A state appeals panel has agreed a signed liability waiver shields a Chicago gym from being sued by a woman who fell while using their rock wall when the rope she had fastened to her harness detached.
Amy Taylor sued Brooklyn Boulders in Cook County Circuit Court in September 2016, later adding Chicago Climbing Gym Company as a defendant, alleging negligence stemming from a February 2016 fall at the Brooklyn Boulders on South Morgan Street.
Cook County Circuit Court Judges Thomas Cushing and Scott McKenna presided over the case, which ended with an April 2023 summary judgment ruling in favor of Brooklyn Boulders and a September 2023 denial of Taylor’s motion to reconsider.
She challenged the matter before the Illinois First District Appellate Court. Justice Cynthia Cobbs wrote the panel’s opinion, filed Feb. 18; Justices Terrence Lavin and Aurelia Pucinski concurred.
According to court documents, Taylor first visited the gym in November 2015. At that time she electronically signed a liability and waiver release and completed a training class for new climbers, which included instruction on knotting a rope to a harness, belay techniques, equipment use and a practice climb.
On the day she fell, Taylor was participating in top climbing runs — as opposed to bouldering — with a friend who acted as her partner. She was on her fourth run up a 30-foot wall when her partner and a gym employee informed her the rope was no longer attached to her harness. She said she held onto the wall for 30 seconds before falling about 15 feet, breaking bones in both feet and a vertebrae while later experiencing post-traumatic stress and panic attacks.
When Brooklyn Boulders sought summary judgment, it argued Chicago Climbing Gym solely owned the facility and “asserted that employee training, emergency crash pads, and any faulty equipment were the sole responsibility of Chicago Climbing Gym,” Cobbs wrote. “It also argued that, even were it an owner or operator of the facility, the liability waiver disclaims any duty owed to Taylor.”
Both companies also argued the liability waiver disclaims any duty either corporate entity owed to signees.
Taylor argued the companies were “common carriers and operating an amusement ride,” which would’ve voided the waiver, but that failed at the circuit court level, allowing Judge McKenna to set aside Brooklyn Boulders’ position on facility ownership and obligation. In her motion to reconsider, Taylor said state law compels licensed businesses to carry liability insurance covering bodily injury, for at least $1 million, and that a waiver can’t stand in for that requirement.
Judge Cushing, as a successor to McKenna, denied that motion.
With no dispute over signing the waiver, Cobbs said “Taylor’s arguments solely rest on public policy considerations.”
The panel disagreed with her reading of the Illinois Safety Act — originally named the Carnival and Amusement Ride Safety Act when lawmakers enacted it in the mid-1980s — finding nothing in the statutory language limiting a licensed entity from offering liability waivers. Furthermore, the panel found the gym had a liability policy that complied with state law.
The panel also determined “there is no decisional law interpreting this section of the Safety Act or any sections of the Safety Act that would have bearing in this case,” Cobbs wrote. “There is also no case law from this jurisdiction addressing the validity of exculpatory clauses in the context of recreational rock-climbing facilities.”
Although Taylor argued General Assembly action in 1987 and 2013 bolstered her position, the panel said neither amendment addressed the issue of whether an operator could execute liability waivers with patrons. There are other industry sectors where lawmakers have barred such agreements, but Cobbs said “case law has repeatedly shown the judiciary’s deference to the General Assembly’s decision whether to do so or not.”
Regarding Taylor’s public policy argument, the panel rejected the “common carrier” framing as applied to a belay system used to transport climbing patrons. Although courts have applied the common carrier label to conveyances like elevators, scenic railways, merry-go-rounds, taxis and a Ferris wheel, Cobbs said the Illinois Supreme Court refused to place escalators in that category because the rider has an active role in their own safety, as they might on stairs.
“The facts in the record demonstrate that Taylor was not a ‘passive’ passenger at the rock-climbing facility,” Cobbs wrote. “She admitted that she provided her own shoes and harness, she tied the rope to her harness herself, and she declined to use an auto-belayer. As such, she actively participated in her transportation up and down the wall and contributed to her own safety, especially as she admitted that, if she had tied the rope correctly, she would not have fallen.”
Although the panel acknowledged lawmakers might not have foreseen certain activities or facilities falling under the Safety Act without also being considered common carriers, it’s nonetheless the General Assembly’s job “to determine whether amusement rides or facilities that are not common carriers should be barred from utilizing exculpatory agreements to avoid liability for injuries.”
Taylor is represented by Corboy & Demetrio, of Chicago. The firm said it would not comment on pending litigation.
Freeman Mathis & Gary, of Chicago, represents Brooklyn Boulders. The firm said also declined comment.
Cassiday Schade, of Chicago, represents Chicago Climbing Gym Company.