Indemnification fails again in a release. Parent of child having a birthday at climbing gym signed release for the injured child, not her own child.
Posted: September 14, 2020 Filed under: Climbing Wall, Connecticut, Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: adhesion, Adhesion Contract, apportionment, bargaining, Birthday Party, Climb, Climbing Wall, common law, contractual, discovery, Electronic Signature, genuine, Horseback, Indemnification, Indemnification Clause, indemnify, Indemnity, negotiation, patron's, quotation, recreational, Release, riding, rock, Rock Climb Fairfield, safe, signor, Snow Tubing, Third Party, training, visitor, Waiver Leave a commentIndemnification is rarely upheld in a release. The language does not meet the requirements needed under the law in most states to be an indemnification agreement.
Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261
State: Connecticut, Superior Court of, Judicial District of Fairfield At Bridgeport
Plaintiff: Cindy Cannon PPA Emma Cannon
Defendant: Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy
Plaintiff Claims: Negligence
Defendant Defenses: Indemnification by third party
Holding: for the Plaintiff
Year: 2020
Summary
Connecticut Climbing Gym had a mother of a group of girls at a gym for a birthday party sign release for all the girls. After one of the girls was injured and sued, the climbing gym attempted to recover money from the mother who signed the release based on the language of the release in its indemnification clause. That failed.
If failed so badly the court voided the entire release finding it to be an adhesion contract.
Indemnification agreements in releases never work to recover damages from an injured plaintiff.
Facts
We are never made aware of the facts that gave rise to the injury that created this decision. However, since the issue is solely who is liable under contract (release) for the injury it is not really relevant.
The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock climbing activities, thereby causing the minor plaintiff’s injuries. The defendants have filed an answer and eight special defenses to the amended complaint.
Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019.4 The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.
So, the parent of the birthday child signed releases for the children attending the birthday party. When one child was injured and sued the climbing gym, the climbing gym brought the parent who signed the release into the lawsuit based on the indemnification language in the releases she signed.
The release was signed electronically; however, this was not an issue the court seemed interested in looking at.
Analysis: making sense of the law based on these facts.
The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not.
The defendant Climbing Gym filed a motion for summary judgment arguing the mother should be liable for any damages they pay out on behalf of the injured minor child. This was based on two legal theories the first was the indemnification language found in the release itself.
The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5
The second defense or reason why the mother should be liable was based on common-law indemnification.
The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.
To succeed on an indemnification agreement the court found under Connecticut law the defendant climbing gym must show the following.
A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification.
An indemnification agreement in Connecticut has four elements.
“The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation.”
The plaintiff argued that the entire release was void because of two prior Connecticut court decisions.
Lastly, the Reardon court noted that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.
(See Reardon v. Windswept Farm, LLC, et al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330
and States that do not Support the Use of a Release.)
The release stated the mother who signed the release knew that “the defendants’ [facilities or equipment] were maintained in a reasonably safe condition. The court found this to be utterly bogus (as do I). The mother had no knowledge or experience rock climbing and no clue, whether the facility was in good condition.
To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces.
This was the same position a Connecticut court in Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500, that the requirements in the release were absurd because the knowledge necessary to know and understand if the activity was safe or the equipment was in good working order was solely within the knowledge and experience of the defendant.
As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.
The court then, using the issue of the ability of the mother who signed the release to contract about the equipment found the release to be a contract of adhesion.
Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms.
The issue of whether or not the release was an adhesion contract had been touched on lightly; however, the court eventually unloaded on the defendant finding the release to be a contract of adhesion, which voids releases in most states.
…that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.
Most states look at recreation, and since it is not a necessity, something needed for the modern survival of a person or family as not being contacts of adhesion. However, in Connecticut, there is no review of why the release is signed, just a review of the specific language in the release to determine if it is an adhesion contract.
The court then looked at the release under the requirements of the Connecticut Supreme Court and found the release lacking as well as the indemnification language in the release.
In the present case, the defendant’s facility was open to the general public regardless of a patron’s experience level. The minor plaintiff was a ten-year-old female. The defendants have admitted that they provided instruction to the group of minors attending the birthday celebration at the defendants’ facility. Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees. Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children. Thus, there is a question of fact as to whether or not Licata was adequately supervising the minor plaintiff Cannon when she fell. The court disagrees.
And then tore the release apart based on the lack of bargaining power between the parties.
In this case, signing the release provided by RCF was required as a condition of the plaintiff’s participation in the bouldering and rock climbing activities at the RCF facility. There was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not to allow the minor guests who accompanied her to the birthday party to participate. Licata had no bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. “This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.”
The court then looked at the common-law indemnification argument of the climbing gym. For one party to hold the other party liable under common law, the following facts must be in place.
(1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.”
Just looking at these requirements at a climbing wall, you know the mother of a child hosting a birthday party, there is not going to meet any of these requirements.
The defendant climbing wall could not produce any evidence that the mother was in exclusive control of the situation to the exclusion of all others.
The mother’s motion for summary judgment was granted, and the plaintiff’s indemnification claims failed.
So Now What?
Overall, the language in this release did not meet Connecticut law on many counts. However, the court found the language to be so one-sided and so bad that it found multiple ways to void it. Releases must be written for the activity, the guests and the law of the state where the release will be used. When you have a state like Connecticut, where releases are always on a thing line between valid and void, the language is critical to success.
Indemnification claims in a release have never worked. The only way that the claims may work, would be against third parties when the liability is created by the guest. An example of something like that might be a guest on a trip starts a forest fire. The special-use permit or concession agreement generally holds the outfitter/permittee/concessionaire liable for the damages caused by the fire. The indemnification clause might work in that situation to recover some of the money to reimburse the outfitter.
(Always make sure your outfitter liability policy provides coverage for actions to third parties by your guests.)
However, I have never found a case where indemnification has worked to recover damages for an injury from parents, friends or the leader of the group of kids. Maine looked at the language of indemnification in a release and seemed to indicate it would be supported if written correctly. See Maine follows the majority and does not allow a parent to sign away a minor’s right to sue.
The situation that created this mess is classic. A group of kids is coming to your business or program, and no one has notified the parents of a requirement to sign a release in advance. Upon arrival, someone who does not know or understand or a facility that does not care just has the adult with the kids sign the paperwork. That does not work.
Either get the parent’s signatures on documents or spend most of the time creating an assumption of the risk defense by educating the kids.
Don’t waste the paper or electrons having a youth leader or mother responsible of the group sign the release for the rest of the children in attendance. It just does not work.
This will be the fourth article I’ve written about Connecticut courts voiding releases. If you work or operate in Connecticut you are probably working in a state that does not support the use of a release.
For more information about indemnification see:
Indemnification agreements? What are you signing?
What do you think? Leave a comment.
 |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk
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Collecting accident reports without doing something with the reports guarantees you will lose a lawsuit and in this case possibly for gross negligence.
Posted: May 4, 2020 Filed under: Climbing Wall, Utah | Tags: Accident Reports, Bouldering, Bouldering Wall, Climbers, Climbing Gym, Climbing Wall, concealed, damaged, district court, Failue to Act, floor, Gross negligence, Hazard, Incident Reports, indifference, injuries, material fact, Mats, Padding, patches, quotation, reliability, simplified, slight care, Steps, Summary judgment, tear, vinyl Leave a commentClimbing gym had a collection of accident reports that were based on the same set of facts. Failure to act on the reports and solve the problem was enough proof for the Utah appellate court to hold the actions of the defendant gym were possibly grossly negligent.
Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
State: Utah; Court of Appeals of Utah
Plaintiff: Scott Howe
Defendant: Momentum LLC
Plaintiff Claims: Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area
Defendant Defenses: the actions of the defendant did not rise to the level of gross negligence.
Holding: For the Plaintiff
Year: 2020
Summary
Incident and Accident reports that have not been acted on and the issues that caused the accidents which had not been fixed, were proof that the defendant climbing gym possibly acted in a grossly negligent way.
Facts
Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.
But Momentum’s management team deemed these tear patches a hazard for tripping, so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.
Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.
In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.
Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”
The defendant Momentum filed a motion for summary judgment to dismiss the gross negligence claims of the plaintiff. The trial court judge ruled the plaintiff had shown enough action and inaction on the part of the gym that the plaintiff could proceed to trial on a claim of gross negligence. The defendant appealed this ruling.
The decision also looks at the qualifications of the plaintiff’s expert witness. However, there is nothing in the decision that warrants review here.
Analysis: making sense of the law based on these facts.
The court’s analysis of the law was quite good and balanced. It’s application of the law to the facts was clear-cut. The court defined gross negligence under Utah’s law as “…the failure to observe even slight care….”
A broader definition was defined as:
“…the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff….
The court concluded its review of gross negligence with this statement about the actions of the defendant. “…Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent….”
The court then followed with this statement.
It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence,….
At this point, in the opinion it is clear the court looked at Momentum’s failure to act after collecting more than 13 incident reports as gross negligence.
It is also clear that the court believes that failure to act on the defendant’s own incident reports is a major failure of the defendant. Why have accident and incident reports if you do nothing about them.
These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding.
The court gave the climbing gym some benefit because, after the first five accidents, they placed additional padding over the torn spots. However, having eight additional incidents, with the torn padding was more than the court would allow.
The court then summed up the accident reports that the defendant compiled.
…onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.
The court found that collecting injury reports, which were almost identical fact situations, and not doing anything about it were proof of gross negligence. The appellate court held the trial court was correct in denying the defendant climbing gym’s motion for summary judgment to dismiss the gross negligence claims.
So Now What?
Incident reports are legal explosives just waiting to go off when a plaintiff’s attorney gets them. If you collect them, then you MUST do something with them.
Each report MUST be analyzed. It must be compared with all other reports to see trends or to determine what the cause or problem is. Then something must be done to correct the problem.
If you decided the report is a rare instance or something outside of your ability to control it, then you must indicate that in your notes or on your response to the report. If a second accident occurs in the same fact situation, then it is no longer a rare case, it is something you must act on.
If not, like in this case, the reports prove foreseeability and in this case, prove that failing to act when the defendant knew a problem existed, was enough to support a claim of gross negligence.
What do you think? Leave a comment.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Outdoor Recreation Insurance, Risk Management, and Law
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
Posted: April 23, 2020 Filed under: Climbing Wall, Utah | Tags: Accident Reports, Bouldering, Bouldering Wall, Climbers, Climbing Gym, Climbing Wall, concealed, damaged, district court, Failue to Act, floor, Gross negligence, Hazard, Incident Reports, indifference, injuries, landing, material fact, Mats, Padding, patches, quotation, reliability, simplified, slight care, Steps, Summary judgment, tear, vinyl Leave a commentTo Read an Analysis of this decision see: Collecting accident reports without doing something with the reports guarantees you will lose a lawsuit and in this case possibly for gross negligence.
Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
Howe v. Momentum LLC
Court of Appeals of Utah
January 3, 2020, Filed
No. 20190187-CA
[*P1] Scott Howe sued Momentum LLC under a theory of gross negligence1 for injuries he sustained while “bouldering.”2 Momentum moved for summary judgment, which the district court denied because the disputed facts were sufficient to raise a jury question. The district court also ruled that Howe’s expert (Expert) was qualified to testify on the industry standard of care. The matter is before this court on an interlocutory appeal challenging the court’s denial of the summary judgment motion and its decision to permit Expert to testify. We affirm and remand for further proceedings.
BACKGROUND3
[*P2] Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl [**2] began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.
[*P3] But Momentum’s management team deemed these tear patches a hazard for tripping,4 so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.
[*P4] Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping [**3] from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.
[*P5] In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.
[*P6] Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”
[*P7] Howe designated [**4] a liability Expert. Expert has a bachelor’s degree in chemical engineering and petroleum refining, as well as a master’s degree in metallurgical and materials engineering. His professional experience includes research and development engineering as well as forensic engineering. Expert owns a forensic engineering company that specializes in “metallurgical, materials, and mechanical failure analysis”; “materials evaluation and testing”; “product liability and analysis”; “fire and explosion cause and origin”; “industrial, recreational, and construction accident analysis”; and “chemical and mechanical systems failure analysis.” Expert has been an expert witness in numerous cases, one of which involved a mechanical failure that caused an indoor climbing accident. He has also had professional experience with evaluating impact attenuation surfaces in the ski industry.
[*P8] Expert opined that Momentum did not take appropriate steps to protect climbers in the bouldering area. Indeed, Expert concluded that
Momentum significantly elevated the risk of injury to climbers in the bouldering area by (1) failing to repair, restrict access, clearly mark, cordon off, close walls, or close areas around and [**5] near the areas where the vinyl padding cover was damaged, and by (2) placing the [mats] over the damaged areas of the padding cover, thus concealing the hazard created by the damage.
In Expert’s opinion, appropriate steps to remedy the problem could have included using “warning signs, closing the sections of the floor or wall near damaged areas,” removing the hand-and foot-holds above the damaged padding, making inaccessible the damaged padding areas, or repairing the damaged padding. During deposition testimony, Expert explained that “those are ways to prevent the public from interacting with the obvious hazard created by the opening in the pads.” This approach was based on his “engineering background and experience in dealing with hazards.” In short, his opinion is that “gluing and adhering . . . a large patch of vinyl over the tear” would have been safer than using the mats.
[*P9] Momentum moved for summary judgment, arguing the undisputed facts established that it exercised at least slight care to protect climbers using its facility, which meant Howe could not demonstrate gross negligence. Momentum also moved to exclude Expert, claiming he was unqualified to opine upon the standard of [**6] care in the indoor-climbing industry. The district court denied these motions, and Momentum successfully petitioned this court for an interlocutory appeal.
ISSUES AND STANDARDS OF REVIEW
[*P10] Momentum raises two issues on appeal. First, it claims the district court erred when it denied Momentum’s motion for summary judgment. HN1[
] Denials of summary judgment are questions of law reviewed for correctness. Glenn v. Reese, 2009 UT 80, ¶ 6, 225 P.3d 185.
[*P11] Second, Momentum claims the district court erred when it denied Momentum’s motion to exclude Expert. HN2[
] A district court’s determination regarding the admissibility of expert testimony is reviewed for abuse of discretion. Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 16, 269 P.3d 980.
ANALYSIS
I. Summary Judgment
[*P12] HN3[
] Summary judgment shall be granted “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). In this case, the district court denied Momentum’s motion for summary judgment on Howe’s claim for gross negligence, based on its finding that there were “numerous genuine issues of disputed material fact.”
[*P13]
HN4[
] In reviewing a district court’s summary judgment decision, appellate courts “must evaluate all the evidence and all reasonable inferences fairly drawn from the evidence [**7] in a light most favorable to the party opposing summary judgment to determine whether there is a material issue of fact to be tried.” Horgan v. Industrial Design Corp., 657 P.2d 751, 752 (Utah 1982). “Gross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result. Summary judgment is proper where reasonable minds could reach only one conclusion based on the applicable material facts.” Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified).
[*P14] Citing Penunuri and Blaisdell v. Dentrix Dental Systems, Inc., 2012 UT 37, 284 P.3d 616, Momentum argues that “the undisputed material facts of this case show that [it] exercised care, far more than even slight care, and was not careless or reckless, let alone to a degree that shows utter indifference,” and that therefore “the district court erred in denying Momentum’s motion for summary judgment.” (Quotation simplified.) Momentum points out that it “[u]ndisputedly . . . took steps to protect climbers from being injured by the wear and tear damage that had developed in its primary padding,” including using welded patches, “thinn[ing] out” the climbing routes, and, “[a]fter determining that the . . . patches created tripping hazards,” using the mats and monitoring their positioning. In Momentum’s view, these steps [**8] demonstrate that it took at least slight care and was not utterly indifferent to the consequences that could result from a failure to take care.
[*P15] Howe acknowledges that Momentum took these steps, but argues they were inadequate. He further asserts that Momentum’s use of the pads to cover the defective flooring concealed the risk and rendered the climbers “defenseless against the dangerous conditions known to Momentum,” and claims that his “inability to see the dangerous flooring over which he was climbing contributed to his injuries.” At oral argument before this court, Howe argued this concealment “dramatically magnified” the risk of harm.
[*P16] We note the tension between our supreme court’s recent articulation of the elements of gross negligence as “the failure to observe even slight care,” Penunuri, 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified), and the language of a subsequent paragraph suggesting that “the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff,” id. ¶ 37. We can envision situations in which the straightforward application of the elements identified [**9] in paragraph 35 might dictate a grant of summary judgment in favor of the defendant while the application of the elements identified in paragraph 37 might dictate the denial of summary judgment. But we need not explore this tension further here because Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent, even assuming that paragraph 35 sets forth the correct formulation of the elements of gross negligence.
[*P17] Although Momentum took certain steps to remedy the problem created by the deterioration of the foam padding, injury incidents continued to occur even after implementation of Momentum’s injury-avoidance strategy. HN5[
] It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence, one sufficient to withstand summary judgment. See id. ¶ 16 (“Summary judgment dismissing a gross negligence claim is appropriate where reasonable minds could only conclude that the defendant was not grossly negligent under the circumstances . . . .”). We cannot see much of a distinction [**10] between that situation and the case Howe brings here: a defendant takes some action in response to injury incidents, and therefore arguably demonstrates slight care in the beginning, but takes no additional action after injury incidents continue to occur following implementation of its original strategy. Stated another way, we are not persuaded that a defendant who simply relies on a repeatedly-failed strategy to avert injury from a known risk is entitled to judgment as a matter of law on the “slight care” question.
[*P18] In this case, five incidents, some of which involved injuries, motivated Momentum to take steps to address the problem and ultimately to place mats over the cracked foam padding. These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding. But by the time Howe was injured, eight more injuries had been reported to Momentum, even after it had thinned the routes and put down the extra pads. These eight additional climbers were injured in roughly the same manner as Howe: when they dropped from the bouldering wall [**11] onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.
[*P19] Because a reasonable finder of fact could determine, on this record, that Momentum was grossly negligent, the district court’s denial of summary judgment was appropriate.
II. Expert Testimony
[*P20] HN6[
] The Utah Rules of Evidence allow “a witness who is qualified as an expert by knowledge, skill, experience, training, or education” to “testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Furthermore, “[s]cientific, technical, or other specialized knowledge may serve as the basis for expert testimony only if there is a threshold showing that the principles or methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (3) have been reliably applied to the facts.” Id. R. 702(b).
[*P21] Momentum argues the district court [**12] abused its discretion in denying its motion to exclude Expert. First, it contends Expert’s experience as an engineer did not qualify him to testify as to the applicable standard of care in the indoor-climbing industry. Second, Momentum contends that, because Expert did not evaluate or test vinyl floor padding or the mats used to cover the damaged areas, Expert’s opinions did not meet the reliability standard imposed by rule 702 of the Utah Rules of Evidence.
[*P22] But as Howe points out, Expert’s training as a professional engineer with experience in “forensic engineering and accident analysis in recreational settings,” “slip and fall accident analysis,” and “warnings, design, and standard of care issues” qualifies him to assist the finder of fact in making a determination of the standard of care in the indoor-climbing industry.
[*P23] Expert’s proposed testimony is that Momentum acted with indifference toward the safety of its members when it placed mats over the damaged padding; Expert opines that Momentum could have and should have taken alternative steps to mitigate the effects of the worn padding. As Howe points out, and the district court agreed, this testimony “will be helpful to the jury to understand the options Momentum had [**13] in addressing the damaged vinyl” and to avoid speculation regarding its options.
[*P24]
HN7[
] Further, as to reliability, Expert’s opinion is based “upon [his] engineering education, experience, and training” and “knowledge . . . gained from being a forensic engineer . . . and studying padding and other types of accidents.” In determining whether to allow an expert to offer an opinion, the district court’s role is that of a “gatekeeper,” meant “to screen out unreliable expert testimony.” Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 28, 269 P.3d 980 (quotation simplified). The court is afforded “broad discretion” when making this determination, and we “will reverse its decision only when it exceeds the bounds of reasonability.” Id. ¶ 31 (quotation simplified). Here, the court’s determination that Expert’s opinion was sufficiently reliable does not “exceed[] the bounds of reasonability,” and we decline to reverse it. See id. (quotation simplified). Expert’s opinion meets the threshold showing of reliability and “will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Therefore the district court did not abuse its discretion in denying Momentum’s motion to exclude his testimony.
CONCLUSION
[*P25] Because there are material facts in [**14] dispute, the district court properly denied Momentum’s summary judgment motion. Furthermore, the court did not abuse its discretion in denying Momentum’s motion to exclude Expert. We affirm the district court’s rulings on these points and remand for further proceedings.
G-YQ06K3L262
Cizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320
Posted: November 15, 2019 Filed under: Climbing Wall, Illinois, Legal Case, Release (pre-injury contract not to sue) | Tags: activities, Ankle, Bouldering, Bouldering Gym, Climbers, Climbing, Climbing Gym, Climbing Wall, Climbing Wall Association, Customers, CWA, deposition, Employees, exculpatory, facilities, Falling, feet, floor, Gym, Harness, height, Illinois, injuries, jumped, Manual, mat, North Wall, North Wall Inc., parties, rock, rope, Summary judgment, trained, Trial court, video, waiver form, wanton conduct, willful Leave a commentTo Read an Analysis of this decision see
Illinois upholds release stopping a claim for injury from bouldering at defendant North Wall.
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.
Judges: PRESIDING JUSTICE HUDSON delivered the judgment of the court. Justices Schostok and Spence concurred in the judgment.
PRESIDING JUSTICE HUDSON delivered the judgment of the court.
Justices Schostok and Spence concurred in the judgment.
ORDER
[*P1] Held: Plaintiff validly waived any cause of action stemming from defendant‘s alleged negligence and failed to identify facts from which willful and wanton conduct could be inferred; therefore, trial court‘s grant of summary judgment was proper.
[*P2]
I. INTRODUCTION
[*P3]
Plaintiff, Patricia Cizek, appeals an order of the circuit court of McHenry County granting summary judgment in favor of defendant, North Wall, Inc. (doing business as North Wall Rock Climbing Gym). For the reasons that follow, we affirm.
[*P4]
II. BACKGROUND
[*P5]
Defendant operates an indoor rock climbing gym; plaintiff was a customer at the gym when she was injured. Plaintiff and a friend, Daniel Kosinski, attended the gym. Plaintiff had never been climbing before. At some point, after having been climbing for a while, plaintiff became tired and jumped down or fell from the climbing [**2]
wall. Plaintiff‘s right foot landed on a mat, but her left foot landed on the floor. Plaintiff‘s left ankle broke.
[*P6]
In her deposition (taken December 23, 2015), plaintiff testified as follows. She stated that she had been a member of a health club for 10 years, where she primarily swam and did yoga. Prior to February 14, 2013, plaintiff had no experience rock climbing or bouldering, though she had observed people rock climbing in the past. She agreed that she understood that rock climbing involved being at a height higher than the ground.
[*P7]
On February 14, 2013, she attended respondent‘s gym with Kosinski, a coworker. She characterized Kosinski as a “good climber, experienced.“ Kosinski told her climbing was one of his hobbies. She did not think climbing would involve any risk because “[k]ids were doing it.“ Further, climbing occurred at a gym, which she viewed as a “safe zone.“ Also, based on what she saw on television, she believed she would be using a harness. She and Kosinski did not consume any alcohol prior to arriving at North Wall, and she was not taking any medication at the time.
[*P8]
When they arrived, Kosinski paid the fee. Plaintiff signed and returned a waiver form. Kosinski [**3]
had climbed at North Wall before. At the time, plaintiff did not know whether Kosinski was a member at North Wall, though she later learned that he had been at the time she was injured. Plaintiff acknowledged that she did, in fact, read and understand the waiver form. She did not look at the back of the form, but she recalled that she was given only one sheet of paper. She was provided with a pair of climbing shoes.
[*P9]
When she first arrived, she observed “children in harnesses with ropers.“ There were two large green pads that covered most of the floor. Plaintiff did not recall seeing any bulletin boards or posters. She also did not recall seeing a black line running “continuously around the parameter [sic] of the climbing wall.“ At the time of the deposition, she was aware that such a line existed. Beyond signing the waiver when she arrived, she had no further interaction with respondent‘s staff. Plaintiff reviewed a number of pictures of the facility and testified that it had changed since her accident. She also identified a photograph taken in October 2013 that showed where she was injured.
[*P10]
She and Kosinski then proceeded to the climbing wall. She asked, “What about my harness?“ Kosinski [**4]
said that harnesses were “more trouble than they were worth.“ Plaintiff stated that she “kind of was dumbfounded.“ Plaintiff proceeded to climb without a harness. Kosinski went first. He told her to follow some yellow markers, as they were for beginners. While she watched Kosinski, she did not see a black, horizontal line on the wall. Prior to climbing, Kosinski placed a mat below the area in which he intended to climb. Plaintiff found climbing “very difficult,“ explaining that “[y]ou use your core.“ Plaintiff would “shimmy“ down when she got “sore.“ She added, “[i]ts tough work getting up there, so I need[ed] to get down.“ She would jump down from two to three feet off the ground. Plaintiff made three or four climbs before she was injured.
[*P11]
Large green mats covered almost the entire floor of the gym. There were also smaller black mats that could be placed in different locations by climbers. Kosinski was not near plaintiff when she was injured. Before being injured, plaintiff had moved to a new climbing area. She placed a black mat where she planned on climbing. A green mat also abutted the wall in that area. The black mat was three to six inches away from the wall.
[*P12]
Plaintiff was injured [**5]
during her third attempt at climbing that day, and she did not feel comfortable climbing. She explained that she was not wearing a harness, but was trying to do her best. There was a part of the floor that was not covered by a green mat in this area, which is where plaintiff landed when she was injured. Plaintiff stated she jumped off the wall and when she landed, her right foot was on a green mat, but her left foot landed on the uncovered floor. She felt pain in her left ankle and could not put weight on it. Kosinski and an employee came over to assist plaintiff. Kosinski got plaintiff some ibuprofen. Plaintiff felt “a little dizzy.“ An employee called the paramedics. The paramedics stated that plaintiff‘s ankle was broken. They assisted plaintiff to Kosinski‘s car, and he drove her to St. Alexius hospital. At the hospital, they x-rayed plaintiff‘s ankle and confirmed that it was broken. She was given some sort of narcotic pain killer, and her ankle was placed in a cast. Plaintiff was discharged and told to follow up with an orthopedic surgeon.
[*P13]
She followed up with Dr. Sean Odell. Odell performed a surgery six days after the accident. He installed eight pins and a plate. Plaintiff [**6]
had broken both leg bones where they intersect at the ankle. She took Norco for months following the surgery. She engaged in physical therapy for years, including what she did at home. The hardware was removed in December 2013. Her ankle continues to be stiff, she has trouble with many activities, and she takes ibuprofen for pain several times per week.
[*P14]
On cross-examination, plaintiff stated that she read the wavier form before she signed it (though, she added, she did not “study“ it). Other climbers were climbing without ropes, and the only people she saw using ropes were children. She was not offered a rope or harness. Plaintiff still takes prescription pain killers on occasion. However, she does not like to take it due to its side effects.
[*P15]
A discovery deposition of Daniel Kosinski was also conducted. He testified that he knew plaintiff from work. She was a travel agent that did “all the travel arrangements for [his] company.“ He and plaintiff were friends, though they do not associate outside of work.
[*P16]
Kosinski stated that rock climbing is one of his hobbies. He started climbing in 2008. He initially climbed at Bloomingdale Lifetime Fitness. They eventually offered him a job, and [**7]
he worked there for four or five years. His title was “[r]ock wall instructor.“ He described bouldering as climbing without a rope. He stated that it “is a little more intense.“ Generally, one climbs at lower levels, and there are mats, as opposed to ropes, for protection. He added that “[t]here‘s not really much instruction [to do] in terms of bouldering.“ He explained, “bouldering, there‘s just—okay, this is how high you can go and that‘s pretty much it.“ There was no bouldering line at Lifetime Fitness. However, they did have a rule that you should not climb above the height of your shoulders. A spotter is not typically required when bouldering.
[*P17]
He and plaintiff went to North Wall on February 14, 2013. He was a member and had been there “multiple times“ previously. When he first went to North Wall, he signed a waiver and viewed a video recording that concerned safety. Due to height considerations, Kosinski characterized North Wall as “pretty much a dedicated bouldering gym.“ North Wall offers top rope climbing, which Kosinski said was often used for children‘s parties.
[*P18]
Kosinski believed he was aware that plaintiff did not have any climbing experience prior to their trip to North [**8]
Wall. He could not recall whether there were any safety posters displayed. He and plaintiff had a conversation about the risks involved in rock climbing. He also explained to her what bouldering entailed and that a rope was not used. He noted that plaintiff was “shaky“ or “nervous“ on her first climb. Kosinski told plaintiff that if she was not comfortable, she should come down. He did not recall a bouldering line at North Wall and believed it was permissible to climb all the way to the top when bouldering. He did not recall whether plaintiff had been provided with climbing shoes. Plaintiff was in better than average physical condition.
[*P19]
When plaintiff was injured, she was climbing on a wall called Devil‘s Tower. It was toward the back, right of the facility. During the climb on which plaintiff was injured, Kosinski observed that plaintiff was “stuck“ at one point and could not figure out what to do next. He walked over to assist her. She was four or five feet off the ground. Plaintiff‘s left foot and hand came off the wall, and her body swung away from the wall (counterclockwise). She then fell and landed on the edge of a mat. Kosinski stated she landed “half on the mat“ and was rotating [**9]
when she landed. After plaintiff landed, Kosinski went over to check on her. Plaintiff said she believed she had broken her ankle. He did not know whether plaintiff had applied chalk to her hands before, nor did he recall what she was wearing. It did not appear that plaintiff had control of herself before she fell off the wall and injured herself. It also did not appear to him that plaintiff was attempting to get down from the wall or that she deliberately jumped.
[*P20]
Kosinski told an employee of respondent‘s to call the paramedics. Kosinski recalled an employee offering plaintiff ice. Plaintiff declined a ride to the hospital in an ambulance, and Kosinski drove her there instead.
[*P21]
Kosinski testified that he and plaintiff had never been romantically involved. He recalled that plaintiff used crutches following the injury and took some time off from work. According to Kosinski, she used crutches for “quite a while.“
[*P22]
On cross-examination, Kosinski explained that a spotter, unlike a belayer, only has limited control over a climber. A spotter “just direct[s] them to fall onto a mat and not hit their head.“ It would have been possible for plaintiff to use a rope while climbing (assuming one was [**10]
available). Kosinski stated that use of a rope might have prevented plaintiff‘s injury; however, it might also have caused another injury, such as plaintiff hitting her head on something. Kosinski agreed that he climbed twice a week or about 100 times per year. He did not recall an employee ever advising him about not climbing too high when bouldering. An automatic belayer might have lessened the force with which plaintiff landed and mitigated her injury. It was about 25 to 30 feet from the front desk to the place where plaintiff fell. The safety video new customers had to watch was about two minutes long. He did not observe plaintiff watching the video.
[*P23]
Prior to climbing, Kosinski told plaintiff that climbing was a dangerous sport and that they would be climbing without ropes. He did not recall any employee of respondent testing plaintiff with regard to her climbing abilities. After refreshing his recollection with various documents, Kosinski testified that they had been climbing for about half an hour when plaintiff was injured. He agreed that plaintiff was an inexperienced climber.
[*P24]
On redirect-examination, he confirmed that he was not present when plaintiff first checked in at North [**11]
Wall. He had no knowledge of what transpired between plaintiff and respondent‘s employees at that point.
[*P25]
Jason R. Cipri also testified via discovery deposition. He testified that he had been employed by respondent as a manager for two years, from 2012 to 2014. His immediate supervisor was Randy Spencer (respondent‘s owner). When he was hired in 2012, Cipri was trained on office procedures, logistics, how to deal with the cash register, where to put the mail, and the use of a computer system. He was also trained on dealing with customers. Cipri started climbing in 2000 and had worked for respondent for about a year around the time of plaintiff‘s injury.
[*P26]
Novice climbers were supposed to sign a waiver and view a video. Spencer trained Cipri to go over “any and all safety procedures“ with new climbers. Cipri was trained to “interact with the customers to decide and figure out their climbing ability.“ Three types of climbing occurred at North Wall: bouldering, top-rope climbing, and lead climbing (also known as sport climbing). Plaintiff was bouldering when she was injured. Bouldering does not involve the use of ropes. Cipri estimated about 90 percent (or at least the “vast majority“) of [**12]
the climbing at North Wall is bouldering. Cipri received very specific training regarding how to execute waiver forms. Customers were instructed to read the waiver form.
[*P27]
There was a “bouldering line“ on the climbing wall. People engaged in bouldering were not supposed to bring their feet above that line. The bouldering line is described in the waiver. However, Cipri explained, having a bouldering line is not common. He added, “We all kind of thought it was cute, but it didn‘t really serve a purpose.“
[*P28]
Cipri was working as a manager on the day plaintiff was injured. He recalled that an employee named Miranda, whom he called a “coach,“ came and told him that someone had been injured. He called the paramedics, as that was what plaintiff wanted. He brought plaintiff some ice. He described Kosinski (whom he initially called Eric) as a “pretty novice climber.“ Cipri did not know whether plaintiff was above the bouldering line when she fell. Plaintiff did not appear intoxicated or smell of alcohol. She did not appear to have any injuries besides the one to her ankle. Plaintiff would not have been allowed to use a rope because “you have to be certified and taken through a lesson to use the [**13]
ropes.“
[*P29]
To the left side of the customer-service counter, there were posters addressing “safety and such.“ Cipri filled out an accident report concerning plaintiff‘s injury. Cipri denied that he was terminated by respondent and that the owner ever accused him of using drugs on the job. There was no manual on “how to run North Wall,“ but there was an “unofficial manual“ kept on the front desk. This was comprised of a couple of binders that concerned how to teach climbing, use of the telephone, memberships, employee conduct, and various rules. He did not recall anything specific relating to dealing with novice climbers. There was a copy of the Climbing Wall Association manual in a file-cabinet drawer; however, he never used it for anything. Cipri did not recall Spencer instructing him to use this manual. Spencer did train employees on climbing, particularly new hires. Cipri described Spencer as an “absentee“ manager.“ He would come in early in the day, and Cipri typically would not see him.
[*P30]
Aside from ascertaining a customer‘s age and climbing experience, they did nothing else to assess his or her proficiency. They would show new climbers a video and explain the rules of the gym to them. [**14]
Cipri could not say whether a copy of a manual shown to him was the manual they were actually using when he worked for respondent. However, he stated various forms shown to him, including one concerning bouldering orientation, were not used when he was there. Spencer never told Cipri to get rid of any document; rather, he was adamant about keeping such material. Weekly inspections of the premises were conducted, but no records documenting them were maintained.
[*P31]
On cross-examination, Cipri stated that his sister had been hired to rewrite the operations manual. One document stated, “If the facility allows bouldering, the staff provides an orientation before novice climbers are allowed to boulder without assistance or direct supervision.“ Cipri testified that this was not generated by respondent, but they followed it. Employees working the counter were trained to have new customers watch a video, instruct them on safety procedures, and assess their abilities. To the left of the front door, posters from the Climbing Wall Association were displayed. There was also one near the back door. Cipri did not remember what they were about beyond that they concerned “stable rules“ of the Climbing [**15]
Wall Association.
[*P32]
Cipri did not witness plaintiff‘s accident, and he did not recall being present when she was checked in. He never had rejected a customer previously, but he had the authority to do so. He never encountered a situation where he felt it was necessary.
[*P33]
On redirect-examination, Cipri agreed that beyond verbal questioning, they did not test new customers. They did not “inspect or observe climbers while they were actually climbing to determine competency.“ They did “orientate climbers“ and show them the video. Further, new climbers read the waiver forms. Climbers were instructed on general and bouldering safety rules. Cipri was aware of an earlier incident where a young boy cut his head while climbing. Cipri stated that it was arguable that climbing with a rope was more dangerous than bouldering because a person could get tangled in the rope. Cipri did not give plaintiff an orientation, and he had no recollection of anyone giving her one.
[*P34]
Randall Spencer, respondent‘s owner, also testified via discovery deposition. Spencer testified that North Wall is “pretty much run by employees“ and he does not “have much of a role anymore.“ The business is run by a manager, Eric Paul. [**16]
Spencer did not have an independent recollection of plaintiff‘s accident. Cipri was the manager at the time. There was another manager as well named Chuck Kapayo, who Spencer described as co-managing with Cipri. Anything Spencer knew about plaintiff‘s accident he learned from Cipri or another employee named Terri Krallitsch. Usually, two people worked at any given time, although, sometimes, only one would be present.
[*P35]
Spencer identified the waiver form signed by plaintiff. However, he acknowledged that it was not the original. The purpose of the waiver was to inform a customer about the danger involved in rock climbing. Further, employees were “trained to talk about the rules and safety items when [customers] first come into the gym.“ In addition, there were posters, four of which were visible at the entrance. The posters were produced by the Climbing Wall Association as part of their Climb Smart Program. Spencer added that they say “[c]limbing is [d]angerous.“ One says “Bouldering is Dangerous Climb Smart.“ These were the only ways customers were informed of the dangers of rock climbing. Customers are not tested as to their climbing proficiency, and they are not trained unless they [**17]
sign up for a class. Customers were told not to climb above the bouldering line when bouldering.
[*P36]
Employees were instructed to follow the policies of the Climbing Wall Association. If an employee did not spend time with a new customer “explaining the policies and procedures of bouldering, that would be a violation of company policy.“ This is true even if the new customer is accompanied by a more experienced climber.
[*P37]
Spencer explained that bouldering is climbing without a rope. The bouldering line is a “little bit over three feet“ from the floor. Climbers were to keep their feet below the bouldering line. The accident report prepared by Cipri states plaintiff‘s feet were six feet off the floor when she fell. The only equipment provided by respondent to plaintiff was climbing shoes. Respondent could have provided a harness, and plaintiff could have been belayed. They did not provide chalk to plaintiff.
[*P38]
Spencer testified that the waiver form states that it “is not intended to provide a description of all risks and hazards.“ He explained that this means it is possible to get hurt in a manner not described in the waiver. There was no formal training program for employees. Managers trained [**18]
new employees, and managers themselves came to respondent already having climbing experience. In 2013, respondent had no auto-belay system in place. Spencer testified that he fired Cipri because of “suspected drug use.“
[*P39]
The released signed by plaintiff states, in pertinent part, as follows. Initially, it states that plaintiff is giving up any right of actions “arising out of use of the facilities of North Wall, Inc.“ Plaintiff then acknowledged that “the sport of rock climbing and the use of the facilities of North Wall, Inc., has inherent risks.“ It then states that plaintiff has “full knowledge of the nature and extent of all the risks associated with rock climbing and the use of the climbing gym, including but not limited to“ the following:
“1. All manner of injury resulting from falling off the climbing gym and hitting rock faces and/or projections, whether permanently or temporarily in place, or on the floor or loose. 2. Rope abrasions, entanglement and other injuries ***. 3. Injuries resulting from falling climbers or dropped items ***. 4. Cuts and abrasions resulting from skin contact with the climbing gym and/or the gym‘s devices and/or hardware. 5. Failure of ropes, slings, [**19]
harnesses, climbing hardware, anchor points, or any part of the climbing gym structure.“
Plaintiff then waived any cause of action “arising out of or in any way related to [her] use of the climbing gym whether that use is supervised or unsupervised, however the injury or damage is caused.“
[*P40]
The trial court granted summary judgment in favor of defendant. It noted that case law indicates that a competent adult recognizes the danger of falling from a height. It next observed that the waiver plaintiff signed stated that she was releasing defendant from “all manner of injury resulting from falling off the climbing gym.“ The trial court then rejected plaintiff‘s argument that this language was too general to be enforced. It further found that plaintiff had set forth no facts from which willful and wanton conduct could be inferred. This appeal followed.
[*P41]
III. ANALYSIS
[*P42]
We are confronted with two main issues. First is the effect of the waiver form signed by plaintiff. Second, we must consider whether plaintiff‘s count alleging willful and wanton conduct survives regardless of the waiver (an exculpatory agreement exempting liability for willful and wanton conduct would violate public policy (Falkner v. Hinckley Parachute Center, Inc., 178 Ill. App. 3d 597, 604, 533 N.E.2d 941, 127 Ill. Dec. 859 (1989))). [**20]
Plaintiff‘s brief also contains a section addressing proximate cause; however, as we conclude that the waiver bars plaintiff‘s cause of action, we need not address this argument.
[*P43]
A. THE WAIVER
[*P44]
The trial court granted summary judgment on all but the willful and wanton count of plaintiff‘s complaint based on plaintiff‘s execution of a waiver. As this case comes to us following a grant of summary judgment, our review is de novo. Bier v. Leanna Lakeside Property Ass‘n, 305 Ill. App. 3d 45, 50, 711 N.E.2d 773, 238 Ill. Dec. 386 (1999). Under the de novo standard of review, we owe no deference to the trial court‘s decision and may freely substitute our judgment for that of the trial court. Miller v. Hecox, 2012 IL App (2d) 110546, ¶ 29, 969 N.E.2d 914, 360 Ill. Dec. 869. Summary judgment is a drastic method of resolving litigation, so it should be granted only if the movant‘s entitlement to judgment is clear and free from doubt. Bier, 305 Ill. App. 3d at 50. It is appropriate only where “the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmovant, show that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law.“
Id. Finally, it is axiomatic that we review the result to which the trial court arrived at, rather than its reasoning. In re Marriage of Ackerley, 333 Ill. App. 3d 382, 392, 775 N.E.2d 1045, 266 Ill. Dec. 973 (2002).
[*P45]
Though we are not bound by the trial court‘s reasoning, [**21]
we nevertheless find ourselves in agreement with it. Like the trial court, we find great significance in the proposition that the danger of falling from a height is “open and obvious“ to an adult. Ford ex rel. Ford v. Narin, 307 Ill. App. 3d 296, 302, 717 N.E.2d 525, 240 Ill. Dec. 432 (1999); see also Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 448, 665 N.E.2d 826, 216 Ill. Dec. 568 (1996); Mount Zion Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 118, 660 N.E.2d 863, 214 Ill. Dec. 156 (1995) (“In Illinois, obvious dangers include fire, drowning in water, or falling from a height.“). Thus, for the purpose of resolving this appeal and in the absence of evidence to the contrary, we will presume that plaintiff was aware that falling off the climbing wall presented certain obvious dangers.
[*P46]
We also note that, in Illinois, parties may contract to limit the liability for negligence. Oelze v. Score Sports Venture, LLC, 401 Ill. App. 3d 110, 117, 927 N.E.2d 137, 339 Ill. Dec. 596 (2010). Absent fraud or willful and wanton negligence, exculpatory agreements of this sort are generally valid. Id. An agreement may be also vitiated by unequal bargaining power, public policy considerations, or some special relationship between the parties (Id.); however, such issues are not present here. This court has previously explained that “[a]n exculpatory agreement constitutes an express assumption of risk insofar as the plaintiff has expressly consented to relieve the defendant of an obligation of conduct toward him [or her].“
Falkner, 178 Ill. App. 3d at 602.
[*P47]
Agreements of this nature “must be expressed in clear, explicit [**22]
and unequivocal language showing that such was the intent of the parties.“
Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill. App. 3d 1037, 1043, 501 N.E.2d 268, 103 Ill. Dec. 247 (1986). That is, it must “appear that its terms were intended by both parties to apply to the conduct of the defendant which caused the harm.“
Id., (quoting Restatement (Second) of Torts, Explanatory Notes ‘ 496B, comment d, at 567 (1965)). Nevertheless, “The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract was entered into.“
Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 585, 559 N.E.2d 187, 147 Ill. Dec. 187 (1990). Thus, an exculpatory agreement will excuse a defendant from liability only where an “injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.“
Id. The foreseeability of the danger defines the scope of the release. Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 14, 377 Ill. Dec. 930, 2 N.E.3d 1211.
[*P48]
Numerous cases illustrate the degree of specificity required in an exculpatory agreement necessary to limit a defendant‘s liability for negligence. In Garrison, 201 Ill. App. 3d at 583, the plaintiff was injured when a weighted bar rolled off a grooved rest on a bench press and landed on his neck. The plaintiff alleged that the bench press was improperly designed and that the defendant-gym was negligent in providing it when it was not safe for its intended use. Id. [**23]
The plaintiff had signed an exculpatory agreement, which stated, inter alia:
“It is further agreed that all exercises including the use of weights, number of repetitions, and use of any and all machinery, equipment, and apparatus designed for exercising shall be at the Member‘s sole risk. Notwithstanding any consultation on exercise programs which may be provided by Center employees it is hereby understood that the selection of exercise programs, methods and types of equipment shall be Member‘s entire responsibility, and COMBINED FITNESS CENTER [sic] shall not be liable to Member for any claims, demands, injuries, damages, or actions arising due to injury to Member‘s person or property arising out of or in connection with the use by Member of the services and facilities of the Center or the premises where the same is located and Member hereby holds the Center, its employees and agents, harmless from all claims which may be brought against them by Member or on Member‘s behalf for any such injuries or claims aforesaid.“
Id. at 584.
The plaintiff argued that the agreement did not contemplate a release of liability for the provision of defective equipment. The trial court granted the defendant‘s motion [**24]
for summary judgment based on the exculpatory agreement.
[*P49]
The reviewing court affirmed. Id. at 586. It explained as follows:
“Furthermore, the exculpatory clause could not have been more clear or explicit. It stated that each member bore the ‘sole risk‘; of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the ‘entire responsibility‘ of the member.“
Id. at 585.
It further noted that the defendant “was aware of the attendant dangers in the activity and, despite the fact that plaintiff now alleges that the bench press he used was unreasonably unsafe because it lacked a certain safety feature, the injury he sustained clearly falls within the scope of possible dangers ordinarily accompanying the activity of weight-lifting.“
Id.
[*P50]
Similarly, in Falkner, 178 Ill. App. 3d at 603, the court found the following exculpatory clause exempted the defendant from liability following a parachute accident: “The Student exempts and releases the [defendant] *** from any and all liability claims *** whatsoever arising out of any damage, loss or injury to the Student or the Student‘s property while upon the premises or aircraft of the [defendant] or while [**25]
participating in any of the activities contemplated by this agreement.“ The plaintiff‘s decedent died during a parachute jump. The court placed some significance on the fact that the decedent had been a pilot in the Army Air Corp. Id.
[*P51]
Another case that provides us with some guidance is Oelze, 401 Ill. App. 3d 110, 927 N.E.2d 137, 339 Ill. Dec. 596. There, the plaintiff had signed an exculpatory agreement stating, “I hereby release SCORE Tennis & Fitness and its owners and employees from any and all liability for any damage or injury, which I may receive while utilizing the equipment and facilities and assume all risk for claims arising from the use of said equipment and facilities.“
Id. at 118. The plaintiff, who was playing tennis, was injured when she tripped on a piece of equipment that was stored behind a curtain near the tennis court she was using while she was trying to return a lob. Id. at 113. The plaintiff argued that this risk was “unrelated to the game of tennis“ and thus outside the scope of the release. Id. at 120. However, the court found that the broad language of the release encompassed the risk, relying on the plaintiff‘s agreement “to assume the risk for her use of the club‘s ‘equipment and facilities.‘”
Id.
[*P52]
Finally, we will examine Calarco, 149 Ill. App. 3d 1037, 501 N.E.2d 268, 103 Ill. Dec. 247. In that case, the plaintiff [**26]
was injured when weights from a “Universal“ gym machine fell on her hand. Id. at 1038. The trial court granted summary judgment based on an exculpatory clause. Id. at 1038-39. The clause read:
“‘In consideration of my participation in the activities of the Young Men‘s Christian Association of Metropolitan Chicago, I do hereby agree to hold free from any and all liability the [defendant] and do hereby for myself, *** waive, release and forever discharge any and all rights and claims for damages which I may have or which may hereafter accrue to me arising out of or connected with my participation in any of the activities of the [defendant].
I hereby do declare myself to be physically sound, having medical approval to participate in the activities of the [defendant].‘”
Id. at 1039.
The reviewing court reversed, finding that the language of the release was not sufficiently explicit to relieve the defendant from liability. Id. at 1043. It explained, “The form does not contain a clear and adequate description of covered activities, such as ‘use of the said gymnasium or the facilities and equipment thereof,‘ to clearly indicate that injuries resulting from negligence in maintaining the facilities or equipment would be covered by the release [**27] .” (Emphasis added.) Id.
[*P53]
In the present case, plaintiff waived any cause of action “arising out of or in any way related to [her] use of the climbing gym whether that use is supervised or unsupervised, however the injury or damage is caused.“ (Emphasis added.) This is remarkably similar to the language, set forth above, that the Calarco court stated would have been sufficient to shield the defendant in that case. Id. Likewise, in Garrison, 201 Ill. App. 3d at 585, the language that was found sufficient to protect the defendant stated that each member bore the ‘sole risk; of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the ‘entire responsibility‘ of the member.“ Again, identifying the activity involved along with an expressed intent to absolve the defendant from any liability prevailed. Here, the activity was clearly defined and plaintiff‘s intent to waive any cause related to that activity was clear. Furthermore, plaintiff‘s injury was of the sort that a participant in that activity could reasonably expect. As Oelze, 401 Ill. App. 3d at 120, indicates, language encompassing assumption of “the risk for her use of the club‘s ‘equipment and [**28]
facilities‘” is broad and sufficient to cover accidents of the sort that are related to the primary activity. See also Falkner, 178 Ill. App. 3d at 603. Here, falling or jumping off the climbing wall are things a climber can clearly expect to encounter.
[*P54]
Plaintiff cites Locke v. Life Time Fitness, Inc., 20 F. Supp. 3d 669 (N.D. Ill. 2014), a case from the local federal district court. Such cases merely constitute persuasive authority (Morris v. Union Pac. R.R. Co., 2015 IL App (5th) 140622, ¶ 25, 396 Ill. Dec. 330, 39 N.E.3d 1156); nevertheless, we will comment on it briefly. In that case, the plaintiff suffered a heart attack and died during a basketball game at a gym operated by the defendant. Id. at 671. There was an automatic defibrillator on site, but no employee retrieved it or attempted to use it. Id. The plaintiff had signed a waiver, which included the risk of a heart attack. Id. at 672. However, the waiver did not mention the defendant‘s failure to train its employees in the use of the defibrillator. Id. The Locke court held that by advancing this claim as a failure to train by the defendant, the plaintiff could avoid the effect of the waiver. Id. at 674-75.
[*P55]
We find Locke unpersuasive. Following the reasoning of Locke, virtually any claim can be recast as a failure to train, supervise, or, in some circumstances, inspect. Allowing such a proposition to defeat an otherwise valid exculpatory agreement [**29]
would effectively write such agreements out of most contracts. See Putnam v. Village of Bensenville, 337 Ill. App. 3d 197, 209, 786 N.E.2d 203, 271 Ill. Dec. 945 (2003) (“Limiting the disclaimer in the manner suggested by the plaintiffs would effectively write it out of the contract. Virtually every error in construction by a subcontractor could be recast and advanced against [the defendant] as a failure to supervise or inspect the project.“). Here, plaintiff promised to release defendant from any liability resulting from her use of the climbing wall. Moreover, we fail to see how providing additional training to employees would have impacted on plaintiff‘s perception of an obvious risk. Allowing her to avoid this promise in this manner would be an elevation of form over substance.
[*P56]
At oral argument, plaintiff relied heavily on the allegation that the spot where she landed was uneven due to the placement of mats in the area. As noted, one of plaintiff‘s feet landed on a mat and the other landed directly on the floor. According to plaintiff, the risk of landing on an uneven surface was not within the scope of the waiver she executed. This argument is foreclosed by two cases which we cite above. First, in Oelze, 401 Ill. App. 3d at 113, the plaintiff was injured while, during a game of tennis, she tripped on a piece [**30]
of equipment stored behind a curtain near the tennis court. This arguably dangerous condition was found to be within the scope of her waiver. Id. at 121-22. Furthermore, in Garrison, 201 Ill. App. 3d at 584, the plaintiff argued that an alleged defect in gym equipment rendered ineffective an exculpatory agreement which stated that the plaintiff “bore the ‘sole risk‘ of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the ‘entire responsibility‘ of the member.“
Id. at 585. In this case, assuming arguendo, there was some unevenness in the floor due to the placement of the floor mats, in keeping with Oelze and Garrison, such a defect would not vitiate plaintiff‘s waiver.
[*P57]
In sum, the release here is clear, pertains to use of defendant‘s climbing gym, and is broad enough to encompass falling or jumping from the climbing wall.
[*P58]
B. WILLFUL AND WANTON CONDUCT
[*P59]
In an attempt to avoid the effect of the exculpatory agreement, plaintiff also contends that defendant engaged in willful and wanton conduct. Conduct is “willful and wanton“ where it involves a deliberate intention to harm or a conscious disregard for the safety of others. In re Estate of Stewart, 2016 IL App (2d),151117 ¶ 72, 406 Ill. Dec. 345, 60 N.E.3d 896. It is an “aggravated [**31]
form of negligence.“
Id. Plaintiff contends that defendant should have followed its own policies and evaluated her abilities. However, plaintiff does not explain what such an evaluation would have shown or what sort of action it would have prompted one of defendant‘s employees to take that would have protected plaintiff from the injury she suffered. Plaintiff also points to defendant‘s failure to advise her not to climb above the bouldering line. As the trial court observed, the risk of falling from a height is “open and obvious“ to an adult. Ford ex rel. Ford, 307 Ill. App. 3d at 302. Plaintiff cites nothing to substantiate the proposition that failing to warn plaintiff of a risk of which she was presumptively already aware rises to the level of willful and wanton conduct. Indeed, how a defendant could consciously disregard the risk of not advising plaintiff of the dangers of heights when she was presumptively aware of this risk is unclear (plaintiff provides no facts from which an intent to harm could be inferred).
[*P60]
In short, the conduct identified by plaintiff simply does not show a willful and wanton disregard for her safety.
[*P61]
IV. CONCLUSION
[*P62]
In light of the foregoing, the judgment of the circuit court of McHenry County [**32]
is affirmed.
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New Book Aids Both CEOs and Students
Posted: August 1, 2019 Filed under: Adventure Travel, Assumption of the Risk, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Insurance, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Mountain Biking, Mountaineering, Paddlesports, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Sea Kayaking, Ski Area, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Swimming, Whitewater Rafting, Zip Line | Tags: Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Desk Reference, Donkeys, Equine Activities (Horses, first aid, Good Samaritan Statutes, Hang gliding, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Law, Legal Case, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Industry, Outdoor recreation, Outdoor Recreation Insurance, Outdoor Recreation Risk Management, Paddlesports, Paragliding, Recreational Use Statute, Reference Book, Release (pre-injury contract not to sue), Reward, Risk, Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Whitewater Rafting, zip line Leave a comment“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry
Outdoor Recreation Insurance, Risk Management, and Law
Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.
Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.
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The Reference book is sold via the Summit Magic Publishing, LLC.
While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.
The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.
PURCHASE
TABLE OF CONTENTS
Table of Cases
Introduction
Outdoor Recreation Law and Insurance: Overview
Risk
Risk
Perception versus Actual Risk
Risk v. Reward
Risk Evaluation
Risk Management Strategies
Humans & Risk
Risk = Accidents
Accidents may/may not lead to litigation
How Do You Deal with Risk?
How Does Acceptance of Risk Convert to Litigation?
Negative Feelings against the Business
Risk, Accidents & Litigation
No Real Acceptance of the Risk
No Money to Pay Injury Bills
No Health Insurance
Insurance Company Subrogation
Negative Feelings
Litigation
Dealing with Different People
Dealing with Victims
Develop a Friend & Eliminate a Lawsuit
Don’t Compound Minor Problems into Major Lawsuits
Emergency Medical Services
Additional Causes of Lawsuits in Outdoor Recreation
Employees
How Do You Handle A Victim?
Dealing with Different People
Dealing with Victims
Legal System in the United States
Courts
State Court System
Federal Court System
Other Court Systems
Laws
Statutes
Parties to a Lawsuit
Attorneys
Trials
Law
Torts
Negligence
Duty
Breach of the Duty
Injury
Proximate Causation
Damages
Determination of Duty Owed
Duty of an Outfitter
Duty of a Guide
Duty of Livery Owner
Duty of Rental Agent
Duty of Volunteer Youth Leader
In Loco Parentis
Intentional Torts
Gross Negligence
Willful & Wanton Negligence
Intentional Negligence
Negligence Per Se
Strict Liability
Attractive Nuisance
Results of Acts That Are More than Ordinary Negligence
Product Liability
Contracts
Breach of Contract
Breach of Warranty
Express Warranty
Implied Warranty
Warranty of Fitness for a Particular Purpose
Warranty of Merchantability
Warranty of Statute
Detrimental Reliance
Unjust Enrichment
Liquor Liability
Food Service Liability
Damages
Compensatory Damages
Special Damages
Punitive Damages
Statutory Defenses
Skier Safety Acts
Whitewater Guides & Outfitters
Equine Liability Acts
Legal Defenses
Assumption of Risk
Express Assumption of Risk
Implied Assumption of Risk
Primary Assumption of Risk
Secondary Assumption of Risk
Contributory Negligence
Assumption of Risk & Minors
Inherent Dangers
Assumption of Risk Documents.
Assumption of Risk as a Defense.
Statutory Assumption of Risk
Express Assumption of Risk
Contributory Negligence
Joint and Several Liability
Release, Waivers & Contracts Not to Sue
Why do you need them
Exculpatory Agreements
Releases
Waivers
Covenants Not to sue
Who should be covered
What should be included
Negligence Clause
Jurisdiction & Venue Clause
Assumption of Risk
Other Clauses
Indemnification
Hold Harmless Agreement
Liquidated Damages
Previous Experience
Misc
Photography release
Video Disclaimer
Drug and/or Alcohol clause
Medical Transportation & Release
HIPAA
Problem Areas
What the Courts do not want to see
Statute of Limitations
Minors
Adults
Defenses Myths
Agreements to Participate
Parental Consent Agreements
Informed Consent Agreements
Certification
Accreditation
Standards, Guidelines & Protocols
License
Specific Occupational Risks
Personal Liability of Instructors, Teachers & Educators
College & University Issues
Animal Operations, Packers
Equine Activities
Canoe Livery Operations
Tube rentals
Downhill Skiing
Ski Rental Programs
Indoor Climbing Walls
Instructional Programs
Mountaineering
Retail Rental Programs
Rock Climbing
Tubing Hills
Whitewater Rafting
Risk Management Plan
Introduction for Risk Management Plans
What Is A Risk Management Plan?
What should be in a Risk Management Plan
Risk Management Plan Template
Ideas on Developing a Risk Management Plan
Preparing your Business for Unknown Disasters
Building Fire & Evacuation
Dealing with an Emergency
Insurance
Theory of Insurance
Insurance Companies
Deductibles
Self-Insured Retention
Personal v. Commercial Policies
Types of Policies
Automobile
Comprehension
Collision
Bodily Injury
Property Damage
Uninsured Motorist
Personal Injury Protection
Non-Owned Automobile
Hired Car
Fire Policy
Coverage
Liability
Named Peril v. All Risk
Commercial Policies
Underwriting
Exclusions
Special Endorsements
Rescue Reimbursement
Policy Procedures
Coverage’s
Agents
Brokers
General Agents
Captive Agents
Types of Policies
Claims Made
Occurrence
Claims
Federal and State Government Insurance Requirements
Bibliography
Index
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Posted: July 25, 2019 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, risk management plan, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Whitewater Rafting, zip line Leave a commentEveryone has told you, that you need a risk management plan. A plan to follow if you have
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Table of Contents
Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 PreInjury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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Posted: July 18, 2019 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Whitewater Rafting, zip line Leave a commentThis book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.
Table of Contents
Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 PreInjury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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Lee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660
Posted: May 1, 2019 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: assumption of the risk, Climbing Gym, Climbing Wall, cross-appeal, gap, Inherent Risks, inter alia, leave to amend, Mats, personal injuries, Prima facie, Punitive damages, recover damages, recreational, Release, Rock climbing, Sport, Summary judgment, Velcro Leave a commentLee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660
Jennifer Lee, et al., respondents-appellants, v Brooklyn Boulders, LLC, appellant-respondent. (Index No. 503080/13)
2016-04353
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660
December 13, 2017, Decided
NOTICE:
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
CORE TERMS: leave to amend, punitive damages, sport, gap, recover damages, personal injuries, summary judgment, rock climbing, inherent risks, prima facie, cross-appeal, recreational, engaging, mats, inter alia
COUNSEL: [***1] Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (Nicholas P. Hurzeler of counsel), for appellant-respondent.
Carman, Callahan & Ingham, LLP, Farmingdale, NY (James M. Carman and Anne P. O’Brien of counsel), for respondents-appellants.
JUDGES: WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ. MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.
OPINION
[**68] [*689] DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Toussaint, J.), dated April 20, 2016, as denied its motion for summary judgment dismissing the complaint, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion pursuant to CPLR 3025(b) for leave to amend the complaint to add a demand for punitive damages.
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff Jennifer Lee (hereinafter the injured plaintiff) allegedly was injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap [***2] between two mats. According to the injured plaintiff, the gap was covered by a piece of velcro.
[**69] [*690] The plaintiffs commenced this action to recover damages for personal injuries, etc. The defendant moved for summary judgment dismissing the complaint, and the plaintiffs, inter alia, cross-moved for leave to amend the complaint to add a demand for punitive damages. The Supreme Court, inter alia, denied the motion and the cross motion. The defendant appeals and the plaintiffs cross-appeal.
Contrary to the defendant’s contention, the release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature (see Serin v Soulcycle Holdings, LLC, 145 AD3d 468, 469, 41 N.Y.S.3d 714; Vanderbrook v Emerald Springs Ranch, 109 AD3d 1113, 1115, 971 N.Y.S.2d 754; Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 249, 835 N.Y.S.2d 170; Miranda v Hampton Auto Raceway, 130 AD2d 558, 558, 515 N.Y.S.2d 291). Therefore, the release does not bar the plaintiffs’ claims.
“Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; see Koubek v Denis, 21 AD3d 453, 799 N.Y.S.2d 746). “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49; see Morgan v State of New York, 90 NY2d at 484; Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526). Moreover, “by engaging in a sport or recreational [***3] activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d at 484; see Simone v Doscas, 142 AD3d 494, 494, 35 N.Y.S.3d 720).
Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing (see Siegel v City of New York, 90 N.Y.2d 471, 488, 685 N.E.2d 202, 662 N.Y.S.2d 421; Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 134 AD3d 887, 889, 22 N.Y.S.3d 467; Dann v Family Sports Complex, Inc., 123 AD3d 1177, 1178, 997 N.Y.S.2d 836; Segal v St. John’s Univ., 69 AD3d 702, 704, 893 N.Y.S.2d 221; Demelio v Playmakers, Inc., 63 AD3d 777, 778, 880 N.Y.S.2d 710). Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, [*691] regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316).
The Supreme Court providently exercised its discretion in denying the plaintiffs’ cross motion for leave to amend the complaint to add a demand for punitive damages (see Jones v LeFrance Leasing Ltd. Partnership, 127 AD3d 819, 7 N.Y.S.3d 352; Hylan Elec. Contr., Inc. v MasTec N. Am., Inc., 74 AD3d 1148, 903 N.Y.S.2d 528; Kinzer v Bederman, 59 AD3d 496, 873 N.Y.S.2d 692).
[**70] MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.
What is a Risk Management Plan and What do You Need in Yours?
Posted: April 11, 2019 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, risk management plan, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Whitewater Rafting, zip line Leave a commentEveryone has told you, you need a risk management plan. A plan to follow if you have 
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Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 PreInjury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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Posted: April 2, 2019 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Whitewater Rafting, zip line Leave a commentThis book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.
Table of Contents
Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 PreInjury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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Assumption of the Risk is a valid defense against a claim by an injured indoor climber against the belayer who allegedly dropped him.
Posted: August 6, 2018 Filed under: Assumption of the Risk, Climbing Wall, Ohio | Tags: accelerated, announcement, assignment of error, assumption of the risk, Belay device, belayer, climber, Climbing Wall, Down Climbing, Falling, Harness, Indoor Climbing Wall, Rock climbing, rope, slipped Leave a commentThe bigger crime here is the climbing gym could have stopped this quicker by having one additional clause in its release. The clause would have protected the belayer from suit.
Holbrook v. McCracken, 2004-Ohio-3291; 2004 Ohio App. LEXIS 2932
State: Ohio: Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County
Plaintiff: Matthew Holbrook
Defendant: Erin McCracken
Plaintiff Claims: Negligence
Defendant Defenses: Assumption of the Risk
Holding: for the defendant
Year: 2004
Summary
A climber was dropped by a belayer and sued the belayer. The belayer was relatively new at climbing. However, the plaintiff climber’s case was dismissed on a motion for summary judgment.
Facts
The belayer allegedly dropped the plaintiff’s climber. She let out too much rope, and he fell as he was downclimbing.
Appellant was injured when he fell from an indoor rock wall he had climbed for recreation. At the time, appellee was acting as his “belayer, ” i.e., as appellant descended from his successful climb, appellee reversed the process of taking up slack and instead let out rope for him from the top of the wall through a harness system attached to her body. Appellee stated she thought she “wasn’t fast enough” at locking the smooth “new” rope before too much of it slipped through the device on her harness and slackened appellant’s line.
The plaintiff sued the belayer, and not the climbing gym. The trial court dismissed the case finding the plaintiff climber assumed the risk of his injuries. The plaintiff appealed.
Ohio has a fast-appellate docket. The decisions are short and too the point and are rendered quickly. This decision came from that docket and is short, only three pages long.
Analysis: making sense of the law based on these facts.
In this case, the court referred to the parties by their appeal names, appellee and appellant. The appellant is the plaintiff in the trial court, and the appellee is the defendant. In this analysis, I refer to them as plaintiff climber and defendant belayer.
Ohio applies the doctrine of assumption of the risk to recreational activities. “In order to gain the thrill associated with rock climbing, the appellant voluntarily assumed the primary and “inherent risk” of the activity, viz., falling.”
The plaintiff hired an expert witness who stated the actions of the belayer were reckless. The plaintiff’s expert also stated that the risk of falling was inherent to the activity and could be reduced but not eliminated.
Therefore, despite appellant’s expert’s opinion that appellee was “reckless” in permitting the rope to slip through her hands, the risk of falling inherent to the activity of rock climbing can be “reduced***[but] cannot be eliminated.
However, the plaintiff could produce no evidence to support the expert’s opinion that the belayer acted intentionally or recklessly. Assumption of the risk prevailed.
Since there was no evidence that appellee acted either intentionally or recklessly when the rope she held slipped before the harness device could lock it in place, the trial court correctly concluded she was entitled to summary judgment on appellant’s claim.
So Now What?
As stated above, the sad thing is the climbing gym, could have added one clause in its release, which would have eliminated the lawsuit or at least the appeal. The clause would have protected all climbers at the gym from suits by other climbers.
Most gyms only protect themselves. Yet a belayer is sued as often as the gym. Read the release you signed and make sure you are protected like the gym.
This was a short and simple decision that outlined the facts to support the court’s reasoning and did not have to stretch or contrive to reach it. When you climb you assume the risk you may fall.
|
Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)
Posted: July 31, 2018 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: Advice, Affirmative Defense, amend, amusement, appreciated, assumption of the risk, Bouldering, Brooklyn Boulders, Climb, Climbing, Climbing Wall, concealed, Dangerous Condition, Gym, Indoor Climbing Wall, instructional, leave to amend, mat, Mats, matting, Public Policy, reciprocal agreement, recreational, Release, risk doctrine, rock, Rock climbing, Sport, Teaching, team, The Rock Club, training, unaware, unreasonably, Velcro, Void, wasn't, watching Leave a commentMcDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)
[**1] Meghan Mcdonald, Plaintiff, – against – Brooklyn Boulders, LLC., Defendant. Index No. 503314/12
503314/12
SUPREME COURT OF NEW YORK, KINGS COUNTY
2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)
April 12, 2016, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: climbing, mat, climb, team, rock climbing, recreational, leave to amend, affirmative defense, risk doctrine, instructional, bouldering, void, appreciated, concealed, teaching, training, wasn’t, amend, sport’, Rock, gym, matting, reciprocal agreement, public policy, dangerous condition, unreasonably, amusement, watching, unaware, advice
JUDGES: [*1] PRESENT: HON. MARK I. PARTNOW, J.S.C.
OPINION BY: MARK I. PARTNOW
OPINION
Upon the foregoing papers, defendant Brooklyn Boulders, LLC (defendant or Brooklyn Boulders) moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff Meghan McDonald’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.
[**2] Background
Plaintiff is employed as a program director and head coach of a youth rock climbing team at The Rock Club, an indoor rock climbing gym in New Rochelle, New York and has been so employed since 2006. On September 1, 2011, plaintiff went to Brooklyn Boulders with some of the members of her youth climbing team and other adults. Brooklyn Boulders is an indoor rock climbing and bouldering facility located in Brooklyn, New York. Plaintiff testified that this trip was a treat for her team and that she would be climbing that day too. It is undisputed that plaintiff signed a waiver before she began climbing and that she did not pay an entry fee pursuant to a reciprocal agreement in place between The Rock Club and Brooklyn Boulders as well as other rock climbing facilities. After [*2] approximately one and a half hours of bouldering with her team, plaintiff went to an area of the bouldering wall known as The Beast, which is very challenging in that it becomes nearly horizontal for some distance. It was her first time on the Beast, although she had been to Brooklyn Boulders on prior occasions. Plaintiff testified that she visually inspected the area below the Beast before she began her climb. Lance Pinn, the Chief Marketing Officer, President and founder of Brooklyn Boulders testified that there was foam matting system in place, with matting wall to wall in the area of the Beast. The largest pieces available were 9 feet by 7 feet so the area where the foam pieces met when placed on the ground was covered with Velcro to keep the foam matting pieces flush together.
[**3] Plaintiff finished her upward climb and then climbed down as far as she could and then looked down below to make sure there were no shoes in her way and that her spotter was out of the way. She stated that she knew that there were mats underneath so she jumped down a distance of approximately five feet. Her right foot landed on the mat but her left foot landed on the Velcro strip where two floor mats met. [*3] She testified that her left foot went through the Velcro into a space between the two mats. Plaintiff sustained an ankle fracture as a result and required surgeries and physical therapy.
Brooklyn Boulders’ Motion
Brooklyn Boulders moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.
Defendant argues that the liability waiver that plaintiff signed when she entered the facility releases it from liability. Defendant maintains that plaintiff was an expert climber and coach and understood the meaning of the waiver and appreciated the assumption of risk involved in the activity that she was engaged. Defendant also points out that she did not pay a fee to climb that day based upon the reciprocal program in place with other climbing facilities. Defendant claims that plaintiff was instructing her students that day as they observed her climbing and point to her testimony as follows:
[**4] Q: And were you teaching them, you know, what to do and what not to do?
A: I wasn’t teaching them, but if they had a question [*4] they would ask me hey, should I do this or do this or what do you think of this move I always give advice. (Page 30, lines 12-17).
Q. Did you ever teach any or give any instruction there?
A. Just of terms of like in my kids I probably give instruction everywhere I go. There are so many people that climb at Brooklyn Boulders that are total beginners. I’m often spotting brand new people and telling them how to spot one another. (Page 45, lines 5-12).
Defendant notes that although General Obligations Law (GOL) §5-326 renders contract clauses which release certain entities from liability void as against public policy, activities which are “instructional” as opposed to recreational are found to be outside the scope of GOL §5-326. Defendant maintains that here, plaintiff was at Brooklyn Boulders to instruct her team members and thus GOL §5-326 is not applicable. Moreover, defendant argues that the waiver at issue was explicit, comprehensive and expressly provided that Brooklyn Boulders was released from liability for personal injuries arising out of or connected with plaintiff’s participation in rock climbing.
In support of its motion, defendant submits the signed waiver which states, in pertinent part:
I acknowledge [*5] that climbing on an artificial climbing wall entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential [**5] qualities of the activity. I have examined the Climbing Wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the Climbing Wall, including but not limited to:
a:. All manner of injury resulting from my falling off or from the Climbing Wall and hitting the floor, wall faces, people or rope projections, whether permanently or temporarily in place, loose and/or damaged artificial holds, musculoskeletal injuries and/or overtraining; head injuries; or my own negligence . . . I further acknowledge that the above list is not inclusive of all possible risks associated with the Climbing Wall and related training facilities and I agree that such list in no way limits the extent or reach of this Assumption of Risk, Release and Indemnification . . .
Defendant also argues that since plaintiff did not pay a fee to climb that day that her activity was [*6] outside the scope of GOL §5-326.
Next defendant argues that the assumption of risk doctrine bars plaintiff’s claims because, as a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation in such event.
Finally, defendant argues that it should be allowed to amend its answer to assert the affirmative defense of release. Defendant contends that it was unaware of the existence of the release and waiver when it served its answer. Moreover, defendant contends that plaintiff will not be prejudiced because she was, in fact, questioned about the release that she signed during her deposition.
[**6] Plaintiff opposes defendant’s motion arguing that General Obligations Law §5-326 renders the waiver and release that she signed void. She points out that defendant is attempting to circumvent this law by asserting that the activity in which plaintiff was involved was instructional as opposed to recreational and misstates her testimony in an attempt to mislead the court. Plaintiff contends that such behavior should be sanctioned. In support of her position [*7] that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work. (Page 62, lines 5-13). She further points to the following testimony:
Q: In September of 2011 when you went there on the date in question what was your purpose of being there?
A: I went there with a handful of kids who are on my climbing team, but it wasn’t a specific training day. Usually when we go it would be for training but this was just like a fun day. I was going to climb with them.
Q: And were they climbing around you.
A: Yeah, they were.(page 29, lines 14-25).
Q: And were you supervising them?
A: I wasn’t their active supervisor. I’m a coach though so I’m always watching what they do. But this was one of the few times that I was actually going to be climbing so it was kind of a treat for them I guess to be able to climb with me.
[**7] Q: Were they watching you?
A: A few of them were watching me yeah.
Q: And were [*8] you teaching them, you know, what to do and what not to do?
A: I wasn’t teaching them, but if they had a question they would ask me hey, should I do this or do this or what do you think of this move I always give advice (page 30, lines 2-17).
Plaintiff also contends that defendant incorrectly argues that GOL §5-326 does not apply because she cannot be classified a user since she did not pay to climb that day. In this regard, plaintiff contends that she is indeed a user and the law is applicable because there was a reciprocal agreement between the gym at which she was employed and Brooklyn Boulders pursuant to which employees were not required to pay a fee to use either gym. Thus, she contends the value of the reciprocity agreement is the compensation.
Next, plaintiff argues that the assumption of risk doctrine is not applicable where the risk was un-assumed, concealed or unreasonably increased. Plaintiff argues that the question of whether the gap in the mats at Brooklyn Boulders is a commonly appreciated risk inherent in the nature of rock climbing necessitates denial of the summary judgment motion. She claims that she did not assume the risk that there would be a gap in the matting that was in [*9] place as protection from a fall. Moreover, plaintiff maintains that defendant fails to proffer any evidence demonstrating when the mats were last inspected prior to plaintiff’s accident.
Plaintiff argues that issues as to whether dangerous or defective conditions exist on property and whether the condition is foreseeable can only be answered by a jury. Thus, she [**8] contends that whether the condition of the mats was dangerous and/or defective is an issue of fact and that defendant has failed to proffer any evidence that the mats were in a reasonably safe condition.
Finally, plaintiff opposes defendant’s request to amend its answer to add the affirmative defense of waiver. Plaintiff argues that the existence of the waiver was known and that it is disingenuous at best to assert otherwise. Plaintiff contends that this request, post note of issue, is highly prejudicial to plaintiff.
In reply, defendant argues that plaintiff’s demand for sanctions lacks merit and that plaintiff’s testimony establishes that she was in fact, instructing her students when her accident occurred. Defendant contends that the waiver applies. Next defendant claims that as far as inspection of its equipment it had a [*10] route setting department that checked its walls and mats and that bouldering climbers were responsible for enuring their own safety when climbing. Finally, defendant argues that the assumption of risk doctrine applies and that plaintiff visually inspected the area before the accident and that the Velcro covers were visible and moreover, she had the option to use additional mats underneath her while climbing. Defendant further contends that the mats did not constitute a dangerous condition. Finally, Brooklyn Boulders reiterates its request for leave to amend its answer to assert the affirmative defense.
[**9] Discussion
Leave to Amend
Generally, in the absence of prejudice or surprise to the opposing party, leave to amend pleadings should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (Yong Soon Oh v Hua Jin, 124 AD3d 639, 640, 1 N.Y.S.3d 307 [2015]; see Jones v LeFrance Leasing Ltd. Partnership, 127 AD3d 819, 821, 7 N.Y.S.3d 352 [2015]; Rodgers v New York City Tr. Auth., 109 AD3d 535, 537, 970 N.Y.S.2d 572 [2013]; Schwartz v Sayah, 83 AD3d 926, 926, 920 N.Y.S.2d 714 [2011]). A motion for leave to amend is committed to the broad discretion of the court (see Ravnikar v Skyline Credit-Ride, Inc., 79 AD3d 1118, 1119, 913 N.Y.S.2d 339 [2010]). However, where amendment is sought after the pleader has filed a note of issue, “a trial court’s discretion to grant a motion to amend should be exercised with caution” (Harris v Jim’s Proclean Serv., Inc., 34 AD3d 1009,1010, 825 N.Y.S.2d 291 [3d Dept 2006]).
Here, while the court is not satisfied with counsel’s explanation that he was unaware of the [*11] existence of the release and waiver signed by plaintiff at the time that the original answer was served, the court notes that plaintiff was questioned about the release and waiver during her May 6, 2014 deposition so the court finds that there is no surprise of prejudice in allowing defendant leave to serve its amended answer and assert the affirmative defense of release and waiver. Accordingly, that branch of defendant’s motion seeking leave to amend its answer to the complaint to include this affirmative defense is granted.
[**10] General Obligations Law §5-326
GOL §5-326 states that:
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall [*12] be deemed to be void as against public policy and wholly unenforceable.
Such contracts or agreements are void as against public policy unless the entity can show that its facility is used for instructional purposes as opposed to recreational purposes. “The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F.Supp.2d 92, 99 [1998]; McDuffie v Watkins Glen Int’l, 833 F. Supp. 197, 202 [1993] ). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411, 743 N.Y.S.2d 539 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463, 643 N.Y.S.2d 668 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370, 618 N.Y.S.2d 428 [1994] ), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145, 484 N.Y.S.2d 719 [1985] ), have been found to be outside the scope of the statute. “In assessing whether a facility is instructional or recreational, courts have [**11] examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility” (Lemoine v Cornell Univ., 2 AD3d 1017, 1019, 769 N.Y.S.2d 313 [2003], lv denied 2 NY3d 701, 810 N.E.2d 912, 778 N.Y.S.2d 459 [2004]). In cases involving a mixed use facility, courts have focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Id. At 1019; see Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, 32 F Supp 2d at 99). Where [*13] a facility “promotes . . . a recreational pursuit, to which instruction is provided as an ancillary service,” General Obligations Law § 5-326 applies even if the injury occurs while receiving instruction (Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 249, 835 N.Y.S.2d 170 [2007]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175, 710 N.Y.S.2d 54 [2000]).
Here, defendant asserts that GOL §5-326 is not applicable because plaintiff was at Brooklyn Boulders to instruct her team members. The court disagrees. Plaintiff’s testimony establishes that she was at Brooklyn Boulders with her team for a day of fun and not to teach them how to climb. Her testimony that she would give advice to the students if they asked does not rise to the level of providing rock climbing instruction on that day. Moreover, the court notes that the cases invloving the exemption for instrctional activities generally involve the person being instructed sustaining an injury and not the person who was providing the instruction. In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, [**12] where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of [*14] their employment and thus could be considered compensation. Accordingly, the court finds that the release and waiver signed by plaintiff is void pursuant to GOL §5-326.
Assumption of Risk
The assumption of the risk defense is based on the proposition that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; Paone v County of Suffolk, 251 AD2d 563, 674 N.Y.S.2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Rosenbaum v Bayis Ne’Emon Inc., 32 AD3d 534, 820 N.Y.S.2d 326 [2d Dept 2006]; Colucci v Nansen Park, Inc., 226 AD2d 336, 640 N.Y.S.2d 578 [2d Dept 1996]). A plaintiff is deemed to have given consent limiting the duty of the defendant who is the proprietor of the sporting facility “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]). Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City of New York, 29 AD3d 649, 816 N.Y.S.2d 499 [2d Dept 2006]; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 N.Y.S.2d 663 [2d Dept 1992]). It is well settled that “awareness of [**13] risk is not to be determined in a vacuum. It is, rather, to [*15] be assessed against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]; see also Benitez v New York City Bd. of Educ., 73 NY2d 650, 657-658, 541 N.E.2d 29, 543 N.Y.S.2d 29 [1989]; Turcotte v Fell, 68 NY2d 432, 440, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]; Latimer v City of New York, 118 AD3d 420, 421, 987 N.Y.S.2d 58 [2014]). When applicable, the assumption of risk doctrine “is not an absolute defense but a measure of the defendant’s duty of care” (Turcotte v Fell, 68 NY2d at 439). Thus, “a gym or athletic facility cannot evade responsibility for negligent behavior ‘by invoking a generalized assumption of risk doctrine as though it was some sort of amulet that confers automatic immunity’ (Jafri v Equinox Holdings, Inc., 2014 N.Y. Misc. LEXIS 5330, 4-5 [Sup. Ct, New York County quoting Mellon v Crunch & At Crunch Acquisition, LLC, 32 Misc 3d 1214[A], 934 N.Y.S.2d 35, 2011 NY Slip Op 51289[U] [Sup Ct, Kings County 2011]; Livshitz v United States Tennis Assn. Natl. Tennis Ctr., 196 Misc 2d 460, 466, 761 N.Y.S.2d 825 [Sup Ct, Queens County 2003]).
Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’ (Morgan, 90 NY2d at 485. quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970, 591 N.E.2d 1184, 582 N.Y.S.2d 998 [1992]; Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 134 AD3d 887, 889, 22 N.Y.S.3d 467 [2d Dept 2015]; Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d 675, 678, 961 N.Y.S.2d 178 [2d Dept 2013]). Participants, however, do not assume risks which have been unreasonably increased or [**14] concealed over and above the usual dangers inherent in the activity (see Morgan, 90 NY2d at 485; Benitez, 73 NY2d at 657-658; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113 [2002]).
In this regard, the court finds that plaintiff has raised a question of fact regarding whether the condition of the mats, with the Velcro connection, increased the risk in the danger [*16] of the activity and caused a concealed dangerous condition. Thus it cannot be said that plaintiff assumed the particular risk that was present and caused her injuries.
Based upon the foregoing, that branch of Brooklyn Boulders motion seeking summary judgment dismissing plaintiff’s complaint is denied.
The foregoing constitutes the decision and order of the court.
ENTER,
/s/ Mark I Partnow
J. S. C.
HON. MARK I PARTNOW
SUPREME COURT JUSTICE
Holbrook v. Mccracken, 2004-Ohio-3291; 2004 Ohio App. LEXIS 2932
Posted: July 30, 2018 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, Ohio | Tags: accelerated, announcement, assignment of error, assumption of the risk, Belay device, belayer, climber, Climbing Gym, Climbing Wall, Falling, Harness, Indoor Climbing Wall, Recreation, recreational activity, Rock climbing, rope, slipped Leave a commentTo Read an Analysis of this decision see: Assumption of the Risk is a valid defense against a claim by an injured indoor climber against the belayer who allegedly dropped him.
Holbrook v. Mccracken, 2004-Ohio-3291; 2004 Ohio App. LEXIS 2932
Matthew Holbrook, Plaintiff-appellant vs. Erin Mccracken, Defendant-appellee
NO. 83764
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY
2004-Ohio-3291; 2004 Ohio App. LEXIS 2932
June 24, 2004, Date of Announcement of Decision
PRIOR HISTORY: [**1] CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Court of Common Pleas. Case No. CV-466188.
DISPOSITION: AFFIRMED.
COUNSEL: For plaintiff-appellant: JACK G. FYNES, NATHAN A. HALL, Attorneys at Law, SHUMAKER, LOOP & KENDRICK, LLP, Toledo, Ohio.
For defendant-appellee: JAMES M. JOHNSON, Attorney at Law, KOETH, RICE & LEO CO., L.P.A., Cleveland, Ohio.
JUDGES: KENNETH A. ROCCO, JUDGE. JAMES J. SWEENEY, P.J. and DIANE KARPINSKI, J. CONCUR.
OPINION BY: KENNETH A. ROCCO
OPINION
ACCELERATED DOCKET
JOURNAL ENTRY and OPINION
KENNETH A. ROCCO, J.
[*P1] This cause came to be heard on the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 11.1. The purpose of an accelerated appeal is to allow the appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Ass’n (1983), 11 Ohio App. 3d 158, 11 Ohio B. 240, 463 N.E.2d 655.
[*P2] Plaintiff-appellant Matthew Holbrook appeals from the trial court order that granted summary judgment to defendant-appellee Erin McCracken, thus terminating appellant’s personal injury action.
[*P3] Appellant was injured when he fell from an indoor rock wall he had climbed for recreation. At the time, appellee was acting as his “belayer, [**2] ” i.e., as appellant descended from his successful climb, appellee reversed the process of taking up slack and instead let out rope for him from the top of the wall through a harness system attached to her body. Appellee stated she thought she “wasn’t fast enough” at locking the smooth “new” rope before too much of it slipped through the device on her harness and slackened appellant’s line.
[*P4] In his sole assignment of error, appellant argues the trial court improperly determined the doctrine of primary assumption of the risk precluded appellee’s liability on appellant’s claim. This court disagrees.
[*P5] [HN1] The Ohio Supreme Court recently reaffirmed the applicability of that doctrine to recreational activities in Gentry v. Craycraft, 101 Ohio St.3d 141, 2004 Ohio 379, 802 N.E.2d 1116. In order to gain the thrill associated with rock climbing, the appellant voluntarily assumed the primary and “inherent risk” of the activity, viz., falling. Blankenship v. CRT Tree, 2002 Ohio 5354.
[*P6] Therefore, despite appellant’s expert’s opinion that appellee was “reckless” in permitting the rope to slip through her hands, [HN2] the risk of falling [**3] inherent to the activity of rock climbing can be “reduced***[but] cannot be eliminated.” Vorum v. Joy Outdoor Education Center, (Dec. 12, 1998), 1998 Ohio App. LEXIS 6139, Warren App. No. CA98-06-072. This is especially true when the injury results from simple human error. Gentry v. Craycraft, supra, P 14.
[*P7] Since there was no evidence that appellee acted either intentionally or recklessly when the rope she held slipped before the harness device could lock it in place, the trial court correctly concluded she was entitled to summary judgment on appellant’s claim.
[*P8] Accordingly, appellant’s assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.KENNETH A. ROCCO JUDGE
JAMES J. SWEENEY, P.J. and
DIANE KARPINSKI, J. CONCUR
N.B. This entry is [**4] an announcement of the court’s decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court’s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court’s announcement of decision by the clerk per App.R. 22(E). See, also, S. Ct. Prac.R. II, Section 2(A)(1).
G-YQ06K3L262
Plaintiff cannot assume a risk which is not inherent in the activity or which he does not know.
Posted: July 16, 2018 Filed under: Assumption of the Risk, Climbing Wall, New York | Tags: amusement, Assumption of risk, assumption of the risk, attraction, Carabiner, Climbing, Climbing Wall, constructive notice, dan-gerous condition, defective condition, failed to meet, festival, Harness, Mobile Climbing Wall, Premises Liability, Summary judgment, worn Leave a commentThe decision lacks any real information on how a carabiner detached from a harness on a mobile climbing wall. However, the decision makes the correct determination on whether the plaintiff assumed the risk under New York law.
Stillman v Mobile Mountain, Inc., 2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149
State: New York, Supreme Court of New York, Appellate Division, Fourth Department
Plaintiff: Jacob Stillman
Defendant: Mobile Mountain, Inc.
Plaintiff Claims: negligence
Defendant Defenses: Assumption of the Risk and lack of constructive notice of an alleged defect
Holding: for the Plaintiff
Year: 2018
Summary
This case looks at assumption of risk as a defense, when the risk assumed is not “visible” or known to the injured plaintiff. The plaintiff fell from a mobile climbing wall when the carabiner used in the belay detached. The defense of assumption of risk failed because the risk was concealed or unreasonably enhanced according to the court.
Facts
The defendant set up its mobile climbing wall at the Eden Corn Festival. While climbing the carabiner detached from the harness and the plaintiff fell 18′ to the ground.
The climbing wall amusement attraction included a safety harness worn by the patron and a belay cable system that attached to the harness by use of a carabiner. There is no dispute that the carabiner detached from the safety harness worn by plaintiff, and that plaintiff fell approximately 18 feet to the ground below.
The defendant filed a motion to dismiss based on assumption of the risk and the defendant did not have any notice that the “defective” part of the wall was defective. What part of the wall that was defined as defective was never identified. The trial court denied the defendants motion and the defendant appealed.
Analysis: making sense of the law based on these facts.
Assumption of the risk in New York is a defense in athletic or recreational activities. If you engage in the activity, you assume the risks that are inherent in the activity.
The doctrine of assumption of the risk operates “as a defense to tort recovery in cases involving certain types of athletic or recreational activities” A person who engages in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”
However, a plaintiff cannot assume risks that the plaintiff does not know about, that are concealed, or are created due to the reckless or intentional conduct of the defendant.
However, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced”
However, the analysis the court used to deny the plaintiff’s motion was the defendant failed to prove that falling from a climbing wall was an inherent risk of climbing.
Here, we conclude that the court properly denied that part of defendant’s motion based on assumption of the risk inasmuch as it failed to meet its initial burden of establishing that the risk of falling from the climbing wall is a risk inherent in the use and enjoyment thereof
It seems to be confusing to say the risk of falling off a wall, suspended in the air is not obvious. However, this is a New York decision, which are always brief. Therefore, the statement of the court encompasses the real risk, that the carabiner or part of the system would fail allowing the plaintiff to fall.
More importantly, the plaintiff could not assume the risk of the carabiner failing because it is not an inherent risk of the sport and because there is no way the plaintiff could have known, seen, or discovered the risk.
So Now What?
The decision lacks more information than it provides. How did the carabiner become detached? Carabiners do not fail and there is nothing indicating the carabiner did fail. Consequently, either the carabiner was never attached properly or the plaintiff opened the carabiner.
The decision does follow other decisions like this in all other states. How it is explained is just a little confusing.
What do you think? Leave a comment.
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Stillman v Mobile Mountain, Inc., 2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149
Posted: July 6, 2018 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, New York | Tags: amusement, assumption of the risk, attraction, Carabiner, Climbing, Climbing Wall, constructive notice, Dangerous Condition, defective condition, failed to meet, festival, Harness, Mobile Climbing Wall, Premises Liability, Summary judgment, worn Leave a commentStillman v Mobile Mountain, Inc., 2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149
[**1] Jacob Stillman, Plaintiff-Respondent, v Mobile Mountain, Inc., Defendant-Appellant, et al., Defendants.
543 CA 17-01915
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149
June 8, 2018, Decided
June 8, 2018, Entered
CORE TERMS: climbing, defective condition, carabiner, festival, harness, constructive notice, failed to meet, dangerous condition, premises liability, summary judgment, attraction, amusement, worn
COUNSEL: [*1] OSBORN, REED & BURKE, LLP, ROCHESTER (JEFFREY P. DIPALMA OF COUNSEL), FOR DEFENDANT-APPELLANT.
CONNORS LLP, BUFFALO (LAWLOR F. QUINLAN, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
JUDGES: PRESENT: SMITH, J.P., CARNI, DEJOSEPH, AND TROUTMAN, JJ.
OPINION
Appeal from an order of the Supreme Court, Erie County (Mark J. Grisanti, A.J.), entered March 28, 2017. The order, insofar as appealed from, denied that part of the motion of defendant Mobile Mountain, Inc., seeking summary judgment dismissing the complaint against it.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he fell from an artificial rock climbing wall amusement attraction owned and operated by Mobile Mountain, Inc. (defendant) at the Eden Corn Festival. Insofar as relevant to this appeal, defendant moved for summary judgment dismissing the complaint against it on the grounds that the action is barred by the doctrine of assumption of the risk and, in the alternative, that it lacked constructive notice of any alleged defective condition causing the accident and injuries. Supreme Court denied that part of the motion, [*2] and we affirm.
The climbing wall amusement attraction included a safety harness worn by the patron and a belay cable system that attached to the harness by use of a carabiner. There is no dispute that the carabiner detached from the safety harness worn by plaintiff, and that plaintiff fell approximately 18 feet to the ground below.
The doctrine of assumption of the risk operates “as a defense to tort recovery in cases involving certain types of athletic or recreational activities” (Custodi v Town of Amherst, 20 NY3d 83, 87, 980 N.E.2d 933, 957 N.Y.S.2d 268 [2012]). A person who engages in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). However, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced” (Custodi, 20 NY3d at 88). Here, we conclude that the court properly denied that part of defendant’s motion based on assumption of the risk inasmuch as it failed to meet its initial burden of establishing that the risk of falling from the climbing wall is a risk inherent in the use and enjoyment thereof (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]).
Defendant further contends that the court [*3] erred in denying that part of its motion based on lack of constructive notice of any alleged defective condition in the carabiner or the climbing wall. We reject that contention. Defendant casts the alleged defective condition as a dangerous condition on the property giving rise to premises liability (see generally Gordon v American Museum of Natural History, 67 NY2d 836, 837-838, 492 N.E.2d 774, 501 N.Y.S.2d 646 [1986]), and it thereafter attempts to establish its lack of liability based upon its lack of constructive notice of that condition (see generally Depczynski v Mermigas, 149 AD3d 1511, 1511-1512, 52 N.Y.S.3d 776 [4th Dept 2017]). Even [**2] assuming, arguendo, that the alleged defective condition constitutes a “dangerous condition on property” (Clifford v Woodlawn Volunteer Fire Co., Inc., 31 AD3d 1102, 1103, 818 N.Y.S.2d 715 [4th Dept 2006] [internal quotation marks omitted]), we conclude that defendant failed to establish either its own level of legal interest in the premises or its rights and obligations associated therewith. Indeed, the record is devoid of evidence regarding who owned the real property where the festival was held. Further, although defendant’s president testified at his deposition that defendant had a “contract” to operate the climbing wall at the festival, defendant failed to submit a copy of that contract or to otherwise establish the terms of or the identity of any other party to the alleged contract. We therefore conclude that defendant [*4] failed to meet its burden on that part of its motion based on premises liability (see generally Alvarez, 68 NY2d at 324).
Entered: June 8, 2018
Ho v Steep Rock Bouldering, LLC, 2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)
Posted: February 10, 2018 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, New York | Tags: Affirmation, Assumption of risk, assumption of the risk, Bouldering, Bouldering Wall, Climb, climbed, climber, Climbing, Climbing Wall, Falling, false sense of security, feet, gym's, Harness, height, Indoor, Inherent Risk, instructor, mat, opined, Orientation, Padding, quotation, reply, rock, roommate, rope, skill, Sport, Spotter, spotting, Summary judgment, top Leave a commentHo v Steep Rock Bouldering, LLC, 2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)
[**1] Min-Sun Ho, Plaintiff, – v – Steep Rock Bouldering, LLC, Defendant. INDEX NO. 150074/2016
150074/2016
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)
January 2, 2018, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: climbing, bouldering, rock, gym’s, rope, harness, spotter, opined, climb, climber, falling, affirmation, feet, mat, climbed, sport, orientation, roommate, height, summary judgment, top, spotting, assumption of risk, instructor, padding, false sense of security, indoor, reply, quotation, skill
JUDGES: [*1] PRESENT: Hon. Robert D. KALISH, Justice.
OPINION BY: Robert D. KALISH
OPINION
Motion by Defendant Steep Rock Bouldering, LLC pursuant to CPLR 3212 for an order granting summary judgment against Plaintiff Min-Sun Ho is granted.
BACKGROUND
I. Overview
Plaintiff brought this action seeking damages for injuries she sustained on October 12, 2015, while at Defendant’s bouldering gym, Steep Rock Bouldering. Plaintiff alleges, in sum and substance, that, due to the negligence of Defendant, she fell from Defendant’s gym’s indoor climbing wall and landed on her right arm, tearing ligaments and breaking a bone in the arm and elbow area, which required surgery. Defendant argues, in sum and substance, that Plaintiff assumed the risk of injury from a fall at its gym and that its gym provided an appropriate level of safety and protection for boulderers through warnings, notices, an orientation, equipment, and the nature of the climbing wall itself. As such, Defendant argues it had no further duty to Plaintiff. Plaintiff argues, in sum and substance, that she did not assume the risk of an injury from falling off of the climbing wall.
[**2] II. Procedural History
Plaintiff commenced the instant action against Defendant on January 5, 2016, [*2] by e-filing a summons and a complaint alleging a negligence cause of action. (Goldstein affirmation, exhibit A.) Defendant answered on March 28, 2016, denying all the allegations in the complaint and asserting 21 affirmative defenses, including Plaintiff’s assumption of the risk. (Goldstein affirmation, exhibit B.)
The examination before trial (“EBT”) of Plaintiff was held on February 14, 2017. (Goldstein affirmation, exhibit E [Ho EBT].) The EBT of Defendant, taken of witness Vivian Kalea (“Kalea”), was held on February 23, 2017. (Goldstein affirmation, exhibit F [Kalea EBT].) Plaintiff provided Defendant with her liability expert’s disclosure pursuant to CPLR 3101 (d) on or about March 27, 2017. (Goldstein affirmation, exhibit G.) Plaintiff filed the note of issue in this action on May 4, 2017. (Goldstein affirmation, exhibit J.)
On or about May 25, 2017, Defendant moved to strike Plaintiff’s note of issue. On or about May 30, 2017, Plaintiff cross-moved to preclude certain expert and medical testimony from Defendant at trial due to Defendant’s alleged failure to provide timely disclosures. Defendant provided Plaintiff with its liability expert’s disclosure pursuant to CPLR 3101 (d) on or about June 16, 2017. [*3] (Goldstein affirmation, exhibit H.) On June 29, 2017, Defendant noticed the instant motion On July 14, 2017, this Court ordered Defendant’s motion to strike and Plaintiff’s cross motion to preclude withdrawn per the parties’ stipulation, dated July 6, 2017.
Defendant now moves for an order pursuant to CPLR 3212 granting it summary judgment and dismissing this action with prejudice.
III. Plaintiff’s EBT
Plaintiff Min-Sun Ho stated that she and her roommate intended to climb the indoor wall at Steep Rock Bouldering on October 12, 2015. (Ho EBT at 12, lines 17-23.) Plaintiff further stated that her roommate had joined Defendant’s gym several weeks prior to October 12, 2015. (Id. at 13, lines 12-13; at 14, lines 2-3, 13-25.) Plaintiff further stated that, prior to October 12, 2015, in high school, she took a rock climbing class once a week for a semester. (Id. at 15, lines 16-25.) Now in her thirties, Plaintiff stated that she was able to recall the class, the basic commands for climbing, and the techniques for climbing. (Id. at 20, lines 5-2.1; at 22, lines 17-21.)
[**3] Plaintiff stated that, on October 12, 2015, she looked up Defendant’s gym’s Facebook page and observed people climbing at Steep Rock Bouldering without ropes or harnesses. [*4] (Id. at 27, lines 7-11; at 29, lines 15-20.) Plaintiff further stated that she then signed up online for a one-month membership at Steep Rock Bouldering. (Id. at 28, lines 15-20.) Plaintiff further stated that she had also heard from her roommate, before October 12, 2015, that there were no harnesses or ropes at Steep Rock Bouldering. (Id. at 30, lines 6-13.) Plaintiff further stated that, on October 12, 2015, Plaintiff’s roommate again explained that Defendant’s gym does not have harnesses or ropes. (Id. at 29, line 25; at 30, lines 2-5.) Plaintiff stated she was not aware, prior to October 12, 2015, that the term “bouldering” refers to a form of rock climbing without harnesses or ropes. (Id. at 85, lines 2-7.)
Plaintiff stated that, upon arriving at Steep Rock Bouldering on October 12, 2015, she observed a reception desk and a climbing wall to her left where she saw more than three people climbing. (Id. at 31, lines 17-23; at 32, line 25; at 33, lines 2-3.) Plaintiff further stated that she believed the climbing wall was about 15 feet tall. (Id. at 32, lines 4-20.) Plaintiff further stated that the receptionist asked if Plaintiff had rock climbed before and that she answered that she had, a long time ago. (Id. at 47, lines 2-8.) Plaintiff stated she signed [*5] an electronic waiver form at the reception desk. Plaintiff, at the time of the EBT, stated she did not recall having read any of the waiver except for the signature line. (Id. at 43, lines 11-19.)
Plaintiff stated that, after signing the waiver, she waited while the receptionist called a man over to Plaintiff and her roommate. Plaintiff stated she herself believed the man who came over was another Steep Rock Bouldering employee. (Id. at 45, lines 10-25; at 46, lines 2-4.) Plaintiff stated’ that the man told Plaintiff “something along the lines of that’s the wall as you can see, it’s self-explanatory.'” (Id. at 46, lines 11-12.) Plaintiff further stated that the man also told her “[t]hose are the bathrooms.” (Id. at 49, lines 2-3.) Plaintiff further stated that the man asked her if she had rock climbed before and that she answered “yeah, a while ago.” (Id. at 49, lines 7-10.) Plaintiff stated that the man did not say he was an instructor or take Plaintiff anywhere and that neither the man nor the receptionist said anything about an instructor. Plaintiff further stated that she did not have an orientation or an instructor at Defendant’s gym. (Id. at 47, lines 15-23; at 48, lines 21-25.) Plaintiff further stated she that did not see any instructional [*6] videos. (Id. at 80, lines 19-22.) Plaintiff further stated that she had felt comfortable not having an instructor and climbing the walls without any harnesses or ropes. (Id. at 81, lines 17-22.)
[**4] Plaintiff stated that, after speaking with the man, she changed into climbing shoes which she stated she recalled borrowing from Steep Rock Bouldering. (Id. at 48, lines 5-20.) Plaintiff further stated that she then put her and her roommate’s belongings away in a cubby and started getting ready to climb. (Id. at 49, lines 13-18.) Plaintiff stated that she had observed mats in front of the climbing wall on the floor. (Id. at 49, lines 19-24.) Plaintiff stated that she had further observed “quite a few” people who she thought were other climbers and their friends climbing the wall or watching and giving tips on holds. (Id. at 50, lines 5-21; at 55, lines 6-10.)
Plaintiff stated she was told before she started climbing that the holds on the climbing wall are tagged according to their difficulty and that the levels of difficulty marked “V0 or V1” are the “easiest.” (Id. at 54, lines 2-20.) Plaintiff further stated that, after waiting a few minutes, she herself climbed to the top of the climbing wall on level V1 on her first attempt. (Id. at 55, lines 16-19, 24-25; at [*7] 56, lines 2-9.) Plaintiff further stated that she did not think it took very long to make the climb. (Id. at 56, lines 10-11.) Plaintiff stated she and her roommate took turns climbing the wall. (Id. at 63, lines 12-16.) Plaintiff further stated that, while she herself was climbing, her roommate was on the mat watching her climb. (Id. at 63, lines 17- 22.) Plaintiff stated that she herself climbed again once or twice without incident. (Id. at 56, lines 16-19; at 57, lines 18-21.) Plaintiff stated that, on her third or fourth climb, she herself had made it about a couple of feet from the top of the wall before she fell. (Id. at 57, lines 3-10, 15-25; at 58, lines 2-9.) Plaintiff stated that her roommate was watching her when she fell. (Id. at 63, line 22.)
Plaintiff stated that she had not fallen from a climbing wall prior to October 12, 2015. (Id. at 59, lines 2-7.) Plaintiff further stated she did not think she could fall, nor did she think about falling, when she bought her membership, when she first saw the wall when she entered the building, or when she first started climbing. (Id. at 59, lines 13-25; at 60, lines 2-8, 17-19.) Plaintiff further stated that did not see anyone else fall at Steep Rock Bouldering prior to her own fall, but did see people [*8] jumping down from “[s]omewhere above the middle” and “closer to the top” of the climbing wall instead of climbing down. (Id. at 60, lines 9-16.)
Plaintiff stated she herself climbed down the wall after her first climb, but then became more “confident” and climbed down halfway and then jumped in subsequent successful climbs. (Id. at 60, lines 22-25; at 61, lines 2-6.) Plaintiff further stated that, immediately before she fell, she was climbing up the wall and reaching to the side. (Id. at 61, lines 7-13.) Plaintiff further stated that she then grabbed onto a knob, looked down, and saw a man looking up at her. (Id. at 62, [**5] lines 2-7.) Plaintiff was asked at the EBT “[w]hen you looked down, did you think about falling or if you could fall?” In reply, Plaintiff stated “I was a little scared. When I looked down, I was a lot higher than I thought I was.” (Id. at 62, lines 12-15.) Plaintiff stated that she had wanted to come back down at this time. (Id. at 62, lines 24-25; at 63, lines 2-4.) Plaintiff further stated that she fell after she saw the man looking up at her. (Id. at 62, line 8.) Plaintiff was asked at the EBT “[d]o you know why you fell?” and answered, “I don’t know exactly.” (Id. at 62, lines 5-6.)
IV. Defendant’s EBT
Vivian Kalea stated that, at the [*9] time of her EBT, she was the general manager of Steep Rock Bouldering. (Kalea EBT at 6, lines 4-7.) Kalea further stated that, on October 12, 2015, she was a closing manager and youth team coach at Steep Rock Bouldering. (Id. at 6, lines 8-12.)
Kalea stated that she was at Steep Rock Bouldering when Plaintiff was injured and filled out the related injury report form. (Id. at 13, lines 19-21.) Kalea stated that the injury report indicated that Plaintiff was a member of Steep Rock Bouldering and had paid a fee to use the gym prior to her injury. (Id. at 16, lines 12-13.) Kalea stated that the injury report further indicated that Plaintiff fell from a yellow V1 level of difficulty, about three moves from the top, and landed on her right side. (Id. at 19, lines 6-9; at 31, lines 15-21; at 34, line 25.)
Kalea stated that V1 is a beginner’s level of difficulty. (Id. at 34, lines 13-15.) Kalea further stated that, the higher the number is after the “V,” the greater the level of difficulty. Kalea stated that the “V” designation is not a description of a specific height or location. (Id. at 33, lines 9-14.) Kalea further stated that V2 is also a beginner’s level. (Id. at 33, lines 23-25, at 34, lines 2-4.) Kalea further stated that the wall Plaintiff was on had a “slight incline” but was “mostly [*10] vertical” and “[c]lose to 90 degrees. (Id. at 41, lines 11-25; at 42, lines 2-4.)
Kalea stated that Steep Rock Bouldering offered climbing shoe rentals and chalk for climbers on October 12, 2015. (Id. at 9, lines 20-21; at 10, line 14.) Kalea further stated that the climbing shoes provide support for climbing activities by improving friction and power to the big toe and that the chalk gives the climbers a better grip on whatever it is they are holding onto. (Id. at 21, lines 18-25; at 22, lines 2-25; at 23, lines 2-A.) Kalea further stated that the padded area in front of the climbing wall was over a foot thick on October 12, 2015, and was there to help absorb the shock from a fall. (Id. at 23, lines 5-18.) Kalea further stated that a [**6] spotter, “somebody who guides a climber to fall down,” was not required at Steep Rock Bouldering on October 12, 2015. (Id. at 49, lines 19-25.)
Kalea stated that the climbing walls at Steep Rock Bouldering are 14 feet high and that the holds do not all go to the top. (Id. at 24, lines 17-19.) Kalea further stated that the holds are of different textures, sizes, and appearances and that their locations can be changed to create varying paths up the wall and establish the difficulty of a given level. (Id. at 24, lines [*11] 16-25; at 25, lines 2-17; at 29, lines 2-5.) Kalea further stated that climbers at Steep Rock Bouldering do not climb with ropes or harnesses. (Id. at 40, line 25; at 41, line 2.)
Kalea stated that Steep Rock Bouldering employees ask whether it is a new member’s first time bouldering “to clarify that they understand the risk of bouldering.” (Id. at 21, lines 13-17.) Kalea further stated that every climber is supposed to receive an oral safety orientation from Steep Rock Bouldering staff prior to climbing that consists of the following:
“It consists of understanding the person’s climbing experience, their experience bouldering. That they understand that bouldering is a dangerous sport. How every fall in a bouldering environment is a ground fall. It goes over how the climbs are kind of situated, so everything is by color and numbers. It goes over that we do encourage down climbing in the facility. So that means when you reach the top of the problem, which is not necessarily the top of the wall, but the finishing hold, you climb down about halfway before you jump, if you do want to jump. It goes over how to best fall.”
(Id. at 46, lines 2-24; at 47, lines 3-16.) Kalea stated that the giving such an orientation is [*12] standard in the climbing industry and was required at Steep Rock Bouldering on October 12, 2015. (Id. at 48, lines 3-10.) Kalea further stated that “[i]t is made clear to everyone who walks in the door that they are going to receive a safety orientation” and that staffs failure to do so would be breaking Steep Rock Bouldering’s rules. (Id. at 48, lines 17-21.) Kalea was asked at the EBT to assume that Plaintiff was told “essentially . . . there is the wall, it’s self explanatory [sic] and that’s all the person did” and was then asked “[i]f that is all that was said, is that a proper safety instruction orientation?” (Id. at 49, lines 3-17.) Kalea replied, “[i]t is not.”
[**7] V. Plaintiff’s Liability Expert
Plaintiff retained Dr. Gary G. Nussbaum as its liability expert. Dr. Nussbaum has a Masters of Education and an Education Doctorate in Recreation and Leisure Studies from Temple University. Dr. Nussbaum has 45 years of experience in the adventure education, recreation, and climbing field with a variety of teaching credentials related specifically to climbing. In forming his opinion, Dr. Nussbaum reviewed photographs of the climbing wall used by Plaintiff on the date of her injury, the injury report, the waiver form, [*13] and the EBT transcripts.
After his review, Dr. Nussbaum opined that Plaintiff should have been provided with the following: a harness, a rope, or some similar safety device; a spotter; an orientation; and an introductory lesson. Dr. Nussbaum opined further that the only time a harness or similar device is not required is “when the wall is low, less than 8 feet[,] and where it is angled so that a [climber] cannot fall directly down[,] but simply slides down the angled wall. Here, the wall was high and not angled, and therefore the safety devices including the harness and rope are required.” (Broome affirmation, exhibit 1 [aff of Nussbaum], at 3.)
Dr. Nussbaum opined that a person of Plaintiff’s skill level was a novice and needed to be taught “how to climb, how to come down, and even how to fall safely. None of this was done or provided.” (Id. at 4.) Dr. Nussbaum opined further that “[a]s a new climber, [Plaintiff] did not appreciate the risk” involved with bouldering. (Id.) Dr. Nussbaum opined further that the reading Steep Rock Bouldering waiver form, which Plaintiff did not, would not mean that the reader understands or assumes the risk. (Id.) Dr. Nussbaum opined further that the padding “likely” [*14] gave Plaintiff a “false sense of security” and “no appreciation of the risk here.” (Id.)
Dr. Nussbaum opined that, because Steep Rock Bouldering does not offer rope climbing, its climbing wall requires that the climber “climb down, climb partway down and jump the remainder, fall down in a controlled manner, or simply fall down if he or she loses control.” (Id. at 5.) Dr. Nussbaum cited to the Climbing Wall Association’s (“CWA”) Industry Practices § 4.06 and opined further that Defendant’s gym should have provided “a thorough orientation to bouldering and how to mitigate the risk of predictable falls” per the CWA guidelines. (Id.)
[**8] Citing to CWA’s Industry Practices § 4.01, Dr. Nussbaum opined further:
“[Plaintiff’s] ‘level of qualification or access to the climbing should [have been] checked upon entering and prior to climbing in the facility.’ In the absence of demonstrated proficiency in climbing, [Plaintiff] should have been ‘supervised by staff or a qualified climbing partner, or her access to the facility must [have] be[en] limited accordingly.’ In the case at hand, there was a cursory transition from the street into the gym and the commencement of climbing. [Plaintiff] was simply asked if she had previous [*15] climbing-experience and essentially told ‘here’s the wall, have at it.'”
(Id. at 6.)
Citing to CWA’s Industry Practices § 4.02, Dr. Nussbaum opined further:
“[T]he climbing gym staff should [have] utilize[d] a screening process before allowing potential clients to access the climbing wall/facility. The purpose of the screening is to determine the ‘new client’s ability to climb in the facility’ and ‘to assess the client’s prior climbing experience, knowledge and skills (if any).’ [Plaintiff] was not asked about how long she had been climbing, whether or not she had experience at a climbing gym or facility, how often or how recently she had climbed, and/or the type of climbing she had done. She was not asked if she had knowledge of or experience bouldering. Again, she was simply asked if she had prior climbing experience, reflecting a wholly inadequate screening process.”
(Id.)
Dr. Nussbaum opined that spotting is an advanced skill requiring training for the spotter to spot effectively and safely. As such, Dr. Nussbaum stated, Plaintiff’s roommate “was not a spotter and had no skill and no training to be one.” (Id. at 3.) Dr. Nussbaum opined further that Steep Rock Bouldering was required to enforce its spotter [*16] requirement by providing an adequately skilled spotter or ensuring that an intended spotter has the requisite skill set. (Id. at 5.) Dr. Nussbaum opined further that, if Steep Rock Bouldering chooses not to require spotting, it is then required to “emphasize, encourage and instruct in the safest ways to descend, including falling [**9] techniques. . . . [It] did not enforce its spotting requirement nor [sic] provide proper instruction in falling techniques.” (Id. at 7.)
VI. Defendant’s Liability Expert
Defendant retained Dr. Robert W. Richards as its liability expert. Dr. Richards is a founding member of the CWA and is currently affiliated with CWA as an expert in risk management. Dr. Richards has been involved in the climbing wall industry since 1992. Dr. Richards stated that, as there are no set regulations for climbing facilities, the CWA intends to assist the industry in defining, understanding, and implementing a set of responsible management, operational, training, and climbing practices. (Goldstein affirmation, exhibit I [aff of Richards], ¶ 2.) Dr. Richards further stated that the CWA’s Industry Practices is a sourcebook for the operation of manufactured climbing walls. (Id. ¶ 3.)
In forming his opinion, [*17] Dr. Richards performed a site inspection of Steep Rock Bouldering’s climbing wall on June 22, 2017. (Id. ¶ 20.) Dr. Richards observed at the site inspection that Defendant’s gym had “Climb Smart” posters, indicating the risks of bouldering, displayed in multiple locations. Dr. Richards stated that these signs were also present on October 12, 2015. (Id.) Dr. Richards observed further that the climbing wall is approximately thirteen feet, six inches tall when measured from the top of the padded area around the wall. (Id. ¶ 30:) Dr. Richards stated that this was also the height of the wall on October 12, 2015. (Id.)
Dr. Richards describes the sport of bouldering as follows:
“Bouldering is the form of climbing that is performed without the use of safety ropes and typically on a climbing surface that is low enough in height that a fall from the wall will not be fatal. Bouldering walls in climbing gyms may range from ten to twenty feet in height. The [CWA] states that average bouldering wall heights in the climbing wall industry are between twelve and fifteen feet. Climbers who boulder are referred to as boulderers . . . .”
(Id. ¶¶ 13-14.) Dr. Richards stated “[a] specific climb is referred [*18] to as a . . . ‘problem’ and is usually marked with colored tape or colored holds which are attached to the artificial climbing wall.” (Id. ¶ 7 [punctuation omitted].)
[**10] Dr. Richards opined that bouldering entails an inherent risk of injury from falls. (Id. ¶ 4.) Dr. Richards opined further that it is not possible to eliminate this risk “without altering the very essence of the sport.” (Id.) Dr. Richards opined further that the most common injuries in climbing gyms are to the extremities which can result from falls of any height. (Id. ¶ 15.)
Dr. Richards opined further that the risk inherent to bouldering was communicated to Plaintiff by means of a written liability release and an orientation. (Id. ¶ 17.) Dr. Richards stated that Plaintiff signed a liability release form and completed an orientation. (Id. ¶¶ 17, 31.) Dr. Richards stated further that the liability release form included the following language: “I have examined the climbing wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the climbing wall, including but not limited to: [injuries] resulting from falling off or coming down from the climbing wall . . . .” (Id. ¶ [*19] 17.)
Dr. Richards opined further that, having visited approximately “200 gyms” since 1992, he has never been to a gym that requires climbers to have spotters and strictly enforces that requirement. (Id. ¶¶ 1, 22-23.) Dr. Richards stated that spotting was developed for outdoor bouldering to guide the fall of boulderers in an environment where there are typically little or no padded surfaces to protect the head. (Id. ¶ 24.) Dr. Richards stated that the CWA does not require spotters when bouldering on artificial climbing walls and that it is not a common practice in the industry to require such spotters. (Id. ¶ 25.) Dr. Richards further stated that the padded landing surfaces in gyms reduce many of those dangers that a spotter would help to mitigate outdoors. (Id.) Dr. Richards opined that, as such, use of a spotter in an indoor climbing gym is of “limited benefit” and “may cause injury to the boulderer and spotter if the climber were to fall directly on the spotter.” (Id.)
Dr. Richards opined further that the purpose of Defendant gym’s padded landing surface around its climbing wall is “to mitigate potential injuries to the head and neck.” (Id. ¶ 26.) Dr. Richards opined further that, [*20] while the padding may “provide some cushioning for falls,” per Annex E to the CWA’s Industry Practices, “[p]ads are not designed to mitigate or limit extremity injuries, although they may do so.” (Id.) Dr. Richards stated that, while there was no industry standard regarding the type, amount, or use of such padding in October 2015, a typical surface in October 2015 would have “consisted of four to six inches of foam padding or other impact attenuation [**11] material with a top layer of gymnastic carpet or vinyl that covers the underlying padding.” (Id. ¶¶ 27-28.) Dr. Richards further stated that Defendant’s gym used foam pads of a twelve-inch depth that ran continuously along the climbing wall and extended twelve feet out from the wall on October 12, 2015. (Id. ¶ 29.)
ARGUMENT
I. Defendant’s Affirmation in Support
Defendant alleges in its papers that it has a place of business that includes a bouldering climbing gym in New York City on Lexington Avenue. (Affirmation of Goldstein ¶ 14.) Defendant further alleges that its gym has a continuous climbing wall that is approximately 30 to 40 feet wide and 14 feet tall and has climbing holds which are textured objects bolted into the wall which climbers [*21] can grab onto with their hands and stand upon with their feet. (Id. ¶¶ 14, 16.)
Defendant argues, in the main, that Plaintiff assumed the inherent risk associated with climbing an indoor wall and with bouldering when she chose to climb Defendant’s gym’s bouldering wall. (Memorandum of law of Goldstein, at 1.) Defendant argues Plaintiff was able to make an informed estimate of the risks involved in bouldering and that she willingly undertook them. (Id. at 3-4.) Defendant further argues that Plaintiff was aware of the potential for injury from a fall because she is an intelligent adult familiar with the laws of gravity and had prior wall climbing experience in an indoor setting (albeit with ropes). (Id. at 4.) Defendant further argues that Plaintiff was aware of the risks associated with climbing because, before she was injured, Plaintiff watched other climbers ascend and descend its climbing wall and climbed up and down the wall herself without incident several times, even feeling comfortable enough to jump from halfway down the wall as opposed to climbing all the way down. (Id. at 8-9.) Defendant further argues that Plaintiff voluntarily and knowingly engaged in the bouldering activity and that her fall was a common, albeit [*22] unfortunate, occurrence. (Id. at 10.)
Defendant argues that falling is inherent to the sport of climbing, that falling cannot be eliminated without destroying the sport, and that injuries resulting from falling from a climbing wall are foreseeable consequences inherent to bouldering. (Id.) Defendant further argues that the risk of falling from Defendant’s gym’s climbing wall was open and obvious to Plaintiff. (Id. at 5.) Defendant further argues that Plaintiff did not request further instruction beyond what Steep Rock [**12] Bouldering provided on October 12, 2015, and that Plaintiff was comfortable climbing without ropes or a harness. (Id. at 5-6.) Defendant argues that Plaintiff’s allegation that she did not receive proper instruction is pure conjecture and will only invite the jury to speculate about what further instruction Plaintiff would have received had she sought it out. (Id. at 6.)
Defendant argues that there was no unique risk or dangerous condition in Defendant’s gym on October 12, 2015, over and above the usual dangers inherent to bouldering. Defendant further argues that Defendant has the right to own and operate a gym that offers bouldering, only, and not rope climbing. (Id. at 7.) Defendant further argues that the height [*23] of its gym’s climbing wall and the depth of its surrounding padding were well within what was typical of other climbing facilities in October 2015. (Id.) Defendant further argues that it had no duty to provide a spotter or supervise Plaintiff’s climbing. (Id. at 7-8.)
Defendant argues that Plaintiff’s expert has not cited to any standards or rules that would have required that Defendant provide Plaintiff with a spotter or supervise Plaintiff’s climbing or that would justify an opinion that negligence on the part of Defendant proximately caused Plaintiff’s accident. (Id. at 8, 10.) Defendant further argues that Plaintiff’s expert fails to acknowledge that Plaintiff engaged in a rope climbing class every week for a semester. (Id. at 10.) Defendant further argues that Plaintiff’s expert has never visited Steep Rock Bouldering and that therefore any assertions that Plaintiff’s expert will make are conclusory and insufficient to demonstrate Defendant’s negligence.
II. Plaintiff’s Affirmation in Opposition
Plaintiff argues in her papers that the affidavit of her liability expert, Dr. Gary G. Nussbaum, establishes Defendant’s negligence and Plaintiff’s lack of appreciation and understanding of the risk. (Affirmation of Broome, at 1.) Plaintiff further [*24] argues that she had a false sense of security because of the thick mats around the climbing wall and that she therefore did not appreciate the risk. (Id. at 1-2.) Plaintiff further argues that her climbing experience at Steep Rock Bouldering was very different from her prior experience with climbing, which was limited to one semester of indoor climbing class 12-13 years prior to the incident, in high school, involving a rope, harness, spotter, and instructor. (Id. at 2; aff of Ho, at 2.) At the time of the incident, Plaintiff was age 30 and had never done any rock climbing again after the high school class. (Aff of Ho, at 2.)
[**13] Plaintiff argues that she believed the padding beneath the climbing wall would prevent “any injury whatsoever.” (Id. at 4.) Plaintiff further argues that this was her belief even though she signed a release of liability because she did not read it. (Id. at 3.) Plaintiff further argues that she was given no orientation or instructor on October 12, 2015, but was only told where the wall was and that it was “self-explanatory.” (Id.) Plaintiff further argues that the release she signed is void and unenforceable because she paid a fee to use Defendant’s gym. (Affirmation of Broome, at 2.)
Plaintiff argues that Defendant was negligent in failing to [*25] provide Plaintiff with a rope, a harness, instruction, an orientation, and a spotter. (Id. at 3.) Plaintiff further argues that the assertions of Defendant’s liability expert, Dr. Robert W. Richards, regarding posters on the wall at Steep Rock Bouldering are irrelevant and erroneous because he visited the facility 1.75 years after Plaintiff’s accident and claims the posters were in place on the date of the accident. (Id.)
III. Defendant’s Reply Affirmation in Support
Defendant argues in its reply papers that Plaintiff did not have a false sense of security because Plaintiff: (1) was aware that Defendant’s gym only supplied climbing shoes and climbing chalk; (2) observed that none of the other climbers were asking for a rope or a harness; (3) testified that she felt comfortable climbing without harness, a rope, or an instructor; (4) knew prior to her injury that the climbing paths have different difficulty levels and that she was at a beginner level; and (5) had already, prior to her injury, climbed the wall two to three times without incident, reached the top of the wall, and jumped from the wall to the floor from halfway up the wall. (Reply affirmation of Goldstein, at 1-2; reply memorandum of law of Goldstein [*26] ¶ 3.) Defendant further argues that Plaintiff’s claim of having a false sense of security is disingenuous because she plainly observed the conditions of the climbing wall and the padded mats, was able to approximate the height of the wall, and, at age 30, was fully aware of, paid to engage in, and voluntarily undertook a form of climbing that involves neither ropes nor harnesses. (Reply memorandum of law of Goldstein ¶ 4.)
Defendant argues that Plaintiff has overlooked Dr. Richards’ explanation that a spotter has limited benefit and may cause injury to the climber and spotter if the climber were to fall directly onto the spotter. (Id. ¶ 5.) Defendant further argues that climbers utilizing a rope and harness may also sustain injury from falls when climbing. (Id. ¶ 6.)
[**14] Defendant argues that Plaintiff cannot prove by a preponderance of the evidence that Defendant proximately caused Plaintiff’s injury because Plaintiff herself testified that she does not know why she fell, and mere speculation regarding causation is inadequate to sustain a cause of action. (Id. ¶ 5.)
Defendant further argues that Plaintiff was aware of and assumed the risk that, in climbing a wall without ropes and harnesses–or [*27] a spotter–she could sustain an immediate physical injury from a fall. (Id. ¶¶ 4-5, 9.)
IV. Oral Argument
On November 13, 2017, counsel for the parties in the instant action appeared before this Court for oral argument on Defendant’s instant motion for summary judgment. Stephanie L. Goldstein, Esq. argued on behalf of Defendant and Alvin H. Broome, Esq. argued on behalf of Plaintiff.
Defendant argued that this is an assumption of the risk case in which Plaintiff fell during participation in a sport–bouldering–which, by definition, is rock climbing without ropes or harnesses. (Tr at 2, lines 23-25; at 3, lines 8-18.) Defendant further argued that Plaintiff had no reasonable expectation there would be ropes or harnesses at Steep Rock bouldering. Plaintiff stated that her roommate told her that climbing at Steep Rock Bouldering would involve no ropes or harnesses. (Id. at 4, lines 5-13.) Plaintiff further stated that she observed photographs of people using the gym on Facebook at parties–prior to going to Defendant’s gym–without ropes or harnesses. (Id. at 4, lines 15-19.) Plaintiff further stated that she saw people climbing at the gym in person before she climbed and that none of them were using ropes [*28] or harnesses. (Id. at 4, lines 20-24.)
Defendant argued that Plaintiff was additionally noticed as to the dangers inherent to bouldering by the electronic waiver, which she signed. (Id. at 5, lines 3-18.) Defendant clarified that it is not moving to dismiss the instant action on waiver grounds and acknowledged that Plaintiff’s signing the waiver did not absolve Defendant of liability. (Id. at 5, lines 13-14.) Defendant argued that Plaintiff was further noticed by an individual, an employee of Defendant, who explained to Plaintiff prior to her climbing about the wall and the climbing paths. (Id. at 5, lines 19-23.) Defendant argued that Plaintiff was further noticed by her own experience of climbing up and down the wall two to three times without any [**15] incident and with jumping off of the wall prior to her fall. (Id. at 5, line 26; at 6, line 2; at 7, lines 11-16.) Defendant was comfortable climbing without equipment or an instructor. (Id. at 7, lines 6-10.)
Defendant argued that it cannot enforce a statement on its waiver that a climber is not to climb without a spotter. Defendant argued that this is for four reasons: because spotting does not prevent injury, because spotting was developed when bouldering was outside, because spotting [*29] can only act to attempt to protect the head and neck outdoors–and indoors the padding provides this function–and because spotting may endanger the spotter. Defendant stated that spotting is not enforced at its gym. Defendant further stated that its liability expert has not seen this requirement enforced at any of the 200 gyms he has traveled to which do have this requirement on paper. (Id. at 6, lines 7-26; at 7, lines 2-5.)
Defendant argued that falling when climbing a wall is a common, foreseeable occurrence at a climbing facility. (Id. at 8, lines 3-5.) Defendant further argued that Plaintiff is an intelligent woman, 30 years old at the time of her injury, with a degree in biology. As such, Defendant argued that Plaintiff knew the laws of gravity: what goes up, must come down. (Id. at 8, lines 6-9.) Defendant further argued that a person is said to have assumed the risk if he or she participates in an activity such as climbing where falling is an anticipated and known possibility. (Id. at 9, lines 9-13.) Defendant further argued that Plaintiff testified that she does not know what caused her to fall. (Id. at 7, lines 21-23.)
Plaintiff argued in opposition that Defendant’s own rules required a spotter for climbers and that [*30] Defendant broke its rule and therefore proximately caused Plaintiff’s injury. (Id. at 9, lines 24-26; at 10, lines 2-6; at 11, lines 11-16, 24-25; at 12, lines 15-21.) Plaintiff further argued that “in every kind of climbing you are required to have a rope, a harness, something to prevent an injury and a fall.” (Id. at 12, lines 11-13.) Plaintiff further argued that a spotter “will say lift your arms, turn to the side” as a person begins to fall. (Id. at 11, lines 24-25.)
Plaintiff further argued that proximate cause has been established and the real question for the Court is whether Plaintiff assumed the risk. (Id. at 12, lines 22-25.) Plaintiff argued that “unusually thick” mats around the climbing wall gave Plaintiff a false sense of security. (Id. at 13, line 8.) Plaintiff further argued that Plaintiff saw people fall onto the soft matted floor without getting hurt, and therefore assumes this is a safe sport, but it is not. Plaintiff argued that assumption of risk is a subjective standard and that Plaintiff was a novice who had only [**16] climbed with ropes and harnesses prior to the day of her injury and thus did not assume the risk of “falling on a soft mat and breaking an elbow.” (Id. at 10, lines 7-10; at 14, lines 13-16.)
Plaintiff [*31] argued that there is a distinction between assuming the risk that one could fall from a climbing wall and assuming the risk that one could be injured from the fall. Plaintiff further argued that Plaintiff assumed the former, not the latter, in part because of a false sense of security due to the mats and not having a spotter. (Id. at 14, lines 23-26; at 15, lines 2-23; at 16, lines 2-9.) Plaintiff further argued that the mats that are placed by the climbing wall are “extremely substantial,” “for the sole purpose of preventing injury,” and “designed supposedly to prevent injury from a fall, and . . . didn’t.” (Id. at 16, lines 16-20.)
Plaintiff argued that, as a matter of law, because the mats were there, Plaintiff cannot be held to the belief that she was going to get hurt when she went up the climbing wall. (Id. at 16, lines 22-24.) Plaintiff clarified that she is not claiming the mat was inadequate. (Id. at 16, line 21.) Plaintiff argued that there was no assumption of injury from climbing or falling normally from the Defendant’s gym’s climbing wall. (Id. at 17, lines 13-14.) Plaintiff argued further that Plaintiff “did not assume the risk of being injured by a fall, period.” (Id. at 18, line 20.)
Defendant argued in reply that Plaintiff [*32] was bouldering, which by definition involves no ropes or harnesses, and did so voluntarily. (Id. at 23, lines 11-12.) Defendant further argued that Plaintiff’s liability expert cites to no regulations, standards, or rules that would quantify his reasoning why there should have been ropes, harnesses, or a spotter, or why the mat gave Plaintiff a false sense of security. (Id. at 23, lines 17-22.) Defendant further argued that the law says that when someone assumes the risk, they are assuming the risk inherent to the activity, and that assumption of injury specifically is not required. (Id. at 23, line 26; at 24, lines 2-5.) Defendant further argued that, in the instant case, the risk inherent to bouldering is falling, and that falling from a height may result in injury. As such, Defendant argued, Plaintiff assumed the risk. (Id. at 24, lines 4-18.)
Defendant further argued that there was no negligent hidden condition and nothing wrong with the wall or the mats. (Id. at 24, lines 20-21, 24-25.) Defendant argued that a climbing wall of 13 to 14 feet and mats of 12-inch thickness, as here, are typical. (Id. at 24, lines 25-26; at 25, lines 2-3.) Defendant further argued that stating that Plaintiff fell because she did not have a rope or harness [*33] is speculation insufficient to defeat a motion for summary judgment. (Id. at 25, lines 4-6.)
[**17] DISCUSSION
I. The Summary Judgment Standard
“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor, and he must do so by tender of evidentiary proof in admissible form.” (Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980] [internal quotation marks and citation omitted].) “Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution.” (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81, 790 N.E.2d 772, 760 N.Y.S.2d 397 [2003].) “On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party.” (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503, 965 N.E.2d 240, 942 N.Y.S.2d 13 [2012] [internal quotation marks and citation omitted].) In the presence of a genuine issue of material fact, a motion for summary judgment must be denied. (See Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231, 385 N.E.2d 1068, 413 N.Y.S.2d 141 [1978]; Grossman v Amalgamated Hous. Corp., 298 A.D.2d 224, 226, 750 N.Y.S.2d 1 [1st Dept 2002].)
II. The Assumption of Risk Doctrine
“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent [*34] in the activity.” (Cruz v Longwood Cent. School Dist., 110 AD3d 757, 758, 973 N.Y.S.2d 260 [2d Dept 2013].) “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” (Id.) However, “[s]ome of the restraints of civilization must accompany every athlete onto the playing field. Thus, the rule is qualified to the extent that participants do not consent to acts which are reckless or intentional.” (Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986].) “[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.” (Morgan v State, 90 NY2d 471, 485, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997] [internal quotation marks omitted].) In assessing whether a plaintiff had the appropriate awareness to assume the subject risk, such “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.” (Id. at 485-486.)
[**18] In 1975, the state legislature codified New York’s comparative fault law when it passed what is now CPLR 1411, “Damages recoverable when contributory negligence [*35] or assumption of risk is established.” CPLR 1411 provides:
“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”
Notwithstanding the text of CPLR 1411, the Court of Appeals has held that, in certain circumstances, a plaintiff’s assumption of a known risk can operate as a complete bar to recovery. The Court of Appeals refers to this affirmative defense as “primary assumption of risk” and states that “[u]nder this theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.” (Custodi v Town of Amherst, 20 NY3d 83, 87, 980 N.E.2d 933, 957 N.Y.S.2d 268 [2012] [internal quotation marks omitted].) In assuming a risk, Plaintiff has “given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do [*36] or leave undone.” (Turcotte v Fell, 68 NY2d 432, 438, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986], quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed].)
Nonetheless, the doctrine of primary assumption of risk has often been at odds with this state’s legislative adoption of comparative fault, and as such has largely been limited in application to “cases involving certain types of athletic or recreational activities.” (Custodi, 20 NY3d at 87.) In Trupia ex rel. Trupia v Lake George Cent. School Dist., Chief Judge Lippman discussed the uneasy coexistence of the two doctrines:
“The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in facilitating free and vigorous participation in athletic activities. We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these [**19] beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context [*37] and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation that the Legislature has deemed applicable to any action to recover damages for personal injury, injury to property, or wrongful death.”
(14 NY3d 392, 395-96, 927 N.E.2d 547, 901 N.Y.S.2d 127 [2010] [internal quotation marks and emendation omitted].) Writing two years later, Chief Judge Lippman further explained the scope of primary assumption of risk in Bukowski v Clarkson University:
“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities s aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Relatedly, risks which are commonly encountered or ‘inherent’ in a sport, such as being struck by a ball or bat in baseball, are risks [*38] for which various participants are legally deemed to have accepted personal responsibility. The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions.”
(19 NY3d 353, 356, 971 N.E.2d 849, 948 N.Y.S.2d 568 [2012] [internal quotation marks and emendation omitted].)
III. Defendant Has Shown Prima Facie that Plaintiff Assumed the Risk of Injury from Falling from Defendant’s Gym’s Climbing Wall, and Plaintiff Has Failed to Raise a Genuine Issue of Material Fact in Response
Based upon the Court’s reading of the submitted papers and the parties’ oral argument before it, the Court finds that Defendant has shown prima facie that Plaintiff assumed the risks associated with falling from Defendant’s gym’s climbing wall, including injury. Defendant has shown prima facie that Plaintiff voluntarily participated in the sporting activity of bouldering at Steep Rock Bouldering and assumed the risks inherent therein. Specifically, Defendant has [**20] referred to Plaintiff’s deposition testimony, which was sufficient to establish that Plaintiff: (1) had experience with rock climbing; (2) was aware of the conditions of the climbing wall from observations both at a distance–from looking online at Facebook and watching others–and [*39] up close on her two or three successful climbs prior to her injury; and (3) was aware that a person could drop down from the wall, as Plaintiff had herself already jumped down from the wall of her own accord.
In response, Plaintiff fails to raise a genuine issue of material fact. Steep Rock Bouldering’s climbing wall is of an average height for bouldering walls according to Dr. Richards. Dr. Nussbaum’s assertion that climbing on any wall of a height of eight feet or more requires a harness or similar device is conclusory, unsupported by citation, and, ultimately, unavailing.
To require harnesses and ropes at Steep Rock Bouldering would fundamentally change the nature of the sport. Bouldering is a type of climbing that does not require ropes or harnesses. The Court finds that injury from falling is a commonly appreciable risk of climbing–with or without harnesses, ropes, or other safety gear–and that Plaintiff assumed this risk when she knowingly and voluntarily climbed Defendant’s gym’s climbing wall for the third or fourth time when she fell. To hold that Defendant could be liable for Plaintiff’s injuries because it allowed her to climb its wall without a rope and harness would effectively [*40] make the sport of bouldering illegal in this state. To do so would fly in the face of the reasoning in Trupia that such “athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and . . . that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise.” (14 NY3d at 395-96.)
In dismissing the instant case, the Court notes that the facts here are distinguishable from those in Lee v Brooklyn Boulders, LLC ( NYS3d , 2017 NY Slip Op 08660, 2017 WL 6347269, *1 [2d Dept, Dec. 13, 2017, index No. 503080/2013]) and McDonald v. Brooklyn Boulders, LLC (2016 N.Y. Misc. LEXIS 5211, 2016 WL 1597764, at *6 [Sup Ct, Kings County Apr. 12, 2016]). Both cases involved plaintiffs who were injured when they jumped down from the climbing wall–at the same defendant’s bouldering facility–and each plaintiff’s foot landed in a gap between the matting. In both cases, summary judgment was denied because there was a genuine issue of material fact concerning whether the gap in the matting presented a concealed risk. Here, Plaintiff does not contend that she was injured by such a concealed risk, but essentially argues she should not have been allowed to [**21] voluntarily engage in the sport of bouldering. For the reasons previously stated, this Court finds such an argument to be [*41] unavailing.
CONCLUSION
Accordingly, it is
ORDERED that Defendant Steep Rock Bouldering, LLC’s motion pursuant to CPLR 3212 for an order granting Defendant summary judgment against Plaintiff Min-Sun Ho is granted; and it is further
ORDERED that the action is dismissed; and it is further
ORDERED that the Clerk is directed to enter judgment in favor of Defendant; and it is further
ORDERED that counsel for movant shall serve a copy of this order with notice of entry upon Plaintiff and upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158M), who are directed to mark the court’s records to reflect the dismissal of this action.
The foregoing constitutes the decision and order of the Court.
Dated: January 2, 2018
New York, New York
/s/ Robert D. Kalish, J.S.C.
HON. ROBERT D. KALISH
Plaintiff argues that release was limited to the risks that were inherent in climbing walls. Inherent is a limiting term and does not expand the scope of the risks a release is written to include.
Posted: January 22, 2018 Filed under: Climbing Wall, Indiana, Release (pre-injury contract not to sue) | Tags: Belay device, belayer, business name, causes of action, climber, Climbing, Climbing Wall, Equine, exculpatory clauses, Falling, genuine issue, Horse, Indoor, Indoor Climbing, Inherent Risk, Inherent Risks, material facts, matter of law, Orientation, own negligence, personal injuries, property damage, Release, Releases / Waivers, risk associated, risks inherent, Rock climbing, rope, signing, Summary judgment, top, Top Rope, training, unambiguous, undersigned, waived, Waiver Leave a commentIn addition, incorrect name on the release gave plaintiff an additional argument. The LLC registered by the Indiana Secretary of State was named differently than the named party to be protected by the release.
Luck saved the defendant in this case.
Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663
State: Indiana: United States District Court for the Southern District of Indiana, Indianapolis Division
Plaintiff: Alexis Wiemer
Defendant: Hoosier Heights Indoor Climbing Facility LLC,
Plaintiff Claims: Negligent Hiring and Instruction
Defendant Defenses: Release
Holding: For the Defendant
Year: 2017
Summary
Release was written broadly enough it covered negligence claims outside the normal injuries or claims from using a climbing wall. On top of that the mistakes in the release were covered by the letterhead.
Injury occurred because belayer did not know how to use the braking device.
A lot of things could have gone wrong because the climbing wall was not paying attention, but got lucky.
Facts
The plaintiff was a beginner in climbing and using climbing walls. Before climbing he signed a release and attended a facility orientation which covered training “on how to boulder, belay, and top rope climb.” The training received by the plaintiff was taught by an employee with little experience and mostly went over the defendant’s instructional books on rock climbing.
On the day of the accident, the plaintiff went to climb with a co-worker. While climbing the co-worker failed to use the belay device properly.
Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations. [emphasize added]
The plaintiff sued for his injuries.
Analysis: making sense of the law based on these facts.
The plaintiff’s first argument was the name of the parties to be released was not the legal name of the facility where the accident occurred. The facility was owned by a Limited Liability Company (LLC) registered with the state of Indiana as “Hoosier Heights Indoor Climbing Facility.” On the release, the name of the party to be protected was “Hoosier Heights Indoor Rock Climbing Facility.” The release name had an extra word, “rock.”
The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C. Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State, although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy created ambiguity as to who Wiemer contracted with.
However, the name and logo on the top of the release identified the company correctly, Hoosier Heights Indoor Climbing Facility.
Since the release was a contract, the court was required to determine if the name issue made the contract ambiguous. Ambiguous means the language of the contract could be interpreted in more than one way. The name issue was not enough to find the contract was unambiguous so that the release was not void. The name issue was minor, and the correct name was at the top of the contract.
Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.
The second argument the plaintiff made was the release did not cover the claimed negligence of the defendant for negligent instruction, and negligent training. Those claims are generally not defined as an inherent risk of indoor rock climbing.
The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.
Inherent is a restrictive word. See 2015 SLRA – Inherent Risk: Should the Phrase be in your Release? and Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release, and is interpreted differently by various courts. Consequently, the use of the word inherent can be dangerous in that it limits the breadth of the release.
Under Indiana’s law a release must be “specific and explicitly refer to the waiving [of] that the party’s negligence.” However, that explicit reference is not necessary for a claim that is inherent in the activity.
Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.”
The plaintiff’s argument was:
Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume. Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing.
The court could work around this explicit necessity because it found within the release language that covered the negligent training and instruction.
…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…
It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.
By reviewing the exact language of the release, the court was able to find language that warned of the specific issues the plaintiff claimed.
Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver.
The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.
As such the court found that both claims were prevented by the release the plaintiff had signed and dismissed the case.
So Now What?
This case was won by the defendant not because of proper legal planning but by luck.
If they had not used the correct letterhead for the release, the release might have been void because it named the wrong party to be protected by the release. When writing a release, you need to include the legal name of the party to be protected as well as any marketing or doing business as names.
Indiana’s requirement that the language of the release cover the exact injury the plaintiff is claiming is not new in most states. It is also a requirement that seems to be growing by the courts to favor a contract that covers the complaint.
In the past, judges would specifically point out when a claimed injury was covered in the release. Not so much as a legal requirement but to point out to the plaintiff the release covered their complaint. That prior identification seems to be growing among the states to a requirement.
In this case the release was written broadly so that the restrictions the term inherent placed in the release were covered. But for that broad language, the climbing gym might now have survived the claim.
More important writing the release wrong protecting the wrong party would have been fatal in most states.
Finally, this is another example of a belay system that is perfect, and the user failed. There are belay systems out there that don’t require user involvement, they work as long as they are corrected properly. This accident could have been avoided if the belay system worked.
What do you think? Leave a comment.
Copyright 2017 Recreation Law (720) 334 8529
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Allowing a climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate the release.
Posted: February 27, 2017 Filed under: Climbing Wall, Michigan, Release (pre-injury contract not to sue) | Tags: Climbing Harness, Climbing Wall, Health club, Lifetime Fitness Leave a commentWhether or not the employee was present the entire time, is irrelevant, anytime any employee had the opportunity to see the harness on incorrectly was enough to be gross negligence.
Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198
State: Michigan, Court of Appeals of Michigan
Plaintiff: David Alvarez and Elena Alvarez
Defendant: LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe
Plaintiff Claims: negligence
Defendant Defenses: release
Holding: For the Plaintiff
Year: 2016
Facts
The facts are difficult to determine because the interpretation of the court in its opinion does not follow the normal language used in the climbing industry.
The plaintiff was injured when he leaned back to descend after climbing a climbing wall. Because he was not hooked in properly, something broke, and he fell. The plaintiff claims an employee of the defendant watched him put the harness on and hook into the belay system. The employee alleges she was not present for that. The plaintiff allegedly put the harness on backwards.
The harness allegedly had a red loop that should have been in front. No one either knew how the harness was to be worn or that the harness was on incorrectly.
Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.
The plaintiff argued the employee was grossly negligent. The trial court granted the defendants motion to dismiss based on the release, and this appeal ensued.
Analysis: making sense of the law based on these facts.
The court first started by defining gross negligence under Michigan’s law. Michigan law is similar if not identical to many other states. Gross negligence requires proof the defendant engaged in reckless conduct or acted in a way that demonstrated a substantial lack of concern for the plaintiff.
To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]”
Although the issue debated in the appeal was the location of the employee when the plaintiff was putting on the harness and climbing. It was undisputed the defendant’s employee was instructing the plaintiff while he was climbing. Eventually, the court found this not to be a real issue since any opportunity to see the harness was on incorrectly would have allowed the defendants employee to resolve the issue.
Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness.
Failure then, to spot the problem or resolve the problem was proof of gross negligence, or a failure to care about the safety and welfare of the plaintiff.
Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence.
Because the court could determine the acts of the defendant employee were possibly gross negligence, it was enough to determine what occurred and if gross negligence occurred.
So Now What?
This is pretty plane on its face. You allow a person to use a piece of equipment incorrectly who is then injured there is going to be a lawsuit. You allow a person to use a piece of safety equipment, equipment needed for the safe operation of your business incorrectly you are going to lose no matter how well written your release.
What do you think? Leave a comment.
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Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198
Posted: February 26, 2017 Filed under: Climbing Wall, Legal Case, Michigan, Release (pre-injury contract not to sue) | Tags: Climbing Wall, Gross negligence, Harness, Lifetime Fitness, Ordinary Negligence, Release Leave a commentAlvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198
David Alvarez and Elena Alvarez, Plaintiff-Appellants, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe, Defendant. David Alvarez and Elena Alvarez, Plaintiff-Appellees, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellant, Jane Doe, Defendant.
No. 328221, No. 328985
COURT OF APPEALS OF MICHIGAN
2016 Mich. App. LEXIS 2198
November 29, 2016, Decided
NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
PRIOR HISTORY: [*1] Oakland Circuit Court. LC No. 2014-140282-NO. Oakland Circuit Court. LC No. 2014-140282-NO.
CORE TERMS: harness, climbing, gross negligence, rock, climb, belay, incorrectly, backwards, walked, deposition testimony, loop, red, putting, front, genuine issue, material fact, reasonable minds, precautions, favorable, watched, donned, order granting, rock climbing, grossly negligent, adjacent, facing, matter of law, conduct constituted, ordinary negligence, evidence submitted
JUDGES: Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.
OPINION
Per Curiam.
In Docket No. 328221, plaintiffs, David Alvarez and his wife Elena Alvarez, appeal as of right the trial court’s order granting summary disposition in favor of defendant, LTF Club Operations Company, Inc., doing business as Lifetime Fitness Center (Lifetime). In Docket No. 328985, Lifetime appeals as of right the order denying its request for case evaluation sanctions and for taxation of costs. For the reasons stated herein, we reverse the trial court’s order granting defendant’s motion for summary disposition and remand for further proceedings.
This litigation arises from David’s fall from a rock climbing wall at Lifetime’s facility in Novi. Plaintiffs were at Lifetime, where they are members, with their minor daughter to allow her the opportunity to use the rock climbing wall. Neither the plaintiffs, nor their daughter, had previously attempted to use the rock climbing wall. After David signed the requisite forms, Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, [*2] and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.
Plaintiffs argued that, as an employee of Lifetime, Agredano was grossly negligent1 in failing to ascertain whether David had properly attached his harness and the belay system before permitting him to climb the rock wall or descend. Defendant filed a motion for summary disposition arguing the assumption of risk and waiver of liability provision within the paperwork David signed barred plaintiffs’ claims because Agredano’s asserted conduct constituted only ordinary negligence and not gross negligence. The trial court granted defendant’s motion for summary disposition finding plaintiffs failed to “present any evidence establishing that defendant was grossly negligent in failing to take precautions for plaintiff’s safety.”
1 Plaintiffs had signed a waiver of any negligence based liability.
Plaintiffs assert that the trial court erred in dismissing their claim of gross negligence against Lifetime, arguing a genuine issue of material fact exists regarding whether Agredano [*3] was grossly negligent. We agree.
The trial court granted summary disposition in accordance with MCR 2.116(C)(7) and (10). This Court reviews “de novo a trial court’s ruling on a motion for summary disposition.” In re Mardigian Estate, 312 Mich App 553, 557; 879 NW2d 313 (2015). Specifically:
When considering a motion for summary disposition under MCR 2.116(C)(10), a court must view the evidence submitted in the light most favorable to the party opposing the motion. Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the evidence submitted might permit inferences contrary to the facts as asserted by the movant. When entertaining a summary disposition motion under Subrule (C)(10), the court must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in favor of the nonmoving party, and refrain from making credibility determinations or weighing the evidence. [Id. at 557-558, quoting Dillard v Schlussel, 308 Mich App 429, 444-445; 865 NW2d 648 (2014) (quotation marks omitted).]
In addition:
In determining whether a party is entitled to judgment as a matter of law pursuant to MCR 2.116(C)(7), a court must accept as true a plaintiff’s well-pleaded factual allegations, affidavits, or other [*4] documentary evidence and construe them in the plaintiff’s favor. Where there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, the decision regarding whether a plaintiff’s claim is barred by the statute of limitations is a question of law that this Court reviews de novo. [Terrace Land Dev Corp v Seeligson & Jordan, 250 Mich App 452, 455; 647 NW2d 524 (2002) (citation omitted).]
To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003) (citations omitted). “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” Woodman v Kera, LLC, 280 Mich App 125, 152; 760 NW2d 641 (2008), aff’d 486 Mich 228 (2010). “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” Id. “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]” Id.
As [*5] evidence of Agredano’s gross negligence, plaintiffs offered their deposition testimony. In his deposition testimony, David indicated that Agredano provided him with a harness and was present as he put it on and prepared to climb the wall:
- Q. And where was [Agredano] when you were placing the harness on yourself?
- A. She was in front of us. We were here. She was in front of us.
- Q. So she’s staring directly at your as you’re putting the harness on?
- A. She was, yeah, in front of us. We were here, and she was — I mean, we could show the picture if you want.
- Q. But I want to know if she was facing you when you were putting this harness on?
- A. Yes.
* * *
- Q. How much time elapsed between the time that you had your harness on and began climbing from the time when your wife began climbing?
- A. Okay. So they walked over to the wall, and then, as soon as I put on my harness, I walked over to the wall adjacent to [Agredano], and I watched my wife. She was already up the So whatever time it took for her to get up the eight feet, which is probably a couple minutes. I mean, a minute maybe.
- Q. All right. And when you walked over to the wall, was [Agredano] standing to your right?
- A. When I walked over to [*6] the wall, she was on my right.
- Q. And would you say she was within three or four feet of you?
- A. I could touch her. She was right there.
Further, David stated that Agredano spoke to him after he had inadvertently placed the harness on backwards and directed him to a climbing area, but did not warn him that the red loop on his harness should be on his front before he began to climb the wall:
- Q. When were you told to hook into something between your legs?
- A. Sure. So I had trouble putting on the harness, right? They walked over to the I followed . . . . I was next to — adjacent to [Agredano] . . . . As my wife started to come down [the rock wall], I asked — I asked, where should I go climb? [Agredano] pointed me over to the other adjacent valet or belay.
- Q. Belay
- A. Belay. Then somewhere between there I asked — or I don’t know if I asked, but she said, Hook it between your legs. . . .
David also stated that Agredano was present in the climbing wall area during the whole incident and watched him climb the rock wall while wearing the harness incorrectly:
- Q. And was [Agredano] facing you when you began climbing?
- A. She was facing both of us.
* * *
- Q. What I want to know is were [sic] you and [*7] your wife on the climbing, and she was behind you looking at the two of you?
- A. Yeah. She was looking at both of us.
* * *
- Q. Was there any point in time, while you were putting on your harness or after you put on your harness, where [Agredano] was inside the wall, through this door?
- A. No.
- Q. So she was outside in the climbing wall area with you the entire time?
- A. Correct.
In Elena’s deposition testimony, she testified that Agredano also spoke to David after he reached the top of the rock wall, gave him instructions regarding how to descend, and instructed David to let go of the wall despite his incorrectly worn harness:
- Q. What happened at that point?
- A. And he said — he asked her twice how to go down. And he asked her two times, because I remember, like, why he’s asking her? . . . So then, when he asked her two times, she said, just let go, and it will bring you down, the automatically thing will bring you down. And she said, I think, you know, push, let go. She said, just let go. Just let go. . . .
While Agredano claimed that she was not in the room when David incorrectly donned his harness and ascended the wall, we must consider the evidence in the light most favorable to plaintiffs and [*8] accept their testimony as true. Terrace Land Dev Corp, 250 Mich App at 455. David and Elena’s deposition testimony was that Agredano was present when David donned his harness and ascended the wall, that she had ample opportunity to determine that David had put his harness on incorrectly, but that she failed to correct his mistake. Further, plaintiffs testified that Agredano watched David climb the wall in an unsafe harness, and directed David to let go of the wall to repel back down to the ground despite the red loop on David’s harness indicating that his harness was on backwards. Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication2 that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness. Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign [*9] that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” David. Tarlea, 263 Mich App at 90. Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence. Thus, the trial court erred in granting defendant’s motion for summary disposition.
2 Agredano testified that if someone was standing below a rock climber, that person would be readily able to see if a harness was on backwards.
Because we have concluded that the trial court erred in granting summary disposition to defendant, it is unnecessary for us to address in Docket No. 328985 whether the decision to deny the case evaluation award would otherwise have been appropriate if the grant of summary disposition had been proper.
We reverse the order granting defendant’s motion for summary disposition and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Christopher M. Murray
/s/ Stephen L. Borrello
Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
Posted: January 4, 2016 Filed under: Assumption of the Risk, Climbing Wall, Pennsylvania | Tags: assumption of the risk, Belaying, Bouldering, Bouldering Mats, Climbing Wall, Gross negligence, Mats, Philly Rock Corp. Leave a commentRelease blocked the claims for negligence; however, the gross negligence claims relied on assumption of the risk as a defense. The release helped prove the plaintiff assumed the risk, but I suspect that defense would only work in a bouldering case like this.
Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767
State: Pennsylvania: Superior Court of Pennsylvania
Plaintiff: Rebecca Mcgarry
Defendant: Philly Rock Corp
Plaintiff Claims: gross negligence in that the defendant
Defendant Defenses: Assumption of the Risk
Holding: For the Defendant
Year: 2015
The plaintiff and her husband wanted to try something new, so they went to the defendant indoor climbing facility. The plaintiff signed the release and took a class in belaying and use of the belay equipment.
Around the facility were numerous signs warning of the risks of the activity: bathrooms, reception desk, and pillars in the building. There was also a sign about mat placement that the plaintiff remembered and drew correctly during her depositions.
On their second visit, the plaintiff tried bouldering. The bouldering area had mats; however, the mats were moveable and were supposed to be moved by the people bouldering. The plaintiff was approximately four feet of the ground when she jumped off. She did not move the mats prior to bouldering and did not look for the mats when she jumped. She shattered her ankle, which required three surgeries.
The plaintiff sued, and the case went to trial on the issue of the gross negligence of the defendant. The release precluded all the negligence claims of the plaintiff. As in most states (if not all) a release is not valid for gross negligence claims. “Because McGarry signed a waiver, no one in this case disputes that McGarry was required to prove that PRC was grossly negligent to recover.”
The jury awarded the plaintiff $150,000 for her gross negligence claims. The defendants filed a motion for Judgment Notwithstanding the Verdict (JNOV). This motion, JNOV, requests the judge to overrule the jury and grant the defendant’s motion for dismissal. The judge did and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The plaintiff appealed claiming the trial court made four errors of the law. The first two were based on the procedural issues associated with the JNOV. The third was whether the trial court correctly applied the assumption of the risk doctrine, and the final issue was whether the court properly denied the introduction of evidence that the defendant’s employees had not been trained properly.
The court started by defining gross negligence as per Pennsylvania law.
Gross negligence has . . . been termed the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others. Additionally, gross negligence has been described as an extreme departure from ordinary care or the want of even scant care [and] . . . as [a] lack of slight diligence or care, and [a] conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party . . . .
[G]ross negligence is clearly more egregious than ordinary negligence.
Under Pennsylvania law, if the plaintiff assumed the risk which caused her injury, then the defendant does not owe the plaintiff any further duty. The trial court found the plaintiff had assumed the risk based on the following:
McGarry knew that there was a risk in bouldering, knew she could be injured from a height of four feet, knew she was jumping from the wall without looking for the mats, and jumped anyway. The trial court also found that, because the dangers were obvious, PRC reasonably could expect that McGarry would take steps to protect herself, precluding a finding that PRC was grossly negligent.
The plaintiff countered by staging she could only assume the risks she understood. Since there was no written safety material, and she had not been trained in how to use the mats or a spotter, she could not assume the risk.
McGarry first notes that assumption of risk is subjective and that McGarry only could assume a risk that she understood. McGarry argues that, because there were no written safety materials, McGarry did not know how to position the mats or how to use a spotter to avoid injury.
The court looked at the assumption of risk doctrine. As in most (if not all) states assumption of the risk as a defense was merged into comparative negligence. However, in Pennsylvania the Supreme Court had not eliminated assumption of the risk as a defense, it was now only in disfavor.
In Pennsylvania, the doctrine of assumption of the risk is defined as:
[A]ssumption of risk is established as a matter of law only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Mere contributory negligence does not establish assumption of risk. Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff’s injuries. In order to prevail on assumption of risk, the defendant must establish both the “awareness of the risk” prong and the “voluntariness” prong.
Assumption of the risk eliminates a duty from the defendant.
If the case is viewed from the perspective of a duty analysis, the evidence presented at trial establishes that [the plaintiff] voluntarily encountered a known risk, thereby obviating any duty which might otherwise have been owed him by [the defendant]. Under this analysis, the case is controlled by the assumption of risk principle that one who voluntarily undertakes a known risk thereby releases the defendant from any duty of care.
The court quoted another Pennsylvania decision to explain what elimination of the duty from the defendant meant.
Similarly, “[w]hen an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpoint to the possessor’s lack of duty to protect the invitee from those risks.”
The court then applied those definitions to the present case. The first analysis was whether the dangers were open and obvious. (Jumping from four feet high I believe is obvious to everyone in the world) The court found the dangers had been pointed out to the plaintiff.
Multiple signs throughout the facility warned that climbing and bouldering are dangerous and may result in serious injury. Additionally, the danger of these activities “is well understood by virtually all individuals of adult age.” Falling and causing a injury to an ankle or wrist is a “common, frequent, and expected” risk of climbing or bouldering.
The plaintiff had also admitted during her deposition that she knew of the risks.
Further, McGarry knew of and appreciated the risk. McGarry testified that she knew there were risks in bouldering and that she knew she could be injured when jumping even from a height of four feet. McGarry saw the sign stressing the importance of mat placement and drew it from memory much later at her deposition. Despite knowing that mats and their placement were important, McGarry nonetheless did not look before she jumped and landed in the wrong place.
The court also found that the fact the plaintiff had signed a release; she knew she was responsible for her injuries.
McGarry also acknowledged that she signed a waiver, which she understood meant that she was responsible for any injuries. She then voluntarily proceeded with the activity despite her appreciation of that risk.
The court then went back to the testimony to sum the assumption of the risk defense and why it agreed with the trial court. “However, McGarry’s own testimony compels the trial court’s finding that she assumed the risk, which, as a matter of law, precludes a verdict in her favor.”
The next issue was the application of the assumption of the risk defense to a claim of gross negligence. Because assumption of the risk removed the necessary duty from the defendant, there could be no gross negligence. In Pennsylvania once the plaintiff assumes the risk the defendant has no further duty to the plaintiff, with respect to the duty the plaintiff is assuming.
…we conclude that McGarry’s assumption of the risk barred her recovery regardless of whether PRC was grossly negligent. Because the evidence supported the trial court’s conclusion that McGarry as-sumed the risk of injury, PRC owed no duty to McGarry and, therefore, was not legally responsible for her injury.
If there is no duty, there is no negligence. To prove negligence, the plaintiff must prove there was a duty, a breach of that duty, an injury proximately caused by the breach and damages. Failing to prove all four points and the plaintiff does not prove her case. If the case is not proved, then the defense has no need to present any defenses because there was no negligence.
The final issue the court reviewed was the plaintiffs claim the employees were not sufficiently trained.
Finally, McGarry complains that the trial court erred in precluding her from introducing evidence regarding whether PRC’s employees were trained or qualified. McGarry argues that this evidence was relevant and should have been presented to the jury.
The court found this was not at issue. Because the plaintiff did not receive instruction on bouldering from an employee of the defendant, the training and qualifications were immaterial.
Because McGarry did not receive instruction from PRC employees, the trial court reasoned that if PRC was obligated to provide instruction to clients as part of its duty, PRC would be negligent regardless of whether it’s the employees were adequately trained. If PRC was not obligated to provide instruction to clients, then PRC would not be negligent regardless of employee training.
The defendant did not have a required bouldering class and told the plaintiff to ask questions which the plaintiff did not do. However, because her complaint did not involve the training, she received or how her questions were answered, the training and qualifications of the defendant employees did not matter.
The appellate court agreed with the trial court and upheld the dismissal of the case.
So Now What?
First, this is another example where the risks of the activity should be included in your release. Here the court found the release proved the plaintiff had assumed the risk of her injury.
The next issue is the training issue. This issue seemed to have been developed by the plaintiff’s expert witness. Besides training he stated the defendant was below the standard of the industry in the following ways.
Mr. Andres testified that some of the safety signs were placed where they were unlikely to be noticed. Some of the signs warned about possible dangers, but gave no instructions about how to avoid those risks. Mr. Andres testified that belaying and bouldering are different and that, in bouldering, mat placement, the use and limitations of mats, and how to control one’s descent are important. Mr. Andres opined that it was insufficient to have signs instructing clients to ask an employee about climbing or safety because novice climbers may not know what to ask in order to participate safely.
You will see experts making many, and in a few case’s extremely absurd claims to assist the plaintiff in making his or her claim. Signs that warned but did not instruct which the plaintiff ignored anyway mat placement and controlling your descent when falling was argued by the plaintiff’s expert.
I think mat placement is pretty obvious. You put the mats where you think you may land. As far as controlling your descent, I’m lost. I’ve tried a lot of things when falling, clawing the air, kicking madly, flapping my arms and screaming may make me feel better at the time but did nothing to “control my descent.”
I go back to education on this type of claim again. The more you educate your client the less likely they might get hurt and the less likely they can sue. The problem always is. How do you educate a client and then who do you prove you educated them.
In my opinion, that is where the business website comes in. The more information and videos you can put on the website the better. When you post these videos be real. Post the right way and the wrong way, show the risks and show people being stupid. Just make sure you point out when someone is doing something wrong that you make sure that is indicated on the video.
You can then require people to watch the videos before starting the activity, or you can have them acknowledge in the release, they have watched the videos. You can also tell them in your marketing or communications to watch the videos to learn more about climbing or whatever the activity is.
This case was decided in October of 2015. I believe the time to appeal is only thirty (30) days, and it does not appear that an appeal has been filed in this case. However, until a longer period of time has run, this case might be appealed and possibly over turned by the Pennsylvania Supreme Court.
What do you think? Leave a comment.
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Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Posted: October 5, 2015 Filed under: Climbing Wall, Louisiana, Release (pre-injury contract not to sue), Risk Management | Tags: assumption of the risk, Climbing Wall, Climbing Wall Manual, College, Manual, Release, risk management plan, Safety Clinic, University, Waiver Leave a commentLouisiana law prohibits the use of a release. That complicates any recreational activity in the state. However, the greater risk is creating a checklist for the plaintiff or in this case the court to use to determine if you breached the duty of care you owed the plaintiff.
State: Louisiana
Plaintiff: Brandy Lynn Fecke, Stephen C. Fecke, and Karen Fecke
Defendant: The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College
Plaintiff Claims:
Defendant Defenses:
Holding: For the Plaintiff
Year: 2015
Louisiana State University converted a racquetball court into a climbing “gym.” It had two bouldering walls and one climbing wall. The climbing wall was 19′ climbing high, and the two bouldering walls were 13′ 1″ high. The plaintiff and a friend went to the climbing wall to work on a required assignment for an “Outdoor Living Skills Activity” course.
Upon arrival, the plaintiff paid to climb and signed a document entitled “Rock Climbing Wall Climbing Wall Participation Agreement.” The agreement was determined by the court to be a release which is void under Louisiana law. (See States that do not Support the Use of a Release.)
The plaintiff and her friend were then were asked if they had climbed before. The plaintiff had climbed twice ten years prior. They received some instruction, which was at issue during the appeal. The plaintiff choose to boulder because she did not want to wear a harness and bouldering was the easiest.
The court understood bouldering, which is quite unusual.
Bouldering is when a climber, with a partner standing behind the climber to act as a spotter in case the climber needs assistance, climbs up to a certain point on the wall and then traverses the wall side-to-side, in order to develop proficiency in climbing.
After bouldering to the top of the wall the plaintiff attempted to down climb and got stuck.
She lost her footing and hung from the wall. When she lost her grip after hanging for a few seconds, she let go of the wall and pushed herself away from the wall. As she fell, Ms. Fecke twirled around, facing away from the wall.
The plaintiff sustained severe injuries to her ankle that required three surgeries prior to the trial and might require more.
The case went to trial. The trial court dismissed the release because of La. C.C. art. 2004.
Louisiana Civil Code
Book 3. Of the different modes of acquiring the ownership of things
Code Title 4. Conventional obligations or contracts
Chapter 8. Effects of conventional obligations
Section 4. Damages
La. C.C. Art. 2004 (2015)
Art. 2004. Clause that excludes or limits liability
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.
Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
The jury awarded the plaintiff $1,925,392.72 and additional $50,000 to her mother for loss of consortium. The trial court reduced the damages to $1,444,044.54, and the loss of consortium claim was reduced to $37,500. The judgment also received interest at 6.0%.
The University appealed.
Analysis: making sense of the law based on these facts.
The first issue on the appeal was the application of Louisiana law on the amount of money awarded as damages. This first issue will not be examined here. The second issue was whether the Rock Climbing Wall Participation Agreement was properly excluded during trial.
Originally, the Rock Climbing Wall Participation Agreement was excluded based on a Motion in Limine filed by the plaintiff. A Motion in Limine is a motion filed by a party that argues the evidence of the other side should be excluded because it violates a rule of evidence, or it violates the law. Arguing this type of issue in front of the jury just makes the jury wonder what you are hiding, and you want to have your arguments correct and in advance. A Motion in Limine is the most powerful motion in a litigator’s bag after the motion for summary judgment.
The defendant raised the issue at trial to have the Rock Climbing Wall Participation Agreement entered into evidence and lost that argument also. The trial court did read to the jury a summary of parts of the Rock Climbing Wall Participation Agreement that did not violate the constitution on releases.
The issue the university argued to allow the Rock Climbing Wall Participation Agreement to be entered into evidence and see by the jury was:
Ms. Fecke was sufficiently educated and understood the inherent risk of injury associated with the activity she was about to undertake and that the LSU UREC employees had properly screened Ms. Fecke prior to allowing her to climb the wall. The LSU Board avers that the Agreement constituted Ms. Fecke’s acknowledgment of the risks of climbing the wall, which is a significant factor in determining her fault, and that this information should have been presented to the jury.
The court found that paragraph four of the agreement violated the Louisiana State Constitution, (La. C.C. art. 2004). “Based on our review of the proffered Agreement, paragraph four is null pursuant to La. C.C. art. 2004 because it, in advance, excludes the liability of the LSU Board for causing physical injury to Ms. Fecke.”
The university argued the rest of the Rock Climbing Wall Participation Agreement should be allowed to be introduced to a jury because it would help the jury determine the risk assumed by the plaintiff and consequently, the percentage of damages she was responsible for.
The court then looked at when and how under Louisiana law, liability (negligence) was determined.
For liability for damages to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element).
The court determined that rock climbing was recreational and like other, activities involved a substantial degree of risk. The duty of the climbing wall operator or gym operator was one of reasonable care, to provide a sound and secure environment.
Rock climbing is a recreational activity that involves substantial risk. Many other recreational activities such as weight lifting and swimming also involve a substantial degree of risk. The risks associated with these and other physically-challenging sports are well recognized. The duty on the gym operator, when these types of sports are conducted, is one of reasonable care under the circumstances — to provide a sound and secure environment for undertaking a clearly risky form of recreation and not that of removing every element of danger inherent in rock climbing.
The last sentence is important as the court found the climbing wall operator did not have a duty to warn about the potential for injury because of gravity. “The LSU Board did not have a duty to warn Ms. Fecke as a climber about the potential effect of gravity. A warning that “if you fall you might get hurt,” is obvious and universally known.”
The court did determine that to be found liable the gym must have failed to provide training and supervision and there must be a connection between the failure to train and supervise and the injury.
A gym and its facilities are not the insurers of the lives or safety of its patrons. A gym cannot be expected to foresee or guard against all dangers. Furthermore, the gym must only take reasonable precautions under the circumstances to avoid injury. To prove negligence on the part of the LSU Board, Ms. Fecke must show both a failure to provide reasonable training and supervision under the circumstances, as well as proof of a causal connection between the lack of reasonable training/supervision and the accident.
This was where the university lost the case. The university had created an extensive “Indoor Climbing Wall Manual” that covered all aspects of operating the climbing wall. It was probably created as a way to avoid liability. In this case the court used, the Indoor Climbing Wall Manual became a checklist to prove the defendant was liable.
The LSU UREC maintains an “Indoor Climbing Wall Manual,” which governs the rules, use, and maintenance of the indoor rock wall climbing facility. The manual requires the following of all employees of the indoor rock wall climbing facility:
The manual proved the climbing wall failed to train and failed to supervise. Nothing like your own documents proving the plaintiffs case.
The manual required all employees to know and enforce all rules of the climbing wall. The court then found ten rules in the manual that must be followed. The court then found additional rules that had to be followed beyond the first ten.
Furthermore, the LSU UREC employees are required to instruct patrons who intend to climb in accordance with the guidelines contained in a “safety clinic” document. The safety clinic requires the LSU UREC employees to give examples of danger areas and instruct climbers where to fall on crash pads, which must be placed underneath bouldering climbers at all times.
The rules went on to require the climbers be instructed in spotting techniques and have the climbers demonstrate spotting techniques. “The safety clinic also requires the LSU UREC employees to demonstrate how to properly descend the wall, and in the event of a fall, how to properly land on the ground to reduce injuries.”
The next two pages of the court’s opinion are running through the climbing manual as a checklist for everything the employees of the climbing wall failed to do. There was contradictory testimony, including one witness who said the plaintiff’s friend was in a position to spot but when she fell he moved away. However, the court did not seem to find the employees statements to be persuasive.
After our de novo review of the testimony and evidence presented at trial, we conclude that the LSU UREC employees failed to properly instruct, demonstrate, and certify that Ms. Fecke and Mr. Culotta understood the proper techniques for climbing the bouldering wall in accordance with their duties as described in the LSU UREC “Indoor Climbing Wall Manual” and the safety clinic document.
Legally, the climbing manual of the wall created the duty and the proof of the breach of the duty necessary to prove the case for the plaintiff.
Consequently, when reviewing whether the agreement should be allowed to be entered as evidence the appellate court decided that it might have been instructional to the jury.
The only portion of the excluded Agreement that might have prejudiced the LSU Board’s case is the portion in paragraph five wherein Ms. Fecke certified that she “agree[d] to abide by all rules of the sport as mandated by LSU University Recreation.” As discussed above, however, instruction as to those “rules” was not provided to Ms. Fecke by the LSU UREC employees nor was she properly screened or supervised as she climbed the bouldering wall.
However, the court also found that even if instructional, it was not sufficient of an issue to reverse the decision.
Thus, we find that the trial court legally erred in excluding a redacted version of the Agreement; however, we hold that the trial court’s error was not prejudicial. The inclusion of the remainder of the Agreement at trial could not have permissibly changed the jury’s verdict based on our de novo review of the record.
The court then went back and looked at how the damages were determined. Ultimately, the damages were lowered to $650,000.
So Now What
You can have manuals and checklists and other pieces of paper that tell your employees what they must do. However, if you do have these pieces of paper, you better have another employee standing around making sure everything on the paper is done.
If you write it down, call it a standard, a manual, procedure it will become proof that you owed a duty to someone and breached that duty. Your own documents are proof that you are negligent.
Here a comprehensive manual was written to protect patrons of the climbing gym, and it ended up being an easy way for the court to find the gym had failed in its duty. Where did the court find the duty? In the climbing wall, manual easily laid out in lists.
This case is relevant in another light. If your state law says releases are not valid, you may not want to risk using one. You would be better off creating an acknowledgement of risk form for guests to sign.
Better, create video showing guests what they can and should do and more importantly what they should not do. Have the guest acknowledge in the assumption of the risk form, that they have watched the video. That helps prove the guest knew and assumed the risk of the activity.
What do you think? Leave a comment.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
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Fecke v. The Board of Supervisors of Louisiana State University, 2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357
Posted: September 26, 2015 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, Louisiana | Tags: assumption of the risk, Climbing Wall, Climbing Wall Manual, College, Manual, risk management plan, Safety Clinic, University Leave a commentTo Read an Analysis of this decision see
Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Fecke v. The Board of Supervisors of Louisiana State University, 2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357
Brandy Lynn Fecke, Stephen C. Fecke, and Karen Fecke versus The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College
NO. 2015 CA 0017
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357
July 7, 2015, Judgment Rendered
NOTICE:
THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.
SUBSEQUENT HISTORY: Rehearing denied by Fecke v. Bd. of Supervisor, 2015 La. App. LEXIS 1644 (La.App. 1 Cir., Sept. 3, 2015)
Rehearing denied by Fecke v. Bd. of Supervisiors, 2015 La. App. LEXIS 1679 (La.App. 1 Cir., Sept. 3, 2015)
PRIOR HISTORY: [*1] On Appeal from the 19th Judicial District Court. In and for the Parish of East Baton Rouge, State of Louisiana. No. C584652. The Honorable R. Michael Caldwell, Judge Presiding.
DISPOSITION: REVERSED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.
COUNSEL: John Neale deGravelles, Baton Rouge, Louisiana, Attorney for Plaintiffs/Appellees, Brandy L. Fecke, Stephen C. Fecke, and Karen Fecke.
James D. “Buddy” Caldwell, Attorney General, Patrick E. Henry, Darrell J. Saltamachia, John L. Dugas, Special Assistant Attorneys General, Baton Rouge, Louisiana and J. Elliott Baker, Special Assistant Attorney General, Covington, Louisiana, Attorneys for Defendant/Appellant, The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.
JUDGES: BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ. Guidry. J. concurs in the result.
OPINION BY: DRAKE
OPINION
DRAKE, J.
The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (“LSU Board”) appeals a judgment on a jury verdict that awarded damages to the plaintiff for injuries she sustained in an indoor rock wall climbing accident. For the following reasons, we reverse and amend portions of the judgment and affirm as amended.
FACTS AND PROCEDURAL [*2] HISTORY
It is undisputed that on the evening of December 3, 2008, Brandy Lynn Fecke sustained injuries when she fell from a bouldering wall located at the LSU Recreation Center (“LSU UREC”) indoor rock climbing wall facility. Ms. Fecke, then a 23-three-year-old senior at LSU, and a fellow classmate, Chad Culotta, visited the indoor rock climbing facility to complete a required assignment for an Outdoor Living Skills Activity course. The indoor rock climbing facility at the LSU UREC is housed in a remodeled racquetball court. LSU converted the court into the rock climbing wall facility, with three rock wall climbing options: (i) a 19′ climbing wall; (ii) a 13′ 1″ bouldering wall located on the rear wall; (iii) and a 13′ 1″ bouldering wall located on a side wall.
After Ms. Fecke and Mr. Culotta paid for admission to enter the indoor rock climbing wall facility and received a receipt, the LSU UREC employees working the night of the accident signed Ms. Fecke and Mr. Culotta’s course forms to verify their completion of the rock wall climbing assignment for their Outdoor Living Skills Activity course. Ms. Fecke also executed a Rock Climbing Wall Participation Agreement, which was provided [*3] to her by the LSU UREC employees. The student workers inquired into their previous experience with rock climbing. Ms. Fecke testified that she climbed a rock wall twice before — once when she was eight years old and a second time when she was ten years old. Ms. Fecke also testified that she had “top lined” previously, that is, that she knew about climbing a wall wearing a harness and using safety ropes, i.e., belay ropes. The employees proceeded to go through the instructions for the rock wall climbing experience. They explained to Ms. Fecke and her classmate that they could climb the 19′ climbing wall with top ropes while wearing a harness, or they could climb one of the 13′ 1″ bouldering walls. Ms. Fecke wanted to climb the “easiest wall” and opted to climb the rear bouldering wall, which did not require her to wear a harness or climb with belay ropes. Bouldering is when a climber, with a partner standing behind the climber to act as a spotter in case the climber needs assistance, climbs up to a certain point on the wall and then traverses the wall side-to-side, in order to develop proficiency in climbing.
After instruction and a climbing demonstration by one of the employees, [*4] Ms. Fecke’s classmate climbed up and then traversed down the wall. Ms. Fecke then climbed the wall. After reaching the top of the wall, Ms. Fecke began her descent; however, she got stuck while traversing down the wall and was unable to climb down any further. She lost her footing and hung from the wall. When she lost her grip after hanging for a few seconds, she let go of the wall and pushed herself away from the wall. As she fell, Ms. Fecke twirled around, facing away from the wall. Ms. Fecke landed on her left foot and sustained multiple fractures to the talus bone in her left ankle, known as a comminuted talus fracture. Due to the severity of the fractures, Ms. Fecke underwent three surgeries and will require additional surgery, including either a permanent ankle fusion or an ankle replacement.
Ms. Fecke and her parents, Stephen and Karen Fecke, brought suit against the LSU Board for damages Ms. Fecke sustained as a result of the accident. Following a three-day jury trial, the jury returned a verdict in favor of Ms. Fecke, Karen Fecke, and Stephen Fecke and against the LSU Board, and awarded damages. The jury allocated 75% of the fault to the LSU Board and 25% of the fault to Ms. [*5] Fecke and awarded damages to Ms. Fecke as follows:
- Physical Pain and Suffering, Past and Future: $150,000.00
- Mental Pain and Suffering, Past and Future: $125,000.00
- Loss of Enjoyment of Life: $75,000.00
- Permanent Disability and Scarring: $165,000.00
- Past Medical Expenses: $60,392.72
- Fecke Future Medical Expenses: $1,000,000.00
- Loss of Future Earnings: $350,000.00
- TOTAL: $1,925,392.72
Additionally, the jury awarded damages to Karen Fecke as follows:
- Loss of Consortium and Society: $50,000.00
The jury awarded no damages to Stephen Fecke for loss of consortium and society.
Six months later, the trial court signed a judgment on October 3, 2014, and after adjusting the jury’s damage award based on the fault allocation, awarded damages to Ms. Fecke as follows:
- Physical Pain and Suffering, Past and Future: $112,500.00
- Mental Pain and Suffering, Past and Future: $93,750.00
- Loss of Enjoyment of Life: $56,250.00
- Permanent Disability and Scarring: $123,750.00
- Past Medical Expenses: $45,294.54
- Fecke Future Medical Expenses: $750,000.00
- Loss of Future Earnings: $262,500.00
- TOTAL: $1,444,044.54
The trial court also awarded Ms. Fecke all costs of the proceedings plus 6.0% judicial interest from the date [*6] of judicial demand until paid, pursuant to La. R.S. 13:5112(C). Furthermore, the trial court ordered that after being reduced for attorney’s fees and costs, Ms. Fecke’s future medical care award of $750,000 (plus judicial interest) be placed in a reversionary trust in accordance with La. R.S. 13:5106(B)(3)(c).1 Additionally, the trial court awarded damages to Karen Fecke as follows:
Loss of Consortium and Society: $37,500.00
The trial court also awarded Karen Fecke all costs of the proceedings plus 6.0% judicial interest from the date of judicial demand until paid, pursuant to La. R.S. 13:5112(C). Finally, the trial court cast the LSU Board with all costs of court, including but not limited to, the expert witness fees as follows:
- Dan Pervorse: $3,500.00
- Dr. James Lalonde: $1,400.00
- Dr. John F. Loupe: $900.00
- Stephanie Chalfin: $1,500.00
- Harold Asher: $3,000.00
The LSU Board now appeals the October 3, 2014 final judgment of the trial court, assigning three errors to the trial court’s application of the law pertinent to this case.
1 Although this point will be discussed more thoroughly in the first assignment of error, we note here, for clarification purposes, that the trial court’s judgment names the reversionary trust the “Future Medical Care Trust.” We observe [*7] the label “Future Medical Care Trust” appears nowhere in La. R.S. 13:5106, nor in any other provision in the Louisiana Governmental Claims Act, La. R.S. 13:5101-5113.
LAW AND DISCUSSION
Standard of Review
[HN1] The appellate court’s review of factual findings is governed by the manifest error/clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So. 2d 1120, 1127 (La. 1987). Thus, if there is no reasonable factual basis in the record for the fact-finder’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a fact-finder’s factual finding only if, after reviewing the record in its entirety, it determines the finding was clearly wrong. See Stobart v. State, through Dept, of Transp. and Dev., 617 So. 2d 880, 882 (La. 1993).
[HN2] A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews [*8] the trial court’s finding as to issues of material fact, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731, 735. However, the above approach need not be considered when a jury has made some factual findings favorable to each party, and when the legal error affected only one of the findings, but does not interdict the entire fact-finding process. The appellate court should proceed to evaluate each jury finding pertinent to liability in order to determine the applicability of the manifest error rule to each. If only one of the jury’s factual findings is tainted by the application of incorrect principles of law that are prejudicial, the appellate court’s de novo review is limited to the jury finding so affected. Rideau v. State Farm Mut. Auto. Ins. Co., 06-0894 (La. App. 1 Cir. 8/29/07), 970 So. 2d 564, 571, writ denied, 07-2228 (La. 1/11/08), 972 So. 2d 1168.
Assignment of Error 1:
In the first assignment of error, the LSU Board contends the trial court erred by ordering that attorney’s fees and costs were payable out of Ms. Fecke’s damage award for her future medical care. The LSU Board further contends that the trial court erred by awarding Ms. Fecke interest on that award. Ms. Fecke counters that she is [*9] entitled by statute to receive interest on her future medical care damage award, and she further argues that the trial court is authorized by statute to award contractual attorney fees from that award prior to establishing the terms and provisions of a reversionary trust, which is to be created for her future medical care expenses. Thus, the first issue before this court is whether any interest, attorney’s fees, or costs are due and collectible by Ms, Fecke and her attorneys on and out of her damage award against LSU for future medical care. [HN3] As the facts in this matter are not in dispute and the issue on this assignment of error is purely one of the statutory interpretation of La. R.S. 13:5106, a section of the Louisiana Governmental Claims Act, this court will review the matter de novo, without deference to the legal conclusion of the trial court, and determine whether the error was prejudicial to the case. Turner v. Willis Knighton Med. Ctr., 12-0703 (La. 12/4/12), 108 So. 3d 60, 62; Duzon v. Stallworth, 01-1187 (La. App. 1 Cir. 12/11/02), 866 So. 2d 837, 861, writ denied sub nom., Duzon ex rel. Cmty. of Acquets & Gains v. Stallworth, 03-0589 (La. 5/2/03), 842 So. 2d 1101, and writ denied, 03-0605 (La. 5/2/03), 842 So. 2d 1110.
[HN4] Suits against the State of Louisiana, a state agency, or a political subdivision must be brought pursuant to the Louisiana Governmental Claims Act, La. R.S. 13:5101-5113 (“Act”). The Act applies to any suit in contract or for injury to person or property. La. R.S. 13:5101(B). Pursuant [*10] to the Act, the Legislature appropriates certain funds to pay claims against the State, its agencies, and political subdivisions. La. R.S. 13:5106(B)(1). The Act caps a claimant’s damages for personal injury at $500,000.00, exclusive of property damage, medical care and related benefits, loss of earnings, and loss of future earnings. La. R.S. 13:5106(B)(1).
[HN5] When a trial court determines that a plaintiff in a suit for personal injury against the state or a state agency is entitled to medical care and related benefits2 incurred subsequent to judgment, i.e. future medicals, the provisions of the Future Medical Care Fund (“FMCF”), La. R.S. 39:1533.2, apply to such cases. Louisiana Revised Statutes 13:5106(B)(3)(c) is the controlling statutory authority for personal injury claims against the state or a state agency:
In any suit for personal injury against the state or a state agency wherein the court pursuant to judgment determines that the claimant is entitled to medical care and related benefits that may be incurred subsequent to judgment, the court shall order that all medical care and related benefits incurred subsequent to judgment be paid from the Future Medical Care Fund as provided in R.S. 39:1533.2. Medical care and related benefits shall be paid directly to the provider as they are incurred [*11] . Nothing in this Subparagraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided but with the requirement that they shall be paid in accordance with this Subparagraph. [Emphasis added.]
[HN6] The FMCF is administered by the Office of Risk Management, through the Treasurer of the State of Louisiana. La. R.S. 39:1533.2(B).
2 Louisiana Revised Statutes 13:5106(D)(1) provides that:
[HN7] “Medical care and related benefits” for the purpose of this Section means all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services.
In contrast, [HN8] when a trial court determines that a plaintiff in a suit for personal injury against a political subdivision is entitled to medical care and related benefits incurred subsequent to judgment, a reversionary trust is established for the benefit of the plaintiff and all future medical care is paid pursuant to the reversionary trust instrument. Louisiana Revised Statutes 13:5106(B)(3)(a)3 is the controlling statutory authority for personal injury claims against political subdivisions:
In any suit for personal injury [*12] against a political subdivision wherein the court, pursuant to judgment, determines that the claimant is entitled to medical care and related benefits that may be incurred subsequent to judgment, the court shall order that a reversionary trust be established for the benefit of the claimant and that all medical care and related benefits incurred subsequent to judgment be paid pursuant to the reversionary trust instrument. The reversionary trust instrument shall provide that such medical care and related benefits be paid directly to the provider as they are incurred. Nothing in this Paragraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided, but with the requirement of establishing a reversionary trust. [Emphasis added.]
The Act [HN9] does not limit the rights of a claimant to contract with respect to attorney’s fees and costs when the claimant’s future medical care is paid from a reversionary trust established by a political subdivision for that claimant’s future medical care. As provided for in Louisiana Revised Statutes 13:5106(D)(3):
[HN10] “Reversionary trust” means a trust established by a political subdivision for [*13] the exclusive benefit of the claimant to pay the medical care and related benefits as they accrue, including without limitation reasonable and necessary amounts for ah diagnosis, cure, mitigation, or treatment of any disease or condition from which the injured person suffers as a result of the injuries, and the sequelae thereof, sustained by the claimant on the date the injury was sustained. The trustee shall have the same fiduciary duties as imposed upon a trustee by the Louisiana Trust Code. Nothing herein shall limit the rights of claimants to contract with respect to attorney fees and costs. [Emphasis added.]
Louisiana Revised Statutes 13:5106(B)(3)(a) and (D)(3), [HN11] relative to the creation of reversionary trusts, were added by 1996 La. Acts No. 63, § 1 (effective May 9, 1996). 2000 La. Acts No. 20, § 1 (effective July 1, 2000) amended La. R.S. 13:5106(B)(3)(a) and (D)(3) to provide that the creation of reversionary trusts for the payment of future medical care specifically applies to personal injury claims against political subdivisions.
To ascertain which of the Act’s provisions regarding damage awards apply to Ms. Fecke’s case — either the provision applicable to an award against the state or a state agency, La. R.S. 13:5106(B)(3)(c), or the provision applicable to damage awards against [*14] a political subdivision, La. R.S. 13:5106(B)(3)(a) — this court must determine whether the LSU Board is classified as the “state or a state agency” or as a “political subdivision.” The Act defines a “state agency” as “any board, commission, department, agency, special district, authority, or other entity of the state.” La. R.S. 13:5102(A). The Act defines a “political subdivision” as “[a]ny parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency.” La. R.S. 13:5102(B)(1).
[HN12] The starting point in the interpretation of any statute is the language of the statute itself. Whitley v. State ex rel. Bd. of Supervisors of Louisiana State Univ. Agr. Mech. College, 11-0040 (La. 7/1/11), 66 So. 3d 470, 474. When the wording of a section of the revised statutes is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. La. C.C. art. 9; La. R.S. 1:4. “Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language.” La. R.S. 1:3. Based on the clear language of La. R.S. 13:5102(A) and (B), the LSU Board is a state agency.4 Because the LSU Board is a state agency, the Act’s provision applicable to [*15] awards for future medical care against the state or a state agency – La. R.S. 13:5106(B)(3)(c) DMASH applies to the instant case. Thus, the trial court legally erred in applying La. R.S. 13:5106(B)(3)(a) to this case. That legal error became prejudicial when the trial court rendered judgment on the jury’s verdict and ordered that Ms. Fecke’s damage award for her future medical care be placed in a reversionary trust, which the trial court referred to as a “Future Medical Care Trust.”5 We therefore amend the portion of the trial court’s October 3, 2014 final judgment that refers to a “Future Medical Care Trust” to refer to the “Future Medical Care Fund.”
4 We note that there is constitutional and statutory authority for the classification of the LSU Board as a state agency. We also note there is jurisprudence that has previously applied the Act to suits involving the LSU Board. In those instances, courts applied the provisions of the Act applicable to state agencies to the LSU Board. See La. Const, art. VIII, § 7; La. R.S. 13:5102(A): La. R.S. 39:1527(1); Whitley, 66 So. 3d at 476; LeBlanc v. Thomas, 08-2869 (La. 10/20/09), 23 So. 3d 241, 246; Student Govt. Association of Louisiana State Univ. Agr. & Meek College, Main Campus, Baton Rouge v. Board of Supervisors of Louisiana State Univ. Agr. & Meek College, 262 La. 849, 867-68, 264 So. 2d 916, 922 (1972) (Barham, J., dissenting); Hunter v. Louisiana State Univ. Agr. & Meek College ex rel. Louisiana Health Care Services Center for Univ. Hosp. at New Orleans, 10-1406 (La. App. 4 Cir. 6/8/11), 77 So. 3d 264, 267, reversed on other grounds, 11-2841 (La. 3/9/12), 82 So. 3d 268.
5 The trial court’s judgment ordered that Ms. Fecke’s future medicals be placed in a “Future Medical Care Trust” in accordance with La. R.S. 13:5106(B)(3)(c); however, as we have discussed, Section 5106(B)(3)(c) applies [*16] to the state and state agencies and governs the placement of a claimant’s future medicals in the Future Medical Care Fund, not a trust.
In addition to its argument that the trial court legally erred in establishing a reversionary trust for Ms. Fecke’s future medical care instead of ordering that those benefits be paid from the FMCF, the LSU Board further contends that the trial court legally erred when it (i) ordered that costs and judicial interest be paid out of and earned on Ms. Fecke’s damage award for future medicals, and (ii) ordered that attorney’s fees be taken out of that award prior to the establishment of a reversionary trust.
Section 5106(B)(3)(c), referring to La. R.S. 39:1533.2, [HN13] provides that a claimant’s future medicals are paid from the FMCF “directly to the provider as they are incurred.” The FMCF is established by La. R.S. 39:1533.2, which provides:
[HN14] A. There is hereby established in the state treasury the “Future Medical Care Fund”, hereinafter referred to as the “fund”. The fund shall consist of such monies transferred or appropriated to the fund for the purposes of funding medical care and related benefits that may be incurred subsequent to judgment rendered against the state or a state agency [*17] as provided by R.S. 13:5106 and as more specifically provided in R.S. 13:5106(B)(3)(c). All costs or expenses of administration of the fund shall be paid from the fund.
B. The fund shall be administered by the treasurer on behalf of the office of risk management for the benefit of claimants suing for personal injury who are entitled to medical care and related benefits that may be incurred subsequent to judgment. Except for costs or expenses of administration, this fund shall be used only for payment of losses associated with such claims. At the close of each fiscal year, the treasurer shall transfer to the Future Medical Care Fund from the Self-Insurance Fund an amount equal to the monies expended from the Future Medical Care Fund during that fiscal year. Monies in the fund shall be invested by the state treasurer in the same manner as monies in the state general fund. Interest earned on investment of monies in the fund shall be deposited in and credited to the fund. All unexpended and unencumbered monies in the fund at the end of the fiscal year shall remain in the fund. [Emphasis added.]
Ms. Fecke is entitled to receive costs and interest on her damage award in accordance with La. R.S. 13:5112 of the Act; however, pursuant to La. R.S. 39:1533.2 (which [*18] the Act refers to in Section 13:5106(B)(3)(c)), any interest specifically earned on the award for Ms. Fecke’s future medical care “shall be deposited in and credited to” the FMCF. Thus, to the extent that the October 3, 2014 judgment of the trial court awards interest directly to Ms. Fecke’s on her future medical care award, that portion of the judgment is hereby vacated.
[HN15] With regard to costs and attorney’s fees, this court notes that when a reversionary trust is established by a political subdivision for the payment of a claimant’s future medical care and related benefits, the statute does not limit the rights of a claimant to contract with respect to attorney fees and costs. La. R.S. 13:5106(D)(3). Ms. Fecke argues that this provision of the Act authorizes the trial court to approve her contract with her lawyer for reasonable attorney’s fees which may be deducted from the jury’s damage award for her future medical care, prior to the establishment of the reversionary trust. Ms. Fecke’s contention regarding reversionary trusts is valid, but, as we have previously held, the reversionary trust provisions contained in La, R.S. 13:5106(B)(3)(a) and (D)(3) do not apply to her suit for personal injury against the LSU Board.
Louisiana Revised Statutes 13:5106(D)(1) defines “[m]edical [*19] care and related benefits” as “all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services.” Thus, the only monies to be paid to a provider from the FMCF for Ms. Fecke’s future medical care are those things defined in Section 13:5106(D)(1). Nowhere in the statutes pertaining to the FMCF does it provide for costs or attorney’s fees to be paid therefrom. Furthermore, costs and attorney’s fees are not “medical care and related benefits” set forth in La. R.S. 13:5106(D)(1). See Starr v. State ex rel. Dept. of Transp. & Dev., 46,226 (La. App. 2 Cir. 6/17/11), 70 So. 3d 128, 144, writs denied, 11-1835 (La. 10/21/11), 73 So. 3d 386, 11-1952 (La. 10/21/11), 73 So. 3d 387, 11-1625 (La. 10/21/11), 73 So. 3d 388 and 12-2146 (La. 10/12/12), 98 So. 3d 877.
We also note that a lump sum is not placed in the FMCF on Ms. Fecke’s behalf, out of which costs and attorney’s fees could be paid directly to her attorneys. As set forth in the statutory scheme, Ms. Fecke’s future medical care will be paid from the FMCF directly to her medical provider as her medical care is incurred.6 La. R.S. 13:5106(B)(3)(c). Therefore, the portions of the October 3, 2014 judgment of the trial court, which ordered that costs and attorney’s fees be paid out of Ms. Fecke’s damage award for her future medical care, are hereby vacated.
6 The statutory scheme that creates and governs the organization and management of the FMCF is analogous to the statutory scheme that creates and governs the “Patient’s Compensation Fund,” the fund established for the payment of medical malpractice claims. See La. R.S. 40:1299.43-44.
Assignment [*20] of Error 2:
In its second assignment of error, the LSU Board contends that the trial court erred in excluding from trial a one-page Rock Climbing Wall Participation Agreement (“Agreement”) that was provided to Ms. Fecke by the LSU UREC employees, which she executed prior to climbing the wall on the day of her accident. Prior to trial, Ms. Fecke filed a motion in limine to exclude the Agreement, arguing that the document constituted a waiver of liability to release the LSU Board from any and all liability for causing injury to Ms. Fecke. Such exclusion of liability waivers are null under Louisiana law. See La. C.C. art. 2004. The LSU Board opposed the motion. A hearing was held on Ms. Fecke’s motion in limine the day before commencement of the jury trial. The trial court granted the motion excluding the Agreement.
On the second day of the jury trial, the LSU Board moved to re-consider the motion in limine to exclude the Agreement. The LSU Board argued that portions of the Agreement unrelated to the liability waiver, such as certifications regarding Ms. Fecke’s health, mental, and physical condition should be permitted into evidence. The trial court considered entering into evidence a version of the Agreement [*21] that redacted any mention of a waiver of liability; however, the trial court reasoned that a redacted document may cause confusion for the jury who might speculate over the contents of the redacted portions of the Agreement. Recognizing the need to provide the information contained in the “non-waiver of liability” paragraphs of the Agreement to the jury without causing confusion, the trial court opted to instruct the jury that Ms. Fecke certified to the LSU UREC employees that she was in good health and had no mental or physical conditions that would interfere with her safety or the safety of others. The parties stipulated to the disclosure, and counsel for the LSU Board proffered the Agreement.
On appeal, the LSU Board argues that the Agreement was more than a mere waiver of liability. It argues that the Agreement establishes that Ms. Fecke was sufficiently educated and understood the inherent risk of injury associated with the activity she was about to undertake and that the LSU UREC employees had properly screened Ms. Fecke prior to allowing her to climb the wall. The LSU Board avers that the Agreement constituted Ms. Fecke’s acknowledgment of the risks of climbing the wall, [*22] which is a significant factor in determining her fault, and that this information should have been presented to the jury. Ultimately, the LSU Board contends the Agreement is relevant, highly probative, and its exclusion from evidence materially prejudiced the LSU Board in its ability to defend against Ms. Fecke’s allegations of negligence and the alleged breach of duty owed as the owner of the rock wall climbing facility. Specifically, the LSU Board argues that Ms. Fecke’s acknowledgement regarding the risk of bodily injury, representations regarding her physical and mental capacity and understanding that she alone was to determine whether she was fit to participate in the activity, and her agreement to direct any questions to the climbing wall staff constituted her informed consent and acknowledgement of the risk of climbing the indoor rock wall and are significant factors in determining her fault.
[HN16] All relevant evidence is admissible, except as otherwise provided by law. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. The trial [*23] court has great discretion in its consideration of evidentiary matters such as motions in limine. See Heller v. Nobel Insurance Group, 00-0261 (La. 2/2/00), 753 So. 2d 841. Thus on review, an appellate court must determine whether the trial court abused its great discretion in ruling on a motion in limine. Id. [HN17] Pursuant to La. C.C.P. art. 1636, when a trial court rules against the admissibility of any evidence, the court shall either permit the party offering such evidence to make a complete record thereof or permit the party to make a statement setting forth the nature of the evidence. Article 1636 is mandatory, not discretionary. Williams v. Williams, 06-2491 (La. App. 1 Cir. 9/14/07), 970 So. 2d 633, 640. The purpose of requiring a proffer is to preserve excluded evidence so that the testimony or evidence is available for appellate review of a trial court’s erroneous ruling. When legal error has been found and a complete record has been made through a proffer, the appellate court is able to conduct a de novo review of the record, including the proffered evidence, to render a decision on appeal. Id. We now review the proffered Agreement de novo to determine whether the trial court committed legal error in excluding the Agreement and whether that legal error prejudiced the LSU Board’s defense.
The Agreement is a one-page document signed by Ms. Fecke [*24] that contains eight paragraphs. The first three paragraphs provide as follows:
I understand and agree that there is a risk of serious injury to me while utilizing University Recreation facilities, equipment, and programs and recognize every activity has a certain degree of risk, some more than others. By participating, I knowingly and voluntarily assume any and all risk of injuries, regardless of severity, which from time to time may occur as a result of my participation in athletic and other activities through LSU University Recreation.
I hereby certify I have adequate health insurance to cover any injury or damages that I may suffer while participating, or alternatively, agree to bear all costs associated with any such injury or damages myself.
I further certify that I am in good health and have no mental or physical condition or symptoms that could interfere with my safety or the safety of others while participating in any activity using any equipment or facilitates of LSU University Recreation. I understand and agree that I alone am responsible to determine whether I am physically and mentally fit to participate, perform, or utilize the activities, programs, equipment or facilities [*25] available at Louisiana State University, and that I am not relying on any advice from LSU University Recreation in this regard. To the extent I have any questions or need any information about my physical or mental condition or limitations, I agree to seek professional advice from a qualified physician.
The fourth paragraph of the Agreement provides as follows:
Further, I hereby RELEASE AND HOLD HARMLESS, the State of Louisiana, the Board of Supervisors of Louisiana State University and Agricultural & Mechanical College, and its respective members, officers, employees, student workers, student interns, volunteers, agents, representatives, institutions, and/or departments from any and all liability, claims, damages, costs, expenses, personal injuries, illnesses, death or loss of personal property resulting, in whole or in part, from my participation in, or use of, any facility, equipment, and/or programs of Louisiana State University.
The remaining paragraphs of the Agreement provide as follows:
I will wear proper protective equipment and I agree to abide by all rules of the sport as mandated by LSU University Recreation.
I, the undersigned, am at least eighteen (18) years of age [*26] or have a parent/legal guardian’s signature, will not use an auto-belay system if weighing less than 90 pounds, am physically fit, have read this participation agreement, and understand its terms and conditions. I agree not to climb onto the top of the structure and stay directly under the rope or belay system I am using. Any certifications, including belay certifications, are good only at the LSU’s Baton Rouge campus, Student Recreation Center, and are not transferable to any other person.
Any questions concerning equipment to be used should be directed to Climbing Wall Staff prior to engaging in this activity. The wall is not designed for rappelling from the top of the tower. Doing so may result in serious physical injury to the participant and/or bystanders.
At various times throughout the semester, University Recreation will be taking digital images, photographs, and/or videotapes of patrons [for] educational, promotional and informational purposes for use in department related print materials and on our Web site. When/if your likeness or image is used in a publication, there will be no identifying information provided. [Emphasis added.]
Louisiana Civil Code article 2004 provides:
[HN18] Any clause is null that, in advance, [*27] excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.
Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
Based on our review of the proffered Agreement, paragraph four is null pursuant to La. C.C. art. 2004 because it, in advance, excludes the liability of the LSU Board for causing physical injury to Ms. Fecke. The trial court properly excluded that portion of the Agreement from consideration by the jury. The issue then becomes whether a redacted version of the Agreement, with the remaining paragraphs that do not exclude or limit the liability of the LSU Board, should have come into evidence. As per the agreement of the parties, the trial court gave the jury an instruction, instead of providing a redacted version of the Agreement, and disclosed these minimal facts to the jury:
They stipulate that when Brandy Fecke arrived at the LSU Recreational Center on that evening she certified to them that she was in good health and had no mental or physical condition or symptoms that could interfere with her safety or the safety of others while participating in any [*28] activity using any equipment or facilities of LSU University Recreation; further, that she was at least 18 years of age and was physically fit. So that’s again, as I said, a stipulation is the parties agree those are the facts and they don’t need to have witnesses and so forth testify to that.
Despite the trial court’s instruction to the jury, the LSU Board argues that each paragraph of the Agreement is highly probative as to the fault of the parties and that this probative value substantially outweighs any potential confusion or misleading of the jury that could have resulted from the introduction of the Agreement at trial. During the jury trial, a rock climbing expert for the plaintiff, Dan Pervorse, testified regarding the LSU Board’s duty to Ms. Fecke. Mr. Pervorse stated that the LSU Board failed to provide Ms. Fecke with an adequate warning as to the potential for significant physical injury associated with rock climbing. He further stated that the LSU UREC employees failed to properly screen and instruct Ms. Fecke prior to allowing her to climb. Mr. Pervorse further testified that the LSU Board failed to follow proper safety procedures, including the requirement that a climber [*29] who is bouldering must have a spotter standing behind the climber to provide assistance to the climber and help prevent injuries. The LSU Board argues that had it been allowed to enter the Agreement into evidence and use it during its cross-examination of Mr. Pervorse, his expert testimony would have been significantly diminished and may have resulted in a different allocation of fault to the LSU Board.
[HN19] Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of La. C.C. art 2315. For liability for damages to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element). Rideau, 970 So. 2d at 573.
[HN20] Rock climbing is a recreational [*30] activity that involves substantial risk. Many other recreational activities such as weight lifting and swimming also involve a substantial degree of risk. The risks associated with these and other physically-challenging sports are well recognized. The duty on the gym operator, when these types of sports are conducted, is one of reasonable care under the circumstances — to provide a sound and secure environment for undertaking a clearly risky form of recreation and not that of removing every element of danger inherent in rock climbing. Ravey v. Rockworks, LLC, 12-1305 (La. App. 3 Cir. 4/10/13), 111 So. 3d 1187, 1192. The LSU Board did not have a duty to warn Ms. Fecke as a climber about the potential effect of gravity. A warning that “if you fall you might get hurt,” is obvious and universally known. See Henshaw v. Audubon Park Com’n., 605 So. 2d 640, 643 (La. App. 4 Cir.), writ denied, 607 So. 2d 570 (La. 1992).
A gym and its facilities are not the insurers of the lives or safety of its patrons. A gym cannot be expected to foresee or guard against all dangers. Furthermore, the gym must only take reasonable precautions under the circumstances to avoid injury . Ravey, 111 So. 3d at 1190-91. To prove negligence on the part of the LSU Board, Ms. Fecke must show both a failure to provide reasonable training and supervision under the circumstances, as well as [*31] proof of a causal connection between the lack of reasonable training/supervision and the accident. See Ravey, 111 So. 3d at 1191.
The LSU UREC maintains an “Indoor Climbing Wall Manual,” which governs the rules, use, and maintenance of the indoor rock wall climbing facility. The manual requires the following of all employees of the indoor rock wall climbing facility:
1. Full knowledge of facilities and programs ….
2. Ability to seek answers to questions.
3. Provide consistency and continuity.
4. Carry out assigned routine and non-routine tasks.
5. Follow and enforce staff and program policies and procedures.
6. Maintain a safe and enjoyable recreation environment.
Employees are required to know and enforce all climbing wall and LSU UREC rules.
The manual distinguishes between the climbing wall and the bouldering wall. The climbing wall utilizes a safety rope belay system, where a climber climbs the wall while strapped into a harness and is “belayed” via ropes by an LSU UREC employee. Bouldering, as opposed to rope climbing while wearing a harness, does not involve the use of ropes and requires the climber to traverse the boulder wall from side-to-side instead of climbing up the wall. The manual lists the following [*32] rules for bouldering:
1. Before bouldering the climber must check in at the desk.
2. The number of climbers at any one time may be limited to ensure proper supervision. When people are using climbing ropes, bouldering on walls behind them, may be stopped. Bouldering may be limited based on climber’ s/belayer’s location on the wall.
3. The climber may not boulder above or below any other climbers and must be sure that pants pockets are empty.
4. A bouldering sequence may be marked with tape.
5. Only the climbing staff may switch holds if necessary.
6. Spotting is required as bouldering can become quite demanding and may involve moves increasing the possibility of the climber coming off the wall in an awkward position. A spotter is required, to provide assistance to prevent injuries. Help all spotters to make sure that they are using proper technique and understand the purpose of spotting.
7. Participants are required to properly use crash pads at all times, a spotter may help to position crash pads.
8. Intentional jumping off the wall is not allowed. Please, climb down.
9. Please remove all hand jewelry and long necklaces. Clean athletic shoes, running shoes, or climbing shoes are the [*33] only shoes permitted. Shirts must be worn at all times. Tie hair back when necessary.
10. Be safe, be creative, have fun! [Emphasis added.]
Furthermore, the LSU UREC employees are required to instruct patrons who intend to climb in accordance with the guidelines contained in a “safety clinic” document. The safety clinic requires the LSU UREC employees to give examples of danger areas and instruct climbers where to fall on crash pads, which must be placed underneath bouldering climbers at all times. The safety clinic requires the LSU UREC employees to give an example of the technique of spotting and have the participating climbers demonstrate spotting. Section 6 of the safety clinic provides:
a. Every climber must request a spotter when applicable, i.e. when climbing at one’s limit or climbing into a situation that could yield a long or awkward fall.
b. Proper spotting techniques:
i. The role of the spotter is to first assist the climber in landing properly on their feet in the upright position. Secondly, to protect the climber’s head from hitting something hard (floor, wall, etc).
ii. Hands up, thumbs in (spoons not forks).
iii. Dominant leg back, to use as a brace.
iv. Do not catch the climber; [*34] help them regain proper balancing while landing.
The safety clinic also requires the LSU UREC employees to demonstrate how to properly descend the wall, and in the event of a fall, how to properly land on the ground to reduce injuries.
At trial, Ms. Fecke, her friend Mr. Culotta, and the two LSU UREC employees who were working the night of the accident, Emanuel Andrews and Andrew Whitty, testified as to the events.7 Ms. Fecke testified that after having her course form signed and executing the Agreement, Mr. Whitty gave Ms. Fecke and Mr. Culotta a “few minutes or so” of instruction. She stated that the climbing wall employees made no clear distinction between rope climbing with a harness or bouldering. Mr. Whitty asked if she wanted to wear a harness, but she declined, stating that she and Mr. Culotta wanted to climb “whatever [wall] was easiest,” to which he indicated they could climb the back 13′ 1″ bouldering wall located on the rear wall. Ms. Fecke also testified that Mr. Whitty indicated to her that most people climbed without a harness and that it was “up to her” whether she wanted to climb while wearing a harness. Mr. Culotta suggested that she wear a harness, which Ms. [*35] Fecke took as a joke stating, “[t]he worker at the wall didn’t make me feel like it was necessary and said most people didn’t, so I didn’t think it was something I had to do.”
7 The deposition of Andrew Whitty was read in open court.
Ms. Fecke testified that the employees did not ask her to demonstrate her climbing ability. She further stated that the employees did not explain the technique of climbing with a spotter or that spotting was required in order to climb the boulder wall and that she and Mr. Culotta never spotted each other. In terms of climbing instruction given by the employees, Ms. Fecke testified that “[o]ne of the guys climbed about half the wall quickly and came back down” in about thirty seconds and asked if they had any questions, which she stated she and Mr. Culotta did not have at the time. Ms. Fecke testified that there wasn’t anything she “didn’t get” in terms of instruction about climbing the wall.
Mr. Culotta testified that he and Ms. Fecke arrived at the indoor rock wall climbing facility about an hour before closing. He stated that after he and Ms. Fecke indicated their relative climbing experience, the employees gave a “few minutes” of “some basic instruction,” [*36] and one of the employees demonstrated climbing up the wall in about thirty seconds. Mr. Culotta stated that he did not remember any discussion of the spotting technique during the instruction by the climbing wall employees. Mr. Culotta further testified that he never spotted Ms. Fecke.
Andrew Whitty, one of the climbing wall employees working the night of Ms. Fecke’s accident, testified that he went over the rules and regulations of the climbing facility with Ms. Fecke and Mr. Culotta since they were both new climbers. Mr. Whitty testified that if a patron was new to the climbing wall, the employees would have to give a “brief sort of instruction” during which the employees would go over certain things,” such as the difference between climbing with a rope and bouldering. Mr. Whitty stated that since Ms. Fecke and Mr. Culotta opted to climb the boulder wall since it was more convenient, he went over spotting techniques. Mr. Whitty testified that Mr. Culotta was spotting Ms. Fecke at the time of her fall. Mr. Whitty stated that he could not recall if there was a policy in place at the LSU UREC that required a spotter for a climber on the bouldering wall. He also could not recall whether [*37] there was policy or procedures manual for the climbing wall, and if there was, he stated he did not refer to it often. Mr. Whitty testified that climbers were not tested for proficiency prior to climbing.
Emanuel Andrews, the other employee working the night of Ms. Fecke’s accident, witnessed Ms. Fecke as she fell from the wall. Mr. Andrews was standing approximately twenty feet from where Ms. Fecke and Mr. Culotta were climbing, in the middle of the room, Mr. Andrews testified that while Ms. Fecke climbed the wall, Mr. Culotta was standing in the correct position to spot her, but that as she fell, Mr. Culotta moved away from the wall and out of the spotting position.
We also note that the plaintiff’s expert on rock wall climbing, Mr. Pervorse, testified that the spotting technique, which should be used any time a climber traverses a bouldering wall, involves “having a good stance, one foot forward, one foot back, slightly wider than shoulder width so that you have a good support base and, then your hands up.” He further stated that the purpose of spotting is to “slow [the climbers] fall, to keep them upright, keep them from falling over and hurting their self further by potentially [*38] falling off a mat and hitting their head, to help steadying them when they do land.”
After our de novo review of the testimony and evidence presented at trial, we conclude that the LSU UREC employees failed to properly instruct, demonstrate, and certify that Ms. Fecke and Mr. Culotta understood the proper techniques for climbing the bouldering wall in accordance with their duties as described in the LSU UREC “Indoor Climbing Wall Manual” and the safety clinic document. While the employees may have explained the spotting technique, Ms. Fecke and Mr. Culotta both testified that neither spotted the other as they climbed. Despite the LSU Board’s contention that the Agreement represents Ms. Fecke’s acknowledgment of the risks involved in rock wall climbing, as stated above, those risks are well-known. The only portion of the excluded Agreement that might have prejudiced the LSU Board’s case is the portion in paragraph five wherein Ms. Fecke certified that she “agree[d] to abide by all rules of the sport as mandated by LSU University Recreation.” As discussed above, however, instruction as to those “rules” was not provided to Ms. Fecke by the LSU UREC employees nor was she properly screened or supervised [*39] as she climbed the bouldering wall.
Paragraph four of the Agreement is null because it, in advance, excludes the liability of the LSU Board for causing physical injury to Ms. Fecke, but the remaining paragraphs of the Agreement are not illegal waivers of liability. Thus, we find that the trial court legally erred in excluding a redacted version of the Agreement; however, we hold that the trial court’s error was not prejudicial. The inclusion of the remainder of the Agreement at trial could not have permissibly changed the jury’s verdict based on our de novo review of the record.
Assignment of Error 3:
In the third and final assignment of error, the LSU Board asserts that the trial court improperly instructed the jury on the award of damages for the “loss of future earnings” when the trial court should have instructed the jury on damages for the “loss of future earning capacity.” It is undisputed that at the time of Ms. Fecke’s accident, she was an unemployed senior college student at LSU. Ms. Fecke later graduated from LSU with a degree in kinesiology and obtained a secondary degree as a physical therapy assistant. At the time of trial, she was employed as a physical therapy assistant, [*40] but testified that she had recently taken on a less strenuous, and lower paid, physical therapy assistant job due to her injuries. The LSU Board argues that because Ms. Fecke was unemployed at the time of her accident, she suffered no loss of earning or loss of future earnings, but rather suffered a loss of future earning capacity.
The distinction between a damage award for the loss of future earnings and the loss of future earning capacity is crucial in this case because as a state agency, the LSU Board’s liability for damages for an award of loss of future earning capacity is included in the $500,000.00 cap on damages pursuant to La. R.S. 13:5106(B)(1). In contrast, damages for a loss of future earnings, as was awarded by the jury to Ms. Fecke based on the instruction given by the trial court, are excluded from the $500,000.00 damages cap, La. R.S. 13:5106(B)(1); see also Cooper v. Public Belt R.R., 03-2116 (La. App. 4 Cir. 10/6/04), 886 So. 2d 531, 539, writ denied, 04-2748 (La. 1/28/05), 893 So. 2d 75 (the $500,000.00 cap on damages in actions against governmental units applied to damages for loss of future earning capacity; loss of future earning capacity was not the same as a loss of future earnings, and thus, it did not fall within an exception to the cap). It therefore behooves this court to determine whether or not the jury [*41] instruction given by the trial court on a loss of future earnings was proper.
Louisiana Code of Civil Procedure article 1792(B) [HN21] requires a district judge to instruct the jury on the law applicable to the case submitted to them. The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate. Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61 So. 3d 507, 573. The question here is whether the district judge adequately instructed the jury, as that concept has been defined in the jurisprudence:
[HN22] Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error.
Wooley, 61 So. 3d at 574 (citing Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08), 983 So. 2d 798, 804.).
Generally, the giving of an allegedly erroneous jury instruction will not constitute grounds for reversal unless the instruction is erroneous and the complaining [*42] party has been injured or prejudiced thereby. In fact, Louisiana jurisprudence is well established that a reviewing court must exercise great restraint before it reverses a jury verdict due to an erroneous jury instruction. Wooley, 61 So. 3d at 574. When a reviewing court finds the jury was erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. Wooley, 61 So. 3d at 574.
[HN23] In order to determine whether an erroneous jury instruction was given, reviewing courts must assess the targeted portion of the instruction in the context of the entire jury charge to determine if the charges adequately panicle the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its determination. The ultimate inquiry on appeal is whether the jury instructions misled the jury to such an extent that the jurors were prevented from dispensing justice. The law is clear the review function is not complete once error is found. Prejudice to the complaining party cannot automatically be assumed from the mere fact of an error. Instead, the reviewing court must then compare the degree of the error with the [*43] adequacy of the jury instructions as a whole and the circumstances of the case. Wooley, 61 So. 3d at 574.
Louisiana Revised Statutes 13:5106(D)(2) [HN24] defines “loss of future earnings” as “any form of economic loss which the claimant will sustain after the trial as a result of the injury … which forms the basis of the claim.” In contrast, loss of earning capacity is not the same as lost earnings. Rather, earning capacity refers to a person’s potential. Batiste v New Hampshire Ins. Co., 94-1467 (La. App. 3 Cir. 5/3/95), 657 So. 2d 168, 170, writ denied, 95-1413 (La. 9/22/95), 660 So. 2d 472. The Louisiana Supreme Court has held that damages for a loss of earning capacity should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury. Earning capacity in itself is not necessarily determined by actual loss. Hobgood v. Aucoin, 574 So. 2d 344, 346 (La. 1990); Folse v. Fakouri, 371 So. 2d 1120, 1124 (La. 1979). The claimant need not be working or even in a certain profession to recover an award for loss of future earning capacity. Brandao v. Wal-Mart Stores, Inc., 35,368 (La, App. 2 Cir. 12/19/01), 803 So. 2d 1039, 1043, writ denied, 02-0493 (La. 4/26/02), 814 So. 2d 558. Damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he [*44] never profited from it monetarily. Hobgood, 574 So 2d at 346; Folse, 371 So. 2d at 1124.
[HN25] An award for loss of earning capacity is inherently speculative and cannot be calculated with absolute certainty. The most the courts can do is exercise sound discretion and make an award that in light of all facts and circumstances is fair to both parties while not being unduly oppressive to either. In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiffs current condition disadvantages her in the work force. Henry v. National Union Fire Ins. Co., 542 So. 2d 102, 107, writ denied, 544 So. 2d 405 (La. 1989) and 544 So. 2d 405 (La. 1989). Factors to be considered in fixing awards for loss of earning capacity include: age, life expectancy, work life expectancy, past work record, appropriate discount rate, the annual wage rate increase or productivity increase, prospects for rehabilitation, probable future earning capacity, loss of earning ability, and the inflation factor or decreasing purchasing power of the applicable currency. Henry, 542 So. 2d at 107; Brandao, 803 So. 2d at 1043.
Experts at trial testified that Ms. Fecke would likely have to change career paths — from a physical therapy assistant to a job in a more sedentary position — at some undetermined point [*45] in the future due to her injuries. Stephanie Chalfin, a vocational rehabilitation expert, presented options for potential new careers for Ms. Fecke. Harold Asher, a certified public accountant and an expert in the projection of economic loss testified as to Ms. Fecke’s potential maximum salary as a physical therapy assistant (which was provided by Ms. Chalfin). Mr. Asher then calculated the difference between the hypothetical salary and Ms. Fecke’s potential earning capacity under three scenarios: Ms. Fecke remaining in her field as a physical therapy assistant, obtaining employment as a social worker, or obtaining employment as a rehabilitation counselor. Mr. Asher projected his figures over the anticipated work life of Ms. Fecke and considered a number of factors including her age, how long he expected her to continue working, her motivation to work, growth rate, and wages anticipated each year of her work life.
The jury instructions were lengthy, and this is the only reference therein to a damage award for “loss of future earnings”:
Under the loss of future earnings component of damages, the plaintiff is entitled to recover damages for the deprivation of what she should have earned [*46] but for the injury. Such damages are calculated on the plaintiff’s ability to earn money in her chosen career compared to what she can now earn because of her injury. In determining such an award, you may consider plaintiff’s physical condition and mental status before and after this incident, her work record, her earnings in prior years, the probability or improbability that she would have earned similar amounts in the remainder of her work life, and similar factors. And since, if you make an award, plaintiff would be receiving today sums of money that otherwise she would only receive over a number of years in the future, the law requires that you discount or reduce it to its present value, which is what the experts in this case have already done.
The LSU Board objected to the jury instruction given by the trial court regarding damages for “loss of future earnings.” The trial court, after citing to the Fourth Circuit’s decision in Cooper, 886 So. 2d 531, and the Louisiana Supreme Court’s decision in Folse, 371 So. 2d 1120, stated:
The cases dealing with loss of future earnings dealt with cases where the injured plaintiff was already in a certain career or profession or job description and they could not continue on in that same [*47] job. The evidence in this case was that Ms. Fecke was, despite her injury, able to qualify and go into her chosen profession of physical therapy assistant, but because of her injury will not be able to continue in that type of employment and must therefore seek other employment which may or may not pay less, as indicated by the experts who testified.
So for that reason, I felt that this was more loss of future earnings as opposed to loss of earning capacity. So that’s why I gave that charge as opposed to a future earning capacity charge or a future earning capacity entry on the verdict form.
Unlike the trial court’s reasoning, [HN26] the Louisiana Supreme Court has drawn a distinction between “pecuniary loss” and a “loss of earning capacity.” The supreme court explained the rationale behind the concept of loss of future earning capacity as opposed to loss of future earnings by stating that “the theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.” Folse, 371 So. 2d at 1123. Further, by noting that proof of loss of future earning capacity does not require proof of future monetary loss, the supreme court reinforces [*48] the conclusion that loss of future earning capacity is not an “economic loss” within the intendment of La. R.S. 13:5106(D)(2). See Folse, 371 So. 2d at 1123. Therefore, like the Fourth Circuit in Cooper, we hold that “pecuniary loss,” as used in Folse by the supreme court, is synonymous with “economic loss” as employed in La. R.S. 13:5106(D)(2). See Cooper, 886 So. 2d at 539. Thus, Ms. Fecke suffered a loss of future earning capacity as a result of her injury. It is impossible for her to receive an award for loss of earnings or loss of future earnings because she suffered no economic loss as a result of her accident since she was unemployed at the time.
The jury awarded damages estimated on Ms. Fecke’s potential to earn money in the future, which is her future earning capacity. Based on the law, the expert testimony, and the evidence introduced at trial, we find that the trial court’s instruction regarding loss of future earnings was erroneous. Furthermore, we find that the error was prejudicial to the LSU Board, particularly with regard to the $500,000.00 liability cap, pursuant to La. R.S. 13:5106(B)(1), on a damage award for a loss of future earning capacity. The error resulted in an award to Ms. Fecke that was a larger amount than she was statutorily entitled to receive. The judgment warrants [*49] amendment based on the degree of this error combined with the adequacy of the jury instructions as a whole and the circumstances of this case. Therefore, we amend the portion of the October 3, 2014 judgment of the trial court, which awarded Ms. Fecke damages for loss of future earnings, to award Ms. Fecke those damages as her loss of future earning capacity. We furthermore amend the judgment to cap Ms. Fecke’s damages, exclusive of her medical care and related benefits, at $500,000.00 in accordance with La. R.S. 13:5106(B)(1).
We further note that the modification of Ms. Fecke’s damages award extinguishes the loss of consortium award to Karen Fecke. Louisiana Revised Statutes 13:5106(D)(4) [HN27] provides that “‘[d]erivative claims’ include but are not limited to claims for survival or loss of consortium.” A claim for loss of consortium pursuant to La. C.C. art. 2315(B) is a derivative claim, derived from damages to the primary plaintiff. An award of general damages in the maximum amount of $500,000.00 as allowed by statute in actions against state agencies and/or political subdivisions of the state serves to legally extinguish any derivative awards for loss of consortium, services, and society. See Jenkins v. State ex rel. Dept. of Transp, & Dev., 06-1804 (La. App. 1 Cir. 8/19/08), 993 So. 2d 749, 778, writ denied, 08-2471 (La. 12/19/08), 996 So. 2d 1133. We therefore reverse the trial court’s judgment in part and vacate [*50] the award of damages for loss of consortium to Karen Fecke.
DECREE
We amend the portion of the trial court’s October 3, 2014 final judgment, which orders that Ms. Fecke’s award of $750,000.00 for medical care and related benefits incurred subsequent to judgment be placed in a reversionary “Future Medical Care Trust,” to order that Ms. Fecke’s award of $750,000,00 for medical care and related benefits incurred subsequent to judgment be paid from the Future Medical Care Fund in accordance with La. R.S. 39:1533.2. The portions of the judgment awarding interest directly to Ms. Fecke and ordering that attorney’s fees and costs be paid out of Ms. Fecke’s damage award for her medical care and related benefits incurred subsequent to judgment are hereby reversed. Furthermore, the portion of the October 3, 2014 judgment of the trial court, which awarded Ms. Fecke damages in the following amounts:
Physical Pain and Suffering, Past and Future: $112,500.00
Mental Pain and Suffering, Past and Future: $93,750.00
Loss of Enjoyment of Life: $56,250.00
Permanent Disability and Scarring: $123,750.00
Loss of Future Earnings: $262,500.00
TOTAL (exclusive of medical care and related benefits) $648,750.00
is hereby amended [*51] to cap the total amount of damages, exclusive of medical care and related benefits, to $500,000.00 as mandated by La. R.S. 13:5106(B)(1). We reverse and vacate the trial court’s award for loss of consortium to Karen Fecke. The remainder of the judgment is affirmed,
REVERSED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.
G-YQ06K3L262
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Article misunderstands and misses the point in tracking accidents and incidents
Posted: August 19, 2015 Filed under: Climbing Wall | Tags: Accident Reports, CBJ, Climbing Business Journal, Climbing Wall, Climbing Wall Association, Incident Reports 2 CommentsClimbing Business Journal article looked at the legal issues of climbing gyms tracking accidents. What you need to know is the legal nightmare comes when you track incidents/accidents and do nothing.
The article is titled: Should Gyms Be Reporting Accidents? It attempts to look at the issue of tracking incidents and accidents at a climbing facility. However several important points are ignored or missed in the article. The article looks at legal issues the way a lot of attorneys do. Do it this way or that way. You need to solve problems, you need to understand the problem (put on a harness and climb a wall or belay someone), and you need to quit writing crap down.
Nothing in the article is wrong, nothing in the article solves the problem.
The article looks at the issues of tracking and not tracking however it ignored the real legal costs and any solutions.
Any time you “track” or maintain a list of incidents or accidents that information can be used against you. The article covers this issue and looks at the risks but does not explain the risks. The hardest thing for a plaintiff’s attorney to prove is what the incident that injured his or her client foreseeable? That is proved by an expert witness or if the defendant has a list of similar accidents by the defendant themselves.
Foreseeable means did or should have the defendant known that type of incident or accident could occur. A stack of incident forms that show similar incidents proves it. Not solving the problem indicated by the form shows you are an uncaring money hungry business.
Keeping a list of your prior accidents or incidents can assist the plaintiff in proving you were negligent.
The second issue is one you “track” or keep a record, you can’t get rid of the record. Once made it around forever. Consequently you may have to hand over years of records showing how you have allowed screw ups or even caused them.
That list can also then be fertile ground for the plaintiff’s bar to prove other claims against other gyms or to find new plaintiffs. Unless you can get the court to allow you to scrub the contact information of your guest that was part of the accident, you are giving the plaintiff’s bar the name of another possible client.
The reason for collecting the information is to prevent further similar accidents. Most organizations have stacks of reports and very little to show for it. Consequently you have given the plaintiff’s bar even more legal ammunition to prove you are an uncaring defendant. You have one or dozens of incident reports which you did nothing about and you look even worse.
The plaintiff’s may use the fact against you that you do not collect the information; they can try but it probably less damaging that a stack of incidents. A better result is below.
Once you develop an incident or accident collection system, you develop the idea that unless you have a stack of paper, you don’t have a problem. You develop the attitude that until the paperwork is done nothing to worry about. That can’t be farther from the truth.
You want to keep your guests safe, open your eyes and ears and pay attention. The experience and training you receive should be used to prevent injuries and incidents, not create a great form.
As the owner or manager of a gym, a raft company, a summer camp you really need a form to solve a problem. Get out of the office and to where the problem occurred, open your eyes, talk to you staff and make changes right then!
Do you collect and set yourself up for losing litigation or do you not collect and continue to allow people to get hurt (which is how several people will review this article.) You do neither.
If you have a problem, deal with it immediately. Collect the information you insurance company needs. Collect witness statements. You don’t really need to do anything more. What you need to do is solve the problem.
Don’t tell me that the only way to solve a problem is to fil out a piece of paper.
What solves problems is your and your staff getting together immediately after the incident or accident and determining what happened and what you can do to prevent it Solve the problem don’t write about it.
Why don’t you track incidents and accidents? Because we solve them rather than tack them!
SOLVE THE PROBLEM, DON’T WRITE ABOUT IT.
It is the writer’s job to write about problems, don’t hire one and don’t try and become one.
You don’t need a collection of reports to find problems. You need to open your eyes and ears and find problems and solve them. You wait for a report to be completed and you are sitting on a keg of dynamite.
1. Don’t’ wait to read a report to recognize you may have a problem. Get in front of problems. Listen to guests, staff and react.
2. If you have a problem solve it, correct it, fix it. It requires action, not paper to see issues and solve problems.
3. Don’t create a system create a solution.
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