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

by

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.'”

The roommate next argued that the decedent had assumed the risk of long boarding, citing to a Vermont statute (12 V.S.A. § 1307) that provides: “[n]otwithstanding the provisions of [Vermont’s comparative negligence statute], a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary.”  The roommate contended that the dangers of long boarding were obvious.  However, plaintiff had alleged that the roommate had failed to warn the decedent of a phenomenon called “speed wobble,” and the Court concluded that the issue of whether that phenomenon was readily obvious was a matter in dispute that warranted additional discovery.

In its motion, the skateboard shop argued that although it sponsored the roommate as a “product ambassador,” the roommate was not an agent of the shop.  The shop denied that it sold or otherwise provided the longboard used by the decedent, and it asserted that it did not solicit business in Vermont.  However, the estate highlighted the shop’s website, which included a “Vermont-specific blog,” and which included advertisements indicating its ability to conduct out-of-state deliveries.

The Court explained that absent “any plausible allegations of either an agency relationship or [the shop’s] provision of the longboard,” there was insufficient evidence to assert specific jurisdiction over the skateboard shop.  However, the Court further concluded that the estate should be given time to conduct discovery to determine whether there should be general jurisdiction over the shop.  General jurisdiction required “continuous and systematic” contacts with Vermont.

The shop was incorporated in New Hampshire and had its principal place of business in New Hampshire.  The shop did not engage in direct mail business with residents of Vermont and did not travel to Vermont or attend shows or events there.  Additionally, the shop did not advertise or sell products in Vermont.  The maintenance of a website viewable in a particular jurisdiction and the ability to accept orders by phone as a result of information placed on the website do not, by themselves, establish general jurisdiction.  However, the shop’s Vermont-specific blog created “the prospect of advertisements and other marketing efforts targeting [Vermont] directly.”  As such, “[t]he nature of the blog, its content, and its relationship to sales and marketing” were “important factors in the totality assessment of minimum contacts.”  The Court needed a more complete record to determine whether the contacts were sufficient.

 

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