Archive for July, 2007

BREAKING NEWS: California Waivers Take a Big Hit

July 17, 2007

City of Santa Barbara v. Superior Court (California-Supreme Court)
(California Supreme Court Holds that Sports and Recreation Waiver and Release and Express Assumption of the Risk Agreements Cannot Exculpate a Party from Gross Negligence; May Have Voided Thousands of Existing Agreements)

Yesterday, the California Supreme Court issued a lengthy published legal opinion addressing the enforceability of waiver and release and express assumption of the risk agreements. The court held that such agreements cannot protect sports and recreation providers and organizers from “gross negligence” liability, which was defined as as either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” This ruling is a departure from prior California case law which supported the conclusion that absent a statute providing otherwise, there was no legal distinction among degrees of negligent conduct (e.g. “ordinary negligence” versus “gross negligence”). As an immediate result of this ruling, one can expect that all lawsuits hereinafter filed relative to injuries suffered by participants in sports and recreation will include a cause of action for “gross negligence.” This decision clearly makes it easier for a plaintiff to create triable issues of material fact and defeat motions for summary judgment. More cases will inevitably proceed toward trial resulting in a high percentage of settlements and increased settlement value as the result of reduced leverage. Courts will be reluctant to decide the absence of “gross negligence” as a matter of law, and juries will undoubtedly have a difficult time evaluating and understanding the distinction between “ordinary” and “gross” negligence.

Perhaps more importantly, the court’s decision may end up having the sweeping effect of immediately voiding existing agreements that are currently being used by the industry. The court’s ruling implied that any agreement that purports to cover more than ordinary negligence (e.g., by the use of language such as “any and all negligence” and/or “all forms of negligence”) are unenforceable as contrary to public policy. As a result, every individual and entity using waiver and release and express assumption of the risk agreements needs to promptly evaluate and analyze their current agreements and make revisions necessary to comport with the new state of the law. Please feel free to contact us for additional information and assistance in this regard.

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Collision Course

July 11, 2007

Schipper v. Dahl Trucking, Inc. (Minnesota-UNPUBLISHED)
(Two Truckers Collide; Waiver and Release Precluded Negligence Claim Against Trucking Company; Issue of Loss of Consortium Claim Remanded; Waiver and Release Protections for Trucking Company Employee Unclear)

The plaintiff Doug Schipper and his wife were residents of Minnesota. Schipper owned a company called Midwest Cargo, which owned and operated a truck. Schipper entered into a written agreement with defendant Dahl Trucking, Inc., an Iowa corporation headquartered in Minnesota, to provide freight transportation. The contract contains the following provision:

9. THE CONTRACTOR EXPRESSLY WAIVES ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION AGAINST CARRIER AS A RESULT OF THE DEATH OR INJURY OF CONTRACTOR OR CONTRACTOR’S EMPLOYEES IN CONNECTION WITH THE PERFORMANCE OF CONTRACTOR OR THE CONTRACT AND FURTHER AGREES TO HOLD CARRIER HARMLESS AND INDEMNIFY CARRIER FORM [sic] SUCH CLAIMS.

The contract also required Schipper to maintain business-liability insurance, and it provided that it “shall be governed by the Laws of the State of Iowa and Minnesota, both as to interpretation and performance.”

Thereafter, Schipper and defendant Chad Jongbloedt, an employee of Dahl Trucking who was a resident of Minnesota, were both hauling freight, when they were involved in a collision. Schipper was injured and filed a lawsuit against Dahl and Jongbloedt, alleging negligence. Schipper’s wife also filed a claim for loss of consortium. The parties filed cross-motions for summary judgment, and the district court granted defendants’ motion based upon the waiver and release provisions. The plaintiffs appealed.

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Ignorance–Not So Bliss

July 11, 2007

Tassinari v. Key West Water Tours (Florida-UNPUBLISHED)
(Personal Watercraft Collision Victims Sue Alleging Violation of Florida Watercraft Statutes; Federal Court Finds Negligence Per Se; Waiver and Release Ineffective Regarding Violations of Statute)

The defendant watercraft rental agency rented a personal watercraft to the plaintiffs near Key West, Florida. The agency then took a group of personal watercraft renters, including the plaintiffs and third-party defendant Jeffrey Wilkerson, on a guided tour from its marina out to the area’s surrounding waters. During the tour, the watercraft operated by Wilkerson collided with the watercraft operated by plaintiffs, injuring the plaintiffs.

After a lawsuit was filed, the agency filed a motion for summary judgment arguing: (1) it was entitled to exoneration from liability because there was no evidence of negligence or unseaworthiness; (2) alternatively, it was entitled to have its liability limited to the value of the watercraft (approximately $3,000.00) because it was without privity or knowledge of any negligence or unseaworthiness; (3) Florida statutory law did not apply; and (4) the claim of one plaintiff claims was barred by the waiver and “hold harmless” provisions of the rental agreement that he signed. The plaintiffs also filed a motion for summary judgment, arguing that they were entitled to judgment because the agency violated certain Florida State statutes making the agency negligent per se. The plaintiffs also argue that if the agency is negligent per se, then the agency was not entitled to have its liability limited to the value of the watercraft.

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On the Rebound

July 10, 2007

Lykins v. Fun Spot Trampolines (Ohio)
(Woman Falls From Trampoline; Court Holds Risk of “Double Bounce” and Risk of More Than 225 Pound on Trampoline Not Open and Obvious, Not Assumed)

The plaintiff was invited to an annual Fourth of July party, and she was injured when she fell from a trampoline. The defendant property owners (the Thompsons) had hosted a similar party for many years and had purchased a trampoline, which they had allowed party guests to use over the years. The plaintiff used the trampoline at the annual party for five consecutive years from 1995 through 2000. On the day of the incident, she was standing on the perimeter of the trampoline while another adult guest was jumping in the middle. At some point, the plaintiff (who has consumed a limited amount of alcohol) lost her balance, fell on her back, and suffered a broken neck and a crushed spinal cord, rendering her a quadriplegic.

Plaintiff filed a lawsuit against the manufacturer of the trampoline for strict products liability and against the Thompsons for negligence. Thereafter, the defendants filed motions for summary judgment, which were granted by the trial court. As to the manufacturer, the court held that the dangers presented by the subject trampoline were open and obvious and a matter of common knowledge. With regard to the Thompsons, the court also ruled that the dangers associated with trampoline use were open and obvious such that plaintiff was owed no duty. The court further found that plaintiff assumed the inherent risks associated with use of the trampoline and that the record did not support a finding of recklessness on the part of the Thompsons to impose liability upon them. The plaintiff appealed the rulings.

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A Bounce in Their Step

July 9, 2007

National Mutual Insurance v. Curtis (Indiana)
(Trampoline Accident Victim Sued Homeowners’ Insurer for Declaratory Relief; Insurer Cited Trampoline Exclusion, But court Found Exclusion to Be Ambiguous; Insurer Owed Duty)

The plaintiff was seriously injured while attending a graduation party at the home of the Curtises. During the party, he was injured while using a trampoline. The plaintiff filed a lawsuit against the Curtises for his injuries, and he later amended the complaint to add National Mutual Insurance Company as a defendant, seeking a declaration that the Curtises’ policy provided liability coverage for his injuries. National Mutual declined coverage, citing a trampoline exclusion found in a supplement attached to the main policy. The lower court granted the plaintiff’s summary judgment, determining that the policy provided coverage, and National Mutual appealed.

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Tour de Désastre

July 5, 2007

Rivera v. Glen Oaks Village Owner’s, Inc. (New York)
(Off Road Bicyclist Crashes Into Hole in Trail; Recreational Use Statute Immunized Landowner; Assumption of the Risk Also a Viable Defense)

The plaintiff and two friends were riding their bikes on a roadway. They turned off the road and onto a dirt trail located in a two-acre wooded area, which was part of a large residential cooperative community. The trail was approximately 500 feet long and 10 feet wide, and the plaintiff described it as “bumpy.” After traveling about 40 feet on the trail, the plaintiff came upon a hole in the ground, approximately two feet wide and three feet deep. Unable to avoid the hole, the front wheel of the plaintiff’s bicycle went into the hole, causing him to be thrown over the bicycle’s handlebars and into the hole. Plaintiff filed a lawsuit against the landowner based upon the alleged dangerous condition on the premises. The defendant filed a motion for summary judgment based upon New York’s “recreational use statute.” The motion was denied, and the defendant appealed.

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High School Daredevil

July 5, 2007

Benally v. Tacoma School District No. 10 (Washington)
(High School Student Leaning Over Railing Falls From Elevation; Triable Issue Regarding Condition of Premises Created Triable Issue of Material Fact and Trumped Application of Assumption of the Risk)

The plaintiff high school student and his friends congregated on a second story breezeway at Lincoln High School in Tacoma, Washington. His friends had previously warned plaintiff not to sit on the railing that protected students from falling approximately 20 feet to the ground below. Nonetheless, plaintiff sat on the railing during a lunch period, leaning backwards into space. As his friends had predicted, plaintiff lost his balance and fell to the concrete floor below, sustaining multiple serious injuries.

Plaintiff’s fall was linked to a square stone cap that sat on top of a pillar next to the stairs leading to the ground floor, which was described as a “heavy stone top.” In their depositions, two of his friends recounted that as plaintiff was leaning back, holding onto the stone cap with one hand and the railing with the other, the stone cap shifted as plaintiff fell. The school district filed a motion for summary judgment, which was granted by the court based upon primary implied assumption of the risk, and the plaintiff appealed.

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Youth Was Served

July 5, 2007

Peterson v. Donahue (Minnesota)
(11 Year Old Experienced Skier Speeding Down the Ski Slope Collided with Adult Skier Crossing the Slope; Assumption of the Risk Precluded Negligence Claim by Youth)

The 11 year old plaintiff was skiing fast down the slope when he encountered the defendant adult skiier, who was slowly crossing the slope to access the parking lot. The two skiers collided, resulting in personal injury to the plaintiff. The plaintiff sued the defendant skier, claiming that he was negligent in failing to look up the slope for others skiers before crossing. The defendant filed a motion for summary judgment based upon primary assumption of the risk. The court granted the motion and the minor plaintiff appealed.

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She Got Hosed

July 3, 2007

Jones v. Loews Santa Monica Hotel, Inc. (California-NOT PUBLISHED)
(Health Club Member Tripped and Fell on Hose Trying to Access Club; Waiver and Release Barred Premises Liability)

The plaintiff joined a health club located in the defendant hotel. In order to join, she was required to (and did) sign a membership agreement that included waiver and release language exculpating the hotel from liability. Thereafter, plaintiff was walking on a sidewalk on the hotel premises to gain access to the health club when she tripped and fell on a hose, suffering personal injury. She filed a lawsuit against the hotel for general negligence and premises liability. The defendant filed a motion for summary judgment based upon the waiver and release language found in the membership agreement. The trial court granted the motion, and the plaintiff appealed.

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Shaved Ice

July 3, 2007

Rossman v. RCPI Landmark Properties (New York)
(Ice Skater Fell When She Hit a Bump in the Ice; Court Ruled She Assumed the Risk Posed by the Condition of the Ice)

An ice skater brought a lawsuit against an ice rink owner for injuries that she sustained when she fell after skating into a bump on the ice. The defendant rink filed a motion for summary judgment based upon primary assumption of the risk. The trial court granted the motion, and the skater appealed.

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