Archive for the ‘Assumption of Risk Statute’ Category

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.'”

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Snowmobile Wins Again – Claims of Injured Ski Racer Survive Motion Based on Waiver and Assumption of Risk Statutes (CO)

October 29, 2015

Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp. (Colorado)
(trial court disposition)

Plaintiff was a member of the Sarasota, Florida Ski Team.  She traveled to the Steamboat Springs Ski Resort in Colorado to participate in ski races.  After finishing her second race and exiting the race course, plaintiff skied down a trail and headed toward the ski lift.  She attempted to ski past the lift to a picnic area to meet up with other racers.  However, she collided with a snowmobile that was parked near the lift.  Plaintiff sued the ski resort alleging (1) common law negligence in parking the snowmobile in a dangerous, high-traffic area, and (2) negligence per se under the Colorado Ski Safety Act (“SSA”) by failing to mark and pad the snowmobile.

The defendant moved for summary judgment, arguing (1) that the exculpatory clause contained in the race participation agreement signed by the plaintiff prior to her participation barred the plaintiff’s claims, (2) the common law negligence claim was barred by the SSA (“no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing”), and (3) the negligence per se claim failed because the SSA does not apply under the circumstances (i.e., with regard to a parked snowmobile).

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Let It Snow – Triable Issue Existed as to Whether Nine Year Old That Collided with Snowmaking Machine Assumed the Risk (PA)

August 19, 2015

MD ex rel Mora-Dillon v. Ski Shawnee (Pennsylvania)
(trial court disposition)

Plaintiff was a nine year old girl that participated in a ski trip with her elementary school as a novice skier with no skiing experience other than three lessons.  As she was skiing down one of the slopes, she collided with a snowmaking machine, suffering several bone fractures and other injuries.  Plaintiff filed a negligence lawsuit against the ski resort, contending that the resort failed to adequately place padding on the metal components of the snowmaking machine.  The ski resort filed a motion for summary judgment, asserting that it had no duty to protect plaintiff from the inherent risks associated with downhill skiing.  Defendant argued that even though plaintiff had no knowledge of the risk presented, the plaintiff implicitly assumed the risk of colliding with snowmaking equipment, negating any duty it had to plaintiff. (more…)

Iced Out – Claim by Skier Who Lost Control Due to Icy Conditions Barred (PA)

June 22, 2015

Smith-Wille v. Ski Shawnee, Inc. (Pennsylvania)
(trial court disposition)

Plaintiff was skiing at the defendant’s ski resort when she encountered icy conditions, causing her to lose control and run into unpadded PVC piping holding a vinyl fence on the ski slope.  Plaintiff suffered personal injury and filed an action against the resort, claiming that there should have been a warning as to the icy conditions.   The defendant filed a motion for summary judgment, arguing that the accident was the result of the inherent risk of skiing.  In opposition to the motion, plaintiff asserted that there were no warnings of the slope conditions that would have allowed her to decide whether or not to proceed in skiing (i.e., she could not assume a risk of which she was not aware).  Plaintiff stated that “her conduct in skiing down the hill in the icy conditions was not voluntary, and that she could not have assumed the risk of any dangerous conditions on the slopes once there was no way to avoid those conditions, namely the ice.”  Plaintiff further contended that she was not adequately warned or the pole or the fencing that she ran into during the incident.

The Court of Common Pleas of Pennsylvania referred to the Pennsylvania Skiers Responsibility Act (“Act”), which was part of Pennsylvania’s comparative negligence statute.  In the Act, the Pennsylvania General Assembly recognized that there were “inherent” risks in the sport of downhill skiing, although those risks were not defined.  The Court concluded that “ice and icy conditions are part of the ‘inherent risks’ envisioned by the General Assembly.”  As such, the defendant did not owe the plaintiff a duty to protect the plaintiff from those conditions.  The Court also pointed out that “from a practical standpoint . . . it would be virtually impossible for a ski area to warn of icy conditions wherever and wherever they may exist.”  Finally, the Court stated that the defendant did not owe a duty to provide plaintiff with an alternate route down the slope.

The Court granted the motion for summary judgment and entered judgment in favor of the defendant.

Short Ride – Minor Child Falls From Horse During Birth Party; Statutory Immunity Applies (AL)

June 19, 2015

Estes v. Stepping Stone Farm, LLC (Alabama)

A four year old child attended a birthday party that included equestrian activities.  She fell from a horse during the party and was injured.  Her father filed a lawsuit against the equine center, the center’s owner, and the center’s employees, alleging claims of negligence, wantonness, and negligent failure to train or supervise.  The defendants filed a motion for summary judgment citing the Alabama Equine Activities Liability Protection Act (“Act”), which limits the civil liability of those involved with equine activities as it pertains to risks inherent in the activities.  The trial court granted the motion, and the plaintiff appealed.
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Deeply Depressed – Experienced Skier Claim Relating to “Depressions” in Snow Survives Court Motion (NY)

May 26, 2015

Paulus v. Holimont, Inc. (New York)

The sixty-right year old plaintiff was a self-described “accomplished” skier, who had been skiing since the age of 5.  Plaintiff had participated in various ski races throughout the years, and he had skied on different mountains throughout the world involving varying terrain, including ice and moguls.  Plaintiff drove from his home in Ohio to the defendant’s ski area in New York.  It was his second visit to the defendant’s resort.  On his first run of the day, plaintiff was coming down a trail at the facility called “Corkscrew” (a trail rated “more difficult” with a blue square), when he encountered difficult terrain and crashed, suffering injuries.  Plaintiff used racing skis and boots, and he admitted that he liked to ski fast.  He estimated that he was traveling twenty miles an hour at the time of the incident.  Plaintiff acknowledged that a “blaze orange caution sign was placed directly at the top of the portion of the Corkscrew trail where [he] was injured.”  However, the plaintiff testified that he did not believe he had observed the sign as he cut over to the Corkscrew trail from another trail (i.e., plaintiff believed he skied onto the Corkscrew trail below the caution sign).

Plaintiff (and his wife) sued the defendant for negligence, and the defendant filed a motion for summary judgment, asserting that plaintiff’s claim should be barred by primary assumption of risk.  The trial court acknowledged that in New York “[d]ownhill skier ‘assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and manmade objects that are incidental to the provision or maintenance of a ski facility.'”  The doctrine is recognized in New York’s Safety in Skiing Code.  Additionally, “variations in terrain, including moguls, are recognized risks that are inherent in the sport of downhill skiing.”

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Jump? What Jump?

November 15, 2012

Anderson v. Boyne (Michigan)(Not Published)
(A snowboarder was paralyzed in an accident involving a jump in the defendant’s terrain park.  He sued, alleging negligence on the part of the defendant, including with regard to the design of the subject jump.  However, the court held that the jump was open and obvious, and that the Michigan statute addressing ski operator liability protected the defendant under the circumstances.)

At the trial court level, the defendant filed a motion for summary judgment, which was granted on the grounds that the plaintiff’s claim was barred “because the jump was an inherent, obvious, and necessary danger of snowboarding.”  The plaintiff appealed.

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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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Rough Terrain

July 20, 2012

Malaguit v. Ski Sundown, Inc. (Connecticut)
(A skier was rendered a quadriplegic during a fall in the ski area’s “terrain park”; the Court affirmed a general jury verdict in favor of the defendant ski area.)

The plaintiff was 15 years old at the time of the incident.  He attempted to ski over a snow jump in the ski area’s “terrain park” but fell, landing in a way that severely injured his spine.  Plaintiff filed a complaint against the ski area, claiming that it had been negligent in the building and maintenance of the snow jump.  Pursuant to Connecticut’s ski area statute, the defendant argued that the plaintiff had assumed the risk of injury and that the statute was a complete bar to plaintiff’s recovery.  According to the statute, ski areas are not liable for any injuries caused by terrain variations that are the result of “snow grooming.”  The defendant argued that the snow jump had been created as part of a process of snow grooming, such that plaintiff assumed the risks and that his injuries were caused by his own negligence.  The plaintiff countered by claiming that the snow jump was not a hazard inherent in the sport of skiing, unsuccessfully arguing that the jury should not be given instruction relating to the Connecticut skiing statute.  Thereafter, a jury returned a verdict for the defendant, and the plaintiff filed a motion to set it aside.  The motion was denied and the plaintiff appealed.

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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.