Archive for the ‘Dangerous Condition’ Category

Free of Charge – City Immune Under Statute From Premises Liability Claim by Injured Youth Football Spectator (ID)

November 10, 2015

Hayes v, City of Plummer (Idaho)

The plaintiff was a spectator attending a youth tackle football game at a park owned by the defendant City of Plummer.  He was seriously injured after stumbling on uneven ground hidden by grass, and he filed a premises liability claim against the defendant for his injuries.  The defendant then filed a motion for summary judgment based on Idaho’s Recreational Use Statute.  The trial court granted the City’s motion, and the plaintiff appealed.

On appeal. the Supreme Court of Idaho affirmed the trial court’s decision.  Under the Idaho Recreational Use Statute, “[a] ‘landowner’ who provides property for public recreational use is afforded a limitation of liability and ‘owes no duty of care to keep the premises safe for entry by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.'”  This liability limitation applies when the property is offered “without charge.”  The plaintiff asserted that the school district’s payment of utilities and other expenses related to the park for the benefit of the defendant should be considered a “charge” such that the liability immunity did not apply.  However, the Court disagreed, explaining:

“The intent and purpose of Idaho’s Recreational Use Statute is to provide recreational access at no cost to the general public. I.C. § 36–1604(a) . In this case, the City and the School District have done that by allocating resources in order to provide and maintain the Park for all to enjoy. Because the City did not charge or receive compensation from [plaintiff] or the public for their use and enjoyment of the land, Idaho Code section 36–1604  provides a limitation on liability for [plaintiff’s] injuries. The district court properly granted summary judgment.”

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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Failure to Warn – Supreme Court Find Triable Issue Regarding School District’s Breach of Duty to Deceased Youth (WY)

October 21, 2015

Amos v. Lincoln County School District No. 2 (Wyoming)

A five-year-old boy was attending a basketball game at a school that had been converted to a community center.  He was playing with other children on a stage near the basketball court when a lunchroom bench tipped over and fell on top of him, causing a basal skull fracture and killing him instantly.  The lunchroom bench had been removed from the gymnasium wall and had been placed against the wall in a storage room adjacent to the stage.  A year later, the boy’s personal representative filed a wrongful death action against the school district, along with the town and county where the facility was located.

The county filed an “affidavit of noninvolvement” with the trial court in lieu of an answer.  In response, the trial court entered an order dismissing the county from the action without prejudice.  The court explained that it found that “there [were] not enough facts to show that [the county was] responsible but if facts come forward or are discovered that show that [the county was] responsible, either directly or indirectly, [the county] shall be reinstated as a Defendant.”

The school district filed a motion for summary judgment, arguing that it had turned over possession and maintenance of the building to the community group such that it did not owe the plaintiff a duty of care and was, therefore, entitled to judgment as a matter of law.  The trial court denied the school district’s motion, holding: “Viewing these basic facts in a light most favorable to the Plaintiff, the School District, as the owner, is in the same position as a landlord is to its tenants and their invitees. As such, it owed all persons entering the building as invitees the duty of reasonable and ordinary care under the circumstances.”  Notwithstanding the ruling, the trial court did express concern that the facts may not ultimately establish a breach of the school district’s duty or that the district’s actions were the proximate cause of the incident.

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No Relief – Issue of Town’s Liability Regarding Condition of High School Baseball Field for the Jury (MA)

October 19, 2015

Murray v. Town of Hudson (Massachusetts)

A relief pitcher for a high school baseball team injured his knee while warming up in the visiting team bullpen.  He filed a lawsuit against the town that maintained the park at which the baseball field was located, alleging that the injury was caused by the town’s negligence and its wanton and reckless conduct in allowing the visiting team to use a dangerous bullpen.  The town filed a motion for summary judgment arguing that the negligence claim was barred by the Massachusetts recreational use statute, and that the evidence did not support a finding of wanton or reckless conduct.  The trial court granted the defendant’s motion, and the pitcher appealed.

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A Trip to the Festival – Woman Injured from Exposed Pipe on Unpaved Walkway to a Parking Lot; Issues of Fact for the Jury (FL)

August 21, 2015

Cook v. Bay Area Renaissance Festival of Largo, Inc. (Florida)

Plaintiff attended a festival organized by the defendant, and she tripped and fell over an exposed pipe on an unpaved walkway connecting the festival grounds to an overflow parking lot.  Plaintiff filed an action action against the organizer, contending that it negligently maintained the property where the incident occurred.  The defendant filed a motion for summary judgment, arguing that there was no proof that it had control over the premises where the incident occurred.  Although plaintiff was directed by festival volunteers to park in the overflow parking, there was conflicting testimony concerning whether the volunteers directed her to use the unpaved walkway.  The trial court granted the defendant’s motion, and the plaintiff appealed.

On appeal, the District Court of Appeal of Florida reversed the decision and remanded the matter for further proceedings.  First, the Court held that there was a genuine issue of material fact as to whether the organizer had exercised control of the unpaved area.  The Court stated “[a] party ‘who assumes control over the premises in question, no matter under what guise, assumes also the duty to keep them in repair.'”  The defendant was clearly using the overflow parking, and there was conflicting evidence as to whether the defendant intended its invitees to use the unpaved walkway.  The Court also noted that the evidence showed that the defendant took action to remove the pipe from the area after the incident.  Such evidence suggested the defendant’s control over the premises.

Second, the Court held there was also a genuine issue of material fact as to whether the pipe was a dangerous condition, and whether warnings from the plaintiff’s husband and other attendees were sufficient to absolve the defendant from liability.  The defendant argued that the pipe was “open and obvious,” such that it did not owe her a duty to warn her about the hazard.  However, the Court explained that “even when a hazard is open and obvious, a landowner or possessor can still be held liable for failing ‘to exercise reasonable care to prevent foreseeable injury’ to invitees.”

 

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…)

Worst Seat in the House – Triable Issue as to Whether Park Had Notice of Dangerous Bleachers (AL)

August 18, 2015

Shirley v. Tuscaloosa County Park and Recreation Authority (Alabama)

Plaintiff was sitting on bleachers at Munny Sokol Park in Alabama watching a youth football game.  Certain welds on the bleachers broke, causing plaintiff to fall and suffer personal injury.  Plaintiff filed a complaint against the parks and recreation authority that owned the property, alleging negligence and wantonness.  Plaintiff later amended her complaint to assert a claim under the Alabama Extended Manufacturer’s Liability Doctrine against several fictitiously named defendants.  The property owner filed a motion for summary judgment arguing it was entitled to immunity under Alabama’s recreational use statute.  The trial court granted the motion, and the plaintiff appealed.

On appeal, plaintiff argued that the trial court improperly entered summary judgment because there was a genuine issue of material fact as to whether the park was being used for commercial purposes and whether the property owner had “actual knowledge or an unreasonable risk of death or serious bodily harm” (both exceptions to the statutory immunity).

The Court of Civil Appeals of Alabama noted that plaintiff presented no evidence indicating that the use of the park was commercial in nature.  However, the Court found that the plaintiff did present evidence that the property owner had actual knowledge regarding the unreasonably dangerous condition of the bleachers and that it failed to guard or warn against the consequences.  The evidence established that an employee of the property owner arrived at the scene of the incident and commented, “I told them earlier to put a cone or a sign on this bleacher until we could get somebody out here to repair it.”  Another witness also confirmed that the the condition of the bleachers was known and should have been “coned off.”  The property owner disputed the facts, but the Court noted that it was required to review the evidence in the light most favorable to the non-movant.  Therefore, the Court reversed the decision and remanded the trial for further proceedings.

Imperfect Storm – Hockey Arena Snow Remover Not Liable for Slip and Fall Injury During Storm (NY)

August 17, 2015

Harvey v. LAZ Parking Ltd. (New York)

A hockey fan slipped and fell on an icy pedestrian area while exiting a hockey arena.  He filed a lawsuit against the city and its snow removal contractor.  The fan’s wife also filed a claim for loss of consortium.  The defendant filed a motion for summary judgment.  The trial court granted the motion, and the plaintiffs appealed.

On appeal, the Appellate Division of the Supreme Court affirmed the trial court decision, holding that the defendants were not liable pursuant to the “storm in progress rule.”  According to the rule, “[a] landowner has no duty to remedy a dangerous condition resulting from a storm while the storm is in progress and has a reasonable amount of time after the storm has ended to take corrective action.”  The defendants relied on plaintiffs’ own testimony that there was precipitation during and after the game, and they also relied on weather data and climatological records establishing the timing of the precipitation.  The evidence was sufficient to demonstrate that the ice was formed by the ongoing weather conditions.  Once established, the burden then shifts to the plaintiff to produce  “admissible evidence that the ice that caused plaintiff’s slip and fall existed prior to the storm in progress, and that defendant[s] had actual or constructive notice of the hazard.”  The Court concluded that the plaintiff’s expert affidavit failed to meet that burden.

Cleanup in Aisle 5 – Child Injured on Bicycle Inside Wal-Mart; Store Not Liable (MS)

July 23, 2015

Wilson ex rel. Purser v. Wal-Mart Stores, Inc. (Mississippi)

A step-father and his two minor boys visited a Wal-Mart store in Batesville, Mississippi looking to purchase a basketball.  While the step-father was paying for the basketball, the two boys started looking at bicycles.  Both boys got on bicycles that had been on the bicycle racks and began riding up and down the nearby aisles.  During the ride, one of the boys was riding fast and could not figure out how to stop.  He tried to brake using the pedals, but the bike only had handbrakes.  The boy ran into a wall and cut his leg on a shelf.  “The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.”

The boys’ mother filed a lawsuit on behalf of her injured child, contending that Wal-Mart was negligent by failing to keep the premises reasonably safe and failing to warn of the danger posed by the bikes.  Wal-Mart filed a motion for summary judgment, arguing that the plaintiff could not show the existence of a dangerous condition.  The trial court granted the defendant’s motion, and the plaintiff filed a motion to reconsider.  Plaintiff’s motion was denied, and an appeal was filed.

On appeal, plaintiff argued that “whether an unlocked or readily available bicycle on the sales floor constituted a dangerous condition was a genuine issue of material fact that should have been submitted to a jury.”  However, the Court disagreed, affirming the trial court decision.

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.”