Author Archive

If You’re Asked, Put On Your Mask

June 28, 2011

Inherent Risks in Baseball (California – Motion for Summary Judgment)
(Injury to catcher not wearing a mask during a bullpen session deemed to be an inherent risk of the sport of baseball.)

Paul Tetreault and Don Ornelas of the law firm of Agajanian, McFall, Weiss, Tetreault & Crist LLP in Los Angeles recently obtained summary judgment on behalf of several clients in the Rancho Cucamonga District of the San Bernardino County Superior Court.  Plaintiff was injured while practicing with his baseball club team, the Chino Dirt Dawgs, when a baseball struck him in the mouth while he was catching during a bullpen session.  Evans was not wearing a catcher’s mask at the time.  He asserted a claim for general negligence against the Dirt Dawgs, and two of its coaches, Brent Billingsley and Kyle Billingsley.

The defendants filed for summary judgment based upon primary assumption of the risk, asserting that plaintiff’s injury was the result of an inherent risk in the sport of baseball and that there was no evidence that they had done anything to “increase the risks” inherent in the sport.  The trial court agreed, and granted the motion, despite plaintiff’s claim that the coaches’ failure to force plaintiff to wear the mask during the bullpen session “increased the risks.”  The court ruled that getting struck in the mouth with a baseball is a risk that is always inherent in the sport of baseball, and plaintiff’s failure to wear a mask at the time of injury did not establish a triable issue of fact as to whether the defendants increased the risks inherent in the sport.

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Assumption of the Risk Does Not Apply to Amusement Park Rides

June 28, 2011

Nalwa v. Cedar Fair(California)
(The doctrine of primary, implied assumption of the risk could not be applied to bar plaintiff’s claim for negligence against an amusement park operator.)

In this case, plaintiff Nalwa took her children to Great American Amusement Park in Santa Clara, California for a day of fun.  While there, the family decided to ride the “Rue Le Dodge” bumper car attraction.  Plaintiff’s hand was fractured as the result of a head-on collision with another bumper car.  Plaintiff asserted claims for negligence, common carrier liability and willful misconduct against Cedar Fair, the operator of Great America.

Cedar Fair filed a motion for summary judgment.  As to the negligence claim, Cedar Fair asserted that it was barred by the doctrine of primary assumption of the risk, claiming that plaintiff’s injuries arose from bumping, a risk inherent in the “activity” of riding bumper cars.  The trial court granted the motion, and plaintiff appealed.

In reversing the trial court’s ruling, the Court of Appeal ruled that primary assumption of the risk did not apply to the case because bumper car riding was not an “activity” or “sport” according to established case-law definitions.  The Court also held that public policy considerations precluded the application of primary assumption of the risk because amusement park operators had traditionally been held to a “higher standard of care” normally reserved for so-called “common carriers”, which are parties hired to transport passengers.

The Court also found the fact the Cedar Fair had taken steps to make similar rides at its other facilities safer compelling.  The record reflected that Cedar Fair had installed “islands” to prevent head-on collisions at some of its other bumper car rides throughout the country.  The Court felt that the company should have taken similar steps at Great America to “minimize the risks” inherent in the ride.

NOTE: The published decision contains an extensive dissenting opinion making a compelling argument for the application of primary assumption of the risk in this case. The dissent cites to extensive legal authority establishing that participation in bumper car rides could be characterized as an “activity”. The dissent also emphasizes the fact that requiring the park operator to install islands in the ride is tantamount to compelling the operator to “decrease the risks” inherent in the activity, which California case-law clearly does not require.

Rubbin’ Is Not Racin’

May 4, 2011

Pit Area Intentional Misconduct (Nebraska)
(Race car driver who intentionally drove into another participant in a restricted area receives criminal sentence.)

Short track race car driver Cory Dumpert was recently sentenced to 18 months probation by a judge in Cass County, Nebraska in connection with an incident that occurred at I-80 Speedway in Greenwood, Nebraska in June of 2010.  Dumpert intentionally sped through the infield pit area and slammed into the car driven by fellow racer Chad Sanders, who received minor injuries.  Dumpert was suspended for a year and fined $500 by the track.  Criminal charges were filed against Dumpert and he was ultimately sentenced on charges of third-degree assault and criminal mischief.

NOTE: It will be interesting to see if Sanders brings a civil action against Dumpert and/or the track. Waiver and release documents are enforceable in Nebraska and the track also potentially could be expected to assert that as a defense to any civil action brought by Sanders. One might expect an argument to be made, however, that being injured as a result of Dumpert’s intentional assault is not an incident that is reasonably related to the claimant’s auto racing activities at the track.

Experienced Sky Diver Killed in Mid-Air Collision

May 4, 2011

Los Angeles Times (California)

Two men were killed as the result of a mid-air collision while sky diving in Perris, California on March 31.  The collision apparently rendered the men unable to deploy their parachutes and they both fell to their deaths.  One of the decedents is a veteran sky diver with over 17,000 jumps to his name.

Should this case proceed to litigation, it would appear to be ripe for the application of the defense of primary assumption of the risk, especially as to the instructor, whom had extensive sky diving experience and undoubtedly voluntarily assumed the risks inherent in sky diving, the most obvious of which is injury or death due to this sort of incident.

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Michigan Has a Major Minor’s Problem

July 16, 2010

The Supreme Court of Michigan recently confirmed that waiver and release documents signed by parents on behalf of their children are unenforceable in that state.  In Woodman v. Kera (2010) 2010 WL 2471902, a five year old boy was injured during his birthday party, which was being held at an indoor facility containing inflatable play equipment.  Prior to his injury, the boy’s father signed a liability waiver on his son’s behalf.  After the trial court level enforced the waiver as to some of the plaintiffs’ claims, the Court of Appeal reversed, holding that the waiver and release document could not be enforced pursuant to longstanding Michigan common law, which does not allow parents to waive or release prospective claims on behalf of their children.  The Supreme Court affirmed the appellate court’s ruling on similar grounds.

Of note is the lengthy “dissenting” opinion submitted by Justice Stephen Markman.  Justice Markman concurred with the majority opinion and took the position that the waiver should not be enforced under the circumstances, but only because he believed that the language of the waiver was deficient.  Justice Markman opined that Michigan’s common law did not preclude the Supreme Court from enforcing the waiver.  In fact, it appears that if Justice Markman had authored the majority opinion, the waiver would have been enforced.

Note:   This decision is significant in that it confirms that minor’s waiver documents cannot be enforced in Michigan.