Archive for June, 2015

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

June 5, 2015

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. (more…)

Yellow Flag – Amusement Park Go-Kart Operator Not Liable for Injury from On-Track Collision (TX)

June 3, 2015

Weaver v. Celebration Station Properties, Inc. (Texas)

Kerri Weaver (“Weaver”) and her three children visited the defendant’s amusement park in Oklahoma City, Oklahoma.  Weaver took one of her children on a go-kart ride at the facility and was involved in an on-track incident.  Another driver bumped Weaver’s go-kart, causing Weaver to suffer a heel fracture.  Weaver filed a state court action in Texas, alleging defendant’s “negligent failure to inspect the amusement area, adequately warn customers not to bump into other go-karts, train and supervise its employees, and instruct and train go-kart drivers, caused her injury.”  Additionally, Weaver filed a claim on behalf of her minor child for “bystander suffering.”  The defendant timely removed the case to federal court on the basis of diversity jurisdiction and, after discovery, moved to summary judgment, “arguing that it owed Weaver no duty to warn her about the open and obvious risks inherent in go-kart racing and, in any event, did not breach that duty.”

In opposition to the motion, Weaver argued that defendant “owed her a duty as a business invitee and breached this duty when it failed to guard against other reckless drivers.”  In her opposition, Weaver referred to her own deposition testimony and the deposition testimony of the defendant’s corporate representative.  However, Weaver failed to attach the deposition testimony to her opposition.  Defendant replied, reiterating its previous arguments and citing Weaver’s failure to attach the evidence.  Weaver filed a surreply, attaching the documents she failed to submit earlier, and the defendant moved to strike the surreply.

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Bite Worse Than the Bark – Whether Adopter of Dog Reasonably Relied on Representation of Shelter is a Jury Issue (NY)

June 2, 2015

 

Lawrence v. North Country Animal Control Center, Inc. (New York)

Plaintiffs adopted a basset hound named Brutus from the defendant facility, a not-for-profit animal shelter.  Less than a month later, the dog attacked one of plaintiffs’ other dogs.  One of the plaintiffs was able to separate the animals, but Brutus attacked the plaintiff during the altercation, causing severe injuries to both of his arms.  An employee of the defendant facility removed the dog from the plaintiffs’ home on the same day.  The defendant facility thereafter refused to return the dog to the plaintiffs and sent the dog to a rescue organization out of state.  Plaintiffs tracked down Brutus’ prior owner, who claimed that about a month prior to the adoption, Brutus had been turned over to the defendant facility “to be euthanized because he had attacked the owner and her child.”

Plaintiffs filed an action against the defendant facility and its employee, alleging causes of action for, among other things, negligence, fraudulent misrepresentation, products liability, and intentional infliction of emotional distress.  The defendants moved for summary judgment, and plaintiffs cross-moved to amend the complaint and for summary judgment on their claim for intentional spoliation (the defendant facility did not produce Brutus and did not know its current whereabouts).  The trial court granted the cross-motion to amend, denied plaintiffs’ cross motion for summary judgment, and treated the claim for spoliation as a request for sanctions.  However, the trial court ruled (without prejudice to raise the issue again upon completion of discovery) that it was not imposing sanctions in connection with the defendants failure to produce the dog.  The trial court further partially granted the defendants’ motion, dismissing the products liability claim and one other cause of action.  The plaintiffs and defendants both appealed. (more…)

Feeling the Heat – Kids Gym Did Not Cause Burn Injury to Grandmother (NY)

June 1, 2015

Riccio v. Kid Fit, Inc. (New York)

It’s all fun and games until someone gets burned.  The plaintiff was attending her grandson’s birthday party at a kids gym facility.  She attempted to carry a chafing tray from a table to a nearby sink, and she was burned by the lit sterno cannister.  Plaintiff filed an action against the gym facility, and the defendant filed a motion for summary judgment, which was granted by the trial court.

Plaintiff appealed, but the decision was affirmed by the Appellate Division of the Supreme Court.  First, the Court disagreed with the defendant concerning the application of the doctrine of primary assumption of risk.  The Court explained that the doctrine did not apply because “the plaintiff was not involved in a sporting event or a recreational activity when she allegedly was injured.”  Nonetheless, the Court affirmed the decision based on causation.

The Court noted that “[a]lthough the issue of proximate cause is generally for the jury, liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes.”  The employees of the defendant had “inadvertently disposed of the caps to the sterno cannisters prior to the accident,” but that “merely furnished the occasion for the accident, and any alleged negligence by the defendant did not proximately cause the accident.”  In conclusion, “[t]he plaintiff’s actions in carrying the lit sterno cannister so close to her body superseded the defendants’ conduct and terminated the defendants’ liability for her injuries.”