Plaintiff cannot assume a risk which is not inherent in the activity or which he does not know.
Posted: July 16, 2018 Filed under: Assumption of the Risk, Climbing Wall, New York | Tags: amusement, Assumption of risk, assumption of the risk, attraction, Carabiner, Climbing, Climbing Wall, constructive notice, dan-gerous condition, defective condition, failed to meet, festival, Harness, Mobile Climbing Wall, Premises Liability, Summary judgment, worn Leave a commentThe 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
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Stillman v Mobile Mountain, Inc., 2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149
Posted: July 6, 2018 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, New York | Tags: amusement, assumption of the risk, attraction, Carabiner, Climbing, Climbing Wall, constructive notice, Dangerous Condition, defective condition, failed to meet, festival, Harness, Mobile Climbing Wall, Premises Liability, Summary judgment, worn Leave a commentStillman 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.
Posted: November 30, 2017 Filed under: Uncategorized | Tags: Carabiner, Consumer Product Safety Council, CPSC, G-FIRST, G-FIRST Carabiner, Omega Pacific, Recall Leave a commentRemedy: 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.
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
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
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Black Diamond Recalls to Inspect Carabiners Due to Fall Hazard
Posted: April 2, 2016 Filed under: Uncategorized | Tags: Black Diamond, Black Diamond Equipment, Carabiner, Consumer Product Safety Council, CPSC, Recall, Rock climbing Leave a commentName 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
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
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
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,