Archive for August, 2015

(Un)Safe! – High School Softball Playing Injured During Sliding Drill; Triable Issues Regarding Increased Risks (NY)

August 31, 2015

Brown v. Roosevelt Union Free School District (New York)

A high school senior softball player was injured while participating in an infield sliding drill during softball practice on an elementary school field.  The team was practicing on the elementary school field because the high school field was being renovated.  The injured player’s mother filed a lawsuit on her behalf alleging that the coach increased the inherent risks of the softball by having her perform an infield sliding drill on a grass field.  The defendant school filed a motion for summary judgment, arguing that the claim was barred by the doctrine of primary assumption of risk.  Defendant asserted that under the law, the risks of an activity include risks associated with the construction of the playing surface and any open and obvious condition on it.  The trial court denied the defendant’s motion, and the defendant appealed.

The Appellate Division of the Supreme Court affirmed the trial court decision.  The Court concluded that “the defendants failed to establish, prima facie, that the infant’s coach, by having her perform an infield sliding drill on the subject grass field, did not unreasonably increase the inherent risks of the activity.”  In that the defendant failed to meet its burden, the Court said it did not need to determine the sufficiency of the plaintiff’s opposition papers.

Carried Away – Woman Injured on Zip Line; Enforcement of Release Dependent on “Common Carrier” Factual Determination (IL)

August 28, 2015

Dodge v. Grafton Zipline Adventures, LLC (Illinois)

Plaintiff was a paying guest on an aerial zip line course operated by the defendant.  Like the other guests, plaintiff was outfitted with a harness and pulley system that attached to the suspended cables and was supposed to allow her to control her speed by braking on descents.  However, on the eighth run on the zip line course, the plaintiff’s braking system failed.  She approached the landing platform as a high rate of speed, and she struck the trunk of the tree on which the lading platform was mounted.  Plaintiff filed a complaint against the defendant alleging that the defendant was a common carrier that breached its duty of care by negligently designing and operating the zip line course, intentionally and recklessly violating safety regulations promulgated by the Illinois Department of Labor, and thereby engaging in willful and wanton misconduct.  Plaintiff also alleged that defendant was negligent in instructing her, inspecting and maintaining the braking system, and failing to prevent the incident.

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Front Row Seats – Woman Injured by Stampede in Overcrowded Movie Theater; Crowd Control Liability for the Jury (NY)

August 27, 2015

Sachar v. Columbia Pictures Industries, Inc. (New York)

Plaintiff was escorting a group of teenagers to see a free screening of a movie.   Plaintiff’s group was directed to an upper level to find seat, but was then told to turn around and go downstairs.  As the group was returning, there was a sudden stampede of people rushing from behind.  The assistant manager of the movie theater confirmed that there appeared to have been a stampede, and an employee of the movie studio that produced the movie testified that the event was overbooked to ensure that the theater was filled to capacity.

As a result of the stampede, plaintiff was pushed forward and she was “hurled in the air,” suffering personal injury.  Plaintiff filed a lawsuit against both the movie theater and the movie studio.  The defendants filed motions for summary judgment, which were granted by the trial court.  Plaintiff filed a motion to reargue the motions, and upon re-argument, the trial court denied the defendants’ motion.  The defendants then appealed.

On appeal, the Appellate Division of the Supreme Court affirmed the decision.  The Court explained that “[u]nder the circumstances presented, involving the deliberate overbooking of a theater for a free film screening, defendants were required to show that they took adequate crowd control measures to address the foreseeable risks to those attending in order to meet their prima facie burden of demonstrating entitlement to summary judgment.”  However, the defendants failed to present evidence that adequate crowd control measure were in place at the time of the incident.  The Court also stated that “the deposition testimony also creates an issue of fact as to [the movie studio’s] specific security duties, as sponsors of the event, at the screening.”

 

Blown Engine – Drag Racer Dies During a Track Rental Session; Racetrack Faced with Triable Issues, Possible Punitive Damages (NJ)

August 26, 2015

Cruz v. ATCO Raceway, Inc. (New Jersey)
(trial court disposition)

Jose Cruz was involved a fiery crash that occurred at the drag racing strip owned by the defendant.  The accident was caused by a “catastrophic engine failure,” and Jose was severely burned.  Although he managed to escape the car and walk away from the wreck, he ultimately died at the hospital.  A lawsuit was filed by Jose’s widow on her own behalf and on behalf of Jose’s estate, alleging negligence, negligence per se, wrongful death, and survivorship.  The lawsuit also sought punitive damages.  The defendant filed a motion for summary judgment, and the New Jersey District Court granted the motion in part and denied the motion in part. (more…)

A Trip to the Festival – Woman Injured from Exposed Pipe on Unpaved Walkway to a Parking Lot; Issues of Fact for the Jury (FL)

August 21, 2015

Cook v. Bay Area Renaissance Festival of Largo, Inc. (Florida)

Plaintiff attended a festival organized by the defendant, and she tripped and fell over an exposed pipe on an unpaved walkway connecting the festival grounds to an overflow parking lot.  Plaintiff filed an action action against the organizer, contending that it negligently maintained the property where the incident occurred.  The defendant filed a motion for summary judgment, arguing that there was no proof that it had control over the premises where the incident occurred.  Although plaintiff was directed by festival volunteers to park in the overflow parking, there was conflicting testimony concerning whether the volunteers directed her to use the unpaved walkway.  The trial court granted the defendant’s motion, and the plaintiff appealed.

On appeal, the District Court of Appeal of Florida reversed the decision and remanded the matter for further proceedings.  First, the Court held that there was a genuine issue of material fact as to whether the organizer had exercised control of the unpaved area.  The Court stated “[a] party ‘who assumes control over the premises in question, no matter under what guise, assumes also the duty to keep them in repair.'”  The defendant was clearly using the overflow parking, and there was conflicting evidence as to whether the defendant intended its invitees to use the unpaved walkway.  The Court also noted that the evidence showed that the defendant took action to remove the pipe from the area after the incident.  Such evidence suggested the defendant’s control over the premises.

Second, the Court held there was also a genuine issue of material fact as to whether the pipe was a dangerous condition, and whether warnings from the plaintiff’s husband and other attendees were sufficient to absolve the defendant from liability.  The defendant argued that the pipe was “open and obvious,” such that it did not owe her a duty to warn her about the hazard.  However, the Court explained that “even when a hazard is open and obvious, a landowner or possessor can still be held liable for failing ‘to exercise reasonable care to prevent foreseeable injury’ to invitees.”

 

A Racing Incident – Claims of Go Kart Driver Injured by Driver with Down Syndrome to be Decided by a Jury (NY)

August 20, 2015

Corneli v. Adventure Racing Co., LLC (New York)
(trial court disposition)

Plaintiff participated as driver in go kart activities at the defendant’s racing entertainment facility, and he was injured when his go kart was struck by the go kart operated by defendant C.S., a seventeen-year-old who suffered from Down’s Syndrome.  Plaintiff filed a lawsuit against the facility, alleging that the facility was negligent in the ownership, operation, management, maintenance supervision, staff training and control of the go kart ride and in the supervision and control of C.S.  The lawsuit was also filed against C.S. for negligently operating and driving the go kart, and C.S.’s alleged mother and father for negligent entrustment and allowing C.S. to negligently operate the go kart in a dangerous manner.

The defendant go kart facility filed a motion for summary judgment based on the doctrine of assumption of risk.  C.S.’s alleged mother and father filed cross-claims against the facility, and the mother and father filed a motion for summary judgment, claiming that they were not responsible for C.S.’s conduct.  Plaintiff then filed his own motion for summary judgment.  The New York U.S. District Court addressed each motion in turn.
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Let It Snow – Triable Issue Existed as to Whether Nine Year Old That Collided with Snowmaking Machine Assumed the Risk (PA)

August 19, 2015

MD ex rel Mora-Dillon v. Ski Shawnee (Pennsylvania)
(trial court disposition)

Plaintiff was a nine year old girl that participated in a ski trip with her elementary school as a novice skier with no skiing experience other than three lessons.  As she was skiing down one of the slopes, she collided with a snowmaking machine, suffering several bone fractures and other injuries.  Plaintiff filed a negligence lawsuit against the ski resort, contending that the resort failed to adequately place padding on the metal components of the snowmaking machine.  The ski resort filed a motion for summary judgment, asserting that it had no duty to protect plaintiff from the inherent risks associated with downhill skiing.  Defendant argued that even though plaintiff had no knowledge of the risk presented, the plaintiff implicitly assumed the risk of colliding with snowmaking equipment, negating any duty it had to plaintiff. (more…)

Worst Seat in the House – Triable Issue as to Whether Park Had Notice of Dangerous Bleachers (AL)

August 18, 2015

Shirley v. Tuscaloosa County Park and Recreation Authority (Alabama)

Plaintiff was sitting on bleachers at Munny Sokol Park in Alabama watching a youth football game.  Certain welds on the bleachers broke, causing plaintiff to fall and suffer personal injury.  Plaintiff filed a complaint against the parks and recreation authority that owned the property, alleging negligence and wantonness.  Plaintiff later amended her complaint to assert a claim under the Alabama Extended Manufacturer’s Liability Doctrine against several fictitiously named defendants.  The property owner filed a motion for summary judgment arguing it was entitled to immunity under Alabama’s recreational use statute.  The trial court granted the motion, and the plaintiff appealed.

On appeal, plaintiff argued that the trial court improperly entered summary judgment because there was a genuine issue of material fact as to whether the park was being used for commercial purposes and whether the property owner had “actual knowledge or an unreasonable risk of death or serious bodily harm” (both exceptions to the statutory immunity).

The Court of Civil Appeals of Alabama noted that plaintiff presented no evidence indicating that the use of the park was commercial in nature.  However, the Court found that the plaintiff did present evidence that the property owner had actual knowledge regarding the unreasonably dangerous condition of the bleachers and that it failed to guard or warn against the consequences.  The evidence established that an employee of the property owner arrived at the scene of the incident and commented, “I told them earlier to put a cone or a sign on this bleacher until we could get somebody out here to repair it.”  Another witness also confirmed that the the condition of the bleachers was known and should have been “coned off.”  The property owner disputed the facts, but the Court noted that it was required to review the evidence in the light most favorable to the non-movant.  Therefore, the Court reversed the decision and remanded the trial for further proceedings.

Imperfect Storm – Hockey Arena Snow Remover Not Liable for Slip and Fall Injury During Storm (NY)

August 17, 2015

Harvey v. LAZ Parking Ltd. (New York)

A hockey fan slipped and fell on an icy pedestrian area while exiting a hockey arena.  He filed a lawsuit against the city and its snow removal contractor.  The fan’s wife also filed a claim for loss of consortium.  The defendant filed a motion for summary judgment.  The trial court granted the motion, and the plaintiffs appealed.

On appeal, the Appellate Division of the Supreme Court affirmed the trial court decision, holding that the defendants were not liable pursuant to the “storm in progress rule.”  According to the rule, “[a] landowner has no duty to remedy a dangerous condition resulting from a storm while the storm is in progress and has a reasonable amount of time after the storm has ended to take corrective action.”  The defendants relied on plaintiffs’ own testimony that there was precipitation during and after the game, and they also relied on weather data and climatological records establishing the timing of the precipitation.  The evidence was sufficient to demonstrate that the ice was formed by the ongoing weather conditions.  Once established, the burden then shifts to the plaintiff to produce  “admissible evidence that the ice that caused plaintiff’s slip and fall existed prior to the storm in progress, and that defendant[s] had actual or constructive notice of the hazard.”  The Court concluded that the plaintiff’s expert affidavit failed to meet that burden.

Maintenance Mystery – Gross Negligence is an Issue of Fact for Jury in Fitness Club Equipment Case (CA)

August 7, 2015

Chavez v. 24 Hour Fitness USA, Inc. (California)

Plaintiff suffered a traumatic brain injury when the back panel of a “FreeMotion cable crossover machine struck her in the head at the defendant’s workout facility.  Plaintiff filed a complaint alleging claims for ordinary and gross negligence and strict product liability.  The defendant moved for summary judgment arguing (1) the written release of liability in its membership application was a complete defense to the negligence claims, (2) it could not be liable under a products liability claim because it was a service provide and it was not in the chain of commerce, and (3) the plaintiff could not reasonably demonstrate an extreme departure from the ordinary standard of care or a failure to exercise scant care which was required to state a claim for gross negligence because the defendant’s technician routinely inspected the equipment and performed preventative maintenance on it.

Plaintiff opposed the motion, and, in the alternative, sought a continuance of the motion based on the fact that the defendant claimed that it was unable to produce the maintenance technician for deposition because he was not longer employed by defendant and he could not be found.  The trial court denied plaintiff’s motion to continue, noting that the maintenance technician had been identified many months before the defendant filed its motion for summary judgment, but plaintiff elected not to subpoena him until after it received the motion.  The trial court then granted the defendant’s motion finding (1) the primary purpose of the membership agreement was the provision of fitness services such that defendant could not be held strictly responsible under the products liability claim, (2) the ordinary negligence and premises liability claims were barred by the release of liability in the membership agreement, and (3) the defendant had met its burden to show it was not grossly negligent by establishing “it had a system of preventative and responsive maintenance of its equipment.”  Plaintiff appealed the trial court decision, but only as to the ruling on its motion to continue and as to the gross negligence claim. (more…)