Archive for April, 2015

Quite a Show – Concussed Cheerleader Barred From Making Claim RE Failed High School Cheer Stunt (CA)

April 30, 2015

Baggay v. Linfield Christian School (California)
(not published)

A high school cheerleader suffered a concussion while performing a stunt during practice.  She filed a lawsuit against the school, asserting causes of action for (1) “negligence/recklessness,” (2) “false promise,” and (3) negligent misrepresentation.  The school filed a motion for summary judgment, or in the alternative summary adjudication, on the grounds that the claims were barred by the primary assumption of risk doctrine and that the plaintiff could not establish the essential elements of her false promise (promissory fraud) and misrepresentation claims.  The trial court granted the school’s motion, and the cheerleader appealed.

On appeal, the cheerleader argued that her claims were not barred by primary assumption of the risk “because a concussion is not an inherent risk of cheerleading,”  The Court of Appeals for California disagreed, stating that “‘[i]nherent risk’ does not refer to the type of injury that the plaintiff sustains or the manner in which the injury occurred, but rather the reason for the injury.” (Emphasis in the original.)  The Court continued, “An inherent risk is one that, if eliminated, would fundamentally alter the nature of the sport or deter vigorous participation.”  The plaintiff was injured because the group of cheerleaders failed to properly execute a stunt they had previously practiced and had previously successfully executed.  It is fundamental to the nature of modern cheerleading that teams will practice and perform stunts that involve the risk of injury.  Thus, “any type of injury that reasonably could be expected to result from such a fall is an inherent risk of modern cheerleading.” (Emphasis in the original.) (more…)

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Blown Away – Recreational Immunity Statute Applied to Incident Involving Charity Hot Air Balloon Ride (WI)

April 30, 2015

Roberts v. T.H.E. Insurance Company (Wisconsin)
(final publication pending decision)

The plaintiff attended a charity event and was waiting in line to participate in a hot air balloon ride.  A gust of wind snapped a tether holding the balloon, sending the balloon and basket sliding across the land, where it crashed into the plaintiff and knocked her down.  The injured plaintiff filed a negligence lawsuit against the balloon ride operator and its insurer.  The defendants filed for summary judgment based upon Wisconsin’s recreational immunity statute, and the trial court granted the motion.  The plaintiff appealed.

On appeal, the Court of Appeals of Wisconsin affirmed the decision.  The plaintiff argued that the recreational immunity statute should not apply because the alleged negligent acts were not directed at the condition of the land itself and “there was nothing about the land that caused [plaintiff’s] injuries.”  The Court explained that the purpose of the statute was “to achieve the goal of encouraging property owners to open their lands to public recreation by limiting the liability of property owners,” and the Court further noted that the statute should be construed liberally in favor of property owners.

The statute applies to anyone that “own, leases, or occupies property” and it applies to “recreational activity” as detailed in the statute.  The plaintiff did not contest that the defendant occupied the property or that the activity satisfied the definition of “recreational activity” under the statute.  However, plaintiff argued that the statute provided that the liability at issue needed to relate to the property itself.  The Court disagreed, referring to the plaintiff’s misinterpretation of the statute and caselaw she cited in opposition to the motion.

Down for the Count – Sports Bar and Entertainment Device Owner Subject to Potential Liability RE Placement of Punching Machine (NY)

April 30, 2015

Weierheiser v. McCann’s Inc. (New York)

The plaintiff sustained injuries while using an punching bag entertainment device at a sports bar and grill, and he filed an action against the bar and the owner of the device.  The defendants filed a motion for summary judgment based upon the doctrine of assumption of risk.  The trial court denied the motion and the defendants appealed.  On appeal, the Appellate Division of the Supreme Court of New York affirmed the decision.

The Court  explained that it was not a situation in which the bar was being called to account to the plaintiff in damages “solely by reason of having sponsored or otherwise supported some risk-laden but socially valuable voluntary activity.”  Pointing to the improper placement of the device, the plaintiff alleged that the device amounted to a dangerous condition.

The device owner first alleged that it did not owe a duty of care to the plaintiff.  However, the Court disagreed, noting that “[l]iability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of [the] premises.”  The device owner “failed to establish that non of those elements was present.”  With regard to the device owner’s breach of a duty owed to the plaintiff, the Court stated that the testimony in the case indicated that “the device should be placed in an area that had sufficient side clearance because of the follow through inherent in every punch to the device, and that placing the device in a corner could lead to a player hitting the wall.”  The evidence clearly indicated that the the device owner’s employees had placed the device on the premises, but the employees could not recall whether or not they had placed it in a corner.  As such, the device owner failed to meet it initial burden of establishing it was entitled to summary judgment.

Broken Record – Judgment in Favor of Scuba-Diving Instructor in Death Case Upheld (TX)

April 29, 2015

DeWolf v. Kohler (Texas)

In 2008, Terry Sean DeWolf died while scuba diving more than fifty miles off the coast of Massachusetts.  Initially, the medical examiner identified the cause of death as drowning, but later revised the conclusion to reflect that he died of natural causes (myocarditis).  Terry’ wife thereafter filed a lawsuit against numerous defendants, including (among others) the boat used for the dive, the individual who chartered the boat (Kohler), a television network which had carried a program on which Kohler had appeared, the dive-training company from which Kohler obtained credentials as a scuba-diving instructor, and the scuba-equipment manufacturer that manufactured the rebreather that Terry had used during the dive.  The wife alleged several claims, including violations of the Deceptive Trade Practices Consumer Protection Act, the federal Death on the High Seas Act, and other state law claims.

Numerous motions were filed in this complicated lawsuit, and the trial court addressed many issues relating to personal jurisdiction and statutes of limitation.  Ultimately, Kohler was the only remaining defendant and the case proceeded to trial.  Following a jury trial, the court entered judgment in favor of the defendant, and the wife appealed.  On appeal, the wife challenged instructions that were given to the jury.

(more…)

Headline: Water is Wet – Defendant Wins Health Club Locker Room Slip and Fall Case (OH)

April 28, 2015

Daher v. Bally’s Total Fitness (Ohio)

The plaintiff was a member of the defendant’s health club.  On a visit to the club, she slipped and fell on a wet surface in the locker room.  Plaintiff filed an action against the defendant alleging negligent maintenance of the premises.  The defendant filed a motion to summary judgment based upon the “open & obvious doctrine” and the contract signed by members containing clear and unequivocal release language.  The plaintiff did not oppose the motion, and the trial court granted the defendants’ motion.  Despite not having opposed the motion, the plaintiff appealed the ruling.

On appeal, the Court of Appeals of Ohio affirmed the trial court ruling.  First, the Court explained that despite the fact that the plaintiff had not opposed the motion, the defendant was not entitled to summary judgment absent proof that such judgment was appropriate.  Looking at the evidence, the Court concluded that “the wet condition of the locker room near the pool area was open and obvious.”  Plaintiff argued that the doctrine should not apply because “there was no alternative route or other means available for [her] to protect herself from the hazard posed by the wet floor,” but the Court was unconvinced. (more…)

Out in the Cold – Ski Lift Ticket Release Agreement Contrary to Public Policy (OR)

April 27, 2015

Becker v. Hoodoo Ski Area (Oregon)

A skier was injured when she was struck by a moving chairlift.  She brought a negligence action against the ski area operator.  The defendant filed a motion for summary judgment arguing that it was entitled to judgment as a matter of law based on a “Release Agreement” that occupied approximately one-half of the face of the lift ticket purchased by the skier on the day in question.  The skier denied having noticed or read the release agreement document.  The skier filed a cross-motion for partial summary judgment, arguing that the waiver and release document that she signed was procedurally and substantively unconscionable.  The trial court granted the defendant’s motion and denied the plaintiff’s motion, and the plaintiff appealed.

On appeal, plaintiff renewed her argument that the waiver and release was unenforceable because it was contrary to public policy and was unconscionable.  The Court of Appeals of Oregon reversed the trial court and remanded the case to trial.  Relying on the Oregon Supreme Court decision in Bagley v. Mt. Bachelor (2014), the Court of Appeals held that the release agreement was unconscionable.  The Court discussed numerous factors that went into the analysis including the “superior bargaining strength” of the defendant, the release agreement being offered on a “take-it-or-leave-it basis,” and the lack of an “opportunity to negotiate for different terms or pay an additional fee for protection against defendant’s negligence.”  The Court further concluded that the “‘enforcement of the release would cause a harsh and inequitable result’ to befall the plaintiffs, and the Court noted that the “defendant’s business operation [was] sufficiently tied to the public interest as to require the performance of its private duties to patrons.”

Taking One for the Team – Minor Cheerleader Assumed the Risk of Practicing with an Injured Teammate (NY)

April 23, 2015

Photo by Adam Burke. No changes made.

Kurt T. Jurgensen, as Parent and Natural Guardian of Jayna R. Jurgensen (New York)

A minor student was injured while working with her teammates on a choreographed stunt that involved two cheerleaders (the “bases”) throwing the student into the air and then catching her.  The stunt was completed successfully on the first attempt on the day of the incident, but on the second attempt, the student felt plaintiff in her knee when her teammates threw her up in the air.  The student suffered a ligament injury to her knee, and she alleged that the injury occurred because one of her teammates was practicing that day with a sprained ankle, which caused her to hold the student’s foot for too long before throwing her in the air.  The student’s father filed a lawsuit on the student’s behalf, alleging that the school district was negligent in allowing the injured teammate to participate in the practice.  The defendant moved for summary judgment, contending that the action was barred by the doctrine of assumption of risk.  The Supreme Court of New York denied the motion, and the defendant appealed.

The Appellate Division of the Supreme Court of New York reversed the decision.  The Court concluded that the plaintiff’s daughter knew that her teammate was injured, and that the teammate had not been cleared to practice.  Additionally, the plaintiff’s daughter had performed the stunt with the same teammate earlier on the day in question, and the daughter said she had noticed the based was “a little more shaky” than usual.  Despite this knowledge, the daughter testified that she “didn’t think it was that big of a deal.”  The Court asserted that the daughter practicing with a teammate knowing the teammate was injured was analogous to a cheerleader practicing without a mat or an athlete playing on a field that is in less than perfect condition.  Therefore, the Court held that the action was barred by the doctrine of assumption of risk.

(Photo by Adam Burke.  No changes made.)

Blades of Gory – Hockey Locker Room Injury Inherent in the Sport (NY)

April 22, 2015

Litz v. Clinton Central School District (New York)

Plaintiff sustained an injury in the locker room following a high school hockey practice when a teammate still wearing skates stepped backward on the plaintiff’s bare foot.  Plaintiff filed an action against several defendants, including the school district, the head coach, and the assistant coach.  The school defendants filed a motion for summary judgment, contending that the plaintiff had assumed the risks associated with the sport of hockey, and that the defendant did not owe a duty to protect the plaintiff from those risks.  The New York Supreme Court entered summary judgment for the defendants and dismissed the complaint, and plaintiff appealed.   (more…)

The Art of Recreation – University Not Permitted to Assert Recreational Use Statute Protection Against Spectator Claim (TX)

April 21, 2015

University of Texas at Arlington v. Sandra Williams (Texas)

The plaintiff and her husband attended their daughter’s soccer game played at the football stadium at the University of Texas at Arlington.  She leaned against a gate that separated the stands from the playing field, and the gate unexpectedly opened, causing her to fall five feel to the artificial turf below.  Plaintiff injured a rib and her left arm and sued the University for premises liability, alleging negligence and gross negligence.  As part of its responsive pleadings, the University filed a motion to dismiss claiming (among other things) liability protection under the Texas recreational use statute.

Texas’ recreational use statute (like many similar statutes in other jurisdictions) protects landowners who open property for recreational purposes, limiting their liability to the recreational user.  In such cases, the burden of proof is elevated, requiring either gross negligence or an intent to injure.  Ultimately, the Texas Supreme Court affirmed the decision of both the trial court and the court of appeals and determined that a spectator at a competitive sports event is not “recreation” under the statute such that the liability protection did not apply.

Can’t Catch a “Brake” – Woman Injured on Foreign Bicycle Tour Forced to Litigate Away from Home (PA)

April 20, 2015

Steinfeld v. EMPG International (Pennsylvania)

The Pennsylvania plaintiffs were injured during a trip to Costa Rica.  Prior to leaving for Costa Rica, the plaintiffs visited the website of defendant EMPG International, LLC (a Colorado limited liability company) and consummated an online transaction to rent bicycles and sign up for a bicycle tour while in Costa Rica.  The bicycle equipment was allegedly not in the condition originally promised by the defendant, and one of the plaintiffs was injured during the tour due to faulty brakes on the bicycle.  The plaintiffs filed a federal lawsuit in the U.S. District Court for the Eastern District of Pennsylvania, alleging negligence, negligent hiring and retention, vicarious liability, joint enterprise, agency, breach of contract, violation of the Pennsylvania Consumer Protection Law, fraud, negligent misrepresentation, and loss of consortium.

The defendant filed a motion to dismiss the action based on a lack of personal jurisdiction and a failure to state a claim under which relief could be granted.  Following a pretrial conference, the Court entered an order permitting the parties to conduct discovery regarding jurisdiction, and the court required the parties to submit a joint stipulation of facts with respect to jurisdiction so that it could rule on the defendant’s motion to dismiss.  After reviewing the evidence and stipulated facts, the Court found that the “plaintiffs’ cause of action did not arise out of or relate to the company’s contacts with Pennsylvania.”  However, because the defendant was subject to general personal jurisdiction in Colorado, the Court transferred the case to the U.S. District Court for the District of Colorado.

(more…)