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Tuesday, August 20, 2019

Defense verdict reached in Edge rock climbing wall case; Juror cites heels and beer as 'personal responsibility' factors

By Ann Maher | Jan 28, 2016


St. Clair County jurors took approximately 20 minutes Wednesday afternoon to rule for the owners of The Edge in Belleville following a three-day personal injury trial.

The 2007 case was brought by a woman who wore heeled shoes and had been drinking beer before getting on a motorized rock climbing wall.

Foreperson Julie Murray said after exiting Associate Judge Randall Kelley's courtroom that there wasn't enough evidence presented to prove that owners Keith Schell and Mary Dahm were negligent for the broken kneecap plaintiff April Kassebaum sustained after jumping off the motorized wall from about three feet onto a four-inch mat on March 18, 2006.

The incident happened at around midnight while Kassebaum was attending a birthday celebration. The Edge is an entertainment venue that includes gaming and food and bar service.

Kassebaum was seeking $73,932.62 in medical expenses, plus $50,000 for past and present pain and suffering and $10,000 for loss of normal life. One of her doctors who testified by video deposition said she would need a knee replacement in the future.

In the end, Kassebaum was willing to accept 20 percent comparative fault, which would have reduced her total recommended take away to $107,146.10

Her attorney Patrick Foley had argued that the defendants were negligent for failing to warn of the rock climbing wall's dangers, failing to instruct how to use the "Fun Rock," and failing to supervise patrons using it.

The Fun Rock was designed for up to two people to use it competitively. Foley argued that signage for its use - which included warnings about not wearing heeled shoes - was only posted at the kiosk where money was dispensed, and that a second user such as Kassebaum could get on the wall without prior knowledge of those instructions.

He said during closing that had employees who were supposed to be supervising seen his client attempting to use the machine with the shoes she was wearing they wouldn't have allowed her to use it.

Throughout trial, the pair of shoes Kassebaum was wearing the night of the incident - ones with two and a half inch chunk heels - were on display on the plaintiff's table.

Foley also said that it did not matter how many beers his client had consumed that night - three, five, seven - because had there been proper supervision, and if she had appeared drunk, employees would not have let her on the wall.

During trial, plaintiff's witness Angel Tanase, Kassebaum's sister, testified that she had been with her at a St. Louis bowling alley prior to them arriving at The Edge. Tanase said Kassebaum had consumed several beers at the bowling alley. Tanase also said under cross examination that Kassebaum was "tipsy" before the rock climbing wall incident.

Foley's case also focused on spoliation of evidence.

He argued that in spite of being material to the litigation, the owners "destroyed" evidence by selling the Fun Rock in 2008 for scrap for $300. Foley questioned why owners would get rid of the machine if it was generating $1,500 per month in sales, a total they entirely kept, versus newer pieces of replacement equipment in which sales were shared with vendors.

He also raised suspicions about missing manager's logs, which he said may have reflected information about possible equipment malfunctions or other relevant matters.

But, defense attorney John Cunningham of Belleville pointed out during trial and at closing that the manager logs would not have contained information about injuries. He said they went missing during an office reorganization, and were not considered by the owners to be significant paperwork such as documents needed for tax purposes.

Cunningham said that, in fact, Kassebaum never notified owners about her injury that evening, or ever. It wasn't until three months after she was hurt that the business received a letter from an attorney regarding the incident.

He said that his clients did not sell the Fun Rock until a year and a half after Kassebaum's injury.

"It's supposed to be coincidental that we disposed of it?" Cunningham said. "No one asked to look at it.

"If they thought it was so important to look at the wall...his (Foley) office is close. They could have looked at it."

Cunningham added that the Fun Rock was used at The Edge for five years, and in that time it had been used approximately 45,000 times.

"How many got hurt? None." he said, except as alleged by Kassebaum. "How many lawsuits? You'd think they're getting sued all the time. Not true."

Foreperson Murray also said after trial that jurors took into account that "nothing" had been reported to the owners about Kassebaum's injury.

"No one knew she had fallen," Murray said.

Murray also said the case was about "personal responsibility" when "getting on with shoes like that and alcohol in your system."

Owners Schell and Dahm spoke afterwards saying they were relieved after nine years of litigation.

:"It was stressful," Schell said.

"We feel badly she was injured," he said, but that they as owners are careful to operate a "very safe" business.

"Thank God the jury followed the instructions and paid attention to the evidence, and they weren't swayed."

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