NY determines that falling off a wall is a risk that is inherent in the sport. Plaintiff argued it wasn’t???Posted: February 12, 2018
Plaintiff also argued the standards of the trade association created a legal liability on the part of the defendant. Trade association standards come back to haunt the business the standards were created to protect.
State: New York: Supreme Court of New York, New York County
Plaintiff: Min-Sun Ho
Defendant: Steep Rock Bouldering, LLC
Plaintiff Claims: negligence
Defendant Defenses: Assumption of the Risk (although a release was signed it was not raised as a defense)
Holding: For the Defendant
This case borders on the absurd because of the plaintiff’s claims and the statements of the plaintiff’s expert.
At the same time, this case borders on the scary because the standards of the trade association were used effectively to put a big dent in the defendant’s defenses.
It came down to simple logic. If you are ten to twelve feet off the ground is there an inherent risk that you could fall? Because it was to the court, the Plaintiff assumed the risk of her injuries, and her case was dismissed.
The plaintiff took a climbing class as a student in high school. Over a decade later, she signed up online to go bouldering at the defendant’s bouldering facility. She also checked out the defendant’s Facebook page.
She and her roommate went to the gym. At the gym, she realized that this was different from the climbing she had done in high school. She signed an electronic release, which she did not read. She also was questioned by an employee of the gym about her previous climbing experience. When talking with the employee she did not ask any questions.
She started bouldering and understood the grade system of what she was climbing. She had climbed once or twice to the top of the route she chose and down climbed or jumped after coming half-way down.
On her third or fourth climb, she was a few feet from the top of the wall when she fell. She landed on her right arm, tearing ligaments and breaking a bone which required surgery.
Analysis: making sense of the law based on these facts.
The decision first goes through the deposition testimony of the manager or the bouldering gym. The testimony was fairly straight forward, even talking about rules the gym had were not covered.
The next discussion was over the plaintiff’s expert witness. I’m just going to quote the decision.
After his review, Dr. Nussbaum opined that Plaintiff should have been provided with the following: a harness, a rope, or some similar safety device; a spotter; an orientation; and an introductory lesson. Dr. Nussbaum opined further that the only time a harness or similar device is not required is “when the wall is low, less than 8 feet[,] and where it is angled so that a [climber] cannot fall directly down[,] but simply slides down the angled wall. Here, the wall was high and not angled, and therefore the safety devices including the harness and rope are required.”
The plaintiff probably would not have fallen off a V1 on a slanted wall, if you can call a slanted wall a V1 or V2. More importantly with holds on the wall you would have not slid off, you have bounced off the holds as you slid down.
Dr. Nussbaum opined further that the reading Steep Rock Bouldering waiver form, which Plaintiff did not, would not mean that the reader understands or assumes the risk. Dr. Nussbaum opined further that the padding “likely” gave Plaintiff a “false sense of security” and “no appreciation of the risk here.”
Judges are responsible of interpreting the law in litigation. An opinion by an expert on a contract would not be allowed into evidence. More importantly, nothing in the background of the expert indicates any training or experience in what someone like the plaintiff would understand in reading a contract.
However, then it circled back around to industry practices. The plaintiff’s expert:
…cited to the Climbing Wall Association’s (“CWA”) Industry Practices § 4.06 and opined further that Defendant’s gym should have provided “a thorough orientation to bouldering and how to mitigate the risk of predictable falls” per the CWA guidelines.
Citing to CWA’s Industry Practices § 4.01, Dr. Nussbaum opined further:
“[Plaintiff’s] ‘level of qualification or access to the climbing should [have been] checked upon entering and prior to climbing in the facility.’ In the absence of demonstrated proficiency in climbing, [Plaintiff] should have been ‘supervised by staff or a qualified climbing partner, or her access to the facility must [have] be[en] limited accordingly.’ In the case at hand, there was a cursory transition from the street into the gym and the commencement of climbing. [Plaintiff] was simply asked if she had previous climbing-experience and essentially told ‘here’s the wall, have at it.'”
Citing to CWA’s Industry Practices § 4.02, Dr. Nussbaum opined further:
“[T]he climbing gym staff should [have] utilize[d] a screening process before allowing potential clients to access the climbing wall/facility. The purpose of the screening is to determine the ‘new client’s ability to climb in the facility’ and ‘to assess the client’s prior climbing experience, knowledge and skills (if any).’ [Plaintiff] was not asked about how long she had been climbing, whether or not she had experience at a climbing gym or facility, how often or how recently she had climbed, and/or the type of climbing she had done. She was not asked if she had knowledge of or experience bouldering. Again, she was simply asked if she had prior climbing experience, reflecting a wholly inadequate screening process.”
The Defendant’s expert did a great job of countering the claims made by the plaintiff’s expert. However, it is difficult to argue the language of a trade association is meant to mean something else when quoted by the plaintiff’s expert.
The court looked at the issue focusing on one main point. Did the plaintiff know and appreciate the risks of falling? This seems absurd to me. One of the basic fears that I think everyone has is a fear of falling. How it manifests itself may be different in different people, but everyone is afraid of falling.
The plaintiff in her testimony and the testimony of the expert witness made this the central point of the litigation and one the court had a difficult time reaching a conclusion on.
The court first looked at the assumption of risk doctrine in New York.
“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity.”
I cannot believe that when you are ten feet from the ground, there is not some form of awareness of the risk of falling.
The court then looked at the necessary elements of risk to determine what was inherent in a sport and what that means to the plaintiff and defendant.
“Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” However, “[s]ome of the restraints of civilization must accompany every athlete onto the playing field. Thus, the rule is qualified to the extent that participants do not consent to acts which are reckless or intentional.” “[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.” In assessing whether a plaintiff had the appropriate awareness to assume the subject risk, such “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.”
Boiled down, when you assume the risks of a sport or recreational activity:
In assuming a risk, Plaintiff has “given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.”
The court was then able to find that the plaintiff had assumed the risk.
The Court finds that injury from falling is a commonly appreciable risk of climbing–with or without harnesses, ropes, or other safety gear–and that Plaintiff assumed this risk when she knowingly and voluntarily climbed Defendant’s gym’s climbing wall for the third or fourth time when she fell. To hold that Defendant could be liable for Plaintiff’s injuries because it allowed her to climb its wall without a rope and harness would effectively make the sport of bouldering illegal in this state.
However, what an agonizing intense effort for the courts to come to what seems to be a fairly simple conclusion. When you are standing 10′ in the air, do you feel apprehension about falling off. If you do and you stay there you assume the risk of falling I think.
So Now What?
I’ve written before about how easy it is to write about New York decisions. They are short and quick. One or two pages. This decision is fifteen pages long, an unbelievable long decision in New York. An unbelievable long decision for what I believe to be an extremely simple and basic concept. Did the plaintiff understand she could get hurt if she fell from the wall?
Yet the plaintiff made the court work hard to decide she assumed the risk. The plaintiff made an argument that the court found compelling enough to take 15 pages to determine if are 10′ in the air are you apprehensive.
There are several take a ways from this decision.
The decision indicates the plaintiff signed a release electronically. However, it was never raised as a defense. Probably because of New York General Obligations Law § 5-326. This law states releases are not valid at places of amusement. There has been one decision in New York were a release for a climbing wall injury was upheld; however, the court specifically distinguished that issues saying the climbing wall was for educational purposes since it was at a university and not a recreational situation. Read Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003).
The industry standards came back to play a role in the decision. There are dozens of arguments in favor of an industry creating standards. There is one argument on why they should not be made. Plaintiff’s use them to attack the people the standards were meant to protect.
No matter how many reasons why it might be a good thing; it fails in all of those reasons when it is used in court to beat a defendant over the head and prove they were wrong. A piece of paper, written by members of the industry, with the industry logo and name on it is proof to any juror that this is the way it must be done. If not, why would the piece of paper be written? Why would the industry and everyone else take the time and energy to create the rule, print it and hand out if that was the way it was supposed to be done.
So, then it is left up to the defense expert to find a way to prove that the piece of paper is wrong. That is impossible in 99% of the cases. As a member of the association, as a person who helped make the piece of paper, you are now saying what you did was wrong? It is not going to fly.
Here the defendant’s expert could not. So, he did not, his opinion walked all around the issue but did not bring up the standards that the plaintiff through at the court. Granted, the plaintiff had taken the standards and twisted them and their meaning in an attempt to apply them to this case, in a way that they were not meant to be. However, it is difficult to say to a judge or juror the plaintiff’s expert twisted the standards, and they don’t mean that. Of course, that is what the judge and jury would expert.
Thankfully, the defendant’s expert was great and just refused to take on the plaintiff’s expert and the far-out statements he made.
Here the plaintiff used the industry standards in an attempt to prove the defendant had breached its duty of care to the plaintiff. Here the name had been changed by the association over the years to lessen their impact and damage in a courtroom from standards to practices. However, they were still used to bludgeon the defendant who had probably paid to help create them.
Standards do not create value in a courtroom for defendants. You cannot say we did everything right, see read this and throw the standards at the judge and jury. However, we all need to learn from our mistakes, and we need ideas on how to get better. Besides there is always more than one way to do everything.
Create ideas, best practices, anything that allows different ways of doing things so the plaintiff cannot nail you down to one thing you did wrong. The simple example is there is no one way to belay. Yet standards for various industries have superficially set forth various ways over the years you “must” belay. Body belays went out decades ago with the introduction of belay devices. Yet when your lead is on a precarious move, and the piece below him might not be able to take the full weight of a fall, a body belay works because it helps absorb the energy and spread the belay over time putting less pressure on the pro.
There is no magic solution to everything and spending hours and dollars trying to tell the world, there is, will only come back to haunt you.
Copyright 2017 Recreation Law (720) 334 8529
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[**1] Min-Sun Ho, Plaintiff, – v – Steep Rock Bouldering, LLC, Defendant. INDEX NO. 150074/2016
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)
January 2, 2018, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: climbing, bouldering, rock, gym’s, rope, harness, spotter, opined, climb, climber, falling, affirmation, feet, mat, climbed, sport, orientation, roommate, height, summary judgment, top, spotting, assumption of risk, instructor, padding, false sense of security, indoor, reply, quotation, skill
JUDGES: [*1] PRESENT: Hon. Robert D. KALISH, Justice.
OPINION BY: Robert D. KALISH
Motion by Defendant Steep Rock Bouldering, LLC pursuant to CPLR 3212 for an order granting summary judgment against Plaintiff Min-Sun Ho is granted.
Plaintiff brought this action seeking damages for injuries she sustained on October 12, 2015, while at Defendant’s bouldering gym, Steep Rock Bouldering. Plaintiff alleges, in sum and substance, that, due to the negligence of Defendant, she fell from Defendant’s gym’s indoor climbing wall and landed on her right arm, tearing ligaments and breaking a bone in the arm and elbow area, which required surgery. Defendant argues, in sum and substance, that Plaintiff assumed the risk of injury from a fall at its gym and that its gym provided an appropriate level of safety and protection for boulderers through warnings, notices, an orientation, equipment, and the nature of the climbing wall itself. As such, Defendant argues it had no further duty to Plaintiff. Plaintiff argues, in sum and substance, that she did not assume the risk of an injury from falling off of the climbing wall.
[**2] II. Procedural History
Plaintiff commenced the instant action against Defendant on January 5, 2016, [*2] by e-filing a summons and a complaint alleging a negligence cause of action. (Goldstein affirmation, exhibit A.) Defendant answered on March 28, 2016, denying all the allegations in the complaint and asserting 21 affirmative defenses, including Plaintiff’s assumption of the risk. (Goldstein affirmation, exhibit B.)
The examination before trial (“EBT”) of Plaintiff was held on February 14, 2017. (Goldstein affirmation, exhibit E [Ho EBT].) The EBT of Defendant, taken of witness Vivian Kalea (“Kalea”), was held on February 23, 2017. (Goldstein affirmation, exhibit F [Kalea EBT].) Plaintiff provided Defendant with her liability expert’s disclosure pursuant to CPLR 3101 (d) on or about March 27, 2017. (Goldstein affirmation, exhibit G.) Plaintiff filed the note of issue in this action on May 4, 2017. (Goldstein affirmation, exhibit J.)
On or about May 25, 2017, Defendant moved to strike Plaintiff’s note of issue. On or about May 30, 2017, Plaintiff cross-moved to preclude certain expert and medical testimony from Defendant at trial due to Defendant’s alleged failure to provide timely disclosures. Defendant provided Plaintiff with its liability expert’s disclosure pursuant to CPLR 3101 (d) on or about June 16, 2017. [*3] (Goldstein affirmation, exhibit H.) On June 29, 2017, Defendant noticed the instant motion On July 14, 2017, this Court ordered Defendant’s motion to strike and Plaintiff’s cross motion to preclude withdrawn per the parties’ stipulation, dated July 6, 2017.
Defendant now moves for an order pursuant to CPLR 3212 granting it summary judgment and dismissing this action with prejudice.
III. Plaintiff’s EBT
Plaintiff Min-Sun Ho stated that she and her roommate intended to climb the indoor wall at Steep Rock Bouldering on October 12, 2015. (Ho EBT at 12, lines 17-23.) Plaintiff further stated that her roommate had joined Defendant’s gym several weeks prior to October 12, 2015. (Id. at 13, lines 12-13; at 14, lines 2-3, 13-25.) Plaintiff further stated that, prior to October 12, 2015, in high school, she took a rock climbing class once a week for a semester. (Id. at 15, lines 16-25.) Now in her thirties, Plaintiff stated that she was able to recall the class, the basic commands for climbing, and the techniques for climbing. (Id. at 20, lines 5-2.1; at 22, lines 17-21.)
[**3] Plaintiff stated that, on October 12, 2015, she looked up Defendant’s gym’s Facebook page and observed people climbing at Steep Rock Bouldering without ropes or harnesses. [*4] (Id. at 27, lines 7-11; at 29, lines 15-20.) Plaintiff further stated that she then signed up online for a one-month membership at Steep Rock Bouldering. (Id. at 28, lines 15-20.) Plaintiff further stated that she had also heard from her roommate, before October 12, 2015, that there were no harnesses or ropes at Steep Rock Bouldering. (Id. at 30, lines 6-13.) Plaintiff further stated that, on October 12, 2015, Plaintiff’s roommate again explained that Defendant’s gym does not have harnesses or ropes. (Id. at 29, line 25; at 30, lines 2-5.) Plaintiff stated she was not aware, prior to October 12, 2015, that the term “bouldering” refers to a form of rock climbing without harnesses or ropes. (Id. at 85, lines 2-7.)
Plaintiff stated that, upon arriving at Steep Rock Bouldering on October 12, 2015, she observed a reception desk and a climbing wall to her left where she saw more than three people climbing. (Id. at 31, lines 17-23; at 32, line 25; at 33, lines 2-3.) Plaintiff further stated that she believed the climbing wall was about 15 feet tall. (Id. at 32, lines 4-20.) Plaintiff further stated that the receptionist asked if Plaintiff had rock climbed before and that she answered that she had, a long time ago. (Id. at 47, lines 2-8.) Plaintiff stated she signed [*5] an electronic waiver form at the reception desk. Plaintiff, at the time of the EBT, stated she did not recall having read any of the waiver except for the signature line. (Id. at 43, lines 11-19.)
Plaintiff stated that, after signing the waiver, she waited while the receptionist called a man over to Plaintiff and her roommate. Plaintiff stated she herself believed the man who came over was another Steep Rock Bouldering employee. (Id. at 45, lines 10-25; at 46, lines 2-4.) Plaintiff stated’ that the man told Plaintiff “something along the lines of that’s the wall as you can see, it’s self-explanatory.'” (Id. at 46, lines 11-12.) Plaintiff further stated that the man also told her “[t]hose are the bathrooms.” (Id. at 49, lines 2-3.) Plaintiff further stated that the man asked her if she had rock climbed before and that she answered “yeah, a while ago.” (Id. at 49, lines 7-10.) Plaintiff stated that the man did not say he was an instructor or take Plaintiff anywhere and that neither the man nor the receptionist said anything about an instructor. Plaintiff further stated that she did not have an orientation or an instructor at Defendant’s gym. (Id. at 47, lines 15-23; at 48, lines 21-25.) Plaintiff further stated she that did not see any instructional [*6] videos. (Id. at 80, lines 19-22.) Plaintiff further stated that she had felt comfortable not having an instructor and climbing the walls without any harnesses or ropes. (Id. at 81, lines 17-22.)
[**4] Plaintiff stated that, after speaking with the man, she changed into climbing shoes which she stated she recalled borrowing from Steep Rock Bouldering. (Id. at 48, lines 5-20.) Plaintiff further stated that she then put her and her roommate’s belongings away in a cubby and started getting ready to climb. (Id. at 49, lines 13-18.) Plaintiff stated that she had observed mats in front of the climbing wall on the floor. (Id. at 49, lines 19-24.) Plaintiff stated that she had further observed “quite a few” people who she thought were other climbers and their friends climbing the wall or watching and giving tips on holds. (Id. at 50, lines 5-21; at 55, lines 6-10.)
Plaintiff stated she was told before she started climbing that the holds on the climbing wall are tagged according to their difficulty and that the levels of difficulty marked “V0 or V1” are the “easiest.” (Id. at 54, lines 2-20.) Plaintiff further stated that, after waiting a few minutes, she herself climbed to the top of the climbing wall on level V1 on her first attempt. (Id. at 55, lines 16-19, 24-25; at [*7] 56, lines 2-9.) Plaintiff further stated that she did not think it took very long to make the climb. (Id. at 56, lines 10-11.) Plaintiff stated she and her roommate took turns climbing the wall. (Id. at 63, lines 12-16.) Plaintiff further stated that, while she herself was climbing, her roommate was on the mat watching her climb. (Id. at 63, lines 17- 22.) Plaintiff stated that she herself climbed again once or twice without incident. (Id. at 56, lines 16-19; at 57, lines 18-21.) Plaintiff stated that, on her third or fourth climb, she herself had made it about a couple of feet from the top of the wall before she fell. (Id. at 57, lines 3-10, 15-25; at 58, lines 2-9.) Plaintiff stated that her roommate was watching her when she fell. (Id. at 63, line 22.)
Plaintiff stated that she had not fallen from a climbing wall prior to October 12, 2015. (Id. at 59, lines 2-7.) Plaintiff further stated she did not think she could fall, nor did she think about falling, when she bought her membership, when she first saw the wall when she entered the building, or when she first started climbing. (Id. at 59, lines 13-25; at 60, lines 2-8, 17-19.) Plaintiff further stated that did not see anyone else fall at Steep Rock Bouldering prior to her own fall, but did see people [*8] jumping down from “[s]omewhere above the middle” and “closer to the top” of the climbing wall instead of climbing down. (Id. at 60, lines 9-16.)
Plaintiff stated she herself climbed down the wall after her first climb, but then became more “confident” and climbed down halfway and then jumped in subsequent successful climbs. (Id. at 60, lines 22-25; at 61, lines 2-6.) Plaintiff further stated that, immediately before she fell, she was climbing up the wall and reaching to the side. (Id. at 61, lines 7-13.) Plaintiff further stated that she then grabbed onto a knob, looked down, and saw a man looking up at her. (Id. at 62, [**5] lines 2-7.) Plaintiff was asked at the EBT “[w]hen you looked down, did you think about falling or if you could fall?” In reply, Plaintiff stated “I was a little scared. When I looked down, I was a lot higher than I thought I was.” (Id. at 62, lines 12-15.) Plaintiff stated that she had wanted to come back down at this time. (Id. at 62, lines 24-25; at 63, lines 2-4.) Plaintiff further stated that she fell after she saw the man looking up at her. (Id. at 62, line 8.) Plaintiff was asked at the EBT “[d]o you know why you fell?” and answered, “I don’t know exactly.” (Id. at 62, lines 5-6.)
IV. Defendant’s EBT
Vivian Kalea stated that, at the [*9] time of her EBT, she was the general manager of Steep Rock Bouldering. (Kalea EBT at 6, lines 4-7.) Kalea further stated that, on October 12, 2015, she was a closing manager and youth team coach at Steep Rock Bouldering. (Id. at 6, lines 8-12.)
Kalea stated that she was at Steep Rock Bouldering when Plaintiff was injured and filled out the related injury report form. (Id. at 13, lines 19-21.) Kalea stated that the injury report indicated that Plaintiff was a member of Steep Rock Bouldering and had paid a fee to use the gym prior to her injury. (Id. at 16, lines 12-13.) Kalea stated that the injury report further indicated that Plaintiff fell from a yellow V1 level of difficulty, about three moves from the top, and landed on her right side. (Id. at 19, lines 6-9; at 31, lines 15-21; at 34, line 25.)
Kalea stated that V1 is a beginner’s level of difficulty. (Id. at 34, lines 13-15.) Kalea further stated that, the higher the number is after the “V,” the greater the level of difficulty. Kalea stated that the “V” designation is not a description of a specific height or location. (Id. at 33, lines 9-14.) Kalea further stated that V2 is also a beginner’s level. (Id. at 33, lines 23-25, at 34, lines 2-4.) Kalea further stated that the wall Plaintiff was on had a “slight incline” but was “mostly [*10] vertical” and “[c]lose to 90 degrees. (Id. at 41, lines 11-25; at 42, lines 2-4.)
Kalea stated that Steep Rock Bouldering offered climbing shoe rentals and chalk for climbers on October 12, 2015. (Id. at 9, lines 20-21; at 10, line 14.) Kalea further stated that the climbing shoes provide support for climbing activities by improving friction and power to the big toe and that the chalk gives the climbers a better grip on whatever it is they are holding onto. (Id. at 21, lines 18-25; at 22, lines 2-25; at 23, lines 2-A.) Kalea further stated that the padded area in front of the climbing wall was over a foot thick on October 12, 2015, and was there to help absorb the shock from a fall. (Id. at 23, lines 5-18.) Kalea further stated that a [**6] spotter, “somebody who guides a climber to fall down,” was not required at Steep Rock Bouldering on October 12, 2015. (Id. at 49, lines 19-25.)
Kalea stated that the climbing walls at Steep Rock Bouldering are 14 feet high and that the holds do not all go to the top. (Id. at 24, lines 17-19.) Kalea further stated that the holds are of different textures, sizes, and appearances and that their locations can be changed to create varying paths up the wall and establish the difficulty of a given level. (Id. at 24, lines [*11] 16-25; at 25, lines 2-17; at 29, lines 2-5.) Kalea further stated that climbers at Steep Rock Bouldering do not climb with ropes or harnesses. (Id. at 40, line 25; at 41, line 2.)
Kalea stated that Steep Rock Bouldering employees ask whether it is a new member’s first time bouldering “to clarify that they understand the risk of bouldering.” (Id. at 21, lines 13-17.) Kalea further stated that every climber is supposed to receive an oral safety orientation from Steep Rock Bouldering staff prior to climbing that consists of the following:
“It consists of understanding the person’s climbing experience, their experience bouldering. That they understand that bouldering is a dangerous sport. How every fall in a bouldering environment is a ground fall. It goes over how the climbs are kind of situated, so everything is by color and numbers. It goes over that we do encourage down climbing in the facility. So that means when you reach the top of the problem, which is not necessarily the top of the wall, but the finishing hold, you climb down about halfway before you jump, if you do want to jump. It goes over how to best fall.”
(Id. at 46, lines 2-24; at 47, lines 3-16.) Kalea stated that the giving such an orientation is [*12] standard in the climbing industry and was required at Steep Rock Bouldering on October 12, 2015. (Id. at 48, lines 3-10.) Kalea further stated that “[i]t is made clear to everyone who walks in the door that they are going to receive a safety orientation” and that staffs failure to do so would be breaking Steep Rock Bouldering’s rules. (Id. at 48, lines 17-21.) Kalea was asked at the EBT to assume that Plaintiff was told “essentially . . . there is the wall, it’s self explanatory [sic] and that’s all the person did” and was then asked “[i]f that is all that was said, is that a proper safety instruction orientation?” (Id. at 49, lines 3-17.) Kalea replied, “[i]t is not.”
[**7] V. Plaintiff’s Liability Expert
Plaintiff retained Dr. Gary G. Nussbaum as its liability expert. Dr. Nussbaum has a Masters of Education and an Education Doctorate in Recreation and Leisure Studies from Temple University. Dr. Nussbaum has 45 years of experience in the adventure education, recreation, and climbing field with a variety of teaching credentials related specifically to climbing. In forming his opinion, Dr. Nussbaum reviewed photographs of the climbing wall used by Plaintiff on the date of her injury, the injury report, the waiver form, [*13] and the EBT transcripts.
After his review, Dr. Nussbaum opined that Plaintiff should have been provided with the following: a harness, a rope, or some similar safety device; a spotter; an orientation; and an introductory lesson. Dr. Nussbaum opined further that the only time a harness or similar device is not required is “when the wall is low, less than 8 feet[,] and where it is angled so that a [climber] cannot fall directly down[,] but simply slides down the angled wall. Here, the wall was high and not angled, and therefore the safety devices including the harness and rope are required.” (Broome affirmation, exhibit 1 [aff of Nussbaum], at 3.)
Dr. Nussbaum opined that a person of Plaintiff’s skill level was a novice and needed to be taught “how to climb, how to come down, and even how to fall safely. None of this was done or provided.” (Id. at 4.) Dr. Nussbaum opined further that “[a]s a new climber, [Plaintiff] did not appreciate the risk” involved with bouldering. (Id.) Dr. Nussbaum opined further that the reading Steep Rock Bouldering waiver form, which Plaintiff did not, would not mean that the reader understands or assumes the risk. (Id.) Dr. Nussbaum opined further that the padding “likely” [*14] gave Plaintiff a “false sense of security” and “no appreciation of the risk here.” (Id.)
Dr. Nussbaum opined that, because Steep Rock Bouldering does not offer rope climbing, its climbing wall requires that the climber “climb down, climb partway down and jump the remainder, fall down in a controlled manner, or simply fall down if he or she loses control.” (Id. at 5.) Dr. Nussbaum cited to the Climbing Wall Association’s (“CWA”) Industry Practices § 4.06 and opined further that Defendant’s gym should have provided “a thorough orientation to bouldering and how to mitigate the risk of predictable falls” per the CWA guidelines. (Id.)
[**8] Citing to CWA’s Industry Practices § 4.01, Dr. Nussbaum opined further:
“[Plaintiff’s] ‘level of qualification or access to the climbing should [have been] checked upon entering and prior to climbing in the facility.’ In the absence of demonstrated proficiency in climbing, [Plaintiff] should have been ‘supervised by staff or a qualified climbing partner, or her access to the facility must [have] be[en] limited accordingly.’ In the case at hand, there was a cursory transition from the street into the gym and the commencement of climbing. [Plaintiff] was simply asked if she had previous [*15] climbing-experience and essentially told ‘here’s the wall, have at it.'”
(Id. at 6.)
Citing to CWA’s Industry Practices § 4.02, Dr. Nussbaum opined further:
“[T]he climbing gym staff should [have] utilize[d] a screening process before allowing potential clients to access the climbing wall/facility. The purpose of the screening is to determine the ‘new client’s ability to climb in the facility’ and ‘to assess the client’s prior climbing experience, knowledge and skills (if any).’ [Plaintiff] was not asked about how long she had been climbing, whether or not she had experience at a climbing gym or facility, how often or how recently she had climbed, and/or the type of climbing she had done. She was not asked if she had knowledge of or experience bouldering. Again, she was simply asked if she had prior climbing experience, reflecting a wholly inadequate screening process.”
Dr. Nussbaum opined that spotting is an advanced skill requiring training for the spotter to spot effectively and safely. As such, Dr. Nussbaum stated, Plaintiff’s roommate “was not a spotter and had no skill and no training to be one.” (Id. at 3.) Dr. Nussbaum opined further that Steep Rock Bouldering was required to enforce its spotter [*16] requirement by providing an adequately skilled spotter or ensuring that an intended spotter has the requisite skill set. (Id. at 5.) Dr. Nussbaum opined further that, if Steep Rock Bouldering chooses not to require spotting, it is then required to “emphasize, encourage and instruct in the safest ways to descend, including falling [**9] techniques. . . . [It] did not enforce its spotting requirement nor [sic] provide proper instruction in falling techniques.” (Id. at 7.)
VI. Defendant’s Liability Expert
Defendant retained Dr. Robert W. Richards as its liability expert. Dr. Richards is a founding member of the CWA and is currently affiliated with CWA as an expert in risk management. Dr. Richards has been involved in the climbing wall industry since 1992. Dr. Richards stated that, as there are no set regulations for climbing facilities, the CWA intends to assist the industry in defining, understanding, and implementing a set of responsible management, operational, training, and climbing practices. (Goldstein affirmation, exhibit I [aff of Richards], ¶ 2.) Dr. Richards further stated that the CWA’s Industry Practices is a sourcebook for the operation of manufactured climbing walls. (Id. ¶ 3.)
In forming his opinion, [*17] Dr. Richards performed a site inspection of Steep Rock Bouldering’s climbing wall on June 22, 2017. (Id. ¶ 20.) Dr. Richards observed at the site inspection that Defendant’s gym had “Climb Smart” posters, indicating the risks of bouldering, displayed in multiple locations. Dr. Richards stated that these signs were also present on October 12, 2015. (Id.) Dr. Richards observed further that the climbing wall is approximately thirteen feet, six inches tall when measured from the top of the padded area around the wall. (Id. ¶ 30:) Dr. Richards stated that this was also the height of the wall on October 12, 2015. (Id.)
Dr. Richards describes the sport of bouldering as follows:
“Bouldering is the form of climbing that is performed without the use of safety ropes and typically on a climbing surface that is low enough in height that a fall from the wall will not be fatal. Bouldering walls in climbing gyms may range from ten to twenty feet in height. The [CWA] states that average bouldering wall heights in the climbing wall industry are between twelve and fifteen feet. Climbers who boulder are referred to as boulderers . . . .”
(Id. ¶¶ 13-14.) Dr. Richards stated “[a] specific climb is referred [*18] to as a . . . ‘problem’ and is usually marked with colored tape or colored holds which are attached to the artificial climbing wall.” (Id. ¶ 7 [punctuation omitted].)
[**10] Dr. Richards opined that bouldering entails an inherent risk of injury from falls. (Id. ¶ 4.) Dr. Richards opined further that it is not possible to eliminate this risk “without altering the very essence of the sport.” (Id.) Dr. Richards opined further that the most common injuries in climbing gyms are to the extremities which can result from falls of any height. (Id. ¶ 15.)
Dr. Richards opined further that the risk inherent to bouldering was communicated to Plaintiff by means of a written liability release and an orientation. (Id. ¶ 17.) Dr. Richards stated that Plaintiff signed a liability release form and completed an orientation. (Id. ¶¶ 17, 31.) Dr. Richards stated further that the liability release form included the following language: “I have examined the climbing wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the climbing wall, including but not limited to: [injuries] resulting from falling off or coming down from the climbing wall . . . .” (Id. ¶ [*19] 17.)
Dr. Richards opined further that, having visited approximately “200 gyms” since 1992, he has never been to a gym that requires climbers to have spotters and strictly enforces that requirement. (Id. ¶¶ 1, 22-23.) Dr. Richards stated that spotting was developed for outdoor bouldering to guide the fall of boulderers in an environment where there are typically little or no padded surfaces to protect the head. (Id. ¶ 24.) Dr. Richards stated that the CWA does not require spotters when bouldering on artificial climbing walls and that it is not a common practice in the industry to require such spotters. (Id. ¶ 25.) Dr. Richards further stated that the padded landing surfaces in gyms reduce many of those dangers that a spotter would help to mitigate outdoors. (Id.) Dr. Richards opined that, as such, use of a spotter in an indoor climbing gym is of “limited benefit” and “may cause injury to the boulderer and spotter if the climber were to fall directly on the spotter.” (Id.)
Dr. Richards opined further that the purpose of Defendant gym’s padded landing surface around its climbing wall is “to mitigate potential injuries to the head and neck.” (Id. ¶ 26.) Dr. Richards opined further that, [*20] while the padding may “provide some cushioning for falls,” per Annex E to the CWA’s Industry Practices, “[p]ads are not designed to mitigate or limit extremity injuries, although they may do so.” (Id.) Dr. Richards stated that, while there was no industry standard regarding the type, amount, or use of such padding in October 2015, a typical surface in October 2015 would have “consisted of four to six inches of foam padding or other impact attenuation [**11] material with a top layer of gymnastic carpet or vinyl that covers the underlying padding.” (Id. ¶¶ 27-28.) Dr. Richards further stated that Defendant’s gym used foam pads of a twelve-inch depth that ran continuously along the climbing wall and extended twelve feet out from the wall on October 12, 2015. (Id. ¶ 29.)
I. Defendant’s Affirmation in Support
Defendant alleges in its papers that it has a place of business that includes a bouldering climbing gym in New York City on Lexington Avenue. (Affirmation of Goldstein ¶ 14.) Defendant further alleges that its gym has a continuous climbing wall that is approximately 30 to 40 feet wide and 14 feet tall and has climbing holds which are textured objects bolted into the wall which climbers [*21] can grab onto with their hands and stand upon with their feet. (Id. ¶¶ 14, 16.)
Defendant argues, in the main, that Plaintiff assumed the inherent risk associated with climbing an indoor wall and with bouldering when she chose to climb Defendant’s gym’s bouldering wall. (Memorandum of law of Goldstein, at 1.) Defendant argues Plaintiff was able to make an informed estimate of the risks involved in bouldering and that she willingly undertook them. (Id. at 3-4.) Defendant further argues that Plaintiff was aware of the potential for injury from a fall because she is an intelligent adult familiar with the laws of gravity and had prior wall climbing experience in an indoor setting (albeit with ropes). (Id. at 4.) Defendant further argues that Plaintiff was aware of the risks associated with climbing because, before she was injured, Plaintiff watched other climbers ascend and descend its climbing wall and climbed up and down the wall herself without incident several times, even feeling comfortable enough to jump from halfway down the wall as opposed to climbing all the way down. (Id. at 8-9.) Defendant further argues that Plaintiff voluntarily and knowingly engaged in the bouldering activity and that her fall was a common, albeit [*22] unfortunate, occurrence. (Id. at 10.)
Defendant argues that falling is inherent to the sport of climbing, that falling cannot be eliminated without destroying the sport, and that injuries resulting from falling from a climbing wall are foreseeable consequences inherent to bouldering. (Id.) Defendant further argues that the risk of falling from Defendant’s gym’s climbing wall was open and obvious to Plaintiff. (Id. at 5.) Defendant further argues that Plaintiff did not request further instruction beyond what Steep Rock [**12] Bouldering provided on October 12, 2015, and that Plaintiff was comfortable climbing without ropes or a harness. (Id. at 5-6.) Defendant argues that Plaintiff’s allegation that she did not receive proper instruction is pure conjecture and will only invite the jury to speculate about what further instruction Plaintiff would have received had she sought it out. (Id. at 6.)
Defendant argues that there was no unique risk or dangerous condition in Defendant’s gym on October 12, 2015, over and above the usual dangers inherent to bouldering. Defendant further argues that Defendant has the right to own and operate a gym that offers bouldering, only, and not rope climbing. (Id. at 7.) Defendant further argues that the height [*23] of its gym’s climbing wall and the depth of its surrounding padding were well within what was typical of other climbing facilities in October 2015. (Id.) Defendant further argues that it had no duty to provide a spotter or supervise Plaintiff’s climbing. (Id. at 7-8.)
Defendant argues that Plaintiff’s expert has not cited to any standards or rules that would have required that Defendant provide Plaintiff with a spotter or supervise Plaintiff’s climbing or that would justify an opinion that negligence on the part of Defendant proximately caused Plaintiff’s accident. (Id. at 8, 10.) Defendant further argues that Plaintiff’s expert fails to acknowledge that Plaintiff engaged in a rope climbing class every week for a semester. (Id. at 10.) Defendant further argues that Plaintiff’s expert has never visited Steep Rock Bouldering and that therefore any assertions that Plaintiff’s expert will make are conclusory and insufficient to demonstrate Defendant’s negligence.
II. Plaintiff’s Affirmation in Opposition
Plaintiff argues in her papers that the affidavit of her liability expert, Dr. Gary G. Nussbaum, establishes Defendant’s negligence and Plaintiff’s lack of appreciation and understanding of the risk. (Affirmation of Broome, at 1.) Plaintiff further [*24] argues that she had a false sense of security because of the thick mats around the climbing wall and that she therefore did not appreciate the risk. (Id. at 1-2.) Plaintiff further argues that her climbing experience at Steep Rock Bouldering was very different from her prior experience with climbing, which was limited to one semester of indoor climbing class 12-13 years prior to the incident, in high school, involving a rope, harness, spotter, and instructor. (Id. at 2; aff of Ho, at 2.) At the time of the incident, Plaintiff was age 30 and had never done any rock climbing again after the high school class. (Aff of Ho, at 2.)
[**13] Plaintiff argues that she believed the padding beneath the climbing wall would prevent “any injury whatsoever.” (Id. at 4.) Plaintiff further argues that this was her belief even though she signed a release of liability because she did not read it. (Id. at 3.) Plaintiff further argues that she was given no orientation or instructor on October 12, 2015, but was only told where the wall was and that it was “self-explanatory.” (Id.) Plaintiff further argues that the release she signed is void and unenforceable because she paid a fee to use Defendant’s gym. (Affirmation of Broome, at 2.)
Plaintiff argues that Defendant was negligent in failing to [*25] provide Plaintiff with a rope, a harness, instruction, an orientation, and a spotter. (Id. at 3.) Plaintiff further argues that the assertions of Defendant’s liability expert, Dr. Robert W. Richards, regarding posters on the wall at Steep Rock Bouldering are irrelevant and erroneous because he visited the facility 1.75 years after Plaintiff’s accident and claims the posters were in place on the date of the accident. (Id.)
III. Defendant’s Reply Affirmation in Support
Defendant argues in its reply papers that Plaintiff did not have a false sense of security because Plaintiff: (1) was aware that Defendant’s gym only supplied climbing shoes and climbing chalk; (2) observed that none of the other climbers were asking for a rope or a harness; (3) testified that she felt comfortable climbing without harness, a rope, or an instructor; (4) knew prior to her injury that the climbing paths have different difficulty levels and that she was at a beginner level; and (5) had already, prior to her injury, climbed the wall two to three times without incident, reached the top of the wall, and jumped from the wall to the floor from halfway up the wall. (Reply affirmation of Goldstein, at 1-2; reply memorandum of law of Goldstein [*26] ¶ 3.) Defendant further argues that Plaintiff’s claim of having a false sense of security is disingenuous because she plainly observed the conditions of the climbing wall and the padded mats, was able to approximate the height of the wall, and, at age 30, was fully aware of, paid to engage in, and voluntarily undertook a form of climbing that involves neither ropes nor harnesses. (Reply memorandum of law of Goldstein ¶ 4.)
Defendant argues that Plaintiff has overlooked Dr. Richards’ explanation that a spotter has limited benefit and may cause injury to the climber and spotter if the climber were to fall directly onto the spotter. (Id. ¶ 5.) Defendant further argues that climbers utilizing a rope and harness may also sustain injury from falls when climbing. (Id. ¶ 6.)
[**14] Defendant argues that Plaintiff cannot prove by a preponderance of the evidence that Defendant proximately caused Plaintiff’s injury because Plaintiff herself testified that she does not know why she fell, and mere speculation regarding causation is inadequate to sustain a cause of action. (Id. ¶ 5.)
Defendant further argues that Plaintiff was aware of and assumed the risk that, in climbing a wall without ropes and harnesses–or [*27] a spotter–she could sustain an immediate physical injury from a fall. (Id. ¶¶ 4-5, 9.)
IV. Oral Argument
On November 13, 2017, counsel for the parties in the instant action appeared before this Court for oral argument on Defendant’s instant motion for summary judgment. Stephanie L. Goldstein, Esq. argued on behalf of Defendant and Alvin H. Broome, Esq. argued on behalf of Plaintiff.
Defendant argued that this is an assumption of the risk case in which Plaintiff fell during participation in a sport–bouldering–which, by definition, is rock climbing without ropes or harnesses. (Tr at 2, lines 23-25; at 3, lines 8-18.) Defendant further argued that Plaintiff had no reasonable expectation there would be ropes or harnesses at Steep Rock bouldering. Plaintiff stated that her roommate told her that climbing at Steep Rock Bouldering would involve no ropes or harnesses. (Id. at 4, lines 5-13.) Plaintiff further stated that she observed photographs of people using the gym on Facebook at parties–prior to going to Defendant’s gym–without ropes or harnesses. (Id. at 4, lines 15-19.) Plaintiff further stated that she saw people climbing at the gym in person before she climbed and that none of them were using ropes [*28] or harnesses. (Id. at 4, lines 20-24.)
Defendant argued that Plaintiff was additionally noticed as to the dangers inherent to bouldering by the electronic waiver, which she signed. (Id. at 5, lines 3-18.) Defendant clarified that it is not moving to dismiss the instant action on waiver grounds and acknowledged that Plaintiff’s signing the waiver did not absolve Defendant of liability. (Id. at 5, lines 13-14.) Defendant argued that Plaintiff was further noticed by an individual, an employee of Defendant, who explained to Plaintiff prior to her climbing about the wall and the climbing paths. (Id. at 5, lines 19-23.) Defendant argued that Plaintiff was further noticed by her own experience of climbing up and down the wall two to three times without any [**15] incident and with jumping off of the wall prior to her fall. (Id. at 5, line 26; at 6, line 2; at 7, lines 11-16.) Defendant was comfortable climbing without equipment or an instructor. (Id. at 7, lines 6-10.)
Defendant argued that it cannot enforce a statement on its waiver that a climber is not to climb without a spotter. Defendant argued that this is for four reasons: because spotting does not prevent injury, because spotting was developed when bouldering was outside, because spotting [*29] can only act to attempt to protect the head and neck outdoors–and indoors the padding provides this function–and because spotting may endanger the spotter. Defendant stated that spotting is not enforced at its gym. Defendant further stated that its liability expert has not seen this requirement enforced at any of the 200 gyms he has traveled to which do have this requirement on paper. (Id. at 6, lines 7-26; at 7, lines 2-5.)
Defendant argued that falling when climbing a wall is a common, foreseeable occurrence at a climbing facility. (Id. at 8, lines 3-5.) Defendant further argued that Plaintiff is an intelligent woman, 30 years old at the time of her injury, with a degree in biology. As such, Defendant argued that Plaintiff knew the laws of gravity: what goes up, must come down. (Id. at 8, lines 6-9.) Defendant further argued that a person is said to have assumed the risk if he or she participates in an activity such as climbing where falling is an anticipated and known possibility. (Id. at 9, lines 9-13.) Defendant further argued that Plaintiff testified that she does not know what caused her to fall. (Id. at 7, lines 21-23.)
Plaintiff argued in opposition that Defendant’s own rules required a spotter for climbers and that [*30] Defendant broke its rule and therefore proximately caused Plaintiff’s injury. (Id. at 9, lines 24-26; at 10, lines 2-6; at 11, lines 11-16, 24-25; at 12, lines 15-21.) Plaintiff further argued that “in every kind of climbing you are required to have a rope, a harness, something to prevent an injury and a fall.” (Id. at 12, lines 11-13.) Plaintiff further argued that a spotter “will say lift your arms, turn to the side” as a person begins to fall. (Id. at 11, lines 24-25.)
Plaintiff further argued that proximate cause has been established and the real question for the Court is whether Plaintiff assumed the risk. (Id. at 12, lines 22-25.) Plaintiff argued that “unusually thick” mats around the climbing wall gave Plaintiff a false sense of security. (Id. at 13, line 8.) Plaintiff further argued that Plaintiff saw people fall onto the soft matted floor without getting hurt, and therefore assumes this is a safe sport, but it is not. Plaintiff argued that assumption of risk is a subjective standard and that Plaintiff was a novice who had only [**16] climbed with ropes and harnesses prior to the day of her injury and thus did not assume the risk of “falling on a soft mat and breaking an elbow.” (Id. at 10, lines 7-10; at 14, lines 13-16.)
Plaintiff [*31] argued that there is a distinction between assuming the risk that one could fall from a climbing wall and assuming the risk that one could be injured from the fall. Plaintiff further argued that Plaintiff assumed the former, not the latter, in part because of a false sense of security due to the mats and not having a spotter. (Id. at 14, lines 23-26; at 15, lines 2-23; at 16, lines 2-9.) Plaintiff further argued that the mats that are placed by the climbing wall are “extremely substantial,” “for the sole purpose of preventing injury,” and “designed supposedly to prevent injury from a fall, and . . . didn’t.” (Id. at 16, lines 16-20.)
Plaintiff argued that, as a matter of law, because the mats were there, Plaintiff cannot be held to the belief that she was going to get hurt when she went up the climbing wall. (Id. at 16, lines 22-24.) Plaintiff clarified that she is not claiming the mat was inadequate. (Id. at 16, line 21.) Plaintiff argued that there was no assumption of injury from climbing or falling normally from the Defendant’s gym’s climbing wall. (Id. at 17, lines 13-14.) Plaintiff argued further that Plaintiff “did not assume the risk of being injured by a fall, period.” (Id. at 18, line 20.)
Defendant argued in reply that Plaintiff [*32] was bouldering, which by definition involves no ropes or harnesses, and did so voluntarily. (Id. at 23, lines 11-12.) Defendant further argued that Plaintiff’s liability expert cites to no regulations, standards, or rules that would quantify his reasoning why there should have been ropes, harnesses, or a spotter, or why the mat gave Plaintiff a false sense of security. (Id. at 23, lines 17-22.) Defendant further argued that the law says that when someone assumes the risk, they are assuming the risk inherent to the activity, and that assumption of injury specifically is not required. (Id. at 23, line 26; at 24, lines 2-5.) Defendant further argued that, in the instant case, the risk inherent to bouldering is falling, and that falling from a height may result in injury. As such, Defendant argued, Plaintiff assumed the risk. (Id. at 24, lines 4-18.)
Defendant further argued that there was no negligent hidden condition and nothing wrong with the wall or the mats. (Id. at 24, lines 20-21, 24-25.) Defendant argued that a climbing wall of 13 to 14 feet and mats of 12-inch thickness, as here, are typical. (Id. at 24, lines 25-26; at 25, lines 2-3.) Defendant further argued that stating that Plaintiff fell because she did not have a rope or harness [*33] is speculation insufficient to defeat a motion for summary judgment. (Id. at 25, lines 4-6.)
I. The Summary Judgment Standard
“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor, and he must do so by tender of evidentiary proof in admissible form.” (Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595  [internal quotation marks and citation omitted].) “Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution.” (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81, 790 N.E.2d 772, 760 N.Y.S.2d 397 .) “On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party.” (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503, 965 N.E.2d 240, 942 N.Y.S.2d 13  [internal quotation marks and citation omitted].) In the presence of a genuine issue of material fact, a motion for summary judgment must be denied. (See Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231, 385 N.E.2d 1068, 413 N.Y.S.2d 141 ; Grossman v Amalgamated Hous. Corp., 298 A.D.2d 224, 226, 750 N.Y.S.2d 1 [1st Dept 2002].)
II. The Assumption of Risk Doctrine
“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent [*34] in the activity.” (Cruz v Longwood Cent. School Dist., 110 AD3d 757, 758, 973 N.Y.S.2d 260 [2d Dept 2013].) “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” (Id.) However, “[s]ome of the restraints of civilization must accompany every athlete onto the playing field. Thus, the rule is qualified to the extent that participants do not consent to acts which are reckless or intentional.” (Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 .) “[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.” (Morgan v State, 90 NY2d 471, 485, 685 N.E.2d 202, 662 N.Y.S.2d 421  [internal quotation marks omitted].) In assessing whether a plaintiff had the appropriate awareness to assume the subject risk, such “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.” (Id. at 485-486.)
[**18] In 1975, the state legislature codified New York’s comparative fault law when it passed what is now CPLR 1411, “Damages recoverable when contributory negligence [*35] or assumption of risk is established.” CPLR 1411 provides:
“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”
Notwithstanding the text of CPLR 1411, the Court of Appeals has held that, in certain circumstances, a plaintiff’s assumption of a known risk can operate as a complete bar to recovery. The Court of Appeals refers to this affirmative defense as “primary assumption of risk” and states that “[u]nder this theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.” (Custodi v Town of Amherst, 20 NY3d 83, 87, 980 N.E.2d 933, 957 N.Y.S.2d 268  [internal quotation marks omitted].) In assuming a risk, Plaintiff has “given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do [*36] or leave undone.” (Turcotte v Fell, 68 NY2d 432, 438, 502 N.E.2d 964, 510 N.Y.S.2d 49 , quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed].)
Nonetheless, the doctrine of primary assumption of risk has often been at odds with this state’s legislative adoption of comparative fault, and as such has largely been limited in application to “cases involving certain types of athletic or recreational activities.” (Custodi, 20 NY3d at 87.) In Trupia ex rel. Trupia v Lake George Cent. School Dist., Chief Judge Lippman discussed the uneasy coexistence of the two doctrines:
“The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in facilitating free and vigorous participation in athletic activities. We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these [**19] beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context [*37] and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation that the Legislature has deemed applicable to any action to recover damages for personal injury, injury to property, or wrongful death.”
(14 NY3d 392, 395-96, 927 N.E.2d 547, 901 N.Y.S.2d 127  [internal quotation marks and emendation omitted].) Writing two years later, Chief Judge Lippman further explained the scope of primary assumption of risk in Bukowski v Clarkson University:
“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities s aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Relatedly, risks which are commonly encountered or ‘inherent’ in a sport, such as being struck by a ball or bat in baseball, are risks [*38] for which various participants are legally deemed to have accepted personal responsibility. The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions.”
(19 NY3d 353, 356, 971 N.E.2d 849, 948 N.Y.S.2d 568  [internal quotation marks and emendation omitted].)
III. Defendant Has Shown Prima Facie that Plaintiff Assumed the Risk of Injury from Falling from Defendant’s Gym’s Climbing Wall, and Plaintiff Has Failed to Raise a Genuine Issue of Material Fact in Response
Based upon the Court’s reading of the submitted papers and the parties’ oral argument before it, the Court finds that Defendant has shown prima facie that Plaintiff assumed the risks associated with falling from Defendant’s gym’s climbing wall, including injury. Defendant has shown prima facie that Plaintiff voluntarily participated in the sporting activity of bouldering at Steep Rock Bouldering and assumed the risks inherent therein. Specifically, Defendant has [**20] referred to Plaintiff’s deposition testimony, which was sufficient to establish that Plaintiff: (1) had experience with rock climbing; (2) was aware of the conditions of the climbing wall from observations both at a distance–from looking online at Facebook and watching others–and [*39] up close on her two or three successful climbs prior to her injury; and (3) was aware that a person could drop down from the wall, as Plaintiff had herself already jumped down from the wall of her own accord.
In response, Plaintiff fails to raise a genuine issue of material fact. Steep Rock Bouldering’s climbing wall is of an average height for bouldering walls according to Dr. Richards. Dr. Nussbaum’s assertion that climbing on any wall of a height of eight feet or more requires a harness or similar device is conclusory, unsupported by citation, and, ultimately, unavailing.
To require harnesses and ropes at Steep Rock Bouldering would fundamentally change the nature of the sport. Bouldering is a type of climbing that does not require ropes or harnesses. The Court finds that injury from falling is a commonly appreciable risk of climbing–with or without harnesses, ropes, or other safety gear–and that Plaintiff assumed this risk when she knowingly and voluntarily climbed Defendant’s gym’s climbing wall for the third or fourth time when she fell. To hold that Defendant could be liable for Plaintiff’s injuries because it allowed her to climb its wall without a rope and harness would effectively [*40] make the sport of bouldering illegal in this state. To do so would fly in the face of the reasoning in Trupia that such “athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and . . . that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise.” (14 NY3d at 395-96.)
In dismissing the instant case, the Court notes that the facts here are distinguishable from those in Lee v Brooklyn Boulders, LLC ( NYS3d , 2017 NY Slip Op 08660, 2017 WL 6347269, *1 [2d Dept, Dec. 13, 2017, index No. 503080/2013]) and McDonald v. Brooklyn Boulders, LLC (2016 N.Y. Misc. LEXIS 5211, 2016 WL 1597764, at *6 [Sup Ct, Kings County Apr. 12, 2016]). Both cases involved plaintiffs who were injured when they jumped down from the climbing wall–at the same defendant’s bouldering facility–and each plaintiff’s foot landed in a gap between the matting. In both cases, summary judgment was denied because there was a genuine issue of material fact concerning whether the gap in the matting presented a concealed risk. Here, Plaintiff does not contend that she was injured by such a concealed risk, but essentially argues she should not have been allowed to [**21] voluntarily engage in the sport of bouldering. For the reasons previously stated, this Court finds such an argument to be [*41] unavailing.
Accordingly, it is
ORDERED that Defendant Steep Rock Bouldering, LLC’s motion pursuant to CPLR 3212 for an order granting Defendant summary judgment against Plaintiff Min-Sun Ho is granted; and it is further
ORDERED that the action is dismissed; and it is further
ORDERED that the Clerk is directed to enter judgment in favor of Defendant; and it is further
ORDERED that counsel for movant shall serve a copy of this order with notice of entry upon Plaintiff and upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158M), who are directed to mark the court’s records to reflect the dismissal of this action.
The foregoing constitutes the decision and order of the Court.
Dated: January 2, 2018
New York, New York
/s/ Robert D. Kalish, J.S.C.
HON. ROBERT D. KALISH
Lizzol v. Brothers Property Management Corporation, Et. Al., 2016 DNH 199; 2016 U.S. Dist. LEXIS 150427Posted: June 4, 2017
Lizzol v. Brothers Property Management Corporation, Et. Al., 2016 DNH 199; 2016 U.S. Dist. LEXIS 150427
Jennifer Lizzol, Michael Lizzol, and T.G., Plaintiffs v. Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch, Defendants
Case No. 15-cv-100-SM
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
2016 DNH 199; 2016 U.S. Dist. LEXIS 150427
October 31, 2016, Decided
October 31, 2016, Filed
PRIOR HISTORY: Lizzol v. Bros. Prop. Mgmt. Corp., 2016 U.S. Dist. LEXIS 16863 (D.N.H., 2016)
COUNSEL: [*1] For Jennifer Lizzol, Michael Lizzol, T. G., Plaintiffs: Philip R. Waystack, Jr., Sandra L. Cabrera, LEAD ATTORNEYS, Waystack Frizzell, Colebrook, NH.
For Brothers Property Management Corporation, Out Back Kayak, Inc. OBK, Defendants: Paul B. Kleinman, Bouchard Kleinman & Wright PA (M), Manchester, NH.
For Martin Welch, Defendant: Paul B. Kleinman, LEAD ATTORNEY, Bouchard Kleinman & Wright PA (M), Manchester, NH.
JUDGES: Steven J. McAuliffe, United States District Judge.
OPINION BY: Steven J. McAuliffe
Jennifer Lizzol, her husband Michael, and their son, T.G., filed suit to recover damages for injuries sustained as a result of a snow machine accident that occurred during a winter vacation at the Mountain View Grand Resort & Spa, in Whitefield, New Hampshire (“Mountain View Grand”). Defendants move for summary judgment based upon a liability release and covenant not to sue executed by Jennifer and Michael before the accident. Defendants also move for summary judgment on Michael Lizzol’s and T.G’s bystander liability claim. For the reasons discussed, defendants’ motion is granted.
Standard of Review
When ruling on a motion for summary judgment, the court must “constru[e] the record in the light most favorable to the [*2] nonmoving party and resolv[e] all reasonable inferences in that party’s favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this context, “a fact is ‘material’ if it potentially affects the outcome of the suit and a dispute over it is ‘genuine’ if the parties’ positions on the issue are supported by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). See also Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011). Nevertheless, if the nonmoving party’s “evidence is merely colorable, or is not significantly probative,” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (citations omitted).
Construing the record in the light most favorable to plaintiffs, and resolving all reasonable inferences in their favor, the controlling facts appear to be as follows.
The Lizzols travelled to the Mountain View Grand from Long Island, New York, on January 27, 2013, arriving in the afternoon. Prior to their arrival, Jennifer had scheduled a snowmobile lesson and tour for herself, her husband, and her son, as well as for a few of their friends, through the Mountain View Grand’s website. [*3] Defs.’ Mot. for Summary Judgment, Exh. C at p. 2. The lessons and guided tour were provided by Out Back Kayak, Inc. (“OBK”). Upon arrival at the resort, the Lizzols quickly put their luggage in their rooms, and then left to participate in the snowmobile activity, including a lesson and tour. Id.
The Lizzols were directed by the hotel activities desk to a small building on the grounds, where they met a Mountain View Grand employee, who told them to quickly pick out helmets and sign a two-page document that bore the following heading:
Snow Machine Tour
ACKNOWLEDGEMENT OF RISKS AND HAZARDS
COVENANT NOT TO SUE
WAIVER AND RELEASE OF LIABILITY
(the “Release”). The Lizzols felt rushed during the process, see, e.g., Defs.’ Mot. for Summary Judgment, Exh. C. at p. 3, but both Jennifer and Michael had an opportunity to review the Release, and each signed and initialed it. (Jennifer executed the release on behalf of her minor son, T.G.). The Release includes the following language:
I . . . hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify BPMC, the field operator, the event promoter, the owners of premises used to conduct the snowmobile activity, their owners, [*4] agents, officers and employees from any and all claims, actions or losses for bodily injury, property damage, wrongful death or injury, loss of services or otherwise which may arise out of my use of eques[trian] or other equipment or my participation in any BPMC activity. I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions presently or in the future for the negligent acts or other conduct by the owners, agents, officers, designees or employees of BPMC.
Defs.’ Mot. for Summary Judgment, Exh. A, p. 1. The Release includes five lettered paragraphs that provide tour participants with a designated space in which to place his or her initials, thereby confirming that he or she understands and acknowledges the following:
(A) that he or she is physically fit to participate in the activity;
(B) that participation in the activity may result in “bodily injury, disease, strains, fractures, partial and/or total paralysis, eye injury, dental injury, blindness, . . . cold weather injuries, heart attack, asthma, vehicle injuries, mental duress, death or other ailments that could cause serious disability;”
(C) that “[t]hese risks and dangers [*5] [of bodily injury] may be caused by the negligence of the owners, employees, officers or agents of the Mountain View Grand and/or the negligence of the participants . . . ;”
(D) that by participating “in these activities and/or use of equipment, [the participant] . . . assume[s] all risks and dangers and all responsibility for any loss and/or damages, whether caused in whole or in part by the negligence or other conduct of the owners, agents, officers, designees, employees of BPMC, or by any other person[;]” and
(E) that the participant “understand[s] that [he or she is] undertaking this snowmobiling activity at [his or her] own risk, freely and voluntarily without any inducement[.]”
Id. Jennifer did not initial Paragraph B or Paragraph D, and Michael did not initial Paragraph B.
After signing the Release and obtaining their helmets, the Lizzols met their tour instructor, OBK employee Martin Welch, and his assistant, Jennifer Welch. The Lizzols had no snow machine experience. Welch provided a very brief introduction to and instruction regarding operation of the snow machines. He explained how to accelerate, brake, and turn. He told them that the tour would never travel faster than 20 miles per hour. Welch then [*6] assisted the tour members with their snowmobile selections, and the tour began.
Jennifer and Michael rode on a two-person snow machine, with Jennifer operating the vehicle. They were directly behind Welch in the line of snowmobiles. Their son, T.G., rode by himself and was farther back in the line. Welch drove rather quickly during the tour, and far exceeded the self-imposed 20 miles per hour speed limitation he had announced earlier. Jennifer did not keep pace, and, as Welch increased his speed during the second half of the tour, Jennifer lost sight of him. Jennifer attempted to follow Welch’s tracks in the snow, but, in doing so, lost control of the snowmobile, which left the path and flipped over. Jennifer, Michael, and the snow machine fell down a steep embankment that was approximately seventy-five feet high.
Both Jennifer and Michael suffered physical injuries, but Jennifer’s were particularly severe. She lost consciousness, had collapsed lungs, 10 broken ribs, and multiple injuries to her spine and back.
The plaintiffs later learned that other customers may have complained that Welch drove too quickly during earlier snow machine tours. After the accident, Mountain View Grand manager, [*7] Chris Diego, asked Michael if Welch had been “going too fast again.” Pls.’ Opp. to Summary Judgment, Exh. 4, p. 6.
Jennifer, Michael, and their son brought suit against Brothers Property Management Corporation (which owns and operates the Mountain View Grand), OBK, and Martin Welch, asserting claims for negligence, including negligent training and supervision, vicarious liability, bystander liability, and loss of consortium. The defendants move for summary judgment, arguing that the contractual Release is both valid and enforceable.
Defendants argue that the scope of the Release plainly encompasses the claims at issue here because the complaint alleges that, as a result of the defendants’ negligence, they were injured while participating in the snow machine lesson and tour activity. Plaintiffs disagree.
New Hampshire law generally prohibits exculpatory contracts. McGrath v. SNH Development, Inc., 158 N.H. 540, 542, 969 A.2d 392 (2009). But, there are exceptions. Exculpatory contracts are enforceable if: “(1) they do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff’s] position would have understood the import of the agreement; and (3) the plaintiff’s claims fall within the contemplation [*8] of the parties when they executed the contract.” Id. at 542 (quoting Dean v. MacDonald, 147 N.H. 263, 266-67, 786 A.2d 834 (2008)).
A. The Scope of the Release
Plaintiffs argue that the Release is not enforceable because they did not understand it to encompass claims for negligent instruction, or negligent guidance on the snow machine tour, and a reasonable person in their position would not understand the Release to bar such claims. They say that the content, structure, and organization of the Release – which plaintiffs contend is verbose, employs obfuscating language, and uses confusing sentence structure – disguised any intent to relieve the defendants of liability for their own negligence related to instruction or guidance along the trail. They point out that the words “instruction,” “lesson” and “guide” are terms that do not appear in the Release. Rather, the Release focuses on terms like “services,” “use of equipment,” and “participation in activities.” Altogether, they say, the impression is given that the Release applies only to injuries inherent to snow machine activity and the use of snow machine equipment, but not to harm resulting from an instructor’s or guide’s failure to act with reasonable care.
The parties’ differing subjective understandings [*9] of the Release’s intent is of limited relevance to the controlling analysis, however, since courts must “judge the intent of the parties by objective criteria rather than the unmanifested states of mind of the parties.” Dean, 147 N.H. at 267 (citing Lake v. Sullivan, 145 N.H. 713, 715, 766 A.2d 708 (2001) and Barnes v. New Hampshire Karting Ass’n, Inc., 128 N.H. 102, 107, 509 A.2d 151 (1986)). Under applicable New Hampshire law, courts examine the language of a release and “give the language used by the parties its common meaning and give the contract itself the meaning that would be attached to it by a reasonable person.” McGrath, 158 N.H. at 545 (internal quotations omitted) (quoting Dean, 147 N.H. at 267). “As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.” Id. (internal quotations omitted) (quoting Dean, 147 N.H. at 267). However, a defendant “will not be released from liability when the language of the contract raises any doubt as to whether the plaintiff has agreed to assume the risk of a defendant’s negligence.” Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 414, 807 A.2d 1274 (2002) (citations omitted).
The language used in the Release at issue here is broad in reach, detailed, and clear. A reasonable person would be hard pressed to avoid recognizing the significance and effect of the words used. The Release [*10] plainly purports to release Mountain View Grand employees and agents of all liability for their own negligence, or the negligence of others (e.g. other snowmobile activity participants), related to the snow machine instruction and tour (equipment and services). The Release repeatedly references waiving the negligence of MVG’s employees, officers and agents. For example, after warning the signatory of the serious risks of injury associated with participation in the snow machine tour, including bodily injury and death, the Release explains that those risks could be caused by “the negligence of the owners, employees or agents of the Mountain View Grand.” Defs.’ Mot. for Summary Judgment, Exh. A. The Release then states that the signatory agrees to “assume all risks and dangers and all responsibility for any loss and/or damages whether caused in whole or in part by the negligence . . . of the owners, agents, officers, designees, employees of BPMC.” Id. The Release further provides: “I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions . . . for the negligent acts or other conduct by the owners, agents, officers, [*11] designees or employees of BPMC.” Id.
The language of the Release unarguably applies to claims or suits based on the negligence of Mountain View Grand owners, employees, officers or agents. The Release does not qualify or limit the “negligence” being released in any way, nor is the Release ambiguous in that regard. References in the Release to “participation in [the] activity” also make clear that claims arising from the releasees’ negligence associated with the described activity are being waived.
The Lizzols participated in an activity that consisted of a snow machine lesson and a snow machine tour. Plaintiffs’ claim that they were injured because defendants negligently conducted both the snow machine lesson and the tour. Their negligence claims, then, necessarily arise directly from their participation in the activity (the snow machine lesson and tour). That the Release does not include terms like “instruction,” “lesson” or “guide” is not dispositive: “[T]he parties need not have contemplated the precise occurrence that resulted in the plaintiff’s injuries, and may adopt language that covers a broad range of accidents.” McGrath, 158 N.H. at 545 (internal citations omitted) (citing Barnes, 128 N.H. at 107). So, attempting to carve out [*12] discrete acts of negligence from the Release is futile if, as here, those discrete acts are associated with the conduct of the snow machine instruction and tour activity.
A reasonable person “would have contemplated that the agreements released the defendants from any negligence, not just from negligence inherent” in snowmobiling. McGrath, 158 N.H. at 547.
B. The Release encompasses the negligence claims against OBK
Plaintiffs further argue that the Release failed to place them on notice that they were releasing OBK from liability, since OBK is not a named party to the exculpatory contract, and is not mentioned by name. Relying on Porter v. Dartmouth College, No. 07-cv-28-PB, 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831 (D.N.H. Sept. 30, 2009), plaintiffs note that the Release repeatedly makes reference to the Mountain View Grand and its equipment, but does not mention OBK or its instructors. Therefore, they say, a reasonable person would not understand that the Release also purported to absolve OBK from liability for its own negligence.
“An exculpatory contract need not specifically identify the defendant by name.” Porter, 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831, at *3 (citing Dean, 147 N.H. at 270). “However, the contract must at least provide a functional identification of the parties being released.” Id. Here, the Release reads in relevant part:
I . [*13] . . voluntarily agree to release . . . BPMC, the field operator, the event promoter, the owners of premises used to conduct the snowmobile activity, their owners, agents, officers and employees from any and all claims, actions or losses for bodily injury, . . . wrongful death or injury, loss of services or otherwise which may arise out of my use of [equestrian] or other equipment or my participation in any BPMC activity. I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions . . . for the negligent acts or other conduct by the owners, agents, officers, designees or employees of BPMC.
Defs.’ Mot. for Summary Judgment, Exh. A (emphasis supplied).
Defendants point out that OBK, and Welch individually, are covered by the Release because they are both “agents” of BPMC, and they acted as the referenced “field operator” for the snow machine tour. Indeed, plaintiffs specifically alleged the existence of an agency relationship between BPMC and OBK in their Complaint. See, e.g., Compl. ¶ 48 (“Mountain View Grand controlled in whole or in part the activities engaged in by Out Back Kayak and/or its employees and is vicariously [*14] liable for the negligent actions of the snow mobile tour guides committed while engaged in the scope of employment.”). The asserted agency relationship is an essential element of plaintiffs’ vicarious liability claim. Defendants readily agree that OBK and Welch were agents of BPMC. For reasons satisfactory to the parties, they do not dispute OBK’s or Welch’s status as agents of BPMC. As BPMC’s agent, OBK and Welch are plainly covered by the Release.
Moreover, plaintiffs’ reliance on Porter is unhelpful. In Porter, the plaintiff, an undergraduate student at Dartmouth College, was fatally injured while participating in a class that included ski lessons, at a facility owned, operated, and maintained by Dartmouth. 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831, at *1. Her estate filed suit, asserting claims for negligence and wrongful death. Id. Dartmouth argued that the claims were barred by a release agreement plaintiff signed before renting ski equipment for the class. 2009 U.S. Dist. LEXIS 90516, [WL] at *2. The release in Porter, which had been drafted by Solomon (the ski and bindings manufacturer), did not mention Dartmouth by name, and repeatedly emphasized and referred only to ski equipment being rented by the student. See 2009 U.S. Dist. LEXIS 90516, [WL] at *3. Based on those distinguishing facts, the court concluded [*15] that the release failed to place the “equipment renter on even functional notice that Dartmouth was in any way a party” to the release agreement. Id.
Unlike the release at issue in Porter, the Release here makes evident that it pertains not just to the furnishing and use of equipment associated with the snow machine activity, but also to the furnishing of services associated with that activity. The clearest example is found in the first paragraph of the Release, which provides: “In consideration of Brothers Property Management Corporation . . . furnishing services and equipment to enable me to participate in the Snow Machine tour (snowmobiling), I acknowledge and agree as follows.” Defs.’ Mot. for Summary Judgment, Exh. A (emphasis added). Indeed, nearly every time the Release references the signatory’s use of equipment, the Release also references the signatory’s participation in the snow machine lesson and tour. See id. Such references objectively manifest the parties’ intent that the Release encompass all claims based upon the negligent provision of services – including services provided by Mountain View Grand’s agent, OBK — that related to plaintiffs’ participation in the snow machine [*16] tour activity. While not identified by name, OBK and Welch were functionally identified as benefitting from the Release, when acting as agents of Mountain View Grand.
C. Jennifer’s failure to initial certain paragraphs of the Release does not preclude its enforcement.
Plaintiffs next argue that, even if the Release does encompass the claims at issue, it is still not enforceable against Jennifer, because she failed to initial paragraphs B and D of the Release. Plaintiffs characterize the lettered paragraphs as “several distinct exculpatory clauses” that they were required to agree to separately, and which, as structured, give the impression that “the participant might agree to certain terms, but not others.” Pls.’ Mem. in Opp. to Mot. for Summary Judgment at p. 18. Because Jennifer did not initial two of the contract’s paragraphs, plaintiffs say, those paragraphs are not enforceable against her. At the very least, plaintiffs continue, Jennifer’s failure to initial those paragraphs gives rise to disputed issues of material fact regarding her intent to be bound by those paragraphs, and whether there was a “meeting of the minds” with respect to releasing defendants from liability for their [*17] own negligence. Id.
In response, defendants point out that the final paragraph of the Release reads:
I have read the above paragraphs and fully understand their content. I understand that this is a Release of Liability, which will legally prevent me or any other person from filing suit and making any other claims for damages in the event of personal injury, death or property damage.
Defs.’ Mot. for Summary Judgment, Exh. A. Defendants argue that the final paragraph clearly and explicitly incorporates the terms of paragraphs B and D, and therefore plaintiffs’ argument is unavailing.
The final paragraph of the Release is unambiguous. By signing the Release, Jennifer acknowledged that she had read the entire agreement and agreed to its terms; all of its terms. Cf. Serna v. Lafayette Nordic Vill., Inc., No. 14-CV-049-JD, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *3 (D.N.H. July 16, 2015) (finding that plaintiff’s failure to sign a release on the back of a form did not bar enforcement, where plaintiff had signed the front of the agreement following a statement acknowledging that she had read the agreement on the back of the form concerning the release of liability, and agreed to its terms); see also Gannett v. Merchants Mut. Ins. Co., 131 N.H. 266, 269-70, 552 A.2d 99 (1988) (“The plaintiff argues, however, that she is not bound by the [*18] condition in the release, as she never returned the release to Merchants. The return of the release, however, is irrelevant, as it was the acceptance of a check offered on the condition that it constitute payment in full, rather than the signing of the release, which bound [plaintiff]. It is also irrelevant whether she actually read the release, when the release clearly and unambiguously stated the condition, and when [plaintiff] had the opportunity to read it before cashing the check.”). Here, Jennifer acknowledged having read the entire release and objectively manifested her agreement, after which she accepted the services to be provided only on condition that a full release first be given.
The parties do not cite New Hampshire authorities directly on point, nor has the court found any, but it appears that the Tenth Circuit addressed a nearly identical issue in Elsken v. Network Multi-Family Security Corp, 49 F.3d 1470 (10th Cir. 1995). In Elsken, the plaintiff entered into a services agreement with a security corporation to provide a 24-hour alarm system. Id. at 1471. The agreement contained a limitation of liability clause, on the same page as a space provided for a party to initial. Id. at 1473. The plaintiff signed the agreement, but failed to initial the line next to the [*19] limitation of liability clause. Plaintiff there also signed the agreement below a provision “articulating a presumption that the agreement was properly executed,” which read:
Resident acknowledges that resident has read and understands all of this resident agreement including the terms and conditions on this side and the reverse side, particularly Paragraph 3.0 Limitation of Liability and agrees to the amounts set forth herein.
Id. at 1473. The plaintiff was subsequently fatally stabbed in her apartment. Her estate filed suit against the security alarm company, asserting claims for breach of contract, negligence, and breach of warranties based on the alarm company’s failure to properly respond to an alarm. Plaintiffs argued that the limitation of liability clause was not effective because plaintiff did not initial the line provided for that purpose, and, therefore, had not objectively manifested her agreement to the waiver provision. Id. at 1472-73.
The court of appeals found that plaintiff’s failure to initial the line provided did not preclude summary judgment, since plaintiff had signed “directly below a statement of acceptance of the contract that explicitly incorporates the provisions on the reverse side [*20] of the page.” Id. at 1474. The court determined that, “[b]ased upon a plain reading of the contract,” plaintiff agreed to the contract in its entirety as written. Id. So too, here. Jennifer’s signature directly follows a paragraph that references the liability waiver clauses defendants seek to enforce.
Finally, plaintiffs point to no evidence in the record that might support a finding that Jennifer’s failure to initial paragraphs B and D was in any way motivated by an objection to or non-acceptance of either of those terms. Nor do they point to evidence in the record that would support a finding that Jennifer ever expressed any objection to the terms of paragraphs B and D before executing the agreement. Indeed, the relevant evidence of record suggests that Jennifer’s failure to initial paragraphs B and D was not the product of a conscious decision. See Defs.’ Mot. for Summary Judgment, Exh. C, p. 4 (Q: “Do you have any explanation for why A, C, and E were initialed, but not B and D?” Jennifer Lizzol: “No.” . . . Q: “Was there a conscious decision on your part not to initial B and D?” Jennifer Lizzol: “No.”)
Jennifer Lizzol’s failure to initial paragraphs B and D of the Release does not render the Release [*21] or those paragraphs unenforceable against her. The same general analysis applies to Michael Lizzol’s failure to initial Paragraph B of the Release.
D. The Release does not violate public policy.
Plaintiffs argue that the Release contravenes public policy, because its enforcement would relieve an instructor from liability for his own negligent instruction. Plaintiffs contend that because the instructor/guide holds a position of authority over the conduct of the snow machine tour, the instructor/guide is uniquely positioned to ensure that the tour is conducted in a reasonably safe manner. So, plaintiffs say, releasing an instructor of his or her obligation to exercise reasonable care will result in that instructor failing to make a good faith effort to carry out his duties, which, they say, is what happened here. That contravenes public policy, they argue, because it will surely impede public safety.
The argument, while creative, avoids the public policy analysis required under New Hampshire law. “A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there [*22] was no other disparity in bargaining power.” Barnes, 128 N.H. at 106. “‘A special relationship exists when “the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service.'” Serna v. Lafayette Nordic Vill., Inc., 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (quoting Barnes, 128 N.H. at 106). Additionally, a release may be against public policy if, among other things, “it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.” Serna, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (citing McGrath, 158 N.H. at 543).
Plaintiffs do not contend that a “special relationship” existed between the parties, as that term is used in the liability waiver context. Nor could they. While the Mountain View Grand is an inn, the Release does “not pertain to the usual activities of running an inn,” but instead to the Mountain View Grand’s facilitation of collateral outdoor recreation activities. Serna v. Lafayette Nordic Vill., Inc., 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2. And snowmobiling (like skating, Serna, id., and snowboarding, McGrath, 158 N.H. at 544) constitutes recreational activity, not “an activity ‘of such great importance or necessity to the public that it creates a special relationship.'” Serna, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (quoting McGrath, 158 N.H. at 544).
“Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract.” McGrath, 158 N.H. at 544 (citing Barnes, 128 N.H. at 107). But, “there [is] no [*23] substantial disparity in bargaining power among the parties, despite the fact that [plaintiffs were] required to sign the release in order to” participate in the snow machine lesson and tour. Barnes, 128 N.H. at 108. Here, the plaintiffs were “under no physical or economic compulsion to sign the release,” and “[s]ince the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength” over the plaintiffs or others who sought to participate in the snowmobile lesson and tour. Barnes, 128 N.H. at 108.
The Release does not violate public policy.
E. The plaintiffs have not sufficiently established fraud in the inducement.
Finally, plaintiffs argue that the Release is unenforceable because they were fraudulently induced to enter into the agreement. Plaintiffs assert that defendants had prior knowledge that Welch generally drove too quickly when conducting snow machine tours, and, notwithstanding that knowledge, failed (negligently) to take reasonable steps to ensure that Welch conducted the tours safely. Plaintiffs further contend that they were induced to sign the Release based upon defendants’ false assurances that the lesson and tour would be conducted in a safe manner, with adequate instruction, and at [*24] a safe speed. Relying on those assurances, plaintiffs signed the Release. Plaintiffs argue that, at the very least, whether the defendants made assurances (and omissions) regarding the nature of the snow machine tour with conscious indifference to the truth, and whether the plaintiffs justifiably relied upon those statements when signing the Release, are disputed issues of material fact precluding summary judgment.
“Under New Hampshire law, fraud in the inducement is a valid defense to a contract action and can be raised to void a contract.” Bryant v. Liberty Mut. Grp., Inc., No. 11-CV-217-SM, 2013 U.S. Dist. LEXIS 76713, 2013 WL 2403483, at *9 (D.N.H. May 31, 2013) (citing Nashua Trust Co. v. Weisman, 122 N.H. 397, 400, 445 A.2d 1101 (1982)). As the parties seeking to invalidate the Release on fraudulent inducement grounds, plaintiffs bear a substantial burden: they “must establish that the other party made a representation with knowledge of its falsity or with conscious indifference to its truth with the intention to cause another to rely upon it. In addition, the party seeking to prove fraud must demonstrate justifiable reliance.” Trefethen v. Liberty Mut. Grp., Inc., No. 11-CV-225-SM, 2013 U.S. Dist. LEXIS 76753, 2013 WL 2403314, at *7 (D.N.H. May 31, 2013)(quoting Van Der Stok v. Van Voorhees, 151 N.H. 679, 682, 866 A.2d 972 (2005)) (additional citations omitted).
Plaintiffs rely on Van Der Stok v. Van Voorhees, but that decision offers little support. That case arose [*25] out of a transaction for the sale of real estate. The plaintiff represented that defendant-purchaser would be able to build on the property, but did not disclose that his own earlier application to the zoning board for a permit to build on the property had been denied. After the closing, defendant went to the town offices to inquire about the property, and first learned that plaintiff’s earlier permit application had been denied. Defendant stopped payment on the check given at closing to cover the purchase price. The plaintiff subsequently filed an action, and defendant raised fraud in the inducement as a defense to plaintiff’s claims. Plaintiff argued the defendant could not show reasonable reliance on his purported misrepresentation, because the purchase and sale agreement provided, “Seller makes no representations as to land use law or regulations.” Id. at 682.
The New Hampshire Supreme Court rejected that argument for two reasons. First, the court was unconvinced that the disclaimer “would put a reasonable person on notice that he could not rely upon the specific representation made . . . that the particular lot he was buying was a buildable lot.” Id. at 683. Moreover, the plaintiff had “made a representation [*26] with knowledge of its falsity or with conscious indifference to the truth with the intention to cause another to rely upon it.” Id. (quoting Snierson v. Scruton, 145 N.H. 73, 77, 761 A.2d 1046 (2000)). Such “positive fraud,” the court stated, “vitiates every thing.” Id. (quoting Jones v. Emery, 40 N.H. 348, 350 (1860)).
This case is distinguishable from Van Der Stok because the Lizzols have not shown what representation defendant(s) allegedly made “with knowledge of its falsity or with conscious indifference to its truth with the intention to cause another to rely upon it.” Id. In support of their assertion that defendants knew (or believed) that Walsh was likely to conduct their particular tour in an unsafe manner, plaintiffs point to the following: (1) “[u]pon information and belief, there had been complaints from customers that OBK’s tour guides, specifically Martin Welch, had driven unreasonably fast while conducting tours; (2) after the incident, the MVG manager asked Michael if Welch had been “driving too fast again.”
Admissibility of that evidence is doubtful, and it is plainly insufficient to support a finding that defendants knew that plaintiffs’ lesson and tour would be conducted in a negligent or actionably unsafe manner or were recklessly indifferent to that likelihood. And [*27] plaintiffs have identified no particular representation made by defendants, with the intention to induce plaintiffs to rely upon it, and, upon which they justifiably relied, that either proved to be false or the product of reckless indifference to the truth. The only statement in the record to which they point (Welch’s statement that he would not drive the snow machines faster than 20 miles per hour) occurred after plaintiffs signed the Release. The record is also utterly silent with respect to whether speed in excess of 20 mph is considered dangerous or negligent when conducting a snowmobile tour, or whether “too fast” in the past equates to the speed driven by the guide on plaintiffs’ tour, or even what “too fast” might mean in the context of a snowmobile tour that included novices.
Because plaintiffs have not produced sufficient evidence from which a finder of fact could conclude that the defendants knowingly made fraudulent representations to them, they have not established that a genuine issue of fact exists with respect to whether their execution of the Release was fraudulently induced, and is therefore ineffective.
The Release is valid and enforceable, and it encompasses the plaintiffs’ [*28] bystander liability claim as well as their negligence claims.
For the foregoing reasons, and for those argued in the defendants’ memoranda, the motion for summary judgment (document no. 23) is necessarily granted under controlling New Hampshire law. The Release at issue here is not ambiguous. It unmistakably released the defendants from any liability relating to their negligence, and that of their employees and agents. Neither qualifying language nor any other provision in, nor the structure of the Release, obscured the defendants’ intent to be relieved of all liability for their own negligence. A reasonable person would have understood that the Release relieved the defendants of all liability for injuries caused by their negligence. The Clerk of Court shall enter judgment for defendants and close the case.
/s/ Steven J. McAuliffe
Steven J. McAuliffe
United States District Judge
October 31, 2016