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A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.

The defendant one because the court was able to interpret the risk as one that was inherent in skiing. The defendant also, laid out the risks of skiing quite broadly in its information to the plaintiff.

Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344

State: Pennsylvania, Common Pleas Court of Adams County, Pennsylvania

Plaintiff: Timothy Joseph Cahill and Anne Leslie Cahill

Defendant: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.

Plaintiff Claims: negligent for failing to properly maintain its ski slopes in a safe manner and/or failing to adequately warn concerning an icy area

Defendant Defenses: Assumption of the Risk and Release

Holding:

Year: 2006

Summary

Plaintiff was injured when he skied over an icy spot and fell at the defendant’s ski area. However, this case was quickly dismissed because he had signed a release and the risk of ice at a ski area was an inherent risk of the Pennsylvania Skier Safety Act.

Facts

The plaintiff purchased a season pass to ski at the defendant’s ski area. He purchased his season pass on-line and signed a release at that time, online. When he went to pick up his season pass, he signed another written release. (See Too many contracts can void each other out; two releases signed at different times can render both release’s void.)

While skiing one day the plaintiff fell on an icy section. He claimed he was unaware of the ice. He severely injured is face, back, ribs and left hand. He sued the defendants for his injuries.

The defendant filed a Motion for Judgment on the Pleadings. A Motion for Judgment on the Pleadings is an argument that the pleadings do not make a legal case to continue the litigation.

A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.

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

The court looked at Pennsylvania law. Like most states in Pennsylvania “exculpatory agreements, or releases, are valid provided, they comply with the safeguards enunciated by our Superior Court.”

Under Pennsylvania law, a release to be valid must:

The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.

The court then went through the facts in this case to see if the requirements under the law were met.

The plaintiff was not forced to sign the release but did so freely. The release was signed based on a personal choice of the plaintiff to ski at the defendant’s facilities. “Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity.”

The release does not violate public policy because the agreement was private in nature and “in no way affect the rights of the public.”

The court found the release was unambiguous. The release spelled out the intent of the parties and gave notice to the plaintiff of what he was signing.

The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, releases Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.

The plaintiff had ample opportunity to read and review the release before paying for it. The court found the release was clear and spelled out in detail in plain language the intent of the parties.

The plaintiff argued the icy condition was a hazardous condition created by the defendant and is not an inherent risk of the sport of skiing. Because the condition was hazardous, the plaintiff argued you could not assume the risk of the icy area, and the release should be void.

The court found that icy conditions were an inherent risk of skiing in Pennsylvania.

Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.

The court upheld the release and granted the defendants motion for judgment on the pleadings. This effectively ended the lawsuit.

So Now What?

It is rare that a Judgment on the Pleadings works, normally; the plaintiff can make an argument that the court finds requires more investigation, so the case can continue.

Here though, the release was well-written and the plaintiff’s argument was thrown out as a risk covered in the Pennsylvania Skier Safety Act.

In this case, the plaintiff was dealt a double blow, with only one being necessary for the defendant to win. He signed a valid release and the risk he undertook was an inherent risk of skiing in Pennsylvania.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

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Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing.

The terrain off of the trail was different than normally found at a ski area. A 3-4 drop off into a pile of rocks. However, the risk is skiing off the trail, not what you run into when you do.

Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Quan Vu and May Siew

Defendant: Ski Liberty Operating Corp., et. al.

Plaintiff Claims: Negligence and Loss of Consortium

Defendant Defenses: Release

Holding: For the defendant

Year: 2018

Summary

The definition of an inherent risk when skiing is not what causes the injury, only the risk that led to the injury. Under Pennsylvania law, there is a broad definition of inherent risks and this case was dismissed because the plaintiff assumed those inherent risks, and the defendant did not owe a duty to protect him from those risks.

Facts

The plaintiff was an experienced skier, who had been skiing for twenty years. He was skiing behind his daughter at the defendant’s ski area. A snowboarder came close to the plaintiff or hit the plaintiff sending or causing him to ski off the trail. He went off the trail, over a 3-4 drop and landed in a pile of rocks.

…Mr. Vu does not recall much detail about his accident. Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. The last thing that Mr. Vu remembered was skiing with his daughter.

He sued the defendant ski area because it was:

…negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition.

The court granted the defendants motion for summary judgment.

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

The decision was based on the Pennsylvania Skier’s Responsibility Act. The court had to decide if the risks encountered by the plaintiff were inherent risks of skiing.

The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing. As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.”

If there is no duty, then there can be no negligence.

Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.

Pennsylvania has a two-part test to determine if the defendant owed the plaintiff a duty.

First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of down-hill skiing.” If so, then summary judgment must be awarded against the plaintiff as a matter of law.

The first test was met; the plaintiff was skiing at the time of his accident.

The court then had to determine if the risks the plaintiff encountered were inherent to skiing. Under Pennsylvania law, inherent risks “are those that are “common, frequent, and expected” in downhill skiing.”

The plaintiff argued that because the plaintiff was no specifically aware of the risk of the 3-4-foot drop off and the pile of rocks, he could not assume the risk.

Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply.

In many cases, assumption of the risk would not be a defense if the injured plaintiff had no specific knowledge of the risk. However, it was not the case here under the statute. It did not matter if the Plaintiff had specific knowledge of the risk or a general knowledge of the risks of skiing, he assumed those risks.

The court then looked at the facts and found there were two circumstances that gave rise to the plaintiff’s injuries, veering to avoid a collision and skiing over the drop off.

The first is an inherent risk of skiing in Pennsylvania.

We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with an-other skier is one of the common, frequent and expected risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.

The next issue was whether skiing over the drop off into a pile of rocks was an inherent risk of skiing. Here again, the court found skiing off the trail, no matter what you may encounter once you are off the trail, is an inherent risk of skiing. The court backed its point up quite interestingly.

We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis.

The court found the defendant did not owe the plaintiff a duty because he assumed the risks of his injury under the Pennsylvania Skier’s Responsibility Act.

So Now What?

Actually, an easy case. Easy under Pennsylvania law because of the Pennsylvania Supreme Courts interpretation of the Pennsylvania Skier’s Responsibility Act. When skiing in Pennsylvania collisions with other skiers or boarders are an inherent risk of skiing and skiing off the trail is also.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

     

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

Quan Vu and May Siew, Plaintiffs, v. Ski Liberty Operating Corp., et. al., Defendants,

1:16-cv-2170

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2018 U.S. Dist. LEXIS 49013

March 26, 2018, Decided

CORE TERMS: skiing, trail, edge, downhill, ski, skier, snowboarder, sport, inherent risk, slope, collision, rocks, summary judgment, drop-off, att, daughter, skied, snow, pile, foot, lift ticket, knee-jerk, genuine, resort, Skier’s Responsibility Act, matter of law, specific risk, experienced, elevation, veering

COUNSEL: [*1] For Quan VU, May Siew, Plaintiffs: D. Aaron Rihn, Mark D. Troyan, LEAD ATTORNEYS, Robert Peirce & Associates, P.C., Pittsburgh, PA USA.

For Ski Liberty Operating Corp. doing business as Liberty Mountain Resort, Defendant: Anthony W. Hinkle, Snow Time, Inc., Cipriani & Werner, P.C., Philadelphia, PA, USA.

For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Plaintiffs: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.

For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Defendants: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.

JUDGES: Hon. John E. Jones III, United States District Judge.

OPINION BY: John E. Jones III

OPINION

MEMORANDUM

Plaintiffs are Quan Vu and his wife, May Siew. (“Plaintiffs”). Defendants are Ski Liberty Operating Corp. and Snow Time, Inc., operating as Liberty Mountain Resort. (“Defendants”). This action arises out of a skiing accident at Liberty Mountain that left Mr. Vu severely injured. The complaint brings one count of negligence on behalf of Mr. Vu and one count of loss of consortium on behalf of Mrs. Siew, both alleging that the accident was caused by the Defendants’ negligence in maintaining the ski slope and failing to warn Mr. Vu of [*2] the slope’s hazardous condition. (Doc. 1). Presently pending before the Court is the Defendants’ motion for summary judgment. (the “Motion”) (Doc. 36). The Motion has been fully briefed and is therefore ripe for our review. (Docs. 38, 42, 43). For the reasons that follow, the Motion shall be granted.

I. BACKGROUND

On January 23, 2015, Mr. Vu was downhill skiing with his daughter at Liberty Mountain. (Doc. 41, ¶ 24). Mr. Vu was following his daughter from behind as they skied down the Lover Heavenly trail, a blue square intermediate hill, when he had his accident. (Id. at ¶¶ 24-25). Due to his injuries, Mr. Vu does not recall much detail about his accident. (Doc. 37, ¶ 11). Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” (Doc. 37, att. 1, pp. 65-66). However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. (Id. at pp. 65-66). The last thing that Mr. Vu remembered [*3] was skiing with his daughter. (Id. at p. 66).

Mr. Vu’s daughter testified: “I saw someone get really close to him and he was trying to avoid them and it was either ramming into him, the snowboarder, or person who was trying to get really close to him, or veering off path.” (Doc. 42, att. 2, p. 8). “He — there was someone trying to kind of get really close to him. And he didn’t want to ram into him. So he — I don’t really understand — know what happened. But he tried to avoid it. And there was like a big ditch or something there. And he tried to stop and tried to avoid the person who was trying to cut him off.” (Id.). “My dad was — the snowboarder was — my dad was kind of like the ham in the middle of a sandwich. Between the end of the trail, the edge of the trail and the snowboarder.” (Id. at p. 9). “I just felt that the snowboarder was getting quite close to my dad and I didn’t want a collision to happen or the snowboarder to ram into my dad.” (Id. at p. 10).

Ultimately, whether he did so intentionally or not, Mr. Vu skied off of the edge of the trail and suffered catastrophic injuries. There was a drop-off at the edge of the ski trail of about three to four feet. (Doc. 41, ¶ 32). Below that drop-off was a large pile [*4] of rocks. (Id. at ¶ 31). Mr. Vu skied off of the edge of the trail, off of the embankment, and landed on the pile of rocks. (Doc. 37, ¶ 11).

Mr. Vu was an experienced skier at the time of his accident. He had skied for over twenty years and was capable of skiing black diamond slopes. (Id. at P 6). Mr. Vu testified that he was familiar with the Skier’s Responsibility Code and understood that he was responsible for skiing in control and in such a manner that he could stop or avoid other skiers. (Id.). Mr. Vu also testified that he understood that skiing is a dangerous sport and that he could get hurt if he skied out of control or if he fell. (Id.).

On the day of his accident, Mr. Vu’s wife purchased his Liberty Mountain Resort Lift Ticket. (Id. at ¶ 18). The back of the lift ticket reads as follows:

PLEASE READ

Acceptance of this ticket constitutes a contract. The conditions of the contract are stated on this ticket & will prevent or restrict your ability to sue Liberty Mountain Resort. If you do not agree with these conditions, then do not use the facility. Snowsports in their various forms, including the use of lifts, are dangerous sports with inherent and other risks. These risks include but are [*5] not limited to: variations in snow, steepness & terrain, ice & icy conditions, moguls, rocks, trees & other forms of forest growth or debris (above or below the surface), bare spots, lift towers, utility lines & poles, fencing or lack of fencing, snowmaking & snowgrooming equipment & component parts, on-snow vehicles & other forms of natural or man-made obstacles, and terrain features on or off designated trails as well as collisions with equipment, obstacles or other snowsport participants. Trail conditions vary constantly because of weather changes and use. All the inherent and other risks involved present the risk of permanent catastrophic injury or death. In consideration of using Liberty’s facilities, the purchaser or user of this ticket agrees to accept the risks of snowsports and understands and agrees that they are hazardous and further agrees NOT TO SUE Ski Liberty Operating Corp., its owners or employees if injured while using the facilities regardless of any negligence, including gross negligence, on the part of the resort, and/or its employees or agents. The purchaser or user of this ticket voluntarily assumes the risk of injury while participating in the sport, and agrees [*6] to report all injuries before leaving the resort . . .

(Doc. 37, Ex. D) (emphasis in original). Though Mr. Vu was uncertain if he read the language on the lift ticket on the day of his accident, he testified that he had read it at some point prior to his accident. (Doc. 37, ¶ 20). At his deposition, Mr. Vu was asked to read portions of the lift ticket and he had trouble doing so because the font was too small. (Doc. 37, att. 1, p. 70).

Mr. Vu and his wife initiated this action with the filing of a complaint on October 27, 2016. (Doc. 1). Plaintiffs allege that Defendants were negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition. Defendants filed the instant motion for summary judgment on January 31, 2018. (Doc. 36).

I II. LEGAL STANDARD

Summary judgment is appropriate if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute [*7] is “genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a fact is “material” only if it might affect the outcome of the action under the governing law. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court should view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences therefrom, and should not evaluate credibility or weigh the evidence. See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

Initially, the moving party bears the burden of demonstrating the absence of a genuine dispute of material fact, and upon satisfaction of that burden, the non-movant must go beyond the pleadings, pointing to particular facts that evidence a genuine dispute for trial. See id. at 773 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). In advancing their positions, the parties must support their factual assertions by citing to specific parts of the record or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” FED. R. Civ. P. 56(c)(1).

A court should not grant summary judgment when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. See Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citing Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982)). Still, “the [*8] mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011) (quoting Anderson, 477 U.S. at 247-48) (internal quotation marks omitted).

III. DISCUSSION

Defendants move for summary judgment on two legal bases. First, Defendants argue that Plaintiffs’ claims are barred as a matter of law because Mr. Vu’s injuries were caused by an inherent risk of skiing. Second, Defendants argue that Plaintiffs’ claims are barred by the exculpatory release language contained on the Liberty Mountain lift ticket. Because we find that Mr. Vu’s injuries arose out of risks inherent to the sport of downhill skiing, we hold that Defendants are entitled to summary judgment as a matter of law without even considering the exculpatory release language of the lift ticket.

The material facts surrounding Mr. Vu’s accident are not in dispute. Though Mr. Vu and his daughter are unclear on the specifics, it is undisputed that Mr. Vu ended up skiing off of the trail, over a drop-off, and into a pile of rocks. (Doc. 37, ¶ 11). Mr. Vu testified that a snowboarder was getting too close to him and his “knee-jerk” reaction was to veer to avoid a collision, causing him [*9] to ski off of the trail and over the embankment. (Doc. 37, att. 1, pp. 65-66). Mr. Vu’s daughter also testified that her father’s accident occurred when he tried to avoid a collision with a snowboarder. (Doc. 42, att. 2, p. 8). While Defendants argumentatively refer to this person as the “phantom snowboarder” and question the credibility of the testimony, for purposes of this Motion we can take Plaintiffs’ facts as true and assume that Mr. Vu skied off of the trail, either intentionally or as a result of a knee-jerk reaction, to avoid colliding with a snowboarder. Even so, summary judgment must be granted in favor of the Defendants because Mr. Vu’s accident occurred as a result of inherent risks of downhill skiing.

The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing.” 42 Pa. C.S. § 7102(c). As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a [*10] place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2). “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.

In Hughes v. Seven Springs Farm, Inc., the Supreme Court of Pennsylvania established a two-part test for courts to use to determine whether a plaintiff’s claims are barred by the no duty rule of the Skier’s Responsibility Act. 762 A.2d 339, 343 (2000). “First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” Id. at 344. “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of downhill skiing.” Id. If so, then summary judgment must be awarded against the plaintiff as a matter of law. Id. In the case at-bar, there can be no dispute that Mr. Vu was engaged in the sport of downhill skiing at the time of his accident. The salient question, therefore, becomes whether veering off-trail and over a drop-off into a pile [*11] of rocks to avoid a collision with a snowboarder are inherent risks of downhill skiing. If those risks are inherent to skiing, then Defendants had no duty to protect Mr. Vu. Chepkevich, 2 A.3d at 1186. If those risks are not inherent, traditional principles of negligence apply and we must determine what duty the Defendants owed Mr. Vu, whether the Defendants breached that duty, and whether the breach caused Mr. Vu’s injuries.

We begin with a discussion of what it means for a risk to be “inherent.” The Hughes court explained that “inherent” risks are those that are “common, frequent, and expected” in downhill skiing. Id. In interpreting risks, the Supreme Court of Pennsylvania has instructed that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Chepkevich, 2 A.3d at 1187-88. “Accordingly, courts have rejected attempts by plaintiffs to define the injury producing risks in very a specific and narrow manner.” Cole v. Camelback Mountain Ski Resort, 2017 WL 4621786, at *4 (M.D. Pa. Oct. 16, 2017) (Mariani, J.). For example, the Supreme Court of Pennsylvania in Chepkevich rejected the plaintiff’s argument that she did not assume the “specific [*12] risk” involved, looking instead to the “general risk” that gave rise to the accident. 2 A.3d at 1188. A number of courts have addressed the scope of the Skier’s Responsibility Act and have concluded that some of the inherent risks of downhill skiing include: lack of netting, improper course plotting, or soft snow1; skiing off trail and striking a tree2; collisions with unpadded snow equipment poles3; striking a fence on the edge of the trail4; and collisions with other skiers or snowboarders.5

1 Bjorgung v. Whitetail Resort, L.P., 550 F.3d 263 (3d Cir. 2008).

2 Id.

3 Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983).

4 Cole, 2017 WL 4621786, at *5.

5 Hughes, 762 A.2d 339.

Before addressing the risks that Mr. Vu encountered, we must address Plaintiffs’ initial argument that the assumption of the risk doctrine is inapplicable. Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8) (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply. (Id. at pp. 9-13). For support of this argument, Plaintiffs cite several cases that are materially distinct from the case at-bar. First, Plaintiffs [*13] quote Barillari v. Ski Shawnee, Inc., “[i]t is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks.” 986 F. Supp. 2d 555, 563 (M.D. Pa. 2013). Importantly, the court made this statement when analyzing the doctrine of voluntary assumption of the risk after determining that the Skier’s Responsibility Act was not applicable because the plaintiff was not engaged in the sport of downhill skiing at the time of the accident. Id. at 561. The instruction of this quote is inapplicable to our consideration of the no duty doctrine of assumption of the risk.

Next, Plaintiffs rely heavily on Bolyard v. Wallenpaupack Lake Estates, Inc., 2012 WL 629391(M.D. Pa. Feb. 27, 2012) (Caputo, J.). In Bolyard, the plaintiff sued the defendant for negligence after sustaining injuries while snow tubing on the defendant’s property. Id. at *1. The court recognized that while the plaintiff had “general knowledge” of the dangers of snow tubing on the hill, she did not assume the risk because “there is no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Id. at *6. Plaintiffs argue that “[s]imilar to the patron in Bolyard,” Mr. Vu was only generally aware of the risks he could suffer while skiing and thus assumption of the risk is inapplicable. (Doc. [*14] 42, p. 8). We disagree.

Notably, the slope in Bolyard was an old slope that was not currently in operation. 2012 WL 629391, at *1. The court used principles of negligence as applicable to landowners and licensees to determine the duty owed to the plaintiff and, consequently, considered the doctrine of voluntary assumption of the risk as a defense. Id. at **3-6. Analyzing the present action under the no duty rule, we do not consider the defense of voluntary assumption of the risk; instead, we must determine whether Mr. Vu’s injuries arose out of an inherent risk of the sport of skiing such that the Defendants had no duty at all. Pursuant to Hughes and the Skier’s Responsibility Act, there is no duty to protect a skier from the inherent risks of skiing and therefore, “when inherent risks are involved, negligence principles are irrelevant.” Id.

Finally, Plaintiffs cite Perez v. Great Wolf Lodge of the Poconos LLC,6
Staub v. Toy Factory, Inc.,
7
Jones v. Three Rivers Mgmt. Corp,
8 and Telega v. Sec. Bureau, Inc.9 in support of their position that assumption of the risk does not apply because Mr. Vu did not appreciate the specific risks that caused his accident. To start, none of these cases address the Skier’s Responsibility [*15] Act. These cases discuss appreciation of specific risk only after determining that the no duty rule was inapplicable because the risk encountered was not inherent. Again, we reiterate that “[n]egligence principles are irrelevant where the ‘no duty’ rule applies.” Lin v. Spring Mountain Adventures, Inc., 2010 WL 5257648, at *7 (E.D. Pa. Dec. 23, 2010). Whether the no duty rule applies turns on whether Mr. Vu’s particular injuries arose out of risks inherent in the sport of skiing — an issue that is not dependent on a plaintiff’s subjective awareness of those specific risks.

6 200 F. Supp. 3d 471, 478 (M.D. Pa. 2016) (Mariani, J.).

7 749 A.2d 522, (Pa. Super. 2000).

8 483 Pa. 75, 85, 394 A.2d 546, 551 (1978).

9 719 A.2d 372, 376 (Pa. Super. Ct. 1998).

We now turn to the risks involved in Mr. Vu’s accident. The facts reveal two circumstances that gave rise to Mr. Vu’s injuries: (1) veering to avoid a collision with a snowboarder; and (2) skiing over the drop-off at the edge of the trail and into a pile of rocks. If these risks are inherent to the sport of downhill skiing, Plaintiffs’ claims cannot stand.

We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with another skier is one of the common, frequent and expected [*16] risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.” Hughes, 762 A.2d at 344. Likely in recognition of the clear case law, Plaintiffs do not argue in their brief in opposition to the Motion that avoiding a collision with a snowboarder is a risk that would give rise to a duty on behalf of Defendants. To the extent that Plaintiffs’ claims of negligence are premised on Mr. Vu’s avoidance of a collision with the snowboarder, those claims must fail.

Next, we consider whether skiing over the edge of the trail and encountering a three to four foot drop-off into a pile of rocks is an inherent risk of downhill skiing. Plaintiffs frame this risk as the primary cause of Mr. Vu’s injuries.10 “Simply put, the risk of ejectment from a ski trail due to a 3 to 4 foot drop off and striking one’s head on rocks and/or boulders . . . is not an inherent, frequent, common, and expected risk of skiing.” (Doc. 42, p. 11). All parties recognize that the drop-off was at the edge of the trail rather than a ditch or hole in the slope itself. Though Plaintiffs stress that Mr. Vu did not “willingly [*17] decide to ski off trail,” the distinction is of no consequence. Plaintiffs describe the incident in terms of Mr. Vu being “ejected” from the trail due to the embankment, but it is illogical to argue that the existence of the drop-off itself would cause a skier to go over it. Whether Mr. Vu did so intentionally, accidentally, or as a means of avoiding a collision, the incontrovertible fact is that Mr. Vu did, ultimately, ski off of the three to four foot edge of the trail.

10 “. . . the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8); “Even if Defendant could establish that having a 3 to 4 foot trail edge drop presents a danger inherent to the sport of skiing . . .” (Id. at p. 9); “. . . he was ejected from the trail when attempting to avoid a collision and was confronted with a 3 to 4 foot drop in elevation from the ski trail.” (Id. at p. 11).

We hold that the risk of skiing off trail and suffering from the change of elevation between the trail and surrounding terrain is an inherent risk of downhill skiing. Mr. Vu was an experienced skier who was well aware of the risks of skiing off the designated slope; he testified repeatedly that he “would never ski off-trail.” (Doc. 41, att. 1, p. 43). He had previously skied at Liberty Mountain on multiple occasions and could not remember ever complaining about the trail or trail markings. (Id. at pp. 35-36). Additionally, Mr. Vu’s daughter testified that she did not have any difficulty discerning the edge of the slope where her father went off trail the evening of the accident. (Doc. 41, att. 2, p. 14). It would be irrational for [*18] any court to hold that skiing off trail and encountering dangerous terrain is not an inherent risk of the sport of downhill skiing — ski slopes are marked and maintained in appreciation of this risk, and beginner and experienced skiers alike know to stay within the trail limits to avoid injury. Mr. Vu himself testified that he understood that he could run into trees, rocks, boulders, or snowmaking equipment if he skied off trail. (Doc. 37, att. 1, p. 71).

We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis. One case from the New York appellate court, however, was particularly analogous. In Atwell v. State, the plaintiff was skiing near the edge of the trail when he observed a “floundering” skier in his path. 645 N.Y.S.2d 658, 659 (1996). Plaintiff “instinctively reacted and turned without thinking” to avoid a collision and ended up skiing off trail and into a tree. Id. The court easily found that plaintiff’s injuries were due to inherent risks of skiing. Id. at 650. “[F]rom claimant’s own description of the accident, there can be no dispute that everything he encountered, including the skier he turned [*19] to avoid hitting, the berm at the edge of the trail referred to by claimant’s expert and the tree with which he collided, are all statutorily recognized as inherent dangers of skiing.” The court noted that “[c]laimant chose to ski near the edge of the trail and there is nothing in the record to indicate that the location of the edge of the trail was not readily observable to him.” Id. Similarly here, Mr. Vu was an experienced skier who chose to ski near the edge of the slope. He had a knee-jerk reaction to avoid a skier, and ended up veering off of the trail and suffering from the elevation change and his collision with rocks. Not only is there a lack of any evidence that the edge of the trail was difficult to discern, but Mr. Vu’s daughter testified at length about how her father was close to the edge of the trail and specifically stated that she could observe the edge of the slope without difficulty. (Doc. 41, att. 2, p. 14).

We agree with the Supreme Court of New Hampshire, which simply held: “Even the most generous reading of the plaintiff’s pleadings reveals the chief cause of his injuries to be an unenumerated, yet quintessential risk of skiing: that a skier might lose control [*20] and ski off the trail. By participating in the sport of skiing, a skier assumes this inherent risk and may not recover against a ski area operator for resulting injuries.” Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675, 684, 671 A.2d 548, 553 (1996).

IV. CONCLUSION

For the foregoing reasons, the Motion shall be granted. A separate order shall issue in accordance with this memorandum.

ORDER

Presently before the Court is Defendants’ motion for summary judgment. (Doc. 36). In conformity with the Memorandum issued on today’s date, IT IS HEREBY ORDERED THAT:

1. Defendants’ motion for summary judgment (Doc. 36) is GRANTED.

2. The Clerk of the Court SHALL CLOSE the file on this case.

/s/ John E. Jones III

John E. Jones III

United States District Judge


A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.

A Steamboat ski area employee parked a snowmobile at the bottom of a run. The plaintiff came down the run and hit the snowmobile injuring herself. She claimed the snowmobile was not visible from 100′ and was in violation of the Colorado Skier Safety Act. The Federal District Court for Colorado Disagreed.

Schlumbrecht-Muniz v. Steamboat Ski & Resort Corporation, 2015 U.S. Dist. LEXIS 30484

State: Colorado, United States District Court for the District of Colorado

Plaintiff: Linda Schlumbrecht-Muniz, M.D.

Defendant: Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT

Plaintiff Claims: negligence, negligence per se, and respondeat superior

Defendant Defenses: Colorado Skier Safety Act

Holding: for the Defendant

Year: 2015

The plaintiff was skiing down a run at Steamboat Ski Area. (Steamboat is owned by Intrawest Resorts, Inc.) On that day, an employee of Steamboat parked a snowmobile at the bottom of that run. The snowmobile was not visible for 100′. The plaintiff collided with the vehicle incurring injury.

The plaintiff sued claiming simple negligence, negligence per se and respondeat superior. The Negligence per se claim was based on an alleged failure of the ski area to follow the Colorado Skier Safety Act.

The ski area filed a motion for summary judgment arguing the claims of the plaintiff failed to plead the information needed to allege a violation of the Colorado Skier Safety Act.

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

The court first looked at the requirements necessary to properly plead a claim.

“…the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.”

This analysis requires the plaintiff to plead facts sufficient to prove her claims to some certainty that the court can see without a major stretch of the imagination.

The ordinary negligence claims were the first to be reviewed and dismissed. The Colorado Skier Safety Act states that the defendant ski area is “immune from any claim for damages resulting from “…the inherent dangers and risks of skiing…

Notwithstanding any judicial decision or any other law or statute, to the contrary, … no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.

Although the law allows suits against ski areas for violation of the act, those claims must be plead specifically and fit into the requirements set forth in the act. As such the court found the defendant Steamboat could be liable if:

Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury.

The first claim of an injury that was not an inherent risk of skiing would hold the defendant ski area liable for a negligence claim. The second requires specific violation of the Colorado Skier Safety Act.

Steamboat argued that pursuant to the Colorado Skier Safety Act, the term inherent risks as defined in the act were to be read broadly and a parked snowmobile was an inherent risk of skiing.

The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:

…those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

The court then looked at decisions interpreting the inherent risk section to determine if the act was to be construed narrowly or broadly.

In all cases, Colorado courts looked at the act as a list of the possible risks of skiing but not all the possible risks. As such, a snowmobile parked at the bottom of the slope was an inherent risk of skiing.

I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing, I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport.

The court also found that even if the snowmobile parked on a run was not an inherent risk, the statute required skiers to stay away from vehicles and equipment on the slopes. “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.”

The plaintiff’s argument was the violation of the statute was failing to properly for failing to properly outfit the snowmobile.

Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to be equipped with “[o]ne lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.”

Plaintiff also argued the statute was violated because the snowmobile was not visible for 100′ as required by the statute. However, this put the plaintiff in a catch 22. If the plaintiff was not a vehicle, then it was a man-made object which was an inherent risk of skiing. If she pleads the snowmobile was a vehicle and not properly equipped, then she failed to stay away from it.

Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snow-mobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section, and Steamboat is immune to liability for the resulting injuries. If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.”

The final claim was based on respondeat superior.

Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”)

Because the respondeat claim was derivative of the prior claims, and they were dismissed, the respondeat superior claim must fail. Derivative means that the second claim is wholly based on the first claim. If the first claim fails, the second claim fails.

So Now What?

This is another decision in a long line of decisions expanding the risks a skier assumes on Colorado slopes. The inherent risks set forth in Colorado Skier Safety Act are examples of the possible risks a skier can assume, not the specific set of risks.

What do you think? Leave a comment.

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NY determines that falling off a wall is a risk that is inherent in the sport. Plaintiff argued it wasn’t???

Plaintiff also argued the standards of the trade association created a legal liability on the part of the defendant. Trade association standards come back to haunt the business the standards were created to protect.

Ho v Steep Rock Bouldering, LLC, 2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)

State: New York: Supreme Court of New York, New York County

Plaintiff: Min-Sun Ho

Defendant: Steep Rock Bouldering, LLC

Plaintiff Claims: negligence

Defendant Defenses: Assumption of the Risk (although a release was signed it was not raised as a defense)

Holding: For the Defendant

Year: 2018

Summary

This case borders on the absurd because of the plaintiff’s claims and the statements of the plaintiff’s expert.

At the same time, this case borders on the scary because the standards of the trade association were used effectively to put a big dent in the defendant’s defenses.

It came down to simple logic. If you are ten to twelve feet off the ground is there an inherent risk that you could fall? Because it was to the court, the Plaintiff assumed the risk of her injuries, and her case was dismissed.

Facts

The plaintiff took a climbing class as a student in high school. Over a decade later, she signed up online to go bouldering at the defendant’s bouldering facility. She also checked out the defendant’s Facebook page.

She and her roommate went to the gym. At the gym, she realized that this was different from the climbing she had done in high school. She signed an electronic release, which she did not read. She also was questioned by an employee of the gym about her previous climbing experience. When talking with the employee she did not ask any questions.

She started bouldering and understood the grade system of what she was climbing. She had climbed once or twice to the top of the route she chose and down climbed or jumped after coming half-way down.

On her third or fourth climb, she was a few feet from the top of the wall when she fell. She landed on her right arm, tearing ligaments and breaking a bone which required surgery.

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

The decision first goes through the deposition testimony of the manager or the bouldering gym. The testimony was fairly straight forward, even talking about rules the gym had were not covered.

The next discussion was over the plaintiff’s expert witness. I’m just going to quote the decision.

After his review, Dr. Nussbaum opined that Plaintiff should have been provided with the following: a harness, a rope, or some similar safety device; a spotter; an orientation; and an introductory lesson. Dr. Nussbaum opined further that the only time a harness or similar device is not required is “when the wall is low, less than 8 feet[,] and where it is angled so that a [climber] cannot fall directly down[,] but simply slides down the angled wall. Here, the wall was high and not angled, and therefore the safety devices including the harness and rope are required.”

The plaintiff probably would not have fallen off a V1 on a slanted wall, if you can call a slanted wall a V1 or V2. More importantly with holds on the wall you would have not slid off, you have bounced off the holds as you slid down.

Dr. Nussbaum opined further that the reading Steep Rock Bouldering waiver form, which Plaintiff did not, would not mean that the reader understands or assumes the risk. Dr. Nussbaum opined further that the padding “likely” gave Plaintiff a “false sense of security” and “no appreciation of the risk here.”

Judges are responsible of interpreting the law in litigation. An opinion by an expert on a contract would not be allowed into evidence. More importantly, nothing in the background of the expert indicates any training or experience in what someone like the plaintiff would understand in reading a contract.

However, then it circled back around to industry practices. The plaintiff’s expert:

…cited to the Climbing Wall Association’s (“CWA”) Industry Practices § 4.06 and opined further that Defendant’s gym should have provided “a thorough orientation to bouldering and how to mitigate the risk of predictable falls” per the CWA guidelines.

Citing to CWA’s Industry Practices § 4.01, Dr. Nussbaum opined further:

“[Plaintiff’s] ‘level of qualification or access to the climbing should [have been] checked upon entering and prior to climbing in the facility.’ In the absence of demonstrated proficiency in climbing, [Plaintiff] should have been ‘supervised by staff or a qualified climbing partner, or her access to the facility must [have] be[en] limited accordingly.’ In the case at hand, there was a cursory transition from the street into the gym and the commencement of climbing. [Plaintiff] was simply asked if she had previous climbing-experience and essentially told ‘here’s the wall, have at it.'”

Citing to CWA’s Industry Practices § 4.02, Dr. Nussbaum opined further:

“[T]he climbing gym staff should [have] utilize[d] a screening process before allowing potential clients to access the climbing wall/facility. The purpose of the screening is to determine the ‘new client’s ability to climb in the facility’ and ‘to assess the client’s prior climbing experience, knowledge and skills (if any).’ [Plaintiff] was not asked about how long she had been climbing, whether or not she had experience at a climbing gym or facility, how often or how recently she had climbed, and/or the type of climbing she had done. She was not asked if she had knowledge of or experience bouldering. Again, she was simply asked if she had prior climbing experience, reflecting a wholly inadequate screening process.”

The Defendant’s expert did a great job of countering the claims made by the plaintiff’s expert. However, it is difficult to argue the language of a trade association is meant to mean something else when quoted by the plaintiff’s expert.

The court looked at the issue focusing on one main point. Did the plaintiff know and appreciate the risks of falling? This seems absurd to me. One of the basic fears that I think everyone has is a fear of falling. How it manifests itself may be different in different people, but everyone is afraid of falling.

The plaintiff in her testimony and the testimony of the expert witness made this the central point of the litigation and one the court had a difficult time reaching a conclusion on.

The court first looked at the assumption of risk doctrine in New York.

“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity.”

I cannot believe that when you are ten feet from the ground, there is not some form of awareness of the risk of falling.

The court then looked at the necessary elements of risk to determine what was inherent in a sport and what that means to the plaintiff and defendant.

“Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” However, “[s]ome of the restraints of civilization must accompany every athlete onto the playing field. Thus, the rule is qualified to the extent that participants do not consent to acts which are reckless or intentional.” “[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.” In assessing whether a plaintiff had the appropriate awareness to assume the subject risk, such “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.”

Boiled down, when you assume the risks of a sport or recreational activity:

In assuming a risk, Plaintiff has “given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.”

The court was then able to find that the plaintiff had assumed the risk.

The Court finds that injury from falling is a commonly appreciable risk of climbing–with or without harnesses, ropes, or other safety gear–and that Plaintiff assumed this risk when she knowingly and voluntarily climbed Defendant’s gym’s climbing wall for the third or fourth time when she fell. To hold that Defendant could be liable for Plaintiff’s injuries because it allowed her to climb its wall without a rope and harness would effectively make the sport of bouldering illegal in this state.

However, what an agonizing intense effort for the courts to come to what seems to be a fairly simple conclusion. When you are standing 10′ in the air, do you feel apprehension about falling off. If you do and you stay there you assume the risk of falling I think.

So Now What?

I’ve written before about how easy it is to write about New York decisions. They are short and quick. One or two pages. This decision is fifteen pages long, an unbelievable long decision in New York. An unbelievable long decision for what I believe to be an extremely simple and basic concept. Did the plaintiff understand she could get hurt if she fell from the wall?

Yet the plaintiff made the court work hard to decide she assumed the risk. The plaintiff made an argument that the court found compelling enough to take 15 pages to determine if are 10′ in the air are you apprehensive.

There are several take a ways from this decision.

The decision indicates the plaintiff signed a release electronically. However, it was never raised as a defense. Probably because of New York General Obligations Law § 5-326. This law states releases are not valid at places of amusement. There has been one decision in New York were a release for a climbing wall injury was upheld; however, the court specifically distinguished that issues saying the climbing wall was for educational purposes since it was at a university and not a recreational situation. Read Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003).

The industry standards came back to play a role in the decision. There are dozens of arguments in favor of an industry creating standards. There is one argument on why they should not be made. Plaintiff’s use them to attack the people the standards were meant to protect.

No matter how many reasons why it might be a good thing; it fails in all of those reasons when it is used in court to beat a defendant over the head and prove they were wrong. A piece of paper, written by members of the industry, with the industry logo and name on it is proof to any juror that this is the way it must be done. If not, why would the piece of paper be written? Why would the industry and everyone else take the time and energy to create the rule, print it and hand out if that was the way it was supposed to be done.

So, then it is left up to the defense expert to find a way to prove that the piece of paper is wrong. That is impossible in 99% of the cases. As a member of the association, as a person who helped make the piece of paper, you are now saying what you did was wrong? It is not going to fly.

Here the defendant’s expert could not. So, he did not, his opinion walked all around the issue but did not bring up the standards that the plaintiff through at the court. Granted, the plaintiff had taken the standards and twisted them and their meaning in an attempt to apply them to this case, in a way that they were not meant to be. However, it is difficult to say to a judge or juror the plaintiff’s expert twisted the standards, and they don’t mean that. Of course, that is what the judge and jury would expert.

Thankfully, the defendant’s expert was great and just refused to take on the plaintiff’s expert and the far-out statements he made.

Here the plaintiff used the industry standards in an attempt to prove the defendant had breached its duty of care to the plaintiff. Here the name had been changed by the association over the years to lessen their impact and damage in a courtroom from standards to practices. However, they were still used to bludgeon the defendant who had probably paid to help create them.

Standards do not create value in a courtroom for defendants. You cannot say we did everything right, see read this and throw the standards at the judge and jury. However, we all need to learn from our mistakes, and we need ideas on how to get better. Besides there is always more than one way to do everything.

Create ideas, best practices, anything that allows different ways of doing things so the plaintiff cannot nail you down to one thing you did wrong. The simple example is there is no one way to belay. Yet standards for various industries have superficially set forth various ways over the years you “must” belay. Body belays went out decades ago with the introduction of belay devices. Yet when your lead is on a precarious move, and the piece below him might not be able to take the full weight of a fall, a body belay works because it helps absorb the energy and spread the belay over time putting less pressure on the pro.

There is no magic solution to everything and spending hours and dollars trying to tell the world, there is, will only come back to haunt you.

What do you think? Leave a comment.

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Ho v Steep Rock Bouldering, LLC, 2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)

Ho v Steep Rock Bouldering, LLC, 2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)

[**1] Min-Sun Ho, Plaintiff, – v – Steep Rock Bouldering, LLC, Defendant. INDEX NO. 150074/2016

150074/2016

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)

January 2, 2018, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: climbing, bouldering, rock, gym’s, rope, harness, spotter, opined, climb, climber, falling, affirmation, feet, mat, climbed, sport, orientation, roommate, height, summary judgment, top, spotting, assumption of risk, instructor, padding, false sense of security, indoor, reply, quotation, skill

JUDGES: [*1] PRESENT: Hon. Robert D. KALISH, Justice.

OPINION BY: Robert D. KALISH

OPINION

Motion by Defendant Steep Rock Bouldering, LLC pursuant to CPLR 3212 for an order granting summary judgment against Plaintiff Min-Sun Ho is granted.

BACKGROUND

I. Overview

Plaintiff brought this action seeking damages for injuries she sustained on October 12, 2015, while at Defendant’s bouldering gym, Steep Rock Bouldering. Plaintiff alleges, in sum and substance, that, due to the negligence of Defendant, she fell from Defendant’s gym’s indoor climbing wall and landed on her right arm, tearing ligaments and breaking a bone in the arm and elbow area, which required surgery. Defendant argues, in sum and substance, that Plaintiff assumed the risk of injury from a fall at its gym and that its gym provided an appropriate level of safety and protection for boulderers through warnings, notices, an orientation, equipment, and the nature of the climbing wall itself. As such, Defendant argues it had no further duty to Plaintiff. Plaintiff argues, in sum and substance, that she did not assume the risk of an injury from falling off of the climbing wall.

[**2] II. Procedural History

Plaintiff commenced the instant action against Defendant on January 5, 2016, [*2] by e-filing a summons and a complaint alleging a negligence cause of action. (Goldstein affirmation, exhibit A.) Defendant answered on March 28, 2016, denying all the allegations in the complaint and asserting 21 affirmative defenses, including Plaintiff’s assumption of the risk. (Goldstein affirmation, exhibit B.)

The examination before trial (“EBT”) of Plaintiff was held on February 14, 2017. (Goldstein affirmation, exhibit E [Ho EBT].) The EBT of Defendant, taken of witness Vivian Kalea (“Kalea”), was held on February 23, 2017. (Goldstein affirmation, exhibit F [Kalea EBT].) Plaintiff provided Defendant with her liability expert’s disclosure pursuant to CPLR 3101 (d) on or about March 27, 2017. (Goldstein affirmation, exhibit G.) Plaintiff filed the note of issue in this action on May 4, 2017. (Goldstein affirmation, exhibit J.)

On or about May 25, 2017, Defendant moved to strike Plaintiff’s note of issue. On or about May 30, 2017, Plaintiff cross-moved to preclude certain expert and medical testimony from Defendant at trial due to Defendant’s alleged failure to provide timely disclosures. Defendant provided Plaintiff with its liability expert’s disclosure pursuant to CPLR 3101 (d) on or about June 16, 2017. [*3] (Goldstein affirmation, exhibit H.) On June 29, 2017, Defendant noticed the instant motion On July 14, 2017, this Court ordered Defendant’s motion to strike and Plaintiff’s cross motion to preclude withdrawn per the parties’ stipulation, dated July 6, 2017.

Defendant now moves for an order pursuant to CPLR 3212 granting it summary judgment and dismissing this action with prejudice.

III. Plaintiff’s EBT

Plaintiff Min-Sun Ho stated that she and her roommate intended to climb the indoor wall at Steep Rock Bouldering on October 12, 2015. (Ho EBT at 12, lines 17-23.) Plaintiff further stated that her roommate had joined Defendant’s gym several weeks prior to October 12, 2015. (Id. at 13, lines 12-13; at 14, lines 2-3, 13-25.) Plaintiff further stated that, prior to October 12, 2015, in high school, she took a rock climbing class once a week for a semester. (Id. at 15, lines 16-25.) Now in her thirties, Plaintiff stated that she was able to recall the class, the basic commands for climbing, and the techniques for climbing. (Id. at 20, lines 5-2.1; at 22, lines 17-21.)

[**3] Plaintiff stated that, on October 12, 2015, she looked up Defendant’s gym’s Facebook page and observed people climbing at Steep Rock Bouldering without ropes or harnesses. [*4] (Id. at 27, lines 7-11; at 29, lines 15-20.) Plaintiff further stated that she then signed up online for a one-month membership at Steep Rock Bouldering. (Id. at 28, lines 15-20.) Plaintiff further stated that she had also heard from her roommate, before October 12, 2015, that there were no harnesses or ropes at Steep Rock Bouldering. (Id. at 30, lines 6-13.) Plaintiff further stated that, on October 12, 2015, Plaintiff’s roommate again explained that Defendant’s gym does not have harnesses or ropes. (Id. at 29, line 25; at 30, lines 2-5.) Plaintiff stated she was not aware, prior to October 12, 2015, that the term “bouldering” refers to a form of rock climbing without harnesses or ropes. (Id. at 85, lines 2-7.)

Plaintiff stated that, upon arriving at Steep Rock Bouldering on October 12, 2015, she observed a reception desk and a climbing wall to her left where she saw more than three people climbing. (Id. at 31, lines 17-23; at 32, line 25; at 33, lines 2-3.) Plaintiff further stated that she believed the climbing wall was about 15 feet tall. (Id. at 32, lines 4-20.) Plaintiff further stated that the receptionist asked if Plaintiff had rock climbed before and that she answered that she had, a long time ago. (Id. at 47, lines 2-8.) Plaintiff stated she signed [*5] an electronic waiver form at the reception desk. Plaintiff, at the time of the EBT, stated she did not recall having read any of the waiver except for the signature line. (Id. at 43, lines 11-19.)

Plaintiff stated that, after signing the waiver, she waited while the receptionist called a man over to Plaintiff and her roommate. Plaintiff stated she herself believed the man who came over was another Steep Rock Bouldering employee. (Id. at 45, lines 10-25; at 46, lines 2-4.) Plaintiff stated’ that the man told Plaintiff “something along the lines of that’s the wall as you can see, it’s self-explanatory.'” (Id. at 46, lines 11-12.) Plaintiff further stated that the man also told her “[t]hose are the bathrooms.” (Id. at 49, lines 2-3.) Plaintiff further stated that the man asked her if she had rock climbed before and that she answered “yeah, a while ago.” (Id. at 49, lines 7-10.) Plaintiff stated that the man did not say he was an instructor or take Plaintiff anywhere and that neither the man nor the receptionist said anything about an instructor. Plaintiff further stated that she did not have an orientation or an instructor at Defendant’s gym. (Id. at 47, lines 15-23; at 48, lines 21-25.) Plaintiff further stated she that did not see any instructional [*6] videos. (Id. at 80, lines 19-22.) Plaintiff further stated that she had felt comfortable not having an instructor and climbing the walls without any harnesses or ropes. (Id. at 81, lines 17-22.)

[**4] Plaintiff stated that, after speaking with the man, she changed into climbing shoes which she stated she recalled borrowing from Steep Rock Bouldering. (Id. at 48, lines 5-20.) Plaintiff further stated that she then put her and her roommate’s belongings away in a cubby and started getting ready to climb. (Id. at 49, lines 13-18.) Plaintiff stated that she had observed mats in front of the climbing wall on the floor. (Id. at 49, lines 19-24.) Plaintiff stated that she had further observed “quite a few” people who she thought were other climbers and their friends climbing the wall or watching and giving tips on holds. (Id. at 50, lines 5-21; at 55, lines 6-10.)

Plaintiff stated she was told before she started climbing that the holds on the climbing wall are tagged according to their difficulty and that the levels of difficulty marked “V0 or V1” are the “easiest.” (Id. at 54, lines 2-20.) Plaintiff further stated that, after waiting a few minutes, she herself climbed to the top of the climbing wall on level V1 on her first attempt. (Id. at 55, lines 16-19, 24-25; at [*7] 56, lines 2-9.) Plaintiff further stated that she did not think it took very long to make the climb. (Id. at 56, lines 10-11.) Plaintiff stated she and her roommate took turns climbing the wall. (Id. at 63, lines 12-16.) Plaintiff further stated that, while she herself was climbing, her roommate was on the mat watching her climb. (Id. at 63, lines 17- 22.) Plaintiff stated that she herself climbed again once or twice without incident. (Id. at 56, lines 16-19; at 57, lines 18-21.) Plaintiff stated that, on her third or fourth climb, she herself had made it about a couple of feet from the top of the wall before she fell. (Id. at 57, lines 3-10, 15-25; at 58, lines 2-9.) Plaintiff stated that her roommate was watching her when she fell. (Id. at 63, line 22.)

Plaintiff stated that she had not fallen from a climbing wall prior to October 12, 2015. (Id. at 59, lines 2-7.) Plaintiff further stated she did not think she could fall, nor did she think about falling, when she bought her membership, when she first saw the wall when she entered the building, or when she first started climbing. (Id. at 59, lines 13-25; at 60, lines 2-8, 17-19.) Plaintiff further stated that did not see anyone else fall at Steep Rock Bouldering prior to her own fall, but did see people [*8] jumping down from “[s]omewhere above the middle” and “closer to the top” of the climbing wall instead of climbing down. (Id. at 60, lines 9-16.)

Plaintiff stated she herself climbed down the wall after her first climb, but then became more “confident” and climbed down halfway and then jumped in subsequent successful climbs. (Id. at 60, lines 22-25; at 61, lines 2-6.) Plaintiff further stated that, immediately before she fell, she was climbing up the wall and reaching to the side. (Id. at 61, lines 7-13.) Plaintiff further stated that she then grabbed onto a knob, looked down, and saw a man looking up at her. (Id. at 62, [**5] lines 2-7.) Plaintiff was asked at the EBT “[w]hen you looked down, did you think about falling or if you could fall?” In reply, Plaintiff stated “I was a little scared. When I looked down, I was a lot higher than I thought I was.” (Id. at 62, lines 12-15.) Plaintiff stated that she had wanted to come back down at this time. (Id. at 62, lines 24-25; at 63, lines 2-4.) Plaintiff further stated that she fell after she saw the man looking up at her. (Id. at 62, line 8.) Plaintiff was asked at the EBT “[d]o you know why you fell?” and answered, “I don’t know exactly.” (Id. at 62, lines 5-6.)

IV. Defendant’s EBT

Vivian Kalea stated that, at the [*9] time of her EBT, she was the general manager of Steep Rock Bouldering. (Kalea EBT at 6, lines 4-7.) Kalea further stated that, on October 12, 2015, she was a closing manager and youth team coach at Steep Rock Bouldering. (Id. at 6, lines 8-12.)

Kalea stated that she was at Steep Rock Bouldering when Plaintiff was injured and filled out the related injury report form. (Id. at 13, lines 19-21.) Kalea stated that the injury report indicated that Plaintiff was a member of Steep Rock Bouldering and had paid a fee to use the gym prior to her injury. (Id. at 16, lines 12-13.) Kalea stated that the injury report further indicated that Plaintiff fell from a yellow V1 level of difficulty, about three moves from the top, and landed on her right side. (Id. at 19, lines 6-9; at 31, lines 15-21; at 34, line 25.)

Kalea stated that V1 is a beginner’s level of difficulty. (Id. at 34, lines 13-15.) Kalea further stated that, the higher the number is after the “V,” the greater the level of difficulty. Kalea stated that the “V” designation is not a description of a specific height or location. (Id. at 33, lines 9-14.) Kalea further stated that V2 is also a beginner’s level. (Id. at 33, lines 23-25, at 34, lines 2-4.) Kalea further stated that the wall Plaintiff was on had a “slight incline” but was “mostly [*10] vertical” and “[c]lose to 90 degrees. (Id. at 41, lines 11-25; at 42, lines 2-4.)

Kalea stated that Steep Rock Bouldering offered climbing shoe rentals and chalk for climbers on October 12, 2015. (Id. at 9, lines 20-21; at 10, line 14.) Kalea further stated that the climbing shoes provide support for climbing activities by improving friction and power to the big toe and that the chalk gives the climbers a better grip on whatever it is they are holding onto. (Id. at 21, lines 18-25; at 22, lines 2-25; at 23, lines 2-A.) Kalea further stated that the padded area in front of the climbing wall was over a foot thick on October 12, 2015, and was there to help absorb the shock from a fall. (Id. at 23, lines 5-18.) Kalea further stated that a [**6] spotter, “somebody who guides a climber to fall down,” was not required at Steep Rock Bouldering on October 12, 2015. (Id. at 49, lines 19-25.)

Kalea stated that the climbing walls at Steep Rock Bouldering are 14 feet high and that the holds do not all go to the top. (Id. at 24, lines 17-19.) Kalea further stated that the holds are of different textures, sizes, and appearances and that their locations can be changed to create varying paths up the wall and establish the difficulty of a given level. (Id. at 24, lines [*11] 16-25; at 25, lines 2-17; at 29, lines 2-5.) Kalea further stated that climbers at Steep Rock Bouldering do not climb with ropes or harnesses. (Id. at 40, line 25; at 41, line 2.)

Kalea stated that Steep Rock Bouldering employees ask whether it is a new member’s first time bouldering “to clarify that they understand the risk of bouldering.” (Id. at 21, lines 13-17.) Kalea further stated that every climber is supposed to receive an oral safety orientation from Steep Rock Bouldering staff prior to climbing that consists of the following:

“It consists of understanding the person’s climbing experience, their experience bouldering. That they understand that bouldering is a dangerous sport. How every fall in a bouldering environment is a ground fall. It goes over how the climbs are kind of situated, so everything is by color and numbers. It goes over that we do encourage down climbing in the facility. So that means when you reach the top of the problem, which is not necessarily the top of the wall, but the finishing hold, you climb down about halfway before you jump, if you do want to jump. It goes over how to best fall.”

(Id. at 46, lines 2-24; at 47, lines 3-16.) Kalea stated that the giving such an orientation is [*12] standard in the climbing industry and was required at Steep Rock Bouldering on October 12, 2015. (Id. at 48, lines 3-10.) Kalea further stated that “[i]t is made clear to everyone who walks in the door that they are going to receive a safety orientation” and that staffs failure to do so would be breaking Steep Rock Bouldering’s rules. (Id. at 48, lines 17-21.) Kalea was asked at the EBT to assume that Plaintiff was told “essentially . . . there is the wall, it’s self explanatory [sic] and that’s all the person did” and was then asked “[i]f that is all that was said, is that a proper safety instruction orientation?” (Id. at 49, lines 3-17.) Kalea replied, “[i]t is not.”

[**7] V. Plaintiff’s Liability Expert

Plaintiff retained Dr. Gary G. Nussbaum as its liability expert. Dr. Nussbaum has a Masters of Education and an Education Doctorate in Recreation and Leisure Studies from Temple University. Dr. Nussbaum has 45 years of experience in the adventure education, recreation, and climbing field with a variety of teaching credentials related specifically to climbing. In forming his opinion, Dr. Nussbaum reviewed photographs of the climbing wall used by Plaintiff on the date of her injury, the injury report, the waiver form, [*13] and the EBT transcripts.

After his review, Dr. Nussbaum opined that Plaintiff should have been provided with the following: a harness, a rope, or some similar safety device; a spotter; an orientation; and an introductory lesson. Dr. Nussbaum opined further that the only time a harness or similar device is not required is “when the wall is low, less than 8 feet[,] and where it is angled so that a [climber] cannot fall directly down[,] but simply slides down the angled wall. Here, the wall was high and not angled, and therefore the safety devices including the harness and rope are required.” (Broome affirmation, exhibit 1 [aff of Nussbaum], at 3.)

Dr. Nussbaum opined that a person of Plaintiff’s skill level was a novice and needed to be taught “how to climb, how to come down, and even how to fall safely. None of this was done or provided.” (Id. at 4.) Dr. Nussbaum opined further that “[a]s a new climber, [Plaintiff] did not appreciate the risk” involved with bouldering. (Id.) Dr. Nussbaum opined further that the reading Steep Rock Bouldering waiver form, which Plaintiff did not, would not mean that the reader understands or assumes the risk. (Id.) Dr. Nussbaum opined further that the padding “likely” [*14] gave Plaintiff a “false sense of security” and “no appreciation of the risk here.” (Id.)

Dr. Nussbaum opined that, because Steep Rock Bouldering does not offer rope climbing, its climbing wall requires that the climber “climb down, climb partway down and jump the remainder, fall down in a controlled manner, or simply fall down if he or she loses control.” (Id. at 5.) Dr. Nussbaum cited to the Climbing Wall Association’s (“CWA”) Industry Practices § 4.06 and opined further that Defendant’s gym should have provided “a thorough orientation to bouldering and how to mitigate the risk of predictable falls” per the CWA guidelines. (Id.)

[**8] Citing to CWA’s Industry Practices § 4.01, Dr. Nussbaum opined further:

“[Plaintiff’s] ‘level of qualification or access to the climbing should [have been] checked upon entering and prior to climbing in the facility.’ In the absence of demonstrated proficiency in climbing, [Plaintiff] should have been ‘supervised by staff or a qualified climbing partner, or her access to the facility must [have] be[en] limited accordingly.’ In the case at hand, there was a cursory transition from the street into the gym and the commencement of climbing. [Plaintiff] was simply asked if she had previous [*15] climbing-experience and essentially told ‘here’s the wall, have at it.'”

(Id. at 6.)

Citing to CWA’s Industry Practices § 4.02, Dr. Nussbaum opined further:

“[T]he climbing gym staff should [have] utilize[d] a screening process before allowing potential clients to access the climbing wall/facility. The purpose of the screening is to determine the ‘new client’s ability to climb in the facility’ and ‘to assess the client’s prior climbing experience, knowledge and skills (if any).’ [Plaintiff] was not asked about how long she had been climbing, whether or not she had experience at a climbing gym or facility, how often or how recently she had climbed, and/or the type of climbing she had done. She was not asked if she had knowledge of or experience bouldering. Again, she was simply asked if she had prior climbing experience, reflecting a wholly inadequate screening process.”

(Id.)

Dr. Nussbaum opined that spotting is an advanced skill requiring training for the spotter to spot effectively and safely. As such, Dr. Nussbaum stated, Plaintiff’s roommate “was not a spotter and had no skill and no training to be one.” (Id. at 3.) Dr. Nussbaum opined further that Steep Rock Bouldering was required to enforce its spotter [*16] requirement by providing an adequately skilled spotter or ensuring that an intended spotter has the requisite skill set. (Id. at 5.) Dr. Nussbaum opined further that, if Steep Rock Bouldering chooses not to require spotting, it is then required to “emphasize, encourage and instruct in the safest ways to descend, including falling [**9] techniques. . . . [It] did not enforce its spotting requirement nor [sic] provide proper instruction in falling techniques.” (Id. at 7.)

VI. Defendant’s Liability Expert

Defendant retained Dr. Robert W. Richards as its liability expert. Dr. Richards is a founding member of the CWA and is currently affiliated with CWA as an expert in risk management. Dr. Richards has been involved in the climbing wall industry since 1992. Dr. Richards stated that, as there are no set regulations for climbing facilities, the CWA intends to assist the industry in defining, understanding, and implementing a set of responsible management, operational, training, and climbing practices. (Goldstein affirmation, exhibit I [aff of Richards], ¶ 2.) Dr. Richards further stated that the CWA’s Industry Practices is a sourcebook for the operation of manufactured climbing walls. (Id. ¶ 3.)

In forming his opinion, [*17] Dr. Richards performed a site inspection of Steep Rock Bouldering’s climbing wall on June 22, 2017. (Id. ¶ 20.) Dr. Richards observed at the site inspection that Defendant’s gym had “Climb Smart” posters, indicating the risks of bouldering, displayed in multiple locations. Dr. Richards stated that these signs were also present on October 12, 2015. (Id.) Dr. Richards observed further that the climbing wall is approximately thirteen feet, six inches tall when measured from the top of the padded area around the wall. (Id. ¶ 30:) Dr. Richards stated that this was also the height of the wall on October 12, 2015. (Id.)

Dr. Richards describes the sport of bouldering as follows:

“Bouldering is the form of climbing that is performed without the use of safety ropes and typically on a climbing surface that is low enough in height that a fall from the wall will not be fatal. Bouldering walls in climbing gyms may range from ten to twenty feet in height. The [CWA] states that average bouldering wall heights in the climbing wall industry are between twelve and fifteen feet. Climbers who boulder are referred to as boulderers . . . .”

(Id. ¶¶ 13-14.) Dr. Richards stated “[a] specific climb is referred [*18] to as a . . . ‘problem’ and is usually marked with colored tape or colored holds which are attached to the artificial climbing wall.” (Id. ¶ 7 [punctuation omitted].)

[**10] Dr. Richards opined that bouldering entails an inherent risk of injury from falls. (Id. ¶ 4.) Dr. Richards opined further that it is not possible to eliminate this risk “without altering the very essence of the sport.” (Id.) Dr. Richards opined further that the most common injuries in climbing gyms are to the extremities which can result from falls of any height. (Id. ¶ 15.)

Dr. Richards opined further that the risk inherent to bouldering was communicated to Plaintiff by means of a written liability release and an orientation. (Id. ¶ 17.) Dr. Richards stated that Plaintiff signed a liability release form and completed an orientation. (Id. ¶¶ 17, 31.) Dr. Richards stated further that the liability release form included the following language: “I have examined the climbing wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the climbing wall, including but not limited to: [injuries] resulting from falling off or coming down from the climbing wall . . . .” (Id. ¶ [*19] 17.)

Dr. Richards opined further that, having visited approximately “200 gyms” since 1992, he has never been to a gym that requires climbers to have spotters and strictly enforces that requirement. (Id. ¶¶ 1, 22-23.) Dr. Richards stated that spotting was developed for outdoor bouldering to guide the fall of boulderers in an environment where there are typically little or no padded surfaces to protect the head. (Id. ¶ 24.) Dr. Richards stated that the CWA does not require spotters when bouldering on artificial climbing walls and that it is not a common practice in the industry to require such spotters. (Id. ¶ 25.) Dr. Richards further stated that the padded landing surfaces in gyms reduce many of those dangers that a spotter would help to mitigate outdoors. (Id.) Dr. Richards opined that, as such, use of a spotter in an indoor climbing gym is of “limited benefit” and “may cause injury to the boulderer and spotter if the climber were to fall directly on the spotter.” (Id.)

Dr. Richards opined further that the purpose of Defendant gym’s padded landing surface around its climbing wall is “to mitigate potential injuries to the head and neck.” (Id. ¶ 26.) Dr. Richards opined further that, [*20] while the padding may “provide some cushioning for falls,” per Annex E to the CWA’s Industry Practices, “[p]ads are not designed to mitigate or limit extremity injuries, although they may do so.” (Id.) Dr. Richards stated that, while there was no industry standard regarding the type, amount, or use of such padding in October 2015, a typical surface in October 2015 would have “consisted of four to six inches of foam padding or other impact attenuation [**11] material with a top layer of gymnastic carpet or vinyl that covers the underlying padding.” (Id. ¶¶ 27-28.) Dr. Richards further stated that Defendant’s gym used foam pads of a twelve-inch depth that ran continuously along the climbing wall and extended twelve feet out from the wall on October 12, 2015. (Id. ¶ 29.)

ARGUMENT

I. Defendant’s Affirmation in Support

Defendant alleges in its papers that it has a place of business that includes a bouldering climbing gym in New York City on Lexington Avenue. (Affirmation of Goldstein ¶ 14.) Defendant further alleges that its gym has a continuous climbing wall that is approximately 30 to 40 feet wide and 14 feet tall and has climbing holds which are textured objects bolted into the wall which climbers [*21] can grab onto with their hands and stand upon with their feet. (Id. ¶¶ 14, 16.)

Defendant argues, in the main, that Plaintiff assumed the inherent risk associated with climbing an indoor wall and with bouldering when she chose to climb Defendant’s gym’s bouldering wall. (Memorandum of law of Goldstein, at 1.) Defendant argues Plaintiff was able to make an informed estimate of the risks involved in bouldering and that she willingly undertook them. (Id. at 3-4.) Defendant further argues that Plaintiff was aware of the potential for injury from a fall because she is an intelligent adult familiar with the laws of gravity and had prior wall climbing experience in an indoor setting (albeit with ropes). (Id. at 4.) Defendant further argues that Plaintiff was aware of the risks associated with climbing because, before she was injured, Plaintiff watched other climbers ascend and descend its climbing wall and climbed up and down the wall herself without incident several times, even feeling comfortable enough to jump from halfway down the wall as opposed to climbing all the way down. (Id. at 8-9.) Defendant further argues that Plaintiff voluntarily and knowingly engaged in the bouldering activity and that her fall was a common, albeit [*22] unfortunate, occurrence. (Id. at 10.)

Defendant argues that falling is inherent to the sport of climbing, that falling cannot be eliminated without destroying the sport, and that injuries resulting from falling from a climbing wall are foreseeable consequences inherent to bouldering. (Id.) Defendant further argues that the risk of falling from Defendant’s gym’s climbing wall was open and obvious to Plaintiff. (Id. at 5.) Defendant further argues that Plaintiff did not request further instruction beyond what Steep Rock [**12] Bouldering provided on October 12, 2015, and that Plaintiff was comfortable climbing without ropes or a harness. (Id. at 5-6.) Defendant argues that Plaintiff’s allegation that she did not receive proper instruction is pure conjecture and will only invite the jury to speculate about what further instruction Plaintiff would have received had she sought it out. (Id. at 6.)

Defendant argues that there was no unique risk or dangerous condition in Defendant’s gym on October 12, 2015, over and above the usual dangers inherent to bouldering. Defendant further argues that Defendant has the right to own and operate a gym that offers bouldering, only, and not rope climbing. (Id. at 7.) Defendant further argues that the height [*23] of its gym’s climbing wall and the depth of its surrounding padding were well within what was typical of other climbing facilities in October 2015. (Id.) Defendant further argues that it had no duty to provide a spotter or supervise Plaintiff’s climbing. (Id. at 7-8.)

Defendant argues that Plaintiff’s expert has not cited to any standards or rules that would have required that Defendant provide Plaintiff with a spotter or supervise Plaintiff’s climbing or that would justify an opinion that negligence on the part of Defendant proximately caused Plaintiff’s accident. (Id. at 8, 10.) Defendant further argues that Plaintiff’s expert fails to acknowledge that Plaintiff engaged in a rope climbing class every week for a semester. (Id. at 10.) Defendant further argues that Plaintiff’s expert has never visited Steep Rock Bouldering and that therefore any assertions that Plaintiff’s expert will make are conclusory and insufficient to demonstrate Defendant’s negligence.

II. Plaintiff’s Affirmation in Opposition

Plaintiff argues in her papers that the affidavit of her liability expert, Dr. Gary G. Nussbaum, establishes Defendant’s negligence and Plaintiff’s lack of appreciation and understanding of the risk. (Affirmation of Broome, at 1.) Plaintiff further [*24] argues that she had a false sense of security because of the thick mats around the climbing wall and that she therefore did not appreciate the risk. (Id. at 1-2.) Plaintiff further argues that her climbing experience at Steep Rock Bouldering was very different from her prior experience with climbing, which was limited to one semester of indoor climbing class 12-13 years prior to the incident, in high school, involving a rope, harness, spotter, and instructor. (Id. at 2; aff of Ho, at 2.) At the time of the incident, Plaintiff was age 30 and had never done any rock climbing again after the high school class. (Aff of Ho, at 2.)

[**13] Plaintiff argues that she believed the padding beneath the climbing wall would prevent “any injury whatsoever.” (Id. at 4.) Plaintiff further argues that this was her belief even though she signed a release of liability because she did not read it. (Id. at 3.) Plaintiff further argues that she was given no orientation or instructor on October 12, 2015, but was only told where the wall was and that it was “self-explanatory.” (Id.) Plaintiff further argues that the release she signed is void and unenforceable because she paid a fee to use Defendant’s gym. (Affirmation of Broome, at 2.)

Plaintiff argues that Defendant was negligent in failing to [*25] provide Plaintiff with a rope, a harness, instruction, an orientation, and a spotter. (Id. at 3.) Plaintiff further argues that the assertions of Defendant’s liability expert, Dr. Robert W. Richards, regarding posters on the wall at Steep Rock Bouldering are irrelevant and erroneous because he visited the facility 1.75 years after Plaintiff’s accident and claims the posters were in place on the date of the accident. (Id.)

III. Defendant’s Reply Affirmation in Support

Defendant argues in its reply papers that Plaintiff did not have a false sense of security because Plaintiff: (1) was aware that Defendant’s gym only supplied climbing shoes and climbing chalk; (2) observed that none of the other climbers were asking for a rope or a harness; (3) testified that she felt comfortable climbing without harness, a rope, or an instructor; (4) knew prior to her injury that the climbing paths have different difficulty levels and that she was at a beginner level; and (5) had already, prior to her injury, climbed the wall two to three times without incident, reached the top of the wall, and jumped from the wall to the floor from halfway up the wall. (Reply affirmation of Goldstein, at 1-2; reply memorandum of law of Goldstein [*26] ¶ 3.) Defendant further argues that Plaintiff’s claim of having a false sense of security is disingenuous because she plainly observed the conditions of the climbing wall and the padded mats, was able to approximate the height of the wall, and, at age 30, was fully aware of, paid to engage in, and voluntarily undertook a form of climbing that involves neither ropes nor harnesses. (Reply memorandum of law of Goldstein ¶ 4.)

Defendant argues that Plaintiff has overlooked Dr. Richards’ explanation that a spotter has limited benefit and may cause injury to the climber and spotter if the climber were to fall directly onto the spotter. (Id. ¶ 5.) Defendant further argues that climbers utilizing a rope and harness may also sustain injury from falls when climbing. (Id. ¶ 6.)

[**14] Defendant argues that Plaintiff cannot prove by a preponderance of the evidence that Defendant proximately caused Plaintiff’s injury because Plaintiff herself testified that she does not know why she fell, and mere speculation regarding causation is inadequate to sustain a cause of action. (Id. ¶ 5.)

Defendant further argues that Plaintiff was aware of and assumed the risk that, in climbing a wall without ropes and harnesses–or [*27] a spotter–she could sustain an immediate physical injury from a fall. (Id. ¶¶ 4-5, 9.)

IV. Oral Argument

On November 13, 2017, counsel for the parties in the instant action appeared before this Court for oral argument on Defendant’s instant motion for summary judgment. Stephanie L. Goldstein, Esq. argued on behalf of Defendant and Alvin H. Broome, Esq. argued on behalf of Plaintiff.

Defendant argued that this is an assumption of the risk case in which Plaintiff fell during participation in a sport–bouldering–which, by definition, is rock climbing without ropes or harnesses. (Tr at 2, lines 23-25; at 3, lines 8-18.) Defendant further argued that Plaintiff had no reasonable expectation there would be ropes or harnesses at Steep Rock bouldering. Plaintiff stated that her roommate told her that climbing at Steep Rock Bouldering would involve no ropes or harnesses. (Id. at 4, lines 5-13.) Plaintiff further stated that she observed photographs of people using the gym on Facebook at parties–prior to going to Defendant’s gym–without ropes or harnesses. (Id. at 4, lines 15-19.) Plaintiff further stated that she saw people climbing at the gym in person before she climbed and that none of them were using ropes [*28] or harnesses. (Id. at 4, lines 20-24.)

Defendant argued that Plaintiff was additionally noticed as to the dangers inherent to bouldering by the electronic waiver, which she signed. (Id. at 5, lines 3-18.) Defendant clarified that it is not moving to dismiss the instant action on waiver grounds and acknowledged that Plaintiff’s signing the waiver did not absolve Defendant of liability. (Id. at 5, lines 13-14.) Defendant argued that Plaintiff was further noticed by an individual, an employee of Defendant, who explained to Plaintiff prior to her climbing about the wall and the climbing paths. (Id. at 5, lines 19-23.) Defendant argued that Plaintiff was further noticed by her own experience of climbing up and down the wall two to three times without any [**15] incident and with jumping off of the wall prior to her fall. (Id. at 5, line 26; at 6, line 2; at 7, lines 11-16.) Defendant was comfortable climbing without equipment or an instructor. (Id. at 7, lines 6-10.)

Defendant argued that it cannot enforce a statement on its waiver that a climber is not to climb without a spotter. Defendant argued that this is for four reasons: because spotting does not prevent injury, because spotting was developed when bouldering was outside, because spotting [*29] can only act to attempt to protect the head and neck outdoors–and indoors the padding provides this function–and because spotting may endanger the spotter. Defendant stated that spotting is not enforced at its gym. Defendant further stated that its liability expert has not seen this requirement enforced at any of the 200 gyms he has traveled to which do have this requirement on paper. (Id. at 6, lines 7-26; at 7, lines 2-5.)

Defendant argued that falling when climbing a wall is a common, foreseeable occurrence at a climbing facility. (Id. at 8, lines 3-5.) Defendant further argued that Plaintiff is an intelligent woman, 30 years old at the time of her injury, with a degree in biology. As such, Defendant argued that Plaintiff knew the laws of gravity: what goes up, must come down. (Id. at 8, lines 6-9.) Defendant further argued that a person is said to have assumed the risk if he or she participates in an activity such as climbing where falling is an anticipated and known possibility. (Id. at 9, lines 9-13.) Defendant further argued that Plaintiff testified that she does not know what caused her to fall. (Id. at 7, lines 21-23.)

Plaintiff argued in opposition that Defendant’s own rules required a spotter for climbers and that [*30] Defendant broke its rule and therefore proximately caused Plaintiff’s injury. (Id. at 9, lines 24-26; at 10, lines 2-6; at 11, lines 11-16, 24-25; at 12, lines 15-21.) Plaintiff further argued that “in every kind of climbing you are required to have a rope, a harness, something to prevent an injury and a fall.” (Id. at 12, lines 11-13.) Plaintiff further argued that a spotter “will say lift your arms, turn to the side” as a person begins to fall. (Id. at 11, lines 24-25.)

Plaintiff further argued that proximate cause has been established and the real question for the Court is whether Plaintiff assumed the risk. (Id. at 12, lines 22-25.) Plaintiff argued that “unusually thick” mats around the climbing wall gave Plaintiff a false sense of security. (Id. at 13, line 8.) Plaintiff further argued that Plaintiff saw people fall onto the soft matted floor without getting hurt, and therefore assumes this is a safe sport, but it is not. Plaintiff argued that assumption of risk is a subjective standard and that Plaintiff was a novice who had only [**16] climbed with ropes and harnesses prior to the day of her injury and thus did not assume the risk of “falling on a soft mat and breaking an elbow.” (Id. at 10, lines 7-10; at 14, lines 13-16.)

Plaintiff [*31] argued that there is a distinction between assuming the risk that one could fall from a climbing wall and assuming the risk that one could be injured from the fall. Plaintiff further argued that Plaintiff assumed the former, not the latter, in part because of a false sense of security due to the mats and not having a spotter. (Id. at 14, lines 23-26; at 15, lines 2-23; at 16, lines 2-9.) Plaintiff further argued that the mats that are placed by the climbing wall are “extremely substantial,” “for the sole purpose of preventing injury,” and “designed supposedly to prevent injury from a fall, and . . . didn’t.” (Id. at 16, lines 16-20.)

Plaintiff argued that, as a matter of law, because the mats were there, Plaintiff cannot be held to the belief that she was going to get hurt when she went up the climbing wall. (Id. at 16, lines 22-24.) Plaintiff clarified that she is not claiming the mat was inadequate. (Id. at 16, line 21.) Plaintiff argued that there was no assumption of injury from climbing or falling normally from the Defendant’s gym’s climbing wall. (Id. at 17, lines 13-14.) Plaintiff argued further that Plaintiff “did not assume the risk of being injured by a fall, period.” (Id. at 18, line 20.)

Defendant argued in reply that Plaintiff [*32] was bouldering, which by definition involves no ropes or harnesses, and did so voluntarily. (Id. at 23, lines 11-12.) Defendant further argued that Plaintiff’s liability expert cites to no regulations, standards, or rules that would quantify his reasoning why there should have been ropes, harnesses, or a spotter, or why the mat gave Plaintiff a false sense of security. (Id. at 23, lines 17-22.) Defendant further argued that the law says that when someone assumes the risk, they are assuming the risk inherent to the activity, and that assumption of injury specifically is not required. (Id. at 23, line 26; at 24, lines 2-5.) Defendant further argued that, in the instant case, the risk inherent to bouldering is falling, and that falling from a height may result in injury. As such, Defendant argued, Plaintiff assumed the risk. (Id. at 24, lines 4-18.)

Defendant further argued that there was no negligent hidden condition and nothing wrong with the wall or the mats. (Id. at 24, lines 20-21, 24-25.) Defendant argued that a climbing wall of 13 to 14 feet and mats of 12-inch thickness, as here, are typical. (Id. at 24, lines 25-26; at 25, lines 2-3.) Defendant further argued that stating that Plaintiff fell because she did not have a rope or harness [*33] is speculation insufficient to defeat a motion for summary judgment. (Id. at 25, lines 4-6.)

[**17] DISCUSSION

I. The Summary Judgment Standard

“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor, and he must do so by tender of evidentiary proof in admissible form.” (Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980] [internal quotation marks and citation omitted].) “Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution.” (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81, 790 N.E.2d 772, 760 N.Y.S.2d 397 [2003].) “On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party.” (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503, 965 N.E.2d 240, 942 N.Y.S.2d 13 [2012] [internal quotation marks and citation omitted].) In the presence of a genuine issue of material fact, a motion for summary judgment must be denied. (See Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231, 385 N.E.2d 1068, 413 N.Y.S.2d 141 [1978]; Grossman v Amalgamated Hous. Corp., 298 A.D.2d 224, 226, 750 N.Y.S.2d 1 [1st Dept 2002].)

II. The Assumption of Risk Doctrine

“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent [*34] in the activity.” (Cruz v Longwood Cent. School Dist., 110 AD3d 757, 758, 973 N.Y.S.2d 260 [2d Dept 2013].) “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” (Id.) However, “[s]ome of the restraints of civilization must accompany every athlete onto the playing field. Thus, the rule is qualified to the extent that participants do not consent to acts which are reckless or intentional.” (Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986].) “[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.” (Morgan v State, 90 NY2d 471, 485, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997] [internal quotation marks omitted].) In assessing whether a plaintiff had the appropriate awareness to assume the subject risk, such “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.” (Id. at 485-486.)

[**18] In 1975, the state legislature codified New York’s comparative fault law when it passed what is now CPLR 1411, “Damages recoverable when contributory negligence [*35] or assumption of risk is established.” CPLR 1411 provides:

“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”

Notwithstanding the text of CPLR 1411, the Court of Appeals has held that, in certain circumstances, a plaintiff’s assumption of a known risk can operate as a complete bar to recovery. The Court of Appeals refers to this affirmative defense as “primary assumption of risk” and states that “[u]nder this theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.” (Custodi v Town of Amherst, 20 NY3d 83, 87, 980 N.E.2d 933, 957 N.Y.S.2d 268 [2012] [internal quotation marks omitted].) In assuming a risk, Plaintiff has “given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do [*36] or leave undone.” (Turcotte v Fell, 68 NY2d 432, 438, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986], quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed].)

Nonetheless, the doctrine of primary assumption of risk has often been at odds with this state’s legislative adoption of comparative fault, and as such has largely been limited in application to “cases involving certain types of athletic or recreational activities.” (Custodi, 20 NY3d at 87.) In Trupia ex rel. Trupia v Lake George Cent. School Dist., Chief Judge Lippman discussed the uneasy coexistence of the two doctrines:

“The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in facilitating free and vigorous participation in athletic activities. We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these [**19] beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context [*37] and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation that the Legislature has deemed applicable to any action to recover damages for personal injury, injury to property, or wrongful death.”

(14 NY3d 392, 395-96, 927 N.E.2d 547, 901 N.Y.S.2d 127 [2010] [internal quotation marks and emendation omitted].) Writing two years later, Chief Judge Lippman further explained the scope of primary assumption of risk in Bukowski v Clarkson University:

“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities s aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Relatedly, risks which are commonly encountered or ‘inherent’ in a sport, such as being struck by a ball or bat in baseball, are risks [*38] for which various participants are legally deemed to have accepted personal responsibility. The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions.”

(19 NY3d 353, 356, 971 N.E.2d 849, 948 N.Y.S.2d 568 [2012] [internal quotation marks and emendation omitted].)

III. Defendant Has Shown Prima Facie that Plaintiff Assumed the Risk of Injury from Falling from Defendant’s Gym’s Climbing Wall, and Plaintiff Has Failed to Raise a Genuine Issue of Material Fact in Response

Based upon the Court’s reading of the submitted papers and the parties’ oral argument before it, the Court finds that Defendant has shown prima facie that Plaintiff assumed the risks associated with falling from Defendant’s gym’s climbing wall, including injury. Defendant has shown prima facie that Plaintiff voluntarily participated in the sporting activity of bouldering at Steep Rock Bouldering and assumed the risks inherent therein. Specifically, Defendant has [**20] referred to Plaintiff’s deposition testimony, which was sufficient to establish that Plaintiff: (1) had experience with rock climbing; (2) was aware of the conditions of the climbing wall from observations both at a distance–from looking online at Facebook and watching others–and [*39] up close on her two or three successful climbs prior to her injury; and (3) was aware that a person could drop down from the wall, as Plaintiff had herself already jumped down from the wall of her own accord.

In response, Plaintiff fails to raise a genuine issue of material fact. Steep Rock Bouldering’s climbing wall is of an average height for bouldering walls according to Dr. Richards. Dr. Nussbaum’s assertion that climbing on any wall of a height of eight feet or more requires a harness or similar device is conclusory, unsupported by citation, and, ultimately, unavailing.

To require harnesses and ropes at Steep Rock Bouldering would fundamentally change the nature of the sport. Bouldering is a type of climbing that does not require ropes or harnesses. The Court finds that injury from falling is a commonly appreciable risk of climbing–with or without harnesses, ropes, or other safety gear–and that Plaintiff assumed this risk when she knowingly and voluntarily climbed Defendant’s gym’s climbing wall for the third or fourth time when she fell. To hold that Defendant could be liable for Plaintiff’s injuries because it allowed her to climb its wall without a rope and harness would effectively [*40] make the sport of bouldering illegal in this state. To do so would fly in the face of the reasoning in Trupia that such “athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and . . . that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise.” (14 NY3d at 395-96.)

In dismissing the instant case, the Court notes that the facts here are distinguishable from those in Lee v Brooklyn Boulders, LLC ( NYS3d , 2017 NY Slip Op 08660, 2017 WL 6347269, *1 [2d Dept, Dec. 13, 2017, index No. 503080/2013]) and McDonald v. Brooklyn Boulders, LLC (2016 N.Y. Misc. LEXIS 5211, 2016 WL 1597764, at *6 [Sup Ct, Kings County Apr. 12, 2016]). Both cases involved plaintiffs who were injured when they jumped down from the climbing wall–at the same defendant’s bouldering facility–and each plaintiff’s foot landed in a gap between the matting. In both cases, summary judgment was denied because there was a genuine issue of material fact concerning whether the gap in the matting presented a concealed risk. Here, Plaintiff does not contend that she was injured by such a concealed risk, but essentially argues she should not have been allowed to [**21] voluntarily engage in the sport of bouldering. For the reasons previously stated, this Court finds such an argument to be [*41] unavailing.

CONCLUSION

Accordingly, it is

ORDERED that Defendant Steep Rock Bouldering, LLC’s motion pursuant to CPLR 3212 for an order granting Defendant summary judgment against Plaintiff Min-Sun Ho is granted; and it is further

ORDERED that the action is dismissed; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of Defendant; and it is further

ORDERED that counsel for movant shall serve a copy of this order with notice of entry upon Plaintiff and upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158M), who are directed to mark the court’s records to reflect the dismissal of this action.

The foregoing constitutes the decision and order of the Court.

Dated: January 2, 2018

New York, New York

/s/ Robert D. Kalish, J.S.C.

HON. ROBERT D. KALISH


Under California law, you assume the risk of getting hit by a toboggan being towed by a snowmobile while snowboarding.

Both sides of this case created problems for themselves, and both sides stretched their credibility. In the end, it was easy for the plaintiff to lose because of that credibility gap created by the facts and when those facts were reported.

Forrester v. Sierra at Tahoe, 2017 Cal. App. Unpub. LEXIS 5204

State: California

Plaintiff: Dominique Forrester

Defendant: Sierra at Tahoe

Plaintiff Claims: General Negligence are Claims for Breach of Statutory Duty; Negligence Per Se; Gross Negligence and/or Reckless Conduct; and/or Common Carrier Liability

Defendant Defenses: assumption of the risk

Holding: for the defendant

Year: 2017

Summary

Snowboarder loses suit claiming a toboggan being towed by a snowmobile hit him on a beginner slope. By reporting the incident after he left the resort, he created a credibility issue.

In the end, getting hit by a toboggan being towed by a snowmobile is a risk you assume when skiing in California.

Facts

The facts in a case like this are always screwy to begin with and in my opinion, screwy from both sides of the litigation. The plaintiff and a friend were snowboarding. The plaintiff was filming his friend doing jumps. After the last jump, the plaintiff snowboarded toward the bottom which was on a beginner run waiting for his friend. While waiting, he heard someone yell, and he was hit by a toboggan. He hit his head suffering injuries. The plaintiff thought he saw a ski patroller driving away with the toboggan attached to the snowmobile. The fall broke some of his equipment also.

His friend saw the incident and stated that the driver was wearing a different uniform from what the plaintiff reported. Neither of them saw lights nor a flag on the snowmobile.

The plaintiff and his friend did not report the injury but drove home. On the way home they decided the plaintiff should call Sierra. He did and got a recording machine. He then started vomiting.

The next day the plaintiff hurt all over. Eventually, he was diagnosed with a concussion, a whiplash and disc degeneration.

The plaintiff called the ski area the next day and was told there was no one for him to talk to. He was to call back Wednesday. Wednesday, he called back and filed a report.

Forrester called Sierra again on Monday morning. He was told there was no one with whom he could discuss the incident and to call back on Wednesday. He called Wednesday and spoke with Evan MacClellan, the risk manager. MacClellan completed an incident report based on the phone call. The report described the injury as occurring at the bottom of Broadway near the terrain park. The report described that Forrester was hit by a “snowmobile” (patroller), got up after the incident, and did not report it. On the way home he started to vomit and went to the hospital the next day. The report listed Medina as a witness and included his telephone number.

The same day the plaintiff contacted an attorney.

The ski area investigated the claim. No ski patrollers or terrain park employees knew of any collision with a toboggan and a snowboarder.

MacClellan spoke with the ski patrol and terrain park employees about Forrester’s claim. None of the ski patrollers on duty that day or others with whom they spoke recalled any accident or collision. Both MacClellan and the general manager, John Rice, were suspicious of the claim; in 37 years in the ski industry, Rice had never seen a report made days after the incident. MacClellan did not call Medina, although Forrester had identified him as a witness. MacClellan could not determine that the accident actually took place. He first learned that Forrester claimed the collision was with a towed toboggan rather than the snowmobile itself after Forrester’s deposition.

Obviously, the ski area felt that no collision or accident had occurred. The case went to trial, and the plaintiff lost because the jury found he had assumed the risk of injuries.

Normally, juries like judges are asked to assemble, to a limited extent, the facts upon which they base their decision. In this case that was not done.

As we noted earlier, this case is unusual among liability cases in general because the collision itself was in dispute. Because the jury was not asked to make any preliminary factual findings, we cannot even assume that it found a collision occurred. We know only that the jury found Sierra did not unreasonably increase the inherent risk of snowboarding by its conduct on the day in question–whatever its conduct was found to be.

The plaintiff appealed the decision.

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

The court first looked into the issues surrounding the snowmobile. The defendant kept a checklist that was to be completed each day before the snowmobile was ridden. The checklist was not kept after it was completed.

Sierra requires its snowmobile drivers to follow a safety checklist and check lights, brakes, and other functions before a snowmobile is taken out. The checklist is a written form detailing the items to be checked and the name of the person taking out the snowmobile. The checklist is discarded daily unless an entry triggers a need for snowmobile maintenance. Due to this practice of discarding the checklist daily, no attempt was made to find the checklists for March 7, and the driver of the snowmobile allegedly involved in the accident was never found.

The day in question was one of the busiest of the year. The ski area employees testified that it was so buy, it would have been impossible to drive a snowmobile through the crowd on the slope in question.

The court then reviewed the evidence of the competing expert witnesses, both of whom offered testimony that at best seems stretched and will be ignored here and was ignored a lot by the court.

The court then reviewed the defenses offered by the ski area, starting with Primary Assumption of the Risk.

“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” “Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports.”

Ski areas and other operators, sponsors and instructors of recreational activities have no duty to eliminate the risk. They do have a duty not to increase the risk beyond those inherent in the sport. The court based on this analysis looked at whether a toboggan is an inherent risk of skiing and boarding and found it was.

We first address the threshold question of whether unwanted contact with a snowmobile is, in general, an inherent risk of snowboarding. We conclude that it is.

On at least two occasions, this court has found a collision with resort equipment at a ski resort to be an inherent risk of the sport.

In both examples, the court compared the collisions to collisions with stationary objects, a lift tower and a tree.

The court looked at the facts in this case and concluded the incident was a collision with a toboggan, rather than a toboggan hitting a snowboarder. I suspect the facts in the two cases the court reviewed would have different conclusions if the lift tower or the tree had hit the skiers?

To reach this conclusion, the court went back to the statements of the experts of both the plaintiff and the defendant who testified that snowmobiles were a standard practice in the sport of skiing.

There are many inherent risks of injury and emergency in skiing and snowboarding, and snowmobiles are used to respond quickly to injuries as well as to other emergencies such as lift malfunctions requiring evacuation, fire, gas leaks, and altercations. It appears to us that the use of snowmobiles on the ski slopes at ski resorts is at least as necessary to the sport as the snowmaking equipment in Souza or the directional signs acknowledged as “necessary” in Van Dyke v. S.K.I. Ltd.

The court then also looked at Secondary Assumption of Risk.

The term “assumption of risk” has been “used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). In the latter class of cases, we concluded; the issue could be resolved by applying the doctrine of comparative fault, and the plain-tiff’s decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiffs knowing and voluntary acceptance of the risk functions as a form of contributory negligence.

The court held that discussing secondary assumption of risk was not necessary in this case because the jury found the defendant was not liable because of primary assumption of the risk.

The plaintiff also argued that an evidentiary ruling should have been made in the plaintiff’s favor because the defendant failed to keep the snowmobile checklist. The rules and laws of what evidence should be kept or can be destroyed to have changed dramatically in the past twenty years, and this area of law is a hot bed of litigation and arguments.

However, the court moved around this issue because the checklist was destroyed every day. The defendant gave the plaintiff a list of the possible drivers of snowmobiles at the resort. Because the checklist was only used by the first driver, and the snowmobile could have been ridden by someone other than the driver who completed the checklist, the court found it was not critical to the case. The plaintiff request of the information had occurred after the checklist had been destroyed as was the habit for the defendant.

So Now What?

First being hit by an object being towed by a snowmobile inbounds in California is an assumed risk. This is the first case f this type I have found. Every other case where the defendant has been held not liable because of assumption of the risk at a ski area was based on the skier or boarder hitting a fixed object.

Second, credibility maybe all you have in some cases. Consequently, you never want to stretch or destroy your credibility, and you do not want your experts to do the same.

Last, if you are hurt at a resort, get help at the resort. Some of the plaintiff’s injuries might have been mitigated if treated immediately.

However, all the above issues could be crap, if the jury ruled not because they believed the plaintiff assumed the risk, but because they did not believe the plaintiff at all.

What do you think? Leave a comment.

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