Fender Bender – Claims of Injured “Cyber Sport” Participant Dismissed (NY)

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Yargeau v. Lasertron (New York)

Plaintiff was injured while participating in a game called Cyber Sport.  In Cyber Sport, participants drive cars similar to bumper cars while they attempt to scoop a ball into a handheld basket and then shoot the ball to score points.  A participant uses a joystick to move the car, but there are no brakes on the cars.  The cars are built to stop moving when the joystick is released or when a signal is sent to the car by an employee of the facility hosting the game.  After riding in her car during a warm up period, the plaintiff was sitting in her car listening to the referee give instructions to the players.  Although the referee had pressed the button that was supposed to give a signal causing all the cars to stop, at least one of the cars still had power and ended up striking plaintiff’s car from behind and causing her personal injury.

Plaintiff sued the manufacturer of the car and the facility hosting the game, alleging products liability claims and negligence.  The defendants filed motions for summary judgment, which were granted by the trial court, and the plaintiff appealed.

The Appellate Division of the Supreme Court first stated that the trial court properly granted the negligence and strict products liability claims against the facility hosting the game based on design defect because it “did not design, manufacture or sell the allegedly defective product and thus could not be held liable for either negligence or strict products liability” resulting from the defect.  Next, the Court held that the trial court properly dismissed the products liability claims against the car manufacturer since the manufacturer had “stablished that the cars were reasonably safe.”  The manufacturer had submitted the affidavit of an expert who “averred that the cars were safe and operated within applicable standards” and “opined that the cars were not rendered unsafe by the remote shut-off’s failure, noting that there was no accepted industry standard that mandated that a car must be totally inoperable during stoppage of play.”  The Court explained that plaintiff’s expert “did not identify any violation of a safety standard or deviation from industry standards regarding the signal used by the employees to stop the cars.”

The Court further affirmed the trial court’s dismissal of the plaintiff’s claims regarding an alleged failure to warn of the dangers associated with the cars was also appropriate, concluding that “[t]here [was] no duty to warn of an open and obvious danger of which the product user is actually aware or should be aware as a result of ordinary observation or as a matter of common sense.”  The danger of “being bumped from behind by another driver was an open and obvious danger in participating in Cyber Sport.”

As to the plaintiff’s general negligence claims, the Court found that they were properly dismissed based on plaintiff’s primary assumption of the risk.  Prior to the incident, plaintiff had seen the cars bumping each other, and plaintiff herself had previously struck a wall and been hit from behind.  Thus, the Court concluded that “bumping other cars was a part of Cyber Sport” and that plaintiff expected it.

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