By Reb Greg
The following is intended to discuss only general matters of law, and not opinions regarding the laws of a particular state or other jurisdiction. Consult with an attorney familiar with your operation and the laws which apply to it.
Rarely would a climbing gym manager describe his or her first priority as the avoidance of legal liability, but an understanding of the legal duty of care owed to gym visitors, including non-climbers, is essential to a successful operation. Under our system of jurisprudence a gym which does what it says it will do and takes reasonably good care of climbers and other visitors generally is going to be on the winning side of a dispute or law suit, over an alleged injury or other loss.
But mistakes can be made by even the best operations, so it is important that professionals in our industry understand certain fundamental concepts of legal liability. Note that we are discussing one’s legal duty of care. This is not a matter of ethics or morals, but only what the law requires in a relationship between a gym and its visitors. And our subject is a gym’s duty of care.
Caring for and about another’s welfare is a nice sentiment. But that is not our topic. As far as the law is concerned, one who does not love his neighbor nevertheless has certain obligations relating to that neighbor’s wellbeing. Specifically, one’s legal duty of care is at the heart of a claim of negligence. Your gym may be faced with issues of breach of contract, failure to comply with health and other local ordinances, and even charges of criminal conduct; but the most common claim that will be made against you will be one of negligence.
A negligence claim, to be successful, must have four elements:
- a legal duty of care owed to the person claiming some loss;
- a breach, or violation, of that duty;
- a loss, which may be a personal injury or death, emotional upset, or loss or damage to property; and
- a causal connection between the loss and the breach.
As noted, one’s legal duty of care to another is the key to a negligence claim. If no duty exists, there can be no negligence. The duty of care can be shaped in various ways, but, for now, it is important that you understand if and under what circumstances a legal duty of care is owed, and what that duty requires of you.
Whether or not a duty exists depends primarily on relationships: does the gym have such a relationship with its visitors that it would be fair and reasonable to hold the gym accountable for its acts or omissions which cause harm.
Your gym is, first and above all, a place. You invite persons to pay a fee for the privilege of participating in a variety of activities. In the gym, staff members – employees and contractors — admit, train, instruct, supervise, perhaps feed, and otherwise assist the visitors in a number of ways. Visitors may include very young and inexperienced children and professional climbers. Visitors may come alone, or in groups. A minor may be accompanied by his or her parent or legal guardian, an adult acquaintance, or no adult at all. Registration may have occurred electronically, offsite, and the gym is challenged to know whether the person who appears at the front desk is the person who previously registered. The variety of ages, competencies, expectations and emotional and physical readiness of your visitors is almost unlimited. And these and other factors will influence the duty of care owed by the gym.
The “placeness” of the gym experience and the delivery of personal services combine to form a body of law which is predictable and, generally, encouraging to the effective management of the facility and activities offered.
Applicable laws promote the concept that a business owner who invites a person onto its premises for their mutual benefit must protect that visitor from certain categories of harm. The same duties would not be owed to a trespasser, for example, including someone who entered the gym without permission or authority. Most of these laws require that the premises be as “safe” as they appear to be. I am using the word “safe” in the sense of the risks being reasonably managed—–NOT the dictionary definition of “safe” which, basically, is “freedom from risk”. In this latter sense no gym is “safe”. Added to these laws dealing with the physical premises are those dealing with the interaction among staff and visitors.
As you can see, gym relationships are complex. In light of those relationships a duty of care clearly is owed by a gym to its visitors. So, our inquiry is not if a duty is owed, but, rather what that duty is.
One’s legal duty of care to another is to protect that other person from unreasonable risks of harm. This certainly means that one will not cause harm to another. This duty extends to protecting the person from risks of harm caused by others, including other visitors and gym staff. Imbedded in this definition of legal duty is the notion that there are reasonable risks of harm. In fact there are such risks, as we discuss below.
How do we determine whether a person who is charged with a legal duty of care has in fact met that duty? The question which will be put to a jury is this: did the gym, including persons acting on behalf of the gym, act in this situation as a reasonable gym owner/staff would have acted in the same or similar circumstances.
Note two very important aspects of the standard. First, the test is objective. The person accused of wrongdoing is measured against a fictional “reasonable person” – not necessarily another gym in the neighborhood, or half-way across the country, or even an ideal gym described in a set of standards. Second, the test is reasonableness. It is NOT best practices, or even someone’s idea of best, or even preferred, practices. The law requires only reasonable behavior. The court and jury may hear testimony that an entire community engaged in certain practices which were not, in fact, reasonable.
An act or omission may have been reasonable under the circumstances even if it did not turn out to be an absolutely correct way to act. To clarify: assume that in the process of lowering a climber a belayer had five options for bringing the climber safely to the bottom of the wall (we’ll call them options one through five). The belayer chooses number 4. The climber falls (or, as the plaintiff’s attorney would describe it, she or he was dropped). Did the belayer make the wrong choice? Apparently so, for the climber fell and was injured. Was the belayer negligent? We won’t know until a jury decides whether he acted unreasonably when he chose option 4. Importantly: if #4 was a reasonable choice under the circumstances, it does not become negligent simply because it was wrong. Option 5 may have been the right one, in hindsight, but, under the circumstances on that wall, at that time, #4 (and maybe others) was a reasonable choice.
A gym’s duty of care can be influenced by a number of considerations, including:
1) Disparities of age, experience, comprehension, etc. A young child on her first climb may be owed duties that a hardened veteran of 10,000 climbs is not. Some states still recognize the doctrine of “in loco parentis” — literally, “in the place of the parent”. A duty to act “in loco parentis” does not mean that a service provider must perform its risk management and other tasks as a prudent parent would. The requirement is, rather, that one charged with that duty exercise the same degree of care that a parent would in the same circumstances. Fortunately, courts have acknowledged that even the most cautious parent understands the value of adventure and play, and may not reasonably expect the provider of recreation services to ensure a child’s safety.
2) Expectations reasonably arising from promotional and other representations of the gym. Does the gym promise “constant supervision”, “absolute safety”, or “the best staff this side of the Mississippi?” A climber is entitled to rely on promises made and assurances given if that reliance is reasonable. Again, the less experienced climbers will be more susceptible to such statements.
3) Prevailing practices and standards, properly reviewed and accepted in an industry. Operating in accordance with established standards is some evidence of reasonable care having been taken, but, as we have seen, they, like prevailing practices, are not determinative of the negligence issue. The fact that a standard was violated may be some evidence of negligence but it is not the end of the story.
4) Violation of a law. The violation of a law, however is another matter. A violation of a law which requires certain behavior or safety procedures is “negligence per se” , which means the actor did violate a duty of care as established by that law, and the victim, to recover on a claim, need show only that the negligence caused a loss.
These enlargements of a gym’s duty of care can be controlled, or at least better understood, by knowing the laws, standards and common practices in our industry, attending seminars and conferences to learn of those and other practices, being sure that your promotional materials do not promise more than you can, or intend to, deliver, and cautioning your staff to be equally circumspect in their coaching and instructing. Be as clear in your promotional material, staff conversations and signage about what you will not do, as you are about what you intend to do.
A gym’s legal duty of care may be reduced in a number of ways. We saw above that the law forgives “reasonable” risks of harm – a gym has no legal duty to protect a visitor from the inherent risks of the premises and activities. Inherent risks are those which so much a part of the activity that, without them, the activity would lose its value and appeal. Falling is an inherent risk of climbing. Failure to hold a belay may be an inherent risk as well. Similarly, a risk which is expressly assumed by a visitor may be considered a “reasonable risk”, as is a risk covered by a pre-injury release or waiver.
I will close as I began. Legal liability, including liability arising from an alleged violation of a gym’s duty of care, can best be avoided by maintaining a quality program. Such a program should be grounded in your understanding of your obligations to your visitors, what can go wrong in that relationship, how to reduce the chances of bad incidents, and what to do when they occur. If these are your priorities, you can open your doors each morning with some confidence that the law is on your side.
Reb Gregg is a leading attorney, lecturer and writer in legal liability issues for adventure, education and recreation based outdoor programs. He regularly speaks at the Climbing Wall Association Summit.
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