Nothing to Make Light Of – Court Determines that Risk of Injury from Mislabeled, Heavy Box Assumed by Delivery Driver (CA)

January 13, 2016 by

Moore v. William Jessup University (California)

A UPS deliver driver was injured when he lifted a box that was shipped by the defendant university.  When it prepared the table for the box, the defendant inaccurately stated the weight of the box.  The driver filed a negligence action against the defendant, and the defendant filed a motion for summary judgment contending that the driver’s claim was barred by the primary assumption of risk doctrine.  The trial court granted the defendant’s motion, finding that the defendant did not owe the driver a duty of care with regard to the box, and the driver appealed the decision.

The California Court of Appeal affirmed the trial court decision.  The driver argued that the defendant increased the risk of injury by mislabeling the box.  However, the Court held that “the risk of injury from lifting heavy boxes that may be labeled with inaccurate weight information was inherent in [defendant’s] job as a UPS delivery driver.”  UPS did not require customers to weigh their packages before labeling them, and customers were sometimes inaccurate in the identification of their weight.  In California, “Courts have held that, as a matter of public policy, it is unfair to impose a duty on a defendant to prevent an injury to a plaintiff arising from the very condition or hazard the defendant retained the plaintiff to confront.”

Into the Void – Claims of Sixteen-Year-Old Skydiver Not Barred by Waiver and Release (OK)

January 4, 2016 by

Wethington v. Swainson (Oklahoma)

Accompanied by her parents, a sixteen-year-old girl went to the defendant to learn how to skydive.  As part of the registration process, the girl signed a “Registration Form and Medical Statement” that included a disclaimer near the bottom referring to the serious risks associated with skydiving.  The girl participated in an instruction course, which included fours hours of training.  In connection with the instruction course, the girl and her parents signed a detailed “Agreement, Release of Liability and Acknowledgement of Risk” form, which included numerous exculpatory provisions (the “Release”).  The Release also included a “Ratification by Parent/Guardian,” which was signed by both of the girl’s parents.  When she jumped from the plane, the girl’s parachute malfunctioned, causing her to spin rapidly toward the ground.  She landed at a high speed and impact, causing her to sustain serious injury.

The girl and her parents sued the defendant, and the defendant filed a motion for summary judgment, arguing that the Release barred the plaintiffs’ claims.  The U.S. District Court for the Western District of Oklahoma granted the motion in part and denied the motion in part.  Reviewing Oklahoma law and the terms of the Release, the Court concluded that “the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused by Defendant’s negligence, equipment failure, or inadequate instruction.”  However, the Court acknowledged that the minor had voided the Release due to her status as a minor, and the Court noted that “[u]nder Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent.”

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Free of Charge – City Immune Under Statute From Premises Liability Claim by Injured Youth Football Spectator (ID)

November 10, 2015 by

Hayes v, City of Plummer (Idaho)

The plaintiff was a spectator attending a youth tackle football game at a park owned by the defendant City of Plummer.  He was seriously injured after stumbling on uneven ground hidden by grass, and he filed a premises liability claim against the defendant for his injuries.  The defendant then filed a motion for summary judgment based on Idaho’s Recreational Use Statute.  The trial court granted the City’s motion, and the plaintiff appealed.

On appeal. the Supreme Court of Idaho affirmed the trial court’s decision.  Under the Idaho Recreational Use Statute, “[a] ‘landowner’ who provides property for public recreational use is afforded a limitation of liability and ‘owes no duty of care to keep the premises safe for entry by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.'”  This liability limitation applies when the property is offered “without charge.”  The plaintiff asserted that the school district’s payment of utilities and other expenses related to the park for the benefit of the defendant should be considered a “charge” such that the liability immunity did not apply.  However, the Court disagreed, explaining:

“The intent and purpose of Idaho’s Recreational Use Statute is to provide recreational access at no cost to the general public. I.C. § 36–1604(a) . In this case, the City and the School District have done that by allocating resources in order to provide and maintain the Park for all to enjoy. Because the City did not charge or receive compensation from [plaintiff] or the public for their use and enjoyment of the land, Idaho Code section 36–1604  provides a limitation on liability for [plaintiff’s] injuries. The district court properly granted summary judgment.”

Root of the Problem – Claims of Woman Injured on Segway Tour Barred by Exculpatory Agreement (CA)

November 9, 2015 by

Lamb v. San Francisco Electric Tour Company (California)
(not published)

The plaintiff and her husband went to Golden Gate Park with their son and took a guided tour of the park on individual Segway transporter vehicles.  The tour was operated by the defendant.  Plaintiff was injured on the tour and filed a lawsuit against the defendant, alleging vehicle negligence, general negligence, and common carrier negligence.  The defendant filed a motion for summary judgment based on the express waiver provisions of an agreement signed by the plaintiff, the express assumption of the risk provisions of that same agreement, and the primary assumption of the risk doctrine.  The trial court granted the motion, finding that the exculpatory agreement signed by the plaintiff was enforceable and contemplated the circumstances of the accident.  Plaintiff appealed.

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And She’s Off . . . Literally – Woman Falls From Treadmill; Unable to Prove Cause (NY)

November 6, 2015 by

Photo by Jennifer C. (no changes made)

Davis v. Town Sports International (New York)
(not published)

The plaintiff a a member of the defendant health club and she regularly used the treadmills at the facility.  One day she fell while attempting to get on a treadmill, injuring herself.  She filed a negligence lawsuit against the defendant, and the defendant filed a motion for summary judgment.  the New York Supreme Court granted the motion finding that the defendant had established by the evidence (including the plaintiff’s own deposition testimony) that the plaintiff was unable to identify the cause of her fall, and that she could only speculate as to the cause.  Plaintiff was unable to raise any triable issues in opposition to the motion.  The Court further noted that even if it accepted the plaintiff’s speculation that another member had failed to turn off the machine prior to plaintiff attempting to use it, the Court noted that such a claim would be barred by the doctrine of primary assumption of the risk.

Speed Wobble – Discovery Regarding Failure to Warn Allowed in Longboarding Death Case (VT)

November 5, 2015 by

Cernansky v. Lefebvre (Vermont)
(trial court disposition)

A college student was fatally injured while riding a longboard style of skateboard.  His estate brought a lawsuit against the roommate who lent him the board and the skateboard shop that sponsored the roommate as a longboard rider.  The complaint alleged wrongful death and negligent failure to warn the decedent about the dangers associated with the activity (the roommate did not provide the decedent with any safety instructions prior to taking the decedent longboarding).  The roommate filed a motion to dismiss the action for failure to state a claim, and the skateboard shop filed a motion to dismiss the action against it based on a lack of personal jurisdiction.

The United States District Court for the District of Vermont denied both motions.  First, the Court held that the estate’s complaint did state a claim against the roommate under Vermont law for negligent failure to warn.  The Court explained:

“. . . the Complaint alleges [the roommate] should have foreseen the potential for serious injury based upon his knowledge of long boarding. More specifically, [the roommate] allegedly should have foreseen that sending [the decedent], a first-time longboarder, down a hill without a helmet or instruction presented a risk of harm giving rise to a legal duty. Plaintiff claims that [the roommate] breached that duty.  ¶  The fact that the longboard was loaned to [the decedent] does not alter the negligence analysis. In the comparable context of negligent entrustment, the ‘theory requires a showing that the entruster knew or should have known some reason why entrusting the item to another was foolish or negligent.'”

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Pass Interference – Woman Injured Chasing Frisbee Thrown From Stage; Claims Barred as a Matter of Law (MN)

November 2, 2015 by

Strelow v. Winona Steamboat Days Festival Association (Minnesota)
(not published)

Plaintiff attended a festival organized by the defendant.  During a break in the music, representatives from a local radio station went on stage and began throwing t-shirts and Frisbees from the stage.  The Frisbees had tickets to the local zoo attached to them.  Plaintiff gestured as if she wanted to catch a Frisbee and one of the people on stage threw one in her direction, but it veered off course.  Plaintiff took took four to six steps diagonally and slightly backwards with her arms in the air, trying to catch it.  However, plaintiff fell down, rolled against a curb, and fractured her shoulder.

Plaintiff and her husband filed a lawsuit against the defendant event organizer, alleging that defendant failed to maintain a safe area and failed to warn plaintiff of a hazardous condition on the premises.  Plaintiff contended that she fell as a result of tripping on electrical cords that were “black and rubbery” and “bigger than extension cords.”  She indicated that she did not know whether they were connected to anything, she said she did not see them before she fell, and she had not previously walked in the area of the incident.  Plaintiff was unable to find any witnesses to her fall.

Defendant filed a motion for summary judgment, asserting (1) no evidence of a dangerous condition caused by defendant existed, (2) any alleged dangerous condition was open and obvious, (3) the defendant did not owe the plaintiff a duty because it had no actual or constructive notice of the alleged condition, and (4) plaintiff’s claims were barred by primary assumption of risk.  The trial court granted defendant’s motion, finding that plaintiff “failed to establish a prima facie case of negligence because no evidence was presented that any cords ran over the blacktop” in the area of the incident.  Plaintiff appealed.

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Snowmobile Wins Again – Claims of Injured Ski Racer Survive Motion Based on Waiver and Assumption of Risk Statutes (CO)

October 29, 2015 by

Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp. (Colorado)
(trial court disposition)

Plaintiff was a member of the Sarasota, Florida Ski Team.  She traveled to the Steamboat Springs Ski Resort in Colorado to participate in ski races.  After finishing her second race and exiting the race course, plaintiff skied down a trail and headed toward the ski lift.  She attempted to ski past the lift to a picnic area to meet up with other racers.  However, she collided with a snowmobile that was parked near the lift.  Plaintiff sued the ski resort alleging (1) common law negligence in parking the snowmobile in a dangerous, high-traffic area, and (2) negligence per se under the Colorado Ski Safety Act (“SSA”) by failing to mark and pad the snowmobile.

The defendant moved for summary judgment, arguing (1) that the exculpatory clause contained in the race participation agreement signed by the plaintiff prior to her participation barred the plaintiff’s claims, (2) the common law negligence claim was barred by the SSA (“no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing”), and (3) the negligence per se claim failed because the SSA does not apply under the circumstances (i.e., with regard to a parked snowmobile).

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Too Important – Court Denies Motion to Compel Deposition of “Apex” Executive of Defendant (CA)

October 27, 2015 by

Kormylo v. Forever Resorts, LLC (California)
(trial court disposition)

Plaintiff was injured while swimming at a Nevada Resort owned and operated by the defendant.  The cause of plaintiff’s injuries were disputed, but plaintiff alleged that he was struck by a chase boat operated by an employee of the defendant.  The boat in question was registered to the President and founder of the defendant, but he was not named as a defendant in the case.

Plaintiff sought to take the President’s deposition, arguing that his testimony was required to defeat the defendant’s twelfth affirmative defense under a Nevada maritime Limitation of Liability Act.  Plaintiff contended that the owner of a vessel who fails to adequately train its crew is not entitled to limit liability under the Act, and that the President’s deposition was needed to establish this lack of training and supervision of defendant’s employees.  Defendant refused to permit the deposition, and plaintiff filed a motion to compel.

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Not Amusing – Assumption of Risk, Contributory Negligence Not Applicable to Injured Two Year Old; Triable Issues RE Accident (MD)

October 26, 2015 by

McNeill v. Trimper’s Rides of Ocean City, Inc. (Maryland)
(trial court disposition)

A two-year-old boy went to an amusement park under the watch of his uncle.  He was on a ride for young children when the rider operator stopped the ride to remove another rider.  When the ride stopped, the boy apparently thought the ride was over and go out of his seat.  The ride operator then resumed the ride and the it struck the boy.  The boy’s father sued the amusement park, alleging that the ride operator negligently failed to insure that the boy was safely out of the way of danger before putting the ride back into motion.  The defendant filed an answer which included the affirmative defenses of assumption of the risk and contributory negligence.  Defendant also argued that the lawsuit was barred by the statute of limitations.

Plaintiff filed a motion for summary judgment, arguing that the defendants’ affirmative defenses of assumption of the risk and contributory negligence were inapplicable because the boy was only two years old.  Plaintiff further asserted that under Maryland law, any negligence on the part of the child could not be imputed to a parent or caretaker.  The defendant’s opposition to the motion conceded “that the affirmative defenses of statute of limitations, contributory negligence, and assumption of the risk do not apply on the present record.”  However, the District Court explained that the concession did not create a basis for an award of summary judgment in favor of plaintiff because it was not a res ipsa loquitor case and the plaintiff still needed to prove the elements of negligence.

Neither party had been able to locate and depose the operator of the ride at the time of the incident.  Additionally, the boy’s uncle was the only available eyewitness in the case, but his view of the accident was obstructed and he could not testify as to what exactly had happened.  The Court noted that the plaintiff may eventually prevail at trial, but that it could not, by way of a motion, resolve factual disputes as to how the incident occurred.   The Court also ruled that the lawsuit was not time-barred.