A Michigan state appeals court has affirmed a lower court’s grant of summary judgment, effectively ending the claim of a rock-climbing participant, who fell and then sued his athletic club and one of its employees for negligence.
The court found specifically that the waiver the plaintiff signed covered the general negligence claim and that he failed to show that the defendant employee exhibited “reckless misconduct.”
Clinton Lucas, the plaintiff, was an experienced rock climber, who frequented the defendant Norton Pines Athletic Clubto pursue his passion. While there, he had developed a routine or practice with employee David Swinburne, which would allow him to secure his own clip onto the harness and ascend the wall after making eye contact with Swinburne to visually verify that his harness was properly attached to the auto-belay system. On the day of the plaintiff’s fall, he and Swinburne had followed this routine a number of times. However, on his last climb, the plaintiff ascended the wall without clipping the harness to the auto-belay system or making eye contact with Swinburne to indicate that he was initiating his climb. Swinburne was in the vicinity, but reading a magazine when Lucas commenced his climb. The plaintiff lost his grip on the wall and, without attachment to the safety mechanism, fell approximately 20 feet to the ground, incurring injuries.
Lucas sued both Swinburne and the Club, alleging several counts of general negligence and reckless misconduct. The trial court granted the defendants’ motion for summary judgment on the general negligence and reckless misconduct claims. The defendants appealed.
In reviewing the appeal, the court noted that the plaintiff had executed a Participant Release of Liability and Assumption of Risk Agreement document when he joined the club. This document provided, in relevant part, for a “release and . . . discharge” of the Club and its employees from any claims of injury “which may occur from any cause during such participation and/or use of the facilities.” The Release also included a specific acknowledgement that the member assumed the risk of participation in activities at the Club. However, the release specifically did not cover claims “arising from the willful or wanton negligence of Norton Pines Athletic Club or its officers, agents, or employees.” In addition before engaging in climbing of the rock wall, each member of the Club was required to execute a Climbing Wall Release of Liability, which also included an acknowledgement regarding the assumption of risk of the member in participating in this activity and discharged the Club and its employees “from any and all claims, demands, actions, or causes of action on account of injury or death to myself . . . which may occur from any cause during such participation and/or use of the facilities.” The Club also posted Climbing Wall Rules and Regulations, which required each member climbing the rock wall to wear a harness that must be attached with metal carabiners to tethers that descend from an auto-belay, or safety mechanism, which are secured to the wall. The Club’s posted Climbing Wall Rules require that “only a Norton Pines staff member is allowed to hook and unhook climber to and from the belay,” and “only a Norton Pines staff is allowed to check the safety of equipment after it is put on.”
The appeals wrote that “the various waivers and releases signed by plaintiffs precluded his claims of ordinary negligence.” However, the documents did not cover “willful or wanton negligence” or misconduct.
On appeal, the plaintiff did not challenge the dismissal of the general negligence claims, but asserted error in the trial court’s grant of summary judgment on the claim of reckless misconduct. But the appeals court disagreed with Lucas’ characterization of Swinburne’s conduct.
“Based on the factual circumstances of this case, there is no basis to assert reckless misconduct as a basis for imposition of liability …,” wrote the court.
“One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not. [Behar v Fox, 249 Mich App 314, 319; 642 NW2d 426 (2002).]
“There was no evidence presented of any affirmative or assertive behaviors by Swinburne to support an assertion of reckless conduct. At most, Swinburne was negligent because he was inattentive to plaintiff’s activity at the initiation of his climb. Swinburne’s complicit participation with plaintiff in ignoring the rules and regulations for the rock-climbing wall could only be construed as ordinary negligence based on their having established a mechanism or procedure to assure plaintiff’s safety while climbing. While the procedure followed deviated from the Club’s policy it does not evidence a level of willfulness or indifference necessary to establish reckless misconduct.”
Clinton Lucas and Robyn Lucas v Norton Pines Athletic Club, INC., and David Swinburne; Ct. App.Mich.; No. 289685, 2010 Mich. App. LEXIS 1066; 6/10/10
