District Court, Salt Lake Department The Honorable Patrick
Corum No. 160901585
D. Wright and A. Joseph Sano, Attorneys for Appellant
C. Petty, Attorney for Appellee
Kate Appleby authored this Opinion, in which Judges Ryan M.
Harris and Diana Hagen concurred.
Scott Howe sued Momentum LLC under a theory of gross
negligence for injuries he sustained while
"bouldering." Momentum moved for summary judgment,
which the district court denied because the disputed facts
were sufficient to raise a jury question. The district court
also ruled that Howe's expert (Expert) was qualified to
testify on the industry standard of care. The matter is
before this court on an interlocutory appeal challenging the
court's denial of the summary judgment motion and its
decision to permit Expert to testify. We affirm and remand
for further proceedings.
Momentum is an indoor-climbing facility with a separate area
for bouldering. The bouldering area's concrete floor is
covered by approximately twelve inches of foam padding
overlain by thick vinyl, known as an "impact attenuation
surface." In the years after Momentum's 2007
opening, some of the vinyl began to tear and separate. In
late September 2011, Momentum had "[a]t least one"
tear repaired with a welded vinyl patch.
But Momentum's management team deemed these tear patches
a hazard for tripping,  so it placed modular one-inch-thick
mats over certain areas of the bouldering area floor that
were showing signs of wear or damage. The mats are not
designed to be anchored to the underlying pad and they would
sometimes move when people landed on them. Because the mats
tended to move, Momentum staff "monitored the floor
regularly to try to keep the [mats] in place." In
addition to this action, a Momentum employee altered the
routes above those areas by reconfiguring and reducing the
number of foot- and hand-holds to reduce customer use of the
areas with worn and damaged padding.
Over the years-and prior to Howe's injury- Momentum's
patrons had reported incidents, some of which involved
injuries, which alerted Momentum to the fact that the padding
in the bouldering area was worn and damaged in some places.
Before Howe was injured, five incidents were reported before
Momentum began using the mats and another eight were reported
thereafter. Each of these injuries involved a climber
dropping from the bouldering wall or "slab area" to
the floor below and, upon landing, pushing a foot through the
floor padding, making contact with the concrete floor below,
either rolling or twisting an ankle in the process.
In March 2012, Howe was bouldering at Momentum. After
finishing his bouldering route, Howe dropped off the wall to
the floor below. As he made contact with the floor, his
"left foot impacted the mat on top of the padded floor,
causing the mat to move. As the mat moved, it exposed the
padded floor beneath. Concealed under the mat, the cover of
the pad was split in a straight line, exposing the abutting
edges of pads below." When Howe's "right foot
impacted the top of the two abutting pads, [his] foot passed
between the two abutting pads to the floor beneath." As
a result of the contact with the concrete, Howe broke his
Howe sued, asserting-among other things-that Momentum was
grossly negligent. He alleged that Momentum, "with a
knowing and reckless indifference and disregard for the
safety of [Howe] and other members of [Momentum], concealed,
or caused to be concealed, the defects in their floor padding
by placing mats over the defective area."
Howe designated a liability Expert. Expert has a
bachelor's degree in chemical engineering and petroleum
refining, as well as a master's degree in metallurgical
and materials engineering. His professional experience
includes research and development engineering as well as
forensic engineering. Expert owns a forensic engineering
company that specializes in "metallurgical, materials,
and mechanical failure analysis"; "materials
evaluation and testing"; "product liability and
analysis"; "fire and explosion cause and
origin"; "industrial, recreational, and
construction accident analysis"; and "chemical and
mechanical systems failure analysis." Expert has been an
expert witness in numerous cases, one of which involved a
mechanical failure that caused an indoor climbing accident.
He has also had professional experience with evaluating
impact attenuation surfaces in the ski industry.
Expert opined that Momentum did not take appropriate steps to
protect climbers in the bouldering ...