Downes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)

Downes et al. v. Oglethorpe University, Inc., 342 Ga.App. 250 (Ga.App. 2017)

342 Ga.App. 250 (Ga.App. 2017)

802 S.E.2d 437

Downes et al. v. Oglethorpe University, Inc

A17A0246

Court of Appeals of Georgia

June 30, 2017

Assumption of the risk. DeKalb State Court. Before Judge Polk, pro hac vice.

Katherine L. McArthur, Caleb F. Walker, for appellants.

Swift, Currie, McGhee & Hiers, David M. Atkinson, for appellee.

OPINION

[802 S.E.2d 438]

Ellington, Presiding Judge.

Erik Downes, then a 20-year-old college student, drowned in the Pacific Ocean on January 4, 2011, while he was in Costa Rica attending a study-abroad program organized by Oglethorpe University, Inc. Elvis Downes and Myrna Lintner (the ” Appellants” ), as Downes’s parents and next of kin, and in their capacity as administrators of Downes’s estate, brought this wrongful death action alleging that Oglethorpe’s negligence and gross negligence were the proximate cause of Downes’s drowning. The trial court granted Oglethorpe’s motion for summary judgment, and the Appellants appeal. We affirm because, as a matter of law, Downes assumed [802 S.E.2d 439] the risk of drowning when he chose to swim in the Pacific Ocean.

Under OCGA § 9-11-56 (c), [s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant. (Citations and punctuation omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga.App. 475, 475-476 (759 S.E.2d 557) (2014). See also Johnson v. Omondi, 294 Ga. 74, 75-76 (751 S.E.2d 288) (2013) (accord).

So viewed, the evidence shows the following. During the 2010-2011 academic year, Oglethorpe offered to their students a 12-day study-abroad trip to Costa Rica. The students were charged a fee for the trip to pay for expenses such as airfare, lodging, and food. The students were also required to pay the ” per credit tuition rate” and were to receive four credits toward their degree for academic work associated with the trip. Oglethorpe retained Horizontes, a Costa Rican tour operator, to coordinate the trip and to provide transportation and an English-speaking guide.

Dr. Jeffrey Collins was then the director of Oglethorpe’s study-abroad program. According to Collins, Oglethorpe tried to follow ” best practices,” which is ” defined as those protocols, procedures that as best and as far as possible ensure[ ] the safety of students.” He acknowledged that students would swim on the trips. Collins was not aware of any potential dangers in Costa Rica and did no investigation to ascertain if there were potential dangers in Costa Rica.

During pre-trip meetings with Downes and the five other students who had registered for the program, Dr. Roark Donnelly and Dr. Cassandra Copeland, the two professors who accompanied the students on the trip, asked the students if everyone was a good swimmer, and the students agreed that they were. The group also discussed swimming in the ocean, including ” that there are going to be currents.” One of the professors told the students that, during a previous study-abroad trip to another location, a student had recognized that he was a weak swimmer and was required to wear a life jacket during all water activities. After hearing this, the students continued to express that they were good swimmers. Before leaving on the trip, the students were required to sign a release agreement which included an exculpatory clause pertaining to Oglethorpe.

The students and professors flew to Costa Rica on December 28, 2010. During the course of the trip, on the afternoon of January 4, 2011, the group arrived at a hotel on the Pacific coast. The six students, two professors, the guide, and the driver got into their bus and drove to a nearby beach, Playa Ventanas, which had been recommended by the hotel. Upon their arrival, there were other people on the beach and in the water. There were no warning signs posted on the beach, nor any lifeguards or safety equipment present.

The students swam in the ocean, staying mostly together, and eventually ventured out into deeper water. After about 20 minutes, Dr. Donnelly yelled for the students to move closer to shore. Shortly thereafter, student Robert Cairns, a former lifeguard, heard a female student screaming. Cairns swam toward the screams, and the student informed him that Downes needed help. Cairns realized that ” some kind of current … had pulled us out.” Cairns swam to within ten feet of Downes and told him to get on his back and try to float. Downes could not get on his back, and Cairns kept telling him he had to try. After some time, Downes was struck by a wave, went under the water, and disappeared from Cairns’s view. Downes’s body was recovered from the ocean three days later.

The Appellants filed this wrongful death action claiming that Downes’s death was the proximate result of Oglethorpe’s negligence and gross negligence. Evidence adduced during discovery included the testimony of Dr. John Fletemeyer, the Appellants’ expert in [802 S.E.2d 440] coastal sciences, that Downes had been caught in a ” rip current” [1] when he became distressed and ultimately drowned. Dr. Fletemeyer opined that some beaches on the western coast of Costa Rica are particularly dangerous ” mainly [because of] the lack of lifeguards,” but also because of physical conditions such as ” high wave energy force” and ” pocket beaches,” and that Playa Ventanas was a pocket beach.[2] He also testified that, in the context of the ocean, ” every beach you go to is extremely dangerous.” Other testimony showed that a continuing problem with drownings on beaches along the Pacific coast of Costa Rica was well publicized in Costa Rica, and that the United States Consular Authority in Costa Rica had ” published statistics about the danger of swimming on Costa Rica’s beaches and identified specifically the west coast beaches as being the most dangerous.” [3]

Following discovery, Oglethorpe moved for summary judgment and argued that (i) Oglethorpe owed no legal duty to Downes; (ii) the Appellants’ negligence claims are barred by Downes’s written waiver of liability and there is a lack of evidence that Oglethorpe was grossly negligent; and (iii) Downes assumed the risk of swimming in the ocean. The trial court granted Oglethorpe’s motion for summary judgment.

1. The Appellants contend that Oglethorpe was not entitled to summary judgment on the ground that Downes, as a matter of law, assumed the risk of drowning when he swam in the ocean.[4]

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. (Citation and punctuation omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 S.E.2d 866) (1996).

A defendant asserting an assumption of the risk defense must establish that the plaintiff (i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks. The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

(Citation and punctuation omitted.) Gilreath v. Smith, 340 Ga.App. 265, 268 (1) (797 S.E.2d 177) (2017). ” As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.” (Citation and punctuation omitted.) Findley v. Griffin, 292 Ga.App. 807, 809 (2) (666 S.E.2d 79) (2008).

[342 Ga.App. 254] It is well established under Georgia law that ” [t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity.” Bourn v. Herring, 225 Ga. 67, 69 (2) (166 S.E.2d 89) (1969). See, e.g., White v.

[802 S.E.2d 441]Ga. Power Co., 265 Ga.App. 664, 666 (1) (595 S.E.2d 353) (2004) (the ” [p]erils of deep water are instinctively known” ). The record does not show that Downes was aware of the presence of rip currents in the waters off the beach; however, ” [i]t is the body of water per se that presents an obvious risk of drowning, not its attendant conditions such as a strong unseen current or a deep unknown hole.” Id. at 667 (1). As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean.

The Appellants contend that Oglethorpe had a duty to exercise ordinary care in the planning and implementing of its study-abroad program to avoid exposing the students to a risk of drowning. Because Oglethorpe owed this duty, they contend, the fact that Downes entered the water voluntarily does not establish as a matter of law that he assumed the risk of drowning. Rather, they contend, Oglethorpe created the dangerous situation by taking Downes to the beach without investigating its dangers, adopting an emergency preparedness plan, ensuring the professors in charge had adequate training and procedures for supervising swimming students, and supplying safety equipment.

Assuming that Oglethorpe, having undertaken a study-abroad program, was under a duty to act with reasonable care, and that there is evidence of record that Oglethorpe failed to do so, assumption of risk is nevertheless a defense to negligence. ” Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.” (Citation omitted.) City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 S.E.2d 704) (1995). In Rice v. Oaks Investors II, 292 Ga.App. 692, 693-694 (1) (666 S.E.2d 63) (2008), the defendant was entitled to a directed verdict where, notwithstanding evidence that the defendants were negligent per se in failing to properly enclose the pool in which the ten-year-old decedent drowned, the child’s own negligence was the sole proximate cause of her death because the risk of swimming in the pool was obvious as a matter of law. Similarly, notwithstanding whether a defendant breached a duty to care for or supervise a decedent, the decedent’s assumption of the risk of injury may bar recovery. See Sayed v. Azizullah, 238 Ga.App. 642, 643-644 (519 S.E.2d 732) (1999) (finding no need to reach the issue [342 Ga.App. 255] of whether a duty was owed by the defendant to care for the 17-year-old decedent because the decedent was charged with appreciating the risk of swimming in the lake as a matter of law, and he voluntarily assumed that risk); Riley v. Brasunas, 210 Ga.App. 865, 868 (2) (438 S.E.2d 113) (1993) (any failure of the defendant to exercise the duty of an ordinary responsible guardian in watching over the seven-year-old child, who was injured using a trampoline, could not be the proximate cause of the child’s injuries where the child knowingly exposed himself to the obvious danger). See also Bourn v. Herring, 225 Ga. at 69-70 (2) (as the decedent, who was over 14 years old, was chargeable with diligence for his own safety against palpable and manifest peril, plaintiff could not recover against defendants for failure to exercise ordinary care in supervising the decedent in and around the lake in which he drowned).

As Appellants show, a decedent’s decision to enter a body of water with awareness of the physical circumstances is not necessarily determinative of whether the decedent assumed the risk of drowning. For example, the breach of a duty to provide statutorily required safety equipment may be ” inextricable from the proximate cause of the damage.” (Citation and punctuation omitted.) Holbrook v. Exec. Conference Center, 219 Ga.App. 104, 107 (2) (464 S.E.2d 398) (1995) (finding that a jury could determine that the absence of statutorily mandated safety equipment was the proximate cause of the decedent’s drowning in the defendant’s pool). See Alexander v. Harnick, 142 Ga.App. 816, 817 (2) (237 S.E.2d 221) (1977) (where the decedent drowned after she jumped from the defendant’s houseboat into the water in an attempt to rescue her dog, and the defendant did not have any throwable life preservers on board, nor readily accessible life vests, as required by law, ” a jury would not be precluded [802 S.E.2d 442] from finding that the absence of the safety equipment was the proximate cause of the decedent’s death merely because she entered the water voluntarily” ). And in premises liability actions, the general rule is ” that owners or operators of nonresidential swimming facilities owe an affirmative duty to exercise ordinary and reasonable care for the safety and protection of invitees swimming in the pool.” Walker v. Daniels, 200 Ga.App. 150, 155 (1) (407 S.E.2d 70) (1991).

Appellants do not show, however, that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach, or that the ocean is analogous to a nonresidential swimming pool. Nor can we conclude that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program, or that it was responsible for the peril encountered by Downes in that it transported him to the beach. Compare Alexander v. Harnick, 142 Ga.App. at 817 (3) (an issue of fact remained as to whether, by taking decedent onto the water without the statutorily required safety equipment, defendant helped to create her peril). Because he was a competent adult, Downes would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes’s death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe’s motion for summary judgment.

2. The Appellants’ other claims of error are moot.

Judgment affirmed.

Andrews and Rickman, JJ., concur.

Notes:

[1]The evidence showed that ” [a] rip current is a strong outflow or stream of water usually beginning at the beach, moving perpendicular to the beach, beginning with the neck and then terminating at some point beyond the surf line[.]”

[2]Fletemeyer’s testimony is not explicit as to why pocket beaches are dangerous to swimmers, although, in the context of the line of questioning, his testimony implies that the physical characteristics of pocket beaches are associated with the formation of rip currents.

[3]The evidence did not show that Playa Ventanas, in particular, had an unusually high number of drownings.

[4]The Appellants also contend that the trial court erred in granting Oglethorpe’s motion for summary judgment (1) because Oglethorpe owed a duty to exercise ordinary care for the safety of its students in the planning and implementation of its study-abroad program, and material issues of fact remain regarding Oglethorpe’s negligence, (2) the exculpatory clause in the release agreement signed by Downes is not enforceable, and (3) gross negligence cannot be waived by an exculpatory clause, and material issues of fact remain as to whether Oglethorpe was grossly negligent.


Arizona University did not owe student a duty of care during a study abroad program when the students organized an “off campus” trip, which resulted in a student’s death

Two different issues determine most outcomes in lawsuits against college & universities, whether the class was for credit or not and whether the incident occurred off campus or on campus.

Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

State: Arizona, Court of Appeals of Arizona, Division One

Plaintiff: Elizabeth Boisson

Defendant: Arizona Board Of Regents, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad

Plaintiff Claims: negligence

Defendant Defenses: no duty owed

Holding: for the defendant

Year: 2015

The deceased signed up for an international study abroad trip in China through the defendant university. While in China, the deceased and several other students organized a trip to Everest base camp. While at Everest base camp the deceased suffered altitude sickness and died.

From China, you can drive to the North Side base camp of Everest, which is at 19,000 feet.

During a student-organized trip, 14 study abroad students — including Morgan — flew to Lhasa, Tibet. The students then drove to the Mount Everest base camp a few days later. While at base camp, which is approximately 18,000 feet above sea level, Morgan developed and then died of altitude sickness.

The trial court dismissed the plaintiff’s claims based on the defendant’s motion for summary judgment. This appeal followed.

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

The court first looked at the requirements to prove negligence in Arizona.

Although described in various ways, a plaintiff alleging a claim for negligence under Arizona common law has the burden to show: (1) duty; (2) breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation and (5) resulting damages.

Arizona uses a five-step test for negligence when most other states use a four-point test. The difference is Arizona expands the definition of proximate causation requiring an actual cause and a proximate cause to prove negligence.

Of the five steps, the first, whether or not there was a duty, is a decision that is made by the court.

The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” . . . .

Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.

Foreseeability is not an issue under Arizona’s law. Whether or not the defendant could foresee the injury to the plaintiff does not come into play when determining if a duty existed.

The court then looked at the duties owed by a college in Arizona to a student. Most duties arise when the relationships between the school and the student are custodial. Arizona does owe students a duty of reasonable care for on campus activities.

However, the duties owed for off-campus  activities by a university to a student are different.

Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.

This analysis has seven steps to determine the duty owed, if any, by an Arizona college.

…Arizona cases have identified the following factors in determining whether an off-campus activity is deemed a school activity: (1) the purpose of the activity, (2) whether the activity was part of the course curriculum, (3) whether the school had supervisory authority and responsibility during the activity, and (4) whether the risk students were exposed to during the activity was independent of school involvement. Courts elsewhere also have looked at whether (5) the activity was voluntary or was a required school activity; (6) whether a school employee was present at or participated in the activity or was expected to do so and (7) whether the activity involved a dangerous project initiated at school but built off campus.

Here the trip was conceived and organized by the students. The students dealt with a Chinese tour company to make the arrangements. Not all the students in the study abroad program undertook the trip. The college offered no academic credit for the trip, and the trip was not in the curriculum of the program.

Defendants had no supervisory authority over, or responsibility for, the trip, and no faculty or staff went on the trip. The risk of altitude sickness was present independent of any involvement by Defendants and the trip did not involve a potentially dangerous project initiated at school but built off campus. Accordingly, applying these factors, the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty under Arizona law.

The plaintiff hired an expert witness who stated that the university absolutely had a duty to the plaintiff. However, the court ignored the expert finding the determination of a duty was solely within the province of the court, and the expert witness’s opinion did not matter.

The trial court’s determination was upheld because the appellate court found that the school owed no duty to the deceased.

So Now What?

One important thing that parents seem to forget when their sons and daughters leave for college is not only are they leaving home, but they are also leaving any real supervision, custody or control. Colleges and universities are not baby sitters or parents and parents probably should be reminded of that fact.

Here, the effects were disastrous; however, the issues were clear. A group of students left campus to do something. Where campus is, did not matter and where the students went did not matter. Whether or not the effects of altitude on a student at 19, 000 did also not matter because the college did not arrange, run, manage or control the students.

What do you think? Leave a comment.

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Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

Elizabeth Boisson, individually and on behalf of all statutory beneficiaries, Plaintiff/Appellant, v. Arizona Board Of Regents, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad, Defendants/Appellees.

No. 1 CA-CV 13-0588

Court of Appeals of Arizona, Division One

236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

March 10, 2015, Filed

SUBSEQUENT HISTORY: Review denied by , , 2015 Ariz. LEXIS 348 (Ariz., Dec. 1, 2015)

PRIOR HISTORY: [***1] Appeal from the Superior Court in Maricopa County. No. CV2010-025607. The Honorable Douglas L. Rayes, Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Knapp & Roberts, P.C., Scottsdale, By Craig A. Knapp, Dana R. Roberts, David L. Abney, Counsel for Plaintiffs/Appellants.

Garrey, Woner, Hoffmaster & Peshek, P.C., Scottsdale, By Shawna M. Woner, Stephanie Kwan, Counsel for Defendants/Appellees Arizona Board of Regents and State of Arizona.

Udall Law Firm, LLP, Tucson, By Peter Akmajian, Janet Linton, Counsel for Defendants/Appellees Nanjing American University, L.L.C., dba Yangtze International Study Abroad.

Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined.

JUDGES: THUMMA, Judge.

OPINION BY: THUMMA

OPINION

[*621] [**933] THUMMA, Judge:

P1 Elizabeth Boisson appeals from a judgment dismissing a wrongful death negligence claim arising out of the death of her son Morgan Boisson. The judgment was based on the ground that Defendants owed no duty to Morgan when, while studying abroad in China, he traveled to Tibet and died of altitude sickness. Finding no error, this court affirms.

FACTS1 AND PROCEDURAL HISTORY

1 The superior court struck supplemental filings relating to the summary judgment [***2] briefing and, on Elizabeth’s motion, struck portions of certain declarations filed by Defendants. Because the judgment is properly affirmed on other grounds, this court does not address these issues or the finding that there were no disputed issues of material fact. See Monroe v. Basis School, Inc., 234 Ariz. 155, 157 n.1 ¶ 3, 318 P.3d 871, 873 n.1 (App. 2014).

P2 Morgan was an undergraduate student at the University of Arizona, which is governed by the Arizona Board of Regents (ABOR). In the fall of 2009, Morgan and 16 other university students spent the semester studying in China at Nanjing American University (NAU). This study-abroad program, sometimes referred to as Yangtze International Study Abroad (YISA), was a collaborative effort between ABOR and NAU.

P3 While in China, the study-abroad program included school-sponsored trips to various cities in China with NAU faculty. At other times, the students organized their own trips. During a student-organized trip, 14 study abroad students — including Morgan — flew to Lhasa, Tibet. The students then drove to the Mount Everest base camp a few days later. While at base camp, which is approximately 18,000 feet above sea level, Morgan developed and then died of altitude sickness.

P4 As relevant here, Elizabeth filed a complaint [***3] against the State of Arizona, ABOR and NAU (collectively Defendants), asserting a wrongful death negligence claim pursuant to Arizona Revised Statutes (A.R.S.) sections 12-611 to -613 (2015).2 After discovery, motion practice and oral argument, the superior court granted Defendants’ motions for summary judgment on the ground that Defendants “owed no affirmative duty of care to Morgan while he was a participant on the subject trip to Tibet.” After entry of judgment, Elizabeth timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, [*622] [**934] and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

2 Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.

DISCUSSION

I. Duty In An Arizona Common Law Negligence Claim.3

3 Because the parties do not claim that any other law applies, this court applies Arizona law. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 501, 917 P.2d 222, 230 (1996).

P5 Although described in various ways, [HN1] a plaintiff alleging a claim for negligence under Arizona common law has the burden to show: (1) duty; (2) breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation and (5) resulting damages. See, e.g., Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228, 230 (2007); Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983); Wisener v. State, 123 Ariz. 148, 149, 598 P.2d 511, 512 (1979). “The first element, whether a duty exists, is a matter of law for the court to decide.” Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230 (citation omitted).

[HN2] The existence of a duty of care is [***4] a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” . . . .

Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.

Gipson, 214 Ariz. at 143–44 ¶¶ 10–11, 150 P.3d at 230–31 (citations omitted).

P6 As noted by the Arizona Supreme Court, pre-2007 case law addressing duty “created ‘some confusion and lack of clarity . . . as to what extent, if any, foreseeability issues bear on the initial legal determination of duty.'” Gipson, 214 Ariz. at 144 ¶ 15, 150 P.3d at 231 (citation omitted). Gipson, however, expressly held “that [HN3] foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in [***5] prior opinions.” 214 Ariz. at 144 ¶ 15, 150 P.3d at 231. Accordingly, foreseeability is not a part of the duty inquiry and those portions of pre-Gipson cases relying on foreseeability when addressing the issue are no longer valid.

P7 Although a duty can arise in various ways, Elizabeth argues: (1) the student-school relationship imposes a duty on Defendants here and (2) public policy imposes such a duty. [HN4] Recognizing the concept of duty is context dependent, Gipson indicates that duty may arise from the relationship between the parties or, alternatively, from public policy considerations. Gipson, 214 Ariz. at 145 ¶ 18, ¶ 23, 150 P.3d at 232; accord Monroe v. Basis School, Inc., 234 Ariz. 155, 157, 159 ¶ 5, ¶ 12, 318 P.3d 871, 873, 875 (App. 2014); see also Randolph v. Ariz. Bd. of Regents, 19 Ariz. App. 121, 123, 505 P.2d 559, 561 (App. 1973) (“No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.”).

A. Duty Based On The Student-School Relationship.

1. Context Of The Duty.

P8 [HN5] “The student-school relationship is one that can impose a duty within the context of the relationship.” Monroe, 234 Ariz. at 157 ¶ 5, 318 P.3d at 873. Arizona case law shows the duty most clearly applies in on-campus activities in the primary and secondary school context, where the relationship is custodial. Monroe, 234 Ariz. at 158 ¶ 9, 318 P.3d at 874. Arizona case law is less clear whether and to what extent the duty applies in off-campus [***6] activities in the primary and secondary school context. See Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 41–42, 796 P.2d 470, 473–74 (1990) (holding school district owed duty to high school student injured in elementary school-created crosswalk); Collette v. Tolleson Unified Sch. Dist., No. 214, 203 Ariz. 359, 54 P.3d 828 (App. 2002) (holding school owed no [*623] [**935] duty to third party who was injured by high school student who left campus in violation of school policy).

P9 In the college and university context, courts in other jurisdictions “are split on whether a college owes an affirmative duty to its students.” Restatement (Third) of Torts: Physical and Emotional Harm § 40 Reporters’ Notes cmt. l (2012) (Restatement) (citing cases). [HN6] Arizona case law, however, indicates a college or university does owe its students a duty of reasonable care for on-campus activities. See Jesik v. Maricopa Cnty. Cmty. Coll. Dist., 125 Ariz. 543, 611 P.2d 547 (1980); see also Delbridge v. Maricopa Cnty. Cmty. Coll. Dist., 182 Ariz. 55, 58–59, 893 P.2d 55, 58–59 (App. 1994) (holding college owed duty to student for injury incurred during college class, even though college did “not have a permanent campus”). It is undisputed that the Tibet trip was not an on-campus activity.

P10 The parties have cited, and the court has found, no Arizona case addressing whether a college or university owes its students a duty of reasonable care for off-campus activities. Section 40(b)(5) of the Restatement, applied by the Arizona Supreme Court in a different context, imposes a “duty of reasonable care with [***7] regard to risks that arise within the scope of the relationship” for “a school with its students.” Restatement § 40(a), (b)(5).4 As framed by the parties, Restatement § 40 provides that a college or university may owe a duty to its student “to risks that occur while the student is at school or otherwise engaged in school activities.” Restatement § 40 cmt. l (emphasis added). No Arizona case has recognized a duty by a university or a college in any context comparable to this case. In addition, Restatement § 40, in its final form, was promulgated in 2012, meaning there is comparatively little guidance in construing “otherwise engaged in school activities.” Restatement § 40 cmt. l. This lack of authority is significant given that Elizabeth has the burden to show the existence of a duty. Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230.

4 In the common carrier context, Nunez v. Professional Transit Mgmt. of Tucson, Inc., applied Restatement § 40 Proposed Final Draft No. 1 (2007). 229 Ariz. 117, 121 ¶¶ 17–18 & n.2, , 271 P.3d 1104, 1108 & n.2 (2012); see also Monroe, 234 Ariz. at 157 ¶ 5, 318 P.3d at 873 (citing Restatement § 40 in primary school context).

P11 [HN7] Recognizing that the existence of duty is a legal, not a factual, matter, Gipson cautioned against “a fact-specific analysis of the relationship between the parties” in determining whether a duty of care exists. Gipson, 214 Ariz. at 145 ¶ 21, 150 P.3d at 232 (considering whether duty existed in a case not involving a categorical relationship). Accordingly, [***8] this court does not look at “the parties’ actions” alleged to determine “if a duty exists.” Id. at 145 ¶ 21, 150 P.3d at 232. Instead, this court looks to the legal factors identified elsewhere to determine whether the Tibet trip was an off-campus school activity for which Defendants owed Morgan a duty of reasonable care. See Barkhurst v. Kingsmen of Route 66, Inc., 234 Ariz. 470, 472–75 ¶¶ 10–18, 323 P.3d 753, 755–58 (App. 2014) (citing cases); Wickham v. Hopkins, 226 Ariz. 468, 471–73 ¶¶ 13–23, 250 P.3d 245, 248–50 (App. 2011) (citing cases); see also Monroe, 234 Ariz. at 157-59 ¶¶ 5-11, 318 P.3d at 873-75.

2. The Trip Was Not An Off-Campus School Activity For Which Defendants Owed Morgan A Duty.

P12 [HN8] In the college and university setting, duty is not governed by custody or in loco parentis concepts. Delbridge, 182 Ariz. at 59, 893 P.2d at 59; see also Randolph v. Ariz. Bd. of Regents, 19 Ariz. App. 121, 123, 505 P.2d 559, 561 (App. 1973) (“There comes a time when an individual must take it upon himself to be responsible for his own education and well-being. No person can be insulated against all the risks of living.”). Similarly, “[t]he scope of the duty imposed by the student-school relationship is not limitless.” Monroe, 234 Ariz. at 157 ¶ 6, 318 P.3d at 873. “[T]he duty is tied to expected activities within the relationship. Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.” Id. at [*624] [**936] 157–58 ¶ 6, 318 P.3d at 873–74 (citing cases and Restatement § 40(b)(5) cmts. f, l).

P13 In what are at best analogous [***9] contexts, Arizona cases have identified the following factors [HN9] in determining whether an off-campus activity is deemed a school activity: (1) the purpose of the activity, Collette, 203 Ariz. at 363 ¶ 16, 54 P.3d at 832; (2) whether the activity was part of the course curriculum, Delbridge, 182 Ariz. at 59, 893 P.2d at 59; (3) whether the school had supervisory authority and responsibility during the activity, id.; Monroe, 234 Ariz. at 161 ¶ 18, 318 P.3d at 877; and (4) whether the risk students were exposed to during the activity was independent of school involvement, Collette, 203 Ariz. at 365 ¶ 23, 54 P.3d at 834. Courts elsewhere also have looked at whether (5) the activity was voluntary or was a required school activity; (6) whether a school employee was present at or participated in the activity or was expected to do so and (7) whether the activity involved a dangerous project initiated at school but built off campus. See 5 James A. Rapp & Jonathan M. Astroth, Education Law § 12.09[6][c] (2014) (citing cases).

P14 Applying these factors, the Tibet trip was conceived by exchange students who wanted to see Mount Everest, not for any NAU-related purpose. After doing some research, a student made arrangements directly with Tibettours, a Tibet-based tour company, which then set the itinerary, arranged trip details and served as a guide during the trip. Fourteen [***10] of the 17 study abroad students then went on the trip and paid Tibettours directly, or through the coordinating students. The trip, details of the trip and the cost of the trip were not part of the study-abroad program or any course curriculum, and no academic credit was awarded for the trip. At the students’ request, NAU student liaison Zhang Fan helped the students communicate with Tibettours and arrange flights, and also provided a letter, required by the Chinese government to secure required permits, stating the students were NAU students. At the students’ request, the professors agreed to allow the students to make up classes they missed if they participated in the trip. Defendants had no supervisory authority over, or responsibility for, the trip, and no faculty or staff went on the trip. The risk of altitude sickness was present independent of any involvement by Defendants and the trip did not involve a potentially dangerous project initiated at school but built off campus. Accordingly, applying these factors, the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty under Arizona law. See Monroe, 234 Ariz. at 159 ¶ 11, 318 P.3d at 875; Collette, 203 Ariz. at 363 ¶ 16, 54 P.3d at 832; Delbridge, 182 Ariz. at 59, 893 P.2d at 59; see also Rapp & Astroth, Education [***11] Law § 12.09[6][c] (citing cases).5

5 This does not mean that a university or college lacks a duty to protect its students for activities occurring off campus on property owned or controlled by the university or college, or for off-campus functions controlled or regulated by the university or college. See, e.g., Barkhurst, 234 Ariz. at 473–74 ¶¶ 12–14, 323 P.3d at 756–57 (discussing Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 866 P.2d 1330 (1994)); accord Monroe, 234 Ariz. at 157–58 ¶ 6 n.2, 318 P.3d at 873–74 n.2 (citing Delbridge, 182 Ariz. at 59, 893 P.2d at 59).

P15 Elizabeth argues that the Tibet trip was a school activity because: (1) Defendants “knew that study-abroad programs pose dangers,” and issued students cell phones to “safeguard . . . [them] during their study-abroad program;” (2) 14 of the 17 exchange students participated in the trip; (3) Defendants let students make up the classes they missed during the trip and (4) the trip would not have been possible without Fan’s assistance.

P16 Defendants’ purported knowledge that participating in the study-abroad program would involve “risks not found in study at” the University of Arizona in Tucson does not help answer whether the trip was a school activity. See Gipson, 214 Ariz. at 144 ¶ 15, 150 P.3d at 231 (rejecting foreseeability as factor in determining duty). Similarly, providing the students cell phones “with which they can contact faculty and staff to answer [***12] questions and solve problems day or night from any part of China” does not make the Tibet trip a school activity. And although many study-abroad students decided to go on the trip, some did not. Allowing [*625] [**937] classes to be made up at the students’ request similarly does not mean the trip was a school activity and the record suggests that students would have gone to Tibet even if it meant they could not make up classes they missed. Finally, it may be that the trip would not have been possible but for Fan’s assistance in response to the students’ request. That, however, does not mean Defendants owed Morgan a duty while on the trip. No authority cited holds the existence of a duty turns on whether a defendant made something possible. Indeed, such a rule would mean an almost unlimited number of individuals and entities could be found to have owed a duty here, including the airline that flew the students to Tibet, the manufacturer of that airplane and the provider of the airplane fuel. [HN10] Although a “but for” inquiry often is relevant in determining whether a plaintiff has shown causation after a duty and its breach are established, it does not address whether a duty exists. See id. at 145 ¶ 21, 150 P.3d at 232.

P17 Nor [***13] does Elizabeth’s reliance on 2007 and 2009 YISA brochures and an affiliation agreement between YISA and the University of Arizona alter the analysis. The substance of the 2009 brochure is not contained in the record. The description attributed to the brochure (“Additional Travel Opportunities,” noting “that students in past programs had visited Tibet”) does not make the trip here a school activity. Presuming the 2007 brochure applied to the Fall 2009 program, that document states: (1) “[i]ncluded in your program fee will be trips to important cities or sites in China;” (2) in addition, “students will have a week or more of time off to travel on their own” and (3) “[o]ur staff will help with all aspects of planning these trips throughout China.” That Defendants may have helped students plan “travel on their own” does not impose on Defendants a duty for the student-planned Tibet trip. Similarly, YISA agreeing to provide “student support services — translation assistance, travel planning, and emergency assistance” — does not impose upon Defendants a duty to protect students from harms in the student-planned Tibet trip.

P18 Elizabeth also argues on appeal that selected excerpts from ABOR’s internal [***14] code of conduct mean the Tibet trip was a school activity. Although Elizabeth cited this document in superior court to show that the exchange program was an ABOR-sponsored activity, she did not argue it established a duty. By not pressing that argument then, Elizabeth cannot do so now. See Fisher v. Edgerton, 236 Ariz. 71, 75 n.2 ¶ 9, 336 P.3d 167, 171 n.2 (App. 2014).6 Even absent waiver, Elizabeth has not shown how ABOR’s code of conduct — addressing “misconduct . . . subject to disciplinary action” and “the promotion and protection” of “an environment that encourages reasoned discourse, intellectual honesty, openness to constructive change and respect for the rights of all” at state universities — makes the Tibet trip a school activity imposing a duty on Defendants.

6 Similarly, Elizabeth alleged negligence per se in superior court based on ABOR’s internal code of conduct, but did not further develop that claim. See Fisher, 236 Ariz. at 75 n.2 ¶ 9, 336 P.3d at 171 n.2; see also Steinberger v. McVey, 234 Ariz. 125, 139 ¶ 56, 318 P.3d 419, 433 (App. 2014) (noting negligence per se claim “must be based on a statute enacted ‘for the protection and safety of the public'”) (citation omitted).

P19 Finally, Elizabeth relies on the opinions of Dr. William W. Hoffa, her “standard of care” expert, who took the position that study-abroad programs should categorically owe a duty to students [***15] throughout all aspects of the program. But the question of whether a duty exists is an issue of law for the court to decide, not experts. Badia v. City of Casa Grande, 195 Ariz. 349, 354 ¶ 17, 988 P.2d 134, 139 (App. 1999) ( [HN11] “The issue of whether a duty exists is a question of law for the court, unaffected by expert opinion.”); see also Monroe, 234 Ariz. at 157 ¶ 4, 318 P.3d at 873 (existence of duty “is a matter of law for the court to decide”) (citing Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230). Moreover, as Elizabeth concedes, Dr. Hoffa’s testimony goes to the standard of care and other issues that are premised on the existence of a duty. See Gipson, 214 Ariz. at 143–44 ¶¶ 10–11, 150 P.3d at 230–31 (citations omitted). Accordingly, Dr. Hoffa’s opinions do not resolve the question of whether a duty exists.

[*626] [**938] P20 For these reasons, the superior court properly concluded that the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty.

B. Duty Based On Public Policy.

P21 In discussing whether public policy should recognize a duty here, Elizabeth

cites no public policy authority, and we are aware of none, supporting a general duty of care against harm away from school premises, absent a school-supervised activity or a particular statute. To hold otherwise would imply that the student-school relationship extends to situations where the school lacks custody [***16] over the student and the student is not participating in a school-sponsored activity. We decline to define the scope of duty in such broad terms.

Monroe, 234 Ariz. at 161 ¶ 20, 318 P.3d at 877. For these reasons, Elizabeth has not shown that public policy considerations result in Defendants owing Morgan a duty for the Tibet trip.

II. Other Issues On Appeal.

P22 Having found Defendants did not owe Morgan a duty for the Tibet trip, this court affirms the judgment and need not address the other issues raised on appeal. ABOR’s request for taxable costs on appeal is granted contingent upon its compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

P23 The judgment in favor of Defendants is affirmed.


Louisiana State University loses climbing wall case because or climbing wall manual and state law.

Louisiana 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.

Fecke v. The Board of Supervisors of Louisiana State University, 2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357

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.

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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

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

[Pg 2] 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 [Pg 3] 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:

[Pg 4] 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

[Pg 5] 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 [Pg 6] 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 [Pg 7] 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 [Pg 8] 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 [Pg 9] 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.]

3 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. [Pg 10] 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.

[Pg 11] 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) [Pg 12]. 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 [Pg 13] 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 [Pg 14] 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 [Pg 15] 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 [Pg 16] 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.

[Pg 17] 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. [Pg 18] 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.) [Pg 19], 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:

[Pg 20] 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.

[Pg 21] 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 [Pg 22] 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 [Pg 23] 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.

[Pg 24] 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 [Pg 25] 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 [Pg 26] 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 [Pg 27], 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 [Pg 28] 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.

[Pg 29] 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 [Pg 30] 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 [Pg 31] 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.


PowerPoint I gave at the NHEIC Risk Management Committee Meeting

Great group of people working to keep their campuses moving, vibrant and under control

I have a presentation in early April to a group of college administrators. The power point for that presentation is: Things You Don’t Know and Should.

The presentation is difficult to understand as a standalone web based PowerPoint. You always need my personality to interpret what I do. However there are some interesting issues I covered.

·         The different way college students view themselves versus how their parents view them, and the consequence to a college of that issue.

·         The value of a well-written release to college programs

·         Assumption of the risk is education at a college

·         How to deal with an outdoor recreation disaster

·         Why People Sue

·         Who should handle your claims

·         The legal issues that risk management plans create

What do you think? Leave a comment.

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

Copyright 2013 Recreation Law (720) Edit Law

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

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