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McGarry v. Philly Rock Corp.

November 18, 2015

On October 15, 2015 a three judge panel of the Superior Court of Pennsylvania affirmed judgment non obstante verdicto (“JNOV”) previously obtained by Theodore Schaer in a premises liability action originally brought in the Court of Common Pleas, Chester County, Pennsylvania. The case went to trial in July 2014 and the jury returned a verdict for the plaintiffs. Plaintiffs, husband and wife, sought damages against the operators of a rock climbing gym for a severe ankle fracture with resulting surgeries and disability the plaintiff wife sustained when she jumped from one of the climbing walls at the facility. Prior to the trial the Judge refused to grant defendant’s Motion for Summary Judgment and trial ensued. At the close of the Plaintiff’s case in chief, Schaer moved for an Involuntary Non Suit and a Directed Verdict at the conclusion of the trial. Both trial motions were denied by the Court. Following the verdict, Mr. Schaer, with the assistance of associate, filed a Motion for Post-Trial Relief. On November 18, 2014, Defendants’ Motion for Post-Trial Relief was granted and JNOV was entered vacating the jury’s award and entering judgment on behalf of the defendants.  Plaintiff wife appealed to the Superior Court.  Katelyn Czarnik again assisted Schaer in drafting the Appellate Brief on behalf of the Appellee Rock Climbing Gym and the Pennsylvania Association For Justice filed an Amicus Brief on behalf of the Appellant.  Following briefing, Schaer presented oral argument on July 15, 2015.  In a non-precedential opinion, the Superior Court affirmed the Trial Court’s award of JNOV for the Gym finding that the trial testimony supported the conclusion that not only was the danger was open and obvious but that it was a danger that plaintiff wife knew and appreciated.  In coming to such conclusions, the Superior Court found that “the danger of these activities ‘is well understood by virtually all individuals of adult age’” and that “falling and causing a injury to an ankle or wrist is a ‘common, frequent, and expected risk of climbing or bouldering.’”  In light of plaintiff wife’s knowledge and appreciation of the open and obvious risk, the Superior Court held that the trial court did not err in finding that plaintiff wife assumed the risk and, as such, did not err in awarding JNOV.

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