Archive for June, 2015

Reality Bites – Defamation and Business Tort Claims of Reality Show Participant Dismissed (NY)

June 29, 2015

Klapper v. Gaziano (New York)

In 2011, the plaintiff agreed to participate in the “Mob Wives” reality television show.  Prior to his participation, he signed an “Appearance Release” in which he agreed to not sue the production company and to release the production company and its affiliates and representatives from all liability.  After the show, plaintiff filed an action against several individual and corporate defendants, alleging defamation and tortious interference with existing contracts and prospective business relationships.  The defendant corporate entities moved to dismiss the amended complaint for failure to state a cause of action and for an award of attorney’s fees.  The trial court granted the motion, and plaintiff appealed. (more…)

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No Brakes – Village Not Responsible for Injuries to Woman Injured at the Bottom of Sledding Hill (NY)

June 24, 2015

Vannatta v. Village of Otisville (New York)

A woman was standing at the bottom of a hill in an area of village-owned park.  The area was not maintained by the village and was left in its natural state.  The hill had been used for sledding for approximately 50 years, and the woman had walked with her son to the hill to take him sledding.  As she was standing at the bottom of the hill, she was struck by someone coming down the hill.  She filed and action against the village claiming that it “failed to install and maintain proper signage or to employ personnel to prevent [or] safely restrict access to and use of the park and hill or to warn users, including pedestrians such as the Plaintiff, of dangers to such pedestrian users inherent in or incident to the use of the park and hill by others who may be using the park and hill for sleigh riding or similar recreational activities.”

The defendant moved for summary judgment under the New York General Obligations Law Section 9-103, which provides immunity “to private as well as government landowners against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities where the land is suitable for those activities.”  The trial court granted the motion and the plaintiff appealed.  On appeal, the Appellate Division of the Supreme Court agreed that the statute applied and affirmed the trial court ruling, entering judgment for the defendant.

Iced Out – Claim by Skier Who Lost Control Due to Icy Conditions Barred (PA)

June 22, 2015

Smith-Wille v. Ski Shawnee, Inc. (Pennsylvania)
(trial court disposition)

Plaintiff was skiing at the defendant’s ski resort when she encountered icy conditions, causing her to lose control and run into unpadded PVC piping holding a vinyl fence on the ski slope.  Plaintiff suffered personal injury and filed an action against the resort, claiming that there should have been a warning as to the icy conditions.   The defendant filed a motion for summary judgment, arguing that the accident was the result of the inherent risk of skiing.  In opposition to the motion, plaintiff asserted that there were no warnings of the slope conditions that would have allowed her to decide whether or not to proceed in skiing (i.e., she could not assume a risk of which she was not aware).  Plaintiff stated that “her conduct in skiing down the hill in the icy conditions was not voluntary, and that she could not have assumed the risk of any dangerous conditions on the slopes once there was no way to avoid those conditions, namely the ice.”  Plaintiff further contended that she was not adequately warned or the pole or the fencing that she ran into during the incident.

The Court of Common Pleas of Pennsylvania referred to the Pennsylvania Skiers Responsibility Act (“Act”), which was part of Pennsylvania’s comparative negligence statute.  In the Act, the Pennsylvania General Assembly recognized that there were “inherent” risks in the sport of downhill skiing, although those risks were not defined.  The Court concluded that “ice and icy conditions are part of the ‘inherent risks’ envisioned by the General Assembly.”  As such, the defendant did not owe the plaintiff a duty to protect the plaintiff from those conditions.  The Court also pointed out that “from a practical standpoint . . . it would be virtually impossible for a ski area to warn of icy conditions wherever and wherever they may exist.”  Finally, the Court stated that the defendant did not owe a duty to provide plaintiff with an alternate route down the slope.

The Court granted the motion for summary judgment and entered judgment in favor of the defendant.

Short Ride – Minor Child Falls From Horse During Birth Party; Statutory Immunity Applies (AL)

June 19, 2015

Estes v. Stepping Stone Farm, LLC (Alabama)

A four year old child attended a birthday party that included equestrian activities.  She fell from a horse during the party and was injured.  Her father filed a lawsuit against the equine center, the center’s owner, and the center’s employees, alleging claims of negligence, wantonness, and negligent failure to train or supervise.  The defendants filed a motion for summary judgment citing the Alabama Equine Activities Liability Protection Act (“Act”), which limits the civil liability of those involved with equine activities as it pertains to risks inherent in the activities.  The trial court granted the motion, and the plaintiff appealed.
(more…)

Mirror Mirror Off the Wall – Fitness Member’s Injury Claim Relating to Falling Mirror Survives Release Motion (IL)

June 16, 2015

Hawkins v. Capital Fitness, Inc. (Illinois)

Plaintiff was a member of the defendant’s fitness club.  He was injured when a mirror fell from the wall and struck him in the head.  As a result, he filed a personal injury action, alleging the negligent failure to secure the mirror or warn patrons about the mirror.  The defendant filed a motion for summary judgment based on the “Disclaimers, Waiver, Release, and Indemnification” language found in the defendant’s membership agreement.  The trial court granted the motion, entering judgment for the defendant, and the plaintiff appealed. (more…)

Formal Hazards – Liability Releases for Prom Parties? (NY Times)

June 15, 2015

The New York Times recently published an article about parents requiring liability release and indemnity documents in connection with after-prom parties.  It’s certainly not an unexpected development in today’s litigious society.  How would you react if your son or daughter came home with something like this?

Prom Accessories: Corsages, Limousines and Liability Waivers 

Foul on the Defense – Basketball Rec League Waiver Void Under New York Statute (NY)

June 12, 2015

(photo by Dave Lindblom; unchanged)

Falzone v. City of New York (New York)

Plaintiff paid a fee to register to play in a recreation basketball league.  The league then paid the defendant New York City Department of Eduction a portion of the league registration fees for a permit in order to use a public school gymnasium.  During a game at the facility, the plaintiff was injured when his hand went through the glass window of a door that was behind one of the basketball hoops.  Plaintiff then filed an action against the City of New York and the Department of Education.  After initially responding, the defendant filed a motion for leave to amend their answer to add the affirmative defense of release and filed a motion to dismiss the complaint.  The trial court granted both motions and the plaintiff appealed.

On appeal, the Appellate Division of the Supreme Court determined that the trial court had properly granted the City of New York’s motion to dismiss in that it did not operate, maintain, or control the school premises.  As to the motion by the Department of Eduction to add the affirmative defense of release, the Court reversed the decision.  the Court explained that “[a]lthough leave to amend a pleading should be freely given [citation omitted], a court should deny a motion for leave to amend if the proposed amendment is palpably insufficient, would prejudice or surprise the opposing party, or is patently devoid of merit.”  The Court noted that the proposed amendment regarding the affirmative defense of release was “devoid of merit.”  The plaintiff had signed a “Player Waiver, Release of Liability and Indemnification Agreement” prior to his participation in the basketball league, but he paid a league fee to use the gymnasium and the payment of the fee rendered the waiver and release agreement void pursuant to New York General Obligations Law Section 5-326.  Under Section 5-326, every agreement in connection with a place of recreation in which the owner or operator receives a fee for the use of such facilities that exempts the owner or operator from liability for damages resulting from the negligence of the owner or operator is deemed void as against public policy and wholly unenforceable.

Reckless Abandon – Allegations of Recklessness and Punitive Damages Survive in Ski Collision Case (PA)

June 11, 2015

Doyle v. Dianna (Pennsylvania)
(trial court disposition)

The plaintiff was skiing with his son in a highly congested area of a ski resort when he was struck by the defendant who was “allegedly skiing abnormally fast, out-of-control, recklessly” and who became airborne such that he was unable to slow down, stop, or avoid the impact.  Plaintiff filed an against against the defendant skier alleging that he acted recklessly and should be liable for punitive damages.  The defendant moved to strike both the references to “recklessness” and the punitive damages claim from the complaint.

Reviewing the applicable standards under Pennsylvania law, the Court of Common Pleas of Pennsylvania denied the defendant’s motion.  The defendant had argued that the complaint lacked specificity to support an allegation of reckless conduct, but the court disagreed, noting that in Pennsylvania “recklessness is a condition of the mind that may be averred generally.”

With regard to the claim for punitive damages, the court stated that it “must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.”  The court then concluded that the plaintiff alleged facts that, if true, were sufficient justify punitive damages.  Plaintiff had alleged:

“Defendant knew he was skiing in an area that ‘is generally highly congested … with other skiers.’ [Citation omitted.]  The Plaintiffs further aver that the Defendant was (a) skiing at an abnormally high rate of speed, (b) jumping and/or becoming airborne ‘rendering himself completely out-of-control and unable to change his course of direction,’ and (c) that he knew that he would not be able to stop in an emergency situation due to the conditions of the area.”

Teachable Moment – Claims of Student Chaperon Injured While Whitewater Rafting Barred by Release (PA)

June 10, 2015

McDonald v. Whitewater Challengers, Inc. (Pennsylvania)

The plaintiff (a New York resident) was a school teacher who chaperoned seventh and eighth grade school children on a whitewater rafting field trip with other faculty members.  While she was rafting, her raft struck a large rock, causing her personal injury.  Plaintiff filed a negligence lawsuit against against the whitewater facility, alleging that the facility failed to provide a river guide/instructor in her boat, failed to provide a properly inflated raft, failed to advise her on the grade/class of whitewater rapids she would encounter, failed to instruct her on how to safely and effectively maneuver the rapids, and allowed an unsafe number of inexperiences rafters in the boat.

The defendant filed a motion for summary judgment based on the waiver and release agreement signed by plaintiff prior to her participating in the rafting.  The trial court denied the motion.  Following further discovery, plaintiff then filed a motion for partial summary judgment arguing that New York law (and not Pennsylvania law) should be applied to the facts, and defendant filed a second motion for summary judgment.  Applying Pennsylvania law, the trial court denied both motions.  While the court acknowledged that the Pennsylvania Supreme Court had previously “affirmed the validity of such exculpatory releases in inherently dangerous recreational activities,” the court held that there were “material issues of fact existed regarding whether she was economically compelled to sign the release” by her employer/school.  The parties filed petitions for permission to file an interlocutory appeals, which were granted.

(more…)

Wipeout – Sledding Spectator at Birthday Party Assumed risk of Bring Struck (NY)

June 8, 2015

Photo by Tony Fischer (no changes made)

 

Savage v. Brown (New York)

The plaintiff was one of about 15 guests invited to a birthday party held for defendant Tracy Brown (“Tracy”).  The guests were invited to participate in snow sledding at the party.  Plaintiff was standing on the side of the hill watching other attendees sledding when she was struck by a sled carrying Tracy and another guest.  Plaintiff sued Tracy, Tracy’s mother, and the property owner for negligence.  The defendants moved for summary judgment based on the doctrine of assumption of the risk.  Alternatively, the property owner contended that it was entitled to protection of the state’s recreational immunity statute.

The trial court denied the defendants’ motions, and the defendants appealed.  The Appellate Division of the Supreme Court reversed the trial court decisions and entered judgment in favor of the defendants.  The Court compared the plaintiff to a spectator at other sporting activities who assume the risk of being struck, such as a spectator at a baseball game.  The Court concluded that by standing on the side of the hill while watching other people sledding, plaintiff assumed the risk of being struck by a sled.”  Plaintiff testified that she knew the sleds were moving very fast, and she had “observed someone else at the party lose control of her sled and crash into a snow bank, and she saw a sled strike another person.”  Plaintiff’s only argument was that “she did not assume the risk of being struck by a sled because she was standing off to the side of the hill in an area where sleds were unlikely to go.”  However, the Court noted that the evidence showed that the sled turned at the very end of the run and that plaintiff did not have any time to react to it.

In light of the Court’s decision based on assumption of risk, the Court noted that it need not address the applicability of the recreational immunity statute.