Victim is Blamed in a Wall Climbing Accident
On Sunday, September 22, 2013, a woman was killed after falling from 30 feet to the ground at a wall climbing gym in Texas. Initial police reports indicated that the victim did not correctly attach herself to a tethering system that was to let her freely float back down the wall. The climbing wall was one of three operated by Summit Climbing Gym. The website of the climbing gym indicated that instructors are nationally certified. Our thoughts and prayers go out to the victim’s family and as an amusement park accident safety specialist, I have several safety concerns and questions. No doubt climbing walls always present a risk of serious injury and death if trained staff is not supervising climbers and equipment is determined to be faulty. More and more, the amusement and recreation industry engages patrons with interactive activities such as wall climbing, zip lining, and other attractions designed to measure and build stamina and strength.
Many times when an individual participates in one of these interactive activities, they are asked to sign a waiver of liability which on its surface may look as if the participant is signing away their legal rights. The case law is relatively clear that exculpatory clauses and waivers must be clear and unequivocal and the wording must be so clear and understandable that an ordinary knowledgeable party must understand what he or she is contracting away. Typically exculpatory clauses and waivers are construed against the parties seeking to be relieved from liability. Many times a rock climbing injury and a zip line injury will be caused due to a failure of components such as ropes, chains, bolts, anchor point slings, belay system, harnesses, hardware, or any other component utilized in the process. The CPSC notes that more than 9 million people a year will perform rock climbing activities at indoor and outdoor rock climbing locales. Almost always after a rock climbing accident, we have observed that initially the victim is noted to be at fault.
Issues Concerning Lack Of Safety Regulations And Premises Liability
Unfortunately, there are no federal regulations to ensure that rock climbing walls adhere to strict safety standards and the safety of rock climbing establishments is generally governed by a patchwork of local rules which differ from state to state. In every rock climbing and zip line accident, one must clearly determine if safety warnings were given and whether the resulting injury or death was the result of a defective product, failure of a component, failure to maintain the product or component, as well as proper supervision. Zipline and rock wall injuries must be carefully investigated to rule out a breach of duty by the owner or operator that is owed to the plaintiff. It is important to establish and prove that the owner or operator of the facility knew or should have known that a specified failure or failures would endanger the plaintiff’s safety. Preservation of evidence is paramount. One must always examine who controlled the attraction, who maintained it, and whether the operator failed to install the proper safety equipment or control other patrons. Many wall climbing accidents are due to the improper harnessing of the participant.
A proper protocol to be followed consists of a well-trained supervisor checking the correct affixation of the harness coupled with a secondary safety check by another individual other than the participant. In any recreational or amusement accident, it must be demonstrated that the victim’s injury was proximally caused by the allegations and defects claimed. One should always examine lighting and maintenance of the facility which may also give rise to a premise liability and inadequate supervision claim. Technical experts and safety warning experts must be secured by a skilled amusement accident attorney to perform an independent site inspection as soon as possible after the accident. Unfortunately, many facilities seem to focus on profitability while shortchanging safety.