By Doyice Cotten
Alexis Wiemer visited Hoosier Heights Indoor Climbing Facility in October, 2014. Weimer attended a facility orientation in which an employee, Kayli Mellencamp, conducted an employee-guided training on how to boulder, belay, and top rope climb. Wiemer then signed a Waiver form. Pertinent parts of the waiver form read:
RELEASE AND ASSUMPTION OF RISK: In consideration of being permitted to use the facilities of Hoosier Heights Indoor Rock Climbing Facility L.L.C., and mindful of the significant risks involved with the activities incidental thereto, I, for myself, my heirs, my estate and personal representative, do hereby release and discharge Hoosier Heights Indoor Rock Climbing Facility L.L.C. (hereinafter referred to as “Hoosier Heights”) from any and all liability for injury that may result from my [*3] use of the facilities of Hoosier Heights Indoor Climbing, and I do hereby waive and relinquish any and all actions or causes of action for personal injury, property damage or wrongful death occurring to myself arising as a result of the use of the facilities of Hoosier Heights or any activities incidental thereto, wherever or however such personal injury, property damage, or wrongful death may occur, whether foreseen or unforeseen, and for whatever period said activities may continue. I agree that under no circumstances will I, my heirs, my estate or my personal representative present any claim for personal injury, property damage or wrongful death against Hoosier Heights or its employees, members, directors, officers, agents and assigns for any of said causes of actions, whether said causes of action shall arise by the negligence of any said person or otherwise.
It is the intention of the undersigned individual to exempt and relieve Hoosier Heights and its employees, members, directors, officers, agents and assigns from liability for any personal injury, property damage or wrongful death caused by negligence.
The Waiver also contained a provision enumerating the risks [*4] inherent in the sport of rock climbing:
ACKNOWLEDGMENT: I, the undersigned, acknowledge that I understand that there are significant elements of risk associated with the sport of rock climbing, including those activities that take place indoors. In addition, I realize those risks also pertain to related activities such as bouldering, incidental weight training, team building, fitness training regimens and equipment purchased or rented at Hoosier Heights. I realize that those risks may include, but are not limited to, 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 facilities. I acknowledge and understand that the above list is not inclusive of all possible risks associated with rock climbing or the use of the Hoosier Heights facilities and that other unknown and unanticipated risks may result in injury, illness, paralysis, or death.
About four months later, Wiemer and several co-workers traveled to Hoosier Heights for recreational rock climbing. Waivers were already on file for Wiemer and the group. During the visit, Wiemer was top rope climbing while Magnus, a friend, belayed below. Wiemer fell while climbing; the incident report indicated that Wiemer fell approximately thirty-five feet. Apparently Magnus released a gate lever while he was belaying for Wiemer which caused Wiemer to fall.
At some point, it came to light that Kayli Mellencamp, a part-time Hoosier Heights employee with very little rock climbing experience, provided Wiemer’s orientation and training. Mellencamp’s employee training consisted solely of reviewing company provided instructional books on rock climbing and witnessing other employee orientations. Mellencamp had no other professional rock climbing experience.
Wiemer filed suit against Hoosier Heights (Wiemer v. Hoosier Heights Indoor Climbing Facility, 2017). Hoosier heights contended that it was protected by the waiver signed by Wiemer. Wiemer responded with two arguments in the alternative. First, Weimer argued the waiver was not enforceable because it listed the released party as “Hoosier Heights Indoor Rock Climbing Facility” when the actual business name was “Hoosier Heights Indoor Climbing Facility.” Secondly, Weimer argued that Hoosier Heights negligence in the hiring and training of Mellencamp, was not an “inherent risk” and this significantly contributed to the fall and injury.
Issue of the Erroneous Business Name
Wiemer contended that a genuine issue of material fact existed regarding the validity of the Waiver because the Waiver that Weimer signed failed to name the correct entity and this inaccuracy creates ambiguity as to who Wiemer contracted with. The Court was not persuaded by Wiemer’s argument. It stated that waivers, like all contracts, were to be interpreted “with the intention of the parties regarding the purpose of the document governing.”
The court ruled that “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.” Subsequently, the court denied summary judgment in favor of the plaintiff.
Issue of Negligent Training
Hoosier Heights argued for summary judgment because the Waiver’s explicit references to the “inherent risks” of rock climbing creates a binding exculpatory clause which releases Hoosier Heights from liability. Wiemer argues that a genuine issue of material fact exists regarding whether improper instruction and inadequate training, is an “inherent risk” of indoor rock climbing.
Under Indiana law, waivers containing exculpatory clauses absolving parties of liability for their own negligence must be specific and explicitly refer to waiving that party’s negligence. Wiemer contended that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that Weimer agreed to assume. Further, Weimer argued that improper training and instruction are not risks that are inherent in the nature of rock climbing.
Hoosier Heights responded that falls, as indicated by the Waiver, are a specific risk inherent in the nature of rock climbing and that Wiemer specifically waived any claims to injuries from falls by signing the Waiver. Further, the defendant argued that Wiemer waived any claims for improper training and instruction by its employees as can be seen by the waiver’s explicit release of Hoosier Heights’ employees for any negligence.
Hoosier Heights asserted that Wiemer signed a specific and explicit Waiver, which released Hoosier Heights from liability due to its own negligence. The Waiver explained that “rock climbing activity” at Hoosier Heights included, among other things,
…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…. I understand that the above list is not inclusive of all possible risks associated with rock climbing.[bold added.]
The defendant also pointed out that another reference to liability from their own negligence is found in the second paragraph of the ‘Release and Assumption of Risk’ section which states,
“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.”
The court held that Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. In addition, it pointed out that Wiemer’s injury from falling was a inherent risk explicitly noted in the Waiver. For those reasons, the Court determined that Hoosier Heights is entitled to summary judgment as a matter of law and their motion was granted.
Risk Management Take-away
- Be certain the name of the business is correct on the waiver.
- Include negligence in training of employees in the waiver.
- Make sure that your employees are well-trained.
Photo Credit: Thanks to Shelby L. Bell in Flickr.