Plaintiff in a ropes course injury (Nitro Swing) fails because she assumed the risk

It is wonderful when the court looks at the facts and says plainly, no way you are going to win a case because this is a stupid claim, and your expert is clueless.

Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

State: New York, Supreme Court of New York, Appellate Division, First Department

Plaintiff: Kathleen Sajkowski et al

Defendant: Young Men’s Christian Association of Greater New York

Plaintiff Claims: negligent in failing to place shock absorbing material such as wood chips below the Nitro Crossing

Defendant Defenses: Assumption of the Risk

Holding: For the defendant

Year: 2000

This case is written so clearly that most of this article will be quotes from the opinion.

The plaintiff participated in a Wellness for Life weekend put on by the defendant YMCA. One of the activities was a Nitro Swing. The court described the Nitro Swing as:

This event involved nothing more than swinging from a rope. The rope dangled just about 1 1/2 feet from the ground in the center of an imaginary pit that was actually flat, bare dirt.  Those who chose to participate in the Nitro Crossing would start out by standing on a log that was lying at ground level. Then, holding on to the rope, they would swing approximately five to seven feet to another log that was also lying at ground level.

Don’t you just love the first sentence! “This event involved nothing more than swinging from a rope.” It distilled the essence of the lawsuit and removed the marketing and hyperbole that clouds life and litigation now days.

While waiting for her turn the plaintiff saw several other participants lose their grip on the rope and fall. When she tried the Nitro Swing she also lost her grip on the rope and fell injuring her ankle.

The plaintiff sued. The trial court dismissed her lawsuit based on assumption of the risk, and the plaintiff appealed the decision.

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

The court said the plaintiff assumed the risk.

…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 encompasses those risks that are associated with the construction of the playing field and any open and obvious defects on it. Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks. Furthermore, where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant

Then the court states in very plain English:

It is also incontrovertible that the risks involved were not concealed and that plaintiff fully comprehended them since she had seen several other participants fall just moments earlier.  Moreover, to the extent that the Nitro Crossing failed to have shock absorbing material beneath it, this was nothing more than an open and obvious condition of the playing surface, which, as noted, is not actionable….

The plaintiff, then through the opinion of her expert witness tried to convince the court that the defendant should have padded the ground beneath the swing. The court did not really appreciate her expert’s opinion.

Plaintiff attempts to avoid the foregoing analysis by establishing that the Nitro Crossing was constructed or operated in violation of prevailing industry standards.  Specifically, it is alleged that shock absorbing material beneath the Nitro Crossing was required, as well as proper training for plaintiff with regard to her participation in the activity.

The reason was the expert used by the plaintiff dug up standards for gymnastics for children under 12.

In seeking to demonstrate such violations, plaintiff submitted expert evidence that analogized the Nitro Crossing to a gymnastics event and pointed to the requirements for construction of playgrounds built for children under 12 years of age.

Then the court sort of slams the case closed.

She was only swinging from a rope with her body suspended just barely off the ground.  The instructions for such an activity are simple and straightforward–hold the rope and swing. Similarly incongruous was plaintiff’s reliance on standards for the proper construction of playgrounds built for children under 12 years of age. The Nitro Crossing, after all, was not part of a children’s playground.

As much as appellate courts are allowed to, the above paragraph is pretty much an “up yours” in legalese.

So Now What?

Sure, Always Use a Release, but in this case for this particular event, it did not matter.

This is a situation where no matter how stupid the claim or how valid the defenses; the plaintiff still gave rolled the dice hoping for a very sympathetic judge or an easy settlement. The defendant and their insurance company, thankfully, stood up to the stupid claims and fought them; probably to a greater cost than any settlement.

Even in outdoor recreation, you get bad lawsuits. Thankfully, this one was fought all the way rather than settled.

What do you think? Leave a comment.

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Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

Kathleen Sajkowski et al., Appellants, v. Young Men’s Christian Association of Greater New York, Respondent.

2180

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

February 1, 2000, Decided

February 1, 2000, Entered

COUNSEL: [***1] For Plaintiffs-Appellants: Charles H. Dobkin.

For Defendant-Respondent: Laura Getreu.

JUDGES: Concur–Nardelli, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.

OPINION

[*105] [**66] Order, Supreme Court, New York County (Lorraine Miller, J.), entered July 20, 1998, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The Young Men’s Christian Association of Greater New York (YMCA) sponsored a “Wellness for Life” weekend program for adults who wished to engage in exercise and outdoor activities. Among the activities [**67] that were offered at the program was an obstacle course that included an event called the Nitro Crossing. This event involved nothing more than swinging from a rope. The rope dangled just about 1 1/2 feet from the ground in the center of an imaginary pit that was actually flat, bare dirt. Those who chose to participate in the Nitro Crossing would start out by standing on a log that was lying at ground level. Then, holding on to the rope, they would swing approximately five to seven feet to another log that was also lying at ground level.

Plaintiff, Kathleen Sajkowski, an attendee [***2] at the weekend program, stood in line with several other participants and waited for her turn to swing on the rope. While she was waiting, she observed that several participants lost their grip and fell while swinging. When her turn came, she grasped the rope and began to swing. Approximately at the midway point of the imaginary pit, plaintiff lost her grip and fell, injuring her ankle. Plaintiff, alleging, inter alia, that defendant YMCA was negligent in failing to place shock absorbing material such as wood chips below the Nitro Crossing, commenced this action. No claim was made that the rope broke or was otherwise defective. Thereafter, defendant moved for summary judgment dismissing the complaint, asserting that plaintiff assumed the risk of participating in this activity. We conclude that the assumption of risk doctrine is applicable to plaintiff’s injury.

In Morgan v State of New York (90 NY2d 471, 484), the Court of Appeals reaffirmed the principle that, [HN1] “by engaging in a [*106] sport or recreational activity, a participant consents to those commonly [***3] appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” This encompasses those risks that are associated with the construction of the playing field and any open and obvious defects on it ( Maddox v City of New York, 66 NY2d 270, 277). Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks ( Morgan v State of New York, supra; see also, Turcotte v Fell, 68 NY2d 432, 439). Furthermore, where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant ( Simoneau v State of New York, 248 AD2d 865).

In considering plaintiff’s injury, it is apparent that the risk of falling while swinging from a rope is inherent in participation in such an activity (cf., Hofflich v Mendell, 235 AD2d 784; compare, Roska v Town of Cheektowaga, 251 AD2d 984). It is also incontrovertible that the risks involved were not concealed and that plaintiff fully comprehended them since she had seen several [***4] other participants fall just moments earlier. Moreover, to the extent that the Nitro Crossing failed to have shock absorbing material beneath it, this was nothing more than an open and obvious condition of the playing surface, which, as noted, is not actionable ( Maddox v City of New York, supra; see also, Sheridan v City of New York, 261 AD2d 528; Paone v County of Suffolk, 251 AD2d 563; Brown v City of New York, 251 AD2d 361; compare, Warren v Town of Hempstead, 246 AD2d 536 [defect concealed]; Cronson v Town of N. Hempstead, 245 AD2d 331).

Plaintiff attempts to avoid the foregoing analysis by establishing that the Nitro Crossing was constructed or operated in violation of prevailing industry standards. Specifically, it is alleged that shock absorbing material beneath the Nitro Crossing was required, as well as proper training for plaintiff with regard to her participation in the activity. These violations, it is asserted, exposed plaintiff to unreasonably enhanced risks, which she cannot be deemed to have assumed (see, Morgan v State of New York, supra, at 485; [***5] [**68] see also, Greenburg v Peekskill City School Dist., 255 AD2d 487; Clark v State of New York, 245 AD2d 413; Stackwick v Young Men’s Christian Assn., 242 AD2d 878). In seeking to demonstrate such violations, plaintiff submitted expert evidence that analogized the Nitro Crossing to a gymnastics event and pointed to the requirements for construction of playgrounds built for children under 12 years of age.

[*107] What becomes apparent is that the comparison of the Nitro Crossing to a gymnastics event is incongruous. * Simply stated, plaintiff was not dismounting from uneven bars, or doing a tumbling routine during a floor exercise–activities completely different in degree, complexity, and danger from the activity at issue here. Nor was she engaged in an activity that required any specialized kind of training, instruction, or skill. She was only swinging from a rope with her body suspended just barely off the ground. The instructions for such an activity are simple and straightforward–hold the rope and swing. Similarly incongruous was plaintiff’s reliance on standards for the proper construction of playgrounds built [***6] for children under 12 years of age. The Nitro Crossing, after all, was not part of a children’s playground.

* For the same reasons plaintiff’s claim that defendant should have provided a spotter is without merit. Moreover, since plaintiff immediately fell to the ground when she lost her grip on the rope, the presence of a spotter would not have prevented this accident.

We also note that the balance of the expert evidence failed to demonstrate that defendant violated any prevailing standards in constructing the Nitro Crossing (see, Simoneau v State of New York, supra; cf., Greenburg v Peekskill City School Dist., supra; Clark v State of New York, supra; Stackwick v Young Men’s Christian Assn., supra).

In view of the foregoing, Supreme Court properly granted defendant’s motion and dismissed the complaint.

Concur–Nardelli, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.