Illinois upholds release stopping a claim for injury from bouldering at defendant North Wall.

However, 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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Cizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320

Cizek 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.

Disposition: Affirmed.

Judges: PRESIDING JUSTICE HUDSON delivered the judgment of the court. Justices Schostok and Spence concurred in the judgment.

Opinion by: HUDSON

Opinion

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 defendants alleged negligence and failed to identify facts from which willful and wanton conduct could be inferred; therefore, trial courts 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. Plaintiffs right foot landed on a mat, but her left foot landed on the floor. Plaintiffs 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 respondents 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 respondents 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 plaintiffs ankle was broken. They assisted plaintiff to Kosinskis car, and he drove her to St. Alexius hospital. At the hospital, they x-rayed plaintiffs 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]heres not really much instruction [to do] in terms of bouldering. He explained, bouldering, theres just—okay, this is how high you can go and thats 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 childrens 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 Devils 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. Plaintiffs 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 respondents 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 plaintiffs 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 respondents 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 (respondents 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 plaintiffs 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 didnt 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 plaintiffs 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 customers 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 plaintiffs 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, respondents 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 gyms 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 plaintiffs 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 plaintiffs 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]
Plaintiffs brief also contains a section addressing proximate cause; however, as we conclude that the waiver bars plaintiffs 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 plaintiffs complaint based on plaintiffs 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 Assn, 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 courts 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 movants 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 courts 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 defendants 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 Members 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 Members 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 Members 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 Members 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 defendants 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 Students property while upon the premises or aircraft of the [defendant] or while [**25]
participating in any of the activities contemplated by this agreement. The plaintiffs 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 plaintiffs agreement to assume the risk for her use of the clubs 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 Mens 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 plaintiffs intent to waive any cause related to that activity was clear. Furthermore, plaintiffs 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 clubs 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 defendants 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 plaintiffs 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 plaintiffs 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 defendants 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 defendants 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.

 [*P63]
Affirmed.


New Regulations have been issued by the CO Department of Labor & Employment for Amusement Rides and Devices

That means Trampoline Parks, Ropes Courses, Climbing Walls, Playground Equipment, Climbers, Fitness Devices, Exercise Equipment, Paddle Boats, any amusement ride operated at a private event and the list goes on.

The Amended Regulations can be found here: https://content.govdelivery.com/attachments/CODOPS/2019/03/06/file_attachments/1168134/AmusementRegulationsRedline2019.pdf

DEPARTMENT OF LABOR AND EMPLOYMENT

Division of Oil and Public Safety

AMUSEMENT RIDES AND DEVICES REGULATIONS

7 CCR 1101-12

ARTICLE 1 GENERAL PROVISIONS

Section 1-1 Basis and Purpose

This regulation is promulgated to establish reasonable standards for the construction, inspection, operation, repair and maintenance of amusement rides and devices located in Colorado in the interest and safety of the general public, to establish financial standards for the operation of amusement rides and devices in a public setting and to provide for a registration process for amusement rides and devices.

Section 1-2 Statutory Authority

The amendments to these regulations are created pursuant to C.R.S. § 8-20-1001 through 8-20-1004 of the Colorado Revised Statutes (C.R.S.). All prior rules for amusement rides and devices are hereby repealed.

Section 1-3 Effective Date

This regulation shall be effective June 15, 2019 July 30, 2015. The operators of previously unregistered amusement rides and devices shall have up to three months from the effective date of these regulations to comply with Section 2-3-1 (A) (6).

Section 1-4 Scope

These rules and regulations shall apply to the construction, inspection, operation, repair and maintenance of amusement rides and devices located in Colorado by any individual, corporation, company, firm, partnership, association, or state or local government agency.

These rules and regulations shall not apply to:

(A) Coin operated model horse and model rocket rides, mechanical horse or bull rides, and other coin activated or self-operated devices.

(B) Non-mechanized playground equipment including but not limited to swings, seesaws, stationary spring mounted animal features, rider propelled merry-go-rounds, climbers, slides, swinging gates and physical fitness devices.

(C) Live animal rides or live animal shows.

(D) Climbing walls used for sport and fitness training, located in educational facilities, schools, gymnasiums, sport and public entity recreational facilities, or other facilities solely devoted to sport and recreational activities, training and instruction.

(E) Institutional trampolines used solely for sport and fitness training, located in educational facilities, schools, gymnasiums, sport and public entity recreational facilities or other facilities solely devoted to sport and recreational activities, training and instruction. All training must be conducted by a certified gymnastics or trampoline coach. The facility and coach must carry certifications from a nationally recognized gymnastics or trampoline governing association.

(F) Race-karts owned and operated by individuals who compete against each other, or rental race-karts available for rent at competitive sport race-kart tracks solely used for sanctioned racing where drivers have attended and passed a practical driver safety training test to establish their competency, or hold an applicable valid competition license certification from a recognized motor sport sanctioning body.

(G) Skating rides, arcades, laser paintball games, bowling alleys, miniature golf courses, inflatable devices, ball crawls, exercise equipment, jet skis, paddle boats, air boats, hot air balloons whether tethered or untethered, batting cages, games and side shows.

(H) Any amusement ride or device operated at a private event that is not open to the general public and not subject to a separate admission charge or any amusement ride or device owned and operated by a non-profit organization who meets all the requirements in Sections 2-1 and 2-2 of these regulations and operates their rides less than 8 days in any calendar year.

(I) Any amusement ride or device operator who notifies the Division in writing that his or her ride or device is inspected and licensed certified or issued a permit by one of the following agencies where said agency inspects and issues a license or permit for the ride or device shall be exempt from the requirements of this subsection these regulations, provided that the ride or device requirements of said agency meets or exceeds the requirements of standards adopted in this regulation.

(1) Any municipality or local government within the state of Colorado

(2) Another state agency within the state of Colorado

(3) Any federal government agency

(J) Any local government that has received a temporary or permanent waiver from the Division pursuant to Executive Order D 2011-005. To obtain a waiver the affected local government must demonstrate that the requirements in these regulations conflict with other statutes or regulations (including those of local governments) or are unduly burdensome. A cost benefit analysis or other supporting documentation should be included with the waiver request.

(K) Water slides less than 18 feet in elevation change from point of dispatch to the end of the slide.

Section 1-5 Codes and Standards

(A) The following codes of the American Society for Testing and Materials (ASTM) F24 Committee on Amusement Rides and Devices, National Fire Protection Association (NFPA) and the Association for Challenge Course Technology (ACCT) are incorporated by reference.

(BA) All amusement rides and devices shall comply with the following these standards, including, but not limited to the following unless specifically exempted in these regulations. If there is no applicable standard for an amusement ride or device, operators shall comply with the manufacturer’s recommendations. When adopted standards and manufacturer recommendations differ, the more stringent requirement shall apply. Devices must comply with adopted standards that were effective at the time of manufacture, as applicable.

(1) ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959

(ia) Standard Terminology Relating to Amusement Rides and Devices: F747-06-15

(iib) Standard Practice for Ownership and, Operation, Maintenance and Inspection of Amusement Rides and Devices Designation: F 770-1418

(iii) Standard Practice for Design and Manufacture of Patron Directed, Artificial Climbing Walls, Dry Slide, Coin Operated and Purposeful Water Immersion Amusement Rides and Devices and Air Supported Structures Designation: F 1159-11

(c) Standard Practice for Design and Manufacturing of Amusement Rides and Devices that are Outside the Purview of Other F24 Design Standards: F1159-16

(ivd) Standard Practice for Quality, Manufacture, and Construction of Amusement Rides and Devices Designation: F1193-1418

(e) Standard Test Method for Composite Foam Hardness-Durometer Hardness: F1957-17

(vf) Standard Practice for Design, Manufacture, and Operation of Concession Go-Karts and Facilities Designation: F2007-12

(vig) Standard Practice for Measuring the Dynamic Characteristics of Amusement Rides and Devices Designation: F 2137-1316

(viih) Standard Practice for Design of Amusement Rides and Devices Designation: F 2291-1418

(viii) Standard Practice for Design, Manufacture, Installation and Testing of Climbing Nets and Netting/Mesh used in Amusement Rides, Devices, Play Areas and Attractions: F2375-0917

(ixj) Standard Practice for Classification, Design, Manufacture, Construction, and Operation of Water Slide Systems Designation: F 2376-1317a

(xk) Standard Practice for Special Requirements for Bumper Boats Designation: F 2460-11

(xil) Standard Practice for Special Requirements for Aerial Adventure Courses Designation: F 2959-1418

(xiim) Standard Practice for Permanent Amusement Railway Ride Tracks and Related Devices: F2960-1416

(xiiin) Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts: F2970-1517

(xivo) Standard Practice Guide for Auditing Amusement Rides and Devices: F2974-1318

(p) Standard Practice for Operations of Amusement Railway Rides, Devices, and Facilities: F3054-18

(q) Standard Practice for Classification, Design, Manufacturing, Construction, Maintenance, and Operation of Stationary Wave Systems: F3133-16

(r) Standard Practice for Patron Transportation Conveyors Used with a Water-Related Amusement Ride or Device: F3158-16

(s) Standard Practice for Characterization of Fire Properties of Materials Specified for Vehicles Associated with Amusement Rides and Devices: F3214-18

(2) National Fire Protection Association (NFPA), One Battery march Park, Quincy, MA 02169-7471

(ia) National Electrical Code 2014 Designation: NFPA 70

(3) Association for Challenge Course Technology (ACCT), PO Box 4719797, Deerfield Boulder, IL CO 6001580308

(ia) Challenge Course and Canopy/Zip Line Tour Standards, ANSI/ACCT 03-2016Eighth Edition

(CB) Interested parties may inspect the referenced incorporated materials by contacting the Program Manager, Amusement Rides and Devices, 633 17th Street, Suite 500, Denver, CO 80202.

(DC) This rule does not include later amendments to or editions of the incorporated material.

(D) A device is not required to meet the current edition of the specific standard if it has a service proven design according to the ASTM F2291-18 and this design is approved by the Division.

(E) The Division may grant the use of alternate methods and procedures on a case-specific basis for requirements of the adopted codes or standards listed in this section.

(1) The Division shall require justification of the alternative method or procedure.

(2) The alternate methods and procedures request shall be submitted on a form provided by the Division.

(3) A submitted alternate methods and procedures request shall not relieve an operator from complying with the applicable standards adopted in these regulations unless the Division expressly approves the request.

(4) The Division may deny any request at its discretion.

(F) If the existing amusement ride or device has had a major modification since the last periodic or annual inspection, the post-modification inspection of that ride or device shall be conducted in compliance with ASTM F 2974-18 Section 9 or ANSI/ACCT 03-2016 Chapter 1 Section B for Challenge courses and canopy/zip line tours.

(G) All amusement rides and devices must conform to the current requirements of “Standard Practice for Ownership and Operation of Amusement Rides and Devices” Designation F770-18 or ANSI/ACCT 03-2016 Chapter 2 (as applicable by ride type), regardless of date of manufacture or installation.

(H) Amusement rides and devices of site-specific or prototype construction shall be constructed, maintained and repaired as certified by a Professional Engineer. These certifications must be available for review by the Division.

(I) Bungee Jumping

(1) A system review (structures, cords, harnesses, attachment components, etc.) that includes evaluation and inspection by a Colorado registered Professional Engineer, with his/her certification/stamp that the system design is adequate for the intended application, shall be provided to the Public Safety Section Division.

(2) Where the facility incorporates a crane structure for hoisting customers and/or staff members, the mechanism must conform to national standards. These standards include both the Occupational Safety and Health Administration Standards (OSHA) – 1926.1501 – July 1, 2011, excluding the subsequent addenda incorporated by the code forward, and the American Society of Mechanical Engineers (ASME) B30.5 – 2014. Documentation of this conformity shall be provided to the Division.

(3) Where the facility incorporates a hot air balloon for elevation purposes, copies of the current, valid Standard Airworthiness Certificate and Special Airworthiness Certificate issued by the Federal Aviation Administration (FAA), and records showing that all maintenance and alterations have been performed in accordance with Parts 21, 43, and 91 of the Federal Aviation Regulations excluding the subsequent addenda, shall be provided to the Division.

Section 1-6 Definitions

The following words when used in these rules and regulations shall mean:

AERIAL ADVENTURE COURSE: A patron participatory facility or facilities consisting of one or more elevated walkways, platforms, zip lines, nets, ropes, or other elements that require the use of fall hazard Personal Safety Equipment (PSE). Typically noted as ropes courses, free fall devices and zip lines in the regulation.

AIMS: Amusement Industry Manufacturers and Suppliers International

AMUSEMENT RIDE OR DEVICE: Any mechanized device or combination of devices which carry or convey persons along, around or over a fixed or restricted course for the purpose of giving its passengers amusement, pleasure, thrills, excitement or the opportunity to experience the natural environment.

Amusement rides and devices include but are not limited to, an aggregation of amusement rides and devices in an amusement setting such as amusement parks, carnivals, fairs and festivals. Amusement rides and devices also include but are not limited to, bungee jumping, bungee trampolines, trampolines, climbing walls in amusement settings, concession go-karts, bumper boats devices, gravity-propelled rides and devices, water slides, trackless trains, simulators, stationary wave systems, and traditional amusement rides.

AMUSEMENT RIDE, CLASS A: An amusement ride designed primarily for use by children 12 years of age or younger, typically referred to as a “kiddie ride.”

AMUSEMENT RIDE, CLASS B: Any amusement ride not defined as a Class A amusement ride.

BRAKE, EMERGENCY: A brake located on a zip line that is engaged upon failure of the primary brake, with no input from the zip line participant, in order to prevent serious injury or death resulting from primary brake failure.

BRAKE SYSTEM: An arrangement of primary and emergency brakes that are designed to function together.

BUMPER BOATSDEVICES: Boats Devices that are used to bump into each other intentionally as directed by drivers as a form of entertainment.

BUNGEE TRAMPOLINES: A type of trampoline where the patron is assisted by a harness attached to bungee cords.

CERTIFICATE OF INSPECTION: The documentation of the annual amusement ride inspection conducted by an qualified Third-Party inspector. Certificates of Inspection are valid for 12 months from the date of inspection.

CIRSA: Colorado Intergovernmental Risk Sharing Agency

CLIMBING WALL: An artificially constructed wall with holds for hands and feet used for climbing. Regulated climbing walls include climbing walls located in amusement settings and fixed or portable climbing walls for use by the general public as amusement devices and not for sport or fitness training.

CONCESSION GO-KARTS: A single vehicle which is powered without connection to a common energy source, which is drivercontrolled with respect to acceleration, speed, braking and steering, which operates within the containment system of a defined track, which simulates competitive motor sports, and which is used by the general public. Concession go-karts typically operate at speeds of up to 25 miles per hour.

DIVISION: The Director of the Division of Oil and Public Safety of the Department of Labor and Employment, or any designees thereof which may include certain employees of the Division of Oil and Public Safety or other persons.

FREE FALL DEVICE: A component of an aerial adventure course used to control a patron’s intentional decent from an elevated structure and engineered to allow the patron to experience a rapid initial descent while ensuring a comfortable and controlled landing.

IATP: International Association of Trampoline Parks

INFORMATION PLATE: A manufacturer-issued information plate, printed in English, which is permanently affixed to a ride or device in a visible location, and is designed to remain legible for the expected life of a ride or device. The plate shall include, but not be restricted to, the following applicable items:

Ride Serial Number – A manufacturer-issued unique identifying number or code affixed to the ride in a permanent fashion.

Ride Name and Manufacturer – A manufacturer-issued unique identifying ride name, including the name of the manufacturer by city, state, and country.

Ride Model Number – A manufacturer-issued unique identifying number or code assigned to each manufactured type of ride having the same structural design or components.

Date of Manufacture – The date (month and year) determined by the manufacturer that the given ride or device met his required construction specifications.

Ride Speed – Maximum and minimum revolutions per minute, feet per second, or miles per hour, as applicable.

Direction of Travel – When the proper direction of travel is essential to the design operation of the ride, the manufacturer shall designate the direction of travel, including reference point for this designation.

Passenger Capacity by Weight – Maximum total passenger weight per passenger position.

Passenger Capacity by Number – Maximum total number of adult or child passengers per passenger position and per ride.

INJURY: Means an injury that results in death or requires immediate medical treatment administered by a physician or by registered professional personnel under the standing orders of a physician. Medical treatment does not include first aid treatment or one-time treatment and subsequent observation of minor scratches, cuts, burns, splinters, or other minor injuries that do not ordinarily require medical care even though treatment is provided by a physician or by registered professional personnel.

INJURY, REPORTABLE: Any injury (as defined) caused by a malfunction or failure of an amusement ride or device, or any injury (as defined) caused by a ride operator or patron error.

INSPECTION: A procedure to be conducted by an third-party inspector or Division employee to determine whether an amusement ride or device is being constructed, assembled, maintained, tested, operated, and inspected in accordance with the standards adopted by these regulations and the manufacturer’s recommendations, as applicable, and that determines the current operational safety of the ride or device. All inspections shall be documented by a written inspection report to be filed with the operator.

INSPECTOR: A third party qualified by training, such as attainment of Level II certification from the National Association of Amusement Ride Safety Officials (NAARSO), attainment of Level II certification from the Amusement Industry Manufacturers and Suppliers International (AIMS), attainment of a Qualified Inspector certification from the Association for Challenge Course Technology (ACCT), Pennsylvania Department of Agriculture – General Qualified Inspector status or other similar qualification from another nationally recognized organization; or education, such as registration as a Professional Engineer; or experience evaluated and approved in advance, A third-party certified by the Division, to conduct inspections of amusement rides or devices in accordance with the standards adopted by these regulations and the manufacturer’s recommendations and criteria.

MAJOR MODIFICATION: Any change in either the structural or operational characteristics of the ride or device which will alter its performance from that specified in the manufacturer’s design criteria.

NAARSO: National Association of Amusement Ride Safety Officials.

OPERATOR: A person or the agent of a person, corporation or company. An individual, corporation, or company or agent thereof who owns, controls or has the duty to control the operation of an amusement ride or device.

PERMIT YEAR: The time during which an operator is registered that begins on the registration effective date and ends 12 months from the effective date. These dates appear on the signed permit that an operator receives once the registration application has been approved.

QUALIFIED PERSON: An individual who, by possession of a recognized degree, certificate, or professional standing; or who, by possession of extensive knowledge, training, and/or experience in the subject field; has successfully demonstrated ability in design, analysis, evaluation, installation, inspection, specification, testing, or training in the subject work, project, or product, in accordance with the standards adopted by these regulations.

RACE-KARTS: A go-kart designed for competitive sport racing use in either sanctioned racing on tracks or other areas of competition, or in a racing school facility, and not to be used by the general public in an amusement facility. Race-kart drivers must wear approved safety equipment, consisting of a minimum of a Snell or DOT approved helmet and closed-toed shoes. Race-karts regularly reach maximum speeds in excess of 25 miles per hour.

REGISTRATION: The filing of a properly completed application with the Division and approval of the application by the Division.

REPORTABLE INJURY: Any injury (as defined) caused by a malfunction or failure of an amusement ride or device, or any injury (as defined) caused by a ride operator or patron error which impairs the function of an amusement ride or device.

RIDE OPERATOR: The person that has control of the amusement ride or device at all times or is supervising a patron-directed device when it is being operated for the public’s use. This person must be trained in accordance with the standards adopted by these regulations and in accordance with an operator training program or specifications provided by the amusement ride or device designer, engineer or manufacturer.

SERVICE PROVEN: As defined in ASTM F2291-18, “an amusement ride, device, or major modification to an amusement ride or device of which units(s) have been in service to the public for a minimum of five years and unit(s) that have been in service have done so without any significant design related failures or significant design related safety issues that have not been mitigated.”

SIMULATOR: Any amusement ride that is a self-contained unit that uses a motion picture simulation, along with a mechanical movement which requires the use of manufacturer-provided restraints, to simulate activities that provide amusement or excitement for the patron.

SUBSIDIARY RELATIONSHIP: An independent company that is controlled by another company, usually referred to as the parent or holding company.

TRACKLESS TRAIN: An articulated vehicle used for the transport of passengers, comprising of a driving vehicle pulling one or more carriages connected by drawbar couplings. Also known as barrel trains.

TRAMPOLINE, INSTITUTIONAL: A trampoline intended for use in a commercial or institutional facility.

TRAMPOLINE COURT OR TC: A defined area comprising one or more institutional trampolines or a series of institutional trampolines.

TRAMPOLINE COURT FOAM PIT OR TC FOAM PIT: A combination style dismount pit designed with a rebound device, covered with loose impact absorbing blocks.

WATER SLIDES: Rides intended for use by riders in bathing attire where the action of the ride involves possible and purposeful immersion of the rider’s body either in whole or in part in water, and uses circulating water to mobilize or lubricate the rider’s transportation along a purpose built path.

ZIP LINE: A concession, commercial amusement device where participants attached to a pulley traverse by gravity from one point to another by use of a cable or rope line suspended between support structures.

ZIP LINE TOUR OR ZIP LINE COURSE: A guided aerial exploration or transit of a landscape by means of a series of zip lines and platforms generally supported by man-made structures.

ARTICLE 2 GENERAL REQUIREMENTS

Amusement rides and devices may not open to the public within the State of Colorado unless the operator has registered with the Division, received a permit from the Division and has satisfied and is continuing to satisfy the requirements as provided herein.

Section 2-1 Financial Standards

(A) Any person who operates an amusement ride must have currently in force an insurance policy written by an insurance company authorized to do business in this state or by a surplus lines insurer, in an amount of not less than $100,000 per occurrence with a $300,000 annual aggregate for Class A amusement rides and devices and an amount of not less than $1 million per occurrence for Class B amusement rides and devices insuring the owner or operator against liability for injury to persons arising out of the use of the amusement ride.

(B) For governmental entities, insurance or self-insurance in accordance with § 24-10-115 C.R.S. of The Governmental Immunity Act, or participation in a public entity self-insurance pool pursuant to § 24-10-115.5 C.R.S. of The Governmental Immunity Act shall be deemed to meet the financial standards of this section.

Section 2-2 Technical Standards Access to Records and Devices

Amusement rides shall be constructed, maintained, operated and repaired subject to the following standards:

2-2-1 General

(A) Amusement rides or devices or any part thereof shall be constructed, maintained, operated and repaired in accordance with the standards adopted by these regulations and the manufacturer’s recommendations, as applicable, in order to provide for an operation free from recognized safety hazards.

(B) Amusement rides and devices shall be constructed, maintained, operated and repaired in accordance with all otherwise applicable federal, state and local safety, fire, health or building codes or standards.

(C) Amusement rides and devices of site-specific or prototype construction shall be constructed, maintained and repaired as certified by a Professional Engineer. These certifications must be available for review by the Division.

2-2-2 Bungee Jumping

(A) A system review (structures, cords, harnesses, attachment components, etc.) that includes evaluation and inspection by a Colorado registered Professional Engineer, with his/her certification/stamp that the system design is adequate for the intended application, shall be provided to the Public Safety Section.

(B) All elements of the ASTM – Standards on Amusement Rides and Devices (2014 Edition), excluding the subsequent addenda incorporated by the code forward, are to be conformed to as a minimum standard. Documentation of this conformity shall be provided to the Division.

(C) Where the facility incorporates a crane structure for hoisting customers and/or staff members, the mechanism must conform to national standards. These standards include both the Occupational Safety and Health Administration Standards (OSHA) – 1926.1501 – July 1, 2011, excluding the subsequent addenda incorporated by the code forward, and the American Society of Mechanical Engineers (ASME) B30.5 – 2011. Documentation of this conformity shall be provided to the Division.

(D) Where the facility incorporates a hot air balloon for elevation purposes, copies of the current, valid Standard Airworthiness Certificate and Special Airworthiness Certificate issued by the Federal Aviation Administration (FAA), and records showing that all maintenance and alterations have been performed in accordance with Parts 21, 43, and 91 of the Federal Aviation Regulations excluding the subsequent addenda, shall be provided to the Division.

2-2-1 Access

(A) Division representative may enter during normal business hours, without advance notice, the premises where amusement rides and devices are located, including places of storage or use, for the purpose of device inspections and/or examining any records or documents required under these regulations.

2-2-2 Records Requirements

(A) Every amusement ride or device operator shall maintain detailed records relating to the construction, repair and maintenance of its operation, including safety, inspection, maintenance records and ride operator training activities.

(B) Records shall be made available to the Division at reasonable times, including during an inspection upon the Division’s request.

(C) Records of daily inspections must be available for inspection at the location where the ride or device is operated.

(D) All records must be maintained for a period of three years, unless otherwise specified in this regulation.

Section 2-3 Registration

No person shall open to the public and operate any amusement ride or device on property owned or leased by such person until the operator of the amusement ride or device has first registered and obtained a permit for operation from the Division.

2-3-1 Application Submission and Processing

(A) The Amusement Rides and Devices application shall be submitted annually on the form prescribed by the Division and shall include the following registration requirements.

(1) The name and address of the operator.

(2) The trade name of the manufacturer, and the serial number of all rides and devices.

(3) A report of any injury occurring in any state that meets the definition of a reportable injury as defined in this regulation.

(4) A list of the dates and locations of operation of the amusement rides or devices within the state for the upcoming permit year, including the dates at each location. This list may be

updated throughout the permit year, provided that notification is received by the Division prior to operation.

(5) The name of all liability insurance carriers and the insurance policy numbers.

(6) An original amusement ride Certificate of Inspection for each amusement ride or device showing the name, serial number, manufacturer of the ride, the inspector’s name, the owner/operator name and other information as required by 2-4 of these rules.

(7) Any other information reasonably related to the standards set forth in Article 2.

(8) A certificate of liability insurance for the registration period in an amount of not less than $100,000 per occurrence with a $300,000 annual aggregate for Class A amusement rides and devices and an amount of not less than $1 million per occurrence for Class B amusement rides and devices insuring the owner or operator against liability for injury to persons arising out of the use of the amusement ride or device. For governmental entities, insurance or self-insurance in accordance with § 24-10-115 C.R.S. of The Governmental Immunity Act, or participation in a public entity self-insurance pool pursuant to § 24-10-115.5 C.R.S. of The Governmental Immunity Act shall be deemed to meet the financial standards of this section.

(B) Upon receipt of an application, the Division shall review the application, and upon determining that the provisions of these rules have been met, shall approve the application, register the amusement rides or devices and issue a permit to operate.

(C) The submittal of a registration application does not guarantee the registration of any amusement ride or device. The owner/operator must obtain a permit from the Division prior to opening any ride or device to the public.

2-3-2 Application Fees Table 2-3-2 Annual Registration Fees
Fee Category Registration Fee Per Amusement Ride or Device Operator +

(and)

Registration Fee Per Amusement Ride or Device
Fee Amount $500 +

(and)

$130

2-3-3 Incomplete Applications

(A) Upon receipt of an incomplete application or an application requiring additional information, the applicant will be notified of the deficiency or additional requirements.

(B) If the deficiency is not corrected or if the Division does not receive the additional information within 180 days following the date of notification, the application shall be considered abandoned and the Division shall not retain the application.

2-3-4 Aerial Adventure Courses

(A) Each aerial adventure course is generally considered to be one ride or device based on the information plate.

(B) If an information plate is not provided, and the owner/operator registers multiple aerial adventure courses as one device, the following will apply:

(1) All aerial adventure courses registered as one device shall be inspected and listed on the Certificate of Inspection as one device by the Third-Party inspector.

(2) When any one aerial adventure course registered in the device is shut down or inoperative, all other aerial adventure courses included in the device must also be shut down.

(C) It is the responsibility of the aerial adventure course owner/operator to correctly register each device being operated.

2-3-5 Trampoline Courts

(A) Each trampoline court is generally considered to be one ride or device based on the information plate.

2-3-6 Zip Lines

(A) Each zip line is generally considered to be one ride or device based on the information plate.

(B) If an information plate is not provided and the owner/operator registers multiple zip lines as one device, the following will apply:

(1) All zip lines registered as one device shall be inspected and listed on the Certificate of Inspection as one device by the Third-Party inspector.

(2) When any one zip line registered in the device is shut down or inoperative, all other zip lines included in the device must also be shut down.

(C) It is the responsibility of the zip line owner/operator to correctly register each device being operated.

Section 2-4 Inspections

2-4-1 Annual Inspections

(A) An annual inspection by an Third-Party inspector must be conducted on each amusement ride or device.

(1) Each amusement ride or device must have a current Certificate of Inspection prior to opening to the public.

(12) The inspection shall be conducted with the amusement ride or device in an operable state prior to opening to the public and include an evaluation of the ride or device for a minimum of one complete operating cycle, where applicable.

(23) The inspection shall also include a review of the operator’s daily inspection records, inspection and maintenance program records and training records in accordance with the standards adopted by these regulations and the manufacturer’s recommendations, as applicable.

(B) Any amusement ride or device open to the public in the state of Colorado must have a valid Certificate of Inspection on file with the Division.

(1) Each item number on the Certificate of Inspection is considered to represent one ride or device.

(2) The ride owner/operator shall be responsible for submitting a completed and signed Certificate of Inspection to the Division for all rides or devices being opened to the public.

(3) A grace period of 30 days immediately following the expiration date of a Certificate of Inspection shall exist and that Certificate of Inspection shall continue to be valid during that time period.

(4) An inspection report for each amusement ride or device shall be made available to the Division at reasonable times, including during an inspection, upon the Division’s request.

(C) The inspection certificate shall not be submitted to the Division until all discrepancies have been resolved and all necessary repair(s) or replacement(s) required in accordance with the standards of Section 2-2 have been made.

(1) Resolution of discrepancies, repairs and replacements may be documented in writing by the owner/operator and delivered to the inspector.

(2) The inspector may corroborate such letter by review thereof, subsequent re-inspection, receipt of additional documentation or by other means which the inspector deems appropriate.

(3) Corroborated discrepancies, repairs and replacements shall not require further inspection and such resolution shall be deemed to be in accordance with the standards of Section 2-2.

(D) No person shall open to the public an amusement ride or device that has been inspected by an qualified inspector or by the Division according to Section 2-2 of these regulations and found to be unsafe unless:

(1) All necessary repairs and modifications to the ride have been completed and certified as completed by an qualified inspector and

(2) A valid Certificate of Inspection is on file with the Division.

2-4-2 Daily Inspections

(A) In addition to the annual inspection required under this section, the owner/operator who operates an amusement ride or device must perform and record daily inspections of each amusement ride or device.

(B) Records of the daily inspections must be available for inspection at the location where the amusement ride or device is operated, and the records must be maintained with the amusement ride or device for a period of three years.

(C) The daily inspection records must include an inspection of equipment identified for daily inspection in accordance with the applicable codes and the manufacturer’s recommendations.

2-4-3 New Installation and Major Modification Inspections

(A) New ride installations and following major modifications of existing rides, a signed certificate of inspection shall be submitted to the Division before the ride is opened to the public.

(B) The operator shall make available to the Division a written statement, completed by a qualified person or agent thereof, stating that the ride meets the applicable design requirements set forth in Section 1-5 of these regulations. The qualified person or agent thereof shall identify under which standards the ride was evaluated.

(C) Additionally, the operator shall make available to the Division for any new installation or structural change, the following:

(1) An as built document.

(2) A copy of the certificate of occupancy issued by the local building authority, if the local building authority has such a requirement. This requirement may be fulfilled within 90 days following the issuance of the Registration Permit from the Division.

(D) For sub-sections (B) and (C) these documents shall be maintained for the life of the ride or device.

Section 2-5 Ride Operations

2-5-1 General

(A) All operator personnel shall be trained in accordance with these regulations, adopted codes and standards, and any applicable recommendations provided by the amusement ride or device manufacturer.

(AB) Amusement ride and device owners/operators are required to operate each ride or device in accordance with these regulations, adopted codes and any applicable all manufacturers’ recommendations as applicable.

(BC) Consideration shall be given to environmental factors, including humidity, precipitation, temperature and wind effects on patron safety, where applicable.

(CD) Operators shall have a reasonable written plan in place for the management of emergencies, including, but not limited to the following, where applicable:

(1) Prevention strategies;

(2) Emergency preparedness;

(3) Administrative response to emergencies;

(4) Field response to medical emergencies;

(5) Field response to incidents/accidents and fatalities;

(6) Technical rescues;

(7) Activating the emergency medical system;

(8) Evacuations; and

(9) Addressing severe weather.

2-5-2 Zip Lines Aerial Adventure Courses

(A) Operators of aerial adventure courses shall follow the general requirements listed below:

(1) Verify any connection between the patron and the device are properly made.

(2) Document these requirements in the operator’s manual.

(AB) Additionally, For zip line operations, the operator shall:

(1) Have a full understanding of and proficiency in the setup, operation and ongoing monitoring requirements of the braking system in effect when operating zip lines.

(2) Ensure that the departure of patrons from dispatch zones is performed in a controlled manner and only when the zip line is clear of other persons.

(3) Ensure that the deceleration and arrest of patrons arriving at landing zones is performed in a controlled manner.

(4) Ensure that padding used as a protective element in the landing area is not used as a brake component.

(C) Additionally, for free fall device operations, the operator shall:

(1) Utilize a secondary attachment approved by the manufacturer.

ARTICLE 3 RECORDS

Section 3-1 Records Requirements

(A) Every amusement ride or device operator shall maintain detailed records relating to the construction, repair and maintenance of its operation, including safety, inspection, maintenance records and ride operator training activities.

(B) Records shall be made available to the Division at reasonable times, including during an inspection upon the Division’s request.

(C) Records of daily inspections must be available for inspection at the location where the ride or device is operated.

(D) All records must be maintained for a period of three years.

ARTICLE 3 INSPECTOR CERTIFICATION

Section 3-1 General Requirements

(A) This section describes the requirements for the annual Inspector Certification.

(B) The Division may request documentation in addition to that described in the following sections to verify the accuracy of information provided with a Certification application.

(C) The inspector shall not be affiliated by employment or by a subsidiary relationship to the owner/operator or the manufacturer of the amusement ride or device.

(D) To qualify as a professional engineer, applicants must provide a professional engineering license and proof of at least 12 months of experience working in the amusement industry.

Section 32 Certification Types

(A) The Division may certify an applicant if the applicant has satisfied Certification requirements listed in Sections 3-1 through 3-3. The Inspector Certification will indicate the type of rides and devices for which the Certification is allowed to inspect per these regulations. The types of rides and devices inspection endorsements are as follows.

(1) Type 1: Traditional Amusement Rides and Devices, that are typically found at carnivals and amusement parks which would include but not be limited to roller coasters, Ferris wheels and bumper cars, and that are not of the types listed in (A)(2) through (3) of this section.

(2) Type 2: Aerial Adventure Courses (Free Fall Devices, Ropes Courses and Zip Lines).

(3) Type 3: Indoor Trampoline Parks.

(4) Type 4: Water Slides.

(5) Type 5: Special devices. Any specialty devices not listed above (i.e., trackless trains).

(B) A person applying for an Inspector Certification shall submit to the Division a completed Inspector Certification application using the form that is provided on the Division’s website.

Section 3-3 Certification Qualifications

(A) Qualifications for licensing are as follows:

(1) Type 1 Inspector Certification qualification shall consist of certification through one of the following:

(a) NAARSO Level 2; or

(b) AIMS Maintenance or Inspector Level 2; or

(c) The Pennsylvania Department of Agriculture – General Qualified Inspector; or

(d) Qualify as a professional engineer per Section 3-1 (D); or

(e) Another nationally recognized organization approved by the Division; or

(f) Experience evaluated and approved by the Division

(2) Type 2 Inspector Certification qualification shall consist of certification through one of the following:

(a) NAARSO Level 2; or

(b) AIMS Maintenance or Inspector Level 2; or

(c) ACCT Level 2 Professional Inspector; or

(d) Qualify as a professional engineer per Section 3-1 (D); or

(e) Another nationally recognized organization approved by the Division; or

(f) Experience evaluated and approved by the Division

(3) Type 3 Inspector Certification qualification shall consist of certification through one of the following:

(a) NAARSO Level 2; or

(b) AIMS Maintenance or Inspector Level 2; or

(c) IATP Service Technician Level 2; or

(d) Qualify as a professional engineer per Section 3-1 (D); or

(e) Another nationally recognized organization approved by the Division; or

(f) Experience evaluated and approved by the Division

(4) Type 4 Inspector Certification qualification shall consist of certification through one of the following:

(a) Those listed in Section 4-2 (A)(1) (Type 1); or

(b) CIRSA certification

(c) AIMS Aquatics Operations Level I

(5) Type 5 Inspector Certification qualification shall consist of certification that complies with (A)(1) of this section.

(B) The Division reserves the right to review an applicant or inspector’s experience and certification status at any time to ensure that the applicant or inspector:

(1) Demonstrates sufficient general knowledge of amusement rides to effectively inspect, evaluate, and identify issues with rides that could or will have an impact on public safety;

(2) Is fully versed in and able to apply Colorado-specific rules and regulations, and

(3) Is able to communicate that information to the amusement ride owners/operators for whom the inspection is being carried out.

Section 3-4 Inspector Certification and Renewal

(A) Inspector Certifications will expire annually on April 15.

(B) The Inspector Certification issued by the Division shall be valid for up to one year. The Division may issue or renew an Inspector Certification, provided the applicant submits the following:

(1) A completed inspector certification application form.

(2) Documentation that the applicant is currently certified as listed in Section 3-2 (A) of this section.

Section 3-5 Revocation, Suspension, or Denial of Inspector Certification

(A) A certification may be denied, suspended, or revoked by the Division because of, but not limited to the following:

(1) Failure to show sufficient proof of required credentials or experience with amusement ride or device inspections;

(2) Non-compliance with an order issued by the Division within the time specified in such order;

(3) Failure to comply with these regulations;

(4) Giving false information or a misrepresentation to the Division in order to obtain or maintain a certification;

(5) Making a false affidavit or statement under oath to the Division in an application or report; or

(6) Other factors which, at the discretion of the Division, indicate an unfitness to hold an inspector certification in compliance with these regulations.

(B) The Division shall deny, suspend, or revoke an inspector certification according to the process described in Article 6 of these regulations.

(C) Upon notice of the revocation or suspension of any permit, the former inspector shall immediately surrender to the Division the certification and all copies thereof.

(D) Any person whose certification has been denied or suspended under Section 3-5 may apply to the Division for a hearing in order to seek relief.

(1) The hearing shall be conducted by the Division or an Administrative Law Judge with the Division of Administrative Hearings on behalf of the Division in accordance with the procedures of 24-4-105 C.R.S.

(2) The Division may grant the relief requested in the hearing if the Division determines that the circumstances regarding the denial, suspension, or revocation, and the applicant’s record and reputation are such that the granting of such relief is not contrary to public safety.

(E) Any person aggrieved by a decision or order of the Division may seek judicial review pursuant to the provisions of 24-4-106 C.R.S.

(F) The period of denial, suspension, or revocation shall be within the sound discretion of the Division.

(G) Any person who has been denied a certification may not reapply to the Division for a certification within one year of the decision, unless exception is made by the Division and the applicant establishes a substantial change in circumstances to indicate fitness to hold an inspector certification in accordance with the requirements of these regulations.

(H) In case of revocation or suspension of an inspector certification, the Division shall notify all certifying associations that have issued said inspector any certifications used for the approval by the Division of such revocation or suspension.

ARTICLE 4 INJURY REPORTING

Section 4-1 Reportable Injury

(A) State of Colorado regulations require that amusement ride and device operators notify the Division of any reportable injury.

(B) A reportable injury is any injury (as defined) caused by a malfunction or failure of an amusement ride or device, or any injury (as defined) caused by an operator or patron error which impairs the function of an amusement ride or device.

(C) A reportable injury as defined must be reported to the Division by:

(1) Calling calling 303-514-3281 or 303-809-9354 within 24 hours of the time that the ride operator or operator becomes aware of the injury; and

(2) Submitting an injury report to the Division within 72 hours of the time that the ride operator or operator becomes aware of the injury

(D) Complete injury reports should be emailed to cdle_amusements@state.co.us or faxed to 303-318-8488.Injury reports shall be maintained and made available to the Division for investigation. Copies must be submitted upon request from the Division.

Section 4-2 Reportable Injury Scene Preservation

If a reportable injury occurs, the equipment or conditions that caused the accident shall be preserved for the purpose of an investigation by the Division unless an investigation is deemed unnecessary by the Division.

ARTICLE 5 PATRON RESPONSIBILITY

Patrons are required to follow any written or verbal instructions that are given to them regarding the use of amusement rides and devices.

ARTICLE 6 ENFORCEMENT

Section 6-1 Enforcement Program

The Division provides these regulations to assist operators and inspectors with safe and proper operation of amusement rides and devices. The Division may inspect the premises and operation of the amusement ride or device to insure that the financial and safety standards in this regulation have been met. When an amusement ride or device is found to be out of compliance with these regulations, the Division will pursue enforcement actions against the operator or inspector who is in violation of these regulations and/or statutes (8-20 C.R.S.).

The enforcement process will include requiring the operator or inspector to make repairs and/or upgrades, perform system tests, provide records and complete other actions to bring the amusement ride or device back into compliance. During and following the enforcement process, the Division will continue to assist the operator or inspector to remain in compliance. The enforcement process may include monetary penalties of up to one thousand dollars ($1,000) per violation per day according to statute (CRS §8-20-104 C.R.S.) if the enforcement obligations are not implemented according to the required schedule.

6-1-1 Notice of Violation

(A) A notice of violation (NOV) may be issued to an operator or inspector when an amusement ride or device is found to be out of compliance with these regulations and/or statutes (C.R.S. §8-20) or the inspector has failed to comply with these regulations and/or statutes. The notice of violation may include fines and/or an order to cease and desist operation of the specific amusement ride or device until all violations are satisfactorily corrected.

A notice of violation (NOV) may be issued to an inspector when the inspector has failed to comply with these regulations and/or statutes. The notice of violation may include fines and/or a suspension of the inspector’s certification.

(B) Within ten working days after an NOV has been issued, the person issued the NOV may file a written request with the Division for an informal conference regarding the NOV. Upon receipt of the request, the Division shall provide the alleged violator with notice of the date, time and place of the informal conference. During the conference, the alleged violator and Division personnel may present information and arguments regarding the allegations and requirements of the NOV. If the person issued the NOV does not request an informal conference within this time frame, all provisions of the NOV shall become final and not subject to further discussion. If the NOV is not resolved within the prescribed time frame, the Division may then seek judicial enforcement of the NOV, or an enforcement order may be issued.

(C) Within 20 days after the informal conference, the Division shall uphold, modify, or strike the allegations within the NOV in the form of a settlement agreement or an enforcement order.

(D) If the alleged violator fails to timely request an informal conference, the terms of the NOV become a binding enforcement order not subject to further review.

6-1-2 Enforcement Order

(A) An enforcement order may be issued when the violations included within an NOV are not resolved within the prescribed time frame or when the schedule set forth in a settlement agreement is not met. The enforcement order may include increased fines of up to one thousand dollars ($1,000) per violation for each day of violation. In addition, the enforcement order may include shut-down of the amusement ride or device.

(B) Within ten working days after an enforcement order has been issued, the operator may file a written request with the Executive Director for an informal conference regarding the enforcement order. If the operator does not request an informal conference within this time frame, all provisions of the enforcement order shall become final and not subject to further discussion. If the enforcement order is not resolved within the prescribed time frame, the Division may then seek judicial enforcement of the enforcement order. An enforcement order may include increased fines of up to one thousand dollars ($1,000) per violation for each day of violation. In addition, the enforcement order may include shut-down of the amusement ride or device and/or suspension or revocation of the permit or inspector certification.

(C) An alleged violator may appeal the enforcement order to the Division for a hearing under 24-4-105 C.R.S. The Division shall then issue a final decision which is subject to judicial review under 24-4-106 C.R.S.

6-1-3 Informal Conference

(A) Upon receipt of the request, the Division shall provide the operator with notice of the date, time and place of the informal conference. The Division shall preside at the informal conference, during which the operator and Division personnel may present information and arguments regarding the allegations and requirements of the NOV or the enforcement order.

(B) Within twenty days after the informal conference, the Division shall issue a settlement agreement in which the violations from the NOV and/or enforcement order will be upheld, modified or stricken. The settlement agreement will include a schedule of required activity for resolution of the violations. If the terms and/or schedule in the settlement agreement are not satisfied, an enforcement order will be issued, re-issued or the Division may seek judicial enforcement.

6-1-3 Procedure on Revocation, Suspension, or Denial of Inspector Certification

(A) In any case where the Division denies a permit or the permittee is subject to suspension or revocation for a violation of Section 3-3 of these regulations, the Division shall notify the applicant or permittee in writing by first-class mail of the grounds for denial for the violation. The notice shall state that the applicant or permittee may request a hearing in accordance with 24-4-104 and 24-4-105 C.R.S.

(B) Upon notice of the revocation or suspension of any permit, the former permittee shall immediately surrender to the Division the permit and all copies thereof. In addition, the former permittee must surrender control of all explosive material in his/her possession to the Division or the law enforcement agency designated by the Division, or in the presence of the Division or the law enforcement agency designated by the Division surrender control of all explosive material in his/her possession to a valid Type II permittee until a final determination on the charges is made.

(C) The period of denial, suspension, or revocation shall be within the sound discretion of the Division.

(D) The Division may summarily suspend a permit if the Division has objective and reasonable grounds to believe that the public health, safety, or welfare requires emergency action. In such case, the Division shall notify the permittee in writing by first-class mail of the grounds for summary suspension and shall state that the permittee may request a hearing in accordance with 24-4-105 C.R.S.

Do Something

You have two options:

  1. Roll over and take it.
  2. Get Involved. If you don’t speak up the regulatory bodies will win and that means you are out of business.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

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