Homemade Zip Line User Didn't Assume Injury Risk

The Product Safety & Liability Reporter™ provides updates on significant developments and issues in product safety and liability litigation and regulation, plus analysis from top litigators. Get...

By Bruce Kaufman

Aug. 8 — What could possibly go wrong with a homemade 220-foot zip line built in dense woods by two friends without any experience in engineering or physics?

Plenty, two New York courts said in clashing rulings over an injury suit between 45-year-old cousins ( Zelkowitz v. County Grp., Inc., 2016 BL 252162, N.Y. App. Div., No. 719, 8/4/16 ).

Even though Alan Zelkowitz and Joseph Skoler “successfully tested” the line using a log as a dummy, Zelkowitz was severely injured on his second ride when he crashed into a tree and landed on a boulder.

A trial court ruled in 2015 that Zelkowitz assumed the risk of injury by voluntarily riding a zip line that he knew wasn't professionally erected, and without wearing a safety helmet or harness.

But the Appellate Division of the New York Supreme Court disagreed and reinstated the negligence suit Aug. 4.

The appeals court said Zelkowitz was unaware that the equipment may have been faulty, and a person can't assume the risk of being injured by faulty equipment.

There was some evidence that the improvised braking mechanism—which employed bungee cords—either malfunctioned or was negligently installed by Skoler, a real estate agent, the appeals court said.

“The malfunctioning brake clearly enhanced the danger of the zip line,” the appeals court said.

Skoler testified that he did extensive research on how to properly build a zip line, including watching online instructional videos, and Zelkowitz was “entitled to rely on Skoler's relative expertise,” the appeals court said.

Also named as a defendant is County Group Inc., a real estate company half owned by Skoler. The zip line was located on CGI's property in Mountaindale, N.Y.

Alexander J. Wulwick in New York represents the plaintiff.

The Law Office of James J. Toomey, also in New York, represents Skoler.

To contact the reporter on this story: Bruce Kaufman in Washington at bkaufman@bna.com

To contact the editors responsible for this story: Steven Patrick at spatrick@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.