By Doyice Cotten
In a Michigan rock wall climbing injury case (Alvarez v. LTF Club Operations Company Inc., 2016), the plaintiff had climbed the wall and started to belay down when his harness broke because he had it on backwards and incorrectly hooked to the belay system. He fell from the wall and was seriously injured. Subsequently, he filed suit claiming the waiver of liability of ordinary negligence he signed was not applicable because LTF was guilty of gross negligence.
Here are the facts of the case according to the Plaintiff and his wife who was present:
1. Plaintiff claimed Miss Agredano, an LTF employee provided Alvarez with a harness and was present the entire time while he put on the harness.
2. Plaintiff Alleged Agredano failed to affirmatively instruct David on the proper way to wear the harness before he donned it himself.
3. Plaintiff claimed Agredano was within 3 or 4 feet when she spoke to him and yet failed to notice that the red loop on the harness was in the back and not in the front.
4. Plaintiff claimed that when he was ready to come down, she told him to just push off the wall and the belay would lower him.
5. Plaintiff alleged that Agredano was grossly negligent “in failing to ascertain whether David had properly attached his harness and the belay system before permitting him to climb the rock wall or descend.”
The following are the facts according to Defendants LTF and Agredano:
1. Defendants claimed that Agredano’s conduct was ordinary negligence and not gross negligence.
2. Defendants claimed that liability for ordinary negligence was waived by the signed waiver of liability.
3. Agredano claimed she was not in the room when Alvarez incorrectly donned his harness and ascended the wall.
The trial court granted Defendant’s motion for summary judgment stating that the Plaintiff failed to “present any evidence establishing that LTF was grossly negligent in failing to take precautions for plaintiff’s safety.” Plaintiff appealed to the Michigan Court of Appeals.
The Court of Appeals summarized Michigan law:
1. To establish gross negligence, one must demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”
2. “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.”
3. Simply alleging that one could have done more is insufficient to show gross negligence; with hindsight, one could always claim more precautions could have changed the result.
4. Gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety.”
5. Summary judgment on the issue of gross negligence is permissible only when reasonable minds could not differ.
So, Michigan law defines gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results” or as “conduct exhibiting a willful disregard of precautions or measures to attend to safety.”
Ordinary negligence is often defined as “the doing of some act that a reasonably prudent person would not have done under the circumstances or the failure to do an act that a reasonably prudent person would have done under the circumstances.”
Questions to the reader!
What is your LIABILITY IQ? Consider the following questions and decide if you think LTF was guilty of ordinary negligence or of gross negligence.
1. Was Agredano’s failure to check the harness an act of negligence?
2. Should Agredano have been able to spot that the red loop was not in the right place?
3. Did Agredano make a mistake? In other words, was she negligent?
4. If Agredano’s claim that she was not present is true, is she negligent for not being present when a first-time climber is climbing?
5. Does LTF owe a duty to the client to not act in a negligent way?
6. Is Agredano grossly negligent for a combination of failing to supervise, failing to inspect the harness, and failing to recognize the red loop was in the wrong place? Would the answer be the same if her claim that she was not present when he put the harness on is true?
7. Did Agredano exhibit a reckless lack of concern for the client?
8. Did LTF exhibit a willful disregard for the safety of its client?
Now, after thinking about the preceding questions and re-reading the definitions of ordinary negligence and gross negligence, would you say that LTF and Agredano were guilty of negligence or gross negligence? (And remember, how YOU would define ordinary negligence or gross negligence is not important; what is important is how the court defines the terms.)
The Appellate Court Ruling
The court said that before granting a defendant’s motion for summary judgment, the court must accept a plaintiff’s well-pleaded allegations, documentation, and other evidence and construe them in the plaintiff’s favor. When viewing the conflicting testimony in favor of the plaintiff, the court determined that reasonable minds could differ as to whether LTF and Agredano were grossly negligent; hence, jurors should make this decision. He remanded the case for trial.
You Be a Juror . . .
Let’s look back at the 8 questions and how the jurors might rule.
First, Look at Numbers 1, 2, 3, and 4. Was failure to check the harness negligence? Yes, but that mistake would seem to be ordinary negligence. She should have spotted the red loop if she was properly inspecting the harness. Should she have been present and checked the harness of an inexperienced climber? Definitely, but again, that would be ordinary negligence. So each of these acts could be deemed ordinary negligence.
Next, let’s look at Number 5. Does LTF owe a duty to not be negligent? No, it does not. By signing the waiver, Alvarez released them of that duty. So if LTF and Agredano were simply negligent, then they are not liable.
At this point we can safely conclude that the defendants were guilty of ordinary negligence. But, the real question is, were they grossly negligent. Looking at Number 6, is Agredano grossly negligent for a combination of failing to supervise, failing to inspect the harness, and failing to recognize the red loop was in the wrong place? Could be, but I don’t think so. For one thing, failing to supervise, failing to inspect, and failing to recognize the red loop really could be considered to be one negligent action. Would the answer be the same if her claim that she was not present when he put the harness on is true? Probably, absence when there is a supervisory duty is usually considered negligence. In an extremely dangerous activity, however, it is conceivable that it could be deemed gross.
Number 7 is a critical question. Did Agredano exhibit a reckless lack of concern for the client? Can we say that she did not care if he was injured? I doubt that. She may have been young, new, or just didn’t completely realize the possible consequences. The record does not tell us anything about Agredano, so there is nothing to indicate that she had a record of unreliability or bad behavior. She was likely not taking her job as seriously as she should have, but to say she exhibited a “reckless lack of concern for her client” is at least questionable.
Finally, Number 8 asks if LTF exhibited a willful disregard for the safety of its client? They had a staff member assigned to supervise the activity, so one might rule out a total disregard for the safety of clients. No evidence was presented to show that LTF was careless, much less willfully reckless. Had there been evidence that they hired totally unqualified workers, failed to train them, failed to supervise them, and provided faulty equipment, one might conclude willful disregard or reckless lack of concern; but, evidence shows only that an employee failed to do her job one time. There is no evidence of a pattern of bad behavior.
It is hard to say how the jury will rule, but it seems to me that it is a case of ordinary negligence. As such, the jury would find that a well-written waiver relieves LTF of liability for ordinary negligence. You may disagree, and you could be correct. But, go back and carefully re-read the definitions of ordinary negligence and gross negligence.
Photo Credit: Thanks to Steven Depolo on Flickr.