Unfortunate Landing


Duchesneau v. Cornell University (Pennsylvania Court – New York Law Applied)
(An amateur gymnast suffered a significant injury while attempting a backflip on a rebounding Tumbl Trak apparatus; he sued the manufacturer of the apparatus for a failure to warn of the dangers associated with its use, and he sought punitive damages; the court denied the manufacturer’s motion, allowing the case to proceed to the jury.)

In its motion, the defendant manufacturer alleged (1) plaintiff could not establish a prima facie case of failure to warn; (2) plaintiff was not entitled to punitive damages; and (3) plaintiff assumed the risk of injury when using the apparatus.  In support of its arguments, the manufacturer referred to “general knowledge” that “an individual might land on his head if he attempt[ed] a black flip on a rebounding [apparatus].”  Defendant also referred to plaintiff’s education in basic physics, the fact that he signed a waiver that stated that he understood the risks and dangers associated with gymnastics, the existence of a small warning label on the apparatus that warned of the potential for catastrophic injury (including paralysis or even death from falling on the head or neck), and plaintiff’s knowledge of the concept of spotting from his prior participation in cheerleading.  Viewing all of that evidence, defendant asserted that “‘common sense’ would have informed an individual that he or she was risking landing on their head by using the [apparatus], and, as such, [defendant] had no legal duty to warn Plaintiff.”

However, plaintiff produced reports from a warnings expert that cited numerous deficiencies in the warnings included with the apparatus.  The report indicated that in addition to issues related to the size and location of the warnings, it also concluded that there were conflicting messages as to the dangers and how novices should utilize the equipment.  In response, defendant argued that plaintiff never sought to actually view the warnings on the equipment.  As such, defendant argued that plaintiff could not advance a failure to warn claim.  However, the court disagreed stating that the failure to read the warnings did not “necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.”

In summary, the court noted that the “evidence of record establishe[d] sufficient material disputes of fact as to the level of awareness Plaintiff or any other objective, novice gymnast would have had concerning the danger of specific injuries while performing maneuvers on the [apparatus].”  The court also stated that the defendant had “been unable to adduce undisputed evidence that Plaintiff would have disregarded a proper warning.”  Therefore, the court ruled that summary judgment on the issue of the failure to warn was inappropriate.

As to the issue of assumption of the risk, the court explained that the defendant had the “burden of establishing that the ‘plaintiff was aware of the defective or dangerous condition and the resultant risk.'”  That determination depended “in part on the openness and obviousness of the risk.”  Looking at the evidence, the court said that “[w]hile it was true that the Plaintiff had some experience with cheerleading and gymnastics, there [was] evidence he was a novice nonetheless.”  Plaintiff did not appear to be aware of any warnings or specific dangers.  According to the court, “the use of a trampoline [had] not been deemed inherently risky as a matter of New York law.”  Therefore, assumption of the risk was a proper issue for trial.

As to the plaintiff’s punitive damage claim, the court’s memorandum is devoid of the underlying alleged facts that would support the claim.  The memorandum only states that “there [was] more than enough evidence to allow Plainitff’s punitive damage claim to proceed,” and that evidence included behavior that could potentially “rise to the level of egregious recklessness and moral culpability.”  The defendant manufacturer argued that it should not be subject to punitive damages because it was domiciled in Michigan and the alleged punitive conduct (i.e., design and labeling of the product) occurred in Michigan.  According to the defendant, Michigan law operated to bar recovery of punitive damages.  However, referring to the conflicts of law framework, the court reiterated that New York law (not Michigan law) applied to the determination.

The university that operated the gymnasium where the incident occurred was also a defendant in the lawsuit, and it filed its own motion for summary judgment.  Plaintiff alleged that the university operated the gymnasium without rules, standards, coaching, instruction, screening, supervision, or spotting, all of which was alleged to be “highly dangerous” and “reckless.”  The court ruled there was sufficient evidence to allow the punitive damages claim to also continue against the university.

The university further asserted that the Plaintiff assumed the risk of using the apparatus and that there was no evidence of causation to find it liable.  However, the court cited numerous factual disagreements between the parties, which created triable issue of material fact.  The court also explained that “[a]pplication of assumption of risk at summary judgment is especially inappropriate here because New York law disfavors using the doctrine in cases where there are allegations of reckless or intentional conduct or concealed or unreasonably increased risks.”

NOTE: Interestingly, this memorandum did not include a discussion concerning the waiver that was signed by the plaintiff prior to his participation at the gymnasium.  The focus of the waiver for purposes of this ruling appears to have been concerning its impact in showing that the plaintiff expressly understood the risks and dangers associated with gymnastics (i,e., that plaintiff could not subjectively deny have such knowledge and understanding for purposes of assumption of the risk because he read and signed the agreement).  Of course, the ability of a party to exculpate itself from liability by way of a waiver and release in the context of recreational activities in New York is limited by the provisions of New York General Obligations Law Section 5-326 (“Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable”).  Additionally, we also note that this case also included allegations of reckless or intentional conduct and punitive damages.  A waiver and release is generally not effective against those types of claims in any jurisdiction. 

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