Archive for September, 2015

Capped and Dismissed – Arbitration Provision with Damages Cap in Zip-Line Waiver and Release Enforced (VT)

September 30, 2015

Littlejohn v. Timberquest Park at Magic, LLC (Vermont)
(trial court disposition)

The seventy-six year old plaintiff was severely injured while participating in an adventure zip-line course in Vermont.  Plaintiff had never participated in an adventure course before.  Despite having received instruction from the zip-line facility, the plaintiff mistakenly attached his equipment to a guy wire, thinking it was a zip-line cable.  While descending, he ran into a tree that anchored the other end of the guy wire.  He sued the zip-line facility alleging that it negligently designed, constructed, and operated the course.

Plaintiff’s friend had purchased their tickets for the adventure course online through the facility’s website.  Plaintiff arrived at the facility, and they were presented with a “Release of Liability, Waiver of Claims, Indemnification, and Arbitration Agreement” to sign.  Plaintiff contended that the website had not warned them that they would be required to sign a liability waiver in order to participate in the activities.  The agreement was presented in digital format on an electronic device, and plaintiff was instructed to read and sign it electronically.  The agreement specifically included a provision pursuant to which the plaintiff agreed to submit any claims in excess of $75,000 to binding arbitration.  Alternatively, if plaintiff filed a lawsuit in court, the agreement provided that plaintiff agreed that his damages would be capped at $75,000.  The agreement further attempted to require the arbitration panel or court (as applicable) to decide the enforceability of the agreement as a “threshold matter.”

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Rather Shallow – Man Broke His Neck Diving Into Lake; Risk Deemed Open and Obvious (IL)

September 16, 2015

Bujnowski v. Birchland, Inc. (Illinois)
(not published)

The plaintiff was visiting a recreational area operated by the defendant.  He dove off a pier into a lake on the property and broke his neck.  He sued the defendant alleging that the defendant had no employees monitoring the area, and that the defendant was negligent in failing to supervise or train customers properly on the use of the are and failing to warn them of the dangers of using the area.  The defendant filed a motion for summary judgment on the basis that it did not owe a duty to plaintiff because the danger of diving into water was open and obvious.  The trial court granted the defendant’s motion, and the plaintiff appealed.

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Ejected – Man Knocked Unconscious on Water Slide; Court Permits Amendment to Complaint Alleging Punitive Damages (PA)

September 10, 2015

Perez v. Great Wolf Lodge of the Poconos (Pennsylvania)
(trial court disposition)

Plaintiff Brian Perez was a paying guest and business invitee of the defendant Great Wolf Lodge, which operates a hotel and water park in the Poconos.  While riding on a water slide with his companions, Perez’s raft began “oscillating excessively,” causing him to strike his head and neck on the side of the ride, rendering him unconscious, and ejecting him from the ride.  Perez and his wife filed a complaint against the defendant alleging negligent overloading of the raft.  Discovery ensued and was very contentious.  There was what was characterized as a “failure of discovery by the defendants for much of the first year of this litigation.”  At some point, the initial attorney representing the defendant was replaced.  Thereafter, some significant additional disclosures, totaling approximately 5,000 pages of material, were made by the defendant.  As a result of the disclosures, the plaintiffs filed a motion to amend the complaint to add a claim for punitive damages to the lawsuit.

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Scuba Tragedy – Diver Drowns; Releases Enforceability to Protect Diver Association from Ordinary Negligence (HI)

September 3, 2015

Hambrock v. Smith (Hawaii)
(trial court disposition)

Plaintiff, her husband, and their children went on a recreational scuba diving excursion that departed from Hawaii.  During the excursion, plaintiff’s husband died by drowning.  Plaintiff brought a lawsuit against numerous defendants, including (1) the dive guide on the scuba excursion (“Smith”), (2) the co-captain of the dive vessel (“McCrea”), (3) a dive training organization and an association for diving instructors and dive centers in which both the Smith and McCrea were members (“PADI”), and (4) the corporate entity out of which the Smith and McCrea ran their scuba excursions (“HSS”).  The lawsuit alleged negligence (all defendants), gross negligence (all defendants), and vicarious liability on theories of apparent agency, agency by estoppel, and maritime joint venture (against PADI).

PADI filed a motion seeking summary judgment as to both the negligence claims and the vicarious liability claims against it (i.e., all claims except gross negligence) based on the liability releases signed by the plaintiff and her family prior to the scuba diving activities.  In addition to opposing PADI’s motion, the plaintiff also filed a motion for partial summary judgment of her own, challenging the enforceability of the releases.  In addressing the enforceability of the releases, the U.S. District Court for Hawaii reviewed both admiralty law and Hawaii state law.

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“Baled” Out – Woman Trips on Stairs at Farm; Indemnity Agreement in Release Contrary to Public Policy (CT)

September 2, 2015

Squinobal v. Zenko (Connecticut)

Plaintiff was injured when she slipped and fell on wooden stairs located on the defendant’s premises.  The defendant operated a farm and equestrian facility.  At the time of the incident, plaintiff was carrying a bale of hay and seed to a feed trailer.  Plaintiff filed a complaint alleging that her injuries resulted from the negligence and carelessness of the defendant.  The defendant filed a counterclaim based on a “Lesson, Horse Rental, and Arena Use Release” document (“Release”) signed by the plaintiff in order to ride horses at the facility.  The defendant then filed a motion for partial summary judgment on the ground that plaintiff had a duty to defend and indemnify the defendant under the terms of the Release. (more…)

Out of Control? – Woman Injured by Display at Conference Wins Jury Verdict; Evidence Properly Excluded at Trial (MO)

September 1, 2015

Medley v. Joyce Meyer Ministries, Inc. (Missouri)

The plaintiff attended a conference that was hosted by the defendant, and she was injured when she tripped over a window display set up in a boutique vendor area at the conference.  Plaintiff filed an action against the defendant for premises liability, alleging (1) that she was an invitee of the defendant, (2) the defendant controlled (or had the right to control) the boutique area that included the display, (3) the defendant negligently placed the window display in a crowded and congested area, and (4) plaintiff suffered injuries and damages as a result of the defendant’s negligence.

During trial, the defendant attempted to introduce documentary evidence, including a license agreement, between the defendant and the St. Louis Convention and Visitors Commission (“CVC”) showing CVC’s involvement in the conference.  Plaintiff objected to the evidence  as irrelevant, and the trial court sustained the objections.  Defendant also sought to introduce witness testimony about CVC’s involvement in the conference and CVC’s relationship with the defendant.  However, the trial court held: “(1) there was no evidence to suggest that Defendant was not in possession of the premises where Plaintiff’s injury occurred; (2) the only relevant relationship in the case was the relationship between Plaintiff and Defendant; and (3) the evidence presented by Defendant in its offer of proof was not relevant.”  Thereafter, the defendant sought the introduction of a jury instruction that stated: “Your verdict must be for [D]efendant if you believe that [D]efendant was not in possession or control of the premises.” However, the trial court refused to submit the instruction.

Upon the conclusion of the trial, the jury entered a verdict in favor of the plaintiff, finding that plaintiff’s total damages were $400,000.  The verdict assessed defendant seventy percent at fault and plaintiff thirty percent at fault, thereby awarding plaintiff $280,000 in damages.  The court entered a judgment consistent with the verdict, and defendant filed a motion for a new trial.  The motion was denied, and the defendant appealed. (more…)