Poorly written release failing to follow prior state Supreme Court decisions, employee statement, no padding and spinning hold send climbing wall gym back to trial in Connecticut.Posted: February 23, 2015
Release failed the CT Supreme Court test for releases, and the appellate court slammed the climbing wall.
State: Connecticut, Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Stamford
Plaintiff: Isadora Machado Lecuna
Defendant: Carabiners Fairfield, LLC
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: for the plaintiff
The plaintiff sued the climbing gym when she fell from a climbing wall injuring her knee and leg. The plaintiff was bouldering when a hold spun causing her to fall. She fell suffering her injuries. She claimed that there was no one there to spot her, and the landing was not padded.
The defendants filed a motion for summary judgment based on the release the plaintiff had signed when she joined the gym. The trial court granted the dismissal based on the motion, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The court starts off fairly quickly stating the motion for summary judgment failed for four reasons. The first was the court did not see the spinning hold as an inherent risk of the sport of climbing. The plaintiff also argued that since the area has just been opened that day to the public, the hold should have been checked before opening, which the judge also bought.
The court found “…that there is clearly an unresolved question of fact whether the risk of loose or spinning holds in the new bouldering area were, or could have been, minimized.”
The second issue was the employee who was supposed to spot the plaintiff had walked away. This was proved to the court by the statement by the employee apologizing upon his return: “…staff member apologized to the plaintiff and admitted he should not have left.”
The third issue was the bouldering cave there the accident occurred only had carpet over concrete instead of padding. The standard for this gym was padding, because the gym had padding every place else. If you are going to change or alter the safety equipment in your operation, you need to notice the people in the release and place notices where they can be seen.
The final decision was the release being used by the plaintiff did not meet the requirements for a release in Connecticut. The Supreme Court of Connecticut decision Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) set forth six factors for a release to be valid in Connecticut.
This court did not list the factors that the release under question failed; it just stated this decision missed three of the six.
Fourth, the court does not agree that existing Connecticut Supreme Court authority supports the enforceability of the waiver/release agreement signed by the plaintiff. The Hanks decision set out six factors to consider when determining whether the waiver/release here violated public policy. At least three of these factors could, after a full development of the record, be found to weigh against enforcement of the agreement plaintiff signed.
Based on these four factors the court quickly sent the case back for trial.
So Now What?
This decision was short and sweet and really only looked at the evidence of the plaintiff. Either the defendant release was so terrible the court could not deal with it or the actions of the defendant were such the court was not going to allow the defendant to win.
There was not a single argument supporting any position of the defendant in the decision. That is odd.
When writing a release you list the major risks, the minor risks and the risks that occur all the time. A spinning hold is something that occurs with enough frequency at a climbing gym that it should be listed in your release. That in turn might have wiped out the first argument the court objected to.
Anything you say in the heat of the moment is admitable as evidence under the excited utterance exception to the hearsay evidentiary rule. That means it is easy to get these statements into the record. Make sure your staff is trained in how to respond physically and orally to problems.
What do you think? Leave a comment.
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Isadora Machado Lecuna v. Carabiners Fairfield, LLC
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF STAMFORD-NORWALK AT STAMFORD
2014 Conn. Super. LEXIS 2610
October 23, 2014, Decided
October 23, 2014, Filed
NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
CORE TERMS: summary judgment, bouldering, climbing, loose, issue of material facts, minimized, genuine, matter of law, genuine issue, material fact, party opposing, question of fact, inherent risk, unresolved, staff member, falling, matting
JUDGES: [*1] Taggart D. Adams, Judge Trial Referee.
OPINION BY: Taggart D. Adams
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (115.00)
The plaintiff Isadora Lecuna has sued Carabiners, the owner and operator of a recreational climbing facility, alleging that she suffered injuries at the facility including a fractured foot and several tears of ligaments, tendons and muscles in her left knee and leg when she fell from a climbing wall that was allegedly unsafe due to the negligence of the defendant and its agents. At the time of injury, Lecuna was “bouldering” in one of the defendant’s bouldering caves. The defendant describes bouldering “as a type of climbing in which the individual climber is not affixed to any ropes or belaying harnesses.” Def. Memo., 1 Dkt. Entry 115.00. Among the allegations of negligence were that one of the climbing hold attachments on the wall turned or came loose, that an attendant was not present to break her fall, and that the surface she fell to was not cushioned.
Several months before the plaintiff’s fall she had signed an agreement with Carabiners waiving claims of liability and acknowledging the risks of participation at the Carabiners facility included: “Falling [*2] off the wall; loose and or damaged artificial holds . . . falling to the ground.” Carabiners has moved for summary judgment dismissing the complaint largely, as set forth in its memorandum, on the basis of this waiver and release. Lecuna has filed a memorandum of law, an affidavit and excerpts from her deposition transcript in opposition. Carabiners filed a reply memorandum and an affidavit of a purported expert.
II. Scope of Review
Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.” Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1985). ‘The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.” Appleton v. Board of Education, supra, 254 Conn. 209. “A material fact has been defined adequately and simply as [*3] a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The trial court, in the context of a summary judgment motion may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.” Maffucci v. Royal Park, Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998). “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” Appleton v. Board of Education, supra, 254 Conn. 209.
The motion for summary judgment is denied for four reasons. First, there is a question of fact that the loose climbing handle on the bouldering wall that caused the plaintiff’s fall is an inherent risk of the plaintiff’s activity that should be legitimately assumed. The court is aware of the assertions in Carabiner’s papers that it is common in climbing [*4] gyms for holds to work loose and create a “spinner” or shifting hold, a condition that cannot be minimized by the exercise of due care. See Carabiner Memorandum, 2-3, 13 (Dkt. Entry 115.00); Robert Richards affidavit, ¶6 (Dkt. Entry 124.00). These conclusory statements are unsupported by any factual evidence. Moreover, the plaintiff has testified that the bouldering wall she fell from had just been opened to the public that day. Lecuna Memorandum, Exhibit C, 86, Dkt. Entry 123.00. Even if it were established that holds may turn or spin over time, it seems elementary that they should have been tested prior to opening day. In Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) the Connecticut Supreme Court described inherent risks as being beyond the control of the recreation area operator and not able to be minimized by the operator’s exercise of reasonable care. Id., 336 n.12. The court finds that there is clearly an unresolved question of fact whether the risk of loose or spinning holds in the new bouldering area were, or could have been, minimized.
Second, there is evidence in the record that the Carabiner’s staff member assigned to “spotting” the plaintiff while she was on the wall had walked away from that post when the fall occurred and the [*5] staff member apologized to the plaintiff and admitted he should not have left. Pl. Memo., Exhibit C 110-11, 123. Third, there was evidence that the new bouldering area did not have the “thick” “gymnastics kind” of floor matting that existed in the older areas but only offered “carpeted concrete.” Id., 53. This circumstance also raises an unresolved fact question of whether the risk of bouldering could, or should, have been minimized by the additional fall protection afforded by more substantial matting.
Fourth, the court does not agree that existing Connecticut Supreme Court authority supports the enforceability of the waiver/release agreement signed by the plaintiff. The Hanks decision set out six factors to consider when determining whether the waiver/release here violated public policy. See Hanks, supra, 276 Conn. 328. At least three of these factors could, after a full development of the record, be found to weigh against enforcement of the agreement plaintiff signed.
TAGGART D. ADAMS
JUDGE TRIAL REFEREE