Archive for May, 2011

Attack on Connecticut’s Public Lands

May 12, 2011

Recreation on Public Land Jeopardized (Connecticut)
(Recent developments in Connecticut case-law appear to reverse past trends and open up public lands to liability for injuries incurred in connection with recreational use by members of the public.)

The Overlawyered blog recently posted an article discussing developments which are opening up public lands to potential liability where protections were once found.  This trend could potentially stifle recreational opportunities for state citizens.

No More Bling

May 12, 2011

Guivi v. Spectrum Club (California – UNPUBLISHED)
(A health club member had jewelry allegedly stolen from a locker while she was receiving a message; the court found that the membership application with waiver and release and assumption of the risk language precluded her claim for negligence; no evidence of gross negligence was established.)

The plaintiff had valuable jewelry stolen from her gym locker while she was getting a message. She sued the health club for negligence in providing facilities and for negligently training staff for the security of her property. The health club moved for summary judgment based on the membership application agreement with waiver and release language that the plaintiff signed with the health club. The application also specifically included language warning the plaintiff about loss or theft of her property, and expressly stated that the health club was not responsible for lost or stolen articles. According to the agreement, the lockers were offered to the member without any representation that they will be effective in protecting valuables. The trial court granted the defendant’s motion, and the plaintiff appealed.

On appeal, the Court ruled that the membership agreement unambiguously released the facility from its negligence and was not contrary to public policy. The Court did not accept plaintiff’s argument that agreements involving health clubs are matters of public interest. Further, the court noted that there was no alleged violation of law. Additionally, the Court did not accept the plaintiff’s argument that there was the potential for gross negligence or that the health club failed to deal with a known theft problem. No evidence had been presented in that regard.

NOTE: The ruling in this case is consistent with California law which provides that broad releases of liability will be enforced in this context, including with regard to ordinary premises liability claims as opposed to injury or damage that occurs directly as the result of participation in hazardous recreational activities. Had there been an obvious track record of items being stolen from members or a repeated pattern of a complete lack of security on the part of the health club, this case may have proceeded to trial on the factual issue of whether the facility engaged in grossly negligent conduct.

Pipe Dream for Expert in Motocross Case

May 12, 2011

McCassy v. Superior Court (California – UNPUBLISHED)
(Minor motocross rider injured during practice ride; with the rider unable to recall the incident, her expert speculates that irrigation piping near the track caused her to lose control; the court finds a lack of evidence to support the theory and grants defendant’s motion for summary judgment.)

A 17-year-old female motocross rider was at a motocross track practicing, and she was involved in an incident occurred in which she left the track and struck an embankment. The rider did not remember how the incident occurred, but alleged that she struck a portion of PVC pipe about 10 feet from the racing surface which was part of the track’s irrigation system, causing her to lose control of the motorcycle. She alleged premises liability, and her father and brother, both of whom were present, sued for infliction of emotional distress.

An expert for the plaintiffs asserted that the track increased the normal risk of injury by placing the PVC pipe close to the track and that if a rider lost control and left the track, there was a high probability of striking it. The trial court denied the defendant’s motion for summary judgment based upon primary assumption of the risk, noting that placement of the irrigation system so close to the track was not inherently required for the sport. The defendant petitioned for review, and the Court of Appeal granted the Petition.


Rubbin’ Is Not Racin’

May 4, 2011

Pit Area Intentional Misconduct (Nebraska)
(Race car driver who intentionally drove into another participant in a restricted area receives criminal sentence.)

Short track race car driver Cory Dumpert was recently sentenced to 18 months probation by a judge in Cass County, Nebraska in connection with an incident that occurred at I-80 Speedway in Greenwood, Nebraska in June of 2010.  Dumpert intentionally sped through the infield pit area and slammed into the car driven by fellow racer Chad Sanders, who received minor injuries.  Dumpert was suspended for a year and fined $500 by the track.  Criminal charges were filed against Dumpert and he was ultimately sentenced on charges of third-degree assault and criminal mischief.

NOTE: It will be interesting to see if Sanders brings a civil action against Dumpert and/or the track. Waiver and release documents are enforceable in Nebraska and the track also potentially could be expected to assert that as a defense to any civil action brought by Sanders. One might expect an argument to be made, however, that being injured as a result of Dumpert’s intentional assault is not an incident that is reasonably related to the claimant’s auto racing activities at the track.

Experienced Sky Diver Killed in Mid-Air Collision

May 4, 2011

Los Angeles Times (California)

Two men were killed as the result of a mid-air collision while sky diving in Perris, California on March 31.  The collision apparently rendered the men unable to deploy their parachutes and they both fell to their deaths.  One of the decedents is a veteran sky diver with over 17,000 jumps to his name.

Should this case proceed to litigation, it would appear to be ripe for the application of the defense of primary assumption of the risk, especially as to the instructor, whom had extensive sky diving experience and undoubtedly voluntarily assumed the risks inherent in sky diving, the most obvious of which is injury or death due to this sort of incident.

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