TV “fitness race” creates “want to be’s” and “look a likes” and a lawsuit.

The “No Duty Rule” is another way of saying the plaintiff failed to prove the Defendant owed them a duty. In this lawsuit, there was no duty because the risk that caused the injury was inherent to the activity.

Barrett v. New Am. Adventures, LLC (W.D. Pa. 2023)

State: Pennsylvania, United States District Court, W.D. Pennsylvania, Pittsburgh

Plaintiff: Courtney Barrett

Defendant: New American Adventures, LLC, a Pennsylvania limited liability company; One American Way, LLC, a Pennsylvania limited liability company, and; and UATP Management, LLC, a Texas limited liability company

Plaintiff Claims: negligence

Defendant Defenses: no duty

Holding: For the Defendants

Year: 2023

Summary

The risk the plaintiff encountered was inherent to the activity, therefore the defendant did not owe a duty to the plaintiff. No duty, then there is no negligence and no lawsuit.

Facts

This is a personal injury case brought by Plaintiff for injuries she received on November 23, 2018, while participating on an obstacle course called the Warrior Course at Urban Air Trampoline and Adventure Park in Cranberry Township, Pennsylvania (“Urban Air”). Urban Air is a franchise trampoline and adventure park owned and operated by Defendant New American Adventures, LLC (“NAA”). Defendant NAA is the franchisee and Defendant UATP Management Inc. (“UATP”) is the franchisor. Defendant NAA leases the premises from Defendant One American Way, LLC (“One American”) which was a landlord out of possession of the premises at the time of the incident.

At the time of the incident, Plaintiff was 34 years old and a resident of Mammoth Lakes, California with her partner, Christopher Hodges, and their two children. Plaintiff was an accomplished athlete in high school in track and field performing the long jump, triple jump, and 100 and 200 meter sprint races. She was also a cheerleader. She attended a dance and gymnastics school and was heavily involved in dance gymnastics, cheering, and fitness. Following high school, Plaintiff participated in competitive cheerleading for the Pittsburgh Storm for two years. She also competed in the Arnold Schwarzenegger Fitness Expo in Columbus, Ohio where she won third place. Additionally, Plaintiff has skied since the age of four locally at Seven Springs Mountain Resort and Hidden Valley Resort and continued to do so in California, including working at the Mammoth Ski Resort. Prior to attending Urban Air, Plaintiff had been to other trampoline and amusement parks with Mr. Hodges and their children.

Plaintiff was visiting her parents for the Thanksgiving Holiday and went to Urban Air with Mr. Hodges, their two children, her sister Alexandra Barrett, and her parents on November 23, 2018. Plaintiff testified that she understood the concept if a person is engaged in a warrior course like adventure where you are hanging, a person can fall wrong and injure themself. She further understood that it was possible that she might injure herself, including breaking a bone, when participating in activities at an adventure park. Plaintiff would rate her skill level as medium to high given her experience as a former athlete, gymnast, and track and field athlete. Before she decided to participate in the Warrior Course, she had in mind that she had enough skill and experience to complete the course.

Upon approaching the Warrior Course, Plaintiff went to the expert lane with two blue grip hang boards which had a gap in between when the incident occurred. According to Plaintiff, you had to shimmy your way hanging on to the end of the plank and propel your body to grab the next one. She acknowledged there were balls in the ball pit. Plaintiff knew when she started the Warrior Course that there was a possibility she would not finish and that she could slip and not catch the second plank and that if she missed, she would fall into the area below. As Plaintiff went to swing from the first board to the second board, she either slipped off (one or both hands) or she remembered thinking “oh, I’m just going to fall into the ball pit below.” Plaintiff went through the balls and landed on the surface below injuring her knee.

The defendant filed a motion for summary judgment claiming

1) Plaintiff’s claims of negligence for injury she suffered falling off the Warrior Course attraction at Urban Air are barred by the “no-duty” rule; 2) Defendant One American was a landlord out of possession of the premises; and 3) The record is devoid of facts establishing Defendants’ conduct was reckless such that Plaintiff is not entitled to punitive damages.

This is the decision concerning that motion.

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

Negligence requires the plaintiff proving four requirements. The first is the defendant owed the plaintiff a duty. Proving this has evolved in some states to the “No Duty Rule.” There is no duty owed to the plaintiff. Therefore, the plaintiff can’t sue. In Pennsylvania and in this case, the defendant proved there was no duty owed, the No Duty Rule was applicable, and the case was dismissed.

Under Pennsylvania law, there are four states, like all states, to prove negligence:

To bring a claim of negligence under Pennsylvania law, a plaintiff must show that: (1) the defendant had a duty or obligation recognized by law; (2) the defendant breached that duty; (3) a connection exists between the breach and the duty; and (4) the breach created actual loss or damage.

In this case, the defendant argued that they had no duty to protect the plaintiff from harm because the risk the plaintiff undertook was an inherent risk of the sport or activity. “Specifically, Defendants submit that they had no duty to protect Plaintiff from the inherent risk of falling from the Warrior Course and, thus, summary judgment is warranted.”

The “no-duty” rule provides that “an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity. “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant…and there can be no recovery based on allegations of negligence. Pennsylvania applies the “no-duty” rule to sports, recreation, and places of amusement.

The court then made a statement that some courts seem to forget. “To that end, the severity of the injury, whether minor or extreme, has no bearing on whether the “no-duty” rule applies.”

The court then went on to state the two-part test under Pennsylvania law to determine if the no duty rule applies.

1) whether the user was engaged in the amusement activity at the time of the injury; and

2) whether the injury arose out of a risk inherent in the amusement activity.

When both questions are answered in the affirmative, summary judgment is warranted. “If those risks are not inherent, traditional principles of negligence apply and [the Court] must determine what duty,” if any, a defendant owes to a plaintiff, whether the defendant breached that duty, and whether the breach caused the plaintiff’s injuries.

The first part of the test was easy. The plaintiff was at the defendant’s location to have fun.

Here, there is no question that at the time of the injury Plaintiff was engaged in the Warrior Course attraction at Urban Air. Specifically, Plaintiff testified that she was on the Warrior Course and in the process of swinging from the first plank or board to the second one when she slipped off and fell into the ball pit below injuring her knee. Therefore, the first question is answered in the affirmative.

To answer the second part of the two-part test the court defined “inherent” as applied to the risk the plaintiff encountered.

A risk that is “common, frequent, and expected” is an inherent risk. Though a plaintiff’s subjective awareness of a specific inherent risk is not required

Based on the plaintiff’s testimony during depositions, the court determined that falling was an inherent risk of hanging above the ground on a board.

She testified that (based on her experiences involving other sports and recreational activities, as well as her participation in other adventure parks) she knew there was a possibility that while on the Warrior Course she could slip, lose her grip, and/or not catch the second plank. She also testified that she understood that if that happened, she would fall to the area below that contained the balls and could be injured.

The court went on to reinforce its decision by pulling information from the Plaintiff’s expert witness who also surmised that when hanging above the ground by your hands you could fall.

Additionally, Plaintiff’s expert stated that “[i]t is not unreasonable to expect that users will lose their grip and either unintentionally or intentionally fall.” He further stated that a fall from the Warrior Course “would not be unexpected.” Id. at p. 13. In fact, Plaintiff acknowledges that participating in an obstacle course like the Warrior Course presents inherent risk of injury from a fall.

It is pretty bad, when your expert report is used against you. However, it is also pretty obvious that falling is a risk whenever you are above the ground.

The plaintiff then argued that the risk at issue had a narrower focus. That the risk was not falling, but landing. In this case, the balls used to land on were not sufficient to protect the plaintiff from injury. However, the court rejected this argument because the risk was falling, the result was landing. The result is not part of the definition of the risk.

Pennsylvania courts “‘have rejected attempts by plaintiffs to define the injury producing risks in a very specific and narrow manner. Instead, they look to the “‘general risk’ that gave rise to the accident.”

The plaintiff then went further and argued that this was not an inherent risk because it was special. Plaintiff argued the case law where the injury was produced by a risk that other courts had determined was not inherent to the activity. In those cases, the injury was rare, not planned for and could not be defined as something that would happen every time the risk was encountered.

These cases, however, just as with cases that have held certain risks are inherent to a particular activity, turn on the relevant facts and the activity in question in determining if a risk is inherent. None, however, involves a Warrior Course type of attraction. Thus, the Court turns to the facts and activity in this case.

The court summed up its analysis in this way.

As discussed herein above, there is no doubt that the risk of injury from falling into the ball pit while participating in the Warrior Course is “a common, frequent, and expected” part of engaging in this activity. It is part and parcel to the attraction. As Plaintiff admits, “[t]here can be little doubt that participating in an obstacle court contains a risk of injury, particularly from a fall.” In fact, a fall into the ball pit from this type of obstacle course is more likely than not. It is a quintessential risk of the Warrior Course. To that end, the Court finds the risk of falling from the planks is an “inherent” risk and a subsequent injury cannot be removed from the Warrior Course without altering the fundamental nature of the activity.

The final argument of the plaintiff was the No Duty Rule should not apply because the defendants deviated from industry customs or standards. Instead of using balls, they should have used foam in the pit. However, again, the court looked at the inherent risk. The inherent risk is falling when hanging from your arms above the ground. The result is not part of the risk.

Plaintiff suggests that Defendants should have used foam instead of plastic balls to minimize the risk and/or to ensure the balls in the pit were always level and that Defendants should have advised her not to land with a straight leg. These arguments go to negligence principles, not as to salient question of whether the risk was inherent. The question of inherent risk must be determined first. “[W]hen inherent risks are involved, negligence principles are irrelevant,” the inquiry is over, and summary judgment is proper. Therefore, Plaintiff’s arguments in this regard, and the evidence submitted to support them, fail to raise a genuine issue of material fact. Thus, the Court finds summary judgment in favor of Defendants is warranted.

So Now What?

I have continuously reminded people that the first step in determining if anyone has a legitimate lawsuit against is, did you owe the plaintiff a duty and did you breach the duty. People believe that just because they are injured, that someone owes them money. I tell them that before I can turn a claim over to the insurance company, I have to know what we, the defendant did wrong. I ask, “What did we do wrong.” Rarely do I get an answer, and if I do, I explain that we did not do what they said we did. Most time, though, the injured person cannot define what we did wrong.

If we did not do something wrong, then we probably did not have a duty to the injured person and thus are not liable.

In Pennsylvania, that has evolved into a rule, the No Duty Rule. There cannot be a claim for negligence unless all four of the requirements to prove negligence have been met. The first is, did the defendant owe a duty to the plaintiff.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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