Archive for May, 2015

Show’s Over – Indemnity Dispute Between State Fair and Equipment Lessor Regarding Collapsed Stage Continues (IN)

May 29, 2015

In re Indiana State Fair Litigation (Indiana)
(one Judge dissenting)

This case arises from a collapsed stage at a state fair in August of 2011, which caused several deaths and injuries.  The issue was whether the stage equipment supplier (Mid-America Sound [“Mid-America”]) was entitled to indemnification from the event operator (the Indiana State Fair Commission [“Commission”]) based on the terms and conditions of the typical course of business between them.

Dating back to the mid-1990s, the Commission leased temporary roof structures and other equipment from Mid-America to use for outdoor concerts on property operated by the Commission.  During the last ten years of their relationship, the parties followed the same procedure with regard to the equipment leasing.  Mid-America delivered the equipment before the event and then later returned to pick up the equipment after the event.  When it picked up the equipment, Mid-America would sign contracts for the rented items and submit the contracts to the Commission.  The Commission audited each contract to make sure it conformed to the agreement of the parties and then issued payment.

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Tough Luck – Extreme Obstacle Course Registrants Forced Into Arbitration to Pursue Refunds; Class Action Barred (MA)

May 28, 2015

Pazol v. Tough Mudder Inc. (Massachusetts)

The plaintiffs registered and paid to participate in Tough Mudder’s Boston-area “Mudderella” obstacle course event, which was scheduled to take place in Haverhill, Massachusetts.  However, a few days before the event, Tough Mudder moved the location of the event to Westbrook, Maine.  Plaintiffs were unable to attend the event at the new location, and Tough Mudder refused to refund their registration fees.  Therefore, the plaintiff filed a class action lawsuit against Tough Mudder.

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Deeply Depressed – Experienced Skier Claim Relating to “Depressions” in Snow Survives Court Motion (NY)

May 26, 2015

Paulus v. Holimont, Inc. (New York)

The sixty-right year old plaintiff was a self-described “accomplished” skier, who had been skiing since the age of 5.  Plaintiff had participated in various ski races throughout the years, and he had skied on different mountains throughout the world involving varying terrain, including ice and moguls.  Plaintiff drove from his home in Ohio to the defendant’s ski area in New York.  It was his second visit to the defendant’s resort.  On his first run of the day, plaintiff was coming down a trail at the facility called “Corkscrew” (a trail rated “more difficult” with a blue square), when he encountered difficult terrain and crashed, suffering injuries.  Plaintiff used racing skis and boots, and he admitted that he liked to ski fast.  He estimated that he was traveling twenty miles an hour at the time of the incident.  Plaintiff acknowledged that a “blaze orange caution sign was placed directly at the top of the portion of the Corkscrew trail where [he] was injured.”  However, the plaintiff testified that he did not believe he had observed the sign as he cut over to the Corkscrew trail from another trail (i.e., plaintiff believed he skied onto the Corkscrew trail below the caution sign).

Plaintiff (and his wife) sued the defendant for negligence, and the defendant filed a motion for summary judgment, asserting that plaintiff’s claim should be barred by primary assumption of risk.  The trial court acknowledged that in New York “[d]ownhill skier ‘assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and manmade objects that are incidental to the provision or maintenance of a ski facility.'”  The doctrine is recognized in New York’s Safety in Skiing Code.  Additionally, “variations in terrain, including moguls, are recognized risks that are inherent in the sport of downhill skiing.”

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Dressed for the Occasion – Wedding Reception Guests Pour Soap and Water on Dance Floor; Hotel Potentially Liable for Slip and Fall (Puerto Rico)

May 19, 2015

Blomquist v. Horned Dorset Primavera (Puerto Rico)
(unpublished trial court disposition)

Plaintiff was attending the wedding of a friend in Puerto Rico.  At some point during the reception, she left to change into a bathing suit as some of the guests were going to use the hotel’s pool.  While plaintiff was gone, other wedding guests poured water and soap onto the dance floor and used the dance floor to dance, slip, and slide on the wet soapy surface.  Plaintiff returned from changing and she slipped and fell on the wet, soapy dance floor, suffering personal injury.  Plaintiff sued the hotel, contending that the hotel failed to maintain the dance floor in a safe condition and failed to warn her of the dangerous condition that caused her to fall.  Defendant filed a motion for summary judgment, arguing that the wedding guests (including plaintiff) created the allegedly dangerous condition and that there was not enough time for defendant to discovery or stop the “self-inflicted hazard.”

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Big Bag of Beads – New Orleans Krewe Not Liable for Injury to Parade Attendee (LA)

May 18, 2015

Citron v. Gentilly Carnival Club Inc. (Louisiana)

The plaintiff was a long time member the defendant Endymion Krewe, a carnival organization that hosted parades and events in New Orleans.  Her and her husband attended a parade and extravaganza event hosted by Endymion.  When the parade was making its loop through the Superdome, plaintiff was hit in the head by a bag of beads.  She received first aid treatment on site, and was then transported to a local hospital.

Plaintiff filed a lawsuit against the Endymion Krewe, alleging that it was liable both in its capacity as a organization and vicariously for its krewe member’s actions.  Plaintiff alleged that her injuries were caused by the “deliberate and wanton act or gross negligence” of the defendant, and that the defendant “willfully and knowingly permit its members to throw full bags of beads overhand in a space where people are seated, eating and enjoying musical entertainment.”  Plaintiff also asserted that because the defendant required its float “riders to be masked making identification of the individual tortfeasor impossible,” the defendant “must be liable for the conduct of its members.”

Defendant argued that each member of the Endymion Krewe received two tickets to enter into the subject extravaganza, and the tickets had a limitation of liability and assumption of risk printed on the back.  Defendant also asserted the affirmative defenses of comparative fault on the part of plaintiff (or third parties) and immunity for liability under the Mardi Gras immunity statute (La. R.S. 9:2796).  The statute, which was first enacted in 1979 to help control rising insurance costs for parading organizations, provides broad immunity for krewes that sponsor parades, and it provides that anyone who attends such a parade “assumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tossed or hurled by members.”  The krewe bears the initial burden of providing evidence to establish its right to immunity under the statute.  Once established, the burden then shifts to the claimant to establish that the krewe engaged in gross negligence (an exception to the immunity).

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Black and Blue Light Special – Sporting Goods Store Not Liable for Injury Caused by Bicycle Riding Patron (LA)

May 15, 2015

Orr v. Academy Louisiana Co, LLC (Louisiana)

Plaintiff and her daughter entered an Academy Sports and Outdoor Store in Alexandria, Louisiana to shop for shoes.  While plaintiff was attempting to help her child try on a pair of shoes, she was struck by an adult male who was riding a young girl’s bicycle.  The bicycle rider initially offered assistance to the injured plaintiff, but when she refused, he fled the scene.  After plaintiff reported the incident to the store, they located the bicycle, but could no the man involved.

Plaintiff sued the store and its insurance company, and her husband joined the litigation with a loss of consortium claim.  The defendants denied liability, asserted the fault the unknown bicycle rider, and argued comparative fault on the part of plaintiff.  After a trial on the merits, the trial court found that the store was one hundred percent at fault for the plaintiff’s accident, awarding plaintiff its jurisdictional limit of $50,000 in damages.  Defendant appealed, alleging the trial court erred: (1) in finding that plaintiff had met her burden of proof; (2) in finding that the store was negligent when the incident could not have been reasonably anticipated; and (3) in failing to assign fault on the unknown customer/tortfeasor.

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No Free Lunch (or Vacation) – Florida Supreme Court Confirms Decision to Enforce Release Despite Lack of “Negligence” Language (FL)

May 13, 2015

Sanislo v.Give the Kids the World, Inc. (Florida)

The defendant non-profit organization provided free vacations to seriously ill children and their families.  The plaintiff went with her ill child on one of the defendant’s vacations, and she suffered an injury when a wheelchair lift collapsed at a resort village.  The plaintiff filed a negligence lawsuit against the defendant, and the defendant filed a motion for summary judgment based upon a both release of liability that was included in in the wish request form filled out by the plaintiff and a liability release form signed by the plaintiff after she arrived at the resort village.  Plaintiff countered with her own motion for partial summary judgment on the defendant’s affirmative defense of release.  The trial court granted the plaintiff’s motion and denied the defendant’s motion, and the case proceeded to trial.

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Nice Save – Hockey Spectator Take a Puck in the Head; Team and Arena Not Liable (CT)

May 12, 2015

 

Lukacko v. Connecticut Islanders, LLC (Connecticut)

Plaintiff and his wife were spectators at an American Hockey League (“AHL”) game at Webster Bank Arena in Bridgeport, Connecticut.  At some point during the hockey match, a puck left the ice surface, traveled over the tempered glass barrier surrounding the rink, and struck plaintiff, causing a head laceration, scarring and emotional and physical distress.  Plaintiff filed a complaint against the hockey team and the arena operator alleging numerous counts of negligent conduct.

In response. the defendants claimed that the arena had typical protections for fans and patrons of the hockey game, including “plexiglass walls above the dasher boards surrounding the rink and netting placed at either end of the rink, in the most dangerous sections of the Arena in accordance with the approved standards of the [AHL].”  Plaintiff was not sitting at either end of the rink or behind the goals.  The defendants asked the Superior Court to adopt the “limited duty rule” (also referred to as the “baseball rule”), which is different from the general negligence standard.  Under the “limited duty rule,” once the defendant facility “has provided adequately screened seats for all those desiring them, the [facility] owner has fulfilled his duty of care as a matter of law.”  The Court explained that “[t]he limited duty rule holds that the stadium owner/operator is only responsible for screening the spectator seats in the most dangerous section of the field (in baseball, the area behind home plate).”

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Stuck Between a Dumbbell and a Hard Place – Fitness Club Members Claims RE Smashed Finger Dismissed (TX)

May 12, 2015

 

Grijalva v. Bally Total Fitness (Texas)

Plaintiff had been a member of defendant’s health and fitness club for many years.  When he joined, plaintiff signed a detailed Membership Application, which included waiver and release and assumption of risk language.  About a year after he joined, plaintiff was injured while lifting weights.  His finger was caught between his own weights and a set of weights that was left on the floor by another member, causing disfigurement and loss of use.  Plaintiff sued the defendant club for premises liability, negligence, intentional infliction of emotional distress, breach of common law warranty, fraudulent inducement, and breach of contract.  In particular, plaintiff alleged that there were “several weights or dumbbells left around the various benches nearby [the bench where he was lifting weights] that were not returned to their regular and specific rack locations.”  A set of those weights left by another member caused plaintiff’s injury.  The intentional conduct claim was based on plaintiff’s allegation that the defendant failed to assist him “in mitigating the extent of his injuries to his finger” by “failing to summon medical assistance immediately.”

Defendant moved for summary judgment, contending (1) plaintiff had waived his right to pursue his negligence claims by executing the waiver and release provisions of the Membership Application, and (2) plaintiff could not provide evidence of all essential elements of his remaining claims.  Initially, plaintiff asserted that he did not sign a waiver and release in the Membership Agreement (he claimed that while he signed the second page of the agreement, the waiver and release provision is on the third page, which he did not sign), that he did not “speak and write English properly,” and that the club did not discuss the waiver and release with him.  He also argued that the waiver and release in the Membership Application did not meet Texas’ “fair notice requirement” because it was not conspicuous.  The trial court granted the club’s motion, dismissing plaintiff’s claims, and plaintiff appealed.

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And the Runner is Out – Claim By Spectator at a Little League Game Barred by Recreational Use Statute (RI)

May 11, 2015

Carlson v. Town of South Kingston (Rhode Island)

The plaintiff was attending her son’s little league game being played at a park and field owned and maintained by the defendant town.  As she was walking from a batting cage area over to a concession stand to meet her son, she stepped in a “divot” and broke her leg.  Testimony established that the “divot” was created by kids waiting to get into the batting cages when they would dig their cleats into the ground.  Plaintiff filed an action against the town, alleging the town negligently maintained the premises.  The town moved for summary judgment based on Rhode Island’s Recreational Use Statute (“RUS”).  Plaintiff objected to the motion citing two exceptions to the RUS and alleging: (1) the town had “willfully or maliciously failed to guard or warn against a dangerous condition on the land,” and (2) the town had charged plaintiff for her access to the park.  The trial court granted the motion, and the plaintiff appealed.

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