Release signed previously for different event by same defendant used to defeat claim at new event in Georgia
Posted: November 14, 2022 Filed under: Georgia, Indoor Recreation Center, Release (pre-injury contract not to sue) | Tags: Floor Mats, Floor Padding, Georgia, Georgia All Stars, Georgia Recreational Use Statute, Gym, Mats, Recreational Use Statute, Release, Tumbling Leave a commentGeorgia Recreational Use Statute also stops claims for slip and fall by spectator at event.
Shields v. RDM, LLC, 355 Ga. App. 409, 844 S.E.2d 297 (Ga. App. 2020)
State: Georgia: Court of Appeals of Georgia
Plaintiff: Kimberly and James Shields
Defendant: RDM, LLC d/b/a Georgia All Stars
Plaintiff Claims: negligence and loss of consortium, and seeking attorney fees, litigation costs, and damages
Defendant Defenses: Release and Recreational Use Statute
Holding: For the Defendant
Year: 2020
Summary
A mother watching her daughter perform in a gym tripped and fell breaking here leg stepping off mats. The gym raised the defenses of release, which the mother had signed at a previous event and the Georgia Recreational Use statute to successfully stop the claims of the mother.
Facts
…the record shows that Georgia All Stars offers tumbling instruction and provides competitive all-star cheerleading team programs in its Roswell, Georgia gym.3 On the day in question, November 19, 2015, Georgia All Stars hosted an exhibition of participants’ routines for parents to view in the practice area of the gym. And for this exhibition, the concrete gymnasium floor was covered with purple practice mats, and at least two vendors were there to promote their goods or services.
The Shieldses’ daughter was a participant in Special Twist, which is a “special needs all star cheer and dance team.” Special Twist is not part of the Georgia All Stars facility or teams, but is instead an independent 501 (3) (c) organization that, under previous ownership, had been permitted to practice in the Georgia All Stars facility with volunteer coaches and leadership. Georgia All Stars then adopted and continued the agreement, and Special Twist is charged nothing to use the facilities. Special Twist members were invited to participate in the exhibition on the night in question.
That evening, Special Twist performed an hour later than scheduled, and due to the number of people in attendance and the resulting crowd in the gym, spectators whose children had yet to perform were asked to wait outside. So, when Kimberly was eventually permitted inside the gym to watch Special Twist, she and “about a hundred [other] people” were “crammed into a corner” and stood to watch the performance.
When Special Twist finished performing, the coach took the members to watch other teams perform from the sidelines; but Kimberly and her daughter could not stay for the entire program due to another obligation they had early the next morning. As a result, Kimberly went to look for her daughter, who at the time was less than five feet tall. And as she was walking toward her daughter’s team, while attempting to look over other people and navigating through the crowd, Kimberly suddenly fell from the mats at a distance of what she described as two feet onto the concrete floor.
The area where Kimberly fell had not been marked off physically with rope, tape, or cones. And after she fell, a Georgia All Stars employee came over to assist Kimberly and called for an ambulance because she was unable to get up on her own. Then, at the hospital, Kimberly was diagnosed with four breaks between her leg and ankle that required surgery and many months of recovery.
Kimberly was familiar with the layout of the gym and the use of the purple mats because she watched her daughter perform or practice there on at least ten other occasions. But on the night in question, she noticed the mats were stacked in ways she had never seen before, and so she was not expecting the drop off where she fell. Nevertheless, it is undisputed that Georgia All Stars had parents sign releases containing warnings about potential hazards in the gym, and verbal warnings were given at the evening’s exhibition.
Prior to her daughter’s participation in a daily, one-week-long camp at the Georgia All Stars gym, Kimberly signed a medical-release form on July 30, 2015.5 In doing so, Kimberly understood that the medical release applied to her and her daughter, and that the document applied to her and her daughter’s participation in events at the gym.
The mother and her husband sued the gym for negligence and loss of consortium.
Analysis: making sense of the law based on these facts.
The court started out by reviewing the requirements for a contract to be effective under Georgia law.
The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.10
The court then looked at the four issues under Georgia’s law for a release to be valid.
Suffice it to say, the cardinal rule of contract construction is to “ascertain the intention of the parties, as set out in the language of the contract.” Additionally, it is the “paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.” And a contracting party may “waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.” Finally, exculpatory clauses in Georgia are “valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.”
In this case the court found the release was valid. The plaintiff then argued the release was only valid for the camp the defendant’s daughter had participated in where the release was signed. However, the court noted there was nothing in the release that limited its application to a specific event or a date certain.
In this case, although Kimberly argues that the medical-release form was only applicable to her daughter’s participation in a temporary camp program, nothing in the language of the release limits it to any specific program, event, or time period. Indeed, the plain language of the release states that it is applicable to “the activities that I or my child engage in while on the premises or under the auspices of GA,” “all of the risks, known and unknown, connected with GA related activities,” and “participation in GA-related activities.”
Always remember, there is no reason to limit the time frame of your release, doing so simply puts an end to your defenses when there is no t need to do so.
Find the release valid for a different time and location then the plaintiff argued the court then looked at whether the Georgia Recreational Use Act, OCGA § 51-3-20 et seq applied.
Recreational Use Statutes were created by legislatures to encourage land owners to open their land to other for recreational purposes. In general, the use must be free, or with no benefit to the land owner and for recreational purposes. Under Georgia’s law that meant:
(1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.” In other words, “the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”
Here, watching a child’s gymnastic routine was considered recreational by the court. There was also no fee charged by the defendant for the children to use the facility or for the parent to watch the child perform.
The plaintiffs argued that since there were vendors at the event, the defendant received a benefit for the use of the facility. The court looked at Georgia Supreme Court decisions over the type of charge and determined:
“[i]t is not the law—and we have never said that it was—that inviting people to use recreational property for recreational activities could still fail to qualify for immunity under the Act solely because the landowner had some sort of subjective profit motive in doing so.” Instead, the relevant question is whether “the landowner actually invited people onto the property (directly or indirectly) to do something ‘recreational,’ or whether people have instead been allowed onto the property to engage in commercial activity.” And in this case, the evidence shows that “both the nature of the activity and the nature of the property at the time of the [gymnastics exhibition] were purely recreational.”
Although the defendant may or may not have made some type of money from the vendors. There was no payment by the defendant to the facility to be there. There was no requirement that a purchase had to be made from a vendor or the vendors received any benefit from the exhibition. In fact, the court summed up its analysis of the facts in the case as:
To put it plainly, this case is the poster child for immunity under the RPA, and the trial court did not err in concluding that the Shieldses’ claims were barred under the statute.
The court stated both defenses would have stopped the claims of the plaintiffs. In fact, the court used an analysis I have never seen to describe the situation.
If the medical-release form is the belt of Georgia All Stars’s defense to this lawsuit, the protections afforded to property owners by the Recreational Property Act are its suspenders.
So Now What?
Too many times I see releases that have an ending date or a date when the release is no longer valid. Just the opposite needs to be made clear. That the release is valid for longer than one year. Many times, showing valid releases signed each year by the plaintiff is proof that the plaintiff knew and understood what they were signing, the risks and each release was another bar to the plaintiffs’ claims.
Do not limit the value of your release by putting a date on the release ending its effectiveness.
What do you think? Leave a comment.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here.
Copyright 2022 Recreation Law (720) 334 8529
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Collecting accident reports without doing something with the reports guarantees you will lose a lawsuit and in this case possibly for gross negligence.
Posted: May 4, 2020 Filed under: Climbing Wall, Utah | Tags: Accident Reports, Bouldering, Bouldering Wall, Climbers, Climbing Gym, Climbing Wall, concealed, damaged, district court, Failue to Act, floor, Gross negligence, Hazard, Incident Reports, indifference, injuries, material fact, Mats, Padding, patches, quotation, reliability, simplified, slight care, Steps, Summary judgment, tear, vinyl Leave a commentClimbing gym had a collection of accident reports that were based on the same set of facts. Failure to act on the reports and solve the problem was enough proof for the Utah appellate court to hold the actions of the defendant gym were possibly grossly negligent.
Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
State: Utah; Court of Appeals of Utah
Plaintiff: Scott Howe
Defendant: Momentum LLC
Plaintiff Claims: Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area
Defendant Defenses: the actions of the defendant did not rise to the level of gross negligence.
Holding: For the Plaintiff
Year: 2020
Summary
Incident and Accident reports that have not been acted on and the issues that caused the accidents which had not been fixed, were proof that the defendant climbing gym possibly acted in a grossly negligent way.
Facts
Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.
But Momentum’s management team deemed these tear patches a hazard for tripping, so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.
Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.
In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.
Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”
The defendant Momentum filed a motion for summary judgement to dismiss the gross negligence claims of the plaintiff. The trial court judge ruled the plaintiff had shown enough action and inaction on the part of the gym that the plaintiff could proceed to trial on a claim of gross negligence. The defendant appealed this ruling.
The decision also looks at the qualifications of the plaintiff’s expert witness. However, there is nothing in the decision that warrants review here.
Analysis: making sense of the law based on these facts.
The court’s analysis of the law was quite good and balanced. It’s application of the law to the facts was clear cut. The court defined gross negligence under Utah’s law as “…the failure to observe even slight care….”
A broader definition was defined as:
“…the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff….
The court concluded its review of gross negligence with this statement about the actions of the defendant. “…Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent….”
The court then followed with this statement.
It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence,….
At this point, in the opinion it is clear the court looked at Momentum’s failure to act after collecting more than 13 incident reports as gross negligence.
It is also clear that the court believes that failure to act on the defendant’s own incident reports is a major failure of the defendant. Why have accident and incident reports if you do nothing about them.
These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding.
The court gave the climbing gym some benefit because after the first five accidents, they placed additional padding over the torn spots. However, having eight additional incidents, with the torn padding was more than the court would allow.
The court then summed up the accident reports that the defendant compiled.
…onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.
The court found that collecting injury reports, which almost identical fact situations and not doing anything about it were proof of gross negligence. The appellate court held the trial court was correct in denying the defendant climbing gym’s motion for summary judgment to dismiss the gross negligence claims.
So Now What?
Incident reports are legal explosives just waiting to go off when a plaintiff’s attorney gets them. If you collect them, then you MUST do something with them.
Each report MUST be analyzed. It must be compared with all other reports to see trends or to determine what the cause or problem is. Then something must be done to correct the problem.
If you decided the report is a rate instance or something outside of your ability to control it, then you must indicate that in your notes or on your response to the report. If a second accident occurs with the same fact situation, then it is not longer a rare case, it is something you must act on.
If not, like in this case, the reports prove foreseeability and in this case, prove that failing to act when the defendant knew a problem existed, was enough to support a claim of gross negligence.
What do you think? Leave a comment.
Copyright 2020 Recreation Law (720) 334 8529
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
Posted: April 23, 2020 Filed under: Climbing Wall, Utah | Tags: Accident Reports, Bouldering, Bouldering Wall, Climbers, Climbing Gym, Climbing Wall, concealed, damaged, district court, Failue to Act, floor, Gross negligence, Hazard, Incident Reports, indifference, injuries, landing, material fact, Mats, Padding, patches, quotation, reliability, simplified, slight care, Steps, Summary judgment, tear, vinyl Leave a commentHowe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
Court of Appeals of Utah
January 3, 2020, Filed
No. 20190187-CA
[*P1] Scott Howe sued Momentum LLC under a theory of gross negligence1 for injuries he sustained while “bouldering.”2 Momentum moved for summary judgment, which the district court denied because the disputed facts were sufficient to raise a jury question. The district court also ruled that Howe’s expert (Expert) was qualified to testify on the industry standard of care. The matter is before this court on an interlocutory appeal challenging the court’s denial of the summary judgment motion and its decision to permit Expert to testify. We affirm and remand for further proceedings.
BACKGROUND3
[*P2] Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl [**2] began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.
[*P3] But Momentum’s management team deemed these tear patches a hazard for tripping,4 so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.
[*P4] Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping [**3] from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.
[*P5] In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.
[*P6] Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”
[*P7] Howe designated [**4] a liability Expert. Expert has a bachelor’s degree in chemical engineering and petroleum refining, as well as a master’s degree in metallurgical and materials engineering. His professional experience includes research and development engineering as well as forensic engineering. Expert owns a forensic engineering company that specializes in “metallurgical, materials, and mechanical failure analysis”; “materials evaluation and testing”; “product liability and analysis”; “fire and explosion cause and origin”; “industrial, recreational, and construction accident analysis”; and “chemical and mechanical systems failure analysis.” Expert has been an expert witness in numerous cases, one of which involved a mechanical failure that caused an indoor climbing accident. He has also had professional experience with evaluating impact attenuation surfaces in the ski industry.
[*P8] Expert opined that Momentum did not take appropriate steps to protect climbers in the bouldering area. Indeed, Expert concluded that
Momentum significantly elevated the risk of injury to climbers in the bouldering area by (1) failing to repair, restrict access, clearly mark, cordon off, close walls, or close areas around and [**5] near the areas where the vinyl padding cover was damaged, and by (2) placing the [mats] over the damaged areas of the padding cover, thus concealing the hazard created by the damage.
In Expert’s opinion, appropriate steps to remedy the problem could have included using “warning signs, closing the sections of the floor or wall near damaged areas,” removing the hand-and foot-holds above the damaged padding, making inaccessible the damaged padding areas, or repairing the damaged padding. During deposition testimony, Expert explained that “those are ways to prevent the public from interacting with the obvious hazard created by the opening in the pads.” This approach was based on his “engineering background and experience in dealing with hazards.” In short, his opinion is that “gluing and adhering . . . a large patch of vinyl over the tear” would have been safer than using the mats.
[*P9] Momentum moved for summary judgment, arguing the undisputed facts established that it exercised at least slight care to protect climbers using its facility, which meant Howe could not demonstrate gross negligence. Momentum also moved to exclude Expert, claiming he was unqualified to opine upon the standard of [**6] care in the indoor-climbing industry. The district court denied these motions, and Momentum successfully petitioned this court for an interlocutory appeal.
ISSUES AND STANDARDS OF REVIEW
[*P10] Momentum raises two issues on appeal. First, it claims the district court erred when it denied Momentum’s motion for summary judgment. HN1[
] Denials of summary judgment are questions of law reviewed for correctness. Glenn v. Reese, 2009 UT 80, ¶ 6, 225 P.3d 185.
[*P11] Second, Momentum claims the district court erred when it denied Momentum’s motion to exclude Expert. HN2[
] A district court’s determination regarding the admissibility of expert testimony is reviewed for abuse of discretion. Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 16, 269 P.3d 980.
ANALYSIS
I. Summary Judgment
[*P12] HN3[
] Summary judgment shall be granted “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). In this case, the district court denied Momentum’s motion for summary judgment on Howe’s claim for gross negligence, based on its finding that there were “numerous genuine issues of disputed material fact.”
[*P13]
HN4[
] In reviewing a district court’s summary judgment decision, appellate courts “must evaluate all the evidence and all reasonable inferences fairly drawn from the evidence [**7] in a light most favorable to the party opposing summary judgment to determine whether there is a material issue of fact to be tried.” Horgan v. Industrial Design Corp., 657 P.2d 751, 752 (Utah 1982). “Gross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result. Summary judgment is proper where reasonable minds could reach only one conclusion based on the applicable material facts.” Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified).
[*P14] Citing Penunuri and Blaisdell v. Dentrix Dental Systems, Inc., 2012 UT 37, 284 P.3d 616, Momentum argues that “the undisputed material facts of this case show that [it] exercised care, far more than even slight care, and was not careless or reckless, let alone to a degree that shows utter indifference,” and that therefore “the district court erred in denying Momentum’s motion for summary judgment.” (Quotation simplified.) Momentum points out that it “[u]ndisputedly . . . took steps to protect climbers from being injured by the wear and tear damage that had developed in its primary padding,” including using welded patches, “thinn[ing] out” the climbing routes, and, “[a]fter determining that the . . . patches created tripping hazards,” using the mats and monitoring their positioning. In Momentum’s view, these steps [**8] demonstrate that it took at least slight care and was not utterly indifferent to the consequences that could result from a failure to take care.
[*P15] Howe acknowledges that Momentum took these steps, but argues they were inadequate. He further asserts that Momentum’s use of the pads to cover the defective flooring concealed the risk and rendered the climbers “defenseless against the dangerous conditions known to Momentum,” and claims that his “inability to see the dangerous flooring over which he was climbing contributed to his injuries.” At oral argument before this court, Howe argued this concealment “dramatically magnified” the risk of harm.
[*P16] We note the tension between our supreme court’s recent articulation of the elements of gross negligence as “the failure to observe even slight care,” Penunuri, 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified), and the language of a subsequent paragraph suggesting that “the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff,” id. ¶ 37. We can envision situations in which the straightforward application of the elements identified [**9] in paragraph 35 might dictate a grant of summary judgment in favor of the defendant while the application of the elements identified in paragraph 37 might dictate the denial of summary judgment. But we need not explore this tension further here because Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent, even assuming that paragraph 35 sets forth the correct formulation of the elements of gross negligence.
[*P17] Although Momentum took certain steps to remedy the problem created by the deterioration of the foam padding, injury incidents continued to occur even after implementation of Momentum’s injury-avoidance strategy. HN5[
] It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence, one sufficient to withstand summary judgment. See id. ¶ 16 (“Summary judgment dismissing a gross negligence claim is appropriate where reasonable minds could only conclude that the defendant was not grossly negligent under the circumstances . . . .”). We cannot see much of a distinction [**10] between that situation and the case Howe brings here: a defendant takes some action in response to injury incidents, and therefore arguably demonstrates slight care in the beginning, but takes no additional action after injury incidents continue to occur following implementation of its original strategy. Stated another way, we are not persuaded that a defendant who simply relies on a repeatedly-failed strategy to avert injury from a known risk is entitled to judgment as a matter of law on the “slight care” question.
[*P18] In this case, five incidents, some of which involved injuries, motivated Momentum to take steps to address the problem and ultimately to place mats over the cracked foam padding. These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding. But by the time Howe was injured, eight more injuries had been reported to Momentum, even after it had thinned the routes and put down the extra pads. These eight additional climbers were injured in roughly the same manner as Howe: when they dropped from the bouldering wall [**11] onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.
[*P19] Because a reasonable finder of fact could determine, on this record, that Momentum was grossly negligent, the district court’s denial of summary judgment was appropriate.
II. Expert Testimony
[*P20] HN6[
] The Utah Rules of Evidence allow “a witness who is qualified as an expert by knowledge, skill, experience, training, or education” to “testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Furthermore, “[s]cientific, technical, or other specialized knowledge may serve as the basis for expert testimony only if there is a threshold showing that the principles or methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (3) have been reliably applied to the facts.” Id. R. 702(b).
[*P21] Momentum argues the district court [**12] abused its discretion in denying its motion to exclude Expert. First, it contends Expert’s experience as an engineer did not qualify him to testify as to the applicable standard of care in the indoor-climbing industry. Second, Momentum contends that, because Expert did not evaluate or test vinyl floor padding or the mats used to cover the damaged areas, Expert’s opinions did not meet the reliability standard imposed by rule 702 of the Utah Rules of Evidence.
[*P22] But as Howe points out, Expert’s training as a professional engineer with experience in “forensic engineering and accident analysis in recreational settings,” “slip and fall accident analysis,” and “warnings, design, and standard of care issues” qualifies him to assist the finder of fact in making a determination of the standard of care in the indoor-climbing industry.
[*P23] Expert’s proposed testimony is that Momentum acted with indifference toward the safety of its members when it placed mats over the damaged padding; Expert opines that Momentum could have and should have taken alternative steps to mitigate the effects of the worn padding. As Howe points out, and the district court agreed, this testimony “will be helpful to the jury to understand the options Momentum had [**13] in addressing the damaged vinyl” and to avoid speculation regarding its options.
[*P24]
HN7[
] Further, as to reliability, Expert’s opinion is based “upon [his] engineering education, experience, and training” and “knowledge . . . gained from being a forensic engineer . . . and studying padding and other types of accidents.” In determining whether to allow an expert to offer an opinion, the district court’s role is that of a “gatekeeper,” meant “to screen out unreliable expert testimony.” Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 28, 269 P.3d 980 (quotation simplified). The court is afforded “broad discretion” when making this determination, and we “will reverse its decision only when it exceeds the bounds of reasonability.” Id. ¶ 31 (quotation simplified). Here, the court’s determination that Expert’s opinion was sufficiently reliable does not “exceed[] the bounds of reasonability,” and we decline to reverse it. See id. (quotation simplified). Expert’s opinion meets the threshold showing of reliability and “will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Therefore the district court did not abuse its discretion in denying Momentum’s motion to exclude his testimony.
CONCLUSION
[*P25] Because there are material facts in [**14] dispute, the district court properly denied Momentum’s summary judgment motion. Furthermore, the court did not abuse its discretion in denying Momentum’s motion to exclude Expert. We affirm the district court’s rulings on these points and remand for further proceedings.
Plaintiff loses snow tubing case in PA because their experts could not argue the actions of the defendant were gross negligence.
Posted: October 28, 2019 Filed under: Pennsylvania, Release (pre-injury contract not to sue), Skiing / Snow Boarding, Snow Tubing | Tags: anti-fatigue, bottom, deceleration, deposition, expert report, fail to meet, folded, grant summary judgment, Gross negligence, Inc., issues, kitchen, Mats, matter of law, patron's, Reckless, Resort, rider's, rubber, run-out, serious injury, Ski, Ski Roundtop Operating Corporation, Snow, Snow Time, speed, Standard of Care, stopping, Summary judgment, summary judgment motion, Trial court, tubers, Tubing Leave a commentAssociation resource guide is used against the defendants to prove the plaintiff’s case.
Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670
State: Pennsylvania, Superior Court of Pennsylvania
Plaintiff: Ray M. Bourgeois and Mary Ann I. Bourgeois
Defendant: Snow Time, Inc. and Ski Roundtop Operating Corporation
Plaintiff Claims: negligence, gross negligence, recklessness, and loss of consortium
Defendant Defenses: failure to state a claim and release
Holding: For the defendant
Year: 2018
Summary
In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.
Facts
This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois
went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.
The defendants filed a motion for summary judgment, which was granted and the plaintiff’s appealed.
Analysis: making sense of the law based on these facts.
The first issue the appellate court reviewed was the dismissal of the plaintiff’s claims for gross negligence. The appellate court held that “we find that Appellants did not establish a prima facie claim for recklessness or gross negligence”
The court came to that conclusion because no one could state the standard of care needed to prove the actions of the defendant rose to the level of gross negligence.
In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:
The court first looked at the definition of recklessness and gross negligence.
The Pennsylvania Supreme Court, citing the Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:
he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
The key point is the failure must be an intentional failure. The plaintiff must establish that the defendant consciously acted or failed to act. “Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.”
To prove gross negligence Pennsylvania laws requires a deviation from the standard of care.
Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary standard of care.”
Normally the trier of fact, the jury must make this decision. However, Pennsylvania courts are allowed to decide this issue if the facts are “entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence.”
Normally, to prove the defendant’s duty, expert testimony is required to establish the standard of care that the defendant failed to meet and how the expert deviated from that standard of care.
The plaintiff hired to experts that provided opinions as to the actions of the defendant. The first expert opined that the actions of the defendant were beyond the standard of care, but never provided an opinion about what the standard of care was.
DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.
The second expert did not set forth any standards of care.
Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.
The simple negligence claims were barred by a release. The plaintiff argued on appeal that the release was void because it did not specifically name in the release one of the defendants. However, the court found that the language in the release, “and their owners” was sufficient to cover the defendant when not specifically named in the release.
There was a dissent in this case. The dissent argued the plaintiff should win because the warning on the mats used to decelerate the tubes stated that vinyl tubes were not to be decelerated by mats or other devices. The dissent also argued the opinions of the experts did provide enough information for a decision about the recklessness and gross negligence of the defendants.
In my view, Appellants have put forth enough evidence at this stage for the jury to decide the issue. I disagree with the sole focus of the Majority and trial court on the use of the folded mats, when that is but one piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the facts Appellees knew or should have known, including the conditions contributing to speeds as high as 30-35 miles per hour, the risk of serious injuries when a fast-traveling snow tube abruptly collides with an obstacle, the lack of sufficient run-out area, and the use of mats not designed for use in snow tubing).5 Both experts explained the ways in which Appellees’ conduct deviated from the standard of care, based upon the facts established through depositions of Appellees’ employees and officers. It is clear to me that a jury could have determined that the series of conscious decisions made by Appellees worked together to create an unreasonable risk of physical harm to Bourgeois that was substantially greater than ordinary negligence. Therefore, I would reverse the trial court’s grant of summary judgment and remand for trial.
So Now What?
The plaintiff was rendered a quadriplegic by the accident so a lot of money was at stake. The plaintiff did not hire experts correctly or did not explain what was needed from the experts. This first rule of pleading is proving your case legally on the paperwork and then prove it in the record. The plaintiff failed to do that.
The biggest hurdle was the association resource guide. The National Ski Area Association created a resource guide for tubing hills. The dissenting judge called it the standard of care. The resource guide did not contain any information on using devices to slow tubes. The resource guide said you should have a sufficient run out.
The court did not see the issue as using a mat to slow participants as a violation of the standard to use a run out.
That was the close one in this case.
What do you think? Leave a comment.
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If you can see that you can get hurt and you admit that you saw and knew that you assume the risk of your injuries.
Posted: July 8, 2019 Filed under: Assumption of the Risk, New York, Racing | Tags: activities, assumes, assumption of the risk, consented, Damages, defendants', deposition testimony, designated, doctrine of assumption of risk, injured plaintiff, marks, Mats, obstacle, participants, permanent, personal injury, quotation, Risks, sponsored, Sport, Summary judgment, summary judgment motion, triable issue of fact, unreasonably Leave a commentIn this obstacle course race the plaintiff could see if she fell off the apparatus she would land on a road and could get hurt. She also admitted she undertook the climb of the apparatus voluntarily, so she lost her lawsuit.
State: New York, Supreme Court of New York, Second Department
Plaintiff: Monica Ramos, et al.
Defendant: Michael Epstein Sports Productions, Inc., et al.
Plaintiff Claims: Negligence
Defendant Defenses: Assumption of the Risk
Holding: For the Defendant
Year: 2019
Facts
The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Monica Ramos (hereinafter the injured plaintiff) while participating in an obstacle course race held at a public park in the Bronx. The event was organized and operated by the defendant Michael Epstein Sports Productions, Inc., and sponsored by the defendant Wolverine World Wide, Inc. The injured plaintiff allegedly fell when she was attempting to navigate the final portion of a rope obstacle called the “Monster Climb,” sustaining serious injuries.
The defendants moved for summary judgment dismissing the complaint on the basis that the action was barred by the doctrine of assumption of risk. In opposition, the plaintiffs argued that the assumption of risk doctrine cannot apply unless the sport or recreational activity takes place at a permanent, designated facility. They also argued that there were triable issues of fact as to whether the defendants unreasonably increased the risk of the Monster Climb obstacle by erecting it on a roadway without protective mats underneath it, by allowing an unlimited number of participants on the obstacle’s cargo nets at the same time, and by having staffers shout at the injured plaintiff to turn her body and hurry up.
Analysis: making sense of the law based on these facts.
The court started by explaining the Doctrine of Assumption of the Risk as applied in New York.
The “assumption of risk doctrine applies where a consenting participant in sporting and amusement activities ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'”. “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty”. Risks which are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks which participants have accepted and are encompassed by the assumption of risk doctrine. “It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results”. A participant’s awareness of risk is “to be assessed against the background of the skill and experience of the particular plaintiff”
Then the court reviewed the plaintiff’s deposition where she stated.
She testified that she saw that there were no mats under the Monster Climb, knew that she could fall and be hurt, and knew that she did not have to attempt the obstacle, but decided to anyway.
The plaintiff argued the Doctrine of Assumption of the Risk only applied to permanent designated venues. The court quickly threw out this argument. The plaintiff also did not submit any evidence showing the defendant had concealed or increased the risk of the activity.
The plaintiff lost.
So Now What?
So why write about this case? Because it shows how you can win if you just don’t try and hide the risks of the activity. In most states Assumption of the Risk is a defense to a negligence claim second to that of a release. In 7-8 states it is the only difference to an outdoor recreation negligence claim. Meaning Assumption of the risk is a defense that is good in all 50 states.
In the majority of states, it is the only defense to a claim by a minor.
Consequently, you should always create a situation where your customers can see the risk in advance, understand the danger presented by the risk and as in this case, opt out of the risk if they want.
If you do that, you create a simply effective defense that results in a simply easy to defend case and a short-written decision from the court in your favor.
What do you think? Leave a comment.
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Appellate court slams climbing gym, all climbing gyms in New York with decision saying no climbing gym can use a release.
Posted: May 20, 2019 Filed under: Assumption of the Risk, Climbing Wall, New York, Release (pre-injury contract not to sue) | Tags: action to recover, appeals, appreciated, Climbing, consented, cross-appeal, cross-motion, engaging, gap, Inherent Risk, Inherent Risks, injured plaintiff, inter alia, leave to amend, Mats, personal injuries, personal injury damages, plaintiffs', Prima facie, Punitive damages, recover damages, recreational, Risks, rock, Rock climbing, Sport, Summary judgment 2 CommentsA climbing gym is a recreational facility. As such, under New York law, the court found all releases fail at climbing gyms. Short, simple and broad statement leaves little room to defend using a release in New York.
Citation: Lee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660
State: New York; Supreme Court of New York, Appellate Division, Second Department
Plaintiff: Jennifer Lee, et al.
Defendant: Brooklyn Boulders, LLC
Plaintiff Claims: Negligence
Defendant Defenses: Release and Assumption of the Risk
Holding: For the Plaintiff
Year: 2017
Summary
A climber fell between the mats at a climbing gym injuring her ankle. The release was thrown out because a climbing gym is a recreational facility and assumption of the risk did not prevail because the Velcro holding the mats together hid the risk.
Facts
The plaintiff Jennifer Lee (hereinafter the injured plaintiff) allegedly was injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap between two mats. According to the injured plaintiff, the gap was covered by a piece of Velcro.
Analysis: making sense of the law based on these facts.
The trial court dismissed the defendant’s motion for summary judgment, and the defendant appealed. There were two issues the defendant argued on appeal: Release and Assumption of the Risk.
The court threw out the release in a way that makes using a release in New York at a climbing gym difficult if not impossible.
Contrary to the defendant’s contention, the release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature. Therefore, the release does not bar the plaintiffs’ claims.
The court threw out the release with a very far-reaching statement. “the defendant’s facility is recreational in nature.” It is unknown if the defendant tried to argue educational issues such as in 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 court then looked at the defense of assumption of the risk.
Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Moreover, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation
This court would seem to agree with an assumption of the risk defense based on statements made in case law set out above.
However, the facts in this case do not lead to such a clear decision. Because the gap between the mats was covered by Velcro, the court thought the Velcro concealed the risk.
Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing.
The Velcro, which was designed to keep the mats from separating, concealed the gap, which injured the plaintiff’s foot, when she landed between the mats. The defense of assumption of the risk was not clear enough for the court to decided the issue. Therefore assumption of the risk must be decided by a jury.
Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, regardless of the sufficiency of the opposition papers
So Now What?
It is getting tough to defend against claims and injuries in New York, specifically in climbing gyms. For an almost identical case factually see: Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.
Obviously, the facts in the prior New York climbing gym case, where the plaintiff fell between the mats provided the “track” used by this plaintiff in this lawsuit.
If your climbing gym has mats held together with Velcro or some other material, paint the material yellow or orange and identify that risk in your release or assumption of the risk agreement.
Assumption of the risk may still be a valid defense see NY determines that falling off a wall is a risk that is inherent in the sport. Unless you are teaching a class or some other way to differentiate your gym or that activity from a recreational activity, you are going to have to beef up your assumption of the risk paperwork and information to stay out of court.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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leave to amend, punitive damages, sport, gap, recover damages, personal injuries, summary judgment, rock climbing, inherent risks, prima facie, cross-appeal, recreational, engaging, mats, inter alia
risks, sport, injured plaintiff, punitive damages, leave to amend, cross motion, cross-appeal, consented, climbing, gap, personal injury damages, action to recover, summary judgment, inherent risk, prima facie, inter alia, recreational, appreciated, plaintiffs’, engaging, appeals, mats, rock
Lee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660
Posted: May 1, 2019 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: assumption of the risk, Climbing Gym, Climbing Wall, cross-appeal, gap, Inherent Risks, inter alia, leave to amend, Mats, personal injuries, Prima facie, Punitive damages, recover damages, recreational, Release, Rock climbing, Sport, Summary judgment, Velcro Leave a commentLee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660
Jennifer Lee, et al., respondents-appellants, v Brooklyn Boulders, LLC, appellant-respondent. (Index No. 503080/13)
2016-04353
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660
December 13, 2017, Decided
NOTICE:
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
CORE TERMS: leave to amend, punitive damages, sport, gap, recover damages, personal injuries, summary judgment, rock climbing, inherent risks, prima facie, cross-appeal, recreational, engaging, mats, inter alia
COUNSEL: [***1] Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (Nicholas P. Hurzeler of counsel), for appellant-respondent.
Carman, Callahan & Ingham, LLP, Farmingdale, NY (James M. Carman and Anne P. O’Brien of counsel), for respondents-appellants.
JUDGES: WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ. MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.
OPINION
[**68] [*689] DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Toussaint, J.), dated April 20, 2016, as denied its motion for summary judgment dismissing the complaint, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion pursuant to CPLR 3025(b) for leave to amend the complaint to add a demand for punitive damages.
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff Jennifer Lee (hereinafter the injured plaintiff) allegedly was injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap [***2] between two mats. According to the injured plaintiff, the gap was covered by a piece of velcro.
[**69] [*690] The plaintiffs commenced this action to recover damages for personal injuries, etc. The defendant moved for summary judgment dismissing the complaint, and the plaintiffs, inter alia, cross-moved for leave to amend the complaint to add a demand for punitive damages. The Supreme Court, inter alia, denied the motion and the cross motion. The defendant appeals and the plaintiffs cross-appeal.
Contrary to the defendant’s contention, the release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature (see Serin v Soulcycle Holdings, LLC, 145 AD3d 468, 469, 41 N.Y.S.3d 714; Vanderbrook v Emerald Springs Ranch, 109 AD3d 1113, 1115, 971 N.Y.S.2d 754; Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 249, 835 N.Y.S.2d 170; Miranda v Hampton Auto Raceway, 130 AD2d 558, 558, 515 N.Y.S.2d 291). Therefore, the release does not bar the plaintiffs’ claims.
“Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; see Koubek v Denis, 21 AD3d 453, 799 N.Y.S.2d 746). “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49; see Morgan v State of New York, 90 NY2d at 484; Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526). Moreover, “by engaging in a sport or recreational [***3] activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d at 484; see Simone v Doscas, 142 AD3d 494, 494, 35 N.Y.S.3d 720).
Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing (see Siegel v City of New York, 90 N.Y.2d 471, 488, 685 N.E.2d 202, 662 N.Y.S.2d 421; Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 134 AD3d 887, 889, 22 N.Y.S.3d 467; Dann v Family Sports Complex, Inc., 123 AD3d 1177, 1178, 997 N.Y.S.2d 836; Segal v St. John’s Univ., 69 AD3d 702, 704, 893 N.Y.S.2d 221; Demelio v Playmakers, Inc., 63 AD3d 777, 778, 880 N.Y.S.2d 710). Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, [*691] regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316).
The Supreme Court providently exercised its discretion in denying the plaintiffs’ cross motion for leave to amend the complaint to add a demand for punitive damages (see Jones v LeFrance Leasing Ltd. Partnership, 127 AD3d 819, 7 N.Y.S.3d 352; Hylan Elec. Contr., Inc. v MasTec N. Am., Inc., 74 AD3d 1148, 903 N.Y.S.2d 528; Kinzer v Bederman, 59 AD3d 496, 873 N.Y.S.2d 692).
[**70] MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.
McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)
Posted: July 31, 2018 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: Advice, Affirmative Defense, amend, amusement, appreciated, assumption of the risk, Bouldering, Brooklyn Boulders, Climb, Climbing, Climbing Wall, concealed, Dangerous Condition, Gym, Indoor Climbing Wall, instructional, leave to amend, mat, Mats, matting, Public Policy, reciprocal agreement, recreational, Release, risk doctrine, rock, Rock climbing, Sport, Teaching, team, The Rock Club, training, unaware, unreasonably, Velcro, Void, wasn't, watching Leave a commentMcDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)
[**1] Meghan Mcdonald, Plaintiff, – against – Brooklyn Boulders, LLC., Defendant. Index No. 503314/12
503314/12
SUPREME COURT OF NEW YORK, KINGS COUNTY
2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)
April 12, 2016, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: climbing, mat, climb, team, rock climbing, recreational, leave to amend, affirmative defense, risk doctrine, instructional, bouldering, void, appreciated, concealed, teaching, training, wasn’t, amend, sport’, Rock, gym, matting, reciprocal agreement, public policy, dangerous condition, unreasonably, amusement, watching, unaware, advice
JUDGES: [*1] PRESENT: HON. MARK I. PARTNOW, J.S.C.
OPINION BY: MARK I. PARTNOW
OPINION
Upon the foregoing papers, defendant Brooklyn Boulders, LLC (defendant or Brooklyn Boulders) moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff Meghan McDonald’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.
[**2] Background
Plaintiff is employed as a program director and head coach of a youth rock climbing team at The Rock Club, an indoor rock climbing gym in New Rochelle, New York and has been so employed since 2006. On September 1, 2011, plaintiff went to Brooklyn Boulders with some of the members of her youth climbing team and other adults. Brooklyn Boulders is an indoor rock climbing and bouldering facility located in Brooklyn, New York. Plaintiff testified that this trip was a treat for her team and that she would be climbing that day too. It is undisputed that plaintiff signed a waiver before she began climbing and that she did not pay an entry fee pursuant to a reciprocal agreement in place between The Rock Club and Brooklyn Boulders as well as other rock climbing facilities. After [*2] approximately one and a half hours of bouldering with her team, plaintiff went to an area of the bouldering wall known as The Beast, which is very challenging in that it becomes nearly horizontal for some distance. It was her first time on the Beast, although she had been to Brooklyn Boulders on prior occasions. Plaintiff testified that she visually inspected the area below the Beast before she began her climb. Lance Pinn, the Chief Marketing Officer, President and founder of Brooklyn Boulders testified that there was foam matting system in place, with matting wall to wall in the area of the Beast. The largest pieces available were 9 feet by 7 feet so the area where the foam pieces met when placed on the ground was covered with Velcro to keep the foam matting pieces flush together.
[**3] Plaintiff finished her upward climb and then climbed down as far as she could and then looked down below to make sure there were no shoes in her way and that her spotter was out of the way. She stated that she knew that there were mats underneath so she jumped down a distance of approximately five feet. Her right foot landed on the mat but her left foot landed on the Velcro strip where two floor mats met. [*3] She testified that her left foot went through the Velcro into a space between the two mats. Plaintiff sustained an ankle fracture as a result and required surgeries and physical therapy.
Brooklyn Boulders’ Motion
Brooklyn Boulders moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.
Defendant argues that the liability waiver that plaintiff signed when she entered the facility releases it from liability. Defendant maintains that plaintiff was an expert climber and coach and understood the meaning of the waiver and appreciated the assumption of risk involved in the activity that she was engaged. Defendant also points out that she did not pay a fee to climb that day based upon the reciprocal program in place with other climbing facilities. Defendant claims that plaintiff was instructing her students that day as they observed her climbing and point to her testimony as follows:
[**4] Q: And were you teaching them, you know, what to do and what not to do?
A: I wasn’t teaching them, but if they had a question [*4] they would ask me hey, should I do this or do this or what do you think of this move I always give advice. (Page 30, lines 12-17).
Q. Did you ever teach any or give any instruction there?
A. Just of terms of like in my kids I probably give instruction everywhere I go. There are so many people that climb at Brooklyn Boulders that are total beginners. I’m often spotting brand new people and telling them how to spot one another. (Page 45, lines 5-12).
Defendant notes that although General Obligations Law (GOL) §5-326 renders contract clauses which release certain entities from liability void as against public policy, activities which are “instructional” as opposed to recreational are found to be outside the scope of GOL §5-326. Defendant maintains that here, plaintiff was at Brooklyn Boulders to instruct her team members and thus GOL §5-326 is not applicable. Moreover, defendant argues that the waiver at issue was explicit, comprehensive and expressly provided that Brooklyn Boulders was released from liability for personal injuries arising out of or connected with plaintiff’s participation in rock climbing.
In support of its motion, defendant submits the signed waiver which states, in pertinent part:
I acknowledge [*5] that climbing on an artificial climbing wall entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential [**5] qualities of the activity. I have examined the Climbing Wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the Climbing Wall, including but not limited to:
a:. All manner of injury resulting from my falling off or from the Climbing Wall and hitting the floor, wall faces, people or rope projections, whether permanently or temporarily in place, loose and/or damaged artificial holds, musculoskeletal injuries and/or overtraining; head injuries; or my own negligence . . . I further acknowledge that the above list is not inclusive of all possible risks associated with the Climbing Wall and related training facilities and I agree that such list in no way limits the extent or reach of this Assumption of Risk, Release and Indemnification . . .
Defendant also argues that since plaintiff did not pay a fee to climb that day that her activity was [*6] outside the scope of GOL §5-326.
Next defendant argues that the assumption of risk doctrine bars plaintiff’s claims because, as a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation in such event.
Finally, defendant argues that it should be allowed to amend its answer to assert the affirmative defense of release. Defendant contends that it was unaware of the existence of the release and waiver when it served its answer. Moreover, defendant contends that plaintiff will not be prejudiced because she was, in fact, questioned about the release that she signed during her deposition.
[**6] Plaintiff opposes defendant’s motion arguing that General Obligations Law §5-326 renders the waiver and release that she signed void. She points out that defendant is attempting to circumvent this law by asserting that the activity in which plaintiff was involved was instructional as opposed to recreational and misstates her testimony in an attempt to mislead the court. Plaintiff contends that such behavior should be sanctioned. In support of her position [*7] that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work. (Page 62, lines 5-13). She further points to the following testimony:
Q: In September of 2011 when you went there on the date in question what was your purpose of being there?
A: I went there with a handful of kids who are on my climbing team, but it wasn’t a specific training day. Usually when we go it would be for training but this was just like a fun day. I was going to climb with them.
Q: And were they climbing around you.
A: Yeah, they were.(page 29, lines 14-25).
Q: And were you supervising them?
A: I wasn’t their active supervisor. I’m a coach though so I’m always watching what they do. But this was one of the few times that I was actually going to be climbing so it was kind of a treat for them I guess to be able to climb with me.
[**7] Q: Were they watching you?
A: A few of them were watching me yeah.
Q: And were [*8] you teaching them, you know, what to do and what not to do?
A: I wasn’t teaching them, but if they had a question they would ask me hey, should I do this or do this or what do you think of this move I always give advice (page 30, lines 2-17).
Plaintiff also contends that defendant incorrectly argues that GOL §5-326 does not apply because she cannot be classified a user since she did not pay to climb that day. In this regard, plaintiff contends that she is indeed a user and the law is applicable because there was a reciprocal agreement between the gym at which she was employed and Brooklyn Boulders pursuant to which employees were not required to pay a fee to use either gym. Thus, she contends the value of the reciprocity agreement is the compensation.
Next, plaintiff argues that the assumption of risk doctrine is not applicable where the risk was un-assumed, concealed or unreasonably increased. Plaintiff argues that the question of whether the gap in the mats at Brooklyn Boulders is a commonly appreciated risk inherent in the nature of rock climbing necessitates denial of the summary judgment motion. She claims that she did not assume the risk that there would be a gap in the matting that was in [*9] place as protection from a fall. Moreover, plaintiff maintains that defendant fails to proffer any evidence demonstrating when the mats were last inspected prior to plaintiff’s accident.
Plaintiff argues that issues as to whether dangerous or defective conditions exist on property and whether the condition is foreseeable can only be answered by a jury. Thus, she [**8] contends that whether the condition of the mats was dangerous and/or defective is an issue of fact and that defendant has failed to proffer any evidence that the mats were in a reasonably safe condition.
Finally, plaintiff opposes defendant’s request to amend its answer to add the affirmative defense of waiver. Plaintiff argues that the existence of the waiver was known and that it is disingenuous at best to assert otherwise. Plaintiff contends that this request, post note of issue, is highly prejudicial to plaintiff.
In reply, defendant argues that plaintiff’s demand for sanctions lacks merit and that plaintiff’s testimony establishes that she was in fact, instructing her students when her accident occurred. Defendant contends that the waiver applies. Next defendant claims that as far as inspection of its equipment it had a [*10] route setting department that checked its walls and mats and that bouldering climbers were responsible for enuring their own safety when climbing. Finally, defendant argues that the assumption of risk doctrine applies and that plaintiff visually inspected the area before the accident and that the Velcro covers were visible and moreover, she had the option to use additional mats underneath her while climbing. Defendant further contends that the mats did not constitute a dangerous condition. Finally, Brooklyn Boulders reiterates its request for leave to amend its answer to assert the affirmative defense.
[**9] Discussion
Leave to Amend
Generally, in the absence of prejudice or surprise to the opposing party, leave to amend pleadings should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (Yong Soon Oh v Hua Jin, 124 AD3d 639, 640, 1 N.Y.S.3d 307 [2015]; see Jones v LeFrance Leasing Ltd. Partnership, 127 AD3d 819, 821, 7 N.Y.S.3d 352 [2015]; Rodgers v New York City Tr. Auth., 109 AD3d 535, 537, 970 N.Y.S.2d 572 [2013]; Schwartz v Sayah, 83 AD3d 926, 926, 920 N.Y.S.2d 714 [2011]). A motion for leave to amend is committed to the broad discretion of the court (see Ravnikar v Skyline Credit-Ride, Inc., 79 AD3d 1118, 1119, 913 N.Y.S.2d 339 [2010]). However, where amendment is sought after the pleader has filed a note of issue, “a trial court’s discretion to grant a motion to amend should be exercised with caution” (Harris v Jim’s Proclean Serv., Inc., 34 AD3d 1009,1010, 825 N.Y.S.2d 291 [3d Dept 2006]).
Here, while the court is not satisfied with counsel’s explanation that he was unaware of the [*11] existence of the release and waiver signed by plaintiff at the time that the original answer was served, the court notes that plaintiff was questioned about the release and waiver during her May 6, 2014 deposition so the court finds that there is no surprise of prejudice in allowing defendant leave to serve its amended answer and assert the affirmative defense of release and waiver. Accordingly, that branch of defendant’s motion seeking leave to amend its answer to the complaint to include this affirmative defense is granted.
[**10] General Obligations Law §5-326
GOL §5-326 states that:
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall [*12] be deemed to be void as against public policy and wholly unenforceable.
Such contracts or agreements are void as against public policy unless the entity can show that its facility is used for instructional purposes as opposed to recreational purposes. “The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F.Supp.2d 92, 99 [1998]; McDuffie v Watkins Glen Int’l, 833 F. Supp. 197, 202 [1993] ). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411, 743 N.Y.S.2d 539 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463, 643 N.Y.S.2d 668 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370, 618 N.Y.S.2d 428 [1994] ), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145, 484 N.Y.S.2d 719 [1985] ), have been found to be outside the scope of the statute. “In assessing whether a facility is instructional or recreational, courts have [**11] examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility” (Lemoine v Cornell Univ., 2 AD3d 1017, 1019, 769 N.Y.S.2d 313 [2003], lv denied 2 NY3d 701, 810 N.E.2d 912, 778 N.Y.S.2d 459 [2004]). In cases involving a mixed use facility, courts have focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Id. At 1019; see Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, 32 F Supp 2d at 99). Where [*13] a facility “promotes . . . a recreational pursuit, to which instruction is provided as an ancillary service,” General Obligations Law § 5-326 applies even if the injury occurs while receiving instruction (Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 249, 835 N.Y.S.2d 170 [2007]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175, 710 N.Y.S.2d 54 [2000]).
Here, defendant asserts that GOL §5-326 is not applicable because plaintiff was at Brooklyn Boulders to instruct her team members. The court disagrees. Plaintiff’s testimony establishes that she was at Brooklyn Boulders with her team for a day of fun and not to teach them how to climb. Her testimony that she would give advice to the students if they asked does not rise to the level of providing rock climbing instruction on that day. Moreover, the court notes that the cases invloving the exemption for instrctional activities generally involve the person being instructed sustaining an injury and not the person who was providing the instruction. In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, [**12] where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of [*14] their employment and thus could be considered compensation. Accordingly, the court finds that the release and waiver signed by plaintiff is void pursuant to GOL §5-326.
Assumption of Risk
The assumption of the risk defense is based on the proposition that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; Paone v County of Suffolk, 251 AD2d 563, 674 N.Y.S.2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Rosenbaum v Bayis Ne’Emon Inc., 32 AD3d 534, 820 N.Y.S.2d 326 [2d Dept 2006]; Colucci v Nansen Park, Inc., 226 AD2d 336, 640 N.Y.S.2d 578 [2d Dept 1996]). A plaintiff is deemed to have given consent limiting the duty of the defendant who is the proprietor of the sporting facility “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]). Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City of New York, 29 AD3d 649, 816 N.Y.S.2d 499 [2d Dept 2006]; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 N.Y.S.2d 663 [2d Dept 1992]). It is well settled that “awareness of [**13] risk is not to be determined in a vacuum. It is, rather, to [*15] be assessed against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]; see also Benitez v New York City Bd. of Educ., 73 NY2d 650, 657-658, 541 N.E.2d 29, 543 N.Y.S.2d 29 [1989]; Turcotte v Fell, 68 NY2d 432, 440, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]; Latimer v City of New York, 118 AD3d 420, 421, 987 N.Y.S.2d 58 [2014]). When applicable, the assumption of risk doctrine “is not an absolute defense but a measure of the defendant’s duty of care” (Turcotte v Fell, 68 NY2d at 439). Thus, “a gym or athletic facility cannot evade responsibility for negligent behavior ‘by invoking a generalized assumption of risk doctrine as though it was some sort of amulet that confers automatic immunity’ (Jafri v Equinox Holdings, Inc., 2014 N.Y. Misc. LEXIS 5330, 4-5 [Sup. Ct, New York County quoting Mellon v Crunch & At Crunch Acquisition, LLC, 32 Misc 3d 1214[A], 934 N.Y.S.2d 35, 2011 NY Slip Op 51289[U] [Sup Ct, Kings County 2011]; Livshitz v United States Tennis Assn. Natl. Tennis Ctr., 196 Misc 2d 460, 466, 761 N.Y.S.2d 825 [Sup Ct, Queens County 2003]).
Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’ (Morgan, 90 NY2d at 485. quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970, 591 N.E.2d 1184, 582 N.Y.S.2d 998 [1992]; Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 134 AD3d 887, 889, 22 N.Y.S.3d 467 [2d Dept 2015]; Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d 675, 678, 961 N.Y.S.2d 178 [2d Dept 2013]). Participants, however, do not assume risks which have been unreasonably increased or [**14] concealed over and above the usual dangers inherent in the activity (see Morgan, 90 NY2d at 485; Benitez, 73 NY2d at 657-658; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113 [2002]).
In this regard, the court finds that plaintiff has raised a question of fact regarding whether the condition of the mats, with the Velcro connection, increased the risk in the danger [*16] of the activity and caused a concealed dangerous condition. Thus it cannot be said that plaintiff assumed the particular risk that was present and caused her injuries.
Based upon the foregoing, that branch of Brooklyn Boulders motion seeking summary judgment dismissing plaintiff’s complaint is denied.
The foregoing constitutes the decision and order of the court.
ENTER,
/s/ Mark I Partnow
J. S. C.
HON. MARK I PARTNOW
SUPREME COURT JUSTICE
Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
Posted: January 4, 2016 Filed under: Assumption of the Risk, Climbing Wall, Pennsylvania | Tags: assumption of the risk, Belaying, Bouldering, Bouldering Mats, Climbing Wall, Gross negligence, Mats, Philly Rock Corp. Leave a commentRelease blocked the claims for negligence; however, the gross negligence claims relied on assumption of the risk as a defense. The release helped prove the plaintiff assumed the risk, but I suspect that defense would only work in a bouldering case like this.
Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767
State: Pennsylvania: Superior Court of Pennsylvania
Plaintiff: Rebecca Mcgarry
Defendant: Philly Rock Corp
Plaintiff Claims: gross negligence in that the defendant
Defendant Defenses: Assumption of the Risk
Holding: For the Defendant
Year: 2015
The plaintiff and her husband wanted to try something new, so they went to the defendant indoor climbing facility. The plaintiff signed the release and took a class in belaying and use of the belay equipment.
Around the facility were numerous signs warning of the risks of the activity: bathrooms, reception desk, and pillars in the building. There was also a sign about mat placement that the plaintiff remembered and drew correctly during her depositions.
On their second visit, the plaintiff tried bouldering. The bouldering area had mats; however, the mats were moveable and were supposed to be moved by the people bouldering. The plaintiff was approximately four feet of the ground when she jumped off. She did not move the mats prior to bouldering and did not look for the mats when she jumped. She shattered her ankle, which required three surgeries.
The plaintiff sued, and the case went to trial on the issue of the gross negligence of the defendant. The release precluded all the negligence claims of the plaintiff. As in most states (if not all) a release is not valid for gross negligence claims. “Because McGarry signed a waiver, no one in this case disputes that McGarry was required to prove that PRC was grossly negligent to recover.”
The jury awarded the plaintiff $150,000 for her gross negligence claims. The defendants filed a motion for Judgment Notwithstanding the Verdict (JNOV). This motion, JNOV, requests the judge to overrule the jury and grant the defendant’s motion for dismissal. The judge did and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The plaintiff appealed claiming the trial court made four errors of the law. The first two were based on the procedural issues associated with the JNOV. The third was whether the trial court correctly applied the assumption of the risk doctrine, and the final issue was whether the court properly denied the introduction of evidence that the defendant’s employees had not been trained properly.
The court started by defining gross negligence as per Pennsylvania law.
Gross negligence has . . . been termed the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others. Additionally, gross negligence has been described as an extreme departure from ordinary care or the want of even scant care [and] . . . as [a] lack of slight diligence or care, and [a] conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party . . . .
[G]ross negligence is clearly more egregious than ordinary negligence.
Under Pennsylvania law, if the plaintiff assumed the risk which caused her injury, then the defendant does not owe the plaintiff any further duty. The trial court found the plaintiff had assumed the risk based on the following:
McGarry knew that there was a risk in bouldering, knew she could be injured from a height of four feet, knew she was jumping from the wall without looking for the mats, and jumped anyway. The trial court also found that, because the dangers were obvious, PRC reasonably could expect that McGarry would take steps to protect herself, precluding a finding that PRC was grossly negligent.
The plaintiff countered by staging she could only assume the risks she understood. Since there was no written safety material, and she had not been trained in how to use the mats or a spotter, she could not assume the risk.
McGarry first notes that assumption of risk is subjective and that McGarry only could assume a risk that she understood. McGarry argues that, because there were no written safety materials, McGarry did not know how to position the mats or how to use a spotter to avoid injury.
The court looked at the assumption of risk doctrine. As in most (if not all) states assumption of the risk as a defense was merged into comparative negligence. However, in Pennsylvania the Supreme Court had not eliminated assumption of the risk as a defense, it was now only in disfavor.
In Pennsylvania, the doctrine of assumption of the risk is defined as:
[A]ssumption of risk is established as a matter of law only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Mere contributory negligence does not establish assumption of risk. Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff’s injuries. In order to prevail on assumption of risk, the defendant must establish both the “awareness of the risk” prong and the “voluntariness” prong.
Assumption of the risk eliminates a duty from the defendant.
If the case is viewed from the perspective of a duty analysis, the evidence presented at trial establishes that [the plaintiff] voluntarily encountered a known risk, thereby obviating any duty which might otherwise have been owed him by [the defendant]. Under this analysis, the case is controlled by the assumption of risk principle that one who voluntarily undertakes a known risk thereby releases the defendant from any duty of care.
The court quoted another Pennsylvania decision to explain what elimination of the duty from the defendant meant.
Similarly, “[w]hen an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpoint to the possessor’s lack of duty to protect the invitee from those risks.”
The court then applied those definitions to the present case. The first analysis was whether the dangers were open and obvious. (Jumping from four feet high I believe is obvious to everyone in the world) The court found the dangers had been pointed out to the plaintiff.
Multiple signs throughout the facility warned that climbing and bouldering are dangerous and may result in serious injury. Additionally, the danger of these activities “is well understood by virtually all individuals of adult age.” Falling and causing a injury to an ankle or wrist is a “common, frequent, and expected” risk of climbing or bouldering.
The plaintiff had also admitted during her deposition that she knew of the risks.
Further, McGarry knew of and appreciated the risk. McGarry testified that she knew there were risks in bouldering and that she knew she could be injured when jumping even from a height of four feet. McGarry saw the sign stressing the importance of mat placement and drew it from memory much later at her deposition. Despite knowing that mats and their placement were important, McGarry nonetheless did not look before she jumped and landed in the wrong place.
The court also found that the fact the plaintiff had signed a release; she knew she was responsible for her injuries.
McGarry also acknowledged that she signed a waiver, which she understood meant that she was responsible for any injuries. She then voluntarily proceeded with the activity despite her appreciation of that risk.
The court then went back to the testimony to sum the assumption of the risk defense and why it agreed with the trial court. “However, McGarry’s own testimony compels the trial court’s finding that she assumed the risk, which, as a matter of law, precludes a verdict in her favor.”
The next issue was the application of the assumption of the risk defense to a claim of gross negligence. Because assumption of the risk removed the necessary duty from the defendant, there could be no gross negligence. In Pennsylvania once the plaintiff assumes the risk the defendant has no further duty to the plaintiff, with respect to the duty the plaintiff is assuming.
…we conclude that McGarry’s assumption of the risk barred her recovery regardless of whether PRC was grossly negligent. Because the evidence supported the trial court’s conclusion that McGarry as-sumed the risk of injury, PRC owed no duty to McGarry and, therefore, was not legally responsible for her injury.
If there is no duty, there is no negligence. To prove negligence, the plaintiff must prove there was a duty, a breach of that duty, an injury proximately caused by the breach and damages. Failing to prove all four points and the plaintiff does not prove her case. If the case is not proved, then the defense has no need to present any defenses because there was no negligence.
The final issue the court reviewed was the plaintiffs claim the employees were not sufficiently trained.
Finally, McGarry complains that the trial court erred in precluding her from introducing evidence regarding whether PRC’s employees were trained or qualified. McGarry argues that this evidence was relevant and should have been presented to the jury.
The court found this was not at issue. Because the plaintiff did not receive instruction on bouldering from an employee of the defendant, the training and qualifications were immaterial.
Because McGarry did not receive instruction from PRC employees, the trial court reasoned that if PRC was obligated to provide instruction to clients as part of its duty, PRC would be negligent regardless of whether it’s the employees were adequately trained. If PRC was not obligated to provide instruction to clients, then PRC would not be negligent regardless of employee training.
The defendant did not have a required bouldering class and told the plaintiff to ask questions which the plaintiff did not do. However, because her complaint did not involve the training, she received or how her questions were answered, the training and qualifications of the defendant employees did not matter.
The appellate court agreed with the trial court and upheld the dismissal of the case.
So Now What?
First, this is another example where the risks of the activity should be included in your release. Here the court found the release proved the plaintiff had assumed the risk of her injury.
The next issue is the training issue. This issue seemed to have been developed by the plaintiff’s expert witness. Besides training he stated the defendant was below the standard of the industry in the following ways.
Mr. Andres testified that some of the safety signs were placed where they were unlikely to be noticed. Some of the signs warned about possible dangers, but gave no instructions about how to avoid those risks. Mr. Andres testified that belaying and bouldering are different and that, in bouldering, mat placement, the use and limitations of mats, and how to control one’s descent are important. Mr. Andres opined that it was insufficient to have signs instructing clients to ask an employee about climbing or safety because novice climbers may not know what to ask in order to participate safely.
You will see experts making many, and in a few case’s extremely absurd claims to assist the plaintiff in making his or her claim. Signs that warned but did not instruct which the plaintiff ignored anyway mat placement and controlling your descent when falling was argued by the plaintiff’s expert.
I think mat placement is pretty obvious. You put the mats where you think you may land. As far as controlling your descent, I’m lost. I’ve tried a lot of things when falling, clawing the air, kicking madly, flapping my arms and screaming may make me feel better at the time but did nothing to “control my descent.”
I go back to education on this type of claim again. The more you educate your client the less likely they might get hurt and the less likely they can sue. The problem always is. How do you educate a client and then who do you prove you educated them.
In my opinion, that is where the business website comes in. The more information and videos you can put on the website the better. When you post these videos be real. Post the right way and the wrong way, show the risks and show people being stupid. Just make sure you point out when someone is doing something wrong that you make sure that is indicated on the video.
You can then require people to watch the videos before starting the activity, or you can have them acknowledge in the release, they have watched the videos. You can also tell them in your marketing or communications to watch the videos to learn more about climbing or whatever the activity is.
This case was decided in October of 2015. I believe the time to appeal is only thirty (30) days, and it does not appear that an appeal has been filed in this case. However, until a longer period of time has run, this case might be appealed and possibly over turned by the Pennsylvania Supreme Court.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2015 Recreation Law (720) Edit Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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