In Donahue v. Ledgends, Inc., an appeal argued in the Supreme Court of Alaska, a woman broke her tibia during a class at a rock climbing gym. According to court records, she fell about four feet from a bouldering wall and broke her leg.
The gym required her to read a warning and sign a waiver before taking the class. The waiver purported to release the gym from liability for any injuries suffered by participants in the climbing class. The defendant moved to dismiss the case on summary judgment, claiming the signed release barred them from any liability.
Our Boston personal injury lawyers understand that many clients sign long and complex waivers without being given a real opportunity to read or fully understand what they were being asked to sign.
The trial court ruled the waiver signed by the plaintiff contained all of the statutorily required language and dismissed her claims against the defendant. The judge also ruled the Uniform Consumer Protection Action violation she had asserted did not apply to personal injury cases.
The plaintiff, who has previously engaged in other high risk activities, including working on construction sites and commercial fishing, said she was generally aware of what the purpose of the waiver was but did not actually read most of it.
On the day the accident occurred, the plaintiff had already completed one class in the program. The first class involved the use of a harness. This class was on the technique for bouldering that involves climbing on rocks of relatively low height with no safety harness.
After two hours of climbing successfully, she was on a rock she felt she should not climb down. Her instructor suggested she jump down to the mat, which was about four feet below her, making sure she bent her knees in a certain way to lessen the impact. When the climber hit the mat, she landed awkwardly and broke her tibia in several places.
After being injured, the plaintiff filed a civil action lawsuit against the gym for negligence in failing to adequately train and supervise their instructors. When the gym moved to dismiss the case, the plaintiff filed her own motion on grounds that the gym had violated the Uniform Trade Practices and Consumer Protection Act (UTPA) that made the release null and void.
Her UPTA claim was based upon her assertion that the gym had engaged in deceptive advertising practices with their ads that repeatedly described the gym as a safe place to rock climb. One ad even said that you have nothing to lose by coming to the gym and taking a rock climbing class.
In Massachusetts, section 93A of the General Laws is our Consumer Protection Act, providing for a substantial recovery for the plaintiff in certain circumstances. In some instances, this includes triple damages. The means if the plaintiff can establish a violation of Consumer Protection Act, the plaintiff could recover three times the actual loss suffered.
In Donahue, the court ultimately decided that the release for all negligence signed by the plaintiff was valid and affirmed the trial court’s dismissal of her case against the gym. Interestingly enough, there was a case involving this same gym and another climber’s injury that the court relied on in part when deciding on the issue presented.
If you are injured in an accident in Boston, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900.
Donahue v. Ledgends, Inc., August 1, 2014, Supreme Court of Alaska
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