Archive for the ‘Assumption of Risk’ Category

Capped and Dismissed – Arbitration Provision with Damages Cap in Zip-Line Waiver and Release Enforced (VT)

September 30, 2015

Littlejohn v. Timberquest Park at Magic, LLC (Vermont)
(trial court disposition)

The seventy-six year old plaintiff was severely injured while participating in an adventure zip-line course in Vermont.  Plaintiff had never participated in an adventure course before.  Despite having received instruction from the zip-line facility, the plaintiff mistakenly attached his equipment to a guy wire, thinking it was a zip-line cable.  While descending, he ran into a tree that anchored the other end of the guy wire.  He sued the zip-line facility alleging that it negligently designed, constructed, and operated the course.

Plaintiff’s friend had purchased their tickets for the adventure course online through the facility’s website.  Plaintiff arrived at the facility, and they were presented with a “Release of Liability, Waiver of Claims, Indemnification, and Arbitration Agreement” to sign.  Plaintiff contended that the website had not warned them that they would be required to sign a liability waiver in order to participate in the activities.  The agreement was presented in digital format on an electronic device, and plaintiff was instructed to read and sign it electronically.  The agreement specifically included a provision pursuant to which the plaintiff agreed to submit any claims in excess of $75,000 to binding arbitration.  Alternatively, if plaintiff filed a lawsuit in court, the agreement provided that plaintiff agreed that his damages would be capped at $75,000.  The agreement further attempted to require the arbitration panel or court (as applicable) to decide the enforceability of the agreement as a “threshold matter.”

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(Un)Safe! – High School Softball Playing Injured During Sliding Drill; Triable Issues Regarding Increased Risks (NY)

August 31, 2015

Brown v. Roosevelt Union Free School District (New York)

A high school senior softball player was injured while participating in an infield sliding drill during softball practice on an elementary school field.  The team was practicing on the elementary school field because the high school field was being renovated.  The injured player’s mother filed a lawsuit on her behalf alleging that the coach increased the inherent risks of the softball by having her perform an infield sliding drill on a grass field.  The defendant school filed a motion for summary judgment, arguing that the claim was barred by the doctrine of primary assumption of risk.  Defendant asserted that under the law, the risks of an activity include risks associated with the construction of the playing surface and any open and obvious condition on it.  The trial court denied the defendant’s motion, and the defendant appealed.

The Appellate Division of the Supreme Court affirmed the trial court decision.  The Court concluded that “the defendants failed to establish, prima facie, that the infant’s coach, by having her perform an infield sliding drill on the subject grass field, did not unreasonably increase the inherent risks of the activity.”  In that the defendant failed to meet its burden, the Court said it did not need to determine the sufficiency of the plaintiff’s opposition papers.

A Racing Incident – Claims of Go Kart Driver Injured by Driver with Down Syndrome to be Decided by a Jury (NY)

August 20, 2015

Corneli v. Adventure Racing Co., LLC (New York)
(trial court disposition)

Plaintiff participated as driver in go kart activities at the defendant’s racing entertainment facility, and he was injured when his go kart was struck by the go kart operated by defendant C.S., a seventeen-year-old who suffered from Down’s Syndrome.  Plaintiff filed a lawsuit against the facility, alleging that the facility was negligent in the ownership, operation, management, maintenance supervision, staff training and control of the go kart ride and in the supervision and control of C.S.  The lawsuit was also filed against C.S. for negligently operating and driving the go kart, and C.S.’s alleged mother and father for negligent entrustment and allowing C.S. to negligently operate the go kart in a dangerous manner.

The defendant go kart facility filed a motion for summary judgment based on the doctrine of assumption of risk.  C.S.’s alleged mother and father filed cross-claims against the facility, and the mother and father filed a motion for summary judgment, claiming that they were not responsible for C.S.’s conduct.  Plaintiff then filed his own motion for summary judgment.  The New York U.S. District Court addressed each motion in turn.
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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…)

All Wet – Airport Not Liable for Failed “Soft-Field Take Off” (NY)

August 5, 2015

Bouck v. Skaneateles Aerodrome, LLC (New York)

This matter involved an unsuccessful attempt by a private plane to take off from a grass-surfaced runway at the defendant’s airport.  Plaintiff suffered personal injury when his plane encountered a soft and wet area on the runway, causing the plane to dig in and tip over.  Plaintiff was a flight instructor with 40 years of experience and he had utilized the defendant’s runway for more than 100 take offs and landings.  Although it had not rained on the day of the incident, it had rained for several days prior.  Before attempting to take off, plaintiff inspected the runway because he was concerned that the surface was soft and wet.  The trial court denied the defendant’s motion for summary judgment, and the defendant appealed.

On appeal, the Appellate Division of the Supreme Court reversed the decision.  The Court indicated that it agreed with defendant “that its airport is a designated venue for the recreational activity of private aviation and that plaintiff’s use thereof was in furtherance of his pursuit of that activity.”  The Court noted that “plaintiff’s recreational use of defendant’s airport was a qualifying activity under the doctrine of primary assumption of the risk” and that the “primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions.”  It was not necessary for the plaintiff to have foreseen the exact manner in which his injury occurred, so long as he was aware of the potential for injury or the mechanism from which injury resulted.

Bad Aim – Checking Out a Friend’s Firearm in Your Garage is Not a Recreational Activity (OH)

July 28, 2015

Lovegrove v. Stapleton (Ohio)

The plaintiff and the defendant were both experienced gunman who shared a common interest in competitive shooting.  Plaintiff and defendant participated together in a Tuesday night shooting league, and they would sometimes go to shooting ranges together on weekends.  In the summer of 2012, plaintiff drove to the defendant’s home to have the defendant notarize some paperwork for him.  Plaintiff brought his new gun with him, knowing that defendant would likely want to check out it out, which, as the evidence established, is something that happens often in the culture of the competitive shooting community.

Before entering defendant’s garage, plaintiff removed the magazine from the gun.  In the garage, he removed the gun from the holster on his waistband, checked the chamber, and set the gun on a workbench.  Defendant notarized plaintiff’s paperwork and then checked out the gun “dry-firing” it multiple times.  Defendant’s children came into the garage a couple of time, but were sent back into the house for their own safety.

Defendant stepped into the house to check on his wife, who was in the backyard.  Plaintiff picked up his paperwork and his gun, and he put the magazine back in the gun.  Since no round was chambered, he could not put on the gun’s safety.  Plaintiff turned around and saw defendant’s children standing in front of him wanting to show him a trophy.  Defendant placed the gun back on the workbench and told the children he would put his things back in his truck and then come inside.  Plaintiff ushered the children back into the house and closed the door.  As plaintiff was turning around he heard the gun go off.  The defendant had returned, picked up the gun from the workbench, and fired the gun.  The bullet hit the workbench and ricocheted, hitting plaintiff in the abdomen.

A year later, plaintiff filed a lawsuit against the defendant alleging that the defendant acted negligently and recklessly in shooting the gun.  The defendant filed a motion for summary judgment, claiming that plaintiff was engaged in a recreational activity and that primary assumption of risk precluded plaintiff’s negligence claim.  Defendant also contended that he had not acted recklessly.  The trial court granted defendant’s motion, and plaintiff appealed.
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Tragedy at the Beach – State Not Liable for Youth Killed by Collapsed Sand (CA)

July 27, 2015

Buchanan v. California Department of Parks and Recreation (California)
(unpublished opinion)

A seventeen year old boy and his brother participated in a church youth group outing to Sunset State Beach in California.  During the outing, the boy and another member of the church group “created an unnatural condition that was not common to nature and would not naturally occur in that location, in that they were engaged in digging large holes in the sand in a picnic area being used by the church group, which was located within the park boundaries, separated from the beach by sand dunes, but within sight of a nearby elevated life guard station.”  The sand collapsed, burying and killing the boy.  A lawsuit was filed by the boy’s family, with the amended complaint alleging two causes of action.  First, the plaintiffs alleged that the California Department of Parks and Recreation (“DPR”) employees observed (or should have observed) the digging activities and they had a duty to warn the boy and the group of the known risks.  Second, the boy’s brother alleged a claim for negligent infliction of emotional distress as a bystander that witnessed the incident.

The DPR filed a demurrer to the amended complaint, asserting that the complaint failed to show that it owed a duty to the plaintiff and that statutory government immunity applied.  The trial court sustained the demurrer without leave to amend based on the Hazardous Recreational Activity immunity found in Government Code Section 831.7, and it entered a judgment of dismissal in favor of the defendant.  Plaintiffs appealed. (more…)

Feel the Burn – “Boot Camp” Participant Injury Claim Barred (NY)

July 24, 2015

Alonge v. Town Sports International Holdings, Inc. (New York)

The plaintiff participated in a “boot camp” exercise program for approximately a year.  During one of the group exercise programs, another participant ran into her, causing her personal injury.  Plaintiff sued that defendant operator of the camp, alleging negligence.  The defendant filed a motion for summary judgment based on primary assumption if risk.  The trial court granted the defendant’s motion and the plaintiff appealed.

On appeal, the Appellate Division of the Supreme Court affirmed the decision, finding that the plaintiff had observed “the open and obvious risk of running into participants in the class during drill exercises, and after fully appreciating the risk of colliding with other participants, plaintiff nonetheless elected to participate in the activity, thereby assuming the risk that resulted in her injuries.”

Low Marks from the U.S.A. Judge – Claims of Fallen Ice Skater Denied (DE)

July 20, 2015

Paveza v. The Pond, Inc. (Delaware)

Plaintiff and her daughter were participating an “open skate” at the ice skating rink operated by the defendant.  Plaintiff alleged that she slipped and fell on debris while she was skating.  In her lawsuit, plaintiff claimed that the defendants negligently failed to remove the debris which caused her to fall and failed to warn her about the debris.  The defendant filed a motion for summary judgment contending that it did not owe plaintiff a duty to protect her from the alleged condition that caused the incident.

Plaintiff’s daughter testified that she saw a rubber band on the ice just before and just after her mother fell, but she further indicated that the band was picked up by someone after the incident.  It was undisputed that the ice had last been resurfaced the night before the incident, and the testimony established that skaters had been on the ice for as long as an hour on the day of the incident prior to plaintiff’s fall.  Plaintiff argued that the defendant failed to conduct an inspection of the ice during the hour leading up to the incident, such that a jury could conclude that the defendant should have known of the presence of the band on the ice.  However, the trial court disagreed:

“The undisputed testimony and evidence permits only one conclusion, that the ‘band’ was only on the ice for moments before the fall, having been dropped by the couple just prior to the incident, and being immediately retrieved by them after the incident.  There is no evidence of record which supports that Defendant knew or should have known of the presence of the band in the short interval between when Plaintiff claims it was dropped and when Plaintiff fell.  Plaintiff does not claim that Defendant is strictly liable for her injuries.  To establish negligence, Plaintiff has to show that Defendant had notice or should have had notice of debris on the ice.  The testimony of the persons present, Plaintiff, her daughter . . . , and the witness . . . cannot support a legal finding that Defendant had notice or should have had notice that there was debris on the ice.”

The trial court also concluded that “[p]rimary assumption of the risk generally applies to participants in sporting events,” and that “[p]laintiff assumed the risk that she might fall.”

Crying Foul – Federal Litigation in California Seeks to Change Baseball’s “Limited Duty Rule” (CA)

July 15, 2015

Crying Foul – Federal Litigation in California Seeks to Change Baseball’s “Limited Duty Rule” (ESPN.com Article)

The sport of baseball has long felt the benefit of the “limited duty rule.”  The rule protects baseball teams and stadium operators from liability to spectators for injuries caused by balls and bats that fly into the seats.  The rule generally requires the team or stadium operator to provide a sufficient number of protected seats for those spectators who want them, and to provide protection for all spectators located in the most dangerous parts of the stadium, notably the areas that pose the highest risk of injury from fouls balls, such as the seating directly behind home plate.

There have been numerous challenges to the rule over the years, and now we have a new one in California.  As described in the ESPN.com article here, an Oakland Athletics season-ticket holder has filed a federal court action seeking class-action status on behalf of all fans buying season tickets in unprotected areas of the ballpark.  The goal appears to be the installation of safety netting from foul pole to foul pole.