Archive for the ‘California’ Category

Down the Stretch He Comes – Trainer Not Liable to Boarder for Unleashed Dog that Injured Boarder (CA)

May 1, 2015

Plumer v. Rigdon (California)
(not published)

Plaintiff boarded her horse at Arroyo Del Mar Stables, and the defendant was a horse trainer at the stable.  Plaintiff was injured when the defendant’s dog ran into the barn, ran down the barn aisle, and then collided with plaintiff as it ran by, causing plaintiff to suffer a leg injury.  Plaintiff filed a lawsuit against the defendant, alleging a single cause of action for negligence.  Defendant moved for summary judgment arguing “(1) no legal duty existed to prevent the injury caused by [defendant’s] dog; and (2) the presence of dogs was a condition known to [plaintiff] and a risk she assumed explicitly in a release agreement with the Stables and implicitly by her presence at the Stables.”  The trial court granted the defendant’s motion, finding that defendant owed not duty of care to plaintiff.  Plaintiff filed a motion for reconsideration with the trial court citing San Diego County Code Ordinances and arguing that defendant “had a prima facie claim that [defendant’s] conduct in allowing the dog to run free violated the Ordinances.”  The trial court concluded it lacked jurisdiction to rule on the motion because it had already entered judgment.  Plaintiff then appealed the decision.


Quite a Show – Concussed Cheerleader Barred From Making Claim RE Failed High School Cheer Stunt (CA)

April 30, 2015

Baggay v. Linfield Christian School (California)
(not published)

A high school cheerleader suffered a concussion while performing a stunt during practice.  She filed a lawsuit against the school, asserting causes of action for (1) “negligence/recklessness,” (2) “false promise,” and (3) negligent misrepresentation.  The school filed a motion for summary judgment, or in the alternative summary adjudication, on the grounds that the claims were barred by the primary assumption of risk doctrine and that the plaintiff could not establish the essential elements of her false promise (promissory fraud) and misrepresentation claims.  The trial court granted the school’s motion, and the cheerleader appealed.

On appeal, the cheerleader argued that her claims were not barred by primary assumption of the risk “because a concussion is not an inherent risk of cheerleading,”  The Court of Appeals for California disagreed, stating that “‘[i]nherent risk’ does not refer to the type of injury that the plaintiff sustains or the manner in which the injury occurred, but rather the reason for the injury.” (Emphasis in the original.)  The Court continued, “An inherent risk is one that, if eliminated, would fundamentally alter the nature of the sport or deter vigorous participation.”  The plaintiff was injured because the group of cheerleaders failed to properly execute a stunt they had previously practiced and had previously successfully executed.  It is fundamental to the nature of modern cheerleading that teams will practice and perform stunts that involve the risk of injury.  Thus, “any type of injury that reasonably could be expected to result from such a fall is an inherent risk of modern cheerleading.” (Emphasis in the original.) (more…)

Legal Workout – Fitness Club Defends Negligence, Gross Negligence, Products Claims (CA)

March 23, 2015

24 hour fitness logoGrebing v. 24 Hour Fitness USA, Inc. (California)

In 2012, a member of a 24 Hour Fitness facility in La Mirada, California was injured while using a “low row” machine during a workout.  The clip holding the weight on the machine failed, causing the machine’s handlebar to strike the plaintiff in the forehead and allegedly causinghead, back, and neck injuries.  Plaintiff filed a complaint against the fitness facility for (1) negligence, (2) negligent products liability, (3) strict products liability, and (4) breach of implied warranty of merchantability.

Coach of Youth Equestrian Rider Escapes Liability in Wrongful Death Case (CA)

March 11, 2015

Eriksson v. Nunnink (California)

In 2006, a 17-year old girl was killed while riding a horse in competition in California.  The parents of the decedent sued for wrongful death and negligent infliction of emotional distress, alleging that the horse was “unfit to ride because of prior falls and lack of practice.”  After the plaintiffs presented evidence at trial, the trial court granted defendant’s motion for entry of judgment, which the plaintiffs appealed.  The Court of Appeal held that the minor waiver and release agreement signed by the decedent and her mother prior to decedent’s participation in the competition was enforceable as a liability defense to the wrongful death claim.  Although a minor can “disaffirm” a written contract, the terms of the waiver and release agreement became “irrevocable and binding” under California caselaw when the agreement was signed by the minor’s parent. (more…)

Encore – Triable Issues Regarding Fall From Concert Stage (CA)

March 11, 2015

Fazio v. Fairbanks (California)

In 2010, a musician fell off a stage and was injured while performing at a country club in San Diego, California.  He asserted a negligence against the country club, which filed a motion for summary judgment based on primary assumption of the risk (i.e., falling off a stage was an inherent risk for stage performers such that the club did not have a duty to protect the musician from that risk).  The trial court granted the club’s motion, and the musician appealed.  On appeal, the Court of Appeal confirmed that falling off a stage was an inherent risk for stage performers, but it reversed the trial court ruling, finding that a triable issue of material fact existed as to whether the condition of the stage (which included “significant gaps” along the sides due to its configuration) increased the risks and “posed a substantial risk of injury to the foreseeable user exercising due care.”

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.

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.

No More Bling

May 12, 2011

Guivi v. Spectrum Club (California – UNPUBLISHED)
(A health club member had jewelry allegedly stolen from a locker while she was receiving a message; the court found that the membership application with waiver and release and assumption of the risk language precluded her claim for negligence; no evidence of gross negligence was established.)

The plaintiff had valuable jewelry stolen from her gym locker while she was getting a message. She sued the health club for negligence in providing facilities and for negligently training staff for the security of her property. The health club moved for summary judgment based on the membership application agreement with waiver and release language that the plaintiff signed with the health club. The application also specifically included language warning the plaintiff about loss or theft of her property, and expressly stated that the health club was not responsible for lost or stolen articles. According to the agreement, the lockers were offered to the member without any representation that they will be effective in protecting valuables. The trial court granted the defendant’s motion, and the plaintiff appealed.

On appeal, the Court ruled that the membership agreement unambiguously released the facility from its negligence and was not contrary to public policy. The Court did not accept plaintiff’s argument that agreements involving health clubs are matters of public interest. Further, the court noted that there was no alleged violation of law. Additionally, the Court did not accept the plaintiff’s argument that there was the potential for gross negligence or that the health club failed to deal with a known theft problem. No evidence had been presented in that regard.

NOTE: The ruling in this case is consistent with California law which provides that broad releases of liability will be enforced in this context, including with regard to ordinary premises liability claims as opposed to injury or damage that occurs directly as the result of participation in hazardous recreational activities. Had there been an obvious track record of items being stolen from members or a repeated pattern of a complete lack of security on the part of the health club, this case may have proceeded to trial on the factual issue of whether the facility engaged in grossly negligent conduct.

Pipe Dream for Expert in Motocross Case

May 12, 2011

McCassy v. Superior Court (California – UNPUBLISHED)
(Minor motocross rider injured during practice ride; with the rider unable to recall the incident, her expert speculates that irrigation piping near the track caused her to lose control; the court finds a lack of evidence to support the theory and grants defendant’s motion for summary judgment.)

A 17-year-old female motocross rider was at a motocross track practicing, and she was involved in an incident occurred in which she left the track and struck an embankment. The rider did not remember how the incident occurred, but alleged that she struck a portion of PVC pipe about 10 feet from the racing surface which was part of the track’s irrigation system, causing her to lose control of the motorcycle. She alleged premises liability, and her father and brother, both of whom were present, sued for infliction of emotional distress.

An expert for the plaintiffs asserted that the track increased the normal risk of injury by placing the PVC pipe close to the track and that if a rider lost control and left the track, there was a high probability of striking it. The trial court denied the defendant’s motion for summary judgment based upon primary assumption of the risk, noting that placement of the irrigation system so close to the track was not inherently required for the sport. The defendant petitioned for review, and the Court of Appeal granted the Petition.


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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