Can repeated safety failures support a gross negligence claim? Howe v. Momentum, LLC Explained

In Howe v. Momentum, LLC, the Utah Court of Appeals addressed whether a defendant’s continued reliance on a repeatedly-failed safety strategy can support a gross negligence claim, even when the defendant initially took some remedial measures.

Background and Facts
Scott Howe sustained a broken ankle while bouldering at Momentum’s indoor climbing facility. The facility’s concrete floor was covered by foam padding with a vinyl overlay, but over time the vinyl began tearing and separating. After five initial injury incidents, Momentum implemented a two-pronged strategy: placing moveable one-inch mats over damaged areas and reducing climbing routes above those areas. However, eight additional similar injuries occurred after this strategy was implemented. When Howe was injured, his foot passed through damaged padding that was concealed beneath one of the moveable mats.

Key Legal Issues
The primary issue was whether disputed facts regarding Momentum’s response to repeated injuries precluded summary judgment on Howe’s gross negligence claim. The court also addressed whether Howe’s engineering expert was qualified to testify about the standard of care in the indoor climbing industry.

Court’s Analysis and Holding
The Court of Appeals affirmed the district court’s denial of summary judgment, finding material factual disputes existed. While acknowledging tension in Utah Supreme Court precedent regarding gross negligence standards, the court held that a defendant’s failure to take additional action after a safety strategy repeatedly fails creates questions of fact about whether the defendant exercised even slight care. The court distinguished between taking no action initially versus taking inadequate action that continues to result in injuries. The court also affirmed admission of the expert testimony, finding the witness’s forensic engineering background and accident analysis experience qualified him to opine on industry standards.

Practice Implications
This decision clarifies that defendants cannot rely solely on initial remedial measures if those measures prove inadequate. Practitioners defending premises liability cases should ensure clients implement additional safety measures when initial strategies fail to prevent continued injuries. The decision also demonstrates that engineering experts with forensic and accident analysis experience may qualify to testify about industry standards even without direct experience in the specific industry at issue.