Archive for November, 2015

Free of Charge – City Immune Under Statute From Premises Liability Claim by Injured Youth Football Spectator (ID)

November 10, 2015

Hayes v, City of Plummer (Idaho)

The plaintiff was a spectator attending a youth tackle football game at a park owned by the defendant City of Plummer.  He was seriously injured after stumbling on uneven ground hidden by grass, and he filed a premises liability claim against the defendant for his injuries.  The defendant then filed a motion for summary judgment based on Idaho’s Recreational Use Statute.  The trial court granted the City’s motion, and the plaintiff appealed.

On appeal. the Supreme Court of Idaho affirmed the trial court’s decision.  Under the Idaho Recreational Use Statute, “[a] ‘landowner’ who provides property for public recreational use is afforded a limitation of liability and ‘owes no duty of care to keep the premises safe for entry by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.'”  This liability limitation applies when the property is offered “without charge.”  The plaintiff asserted that the school district’s payment of utilities and other expenses related to the park for the benefit of the defendant should be considered a “charge” such that the liability immunity did not apply.  However, the Court disagreed, explaining:

“The intent and purpose of Idaho’s Recreational Use Statute is to provide recreational access at no cost to the general public. I.C. § 36–1604(a) . In this case, the City and the School District have done that by allocating resources in order to provide and maintain the Park for all to enjoy. Because the City did not charge or receive compensation from [plaintiff] or the public for their use and enjoyment of the land, Idaho Code section 36–1604  provides a limitation on liability for [plaintiff’s] injuries. The district court properly granted summary judgment.”

Root of the Problem – Claims of Woman Injured on Segway Tour Barred by Exculpatory Agreement (CA)

November 9, 2015

Lamb v. San Francisco Electric Tour Company (California)
(not published)

The plaintiff and her husband went to Golden Gate Park with their son and took a guided tour of the park on individual Segway transporter vehicles.  The tour was operated by the defendant.  Plaintiff was injured on the tour and filed a lawsuit against the defendant, alleging vehicle negligence, general negligence, and common carrier negligence.  The defendant filed a motion for summary judgment based on the express waiver provisions of an agreement signed by the plaintiff, the express assumption of the risk provisions of that same agreement, and the primary assumption of the risk doctrine.  The trial court granted the motion, finding that the exculpatory agreement signed by the plaintiff was enforceable and contemplated the circumstances of the accident.  Plaintiff appealed.

(more…)

And She’s Off . . . Literally – Woman Falls From Treadmill; Unable to Prove Cause (NY)

November 6, 2015

Photo by Jennifer C. (no changes made)

Davis v. Town Sports International (New York)
(not published)

The plaintiff a a member of the defendant health club and she regularly used the treadmills at the facility.  One day she fell while attempting to get on a treadmill, injuring herself.  She filed a negligence lawsuit against the defendant, and the defendant filed a motion for summary judgment.  the New York Supreme Court granted the motion finding that the defendant had established by the evidence (including the plaintiff’s own deposition testimony) that the plaintiff was unable to identify the cause of her fall, and that she could only speculate as to the cause.  Plaintiff was unable to raise any triable issues in opposition to the motion.  The Court further noted that even if it accepted the plaintiff’s speculation that another member had failed to turn off the machine prior to plaintiff attempting to use it, the Court noted that such a claim would be barred by the doctrine of primary assumption of the risk.

Speed Wobble – Discovery Regarding Failure to Warn Allowed in Longboarding Death Case (VT)

November 5, 2015

Cernansky v. Lefebvre (Vermont)
(trial court disposition)

A college student was fatally injured while riding a longboard style of skateboard.  His estate brought a lawsuit against the roommate who lent him the board and the skateboard shop that sponsored the roommate as a longboard rider.  The complaint alleged wrongful death and negligent failure to warn the decedent about the dangers associated with the activity (the roommate did not provide the decedent with any safety instructions prior to taking the decedent longboarding).  The roommate filed a motion to dismiss the action for failure to state a claim, and the skateboard shop filed a motion to dismiss the action against it based on a lack of personal jurisdiction.

The United States District Court for the District of Vermont denied both motions.  First, the Court held that the estate’s complaint did state a claim against the roommate under Vermont law for negligent failure to warn.  The Court explained:

“. . . the Complaint alleges [the roommate] should have foreseen the potential for serious injury based upon his knowledge of long boarding. More specifically, [the roommate] allegedly should have foreseen that sending [the decedent], a first-time longboarder, down a hill without a helmet or instruction presented a risk of harm giving rise to a legal duty. Plaintiff claims that [the roommate] breached that duty.  ¶  The fact that the longboard was loaned to [the decedent] does not alter the negligence analysis. In the comparable context of negligent entrustment, the ‘theory requires a showing that the entruster knew or should have known some reason why entrusting the item to another was foolish or negligent.'”

(more…)

Pass Interference – Woman Injured Chasing Frisbee Thrown From Stage; Claims Barred as a Matter of Law (MN)

November 2, 2015

Strelow v. Winona Steamboat Days Festival Association (Minnesota)
(not published)

Plaintiff attended a festival organized by the defendant.  During a break in the music, representatives from a local radio station went on stage and began throwing t-shirts and Frisbees from the stage.  The Frisbees had tickets to the local zoo attached to them.  Plaintiff gestured as if she wanted to catch a Frisbee and one of the people on stage threw one in her direction, but it veered off course.  Plaintiff took took four to six steps diagonally and slightly backwards with her arms in the air, trying to catch it.  However, plaintiff fell down, rolled against a curb, and fractured her shoulder.

Plaintiff and her husband filed a lawsuit against the defendant event organizer, alleging that defendant failed to maintain a safe area and failed to warn plaintiff of a hazardous condition on the premises.  Plaintiff contended that she fell as a result of tripping on electrical cords that were “black and rubbery” and “bigger than extension cords.”  She indicated that she did not know whether they were connected to anything, she said she did not see them before she fell, and she had not previously walked in the area of the incident.  Plaintiff was unable to find any witnesses to her fall.

Defendant filed a motion for summary judgment, asserting (1) no evidence of a dangerous condition caused by defendant existed, (2) any alleged dangerous condition was open and obvious, (3) the defendant did not owe the plaintiff a duty because it had no actual or constructive notice of the alleged condition, and (4) plaintiff’s claims were barred by primary assumption of risk.  The trial court granted defendant’s motion, finding that plaintiff “failed to establish a prima facie case of negligence because no evidence was presented that any cords ran over the blacktop” in the area of the incident.  Plaintiff appealed.

(more…)