Gym Injury-Who is responsible

matt snyder wrote:why not sue? it's worth a shot, especially being that universities have an infinite amount of cash, and a personal injury lawyer would jump all over that. I'm sure the school would be willing to settle quickly. I'd go for no less than a year's tuition. at the very least this will shine some light on how much gym climbing sucks and shouldn't have the word "climbing" associated with that activity.

Wow. Its hard to even know where to begin addressing the amount of selfish stupidity in your statements.

I am personally in favor of the gym...but seriously, if the pad was 8" away from the wall at the time of the accident and now (I assume) a gym staff member "fixed" or "corrected" the issue by moving the mat closer, isn't that negligence on the gyms end? I'm not a sue happy American by any means I'm just asking.

Like somebody else said, it depends on whether it's ordinary or gross negligence.

You can't sign away the right to sue for gross negligence, but this doesn't appear to be gross negligence.

I am going to disagree with most folks.

While climbing / bouldering is dangerous and there is a risk involved that one should assume the gym does have a responsibility to provide a safe environment. That IMHO would include have adequately installed mats. Having movable mats and gaps between the wall and mat would seem to me to be a hazard thus a liability. Just like not having padding around a pole that is near the climbing wall. However, not knowing the overall make up of the gym not much more can be said.

IRCC, if a public university (i.e. the state) the injured party would not initially sue they would file a notice of claim (or something to that affect) which if not accepted they could then sue.

Fat Dad wrote:Subsequent remedial measures (i.e., moving the mat back) can't be introduced as evidence of liability.

I would enjoy hearing your thesis on that as I can see a lawyer having a field day with that.

Check out California Evidence Code section 1151:

"When, after the occurrence of an event, remedial or
precautionary measures are taken, which, if taken previously, would
have tended to make the event less likely to occur, evidence of such
subsequent measures is inadmissible to prove negligence or culpable
conduct in connection with the event."

Not sure if other states have a similar statute. Regardless, the policy behind it is if a party is aware of condition that has caused an injury, you don't want them not to fix it out of the fear that it may be characterized as an admission of liability.

Fat Dad wrote:Check out California Evidence Code section 1151: "When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event." Not sure if other states have a similar statute. Regardless, the policy behind it is if a party is aware of condition that has caused an injury, you don't want them not to fix it out of the fear that it may be characterized as an admission of liability.

Thanks … never heard of this type of statute.

Almost three years ago I ruptured an ACL by landing funny on a gym pad. I actually think I would have been better off if the pad hadn't been there.

Somehow, I managed to restrain myself from suing.

It is the boulderer's responsibility to position moveable pads correctly---that's why they are moveable. Moveablility isn't some kind of defect, it's a feature, albeit one that can be used incorrectly.

But my experience indicates that you can land smack dab on the pad and still be injured. This has just got to be someone else's fault, right? And whoopee, I get a chance to steal money from some institution that I've decided in my infinite wisdom is so rich it won't matter to anyone (including all the other folks who used to use the facility before the university closed it to avoid another such idiotic nuisance suit).

The gym has absolutely no responsibility for a boulderer putting a pad in the wrong place or failing to position the pad at all. The suggestion that gym employees are supposed to be rushing about continually positioning pads under every sketching boulderer is preposterous. And even if they did so folks like me would manage to hurt ourselves anyway. We could then sue because the workers failed to jerk the pad away in time.

The gym certainly hasn't even a thread of moral responsibility, and I would surely hope no legal responsibility either.

Is that pad movable for the public or was it in a fixed position?

If the pad is movable for the public to use for bouldering whichever route they are intending to climb then it is not the gyms fault.

However, if the pad was in a fixed position and now they moved it to another fixed position then the gym could be at fault here.

My 2 cents.

Allen Sanderson wrote: Thanks … never heard of this type of statute.

That's because you're not a lawyer. Fat Dad is (or was).

The theory is you don't want to punish potential defendants for rectifying a potential hazard. If the courts admitted evidence related to rectifying the issue and implying guilt because if it, defendants would have an incentive to leave the problem unresolved and possibly cause more injury.

How many would truly step off the mat with such a large gap..you'd think that the mat could be slid back towards the wall, or if that wasn't possible, then to climb in a different spot. I've seen bouldering pads in gyms that float around as well, so the usage of a mat would be an option. It is all about personal responsibility. Lets not turn to others to fix our own oversights. This is not something only an experienced cilmber would recognize either, as a gap in the landing zone should be fairly obvious...even to a beginner.

There really should have been a gym employee there to make sure that mat was placed exactly where it needed to be for that girl, geez, can't expect the paying customer to be responsible for themselves can we?

So the real question is, who do I sue if I am on a multipitch trad route and my gear placement rips because of bad rock? The national park service or other land owner, or the gear company? I thought protection was always guaranteed and that the rock was supposed to be groomed and perfect!

(hope my sarcasm is noted here)

She hurt herself doing a dangerous activity, end of story. Can't sue everyone for everything.

Doesn't the climber have a responsibility to check out the mats before they climb? "Oh, look, there's a big gap there I could roll my ankle on." Similar to how a boulderer thinks, "Oh, that would be a rough landing - I better put a pad there."

Standard boilerplate from a gym waiver:

I (Participant) hereby unconditionally WAIVE AND RELEASE ANY AND ALL CLAIMS A ND CAUSES OF ACTION OF ANY KIND OR NATURE AGAINST xxx CLIMBING GYM , AND ANY MANUFACTURERS OR DISTRIBUTORS OF EQUIPMENT USED BY xxx CLIMBING GYM , RELATED IN ANY WAY TO THE ACTIVITIES OR THE ASSOCIATED ACTIVITIES. THIS WAIVER AND RELEASE INCLUDES BUT IS NOT LIMITED TO ANY SUCH CLAIMS OR CAUSES OF ACTION, present or future, related to injury or damage to Participant, his/her property, or to any other person or property, for any loss, damage, expense or injury (including DEATH) suffered by any person from or in connection wi th Participant engaging in any Activities and from Associated Activities, due to any cause whatsoever, INCLUDING NEGLIGENCE and/or breach of express or implied warranty on the part of xxx CLIMBING GYM.

Notice it doesn't say "gross negligence".

Interesting discussion about a case in CA

volokh.com/posts/1184893683…

I think the lesson to be learned is that, even if there is assumption of risk by the user and it seems obvious that most reasonable people would not consider the situation to be gross negligence (negligence so serious that it borders on intentional harm), the case may proceed anyway (all the way to the CA Supreme Court in this case) ie gyms must have good liability insurance no matter what legal and physical precautions they may take.

Regarding the damages that might be awarded, it wouldn't be just the medical expenses, it would be the actual expenses plus a multiplier for pain and suffering. For example, in a motorcycle accident I had in the early 90s in CA, the multiplier was 3x the medical.

I think y'all got trolled.

My apologies in advance for the lengthy post. I'm a lawyer, but limit myself to probate and trust disputes, not personal injury. The issue of recreational liability, particularly in rock climbing cases, has always struck me as interesting though.

The full cite for the case cited by Christian is: City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 161 P.3d 1095.

The case has a pretty limited holding, or ruling, which it limits just to the facts of specific case before it. It did not make broader policy decisions, other than to find that a waiver that attempts to cover "future gross negligence" is void as under the facts before it.

The case is also interesting because apparently a number of organizations, including NASCAR and Bally's, filed amicus briefs. arguing in favor of releases amid dire predictions of the death of their industries if they weren't upheld. The court's analysis (and rejection) of those claims is interesting:

"Indeed, it appears that the experience of our sister states has not borne out the predictions of defendants and their supporting amici curiae. In Virginia and New York, for example—where, as noted above, agreements to release future liability for ordinary negligence causing personal injury long have been categorically barred by case law or generally precluded by statute, as construed by case law—service providers have been subjected to the potential of liability substantially greater than that facing their counterparts in California and most other jurisdictions, which (as observed ante, at part II.E) generally uphold such releases. And yet, our research suggests that the predicted demise of recreational opportunities apparently has not come to pass in Virginia or New York.

For example, amicus curiae NASCAR's brief predicts the downfall of spectator auto racing unless agreements releasing liability for future gross negligence regularly are enforced. According to NASCAR's official Web site, however, of the 31 NASCAR-affiliated major speedways located in the United States and Mexico, two are, and long have been, located in Virginia, and one is, and long has been, located in New York. In other words, despite Virginia's and New York's strict “no release of liability for ordinary negligence” rules, which subject NASCAR to greater potential liability than the mere “no release of liability for gross negligence” rule at issue in the present case, NASCAR-sponsored racing appears not to have disappeared in those states.

Likewise, amicus curiae Bally Total Fitness Corporation's prediction of calamity in the health club industry if releases of liability for future gross negligence are not enforced appears difficult to reconcile with the prevalence of that corporation's business in those two states. Bally's official Web site discloses that it operates seven clubs in Virginia, and 36 in New York. Amici curiae International 114 Health, Racquet, and Sportsclub Association and California Clubs of Distinction similarly assert that commercial recreational services are in danger of extinction if releases of liability for future gross negligence are not enforced. According to the 2002 United States Economic Census (Aug.2005), which reports on, among other things, each state's “fitness and recreational sports centers” (including health, fitness, swimming, racquet, and handball clubs, as well as roller-skating and ice-skating rinks), in 2002 there were more than 750 such business locations in Virginia, and more than 1,800 in New York. Again, despite the strict Virginia and New York rules, which subject recreational service providers to far greater potential liability than the mere “no release of liability for gross negligence” rule at issue in the present case, it does not appear that commercial and organized recreational clubs have become “a thing of the past” in those states.

Nor are we aware of any empirical evidence to suggest, as defendants postulate, that a holding declining to enforce an agreement purporting to release liability for future gross negligence would jeopardize programs, such as the one here at issue, that provide recreational opportunities for developmentally disabled children—and indeed, initial research casts doubt upon such predictions.

We reject the arguments of defendants and their amici curiae that considerations of public policy mandate the adoption of a rule under which agreements releasing liability for future gross negligence always, or even generally, would be enforced.

As then-Justice Traynor observed in Donnelly, supra, 18 Cal.2d 863, 118 P.2d 465, the distinction between “ordinary and gross negligence” reflects “a rule of policy” that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.

For the reasons discussed above—that is, adherence to the “ public policy to discourage,” or at least not facilitate, “aggravated wrongs” (Prosser & Keeton, supra, § 68, p. 484)—and consistent with Donnelly, supra, 18 Cal.2d 863, 118 P.2d 465, and the Court of Appeal below, as well as the vast majority of *777 other jurisdictions, we conclude that public policy generally precludes enforcement of an agreement that would remove an obligation to adhere to even a minimal standard of care. Applying that general rule here, we hold that an agreement purporting to release liability for future gross negligence committed against a developmentally disabled child who participates in a recreational camp designed for the needs of such children violates public policy and is unenforceable."

I don't have access to the legal research tools I used to have, where I could look up how many times this case has been cited, but it's a case that made it all the way to the Supreme Court of CA, almost by definition it's gonna have the potential to be used as precedent in future cases, ie affect future policy. I mean, every opinion is gonna say it only applies to the facts at hand, but if the process of reaching that decision discusses general matters, it may have a future effect. The filing of the amicus briefs seems to show these giant corporations also thought so.

Assuming there were no serious open questions about the reliability of the caretaker's testimony, if I were a business owner, the fact that the "taking her eye off the swimmer for a couple of seconds" was not dismissed in the first court out of hand as possibly being "gross" negligence would scare the crap out of me.

Fat Dad wrote:My apologies in advance for the lengthy post. I'm a lawyer, but limit myself to probate and trust disputes, not personal injury. The issue of recreational liability, particularly in rock climbing cases, has always struck me as interesting though.

Thanks for above FD and others. I am not a lawyer but have dealt with lands policy enough that I too find recreational liability interesting. Most my experience has been with the Recreational Use Statutes and NEPA.

Do we know if the pad was, in fact, moveable? I worked at a university climbing gym and the entire bouldering wall had a huge Asana pad that was contoured to the wall. It had probably 20 6ftx10ft sections that were velcroed together to form a giant mat.

Over time, this whole mat would work its way out from the wall, eventually creating enough space between the foam and the wall that someone's foot could get caught in the gap. As employees, we had to keep an eye on it and push the entire thing back occasionally. It took like 10 people to pick the edge of the mat up and force it back against the wall.

I don't know if this information helps, but I figured I'd offer it up.

Dylan Pike wrote:Do we know if the pad was, in fact, moveable? I worked at a university climbing gym and the entire bouldering wall had a huge Asana pad that was contoured to the wall. It had probably 20 6ftx10ft sections that were velcroed together to form a giant mat. Over time, this whole mat would work its way out from the wall, eventually creating enough space between the foam and the wall that someone's foot could get caught in the gap. As employees, we had to keep an eye on it and push the entire thing back occasionally. It took like 10 people to pick the edge of the mat up and force it back against the wall. I don't know if this information helps, but I figured I'd offer it up.

That's exactly what I had in mind, ie moveable but not moveable by one person.

Assuming that's the case, it makes the whole "uh, dumb woman couldn't even place her pad correctly" argument some have brought forth moot.

Mike Caracciolo wrote:I am personally in favor of the gym...but seriously, if the pad was 8" away from the wall at the time of the accident and now (I assume) a gym staff member "fixed" or "corrected" the issue by moving the mat closer, isn't that negligence on the gyms end? I'm not a sue happy American by any means I'm just asking.

No, because you yourself can move the fucking bouldering pad underneath wherever your own ass is likely to fall off. That's the whole point of movable pads. This idea that anything was "fixed" is a red herring. Fixed for THAT problem, but not the one next to it I'm sure.