TO: FROM: DATE: SUBJECT

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Larry Craig Erica M. Chavez November 21, 2009 Adams v. Oppenheimer, Assumption of Risk Defense

I.

Question Presented Can the assumption of risk doctrine protect Willa Openheimer from being liable

for George Adams¶ serious injury when he fell while engaging in the dangerous sport of rock climbing and broke both of his legs while unsupervised by his rock climbing guide because she left to help a novice climber? II. Brief Answer Yes. A court will probably find that Willa Oppenheimer did not have a duty to protect George Adams against risk of his injuries because the risk of his fall was inherent to rock climbing. The court will likely accept the assumption of risk doctrine defense holding that a person must take care not to increase the risks of another. In order to be held liable for negligence, the instructor must do something that increases the danger of the sport activity. Willa Oppenheimer¶s failure to supervise does not rise to the level owed by and instructor to a student of rock climbing. Therefore this court will mostlikely find that Willa Oppenheimer did not have a duty to protect George Adams against his risk of injuries, because his fall was inherent to the sport of rock climbing. III. Factual Background Plaintiff, George Adams (Adams), has sued defendant, Willa Openheimer (Openheimer), for negligence after sustaining serious injuries from falling while

attempting a difficult dissent when rock climbing while unsupervised by his guide because she left to help another climber. On July 22, 2008 Adams, three friends and Openheimer, a rock climbing guide set out to engage in a four hour recreational rock climb at Harrah¶s Rock, a very difficult climb. One of Adams¶ friends, Rick, was a novice climber, while the others had been climbing for about ten years. Openheimer was hired to provide and set up the gear necessary for rock climbing, oversee the climb and offer advise to the group. Openheimer provided testimony that she arrived before the group to set up her equipment. She explained that she owns and maintains a permanent anchor she installed at Harrah¶s Rock. She went on to confirm that she does have any specific recollection of the events of that day, prior to the accident. She does not remember how she set up the anchor, but maintains that she has connected rope to an anchor hundreds of times, and had no reason or recollection of deviating from her standard practice. Moreover, she claims that she is sure set up the anchor correctly. Adams provided testimony that he and his friends felt confident about the climb, thus upon realizing that this climb was too difficult for his friend, Rick, Adams told Openheimer to ³take care of Rick.´ This is when Openheimer left the group to set up a temporary anchor at an easier nearby rock for Rick. Adams¶ friend Mohinder ascended Harrah¶s rock first, using the equipment prepared by Openheimer. After Mohinder descended, Adams climbed up Harrah¶s Rock, using the same equipment Mohinder used, provided by Openheimer. After Adams reached the top, he took a break to talk to other climbers, then yelled down t Mohinder that he was ready to come down. The next thing
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Adam remembers is being on the ground with the worst imaginable pain he had ever known. The rope had become detached from the anchor, and Adams fell to the ground breaking both of his legs. Adams has no recollection of detaching his rope from the anchor or seeing anyone detach the rope from the anchor. Adams confirmed that he did not check his anchor before descending because he had relied on Openheimer¶s expertise and assumed that she had set it up right. Justine DePaul (DePaul), an expert witness, provided testimony after visiting the site, reviewing Openheimer and Adams¶s testimony, meeting with Openheimer, and creating an accident reenactment, that Openheimer was not negligent in the set up of her equipment. DePaul testified that if Openheimer was negligent in her set up of the equipment, or failed to attach a carabiner, Mohinder would have fallen too. DePaul was asked if Openheimer or Adams should have checked the anchors before Adams started his climb. She said that Adams would not have been expected to check his anchor and it is hard to say if Openheimer should have. Then, she was asked if Openheimer should have stayed at the top of the rock to check Adams¶ equipment, DePaul said, ³Maybe, but it also makes sense to stay at the bottom, watching the climb and alerting the climber to danger.´ Next, DePaul said that Openheimer should have at least been watching the climb. Moreover, DePaul indicated that Harrah¶s Rock is a ³risky climb´ for even experienced climbers. DePaul emphasized that rock climbing is risky, ³that is the nature of the sport, it¶s all about the thrill. Our survival depends on your wits, skills and perhaps a bit of luck.´ Lastly she provided that it is common for guides to leave experienced

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climbers like Adams and Mohinder on their own for brief periods of time while helping less experienced climbers. She explained that a guide cannot be everywhere at once. IV. Analysis Oppenheimer will most likely be protected by the assumption of risk doctrine. Generally, this doctrine is an affirmative defense providing that a ³persons have a duty to avoid injury to others and may be held liable if their careless conduct injures another person.´ See Cal. Civ. Code §1714 (West 2009). In the sports setting, however ³conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.´ Knight v. Jewett, 834 P.2d 696, 708 (Cal. 1992). This doctrine in the context of dangerous sports such as rock climbing is two-fold. First, one has a duty to avoid injury to others. Secondly, one has a duty to use due care as to not increase a risk of harm. As per your instructions, this memorandum will address whether we can successfully defend Oppenheimer on the ground that she had no duty to protect Adams against the risk of his injuries because, under the of assumption of risk doctrine the risk of his fall was inherent n the activity of rock climbing. Oppenheimer will most likely be protected by the assumption of risk doctrine and not be liable for Adams injuries because the scope of the duty of care frequently depends on the defendant¶s role in or relationship to the sport. Knight, 834 P.2d at 708 (Affirming a summary judgment Knight distinguishes the role of the defendant as a co-participant rather than an owner of a sports facility when Knight engaged in a game of touch football and her injury was the fault of a co-participant). Finally, in the sports setting, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the
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sport itself. Id (holding that when defining the duty of care that was owed to Knight, the aggressive nature of touch football is highly relevant, Knight should have expected injuries in the nature of a bump or a bruise when she played touch football). Openheimer will most likely not be liable for the injuries Adams sustained while rock climbing because the nature of a sport is highly relevant in defining the duty of care owed by a particular defendant, thus limiting Openheimer¶s liability. (Knight, 834 P.2d at 708). In Knight, a group of friends engaged in a game of touch football when the defendant collided with the plaintiff, knocking her on to the floor as he jumped to catch the football. Id, When he landed he took a step backward onto the plaintiff¶s right hand, injuring her little finger so badly that after three operations, doctors were forced to amputate the finger. Id. The Court of Appeal held that the trial court had properly granted a motion for summary judgment in favor of the defendant. Id. The court reasoned that the defendant was protected by the doctrine of assumption of risk and the careless conduct of others is treated as an ³inherent risk´ of a sport, thus barring recovery by the plaintiff. Id. Openheimer will most likely not be liable for the injuries Adams sustained while rock climbing because an instructor¶s duty to a student is limited by the assumption of risk doctrine in that he/she must act in a way that does not increase the risks already inherent to in learning a sport. Rodrigo v. Koryo Martial Arts, 122 Cal.Rptr.2d 832, 833 (Ct. App. 2002). In Rodrigo, Rodrigo was injured while participating in tae kwon do class conducted by Koryo Martial Arts. Id. Adult students taking turns kicking a padded target when, while preparing to initiate her kick when she felt ³something´ on her leg.
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Id. Rodrigo believes someone kicked her but does not know who, this kick caused a rupture of the Achilles tendon in appellant¶s leg. Id. The trial court granted a motion for summary judgment in Koryo¶s favor. Id. at 833. The appellant affirmed that an instructors duty to a student is limited, they must act in a manner as to not increase the risks inherent to the learning process of the sport or activity in which the instruction is being offered. Id. at 842. The appellate court found that Koryo did not to anything to increase the risks associated with learning tae kwon do. Id at 836. The assumption of risk doctrine bared any potential recovery by the appellant. Id. Openheimer will most likely not be liable for the injuries Adams sustained while rock climbing because the duty to avoid injury causing conduct is not the same as the duty not to increase risks inherent to the sport. Rodrigo, 122 Cal.Rptr.2d at 841. In Rodrigo, the student who was kicked by another student, thus causing injury to her Achilles tendon befuddled the standard required in order to impose an action for negligence against the tae kwon do instructor. Rodrigo confused ³the duty to use due care to avoid injury to another with the duty not to increase the risks inherent in a sport.´ Id.at 843. The court held that Master Kim may have instructed students not to practice their kicks while in line to promote safety in his class but ³compliance with his instructions constitute nothing more than a lack of due care. Those instructions did not increase the risk of injury inherent in learning tae kwon do.´ Id. Here, Openheimer will be protected by the assumption of risk doctrine because this doctrine depends on a defendant¶s role in or relationship with the sport and conditions or conduct that would otherwise be considered dangerous, and are often an
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integral part of the sport. Unlike the plaintiff and defendant in Knight who were coparticipants, Openheimer and Adams are instructor/guide and student. Further just as in Knight, the sport of football is aggressive and likely to injure the participants as shown in Knights finger injury and eventual amputation. Rock climbing is also dangerous and likely to produce injury. Expert DePaul confirmed that rock climbing is a risky sport where your survival depends on ³your wits, your skills and perhaps a bit of luck.´ If Adams would have checked his rock climbing gear prior to ascending and descending the rock he would have demonstrated the use of his wit and skills that DePaul speaks of, as gear failure is a risk inherent to all sports, not just rock climbing. Moreover, Openheimer should not be found liable for the injuries of Adams because the nature of a sport is highly relative in defining the duty of care owed by a particular defendant. Like in Knight where the defendant engaged in a game of touch football, a game that is inherently rough and the participants can expect to be injured with scrapes, bumps and bruises, as explained by the plaintiff, when an individual engages in the sport of rock climbing he can also expect to be injured as the nature of the sport is dangerous. This will likely show that the nature of a sport should considered and held as highly relative in defining the duty of care owed by a litigant. Further, Openheimer should not be held responsible for the injuries of Adams as an instructor¶s duty to a student under the doctrine of assumption of risk, the assumption or the risk is limited to the instructor acting in a way that they do not increase the risks inherent in learning a sport. Just as the instructor in Rodrigo, who did not do anything that increased the risk of the defendant getting hurt, Openheimer did not do anything that
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would have increased Adam¶s likelihood of getting hurt. The instructor in Rodrigo did not instruct the students to do exercises that put themselves or their classmates at risk, just so, there is no evidence that Oppenheimer did anything that increased the risk of Adams getting hurt. Finally Openheimer should not be found liable for the injuries of Adams because the duty to avoid injury causing conduct is not the same as the duty not to increase risks inherent to the sport. Just as the plaintiff in Rodrigo confused the aforementioned issues, Adams is also confusing an instructor¶s duty to avoid injury causing conduct and the duty not to increase risks inherent to the sport of rock climbing. In Rodrigo, the plaintiff believes that because the instructor was not watching her at the time her injury, that means that the instructor has increased the risk to the plaintiff. This is not true, if the instructor ordered the class to engage in an act that would increase the risk of injury, then that instructor would be liable for the injuries sustained by his/her students. The other side will likely argue that failure of an Oppenheimer to supervise increased Adams risk of injury. This plaintiff will argue that if a rock climber hires a guide, it is his/her duty to stay with the rock climbers at all times. The plaintiff will argue that if Oppenheimer was supervising there is at least the possibility that she would have seen that the rope was untied. Moreover, if she was watching Adams either from above or below, she perhaps would have seen whoever tampered with the rope, and been able to make Adams aware of the tampering. This argument will likely fail as, In DePauls testimony she pointed out that an instructor cannot be in multiple places at the same time. She went on to liken her job as
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an instructor to that of a parent who at times has to leave the older siblings alone for a moment to tend to the younger child. Moreover, DePaul provided testimony that it is not uncommon for a guide to leave more experienced rock climbers to tend to less experienced. Just so, even if Oppenheimer was watching Adams descent, as provided in DePaul¶s testimony it is possible that she would not have noticed the rope was untied. V. Conclusion A court will probably find that Oppenheimer had no duty to protect Adams against risk of his injuries because the risk of his fall was inherent to the dangerous sport of rock climbing. Oppenheimer will likely be protected by the assumption of risk doctrine. The scope of a rock climbing guide¶s duty depends on the defendant¶s role in, or relationship to the sport, the nature of a sport is highly relevant in defining the duty of care owed by a particular defendant, an instructor¶s duty to a student is limited by the assumption of risk doctrine in that he/she must act in a way that does not increase the risks already inherent to in learning a sport, and finally the duty to avoid injury causing conduct is not the same as the duty not to increase risks inherent to the sport.

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