Archive for June, 2007

A Challenging Course

June 28, 2007

Roman v. City of Bristol (Connecticut)
(Employee Injured While Using Rented Recreational Challenge Course Owned and Operated by the City; Employee Sued City and City Sued Employer Citing Indemnity Provisions in Rental Agreement; Court Found Issues of Fact Regarding Whether the Employer and the City Were Both Sophisticated Business Entities with Equal Bargaining Power Such That the Indemnity Provisions Should Be Enforced)

An employer signed a rental agreement with the city that included the rental fee and the date and time for use of a recreational challenge course owned by and located in the city.  An employee of the employer was injured while using the course and she brought a personal injury action against both the city and the city’s course instructor who was present at the time of the incident.  The city then filed a third party lawsuit against the employer for breach of contract and indemnification.  The city alleged that the employer breached the rental agreement by (1) not holding them harmless, (2) not providing them with a legal defense, and (3) failing to secure and maintain an adequate and proper liability insurance policy.  The employer filed a motion for summary judgment arguing that it was not obligated to indemnify the city under the contract for the city’s own alleged negligent conduct.  The trial court granted the employer’s motion, and the city appealed. 

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Mountainside Mystery

June 28, 2007

Heins v. Dust (Michigan)
(Two Individuals Involved in an Incident on the Slopes; Contradictory Versions of Events; Seemingly Exculpatory Evidence for Defendant Not Enough to Decide Case as a Matter of Law)

The sixty-seven year old plaintiff was snow skiing on a mountain run when was involved in a collision. He contended that a snowboarder traveling at a high rate of speed ran into him at the convergence of several skiing runs, causing plaintiff numerous serious injuries. Plaintiff filed a lawsuit against the defendant claiming that he was the speeding snowboader and alleging that the defendant had been coming down a particular ski run. However, the defendant claimed that he was using snow skis and that the plaintiff actually ran into him while defendant was skiing. The defendant presented evidence to show that he had rented skis (and not a snowboard) on the day of the incident, and he offered testimony from a witness that indicated that defendant was coming from a different direction and using a different ski run than described by the plaintiff. Therefore, the defendant filed a motion for summary judgment arguing that plaintiff was suing the wrong person.  There were no other witnesses to the incident itself.

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The Wrong “Approach”

June 26, 2007

Robinson v. Kroger (Georgia)
(Woman Falls Due to Hole in Parking Lot and Sues Grocery Store; Court Finds Store Not Liable for Parking Lot Area Under Lease Agreement and Applicable Statute)

Plaintiff had gone to the bank inside the defendant Kroger grocery store, and she was walking back to her car when the accident occurred. Plaintiff stepped over a concrete bumper in the parking space next to the space in which she had parked. the bumper obscured a hole in the pavement, and when plaintiff stepped over it, her foot went into the hole and she fell to the ground.

Plaintiff sued Kroger, and Kroger filed a motion for summary judgment contending that it was responsible only for the leased premises and approaches to the store. Kroger pointed out that its lease does not extend to the parking lot, which is designated a “Common Area” for the use of all the tenants and their customers. Further, Kroger stated that it was the landlord’s responsibility to maintain those common areas. The trial court ruled in favor of Kroger, and the plaintiff appealed.

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Up Chuck Causes Slip Up (Twice)

June 25, 2007

Aquino v. Kuczinski (New York)
(Casino Patron Slips and Falls in Vomit Twice; Retained Attorneys Blow Statute of Limitations; Legal Malpractice Claim Fails Due to Lack of Constructive Notice and Evidence in Underlying Claim)

The plaintiff was walking through the lobby of the Trump Taj Mahal Casino Resort in Atlantic City when she slipped on a substance that she identified as vomit. Plaintiff did not see any substance on the floor prior to her fall. She further alleged that after she fell, a woman dressed in a blazer and holding a walkie-talkie, whom she believed to be a security guard, came over and told her to get up. When she tried to get up unassisted, she allegedly fell again in the vomit. Plaintiff and other family members left the casino, and plaintiff later received treatment at an emergency room facility.

Plaintiff subsequently retained the defendant law firm to represent her in an action against the casino. The law firm wrote a few letters demanding a settlement and requesting insurance information. No offer of settlement was made, and the statute of limitations expired before a lawsuit was filed. The plaintiff then commenced an action against the defendant law firm for legal malpractice for failing to file her lawsuit and failing to investigate the claim and protect her interests.

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Fair Game

June 22, 2007

Cottrell v. NCAA (Alabama)
(Former Assistant Football Coach Sues NCAA and an Independent Scout for Defamation [among other things]; No Liability for NCAA; New Trial Granted to Scout Following Verdict in Favor of Recruiting Coordinator)

Former assistant football coaches at a state university had been charged with recruiting violations. After the charges, the coaches brought a lawsuit against the NCAA and an independent recruiting scout, alleging defamation, false-light invasion of privacy, conspiracy and negligence. The trial court granted summary judgment in favor of the defendants on all of the coaches’ claims except for the defamation claim asserted against the scout by the coach who served as recruiting coordinator. A jury awarded a verdict in favor of the recruiting coordinator. However, the Circuit Court then granted the scout’s motion for a new trial. Appeals were filed.

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Sold!

June 21, 2007

Kocinec v. Public Storage, Inc. (Virginia-NOT PUBLISHED)
(Contents of Public Storage Unit Sold, Plaintiff Alleged Failure to Notify; Limitation of Liability in Storage Contract Enforced)

The plaintiff entered into a rental agreement with the defendant public storage facility.  The plaintiff made a late payment and was later informed that the contents of the storage unit were sold by the defendant.  Plaintiff sued for the value of the contents at $70,000, contending that the defendant failed to provide sufficient notice to him prior to the sale and that the defendant had failed to satisfy its statutory obligations.  The defendant argued that its damages were contractually limited to $5,000 pursuant to the rental agreement. 

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Collision Course

June 20, 2007

Milne v. USA Cycling, Inc. (Utah)
(Mountain Bike Racer Collides with Truck During “Open Course” Race; Waiver and Release Precludes Liability for Ordinary Negligence; Gross Negligence Not Proven)

A participant in a mountain bike race suffered fatal injuries as a result of a collision with a truck. The defendants organized, promoted, and conducted the “open course” race in which the participants shared the race course with regular vehicle traffic. Decedent’s heirs filed suit claiming both ordinary negligence and gross negligence.

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Fenced Off

June 20, 2007

Goettsch v. El Capitan Stadium Association (California-NOT PUBLISHED)
(Tied Up “Green” Horse at Rodeo Pulls Rope and Severs Spectators Fingers; Duty of Care Owed)

The plaintiff attended a rodeo. He was standing next to a chain link fence surrounding a warm up area on the defendant’s property. A “green” horse (i.e. a horse that has had little education and exposure to activities and events) was tied to the fence. Plaintiff placed his hands on the chain link fence. The horse pulled back from the fence and the plaintiff’s hand became entangled in the horse’s rope. Four of his fingers were severed from his hands. The plaintiff filed a complaint alleging negligence based upon a dangerous condition on the premises. The defendant filed a motion for summary judgment, arguing that liability was precluded by primary assumption of the risk, and that it did not owe the plaintiff a duty of care because the condition encountered was open and obvious.  The court granted the motion, and the plaintiff appealed.

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Spare Me

June 20, 2007

Young v. New Southgate Lanes (Ohio-NOT PUBLISHED)
(Bowler Slips and Falls Due to Oil on Approach to Lane; Facility Owed Duty of Care; Assumption of Risk Not a Viable Defense)

The plaintiff slipped and fell in the middle of a bowling game at the defendant’s bowling facility. She encountered oil on the approach to the lane, which caused the incident. The facility had received a complaint from another patron about oil on the subject approach, and an employee attempted to clean it up shortly before the incident. Plaintiff filed a negligence action against the facility. The defendants filed a motion for summary judgment, arguing the following: 1) as a recreational user, plaintiff was barred from recovery; 2) plaintiff assumed the risk; 3) the condition of the lane was open and obvious; 4) the facility did not breach its duty of care to plaintiff; 4) plaintiff was barred from recovery because she was comparatively negligent; and 5) there was no evidence to prove recklessness on the part of the facility. The court granted the defendant’s motion and entered judgment in its favor. Plaintiff appealed.

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Break a Leg

June 20, 2007

 Rachal v. O’Neil (Rhode Island)
(12 Year Old Breaks Leg at Skatepark; Statute of Limitations Tolled; Motion for Summary Judgment Procedurally Premature)

A 12 year old boy fractured his leg while dropping into a half pipe at an indoor skate park.  Nearly two years after the incident, the minor’s parents filed a lawsuit against the skate park and the property owner.  More than a year later, the parents sought to amend the complaint to add a corporate defendant and substitute an insurer for an individual defendant who had filed for bankruptcy.  The amended complaint also added two causes of action.  The motion to amend was denied based on the expiration of the statute of limitations despite a statute tolling the statute of limitation for a minor until the minor reaches the age of 18.  Alternatively, the court granted the defendants motion for summary judmgent based upon the doctrine of assumption of the risk.  The parents appealed those decisions.

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