Archive for the ‘Affirmative Defenses’ Category

Too Important – Court Denies Motion to Compel Deposition of “Apex” Executive of Defendant (CA)

October 27, 2015

Kormylo v. Forever Resorts, LLC (California)
(trial court disposition)

Plaintiff was injured while swimming at a Nevada Resort owned and operated by the defendant.  The cause of plaintiff’s injuries were disputed, but plaintiff alleged that he was struck by a chase boat operated by an employee of the defendant.  The boat in question was registered to the President and founder of the defendant, but he was not named as a defendant in the case.

Plaintiff sought to take the President’s deposition, arguing that his testimony was required to defeat the defendant’s twelfth affirmative defense under a Nevada maritime Limitation of Liability Act.  Plaintiff contended that the owner of a vessel who fails to adequately train its crew is not entitled to limit liability under the Act, and that the President’s deposition was needed to establish this lack of training and supervision of defendant’s employees.  Defendant refused to permit the deposition, and plaintiff filed a motion to compel.

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Not Amusing – Assumption of Risk, Contributory Negligence Not Applicable to Injured Two Year Old; Triable Issues RE Accident (MD)

October 26, 2015

McNeill v. Trimper’s Rides of Ocean City, Inc. (Maryland)
(trial court disposition)

A two-year-old boy went to an amusement park under the watch of his uncle.  He was on a ride for young children when the rider operator stopped the ride to remove another rider.  When the ride stopped, the boy apparently thought the ride was over and go out of his seat.  The ride operator then resumed the ride and the it struck the boy.  The boy’s father sued the amusement park, alleging that the ride operator negligently failed to insure that the boy was safely out of the way of danger before putting the ride back into motion.  The defendant filed an answer which included the affirmative defenses of assumption of the risk and contributory negligence.  Defendant also argued that the lawsuit was barred by the statute of limitations.

Plaintiff filed a motion for summary judgment, arguing that the defendants’ affirmative defenses of assumption of the risk and contributory negligence were inapplicable because the boy was only two years old.  Plaintiff further asserted that under Maryland law, any negligence on the part of the child could not be imputed to a parent or caretaker.  The defendant’s opposition to the motion conceded “that the affirmative defenses of statute of limitations, contributory negligence, and assumption of the risk do not apply on the present record.”  However, the District Court explained that the concession did not create a basis for an award of summary judgment in favor of plaintiff because it was not a res ipsa loquitor case and the plaintiff still needed to prove the elements of negligence.

Neither party had been able to locate and depose the operator of the ride at the time of the incident.  Additionally, the boy’s uncle was the only available eyewitness in the case, but his view of the accident was obstructed and he could not testify as to what exactly had happened.  The Court noted that the plaintiff may eventually prevail at trial, but that it could not, by way of a motion, resolve factual disputes as to how the incident occurred.   The Court also ruled that the lawsuit was not time-barred.

 

Up the Creek Without a Row Machine – Claim of Man Injured at Fitness Facility Barred by Membership Agreement (DE)

July 13, 2015

Ketler v. PFPA, LLC (Delaware)
(unpublished trial court disposition)

Plaintiff purchased a gym membership from Planet Fitness and agreed to the terms of the facility’s membership agreement.  Plaintiff thereafter sustained personal injuries at the defendant’s workout facility when a cable broke on a seated rowing machine that he was using.  He and his wife filed a lawsuit against Planet Fitness, alleging negligence, and Planet Fitness filed an answer asserting primary assumption of the risk as an affirmative defense based on the language of the membership agreement.  The defendant then filed a motion for a judgment on the pleadings.

The plaintiff did not dispute that he signed the membership agreement, but he argued that the agreement did not include a specific reference to the negligent wrongdoing alleged.  The court disagreed, noting that the agreement clearly provided that plaintiff could not hold the defendant liable for any injury even if the defendant’s own negligence caused the injury.  The court found the membership agreement to be “an unambiguous and express release.”

Plaintiff contended that he was entitled to factual discovery before the court cold resolve the issue.  However, the court stated that the language of the membership agreement was controlling and no further discovery was needed.  The court explained that “Delaware’s decisional law on contract interpretation permit the Court to give full force and effect to the Release.”

Can’t Catch a “Brake” – Woman Injured on Foreign Bicycle Tour Forced to Litigate Away from Home (PA)

April 20, 2015

Steinfeld v. EMPG International (Pennsylvania)

The Pennsylvania plaintiffs were injured during a trip to Costa Rica.  Prior to leaving for Costa Rica, the plaintiffs visited the website of defendant EMPG International, LLC (a Colorado limited liability company) and consummated an online transaction to rent bicycles and sign up for a bicycle tour while in Costa Rica.  The bicycle equipment was allegedly not in the condition originally promised by the defendant, and one of the plaintiffs was injured during the tour due to faulty brakes on the bicycle.  The plaintiffs filed a federal lawsuit in the U.S. District Court for the Eastern District of Pennsylvania, alleging negligence, negligent hiring and retention, vicarious liability, joint enterprise, agency, breach of contract, violation of the Pennsylvania Consumer Protection Law, fraud, negligent misrepresentation, and loss of consortium.

The defendant filed a motion to dismiss the action based on a lack of personal jurisdiction and a failure to state a claim under which relief could be granted.  Following a pretrial conference, the Court entered an order permitting the parties to conduct discovery regarding jurisdiction, and the court required the parties to submit a joint stipulation of facts with respect to jurisdiction so that it could rule on the defendant’s motion to dismiss.  After reviewing the evidence and stipulated facts, the Court found that the “plaintiffs’ cause of action did not arise out of or relate to the company’s contacts with Pennsylvania.”  However, because the defendant was subject to general personal jurisdiction in Colorado, the Court transferred the case to the U.S. District Court for the District of Colorado.

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Sea Sick

September 18, 2012

Wajnstat v. Oceania Cruises, Inc. (11th Circuit – Florida)
(A passenger on a cruise ship in the Black Sea became ill and sought medical attention from the ship’s doctor; he was evacuated from the ship and received numerous surgeries; he thereafter sued the cruise line alleging negligent hiring, retention, and supervision of the ship’s doctor; the court held granted the passenger’s motion for partial summary judgment at to the cruise line’s limitation-of-liability defense.)

A cruise ship passenger sued a cruise line for negligence in connection with the ship’s doctor.  The cruise line answered the complaint and raised the affirmative defense that its liability was limited by the Athens Convention (a multilateral treaty dealing with carriage of passengers and their luggage) as incorporated by reference into the limitation-of-liability provision in the passenger’s ticket contract.  The case ended up in federal court as a result of a forum-selection clause in the ticket contract.

The cruise line filed for partial summary judgment based on the limitation-of-liability affirmative defense.  The cruise line’s motion was denied, and the passenger’s cross motion fo partial summary judgment was granted.  The cruise line then filed an interlocutory appeal.

At issue at the trial court level was whether the “non-negotiated limitation-of-liability provision was enforceable.”  Applying the “reasonable communicativeness” test, the District Court held that “the provision was not reasonably communicative because it was confusing and because it required the passengers to parse through treaties and the statutes to determine the limit’s of [defendant’s] liability.”

On appeal, the Court of Appeals ruled that the pretrial order determining applicability of the limitation-of-liability provision was not immediately appealable.

NOTE: Although this case may be specific to its facts, one lesson to be learned is the impact of detailed and convoluted limitation-of-liability language in commercial transactions.  It is particularly difficult to enforce language that requires a special understanding or the incorporation of outside documentation and information.

And the Case Rides Off Into the Sunset

September 18, 2012

Eburn v. Capitol Peak Outfitters, Inc. (Colorado)
(An inexperienced rider was injured during a horseback ride and she sued the facility and equipment provider for negligence; the court found that the exculpatory agreement signed by the plaintiff precluded liability.)

Prior to her participation in a horseback ride, the plaintiff signed two documents, a “Participant Release of Liability and Assumption of Risk Agreement” and a “Protective Headgear Refusal.”  The release document addressed both the inherent risks associated with the activity and included a release of liability for the potential negligent conduct of the defendant.  The District Court denied the plaintiff’s motion for partial summary judgment and granted the defendant’s cross motion for partial summary judgment based on the exculpatory document.

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Shooting Blind

August 1, 2012

Blind Industries and Services of Md. v. Route 40 Paintball Park (Maryland)
(A legally blind individual was denied the chance to play paintball at the defendant’s facility, and the plaintiff advocate group filed a claim on his behalf alleging a violation of the Americans with Disabilities Act (“ADA”); the defendant failed to produce evidence regarding a prior personal injury civil suit and the plaintiff filed a motion to compel, which was denied.)

In its demand for production of documents as part of discovery in the litigation, the plaintiff advocate group requested “[a]ll Documents and Communications relating to complaints, grievances, citations, or claims made against the [defendant] by any person for . . . negligence of any type, or safety hazards of any type.”  After the defendant served its responses, the plaintiff noted that the defendant had failed to produce documents relating to a tort action it had discovered alleging unsafe conditions at the defendant’s paintball fields.  The defendant argued that the prior lawsuit was not relevant to the plaintiff’s ADA claim.

The District Court ruled that the defendant was required to only produce copies of any publicly filed documents pertaining to the prior lawsuit.  The Court explained that requiring the defendant to conduct an extensive review and production concerning prior cases “would violate the principles of proportionality.”  Although there is a relatively low standard of relevance required for discovery, the Court felt it was too much of a burden on the defense to produce more than what was part of the public record.  The defendant did contend the blind individual’s visual impairment “posed a safety concern,” but the connection of that allegation with prior claims of unsafe conditions was clearly limited.  The fact that the documents sought by the plaintiff also implicated the attorney-client privilege played a role in the Court’s decision.

As part of its motion to compel, the plaintiff also sought further responses from the defendant regarding the factual basis underlying the defendant’s affirmative defenses, asking that the affirmative defenses be stricken if additional information was not provided. However, the Court found the initial responses, “[t]aken in totality,” to be sufficient.

NOTE: This is certainly a positive decision from a defense perspective, considering the broad standard of “relevancy” in discovery.  Defendants are always concerned about a plaintiff’s ability to make their life unnecessarily difficult (and costly) via the discovery process.  It appears that a fair balance was reached in this instance.