Alaska law on pre-activity releases from liability.8 [HN4] These cases consistently state that such releases are not per se invalid;9 in each of the cases, however, we concluded that the release at issue did not bar the plaintiff’s claim.
8 Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991).
9 Kerr, 91 P.3d at 961-62 (noting that “under Alaska law pre-recreational exculpatory releases are held to a very high standard of clarity”); Moore, 36 P.3d at 631 (noting that “an otherwise valid release is ineffective when releasing a defendant from liability would violate public policy” (emphasis added)); Kissick, 816 P.2d at 191 (“A promise not to [*10] sue for future damage caused by simple negligence may be valid.” (quoting 15 Samuel Williston, A Treatise on the Law of Contracts § 1750A, at 143-45 (3d ed. 1972)); see also Mitchell v. Mitchell, 655 P.2d 748, 751 (Alaska 1982) (upholding provision not to sue in settlement agreement and noting that, “[a]s a matter of law, . . . a valid release of all claims will bar any subsequent claims covered by the release”).
Kissick v. Schmierer involved a plane crash that caused the deaths of all four people aboard.10 The three passengers had signed a covenant not to sue before they boarded the plane.11 They agreed in the release not to bring a claim “for any loss, damage, or injury to [their] person or [their] property which may occur from any cause whatsoever.”12 When the passengers’ surviving spouses filed wrongful death claims against the pilot, their claims were allowed to proceed despite the release.13 We ruled that [HN5] “[i]ntent to release a party from liability for future negligence must be conspicuously and unequivocally expressed.”14 We also held that a release must use the word “negligence” to establish the required degree of clarity, something the release in Kissick did not do.15 Further, since liability for “death” was not specifically disclaimed and the term “injury” [*11] was ambiguous, we held that the release did not apply to claims for wrongful death, construing it against the drafter.16
10 Kissick, 816 P.2d at 188.
11 Id. at 189.
12 Id.
13 Id.
14 Id. at 191 (citations omitted).
15 Id. (citing W.Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, at 483-84 (5th ed.1984) (footnotes omitted)).
16 Id. at 191-92.
The second case, Moore v. Hartley Motors, involved an injury during a class on driving all-terrain vehicles (ATVs).17 We first addressed whether the plaintiff’s signed release violated public policy.18 We noted that the type of service involved was neither essential nor regulated by statute;19 these factors, along with the voluntariness of the plaintiff’s participation, persuaded us that the defendants 20 had no “decisive advantage in bargaining strength.”21 We therefore held that the release did not violate public policy.22
17 36 P.3d 628, 629 (Alaska 2001).
18 Id. at 631-32.
19 Id. at 631-32 (noting that ATV riding is similar to parachuting, dirt biking, and scuba diving, for which releases have been upheld in other jurisdictions).
20 The defendants included the dealer that sold the plaintiff the ATV and referred her to the safety course, the ATV Safety Institute that developed the curriculum, and the individual instructor. Id. at 629.
21 Id. at 631-32.
22 Id.
We did decide, however, that the release did not conspicuously and unequivocally [*12] express an intent to release the defendants from liability for the cause of the exact injury that occurred — a rollover when the plaintiff drove over a big rock hidden in tall grass.23 The release covered the inherent risks of ATV riding, but we found that it also included “an implied and reasonable presumption that the course [was] not unreasonably dangerous.”24 We found there to be fact questions about whether “the course posed a risk beyond ordinary negligence related to the inherent risks of off-road ATV riding assumed by the release,” and we held that summary judgment for the defendants on the basis of the release was therefore improper.25
23 Id. at 632.
24 Id.
25 Id. at 633-34.
The third case, Ledgends, Inc. v. Kerr, involved the same rock gym as this case.26 It involved a similar injury as well, sustained when the plaintiff fell from a bouldering wall.27 Unlike Donahue, however, who landed squarely on the floor mat, the plaintiff in Kerr was allegedly injured when her foot slipped through the space between two floor mats.28 The plaintiff alleged the gym knew of the defect in the landing area but had failed to fix it.29
26 91 P.3d 960 (Alaska 2004).
27 Id. at 961.
28 Id.
29 Id.
The superior court, whose order we approved and attached as an appendix to our opinion, cited Kissick [*13] for the notion that a pre-activity release for tortious conduct must be “clear, explicit, and comprehensible in each of its essential details.”30 The superior court also noted the requirement that “such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the release.”31 With these principles in mind, the superior court pointed to language in the release that was problematic because it was internally inconsistent: the release stated that the gym would try to keep its facilities safe and its equipment in good condition, but it simultaneously disclaimed liability for actions that failed to meet such standards.32 The superior court construed this ambiguity against the drafter and held that the release was not valid as a bar to the plaintiff’s negligence claims, a holding we affirmed.33
30 Id. at 961-62 (quoting Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991)) (internal quotation marks omitted).
31 Id. at 962 (quoting Kissick, 816 P.2d at 191) (internal quotation marks omitted).
32 Id. at 963.
33 Id.
In this case, the superior court concluded that Kissick, Moore, and Kerr, considered together, meant that [HN6] “an effective liability release requires six characteristics.” We agree with the superior court’s formulation of the list:
(1) the risk being waived must [*14] be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language by using simple words and capital letters; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.
The superior court found that each of these characteristics was satisfied in this case, and again we agree.34
34 Donahue does not challenge the release on public policy grounds, so the fourth characteristic of a valid release is satisfied here. Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities. Kissick, 816 P.2d at 191 (“A promise not to sue for future damage caused by simple negligence may be valid.” (internal citations [*15] and quotation marks omitted)). The New Jersey Supreme Court, in a case involving claims against a health club, held that liability releases in gym cases do not violate public policy in part because gyms remain liable for their gross negligence or recklessness — levels of culpability not alleged in this case. Stelluti v. Casapenn Enters., 203 N.J. 286, 1 A.3d 678, 681 (N.J. 2010); see also City of Santa Barbara v. Super. Ct., 41 Cal. 4th 747, 62 Cal. Rptr. 3d 527, 161 P.3d 1095, 1102-03 (Cal. 2007) (surveying jurisdictions and concluding that “[m]ost, but not all” hold that releases of ordinary negligence in recreational activities do not violate public policy but “the vast majority of decisions state or hold that such agreements generally are void” if they attempt to release “aggravated misconduct” such as gross negligence).
1. The risks being waived (falling and instructor negligence) are specifically and clearly set forth.
[HN7] A conspicuous and unequivocal statement of the risk waived is the keystone of a valid release.35 Here, the release clearly and repeatedly disclosed the risk of the specific injury at issue: injury from falling while climbing. The following are excerpts from the Rock Gym’s release:
I specifically acknowledge that the inherent risks associated with rock climbing . . . include[], but [are] not limited to: falling off of the climbing wall, . . . impacting [*16] the ground . . . , general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant’s limits, . . . my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue . . . .
To the extent that the risk at issue is the risk of hitting the ground after falling (or dropping in what is essentially an intentional fall), the first characteristic of a valid release is satisfied by this language.
35 Kerr, 91 P.3d at 961; Moore v. Hartley Motors, Inc., 36 P.3d 628, 632 (Alaska 2001); Kissick, 816 P.2d at 191.
Rather than focusing on her injury, however, Donahue focuses on its alleged cause, which she argues was the negligent training and supervision of Rock Gym instructors and the consequently negligent instructions she was given. She claims that the release did not specifically and clearly set forth this risk, and that she was therefore unaware that she was waiving the right to sue for instructor negligence.
But the release did cover this risk. The first paragraph expressly incorporates “employees” into the definition of the entity being released. The release further warns that Rock Gym “instructors, [*17] employees, volunteers, agents or others . . . are not infallible” and that “[t]hey may give inadequate warnings or instructions.” In its on-site interactions with the public, the Rock Gym necessarily acts through its instructors and other employees; Donahue knew she would be taking a class and that classes require instructors. It would not be reasonable to conclude that the Rock Gym sought a release only of those claims against it that did not involve the acts or omissions of any of its employees, and we cannot construe the release in that way.36 We agree with the superior court’s conclusion that “the Release clearly expresses that it is a release of liability for the negligence of the releasor-participant, other participants, climbers, spotters or visitors, as well as [the Rock Gym’s] negligence, including [Rock Gym] employees.”
36 See Kahn v. E. Side Union High Sch. Dist., 31 Cal. 4th 990, 4 Cal. Rptr. 3d 103, 75 P.3d 30, 40 (Cal. 2003) (holding that “the risks associated with learning a sport may themselves be inherent risks of the sport. . . . [A]nd . . . liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student’s abilities” (internal citations and quotation marks omitted)).
Donahue also argues that [*18] she could not understand the risks involved due to the release’s appearance and presentation. However, even viewing the facts in the light most favorable to her, the record does not support her argument. Although Donahue did not carefully read the release before signing it,37 she was aware she was signing a liability release. She has signed a number of such documents in the past and was familiar with their general purpose. When asked to read the release at her deposition, she testified that she understood the pertinent risks it described. There is no reason to believe that she would have found it less comprehensible had she read it at the time she signed it.
37 [HN8] Failure to read a contract in detail before signing it is no defense to its enforceability. Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991).
2. The waiver of negligence is specifically set forth using the word “negligence.”
Kissick and Kerr both emphasize that a valid release from liability for negligence claims requires use of the word “negligence.”38 This requirement is met here.
38 Kerr, 91 P.3d at 961; Kissick, 816 P.2d at 191.
The Rock Gym’s release first lists negligence among the inherent risks of climbing (“the negligence of other climbers or spotters or visitors or participants” and “my own negligence”). It then provides: [*19] “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the Rock Gym].” (Emphasis added.) The phrase “any and all claims” is thus expressly defined to include claims for negligence.
Cases from other jurisdictions support the conclusion that the language in the Rock Gym’s release covers all of Donahue’s negligence claims. In Rosencrans v. Dover Images, Ltd., the plaintiff was injured on a motocross track after falling from his bike and being struck by two other riders.39 A California Court of Appeal concluded that the signed waiver releasing the track from liability for “any losses or damages . . . whether caused by the negligence of [the Releasees] or otherwise” precluded the plaintiff’s claim “for ordinary negligence as well as negligent hiring and supervision” of employees at the racetrack (though it did not release the track from liability for gross negligence — a claim not made here).40
39 192 Cal. App. 4th 1072, 122 Cal. Rptr. 3d 22, 27 (Cal. App. 2011).
40 Id. at 30. See also Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App. 2002) (“Negligent hiring, retention, and supervision claims are all simple negligence causes of action based on an [*20] employer’s direct negligence rather than on vicarious liability.” (citations omitted)).
In short, the requirement that a waiver of negligence be specifically set out using the word “negligence” is satisfied by the Rock Gym’s release.
3. The important factors are brought home to the releasor in clear, emphasized language with simple words and capital letters.
Donahue argues that although “negligence” is expressly mentioned and disclaimed in the release, its placement at the end of long sentences written in small font rendered its presence meaningless to her. Quoting a California case, she argues that when the risk of negligence is shifted, a layperson “should not be required to muddle through complex language to know that valuable, legal rights are being relinquished.”41 Donahue also cites New Hampshire and Washington cases in which the structure and organization of releases obscured the language that purported to shield the defendants from claims.42 These cases considered factors such as “whether the waiver is set apart or hidden within other provisions, whether the heading is clear, [and] whether the waiver is set off in capital letters or in bold type.”43 In one Washington case, a release [*21] was invalidated because the releasing language was in the middle of a paragraph.44
41 Conservatorship of the Estate of Link v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 158 Cal. App. 3d 138, 205 Cal. Rptr. 513, 515 (Cal. App. 1984).
42 See Wright v. Loon Mtn. Recreation Corp., 140 N.H. 166, 663 A.2d 1340, 1342 (N.H. 1995); Johnson v. UBAR, LLC, 150 Wn. App. 533, 210 P.3d 1021, 1023 (Wash. App. 2009).
43 Johnson, 210 P.3d at 1023 (citing Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (Wash. 1971)).
44 Baker, 484 P.2d at 407.
Fundamentally, Donahue argues that the Rock Gym’s release was so ambiguous and laden with legalese that she lacked any real ability to understand that she was agreeing to release the Rock Gym from the negligence of its instructors. She complains of the release’s “lengthy, small-printed, and convoluted” language which required a “magnifying glass and lexicon” to decipher. She points out that the clause purporting to release the Rock Gym from liability is not obvious or emphasized through bold print or capital letters. She testified at her deposition that she believed the waiver shielded the gym only “from frivolous lawsuits, from people blaming them for something that’s not their fault.”
It is true that the release’s text is small and the releasing clause is in the middle of the document toward the bottom of the first page. But the clauses addressing negligence do not appear to be “calculated to conceal,” as Donahue argues. Though not highlighted, they are in a logical place where they cannot be missed by someone who reads the release. The clause releasing the Rock Gym from liability is [*22] a single sentence set out as its own numbered paragraph, and it is not confusing or needlessly wordy.45 The inherent risks of climbing are enumerated in great detail but using ordinary descriptive language that is easy to understand.46 Several sentences are devoted to the role of the gym’s “instructors, employees, volunteers, agents or others,” stating that they “have difficult jobs to perform,” that they “seek safety, but they are not infallible,” and that they may “be ignorant of mine or another participant’s fitness or abilities” and “may give inadequate warnings or instructions.”
45 Paragraph 3 of the release reads: “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym’s] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].”
46 Paragraph 1 of the release lists the inherent risks of climbing as including “but . . . not limited to”:
falling off of the climbing wall, being fallen on or impacted by other participants, poor or [*23] improper belaying, the possibility that I will be jolted or jarred or bounced or thrown to and fro or shaken about while climbing or belaying, entanglement in ropes, impacting the ground and/or climbing wall, loose or dropped or damaged ropes or holds, equipment failure, improperly maintained equipment which I may or may not be renting from [the Rock Gym], displaced pads or safety equipment, belay or anchor or harness failure, general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant[‘s] limits, the negligence of other climbers or spotters or visitors or participants who may be present, participants giving or following inappropriate “Beta” or climbing advice or move sequences, mine or others’ failure to follow the rules of the [Rock Gym], my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue — some or all of which may diminish my or the other participants’ ability to react or respond.
Because [HN9] releases should be read “as a whole” in order to decide whether they “clearly [*24] notify the prospective releasor or indemnitor of the effect of signing the agreement,”47 we consider these provisions in the context of the entire document. Three other sections of emphasized text mitigate Donahue’s complaints about ambiguity and incomprehensibility. First, section one reads in part, “I AM ULTIMATELY RESPONSIBLE for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals or activities” (bold in original). This alone makes it clear to the reader that the Rock Gym, to the extent it is allowed to do so, intends to shift responsibility to the climber regardless of the actions of anyone else. Second, a final unnumbered paragraph, set out in bold letters, reads in part: “By signing this document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.” And finally, directly above the lines where Donahue entered her signature, her printed name, her contact [*25] information, and the date, the release reads, in bold and capital letters, “I HAVE READ AND UNDERSTOOD [THE RELEASE], AND I AGREE TO BE BOUND BY ITS TERMS.” If Donahue had read the release and found herself genuinely confused about any of its terms, she was prominently notified that she should inquire about it before signing.
47 Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991).
The New Hampshire case on which Donahue relies, Wright v. Loon Mountain Recreation Corp., examined the release in question to determine whether “a reasonable person in the position of the plaintiff would have understood that the agreement clearly and specifically indicated the intent to release the defendant from liability for its own negligence.”48 Applying that test here, we conclude that a reasonable person in Donahue’s position could not have overlooked or misunderstood the release’s intent to disclaim liability. Our case law’s third characteristic of a valid release is therefore satisfied.
48 140 N.H. 166, 663 A.2d 1340, 1343-44 (N.H. 1995); see also Johnson, 210 P.3d at 1021 (holding reasonable persons could disagree about the conspicuousness of the release provision in the waiver, and remanding for trial).
4. Regardless of whether falling and instructor negligence are inherent risks of rock climbing, the release specifically disclaims [*26] liability for them.
The fifth characteristic set forth by the superior court 49 is that “if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so.”50 This requirement stems from the release’s ill-defined scope in Moore; the injury that occurred — arguably caused by an unreasonably dangerous ATV training course — was not obviously included in the inherent risks of riding ATVs, which the signed release did intend to cover.51 Here, in contrast, the injury and its alleged causes are all expressly covered by the release, as explained above. Negligence claims are specifically contemplated, as are “falls,” “impact” with the ground, and “inadequate warnings or instructions” from Rock Gym instructors. Regardless of whether these are inherent risks of climbing, they are specifically covered by the release. This characteristic of a valid release is therefore satisfied.
49 As noted above, the fourth characteristic of a valid release — that it not violate public policy — is not at issue on this appeal. See supra note 34.
50 See Moore v. Hartley Motors, Inc., 36 P.3d 628, 633-34 (Alaska 2001).
51 Id.
5. The release does not represent or imply standards of safety or maintenance that [*27] conflict with an intent to release negligence claims.
The sixth characteristic of a valid release is that it does not imply standards of safety or maintenance that conflict with an intent to waive claims for negligence.52 The Rock Gym argues that nothing in the release confuses its purpose, unlike the release at issue in Kerr, which at least implicitly promised that equipment would be kept “in good condition.”53 We agree. In fact, far from providing assurances of safety, the release highlights the fallibility of the Rock Gym’s employees, equipment, and facilities, explicitly stating that the equipment may “fail,” “malfunction[,] or be poorly maintained” and that the staff is “not infallible,” may be ignorant of a climber’s “fitness or abilities,” and “may give inadequate warnings or instructions.”
52 See Ledgends, Inc. v. Kerr, 91 P.3d 960, 962-63 (Alaska 2004).
53 Id. at 963.
Donahue agrees that the release is not internally inconsistent, but she argues that the advertisements run by the Rock Gym had the same confounding impact on her understanding of it as the release’s language about equipment maintenance had in Kerr. She contends that she relied on the ads’ assurances that the gym was “a safe place” and the class “would be a safe way to learn to climb” when [*28] she enrolled in the climbing class. She argues that these assurances created ambiguity that, as in Kerr, requires that the release be interpreted in a less exculpatory way.
Although extrinsic evidence may be admissible as an aid to contract interpretation,54 the release here clearly defines climbing as an inherently risky activity. And we have said that
[HN10] where one section deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is a conflict, the specific section will control over the general.55
Were we to give the Rock Gym’s advertisements any weight in our analysis of the release, we would not find that their use of the word “safe” overrode the release’s very clear warnings about the specific risks of climbing.
54 Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004) (citing Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996)).
55 Id. (quoting Estate of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978)).
Because the advertisements cannot reasonably be considered as modifications to the release, and because the release does not otherwise contain implicit guarantees of safety or maintenance that could confuse its purpose, we find the final requirement of a valid release to be satisfied. The release thus satisfies all characteristics of a valid release [*29] identified by our case law, and we affirm the superior court’s grant of summary judgment to the Rock Gym on this issue.
B. The UTPA Does Not Apply To Personal Injury Claims.
[HN11] Under the UTPA, “[a] person who suffers an ascertainable loss of money or property as a result of another person’s act or practice declared unlawful by AS 45.50.471 may bring a civil action to recover for each unlawful act or practice three times the actual damages . . . .”56 Donahue alleges that, by publishing ads that gave the impression the Rock Gym was safe, the Rock Gym engaged in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce” which are unlawful under the statute.57 [HN12] We have not yet decided whether the statutory phrase “loss of money or property” includes personal injury claims. We now hold that it does not.
56 AS 45.50.531(a) (emphasis added).
57 AS 45.50.471(a).
[HN13] The UTPA was “designed to meet the increasing need in Alaska for the protection of consumers as well as honest businessmen from the depredations of those persons employing unfair or deceptive trade practices.”58 The act protects the consumer from deceptive sales and advertising practices,59 and it protects honest businesses from their unethical [*30] competitors.60 Donahue concedes that we have limited the UTPA to “regulating practices relating to transactions involving consumer goods and services.”61 She contends, however, that because we have never restricted the types of damages available for conduct within the UTPA’s reach, damages for personal injury should be recoverable.
58 W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1052 (Alaska 2004) (quoting House Judiciary Committee Report on HCSCS for S.B. 352, House Journal Supp. No. 10 at 1, 1970 House Journal 744) (court’s emphasis and internal quotation marks omitted).
59 See, e.g., Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1244-45 (Alaska 2007) (affirming superior court’s award of treble damages against a car dealer for its insistence on enforcing an invalid contract); Pierce v. Catalina Yachts, Inc., 2 P.3d 618, 624 (Alaska 2000) (holding unconscionable sailboat manufacturer’s warranty in favor of buyers).
60 See, e.g., Garrison v. Dixon, 19 P.3d 1229, 1230-31, 1236 (Alaska 2001) (holding suit to be frivolous where real estate buyer’s agents sued competitors, alleging false and misleading advertising); Odom v. Fairbanks Mem’l Hosp., 999 P.2d 123, 127, 131-32 (Alaska 2000) (holding viable physician’s claims against hospital for retaliatory and anticompetitive behavior).
61 See Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059, 1062 (Alaska 2011) (holding the UTPA does not apply to residential leases) (citing Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 1002 (Alaska 1999) (holding the UTPA does not apply to the sale of standing timber because it is real property rather than a consumer good)).
The superior court observed that there is nothing [*31] in the UTPA’s legislative history to support Donahue’s contention that the Alaska Legislature intended the act “to expand liability for personal injury or wrongful death or to supplant negligence as the basis for such liability.” The superior court identified “significant incongruities between the elements of common law personal injury claims and the UTPA, which suggest that the two claims cannot be reconciled.” The court explained:
For most of the past twenty years the Alaska Legislature has enacted and amended, in various forms, multiple iterations of tort reform aimed at reducing, not expanding, the scope of civil liability for personal injury and wrongful death. Expanding UTPA liability to personal injury and wrongful death would contradict many of the tort reform provisions enacted by the legislature in AS 09.17.010-080. For example, AS 09.17.020 allows punitive damages only if the plaintiff proves defendant’s conduct was outrageous, including acts done with malice or bad motives, or with reckless indifference to the interest of another person. The UTPA, on the other hand, does not require such a culpable mental state and almost as a matter of course allows a person to receive trebled actual damages. [*32] AS 09.17.060 limits a claimant’s recovery by the amount attributable to the claimant’s contributory fault; the UTPA, in contrast, does not provide a contributory fault defense. Moreover, AS 09.17.080 apportions damages between multiple tortfeasors whereas the UTPA does not permit apportionment of damages. A UTPA cause of action for personal injury or wrongful death would sidestep all of these civil damages protections.
We agree with the superior court that [HN14] the private cause of action available under the UTPA conflicts in too many ways with the traditional claim for personal injury or wrongful death for us to assume, without clear legislative direction, that the legislature intended the act to provide an alternative vehicle for such suits. The language of AS 45.50.531(a) — “ascertainable loss of money or property” — does not provide that clear direction. The legislature is well aware of how to identify causes of action involving personal injury and wrongful death, does so in other contexts,62 and declined to do so in this statute.
62 See, e.g., AS 04.21.020(e) (for purposes of statute governing civil liability of persons providing alcoholic beverages, ” ‘civil damages’ includes damages for personal injury, death, or injury to property of a person”); [*33] AS 05.45.200(4) (in statutes governing liability of ski resorts, “‘injury’ means property damage, personal injury, or death”); AS 09.10.070(a) (providing general statute of limitations for “personal injury or death”); AS 09.17.010 (limiting noneconomic damages recoverable “for personal injury or wrongful death”); AS 46.03.825(b)(1) (providing that limitations on oil spill damages do not apply to “an action for personal injury or death”).
Other states have similar laws, and their courts’ interpretations are helpful. Section 531(a) has a counterpart in Oregon’s UTPA, which likewise allows private actions by those who suffer a “loss of money or property.”63 The Oregon Court of Appeals, considering an action for personal injuries occurring after a mechanic allegedly misrepresented the state of a car’s brakes, held that the UTPA was not a vehicle for the pursuit of personal injury claims.64 It held that the Act plainly had a restitutionary purpose — “i.e., restitution for economic loss suffered by a consumer as the result of a deceptive trade practice.”65 It noted the lack of any legislative history “to the effect that by the adoption of that provision the legislature intended to confer upon private individuals a new cause of action for personal injuries, including [*34] punitive damages and attorney fees,” or of “any decisions to that effect by the courts of any of the many other states which have adopted similar statutes.”66 It emphasized the availability of common law remedies, which provided a range of possible causes of action for personal injury — negligence, breach of warranty, and strict products liability — and noted that these remedies provide for a more expansive range of damages, such as pain and suffering, not available under the UTPA.67
63 ORS 646.638(1); ORS 646.608.
64 Gross-Haentjens v. Leckenby, 38 Ore. App. 313, 589 P.2d 1209, 1210-11 (Or. App. 1979).
65 Id. at 1210; see also Fowler v. Cooley, 239 Ore. App. 338, 245 P.3d 155, 161 (Or. App. 2010).
66 Gross-Haentjens, 589 P.2d at 1210-11.
67 Id. at 1211. Other courts have reached similar conclusions. See Beerman v. Toro Mfg. Corp., 1 Haw. App. 111, 615 P.2d 749, 754 (Haw. App. 1980) (“[T]hough individual actions based on damage to a consumer’s property may be within the purview of [the Hawaii consumer protection act], the scope of the statutes does not extend to personal injury actions.”); Kirksey v. Overton Pub, Inc., 804 S.W.2d 68, 73 (Tenn. App. 1990) (“We must hold that the General Assembly intended for the Consumer Protection Act to be used by a person claiming damages for an ascertainable loss of money or property due to an unfair or deceptive act or practice and not in a wrongful death action.”); Stevens v. Hyde Athletic Indus., Inc., 54 Wn. App. 366, 773 P.2d 871, 873 (Wash. App. 1989) (“We hold actions for personal injury do not fall within the coverage of the [Washington consumer protection act].”).
We agree with the reasoning of the Oregon court and conclude that Alaska’s [*35] UTPA does not provide the basis for a claim for personal injury.
C. The Superior Court Did Not Clearly Err In Finding That The Rock Gym Waived Any Claim For Rule 68 Attorney’s Fees.
The superior court granted the Rock Gym, as the prevailing party, 20 percent of its reasonable, actual attorney’s fees under Civil Rule 82(b)(2). [HN15] Twenty percent of “actual attorney’s fees which were necessarily incurred” is the presumptively reasonable award for a party who prevails in a case resolved short of trial but who does not recover a money judgment.68
68 See Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010) (“Awards made pursuant to the schedule of Civil Rule 82(b) are presumptively correct.”).
The Rock Gym contends that it should have been awarded fees under Civil Rule 68 instead. [HN16] Rule 68 provides that (a) where an adverse party makes an offer to allow judgment entered against it in complete satisfaction of the claim, and (b) the judgment finally entered is at least five percent less favorable to the offeree than the offer, the offeree shall pay a percentage of the reasonable actual attorney’s fees incurred by the offeror from the date of the offer, the percentage depending on how close the parties are to trial when the offer is made. The Rock Gym made a Rule 68 offer of judgment on February 7, 2012, over two months before [*36] the April trial date. Donahue rejected the offer. Under these facts, once judgment was granted in the Rock Gym’s favor, the conditions for an award of 30 percent of “the offeror’s reasonable actual attorney’s fees” under the Rule 68 schedule were satisfied.69
69 Alaska R. Civ. P. 68(b)(3). We note that the award of fees under Rule 68 was likely to be only nominally greater than that under Rule 82. Rule 68 affects only fees incurred after the date the offer is made, here February 7, 2012. The parties had already completed their summary judgment briefing by that time, and summary judgment was entered a month later.
The question presented here, however, is whether the Rock Gym waived any request for Rule 68 fees. The Rock Gym initially argued to the superior court that it should be awarded full fees because of express language in the release, which reads:
Should [the Rock Gym] or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.
While arguing this point, the Rock Gym noted in a footnote that it was eligible for full fees under AS 09.30.065 (the statute authorizing the Rule 68 procedure). But it made that observation only in support of its argument [*37] for full fees under the release. Its motion did not otherwise mention Rule 68; rather, as an alternative to fees under the indemnity clause, the Rock Gym asked the court to use its discretion to award up to 80 percent of its fees under Rule 82 — far more than the scheduled award of 20 percent — in light of Donahue’s “vexatious” behavior, particularly having complicated the case with claims under the UTPA.
The superior court denied the Rock Gym’s request for full fees based on the release and ordered it to submit an affidavit detailing its counsel’s billings. The order also stated, “Plaintiff should address the effect, if any, of defendant’s Rule 68 offer on the amount of fees that may be awarded.” The Rock Gym submitted the required fee affidavit and also moved for reconsideration, again arguing that full fees should be awarded under the release’s indemnity clause; again relying on Rule 82 as an alternative; and failing to mention Rule 68 at all. Donahue submitted no response.
The superior court again rejected the Rock Gym’s argument based on the release’s indemnity clause and ordered the Rock Gym to submit a more detailed fee affidavit. The Rock Gym filed another affidavit which did not address the offer of judgment. [*38]
In its third order, the superior court again rejected the Rock Gym’s request for full attorney’s fees and awarded 20 percent of its fees under Rule 82(b)(2). The Rock Gym again moved for reconsideration. This time the Rock Gym argued that it was entitled to 30 percent of its fees under Rule 68, relying on the footnote in its first motion to contend that the argument was not waived.70
70 As noted above, the increased percentage of attorney’s fees would only apply to those fees incurred after the date the offer of judgment was made; the amount at issue thus appears to be minimal.
The superior court then issued its fourth order on fees. It reaffirmed its Rule 82 award, finding that the Rock Gym had not adequately or timely made a claim under Rule 68. The court observed that the Rock Gym’s failure to make the claim earlier was likely a “tactical decision, initially, to pursue full attorney fees based on indemnity rather than present all of its alternative fee award theories at once.”
[HN17] The superior court’s finding that the Rock Gym waived a request for fees under Rule 68 is reviewed for clear error.71 We see no clear error here. The Rock Gym’s reference to its offer of judgment in its motion for attorney’s fees was made only to support its [*39] request for full fees under the indemnity provision of the release; the only alternative it expressly requested was an award of enhanced fees under Rule 82. As the superior court observed, it was not the court’s duty in this context “to solicit additional arguments for a moving party.”72 Nor was the superior court obliged to consider the Rule 68 argument when it was raised for the first time in motions for reconsideration.73 And under the circumstances of this case, including the modest difference between fee awards under Rule 82 and Rule 68 and an apparent deficiency in the Rule 68 offer itself,74 we cannot see plain error.75
71 See Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).
72 See, e.g., Forshee v. Forshee, 145 P.3d 492, 498 (Alaska 2006).
73 See Haines v. Cox, 182 P.3d 1140, 1144 (Alaska 2008) (holding that the plaintiff’s submission of evidence only when she moved for reconsideration forecloses her claim that the court abused its discretion by failing to rely on that evidence); Koller v. Reft, 71 P.3d 800, 805 n.10 (Alaska 2003) (noting that superior court is not obliged to consider documents presented for the first time with a motion for reconsideration).
74 The offer did not encompass the Rock Gym’s counterclaim against Donahue for contractual indemnity. See Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1089 (Alaska 2008) (“Both Rule 68 and AS 09.30.065 . . . implicitly require that an offer of judgment include all claims between the parties and be capable of completely resolving the case by way of a final [*40] judgment if accepted.”).
75 [HN18] The plain error doctrine requires a party to prove that the error waived below was “so prejudicial that failure to correct it will perpetuate a manifest injustice.” Forshee, 145 P.3d at 500 n.36 (quoting Hosier v. State, 1 P.3d 107, 112 n.11 (Alaska App. 2000)) (internal quotation marks omitted).
V. CONCLUSION
The judgment of the superior court is AFFIRMED.
Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)
Posted: August 26, 2013 Filed under: Climbing Wall, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: Bacchiocchi v Ranch Parachute Club, Bouldering, Cause of action, Climbing Wall, Cornell University, education, Ithaca, New York, Release, Rock climbing, Supreme Court 4 CommentsLemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)
Decided and Entered: December 11, 2003
93723
[*1]Nadine Lemoine, Appellant, v Cornell University, Respondent.
Memorandum and Order
Calendar Date: October 15, 2003
Before: Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ.
Lo Pinto, Schlather, Solomon & Salk, Ithaca
(Raymond M. Schlather of counsel), for appellant.
Nelson E. Roth, Cornell University, Ithaca, for
respondent.
Cardona, P.J.
Appeal from an order of the Supreme Court (Mulvey, J.), entered January 2, 2003 in Tompkins County, which granted defendant’s motion to dismiss the complaint.
Plaintiff alleges that she sustained injuries on January 30, 2000, when she fell from the Lindseth Climbing Wall at defendant’s university during the first session of a seven-week basic rock climbing course offered by defendant’s outdoor education program. She had taken the same course eight years earlier, but had not taken any further instruction in the intervening years. Plaintiff registered, paid the tuition for the class, watched the orientation video describing safety procedures and signed a release holding defendant harmless from liability for, inter alia, any injuries caused by use of the climbing wall, including those caused by defendant’s own negligence. Plaintiff, as a climbing student, also signed a “Contract to Follow Lindseth Climbing Wall Safety Policies,” which included a promise that she would not climb above the yellow “bouldering” line without the required safety equipment. Prior to the accident, plaintiff, who was not wearing safety equipment, alleged that she was climbing with most of her body above the bouldering line. At the time, plaintiff and approximately 10 other students were under the supervision of two instructors. As she descended, instructor Michael Gilbert allegedly told her where to place her hands and feet. Plaintiff asserts that she lost her footing and fell to the floor [*2]below, which she described as “virtually unpadded.”[FN1] Thereafter, plaintiff commenced this action asserting negligence and gross negligence. Defendant moved to dismiss based upon the release and the safety contract, as well as a claim that plaintiff failed to set forth a cause of action [FN2]. Supreme Court granted defendant’s motion, prompting this appeal.
Plaintiff contends that the release and safety contract are void as against public policy by operation of statute, and, as a result, Supreme Court erred in granting defendant’s motion to dismiss. General Obligation Law § 5-326 states in pertinent part:
“Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”
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 Intl., 833 F Supp 197, 202 [1993]). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370 [1994]), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145 [1985]), have been found to be outside the scope of the statute.
In assessing whether a facility is instructional or recreational, courts have 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 (see Fusco v Now & Zen, 294 AD2d 466, 467 [2002]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175-176 [2000]; Baschuk v Diver’s Way Scuba, supra at 370). Difficulties arise in this area of law in situations where a person is injured at a mixed-use facility, namely, one which provides both recreation and instruction. In some cases, courts have found that General Obligations Law § 5-326 voids the particular release where the facility provides instruction only as an “ancillary” [*3]function, even though it is a situation where the injury occurs while receiving some instruction (see e.g. Bacchiocchi v Ranch Parachute Club, supra at 175-176; Wurzer v Seneca Sport Parachute Club, 66 AD2d 1002, 1002-1003 [1978]). In other mixed-use cases, courts focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, supra at 99).
Here, plaintiff points out that her enrollment in the class entitled her to a discounted fee rate in the event that she sought use of the climbing wall on nonclass days and, additionally, defendant allowed its students, alumni and graduates of the rock climbing course to use the wall as long as they paid the regular fee and watched the safety video. Consequently, plaintiff, citing Bacchiocchi v Ranch Parachute Club (supra), argues that since this facility is both recreational and instructional, General Obligations Law § 5-326 must apply. While it may be true that defendant’s facility is a mixed use one, given that defendant is unquestionably an educational institution, along with the fact that the brochure and course materials in the record indicate that the purpose of the climbing wall facility was “for education and training in the sport of rockclimbing,” it is apparent that any recreational use of the wall by nonstudents would be ancillary to its primary educational purpose (cf. Bacchiocchi v Ranch Parachute Club, supra). Furthermore, even focusing primarily on plaintiff’s purpose at the facility, it is undisputed herein that she enrolled in the course, paid tuition, not a fee, for lessons and was injured during one of her instructional periods (cf. Scrivener v Sky’s the Limit, supra at 281). Therefore, under all the circumstances, we find that Supreme Court properly found the statute to be inapplicable.
Having found that the release and safety contract were not voided by the statute, we now decide whether they are dispositive in this case (cf. Gross v Sweet, 49 NY2d 102, 107 [1979]). For example, the release unambiguously acknowledges, inter alia, the inherent risks of rock climbing and the use of the climbing wall, including the risk of injury from falling off the wall onto the floor below, which is what plaintiff describes as happening in this case. The release further holds defendant harmless from liability from any negligence, including that related to plaintiff’s supervised or unsupervised use of the wall. Given plaintiff’s signature and initials on these documents, we conclude that dismissal was proper.
Turning to plaintiff’s contention that, even if the statute is applicable, defendant’s motion to dismiss should not have been granted because the release and safety contract, standing alone, would not defeat a claim adequately alleging gross negligence (see Amica Mut. Ins. Co. v Hart Alarm Sys., 218 AD2d 835, 836 [1995]). Significantly, gross negligence is reckless conduct that borders on intentional wrongdoing and is “different in kind and degree” from ordinary negligence (Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, 297 AD2d 430, 431 [2002]; see e.g. Green v Holmes Protection of N.Y., 216 AD2d 178, 178-179 [1995]). Where a complaint does not allege facts sufficient to constitute gross negligence, dismissal is appropriate (see Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, supra at 431). Even assuming that plaintiff’s specific allegations are true, we agree with Supreme Court that they constitute only ordinary negligence and cannot survive the motion to dismiss.
The remaining arguments raised by plaintiff have been examined and found to be either unpersuasive or rendered academic by our decision herein.
Crew III, Carpinello, Rose and Lahtinen, JJ., concur.
ORDERED that the order is affirmed, with costs.
Footnotes
Footnote 1: The incident report form, which plaintiff disputes, states that she “decided to jump down.” Defendant’s employees also assert that the floor was padded and plaintiff was four feet from the ground at the time that she left the wall.
Footnote 2: We note that although defendant’s motion states that it is pursuant CPLR 3211 (a) (1) and (7), it appears from the language therein that it is also premised upon CPLR 3211 (a) (5).
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Recreation Law 