Archive for the ‘Co-Participant’ Category

Reckless Abandon – Allegations of Recklessness and Punitive Damages Survive in Ski Collision Case (PA)

June 11, 2015

Doyle v. Dianna (Pennsylvania)
(trial court disposition)

The plaintiff was skiing with his son in a highly congested area of a ski resort when he was struck by the defendant who was “allegedly skiing abnormally fast, out-of-control, recklessly” and who became airborne such that he was unable to slow down, stop, or avoid the impact.  Plaintiff filed an against against the defendant skier alleging that he acted recklessly and should be liable for punitive damages.  The defendant moved to strike both the references to “recklessness” and the punitive damages claim from the complaint.

Reviewing the applicable standards under Pennsylvania law, the Court of Common Pleas of Pennsylvania denied the defendant’s motion.  The defendant had argued that the complaint lacked specificity to support an allegation of reckless conduct, but the court disagreed, noting that in Pennsylvania “recklessness is a condition of the mind that may be averred generally.”

With regard to the claim for punitive damages, the court stated that it “must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.”  The court then concluded that the plaintiff alleged facts that, if true, were sufficient justify punitive damages.  Plaintiff had alleged:

“Defendant knew he was skiing in an area that ‘is generally highly congested … with other skiers.’ [Citation omitted.]  The Plaintiffs further aver that the Defendant was (a) skiing at an abnormally high rate of speed, (b) jumping and/or becoming airborne ‘rendering himself completely out-of-control and unable to change his course of direction,’ and (c) that he knew that he would not be able to stop in an emergency situation due to the conditions of the area.”

Yard Sale – Skier Not Liable for Collision with Ski Instructor (CA)

May 7, 2015

Rees v. Crawford (Calfornia)

The plaintiff ski instructor filed a negligence lawsuit against a skier who collided with her.  The defendant filed a motion for summary judgment on the grounds that the plaintiff had voluntarily assumed the risk of being injured from a collision with another skier.  Defendant further asserted that her conduct was not reckless because it was “neither completely outside the range of ordinary activity involved in the sport, nor done with a deliberate disregard of the high degree of probability that an injury would result.”  The trial court agreed and granted the defendant’s motion.  Plaintiff appealed.

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A Racing Incident

September 28, 2012

Ketchum v. Mercer Raceway Park, LLC (Pennsylvania)(Not Published)
(A race team crew member was killed when a race car left the racing surface and struck a guard rail in front of the crew member; his estate sued the speedway for wrongful death.)

The incident occurred in 2007 during a race at the defendant’s speedway.  The decedent and a friend were volunteer members of a pit crew.  They were standing near a guard rail and catch fence barrier of the pit area watching a race when a race car moved across the racing surface and collided with the guard rail and catch fence.  The concrete footing of the fence was ripped from the ground, and a steel pole was separated from the footing, striking the decedent.

According to the evidence presented, sometime prior to the incident, the owner of the racetrack hired the track’s manager to improve the fencing around the track for safety reasons.  The manager designed and installed the barrier “on his own” without instruction, guidance, or formal education or training.  He was learning as he went along and utilized his “best guess” as to how far into the ground to place each pole.  The manager was aware that steel posts could be separated from the footing of a fence and pulled from the ground because he had seen it happen before.

Prior to their entry into the facility and participation on the pit crew, the decedent and his friend paid a pit entrance fee and signed a “Release and Waiver of Liability and Indemnity Agreement.”  They understood what they were signing and knew that crashes occurred and had seen cars collide with walls/guard rails.  They had participated as pit crew members at numerous prior events and had signed many prior waiver and release agreements.  The evidence also showed that the racetrack posted rules specific to the pit area at its entrance, along with warning signs to both participants and patrons concerning the possible dangers of watching automobile racing.

In their lawsuit, the plaintiffs argued that the defendant “acted negligently with respect to the construction and installation of the guard rail and fencing.”  The defendant thereafter moved for summary judgment based upon the waiver and release agreements signed by the injured pit crew members.  The plaintiffs made several arguments against the enforceability of the waiver and release documents, but the trial court disagreed, granting the motion.  The plaintiff appealed.  On appeal, the Court of Appeals addressed each of plaintiffs arguments in turn.

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Little League Lawsuit Settlement

August 23, 2012

$14.5 Million Settlement for Injured Minor (New Jersey)
(A 12 year old pitcher playing in a youth baseball game was struck in the chest by a ball projected from a metal bat; his family’s lawsuit against the bat manufacturer, Little League Baseball, and the Sports Authority sporting goods chain was settled.)

As reported here on ESPN.com, the terms of the settlement agreement preclude the parties from discussing its details, including whether any of the defendants admitted liability.  It appears that the issue revolved around whether the metal bat used at the time of the incident was appropriate and safe.  Little League Baseball certifies certain bats for approved use in games involving children.  The injured boy encountered cardiac arrest that led to permanent brain damage, and the settlement will help provide long term care for him for the rest of his life.

Coverage Denied for Injury to Motorsports “Participant”

January 19, 2011

T.H.E. Insurance v. Cochran Motor Speedway (Georgia)
(Minor in the pit area of a racetrack deemed to be a participant; insurance coverage denied due to a participant exclusion.)

A stepfather and his minor daughter attended a racing event at the defendant’s racing facility.  The stepfather purchased pit passes for himself and the minor, and he signed a waiver and release from liability and indemnity agreement on their behalf.  The stepfather had some sort of affiliation with one of the racing team’s that happened to be crowned the winner of the local points championship on the evening in question.  The team decided to celebrate the championship by driving the racecar back onto the racetrack to the front straightaway.  The minor daughter was placed on top of the car and it began to drive onto the racetrack.  While it was moving, she fell from the car and was injured.  The minor daughter then filed a lawsuit against the racetrack, its owner, and the driver of the race car to recover for her personal injuries.  The racetrack submitted the claim to its insurance company, which denied coverage and filed a claim for declaratory relief.  Eventually, the plaintiff insurer filed a motion for summary judgment based upon exclusions in the policy, and the Court granted the motion. (more…)

Minor Dies During Motorcycle Race at IMS

August 31, 2010

United States Grand Prix Racers Union (Indiana)
(13-year-old young died when he was run over by a 12-year-old co-participant.)

As recently reported in the USA Today, a minor amateur motorcycle rider died this past weekend at the Indianapolis Motor Speedway. The race was a private event sanctioned by the U.S. Grand Prix Racers Union (“USGPRU”).  A spokesman for the USGPRU said that it will discuss ways to make the sport safer. According to the USGPRU’s website, a memorial fund has been established in honor of the deceased minor.

NOTE: The minor release form used by the USGPRU as posted on its website is attached. Is it very short and basic. While the incident occurred in Indiana, the sanctioning body appears to be from Virginia, and the deceased minor was Washington. Indiana has a statute which allows a minor to become partially emancipated for the purposes of filling out the necessary contracts and waiver and release forms in order to participate in motorsports activities. We did not see any information to indicate whether or not the statute was employed for participants in this event.

Injured Shot Putter Chances in Court Are Shot

July 6, 2008

Gerry v. Commack Union Free School District (New York)
(Injured High School Shot Putter’s Assumed Risk of Being Hit by Shot.)

The plaintiff, a high school student-athlete shot putter, was injured when he was hit with a shot thrown by the defendant during a track meet. As a member of the school’s track team, plaintiff had participated in 10 to 15 similar track meets, and he had thrown the shot himself between 100 and 200 times. The trial court granted the defendant school district’s motion, dismissing the case, and the plaintiff appealed. On appeal, the Court explained that “[i]n assessing whether a defendant has violated a duty of care in the context of an injury sustained during a sport or game, [it] must [be] determine[d] whether the defendant created a unique condition ‘over and above the usual dangers that are inherent in the sport’.” The Court concluded that there was “no evidence in the record that any conduct on the part of the defendants created a unique condition over and above the usual dangers associated with the sport of shot put.” Therefore, the Court affirmed the ruling. The plaintiff attempted to offer the declaration of an expert witness on appeal, but the Court stated that the plaintiff had unreasonably delayed in identifying the expert witness.

NOTE: Technically a determination of the inherent risks in an activity should not inolve the analysis of a participant’s subjective experience. The inherent risks are the inherent risks regardless of anyone’s particular experience or knowledge. Nonetheless, whenever evidence of extensive experience is available, it is generally useful to include from a defendant perspective as it may help balance the equities and alleviate any sympathy facotrs that may be asserted. It would have been interesting to see how the court would have dealt with the expert witness testimony if it had been timely and admissible. It has always been a point of contention, and there is not been total consensus, in terms of whether or not expert witnesses should be allowed to offer opinions to the court as to what it or is not an inherent risk in an activity.

ATV Co-Participant Collision Case Stays On Course

July 6, 2008

Allred v. Broekhuis (Michigan-UNPUBLISHED)
(Court Denies Co-Participant’s Demurrer to Claim by Injure Co-Participant Based on the “Recreational Activities Doctrine.”)

In 2005, the plaintiff was riding an all-terrain vehicle (ATV) eastward on a path designated for use by off-road vehicles. Simultaneously, the defendant was riding an ATV westward on the same course. When passing each other, defendant’s ATV crossed onto the eastbound side of the course and struck the plaintiff. Defendant moved for a judgment on the pleadings based on Michigan’s “recreational activities doctrine” (RAD). Under the RAD, co-participants in recreational activities owe a minimum standard of care not to act recklessly towards other participants. However, plaintiff argued that the RAD did not apply under the circumstances, and that Michigan’s Motor Vehicle Code should control.

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Deadly Collision

November 7, 2007

Long Truong v. Cu Van Nguyen (California)
(Woman Died in Watercraft Collision on Lack; Court Ruled Primary Assumption of the Risk Barred Negligent Operation Claim and There was No Evidence of Negligent Entrustment)

The plaintiff was a passenger on a personal watercraft being operated on a lake. She was killed in a collision with another personal watercraft. Decedent’s parents filed a lawsuit alleging that the other rider was negligent in the operation of the personal watercraft and that the owner of the watercraft had negligently entrusted the watercraft to the other rider. The defendants filed a motion for summary judgment arguing that the primary assumption of the risk doctrine precluded negligence liability because they had no duty to protect the decedent from the risks inherent in the activity of riding on a personal watercraft. Defendants also argued that there was no evidence of negligent entrustment. The trial court granted defendants’ motion, and the plaintiffs appealed.

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Fore Head

September 19, 2007

Shin v. Ahn (California)
(Golfer Learns Lesson About Standing in Front of Another golfer Teeing Off; Court Allows Case to Proceed to Trial on Issue of Reckless Conduct)

The plaintiff was golfing in a threesome. He took a shortcut from one hole to the other, which placed him in front of the defendant and to the defendant’s left. Plaintiff stopped at that point to get a bottle of water out of his golf bag and to check his cell phone for messages. He did so even though he knew (1) that he was in front of the tee box, (2) that defendant was preparing to tee off, and (3) that he should stand behind a player who was teeing off. The defendant golfer inadvertently “pulled” his tee shot to the left, hitting plaintiff in the temple. The plaintiff brought a negligence action against other golfer. The parties disputed whether the defendant golfer knew where plaintiff was standing when he teed off. The plaintiff alleged that he and defendant made eye contact before defendant hit his shot, but his accounts of just when that eye contact occurred appeared to be inconsistent and in dispute.

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