Advertisements

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

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

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

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

Plaintiff: Jacob Stillman

Defendant: Mobile Mountain, Inc.

Plaintiff Claims: negligence

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

Holding: for the Plaintiff

Year: 2018

Summary

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

Facts

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

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

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

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

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

The doctrine of assumption of the risk operates “as a defense to tort recovery in cases involving certain types of athletic or recreational activities” A person who engages in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”

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

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

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

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

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

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

So Now What?

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

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

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

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

Advertisements

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

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

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

543 CA 17-01915

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

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

June 8, 2018, Decided

June 8, 2018, Entered

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

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

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

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

OPINION

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

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

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

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

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

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

Entered: June 8, 2018


Omega Pacific Recalls G-First Carabiners Due to Risk of Injury or Death Hazard: The carabiner can break while in use, posing a risk of injury or death to the user.

Remedy: Refund, Replace: Consumers should immediately stop using the recalled carabiners and contact Omega Pacific to receive a free replacement or a full refund. 

Consumer Contact: Omega Pacific at 800-360-3990 from 7 a.m. to 4 p.m. PT Monday through Friday, email  info@omegapac.com, or online at http://www.omegapac.com and click on the Voluntary Recall banner at the top of the page, or click on “Notices & Recalls” at the bottom of the page for more information.

Pictures available here: https://www.cpsc.gov/Recalls/2018/Omega-Pacific-Recalls-Carabiners-Due-to-Risk-of-Injury-or-Death

Recall Details

Units: About 1,900

Description: This recall involves six models of Omega Pacific G-FIRST series aluminum carabiners. They are typically used to allow ropes and harnesses to be linked together. “Omega-17 UL Classified USA” is printed on the front and “Meets NFPA 1983 17ED MBS kN 40 G” statement is located on the back side. The 2-digit lot code “OD” is embedded on the bottom side of the carabiner spine. They were sold individually in silver, black and red colors. 

Incidents/Injuries: None Reported 

Sold At: Arizona Hiking Shack, Atlantic Diving Supply, Austin Canoe & Kayak, Columbus Supply, Dvbe Supply, Evac
Systems, General Factory/WD Supply, Lafco Outillage, The Rescue Source, Witmer Associates (Firestone) stores nationwide and online at omega.com from February 2017 through October 2017 for between $31 and $51.

Manufacturer(s): Omega Pacific Inc., of Airway Heights, Wash.

Manufactured In: U.S.

clip_image001

Recall Date: November 21, 2017

Recall Number: 18-041

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect. 

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability
claim. 

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

 Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

clip_image003

What do you think? Leave a comment.

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

 Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2017 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com 

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

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

 


#AdventureTourism, #AdventureTravelLaw,
#AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps,
#ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw,
#FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation,
#IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence,
#OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw,
#Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer,
#RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom,
#Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer,
#RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding,
#SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC,
Consumer Product Safety Council, Omega Pacific, G-FIRST, G-FIRST Carabiner, Carabiner,


 


 

 


Black Diamond Recalls to Inspect Carabiners Due to Fall Hazard

Name of Product: Black Diamond Carabiners for Climbing

http://www.cpsc.gov/en/Recalls/2016/Black-Diamond-Recalls-to-Inspect-Carabiners/

Recall Summary

Hazard: The carabiner can unexpectedly open and allow the rope to become detached, posing a risk of injury or death to climbers from a fall.

Remedy: Replace

Consumers should immediately stop using the recalled carabineers and contact Black Diamond for instructions on inspecting and returning the product for a free replacement.  Instructions are also available on the firm’s website.

Consumer Contact: Black Diamond at 800-755-5552 from 8 a.m. to 5 p.m. MT Monday through Friday or online at http://blackdiamondequipment.com and click on “Recall for Inspection: Carabiner & Quickdraws” for more information on inspecting the product. Consumers can also email the firm at warranty@bdel.com.

Recall Details

Photos Available At http://www.cpsc.gov/en/Recalls/2016/Black-Diamond-Recalls-to-Inspect-Carabiners/

Units: About 1.16 million (in addition, 81,000 were sold in Canada)

Description: This recall involves 16 models of Black Diamond brand carabiners with manufacturing date codes between 4350 and 6018. “Black Diamond” or the Black Diamond logo is printed on the front of the carabiners. The manufacturing date code is printed on the side of the carabiners. All carabiner colors are included in the recall. They were sold individually or as part of a climbing gear set. The following carabiners are included in the recall.

Black Diamond carabiners sold individually

Carabiner Name

Carabiner Name

MINI PEARABINER SCREWGATE

POSITRON BENT CARABINER

OVAL CARABINER

NITRON STRAIGHT CARABINER

OVALWIRE CARABINER

NITRON BENT CARABINER

LIGHT D CARABINER

NEUTRINO CARABINER

HOTWIRE CARABINER

POSITRON SCREWGATE CARABINER

OZ CARABINER

NITRON SCREWGATE CARABINER

HOODWIRE CARABINER

ROCKLOCK SCREWGATE CARABINER

POSITRON STRAIGHT CARABINER

VAPORLOCK SCREWGATE CARABINER

 

Black Diamond carabiners sold as a set or in combination with other products

Product Name

 

Included Carabiner(s)

FREEWIRE QUICKDRAW- 12cm

 

HOTWIRE CARABINER (2)

FREEWIRE QUICKDRAW- 18cm

 

HOTWIRE CARABINER (2)

POSIWIRE QUICKDRAW- 12cm

 

POSITRON STRAIGHT CARABINER (2), HOTWIRE CARABINER (2)

POSIWIRE QUICKDRAW- 18cm

 

POSITRON STRAIGHT CARABINER (2), HOTWIRE CARABINER (2)

POSITRON QUICKDRAW- 18cm

 

POSITRON STRAIGHT CARABINER (2), POSITRON BENT CARABINER (2)

POSITRON QUICKDRAW- 12cm

 

POSITRON STRAIGHT CARABINER (2), POSITRON BENT CARABINER (2)

POSITRON QUICKPACK

 

POSITRON STRAIGHT CARABINER (6), POSITRON BENT CARABINER (6)

POSIWIRE QUICKPACK

 

POSITRON STRAIGHT CARABINER (6), POSITRON BENT CARABINER (6)

FREEWIRE QUICKPACK 12cm

 

HOTWIRE CARABINER (12)

FREEWIRE QUICKPACK 18cm

 

HOTWIRE CARABINER (12)

POSITRON QUICKPACK 12cm

 

POSITRON STRAIGHT CARABINER (6), POSITRON BENT CARABINER (6)

POSITRON QUICKPACK 18cm

 

POSITRON STRAIGHT CARABINER (6), POSITRON BENT CARABINER (6)

POSIWIRE QUICKPACK 12cm

 

POSITRON STRAIGHT CARABINER (6), HOTWIRE CARABINER (6)

POSIWIRE QUICKPACK 18cm

 

POSITRON STRAIGHT CARABINER (6), HOTWIRE CARABINER (6)

NEUTRINO RACKPACK

 

NEUTRINO CARABINER (6)

HOTWIRE RACKPACK

 

HOTWIRE CARABINER (6)

HOTWIRE 3 PACK

 

HOTWIRE CARABINER (3)

POSITRON SCREWGATE 3 PACK

 

POSITRON SCREWGATE CARABINER (3)

OVAL 3 PACK

 

OVAL CARABINER (3)

WIRED HEX SET #4-10

 

OVALWIRE CARABINER (1)

STOPPER SET #4-13

 

OVALWIRE CARABINER (1)

BIG AIR PACKAGE

 

ROCKLOCK SCREWGATE CARABINER (1)

BIG AIR XP PACKAGE

 

MINI PEARABINER SCREWGATE (1)

MOMENTUM DS COMBO

 

ROCKLOCK SCREWGATE CARABINER (1)

MOMENTUM HARNESS PACKAGE

 

ROCKLOCK SCREWGATE CARABINER (1)

PRIMROSE HARNESS PACKAGE

 

ROCKLOCK SCREWGATE CARABINER (1)

Incidents/Injuries: None reported

Sold at: Eastern Mountain Sports, The Gear Coop, Hansen Mountaineering, REI and other specialty outdoor stores nationwide and online at Backcountry.com, BlackDiamond.com and Bouldering.com from December 2014 to January 2016 for between $6 and $15.

Importer/Distributor: Black Diamond Equipment Ltd., of Salt Lake City, Utah

Manufactured in: U.S.

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

 

clip_image002What do you think? Leave a comment.

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

 

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council, Black Diamond, Carabiner, Rock Climbing, Black Diamond Equipment,