Archive for the ‘Delaware’ Category

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.”

Up the Creek Without a Row Machine – Claim of Man Injured at Fitness Facility Barred by Membership Agreement (DE)

July 13, 2015

Ketler v. PFPA, LLC (Delaware)
(unpublished trial court disposition)

Plaintiff purchased a gym membership from Planet Fitness and agreed to the terms of the facility’s membership agreement.  Plaintiff thereafter sustained personal injuries at the defendant’s workout facility when a cable broke on a seated rowing machine that he was using.  He and his wife filed a lawsuit against Planet Fitness, alleging negligence, and Planet Fitness filed an answer asserting primary assumption of the risk as an affirmative defense based on the language of the membership agreement.  The defendant then filed a motion for a judgment on the pleadings.

The plaintiff did not dispute that he signed the membership agreement, but he argued that the agreement did not include a specific reference to the negligent wrongdoing alleged.  The court disagreed, noting that the agreement clearly provided that plaintiff could not hold the defendant liable for any injury even if the defendant’s own negligence caused the injury.  The court found the membership agreement to be “an unambiguous and express release.”

Plaintiff contended that he was entitled to factual discovery before the court cold resolve the issue.  However, the court stated that the language of the membership agreement was controlling and no further discovery was needed.  The court explained that “Delaware’s decisional law on contract interpretation permit the Court to give full force and effect to the Release.”