Archive for January, 2016

Nothing to Make Light Of – Court Determines that Risk of Injury from Mislabeled, Heavy Box Assumed by Delivery Driver (CA)

January 13, 2016

Moore v. William Jessup University (California)

A UPS deliver driver was injured when he lifted a box that was shipped by the defendant university.  When it prepared the table for the box, the defendant inaccurately stated the weight of the box.  The driver filed a negligence action against the defendant, and the defendant filed a motion for summary judgment contending that the driver’s claim was barred by the primary assumption of risk doctrine.  The trial court granted the defendant’s motion, finding that the defendant did not owe the driver a duty of care with regard to the box, and the driver appealed the decision.

The California Court of Appeal affirmed the trial court decision.  The driver argued that the defendant increased the risk of injury by mislabeling the box.  However, the Court held that “the risk of injury from lifting heavy boxes that may be labeled with inaccurate weight information was inherent in [defendant’s] job as a UPS delivery driver.”  UPS did not require customers to weigh their packages before labeling them, and customers were sometimes inaccurate in the identification of their weight.  In California, “Courts have held that, as a matter of public policy, it is unfair to impose a duty on a defendant to prevent an injury to a plaintiff arising from the very condition or hazard the defendant retained the plaintiff to confront.”

Into the Void – Claims of Sixteen-Year-Old Skydiver Not Barred by Waiver and Release (OK)

January 4, 2016

Wethington v. Swainson (Oklahoma)

Accompanied by her parents, a sixteen-year-old girl went to the defendant to learn how to skydive.  As part of the registration process, the girl signed a “Registration Form and Medical Statement” that included a disclaimer near the bottom referring to the serious risks associated with skydiving.  The girl participated in an instruction course, which included fours hours of training.  In connection with the instruction course, the girl and her parents signed a detailed “Agreement, Release of Liability and Acknowledgement of Risk” form, which included numerous exculpatory provisions (the “Release”).  The Release also included a “Ratification by Parent/Guardian,” which was signed by both of the girl’s parents.  When she jumped from the plane, the girl’s parachute malfunctioned, causing her to spin rapidly toward the ground.  She landed at a high speed and impact, causing her to sustain serious injury.

The girl and her parents sued the defendant, and the defendant filed a motion for summary judgment, arguing that the Release barred the plaintiffs’ claims.  The U.S. District Court for the Western District of Oklahoma granted the motion in part and denied the motion in part.  Reviewing Oklahoma law and the terms of the Release, the Court concluded that “the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused by Defendant’s negligence, equipment failure, or inadequate instruction.”  However, the Court acknowledged that the minor had voided the Release due to her status as a minor, and the Court noted that “[u]nder Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent.”

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