WIEMER v. HOOSIER HEIGHTS INDOOR CLIMBING FACILITY LLC

Filing 72

ENTRY ON SUMMARY JUDGMENT - 29 Motion for Summary Judgment is granted. Wiemer's Complaint is DISMISSED. Final Judgment will issue under a separate order. See entry for details. Signed by Judge Tanya Walton Pratt on 9/15/2017. (MEJ)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ALEXIS WIEMER,
Plaintiff,
v.
HOOSIER HEIGHTS INDOOR CLIMBING
FACILITY LLC,
Defendant.

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Case No. 1:16-cv-01383-TWP-MJD

ENTRY ON SUMMARY JUDGMENT
This matter is before the Court on Defendant Hoosier Heights Indoor Climbing Facility
LLC’s (“Hoosier Heights”) Motion for Summary Judgment filed pursuant to Federal Rule of Civil
Procedure 56 (Filing No. 29). Plaintiff Alexis Wiemer (“Wiemer”) brought this action against
Hoosier Heights for personal injuries sustained when he fell during a rock climbing activity. For
the following reasons, the Court GRANTS Hoosier Heights’ Motion for Summary Judgment.
I. BACKGROUND
The material facts are not in dispute and are viewed in a light most favorable to Wiemer as
the non-moving party. See Luster v. Ill. Dep’t of Corrs., 652 F.3d 726, 728 (7th Cir. 2011).
Hoosier Heights, located in Carmel, Indiana, is a limited liability company which owns
and operates an indoor rock climbing facility. The facility is open to the public and is available
for individuals of all skill levels in recreational climbing. In order to use the facilities, Hoosier
Heights requires all patrons to sign and acknowledge having read and understood a “Waiver &
Release of Liability” form (“Waiver”). (Filing No. 30-1.) The Waiver contains: general gym
rules, exculpatory clauses relieving Hoosier Heights of liability, a medical authorization clause, an
acknowledgement that the participant understands there are inherent risks to rock climbing with

some risks listed, authorization to allow the Hoosier Heights’ staff to use any photographs taken
during the patron’s visit for promotional materials, and a signature line for the participant. (Filing
No. 30-1 at 1.) At the top of the Waiver is Hoosier Heights’ logo, address, and the name Hoosier
Heights Indoor Climbing.
The Waiver states, in relevant part:
RELEASE AND ASSUMPTION OF RISK: In consideration of being permitted
to use the facilities of Hoosier Heights Indoor Rock Climbing Facility L.L.C., and
mindful of the significant risks involved with the activities incidental thereto, I, for
myself, my heirs, my estate and personal representative, do hereby release and
discharge Hoosier Heights Indoor Rock Climbing Facility L.L.C. (hereinafter
referred to as “Hoosier Heights”) from any and all liability for injury that may result
from my use of the facilities of Hoosier Heights Indoor Climbing, and I do hereby
waive and relinquish any and all actions or causes of action for personal injury,
property damage or wrongful death occurring to myself arising as a result of the
use of the facilities of Hoosier Heights or any activities incidental thereto, wherever
or however such personal injury, property damage, or wrongful death may occur,
whether foreseen or unforeseen, and for whatever period said activities may
continue. I agree that under no circumstances will I, my heirs, my estate or my
personal representative present any claim for personal injury, property damage or
wrongful death against Hoosier Heights or its employees, members, directors,
officers, agents and assigns for any of said causes of actions, whether said causes
of action shall arise by the negligence of any said person or otherwise.
It is the intention of the undersigned individual to exempt and relieve Hoosier
Heights and its employees, members, directors, officers, agents and assigns from
liability for any personal injury, property damage or wrongful death caused by
negligence.
(Filing No. 30-1.) The Waiver also contained a provision enumerating the risks inherent in the
sport of rock climbing:
ACKNOWLEDGMENT: I, the undersigned, acknowledge that I understand that
there are significant elements of risk associated with the sport of rock climbing,
including those activities that take place indoors. In addition, I realize those risks
also pertain to related activities such as bouldering, incidental weight training, team
building, fitness training regimens and equipment purchased or rented at Hoosier
Heights. I realize that those risks may include, but are not limited to, injuries
resulting from falls, equipment failures, entanglements, falling or dropped items, or
the negligence of other climbers, participants, belayers, spotters, employees, or
other users of the facilities. I acknowledge and understand that the above list is not
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inclusive of all possible risks associated with rock climbing or the use of the
Hoosier Heights facilities and that other unknown and unanticipated risks may
result in injury, illness, paralysis, or death.
Id. In addition to executing the Waiver, Hoosier Heights requires that all patrons attend and
acknowledge undergoing orientation and training.
Wiemer visited Hoosier Heights in October 2014. On that date, he attended a facility
orientation, which is an employee-guided training on how to boulder, belay, and top rope climb. 1
(Filing No. 30-7.) If a customer intends to use the “top rope” climbing area of the facility, they
must first complete the “top rope” orientation and initial and sign the facility orientation form in
the appropriate locations. Following his orientation and training, Wiemer signed a Waiver form.
Kayli Mellencamp (“Mellencamp”), a part-time Hoosier Heights employee with very little
rock climbing experience, provided Wiemer’s orientation and training. (Filing No. 30-6.)
Mellencamp’s employee training consisted solely of reviewing company provided instructional
books on rock climbing and witnessing other employee orientations. (Filing No. 67-2 at 10-11
and 13-14.) Mellencamp had no other professional rock climbing experience.
On January 14, 2015, Wiemer, along with several co-workers, including Robert Magnus
(“Magnus”), traveled to Hoosier Heights for recreational rock climbing. Magnus had also
previously visited Hoosier Heights, and Wiemer’s and Magnus’ Waivers were already on file and
under the terms of their agreements remained in effect (Filing No. 30-6; Filing No. 30-7). Wiemer
was top rope climbing while Magnus belayed below (Filing No. 30-4). Unfortunately, Wiemer
fell while he was climbing. Incident reports indicate that Wiemer fell approximately thirty-five

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Top rope climbing is a style of climbing in which a rope runs from a belayer at the foot of the climbing wall which
is connected to an anchor system at the top of the wall and back down to the climber. Both climber and the belayer
are attached to the rope through a harness and carabiner. The belayer is responsible for pulling the slack in the rope,
which results in the climber moving up the wall. The belayer must keep the rope tight so that, in the event the climber
releases from the wall, the climber remains suspended in the air and does not fall.

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feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying
for Wiemer, which caused Wiemer to accelerate to the floor very quickly. (Filing No. 30-4 at 14.) As a result of the fall, he sustained severe and permanent injuries to his back, as well as
impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was
negligent in its operations.
II.

LEGAL STANDARD

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Federal Rule of Civil Procedure 56 provides that summary
judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v.
Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary
judgment, the court reviews “the record in the light most favorable to the nonmoving party and
draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584
(7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a
particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific
factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth,
476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the
record in search of evidence to defeat the motion for summary judgment, nor is it permitted to
conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir.
2001) (citation and internal quotations omitted). “[N]either the mere existence of some alleged
factual dispute between the parties . . . nor the existence of some metaphysical doubt as to the

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material facts . . . is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion
Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted). “It
is equally well settled, however, that where no factual disputes are present or where the undisputed
facts demonstrate that one party is entitled to judgment as a matter of law, summary judgment in
favor of that party is entirely appropriate. Collins v. American Optometric Ass’n, 693 F.2d 636,
639 (7th Cir. 1982).
III. DISCUSSION
Hoosier Heights contends that Wiemer’s signing of the Waiver, which contained an explicit
reference waiving liability for Hoosier Heights’ own negligence, absolves it of any liability and
Wiemer expressly acknowledged that falling was a risk inherent in indoor rock climbing. Wiemer
responds with two arguments in the alternative. First, he argues that the Waiver misidentifies the
released party as “Hoosier Heights Indoor Rock Climbing Facility” because the Defendant’s name,
as alleged in the Complaint and as evidenced by the Indiana Secretary of State Certificate of
Assumed Business Name, is “Hoosier Heights Indoor Climbing Facility.” (Filing No. 67-4.)
Second, Wiemer argues that Hoosier Heights negligence in the hiring and training of Mellencamp,
was not an included “inherent risk” and this significantly contributed to his fall and injury.
A.

Hoosier Heights’ Business Name
The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights

Indoor Rock Climbing Facility L.L.C.’ (Filing No. 30-1 at 1). Hoosier Heights acknowledges that
its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does
not appear in its corporate filings with the Indiana Secretary of State although it appears on the
Waiver at issue. Wiemer contends that a genuine issue of material fact exists regarding the validity

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of the Waiver, because the Waiver that he signed failed to name the correct entity and this
inaccuracy creates ambiguity as to who Wiemer contracted with.
The Court is not persuaded by Wiemer’s argument. “Release documents shall be
interpreted in the same manner as any other contract document, with the intention of the parties
regarding the purpose of the document governing.” Huffman v. Monroe County Community School
Corp., 588 N.E.2d 1264, 1267 (Ind. 1992). “The meaning of a contract is to be determined from
an examination of all of its provisions, not from a consideration of individual words, phrases, or
even paragraphs read alone.” Huffman, 588 N.E.2d at 1267. In addition, when a contract is
unambiguous, Indiana courts look to the four corners of the document to determine the intentions
of the parties. Evan v. Poe & Associates, Inc., 873 N.E.2d 92, 98 (Ind. Ct. App. 2007). This
analysis of contract interpretation is a question of law. Evans v. Med. & Prof’l Collection Servs.,
Inc., 741 N.E.2d 795, 797 (Ind. Ct. App. 2001).
In Evans, the Indiana Court of Appeals held that a contract was unambiguous that
misidentified a business name in the agreement but included the relevant address as that of the
business. Evans, 741 N.E.2d at 798. The Evans court found that the plaintiff could not recover
payment from the owner, “Evans Ford,” in his personal capacity, even though that was the name
indicated in the contract and the actual business was organized as a corporation under the name of
“Evans Lincoln Mercury Ford, Inc.” Id. at 796-98. The court did not resort to extrinsic evidence
because the contract unambiguously identified the parties despite the misidentification. See id. at
798.
In this case, the Waiver is unambiguous as to identifying the parties to the agreement.
Although the language of the Release and Assumption of Risk paragraph identifies “Hoosier
Heights Indoor Rock Climbing Facility,” the document’s letterhead at the top displays “Hoosier

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Heights Indoor Climbing,” and includes the relevant business address of Hoosier Heights where
Wiemer visited. Under these circumstances, the misidentification of Hoosier Heights does not
operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine
extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment
is denied on this basis.
B.

Negligent Training
Hoosier Heights contends that summary judgment is appropriate because the Waiver’s

explicit references to the “inherent risks” of rock climbing creates a binding exculpatory clause
which releases Hoosier Heights from liability. Wiemer argues that a genuine issue of material fact
exists regarding whether improper instruction and inadequate training, is an “inherent risk” of
indoor rock climbing.
Under Indiana law, waivers containing exculpatory clauses absolving parties of liability
for their own negligence must be specific and explicitly refer to waiving that party’s negligence.
Anderson v. Four Seasons Equestrian Center, 852 N.E.2d 576, 584 (Ind. Ct. App. 2006).
Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant
will not always preclude the defendant from being released from liability—such as when a plaintiff
has incurred damages that are inherent in the nature of the activity.” Id. (citing Marsh v. Dixon,
707 N.E.2d 998, 1000 (Ind. Ct. App. 1999)).
Wiemer contends that his fall was due to Mellencamp’s improper training and instruction
and this was not a risk that he agreed to assume (Filing No. 67 at 10). Further, he argues that
improper training and instruction are not risks that are inherent in the nature of rock climbing. Id.
Hoosier Heights responds that falls, as indicated by the Waiver, are a specific risk inherent in the
nature of rock climbing and that Wiemer specifically waived any claims to injuries from falls by

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signing the Waiver (Filing No. 68 at 14). Hoosier Heights also contends that Wiemer waived any
claims for improper training and instruction by its’ employees as the Waiver contains an explicit
release of Hoosier Heights’ employees for any negligence. Id. at 12.
Hoosier Heights acknowledges that negligence is generally a fact-intensive question;
however, it responds that it is entitled to summary judgment because Wiemer waived any claims
for liability on the basis of negligence. Id. at 11. Hoosier Heights points the Court to Anderson v.
Anderson v. Four Seasons Equestrian Center. In Anderson, the Indiana Court of Appeals held that
the defendant, an equine center, was entitled to summary judgment even though the waiver at issue
did not contain a specific and explicit release of the equine center due to its own negligence
because the plaintiff’s injury of falling while mounting her horse was a risk inherent in the nature
of the activity of horse riding. Anderson, 852 N.E.2d at 581. The plaintiff argued that her injury
was due to the equine center’s negligence in caring for, conditioning, and training her horse. The
court found that the plaintiff’s injury and resulting damages, including her characterization of the
cause of those damages (i.e. conditioning and training of her horse), were risks that were inherent
in the nature of horse riding and were exactly those for which she granted the equine center a
release of liability by signing the waiver. Id. at 585.
In the present case, Wiemer signed a specific and explicit Waiver, which released Hoosier
Heights from liability due to its own negligence. The Waiver explained that “rock climbing
activity” at Hoosier Heights included, among other things,
…team building, fitness training regimens and equipment purchased or rented at
Hoosier Heights[,]…injuries resulting from falls, equipment failures,
entanglements, falling or dropped items, or the negligence of other climbers,
participants, belayers, spotters, employees, or other users of the facility.… I
understand that the above list is not inclusive of all possible risks associated with
rock climbing.

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(Filing No. 30-6 at 1). In addition, a very similarly worded reference to liability from their own
negligence is contained in the second paragraph of the ‘Release and Assumption of Risk’ section
which states, “It is the intention of the undersigned individually to exempt and relieve Hoosier
Heights and its employees, … from liability for any personal injury, property damage, or wrongful
death caused by negligence.” (Filing No. 30-1 at 1.) The direct mentions of Hoosier Heights’ own
negligence adheres to the holding set in Powell that an exculpatory clause needs to be specific and
explicit in referencing an absolving party’s liability from negligence.
Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights
from any liability resulting from its own negligence, including improper training and instruction.
Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing
and explicitly noted in the Waiver. Accordingly, summary judgment is appropriate.
IV. CONCLUSION
For the reasons stated above, the Court determines that, based on the undisputed material
facts, Hoosier Heights is entitled to summary judgment as a matter of law. Hoosier Heights’
Motion for Summary Judgment (Filing No. 29) is GRANTED, and Wiemer’s Complaint is
DISMISSED. Final Judgment will issue under a separate order.

SO ORDERED.

Date: 9/15/2017

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DISTRIBUTION:
Mary Beth Ramey
RAMEY & HAILEY
[e-mail]
Richard D. Hailey
RAMEY & HAILEY
[e-mail]
Jessica Whelan
BINGHAM GREENEBAUM DOLL LLP
[e-mail]
Phil L. Isenbarger
BINGHAM GREENEBAUM DOLL LLP
[e-mail]

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