Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640
Blake Haines, Plaintiff,
Get Air Tucson Incorporated, et al., Defendants.
No. CV-15-00002-TUC-RM (EJM)
United States District Court, D. Arizona
October 19, 2018
Honorable Rosemary Marquez United States District Judge.
Pending before the Court is Defendant Get Air, LLC’s (“Defendant” or “GALLC”) Motion for Summary Judgment. (Doc. 238.) On August 2, 2018, Magistrate Judge Eric J. Markovich issued a Report and Recommendation (Doc. 266), recommending that the Motion for Summary Judgment be granted as to Plaintiff’s punitive damages claim but otherwise denied. Defendant filed an Objection (Doc. 269), to which Plaintiff responded (Doc. 273).
I. Standard of Review
A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo determination of those portions” of the magistrate judge’s “report or specified proposed findings or recommendations to which objection is made.” Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).
II. GALLC’s Objection to Judge Markovich’s Report and Recommendation
As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson. (See Doc. 158 at 12-14; Doc. 172 at 5.) Plaintiff claims that his injuries were caused by allegedly deficient safety rules contained in the EH. (See Doc. 84 at 6, 10, 12-13.) In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported. (Doc. 238 at 1-2.)
Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. (Doc. 266 at 17.) Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. (Id. at 10.) Judge Markovich found that summary judgment on the issue of breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff. (Id. at 7-8.) Judge Markovich also found that the dismissal of Val Iverson does not preclude Plaintiff from pursuing this action against GALLC, because a stipulated dismissal with prejudice no longer operates as an adjudication on the merits under Arizona law, and because Plaintiff’s claims are based on GALLC’s own negligence and piercing the corporate veil rather than on vicarious liability. (Id. at 16.) Finally, Judge Markovich found that Defendant’s causal-connection argument is “belied by other evidence previously considered by the Court.” (Id. at 16-17.)
Defendant argues that Judge Markovich erred in finding that GALLC owed Plaintiff a duty, in finding a material factual dispute with respect to the issue of breach of the standard of care, and in finding that GALLC can be held liable despite the dismissal of Val Iverson. (Doc. 269 at 1-10.) GALLC’s Objection to the Report and Recommendation does not address Judge Markovich’s finding on causation. The parties do not object to Judge Markovich’s finding that Plaintiff’s punitive-damages claim is factually unsupported.
As no specific objections have been made to Judge Markovich’s recommendations regarding Plaintiff’s punitive-damages claim and Defendant’s causation argument, the Court has reviewed those portions of the Report and Recommendation for clear error, and has found none. Accordingly, the Court will accept and adopt Judge Markovich’s recommendation to grant Defendant’s Motion for Summary Judgment with respect to Plaintiff’s punitive damages claim and to deny the Motion for Summary Judgment to the extent it argues a lack of evidence of causation.
A. Existence of Duty
“To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.” Quiroz v. Alcoa Inc., 416 P.3d 824, 827-28 (Ariz. 2018). The existence of a duty is determined by the Court as a matter of law. See Id. at 828. A duty may “arise from a special relationship between the parties, ” including a special relationship finding its basis in “undertakings.” Stanley v. McCarver, 92 P.3d 849, 851 (Ariz. 2004); see also Quiroz, 416 P.3d at 829.
Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship. However, even though there was no direct business-customer relationship, Plaintiff and GALLC nevertheless had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona case law as well as sections 323 and 324A of the Restatement (Second) of Torts.
In McCarver, the Arizona Supreme Court imposed a duty of reasonable care on a radiologist contracted by the plaintiff’s employer to interpret an x-ray of the plaintiff’s chest, despite the lack of a traditional doctor-patient relationship. 92 P.3d at 853. In imposing a duty, the Court analyzed “whether the doctor was in a unique position to prevent harm, the burden of preventing harm, whether the plaintiff relied upon the doctor’s diagnosis or interpretation, the closeness of the connection between the defendant’s conduct and the injury suffered, the degree of certainty that the plaintiff has suffered or will suffer harm, the skill or special reputation of the actors, and public policy.” Id. Though the facts at issue in McCarver differ from those at issue in the present case, the factors supporting imposition of a duty in McCarver also support imposition of a duty here. By including safety rules in a generic EH developed for use in other Get Air parks, GALLC placed itself in a unique position to prevent harm to customers of those other Get Air parks. Get Air Tucson customers such as Plaintiff relied upon the safety rules developed by GALLC and enforced by Get Air Tucson. Plaintiff alleges that his injuries were caused by deficiencies in those safety rules. GALLC’s experience in the field of trampoline-park operations gave it special skill and a special reputation with respect to the creation of safety rules for other Get Air parks. Deficient safety rules increase the risk of harm to trampoline park customers, and the burden of developing sufficient safety rules is minimal.
The Court in McCarver also found that imposition of a duty in that case comported with Restatement (Second) of Torts § 324A. See McCarver, 92 P.3d at 853-54. Defendant argues in its Objection that Restatement (Second) of Torts § 324A “can appear to be the basis of the holding” in McCarver “but it is not.” (Doc. 269 at 3.) The import of Defendant’s argument is unclear. Whether it forms the basis of the holding in McCarver or not, Restatement (Second) of Torts § 324A has been adopted by Arizona courts. See Tollenaar v. Chino Valley Sch. Dist., 945 P.2d 1310, 1312 (Ariz. App. 1997). Section 324A provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965).
Restatement (Second) of Torts § 324A supports the existence of a duty in this case. GALLC undertook to render services to Get Air Tucson (e.g., development of an EH containing safety rules) which were necessary for the protection of Get Air Tucson’s customers. Plaintiff alleges that GALLC failed to exercise reasonable care in the development of the EH’s safety rules; if so, the failure increased the risk of harm to Get Air Tucson’s customers. See Restatement (2d) of Torts § 324A(a) (1965). Furthermore, GALLC undertook to perform a duty-development of reasonable safety rules-which Get Air Tucson owed to its customers. See Id. at § 324A(b). Plaintiff alleges he was injured as a result of his reliance upon the safety rules developed by GALLC and enforced by Get Air Tucson. See Id. at § 324A(c).
Restatement (Second) of Torts § 323 has also been adopted by Arizona courts, see Tollenaar, 945 P.2d at 1312, and it also supports the existence of a duty here. Section 323 provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care, increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.
Restatement (2d) of Torts § 323 (1965). GALLC’s creation of safety rules was a service rendered not only to Get Air parks but to the customers of those parks, including Get Air Tucson customers.
The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.
The Court also agrees with Judge Markovich that there is a genuine issue of material fact precluding summary judgment on the issue of whether GALLC breached its duty to exercise reasonable care in the creation of the EH’s safety rules. Specifically, there is a factual dispute regarding the definition of “somersault, ” as used in the EH’s safety rules and, therefore, a dispute regarding whether the flip maneuver attempted by Plaintiff was prohibited by the safety rules. The evidence identified by Plaintiff and Defendant indicates that there may be differing technical and layperson definitions of the term “somersault.” Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, ” as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults. (See Doc. 246 at 4-5; Doc. 246-1.) Accordingly, there is evidence from which a reasonable jury could find that the EH’s safety rules were defective for not clearly prohibiting the flip maneuver that led to Plaintiff’s injuries.
C. Liability of GALLC
Defendant argues that the only act of negligence alleged by Plaintiff is GALLC’s creation of allegedly defective safety rules, that Val Iverson was solely responsible for the creation of those safety rules, and that GALLC cannot be held vicariously liable for the conduct of Val Iverson because he has been dismissed with prejudice. However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence. See Kopp v. Physician Grp. of Ariz., Inc., 421 P.3d 149, 150 (Ariz. 2018).
IT IS ORDERED that Defendant’s Objection (Doc. 269) is overruled, and Judge Markovich’s Report and Recommendation (Doc. 266) is accepted and adopted as set forth above.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Doc. 238) is granted as to Plaintiffs punitive damages claim only and is otherwise denied.
 Record citations refer to the page numbers generated by the Court’s electronic filing system.
 Defendant argues that § 324A is no longer a permissible basis of duty in Arizona because it is based on foreseeability. (Doc. 269 at 8.) Defendant cites no authority in support of the proposition that Arizona courts no longer follow § 324A. (See Doc. 247 at 1-4; Doc. 269 at 8.) Arizona courts have rejected the concept of duty based on the creation of an unreasonable risk of harm to “a foreseeable plaintiff, ” meaning a plaintiff “who is within the orbit or zone of danger created by a defendant’s conduct.” Quiroz, 416 P.3d at 828 (internal quotation marks omitted). Here, however, GALLC owed a duty to Get Air customers based on the special relationship created as a result of GALLC undertaking to develop safety rules for the protection of those customers. The duty arises from the special relationship rather than “zone of danger” foreseeability. See Id. at 829 (given the elimination of foreseeability from the duty framework, “the duty analysis” under Arizona law is limited to “common law special relationships or relationships created by public policy”).
Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.Posted: August 13, 2018
Release thrown out because of New York’s anti-release statute and condition causing plaintiff’s injury was the risk was “un-assumed, concealed or unreasonably increased” eliminating assumption of the risk claim.
State: New York, Supreme Court of New York, Kings County
Plaintiff: Meghan McDonald
Defendant: Brooklyn Boulders, LLC
Plaintiff Claims: negligence,
Defendant Defenses: Release and Assumption of the Risk
Holding: for the Plaintiff
Another case where it appears, the court was more on the plaintiff’s side then neutral. However, you must play with the cards you are dealt. Here a person injured at a climbing gym survived a motion for summary judgment because the release violated New York’s release law, and she could not assume the risk of the mats separating because it was not obvious or known to her.
The plaintiff was an employee of another climbing wall business. She was the coach of the climbing team there. She was at the defendant’s climbing wall business either to coach her team or to climb personally, which were in dispute. While climbing on an overhang she fell and her foot went between the mats causing her injury.
The plaintiff did not pay to climb because the clubs had reciprocal agreements allowing employees to climb at other gyms for free. The mats were Velcroed together. The plaintiff sued. The defendant club filed a motion for summary judgment, and this is the court’s response to that motion.
Analysis: making sense of the law based on these facts.
The defendant argued the release should stop the plaintiff’s lawsuit, and she assumed the risk of her injury.
The plaintiff argued New York General Obligations Law (GOL) §5-326 made the release unenforceable.
The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect
New York General Obligations Law (GOL) §5-326 has been held to not apply to teaching, Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003). Because the plaintiff was there with students, the defendant argued the statute did not apply.
However, the plaintiff argued she was not teaching, just climbing with friends who were former students.
In support of her position that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work.
The other defense to New York General Obligations Law (GOL) §5-326 is there was no fee paid by the plaintiff to climb at the defendant gym. She was there because of the reciprocal program in place with her employer.
The court agreed she was not teaching and found she had paid a fee to climb at the defendant’s gym. Because the program was part of her employment compensation, she had paid a fee by taking advantage of the opportunity as an employee.
In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of their employment and thus could be considered compensation.
The final defense was assumption of the risk. The plaintiff said she had never been to that area of the gym before, however, she did scan the area before climbing.
Under NY law, the assumption of risk defense is defined as:
The assumption of the risk defense is based on the proposition that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”
By engaging in the activity or sport the plaintiff gives consent to the risks and limits the duty owed by the defendant. However, the risks of the activity, according to this court must be “fully comprehended or perfectly obvious.” The court then determined “Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks.”
Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’
The Velcro connection holding the mats together was an injury for the jury to determine because the court found the condition was a concealed risk.
So Now What?
It is pretty skanky (legal word) for an employee of one gym, climbing for free, to sue another gym. I suspect the lawsuit was probably a subrogation claim where her health insurance was attempting to recover for her medical bills. However, that is just speculation.
New York General Obligations Law (GOL) §5-326 is read differently by ever judge that reviews it. Some simply say it does not apply and allows the release to prevail. Any court that seems to do an analysis of the law seems to rule on the side of the plaintiff lately. The late is left over from the days when consumers did not know what a release was and were caught off guard when they risked their neck in gyms.
However, the chances of it being repealed are slim, too many plaintiffs use the law so having a recreation business in New York requires more work on the part of the recreation provider to prove assumption of the risk.
Video’s, lengthy assumption of the risk agreements outlining the known and unknown risks and more in-depth classes for beginners and new people at the gym will be required in this jurisdiction.
Can you see this climbing coach being told she must take a one-hour class on climbing because she has never been to the gym before?
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[**1] Meghan Mcdonald, Plaintiff, – against – Brooklyn Boulders, LLC., Defendant. Index No. 503314/12
SUPREME COURT OF NEW YORK, KINGS COUNTY
2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)
April 12, 2016, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: climbing, mat, climb, team, rock climbing, recreational, leave to amend, affirmative defense, risk doctrine, instructional, bouldering, void, appreciated, concealed, teaching, training, wasn’t, amend, sport’, Rock, gym, matting, reciprocal agreement, public policy, dangerous condition, unreasonably, amusement, watching, unaware, advice
JUDGES: [*1] PRESENT: HON. MARK I. PARTNOW, J.S.C.
OPINION BY: MARK I. PARTNOW
Upon the foregoing papers, defendant Brooklyn Boulders, LLC (defendant or Brooklyn Boulders) moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff Meghan McDonald’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.
Plaintiff is employed as a program director and head coach of a youth rock climbing team at The Rock Club, an indoor rock climbing gym in New Rochelle, New York and has been so employed since 2006. On September 1, 2011, plaintiff went to Brooklyn Boulders with some of the members of her youth climbing team and other adults. Brooklyn Boulders is an indoor rock climbing and bouldering facility located in Brooklyn, New York. Plaintiff testified that this trip was a treat for her team and that she would be climbing that day too. It is undisputed that plaintiff signed a waiver before she began climbing and that she did not pay an entry fee pursuant to a reciprocal agreement in place between The Rock Club and Brooklyn Boulders as well as other rock climbing facilities. After [*2] approximately one and a half hours of bouldering with her team, plaintiff went to an area of the bouldering wall known as The Beast, which is very challenging in that it becomes nearly horizontal for some distance. It was her first time on the Beast, although she had been to Brooklyn Boulders on prior occasions. Plaintiff testified that she visually inspected the area below the Beast before she began her climb. Lance Pinn, the Chief Marketing Officer, President and founder of Brooklyn Boulders testified that there was foam matting system in place, with matting wall to wall in the area of the Beast. The largest pieces available were 9 feet by 7 feet so the area where the foam pieces met when placed on the ground was covered with Velcro to keep the foam matting pieces flush together.
[**3] Plaintiff finished her upward climb and then climbed down as far as she could and then looked down below to make sure there were no shoes in her way and that her spotter was out of the way. She stated that she knew that there were mats underneath so she jumped down a distance of approximately five feet. Her right foot landed on the mat but her left foot landed on the Velcro strip where two floor mats met. [*3] She testified that her left foot went through the Velcro into a space between the two mats. Plaintiff sustained an ankle fracture as a result and required surgeries and physical therapy.
Brooklyn Boulders’ Motion
Brooklyn Boulders moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.
Defendant argues that the liability waiver that plaintiff signed when she entered the facility releases it from liability. Defendant maintains that plaintiff was an expert climber and coach and understood the meaning of the waiver and appreciated the assumption of risk involved in the activity that she was engaged. Defendant also points out that she did not pay a fee to climb that day based upon the reciprocal program in place with other climbing facilities. Defendant claims that plaintiff was instructing her students that day as they observed her climbing and point to her testimony as follows:
[**4] Q: And were you teaching them, you know, what to do and what not to do?
A: I wasn’t teaching them, but if they had a question [*4] they would ask me hey, should I do this or do this or what do you think of this move I always give advice. (Page 30, lines 12-17).
Q. Did you ever teach any or give any instruction there?
A. Just of terms of like in my kids I probably give instruction everywhere I go. There are so many people that climb at Brooklyn Boulders that are total beginners. I’m often spotting brand new people and telling them how to spot one another. (Page 45, lines 5-12).
Defendant notes that although General Obligations Law (GOL) §5-326 renders contract clauses which release certain entities from liability void as against public policy, activities which are “instructional” as opposed to recreational are found to be outside the scope of GOL §5-326. Defendant maintains that here, plaintiff was at Brooklyn Boulders to instruct her team members and thus GOL §5-326 is not applicable. Moreover, defendant argues that the waiver at issue was explicit, comprehensive and expressly provided that Brooklyn Boulders was released from liability for personal injuries arising out of or connected with plaintiff’s participation in rock climbing.
In support of its motion, defendant submits the signed waiver which states, in pertinent part:
I acknowledge [*5] that climbing on an artificial climbing wall entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential [**5] qualities of the activity. I have examined the Climbing Wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the Climbing Wall, including but not limited to:
a:. All manner of injury resulting from my falling off or from the Climbing Wall and hitting the floor, wall faces, people or rope projections, whether permanently or temporarily in place, loose and/or damaged artificial holds, musculoskeletal injuries and/or overtraining; head injuries; or my own negligence . . . I further acknowledge that the above list is not inclusive of all possible risks associated with the Climbing Wall and related training facilities and I agree that such list in no way limits the extent or reach of this Assumption of Risk, Release and Indemnification . . .
Defendant also argues that since plaintiff did not pay a fee to climb that day that her activity was [*6] outside the scope of GOL §5-326.
Next defendant argues that the assumption of risk doctrine bars plaintiff’s claims because, as a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation in such event.
Finally, defendant argues that it should be allowed to amend its answer to assert the affirmative defense of release. Defendant contends that it was unaware of the existence of the release and waiver when it served its answer. Moreover, defendant contends that plaintiff will not be prejudiced because she was, in fact, questioned about the release that she signed during her deposition.
[**6] Plaintiff opposes defendant’s motion arguing that General Obligations Law §5-326 renders the waiver and release that she signed void. She points out that defendant is attempting to circumvent this law by asserting that the activity in which plaintiff was involved was instructional as opposed to recreational and misstates her testimony in an attempt to mislead the court. Plaintiff contends that such behavior should be sanctioned. In support of her position [*7] that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work. (Page 62, lines 5-13). She further points to the following testimony:
Q: In September of 2011 when you went there on the date in question what was your purpose of being there?
A: I went there with a handful of kids who are on my climbing team, but it wasn’t a specific training day. Usually when we go it would be for training but this was just like a fun day. I was going to climb with them.
Q: And were they climbing around you.
A: Yeah, they were.(page 29, lines 14-25).
Q: And were you supervising them?
A: I wasn’t their active supervisor. I’m a coach though so I’m always watching what they do. But this was one of the few times that I was actually going to be climbing so it was kind of a treat for them I guess to be able to climb with me.
[**7] Q: Were they watching you?
A: A few of them were watching me yeah.
Q: And were [*8] you teaching them, you know, what to do and what not to do?
A: I wasn’t teaching them, but if they had a question they would ask me hey, should I do this or do this or what do you think of this move I always give advice (page 30, lines 2-17).
Plaintiff also contends that defendant incorrectly argues that GOL §5-326 does not apply because she cannot be classified a user since she did not pay to climb that day. In this regard, plaintiff contends that she is indeed a user and the law is applicable because there was a reciprocal agreement between the gym at which she was employed and Brooklyn Boulders pursuant to which employees were not required to pay a fee to use either gym. Thus, she contends the value of the reciprocity agreement is the compensation.
Next, plaintiff argues that the assumption of risk doctrine is not applicable where the risk was un-assumed, concealed or unreasonably increased. Plaintiff argues that the question of whether the gap in the mats at Brooklyn Boulders is a commonly appreciated risk inherent in the nature of rock climbing necessitates denial of the summary judgment motion. She claims that she did not assume the risk that there would be a gap in the matting that was in [*9] place as protection from a fall. Moreover, plaintiff maintains that defendant fails to proffer any evidence demonstrating when the mats were last inspected prior to plaintiff’s accident.
Plaintiff argues that issues as to whether dangerous or defective conditions exist on property and whether the condition is foreseeable can only be answered by a jury. Thus, she [**8] contends that whether the condition of the mats was dangerous and/or defective is an issue of fact and that defendant has failed to proffer any evidence that the mats were in a reasonably safe condition.
Finally, plaintiff opposes defendant’s request to amend its answer to add the affirmative defense of waiver. Plaintiff argues that the existence of the waiver was known and that it is disingenuous at best to assert otherwise. Plaintiff contends that this request, post note of issue, is highly prejudicial to plaintiff.
In reply, defendant argues that plaintiff’s demand for sanctions lacks merit and that plaintiff’s testimony establishes that she was in fact, instructing her students when her accident occurred. Defendant contends that the waiver applies. Next defendant claims that as far as inspection of its equipment it had a [*10] route setting department that checked its walls and mats and that bouldering climbers were responsible for enuring their own safety when climbing. Finally, defendant argues that the assumption of risk doctrine applies and that plaintiff visually inspected the area before the accident and that the Velcro covers were visible and moreover, she had the option to use additional mats underneath her while climbing. Defendant further contends that the mats did not constitute a dangerous condition. Finally, Brooklyn Boulders reiterates its request for leave to amend its answer to assert the affirmative defense.
Leave to Amend
Generally, in the absence of prejudice or surprise to the opposing party, leave to amend pleadings should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (Yong Soon Oh v Hua Jin, 124 AD3d 639, 640, 1 N.Y.S.3d 307 ; see Jones v LeFrance Leasing Ltd. Partnership, 127 AD3d 819, 821, 7 N.Y.S.3d 352 ; Rodgers v New York City Tr. Auth., 109 AD3d 535, 537, 970 N.Y.S.2d 572 ; Schwartz v Sayah, 83 AD3d 926, 926, 920 N.Y.S.2d 714 ). A motion for leave to amend is committed to the broad discretion of the court (see Ravnikar v Skyline Credit-Ride, Inc., 79 AD3d 1118, 1119, 913 N.Y.S.2d 339 ). However, where amendment is sought after the pleader has filed a note of issue, “a trial court’s discretion to grant a motion to amend should be exercised with caution” (Harris v Jim’s Proclean Serv., Inc., 34 AD3d 1009,1010, 825 N.Y.S.2d 291 [3d Dept 2006]).
Here, while the court is not satisfied with counsel’s explanation that he was unaware of the [*11] existence of the release and waiver signed by plaintiff at the time that the original answer was served, the court notes that plaintiff was questioned about the release and waiver during her May 6, 2014 deposition so the court finds that there is no surprise of prejudice in allowing defendant leave to serve its amended answer and assert the affirmative defense of release and waiver. Accordingly, that branch of defendant’s motion seeking leave to amend its answer to the complaint to include this affirmative defense is granted.
[**10] General Obligations Law §5-326
GOL §5-326 states that:
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall [*12] be deemed to be void as against public policy and wholly unenforceable.
Such contracts or agreements are void as against public policy unless the entity can show that its facility is used for instructional purposes as opposed to recreational purposes. “The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F.Supp.2d 92, 99 ; McDuffie v Watkins Glen Int’l, 833 F. Supp. 197, 202  ). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411, 743 N.Y.S.2d 539 ; Chieco v Paramarketing, Inc., 228 AD2d 462, 463, 643 N.Y.S.2d 668 ; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370, 618 N.Y.S.2d 428  ), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145, 484 N.Y.S.2d 719  ), have been found to be outside the scope of the statute. “In assessing whether a facility is instructional or recreational, courts have [**11] examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility” (Lemoine v Cornell Univ., 2 AD3d 1017, 1019, 769 N.Y.S.2d 313 , lv denied 2 NY3d 701, 810 N.E.2d 912, 778 N.Y.S.2d 459 ). In cases involving a mixed use facility, courts have focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Id. At 1019; see Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 ; Lux v Cox, 32 F Supp 2d at 99). Where [*13] a facility “promotes . . . a recreational pursuit, to which instruction is provided as an ancillary service,” General Obligations Law § 5-326 applies even if the injury occurs while receiving instruction (Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 249, 835 N.Y.S.2d 170 ; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175, 710 N.Y.S.2d 54 ).
Here, defendant asserts that GOL §5-326 is not applicable because plaintiff was at Brooklyn Boulders to instruct her team members. The court disagrees. Plaintiff’s testimony establishes that she was at Brooklyn Boulders with her team for a day of fun and not to teach them how to climb. Her testimony that she would give advice to the students if they asked does not rise to the level of providing rock climbing instruction on that day. Moreover, the court notes that the cases invloving the exemption for instrctional activities generally involve the person being instructed sustaining an injury and not the person who was providing the instruction. In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, [**12] where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of [*14] their employment and thus could be considered compensation. Accordingly, the court finds that the release and waiver signed by plaintiff is void pursuant to GOL §5-326.
Assumption of Risk
The assumption of the risk defense is based on the proposition that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 ; Paone v County of Suffolk, 251 AD2d 563, 674 N.Y.S.2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Rosenbaum v Bayis Ne’Emon Inc., 32 AD3d 534, 820 N.Y.S.2d 326 [2d Dept 2006]; Colucci v Nansen Park, Inc., 226 AD2d 336, 640 N.Y.S.2d 578 [2d Dept 1996]). A plaintiff is deemed to have given consent limiting the duty of the defendant who is the proprietor of the sporting facility “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 ). Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City of New York, 29 AD3d 649, 816 N.Y.S.2d 499 [2d Dept 2006]; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 N.Y.S.2d 663 [2d Dept 1992]). It is well settled that “awareness of [**13] risk is not to be determined in a vacuum. It is, rather, to [*15] be assessed against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 ; see also Benitez v New York City Bd. of Educ., 73 NY2d 650, 657-658, 541 N.E.2d 29, 543 N.Y.S.2d 29 ; Turcotte v Fell, 68 NY2d 432, 440, 502 N.E.2d 964, 510 N.Y.S.2d 49 ; Latimer v City of New York, 118 AD3d 420, 421, 987 N.Y.S.2d 58 ). When applicable, the assumption of risk doctrine “is not an absolute defense but a measure of the defendant’s duty of care” (Turcotte v Fell, 68 NY2d at 439). Thus, “a gym or athletic facility cannot evade responsibility for negligent behavior ‘by invoking a generalized assumption of risk doctrine as though it was some sort of amulet that confers automatic immunity’ (Jafri v Equinox Holdings, Inc., 2014 N.Y. Misc. LEXIS 5330, 4-5 [Sup. Ct, New York County quoting Mellon v Crunch & At Crunch Acquisition, LLC, 32 Misc 3d 1214[A], 934 N.Y.S.2d 35, 2011 NY Slip Op 51289[U] [Sup Ct, Kings County 2011]; Livshitz v United States Tennis Assn. Natl. Tennis Ctr., 196 Misc 2d 460, 466, 761 N.Y.S.2d 825 [Sup Ct, Queens County 2003]).
Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’ (Morgan, 90 NY2d at 485. quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970, 591 N.E.2d 1184, 582 N.Y.S.2d 998 ; Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 134 AD3d 887, 889, 22 N.Y.S.3d 467 [2d Dept 2015]; Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d 675, 678, 961 N.Y.S.2d 178 [2d Dept 2013]). Participants, however, do not assume risks which have been unreasonably increased or [**14] concealed over and above the usual dangers inherent in the activity (see Morgan, 90 NY2d at 485; Benitez, 73 NY2d at 657-658; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113 ).
In this regard, the court finds that plaintiff has raised a question of fact regarding whether the condition of the mats, with the Velcro connection, increased the risk in the danger [*16] of the activity and caused a concealed dangerous condition. Thus it cannot be said that plaintiff assumed the particular risk that was present and caused her injuries.
Based upon the foregoing, that branch of Brooklyn Boulders motion seeking summary judgment dismissing plaintiff’s complaint is denied.
The foregoing constitutes the decision and order of the court.
/s/ Mark I Partnow
J. S. C.
HON. MARK I PARTNOW
SUPREME COURT JUSTICE
Marketing is not a way to manage risks or stop lawsuits. Marketing Makes Promises that Risk Management Must Pay For.
In an effort to sell services and promote their organization, many trade associations accredit, certify or anoint its members, with various titles, quasi degrees and paper to put on their wall and website. There is always a charge for the program and in many cases; the trade association’s budget is based on selling this program. Many times, these new programs are sold as a cure-all or at least help in risk management or litigation defense.
They are neither. At best, these are training programs; generally, they have little value other than for marketing. Worse, an accreditation can help you lose a lawsuit.
Several trade associations offer this marketing program as a way to show your future clients that you uphold the standards, or whatever of the trade association. (Ignoring the issue that people want to know if you meet their standards, not those of a trade association.) If you pay for the program you will be inspected/reviewed by “trained” members of the association who, then say you have a qualifying program or not. A trade organization will offer the idea that accreditation can provide risk management or better defenses to litigation. Because the program is up to speed on the latest and greatest or at least the tried and true for its industry.
These generally fail for several reasons.
- Because no trade association represents a large segment of the industry and in most cases, they represent less than half of the trade. Granted, the better programs are usually members of the trade association, but that still does give them the clout or numbers needed to dictate how a member should run its business.
- There are dozens of instances where a different way is being used, successfully by other members or non-members of the association. Consequently, the association’s way is proved ineffective or just not the only way.
- State laws and prior litigation have changed the standards, and the trade association has not caught up making their standards look dated.
On top of that, trade associates move by their members. A new idea developed and used by one member needs to float t the surface and be discovered by the group writing the standards. By the time that happens, the standard is written, vetted, reviewed and published several years have passed. You need to react immediately to changes in your industry, not wait for someone to write it down.
Worse no new ideas are created because of fear that the idea will not qualify under the accreditation program creating liability for the member. If you develop a new way to run a program, that is safer but requires less people, you will be liable if you run the program without the required number of people because the association standard requires it. Even if your new idea has that extra person just standing around.
Marketing is not a defense against a lawsuit.
As much as we may wish, showing that an organization may hold itself to a higher standard to prevent litigation or help win a lawsuit, does not work. Standards of care or levels of doing something are not created by trade associations. The issue at trial is whether or not the defendant in litigation is determined by the jury to have met the standard of care proposed by the Expert Witnesses in the trial. Trying does not change that; trying to be good, trying to stay on top of things, trying to be educated does not cause a change.
In reality, it is a minimum two-step process that keeps one from losing in court. The first step is staying current. The second step is staying above the minimum required level of care a jury will accept. However, even these two steps may not be enough with the volume of information that flows today, and the speed which things change. Again the definition of the problem with trade associations and accreditation. The process to create the process is always behind the time curve. As such, the program that received the blessings of the trade association is probably out of date in a courtroom.
Marketing is simply an attempt to influence the decision making of someone. If that person believes that you are a better organization or offer a better program than your competitor, then your marketing was successful. Factors too numerous to discuss and of little relevance to this article go into marketing and how it influences a person’s decision. If you believe the seal on the door or the diploma on the wall going to influence someone to try your program, then take that route, just make sure you understand what you are buying and why.
On a side note, when I had an office, I had art on the walls, Not a single degree or diploma. In twenty years, only one person asked me where my diplomas were. I did not care to look at diplomas; I wanted to look at wildlife and nature scenes. I was spending more time in the office than anyone. Twenty years and only one person cared what diploma I had.
Someone who arrives at your business is going to have higher expectations. The person who sees the promises your marketing makes is going to expect that level or greater service. That expectation will apply, even if the accreditation has nothing to do with the program or the issues of your guests. You are accredited; therefore, I should not have been hurt.
That does not mean you should not tell the world how great you are. It means you must meet the marketing you are promoting.
Marketing also affects and to some extent, shows the world how you think of yourself. A current example is zip lines. For fifty years zip lines were used by the military to train recruits and by movies about the military to thrill viewers. The next twenty years zip lines were used in team building programs as part of a ropes or challenge course. Now zip lines have been used purely as an amusement device. People go out for a day of zip lining like they used to rent go karts or play a round of golf. Your marketing efforts to steer your possible clients back to the idea of team building are going to interfere and have to overcome the general expectations that zip lines are just fun.
Accreditation meets that same issue in the minds of the people coming to your program. Is the certificate on the wall to show me how good you are or on the wall to convince me not to sue? Alternatively, is the certificate proof that you did not take the proper care of me causing my injury. Marketing to cross purposes or marketing to reverse community beliefs is difficult.
Marketing makes Promises that Risk Management has to Pay For.
As stated earlier, the expectations of someone who has researched your diplomas, seals and other marketing accomplishments are going to have a higher expectation that you are not going to injure them. Your commitment to staying current, your efforts to obtain the seal of approval and the paper on the wall are proof, in your guest’s minds, that you are better than your competitors. Better may mean to provide a better program or service. It better definitely means your participants will not be injured.
The American Camp Association (ACA) has an accreditation program that the ACA recognizes for what it is, a marketing program. “ACA Accreditation: Valuable Marketing Tools.” The web page even makes that known. (http://www.acacamps.org/accreditation/marketing). Numerous other instances can be found where accreditation is synonymous with marketing.
- Private Duty Service Expansion through Accreditation and Marketing Excellence
- Importance of Accreditation as a Marketing Strategy
- Use CLE Accreditation as a Marketing Tool
Marketing is not risk management and not good at providing a defense to litigation. The two are opposite in purpose. Marketing is trying to bring people to the program by telling people the program is great and to some extent, safe. If someone is injured, then the program was not safe and the marketing was not true. Having your marketing turn on you while you are a defendant is one of the worst situations to find yourself when involved in litigation. Having your marketing prove that you were a bad operator is the worst.
That does not mean you should not get the best training you can receive in running your business, no matter what the name of the certificate you receive at the end.
Accreditation does have a legal definition and support.
Accreditation from a legal standpoint is defined by Federal Statutes. The Department of Education oversees accreditation of colleges and universities in the United States. A list of accredited college and universities and the agencies that can accredit a college or university can be found at the Department’s website. (There is also a list of those colleges that are no longer recognized.) The department of education also has a statutory scheme for determining how an educational organization will be accredited, which can be found at USC § 1099b. Recognition of accrediting agency or association.
From a legal standpoint, an accredited educational intuition is on that list. It is eligible for federal and state assistance and students of those colleges are eligible for federal financial aid.
Accreditation from any other organization for any other purpose is done to enhance or market the organization seeking the approval and the agency granting the approval. Let’s first look at what this means.
If you are not seeking to offer federal financial aid to your students or receive federal aid, then accreditation can be anything you want. If you want to be accredited, send me $10.00, and I will accredit you. (You have been accredited by James H. Moss) My accreditation has the same legal value and possibly the same marketing value as any other accreditation you can receive. The issues are not. What was done, but what can you hang on your wall and advertise to prospective clients who make you look good? (The $10 will get you a cheap diploma you have to print yourself.)
A good attorney will always look behind the diploma to see what is being covered up. Throw rugs hide spots on carpets, and pictures hide holes on the wall. Attorneys know that paperwork on the wall may be covering up something that the program felt they lacked. In some cases, he or she may only find a hole in the wall. In many cases, he will see that the accreditation is just marketing. Even without an injury that can be associated with a violation of the accreditation requirements, the attorney will use the accreditation against the organization. As the owner proudly runs through his accomplishments on the witness stand, mentioning that his organization is accredited by XYZ trade association the plaintiffs’ attorney will be prepared.
The plaintiff’s attorney will have gone through each of the accreditation requirements that the organization no longer meets or violated and have the owner admit to the problems. If the accreditation is not really based on any real requirements, (like mine), then that will also be pointed out. Either the organization manager or owner will come away looking like they bought the paper to impress guests, or they earned it and then ignored it. A marketing program gone awry.
In many cases, this “accreditation mills” type of accreditation may be probably safer from a legal perspective. There is no list of items or requirements that can be used to show you violated that as an accredited organization, you should not have broken.
You are, in fact, buying marketing when you seek accreditation. This purchase works both ways providing the accrediting agency with value because they can list the organizations that have received accreditation, thus promoting themselves. The organizations that receive accreditation have come to the trade association for its seal of approval boosting the association’s standings the eyes of the industry.
However, accreditation can have a negative side also. Accreditation usually is accompanied by a list of the requirements that must be met. The more the accrediting organization wants to promote itself the longer the list. For an agency that has been accredited, this list then becomes a set of rules which they have agreed to meet. Any failure to meet these rules or regulations cannot be violated. Example:
If the accreditation says you will have one guide per five guests any variation from this at the time of an injury, and the plaintiffs (injured person) attorney has proof that you violated your own rules or standards of operation. In effect, you have provided the plaintiffs with a list of rules which you have agreed not to violate at risk of losing your accreditation.
If accreditation was a true accreditation, it would be removed when an accredited organization fails to continue to meet accreditation. Remember the Department of Education has that list of colleges that no longer are accredited. I’ve never seen a trade association do this (doesn’t mean they don’t).
By providing the plaintiff’s attorney with a list of requirements for accreditation you have also provided the plaintiff’s attorney with the standards that you have breached. The standard is what a reasonable man or organization would do in your situation. Instead of having to dig and hire expects to achieve that information, the plaintiff only has to look up the requirements for accreditation. If the injured guest, the plaintiff’s attorney’s client, was injured when something on that list was not met, then the attorney has proof of a breach of a standard.
It is irritating to see an expert witness report from the plaintiff that goes through each of the points the defendant missed for the diploma hanging on the wall. Most times the plaintiff’s expert witness was trained by the trade association that created the accreditation.
How do you think the Defendant feels watching someone trained by an association he paid money to join and more money to receive their marketing program testify against them?
In the above case, if the accreditation required one guide per five guests and there were twenty guests than the program needs four guides. If one guide stops to look at a flower or slows to tie his shoe, the program now has one guide per 6 or seven guests. If a guest is injured at that moment, the plaintiff’s attorney will argue that the injury could have been prevented with more guides, the standard required a specific number of guides, the defendant organization knew it needed more guides, (it was accredited) and if failed to provide the necessary number of guides.
Accreditation, like any outside review can cost you.
Whenever you have someone come into a program and provide you with a review of your program, that review may come back to haunt you. It is subject to discovery in litigation. Discovery means any document or witness that may have information that may lead to information about the case must be provided to the opposing side. Any document, such as an accreditation review, whether you passed it or not, must be given to the opposing side. Consequently, you want to make sure that any outside review is done in a professional manner and that negative comments and issues are either handled correctly, fixed immediately, or are not part of the written review.
Accreditation has greater value, greater weight for the plaintiff when you have failed to meet the requirements you paid to have reviewed. If the accreditation was so valuable to you, it cost you time and money to receive, how could you, then ignore it without violating the rules?
An example of this that went wrong is the case of Adam Dzialo. (See Marketing is marketing and Risk Management is not marketing, http://rec-law.us/1bPWl1c; Money is important in some lawsuits, but the emotions that start a lawsuit., http://rec-law.us/xbSs4M; Serious Disconnect: Why people sue., http://rec-law.us/wm2cBn, Wow, someone apologized, http://rec-law.us/xEIujw) Adam was enrolled in a summer camp run by Greenfield Community College. The college had just undergone a review to achieve accreditation. The accreditation report stated the number of instructors for the whitewater class was insufficient. Adam suffered a leg entrapment during a whitewater class suffering permanent brain injuries. The number of instructors for the class was below the number required to achieve accreditation, and this became a major issue during the litigation. The review provided in the accreditation process was used by the plaintiff to argue the defendant was negligent.
The defendant was told their program was insufficient, and they ignored that notice. Is the defendant liable?!
Accreditation from the perspective of an advanced degree
If you do not want your program to be marketed as an amusement but something that provides greater benefits, you might align yourself with educational organizations. As such, an “accreditation” may add that aura of validity as an educational organization rather than a summer camp. No matter that most kids would rather go to a fun summer camp than an educational one. (Not that those concepts are totally separate.)
In a courtroom, however, the marketing will be stripped bare and what you are will be laid out in the courtroom. No matter how much money you spend on marketing, if the jury sees you as an amusement park, you are an amusement park, and your marketing program will be exposed as a ruse.
It is easy to strip away an accreditation program. A plaintiff’s lawyer simply goes to the list of developed by the US Department of Education of accreditation agencies and looks for the association that accredited you. As the defendant, you are then in a position of trying to prove the value of your accreditation or diploma on the wall. What did you pay for it and why? What value does it really have? If it is not recognized, isn’t it no more than a marketing program or worse a scam.
The department of education has a statutory scheme for determining how an educational organization will be accredited. USC § 1099b. Recognition of accrediting agency or association. The department of education itself does not accredit educational institutions.
Many times an accrediting association believes that by creating a list of objectives, rules and items to meet the accrediting goals, they have done a good job. In essence, the more rules and paper the better the accreditation. However, as the Department of Education and as most people already know, more does not mean better. The accreditation is based on the “the institution’s mission, goals and objectives, resources and resource allocation, student admission requirements, student support services and the quality of the faculty and educational offerings.” The accreditation is based on the college’s goals as well as the accrediting organizations’ goals.
More may mean very bad.
One of the basic tenets of education is teaching. Helping the student understand, comprehend and be able to use the knowledge gained. One of the tenets of accreditation is the educational organization employs instructors who know the subject matter of what they are teaching but also employs people who have been trained to teach. Very few association accreditation checklists look at whether the instructors have degrees in teaching.
Accreditation at best is just one of many ways an organization can show they strive to be as good as they can and to maintain good practices. It is among a list of things that an organization can do. That other equally important, if not more important items include constant training of employees, maintain professional relationships with trade associations and attending conferences, staying current in the industry. However, the paper on the wall or the seal of approval on the front door, do not prove that this was either effective or provides any protection. The issue is and always has been doing the defendant organization breach a duty of care to the injured plaintiff.
So, what does it mean when you do not meet the standards or accreditation of the trade association when someone was injured?
A legal duty is the duty owed to the plaintiff or what would a reasonable person do in the defendant’s situation. Duty is the first of four steps that the plaintiff must prove to prove negligence. Those steps are:
- Breach of a duty
- Injury proximately caused by the breach of duty.
- Damages from the injury
For the plaintiff to win his or her lawsuit, the plaintiff must prove all four elements of negligence. As you can see, nothing in the definition of negligence is based on the diplomas on the wall or the certificates in a file.
The hardest part of any negligence suit to prove for the plaintiff is, was there a duty and a breach of the duty. Duty is defined as the standard of care of a reasonable person or organization in the same position as the defendant. Normally, the plaintiff and his or her attorney would hire expert witnesses to determine if the duty was breached. However, if there is a written document which the defendant has agreed to abide by in running his or her organization, the written document will be substituted by the plaintiff as the standard of care. Those requirements that you met to be accredited are then transposed by the plaintiff as the standards of care that you agreed to meet. Your agreement to meet those requirements is evidence by you proclaiming them to the guests.
By agreeing to them or by calling them standards, it is a foregone conclusion, almost, that, that is the standard of care you breached.
In effect, once accreditation is obtained, it becomes the level of operation that the organization can never fall below. It becomes a list of requirements the organization must always meet every day.
Accreditation or lack thereof, can also come back to haunt you in another way. Like any misrepresentation, if you claim you have a level of training or skill, and you don’t. That is misrepresentation or fraud. Even if the accreditation has no value as a defense and is only a marketing ploy, failure to have what you claim is fraud, and you are liable for any injury your misrepresentation caused.
A good example of that is you are accredited by XYZ Association on January 1, 2012 for a three-year term. Your accreditation says you have your staff trained in current CPR. In January of 2014, the American Red Cross changes how CPR is taught, and none of your staff are current. In fact, 99% of the people trained in CPR are no longer current. If on January 2, 2014, you have someone have a heart attack on your property who dies, are you liable because you stated and held yourself out as being accredited and yet you were not?
Professional relationships, membership in trade associations, employee training and staying current rarely have the possible kick back that the certificate on the wall may have. Those ways of maintaining professionalism do not come with a list of ways that you have failed to be professional.
Another way that any type of training can come back to haunt an industry is in raising the expectation of the guests of the industry above the normal level of care.
Any value of accreditation that once existed has been diluted by its adoption by numerous other industries. Once the sole domain of higher education, as stated earlier anyone and everyone are now offering accreditation for anything and everything. As such, the term has lost any significance in its value to the public. And that value has always been as a marketing tool rather than a legal defense.
Accreditation to be valuable must occur regularly and be current.
Another major issue is once a program receives accreditation. The program ceases to stay current. The program rests on its laurels on in this case the accreditation. The accreditation provides a false sense of accomplishment and finality, when just the opposite is true.
Staying current in an industry is the only way to stay in the winning column in litigation.
Major Organizations do not offer Accreditation.
Very few trade associations offer accreditation. They know that the cost of keeping the accreditation up to the level it should be along with the risk it subjects its membership too, do not justify the time and expense. Some of the organizations that do not offer accreditation in the outdoor recreation industry are the National Ski Area Association, Boy Scouts of America, Girl Scouts of America and America Outdoors. All of these organizations represent large groups of people. Commercial or business ventures that are serious about their business and represent a large segment of their industry.
Is Accreditation bad?
No accreditation is not a bad thing, unless you are sold on the idea and achieve the accreditation on a mistaken theory that it will assist in either staying out of court or winning in court.
However, like all programs you must know what you are buying. No longer are the days of caveat emptor the rule of the day. That legal pronouncement was created when determining the age of your transportation consisted of looking at the horse’s teeth and walking around the animal. Now days you can look at a car engine for hours and never know if it will run for a day or a lifetime.
The plaintiff is opening your program’s hood and looking forward to seeing if your program runs. You are saying it will because of the paper on the wall or the seal on your website. The trade association went through a checklist of items and issues to hand you a piece of paper. None of those items can guaranty the safety of the guest. All of those items can be used by the guest to prove the program liable and hold you and the trade association accountable.
As it applies to you when you are looking at marketing your program as well as when your clients are looking at your program. If you believe that a marketing program will protect you, you are not studying the program hard enough. Neither will accreditation guaranty the safety of your guests.
- Make sure you know what you are accomplishing before you start.
- Justify why you are going down that route.
- Make sure if your path can be interpreted two ways, that you cover both options to make them good ideas.
- If you find problems fix them immediately.
- You understand the difference between risk management and marketing.
What do you think? Leave a comment.
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Plaintiff argues that release was limited to the risks that were inherent in climbing walls. Inherent is a limiting term and does not expand the scope of the risks a release is written to include.Posted: January 22, 2018
In addition, incorrect name on the release gave plaintiff an additional argument. The LLC registered by the Indiana Secretary of State was named differently than the named party to be protected by the release.
Luck saved the defendant in this case.
State: Indiana: United States District Court for the Southern District of Indiana, Indianapolis Division
Plaintiff: Alexis Wiemer
Defendant: Hoosier Heights Indoor Climbing Facility LLC,
Plaintiff Claims: Negligent Hiring and Instruction
Defendant Defenses: Release
Holding: For the Defendant
Release was written broadly enough it covered negligence claims outside the normal injuries or claims from using a climbing wall. On top of that the mistakes in the release were covered by the letterhead.
Injury occurred because belayer did not know how to use the braking device.
A lot of things could have gone wrong because the climbing wall was not paying attention, but got lucky.
The plaintiff was a beginner in climbing and using climbing walls. Before climbing he signed a release and attended a facility orientation which covered training “on how to boulder, belay, and top rope climb.” The training received by the plaintiff was taught by an employee with little experience and mostly went over the defendant’s instructional books on rock climbing.
On the day of the accident, the plaintiff went to climb with a co-worker. While climbing the co-worker failed to use the belay device properly.
Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations. [emphasize added]
The plaintiff sued for his injuries.
Analysis: making sense of the law based on these facts.
The plaintiff’s first argument was the name of the parties to be released was not the legal name of the facility where the accident occurred. The facility was owned by a Limited Liability Company (LLC) registered with the state of Indiana as “Hoosier Heights Indoor Climbing Facility.” On the release, the name of the party to be protected was “Hoosier Heights Indoor Rock Climbing Facility.” The release name had an extra word, “rock.”
The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C. Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State, although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy created ambiguity as to who Wiemer contracted with.
However, the name and logo on the top of the release identified the company correctly, Hoosier Heights Indoor Climbing Facility.
Since the release was a contract, the court was required to determine if the name issue made the contract ambiguous. Ambiguous means the language of the contract could be interpreted in more than one way. The name issue was not enough to find the contract was unambiguous so that the release was not void. The name issue was minor, and the correct name was at the top of the contract.
Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.
The second argument the plaintiff made was the release did not cover the claimed negligence of the defendant for negligent instruction, and negligent training. Those claims are generally not defined as an inherent risk of indoor rock climbing.
The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.
Inherent is a restrictive word. See 2015 SLRA – Inherent Risk: Should the Phrase be in your Release? and Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release, and is interpreted differently by various courts. Consequently, the use of the word inherent can be dangerous in that it limits the breadth of the release.
Under Indiana’s law a release must be “specific and explicitly refer to the waiving [of] that the party’s negligence.” However, that explicit reference is not necessary for a claim that is inherent in the activity.
Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.”
The plaintiff’s argument was:
Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume. Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing.
The court could work around this explicit necessity because it found within the release language that covered the negligent training and instruction.
…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…
It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.
By reviewing the exact language of the release, the court was able to find language that warned of the specific issues the plaintiff claimed.
Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver.
The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.
As such the court found that both claims were prevented by the release the plaintiff had signed and dismissed the case.
So Now What?
This case was won by the defendant not because of proper legal planning but by luck.
If they had not used the correct letterhead for the release, the release might have been void because it named the wrong party to be protected by the release. When writing a release, you need to include the legal name of the party to be protected as well as any marketing or doing business as names.
Indiana’s requirement that the language of the release cover the exact injury the plaintiff is claiming is not new in most states. It is also a requirement that seems to be growing by the courts to favor a contract that covers the complaint.
In the past, judges would specifically point out when a claimed injury was covered in the release. Not so much as a legal requirement but to point out to the plaintiff the release covered their complaint. That prior identification seems to be growing among the states to a requirement.
In this case the release was written broadly so that the restrictions the term inherent placed in the release were covered. But for that broad language, the climbing gym might now have survived the claim.
More important writing the release wrong protecting the wrong party would have been fatal in most states.
Finally, this is another example of a belay system that is perfect, and the user failed. There are belay systems out there that don’t require user involvement, they work as long as they are corrected properly. This accident could have been avoided if the belay system worked.
Copyright 2017 Recreation Law (720) 334 8529
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