Archive for the ‘Challenge/Ropes Course’ Category

Capped and Dismissed – Arbitration Provision with Damages Cap in Zip-Line Waiver and Release Enforced (VT)

September 30, 2015

Littlejohn v. Timberquest Park at Magic, LLC (Vermont)
(trial court disposition)

The seventy-six year old plaintiff was severely injured while participating in an adventure zip-line course in Vermont.  Plaintiff had never participated in an adventure course before.  Despite having received instruction from the zip-line facility, the plaintiff mistakenly attached his equipment to a guy wire, thinking it was a zip-line cable.  While descending, he ran into a tree that anchored the other end of the guy wire.  He sued the zip-line facility alleging that it negligently designed, constructed, and operated the course.

Plaintiff’s friend had purchased their tickets for the adventure course online through the facility’s website.  Plaintiff arrived at the facility, and they were presented with a “Release of Liability, Waiver of Claims, Indemnification, and Arbitration Agreement” to sign.  Plaintiff contended that the website had not warned them that they would be required to sign a liability waiver in order to participate in the activities.  The agreement was presented in digital format on an electronic device, and plaintiff was instructed to read and sign it electronically.  The agreement specifically included a provision pursuant to which the plaintiff agreed to submit any claims in excess of $75,000 to binding arbitration.  Alternatively, if plaintiff filed a lawsuit in court, the agreement provided that plaintiff agreed that his damages would be capped at $75,000.  The agreement further attempted to require the arbitration panel or court (as applicable) to decide the enforceability of the agreement as a “threshold matter.”

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Tough Luck – Extreme Obstacle Course Registrants Forced Into Arbitration to Pursue Refunds; Class Action Barred (MA)

May 28, 2015

Pazol v. Tough Mudder Inc. (Massachusetts)

The plaintiffs registered and paid to participate in Tough Mudder’s Boston-area “Mudderella” obstacle course event, which was scheduled to take place in Haverhill, Massachusetts.  However, a few days before the event, Tough Mudder moved the location of the event to Westbrook, Maine.  Plaintiffs were unable to attend the event at the new location, and Tough Mudder refused to refund their registration fees.  Therefore, the plaintiff filed a class action lawsuit against Tough Mudder.

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A Challenging Course

June 28, 2007

Roman v. City of Bristol (Connecticut)
(Employee Injured While Using Rented Recreational Challenge Course Owned and Operated by the City; Employee Sued City and City Sued Employer Citing Indemnity Provisions in Rental Agreement; Court Found Issues of Fact Regarding Whether the Employer and the City Were Both Sophisticated Business Entities with Equal Bargaining Power Such That the Indemnity Provisions Should Be Enforced)

An employer signed a rental agreement with the city that included the rental fee and the date and time for use of a recreational challenge course owned by and located in the city.  An employee of the employer was injured while using the course and she brought a personal injury action against both the city and the city’s course instructor who was present at the time of the incident.  The city then filed a third party lawsuit against the employer for breach of contract and indemnification.  The city alleged that the employer breached the rental agreement by (1) not holding them harmless, (2) not providing them with a legal defense, and (3) failing to secure and maintain an adequate and proper liability insurance policy.  The employer filed a motion for summary judgment arguing that it was not obligated to indemnify the city under the contract for the city’s own alleged negligent conduct.  The trial court granted the employer’s motion, and the city appealed. 

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