Archive for the ‘Assumption of Risk’ Category

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.”

Root of the Problem – Claims of Woman Injured on Segway Tour Barred by Exculpatory Agreement (CA)

November 9, 2015

Lamb v. San Francisco Electric Tour Company (California)
(not published)

The plaintiff and her husband went to Golden Gate Park with their son and took a guided tour of the park on individual Segway transporter vehicles.  The tour was operated by the defendant.  Plaintiff was injured on the tour and filed a lawsuit against the defendant, alleging vehicle negligence, general negligence, and common carrier negligence.  The defendant filed a motion for summary judgment based on the express waiver provisions of an agreement signed by the plaintiff, the express assumption of the risk provisions of that same agreement, and the primary assumption of the risk doctrine.  The trial court granted the motion, finding that the exculpatory agreement signed by the plaintiff was enforceable and contemplated the circumstances of the accident.  Plaintiff appealed.

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And She’s Off . . . Literally – Woman Falls From Treadmill; Unable to Prove Cause (NY)

November 6, 2015

Photo by Jennifer C. (no changes made)

Davis v. Town Sports International (New York)
(not published)

The plaintiff a a member of the defendant health club and she regularly used the treadmills at the facility.  One day she fell while attempting to get on a treadmill, injuring herself.  She filed a negligence lawsuit against the defendant, and the defendant filed a motion for summary judgment.  the New York Supreme Court granted the motion finding that the defendant had established by the evidence (including the plaintiff’s own deposition testimony) that the plaintiff was unable to identify the cause of her fall, and that she could only speculate as to the cause.  Plaintiff was unable to raise any triable issues in opposition to the motion.  The Court further noted that even if it accepted the plaintiff’s speculation that another member had failed to turn off the machine prior to plaintiff attempting to use it, the Court noted that such a claim would be barred by the doctrine of primary assumption of the risk.

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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Pass Interference – Woman Injured Chasing Frisbee Thrown From Stage; Claims Barred as a Matter of Law (MN)

November 2, 2015

Strelow v. Winona Steamboat Days Festival Association (Minnesota)
(not published)

Plaintiff attended a festival organized by the defendant.  During a break in the music, representatives from a local radio station went on stage and began throwing t-shirts and Frisbees from the stage.  The Frisbees had tickets to the local zoo attached to them.  Plaintiff gestured as if she wanted to catch a Frisbee and one of the people on stage threw one in her direction, but it veered off course.  Plaintiff took took four to six steps diagonally and slightly backwards with her arms in the air, trying to catch it.  However, plaintiff fell down, rolled against a curb, and fractured her shoulder.

Plaintiff and her husband filed a lawsuit against the defendant event organizer, alleging that defendant failed to maintain a safe area and failed to warn plaintiff of a hazardous condition on the premises.  Plaintiff contended that she fell as a result of tripping on electrical cords that were “black and rubbery” and “bigger than extension cords.”  She indicated that she did not know whether they were connected to anything, she said she did not see them before she fell, and she had not previously walked in the area of the incident.  Plaintiff was unable to find any witnesses to her fall.

Defendant filed a motion for summary judgment, asserting (1) no evidence of a dangerous condition caused by defendant existed, (2) any alleged dangerous condition was open and obvious, (3) the defendant did not owe the plaintiff a duty because it had no actual or constructive notice of the alleged condition, and (4) plaintiff’s claims were barred by primary assumption of risk.  The trial court granted defendant’s motion, finding that plaintiff “failed to establish a prima facie case of negligence because no evidence was presented that any cords ran over the blacktop” in the area of the incident.  Plaintiff appealed.

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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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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.

 

Ejected – Claim of Youth Group Employee Thrown from Golf Cart at Fundraising Event Barred by Assumption of Risk (NY)

October 23, 2015

Valverde v. Great Expectations, LLC (New York)

An employee of a youth group was injured during a fund raising event at a golf course.  The employee was being driven in a golf cart by a 17-year-old participant in the event.  The participant tried to make a sharp turn into a parking lot and the employee flew out of the cart.  The employee filed a lawsuit against the participant, and the participant filed a motion for summary judgment arguing that the employee’s claims were barred by the doctrine of assumption of risk.  The trial court denied the participant’s motion, and he appealed.

On appeal, the Appellate Division of the Supreme Court reversed the decision and entered judgment in favor of the participant.  The Court noted that in the context of a sporting or recreational event, not only do the participants consent to the risks inherent in the sport or event, but a “nonparticipant may also be subject to a defense based on the doctrine of assumed risk.”  The Court held that the employee knowingly and voluntarily rode in the gold cart during the golf tournament in which she was assigned to monitor one of the holes.  Even though the employee did not know the participant did not have a driver’s license, “she knew that he was a minor yet made no attempt to determine whether he had a license or whether he should be operating a golf cart.”  The Court further noted that it did not render the assumption of the risk doctrine inapplicable simply because the employee was not actively performing her duties of minoring the hole at the time of the incident.  The incident “occurred in a designated athletic or recreational venue.”

Finally, the employee argued that she was under an “inherent compulsion” to assume the risk, but the Court stated there was no evidence to support the claim.

 

No Sympathy – Claims of Injured Passenger in Go Kart Barred by Assumption of Risk; No Product Defect (NY)

October 22, 2015

Garnett v. Strike Holdings, LLC (New York)

The plaintiff rode as a passenger in a two-seat go kart driven by her then boyfriend.  While driving on the track, they were allegedly bumped twice by other go karts, allegedly causing the plaintiff to suffer injuries, including “reflex sympathy dystrophy.”  Plaintiff sued the operators of the indoor recreational facility, alleging negligent and defective design, strict products liability, failure to warn, and breach of warranty.

The defendants filed a motion to strike the products liability claim.  However, the trial court denied the motion finding (1) that [the operators] leasing and rental of the go-karts could support the inference that [the operators] had placed the go-karts within the distributive chain,” and (2) the operators’ “waiver form purporting to contain an “express assumption of risk, waiver indemnity and agreement not to sue” was void as against public policy and unenforceable by reason of” New York General Obligations Law Section 5-326.  The parties proceeded with discovery.

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Beyond Control – Woman Injured on Costa Rican Bicycle Tour; Claims Survive Motion to Dismiss (CO)

October 15, 2015

Steinfeld v. EmPG International, LLC (Colorado)
(trial court disposition)

A woman fell off her bicycle during a bicycle your vacation in Costa Rica.  She and her husband filed a lawsuit against the bicycle tour company.  The lawsuit was filed in Pennsylvania where the plaintiffs resided, but the Pennsylvania District Court held that is lacked personal jurisdiction over the defendant tour company that was based in Colorado.  The defendant filed a motion to dismiss based in large part on the assumption of risk and waiver of liability forms (“Releases”) signed by the plaintiffs prior to their participation in the tour.  However, the Colorado District Court applied Colorado law (as having the “most significant relationship” to claims), denied the motion, and allowed the case to proceed to discovery, finding that the Releases did not bar all of the plaintiffs claims.  The Court explained:

“A waiver implicitly or explicitly is grounded on warranties of fitness, and assumption of risk can only take place when the risk is inherent and clearly foreseeable.  The Complaint in this case abounds with allegations of misrepresentations and abandonment of good faith attempts to fulfill the obligations of the contract.”

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