Archive for the ‘Duty’ Category

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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Rather Shallow – Man Broke His Neck Diving Into Lake; Risk Deemed Open and Obvious (IL)

September 16, 2015

Bujnowski v. Birchland, Inc. (Illinois)
(not published)

The plaintiff was visiting a recreational area operated by the defendant.  He dove off a pier into a lake on the property and broke his neck.  He sued the defendant alleging that the defendant had no employees monitoring the area, and that the defendant was negligent in failing to supervise or train customers properly on the use of the are and failing to warn them of the dangers of using the area.  The defendant filed a motion for summary judgment on the basis that it did not owe a duty to plaintiff because the danger of diving into water was open and obvious.  The trial court granted the defendant’s motion, and the plaintiff appealed.

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On the Rocks – Woman Injury Jumping Off Rock in the Ocean; Liability is an Issue for the Jury (MA)

July 29, 2015

Cohen v. Elephant Rock Beach Club, Inc. (Massachusetts)
(trial court disposition)

he plaintiff was a guest at the defendant’s beach club.  During her stay, plaintiff saw guests swimming to and around, and jumping off of, a large rock that was 250 feet off the shore.  She decided that she wanted to go to the rock, and did so by walking from the beach to the water and swimming to the rock.  After watching adults and children take a running start and then jump off the highest part of the rock, plaintiff waited her turn and did the same thing.  After she jumped, her foot smashed into a portion of the rock below the surface of the water, resulting in a compound fracture of plaintiff’s leg.  Lifeguards from the defendant that were on duty noticed plaintiff after she hit the water and went to assist her.

Plaintiff filed a complaint alleging negligence based on premises liability, and a duty to warn her of the dangerous condition of the rock.  The defendant club filed a motion for summary judgment.  In support of its motion, the defendant filed a late supplemental expert witness report, and the plaintiff filed a motion to strike the report.  As to the motion to strike, the U.S. District Court denied the motion, finding that the untimely disclosure of the supplemental report was harmless.

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Unwanted Souvenir – Woman Struck by Foul Ball During MLB Batting Practice; Claim Barred (WA)

July 7, 2015

Reed-Jennings v. Baseball Club of Seattle, L.P. (Washington)
(unreported decision)

The plaintiff was seriously injured while attending a Seattle Mariners Major League Baseball game.  She was struck by a foul ball hit into the stands during batting practice.  Plaintiff filed a negligence based lawsuit against the team, but the trial court granted the defendant’s motion for summary judgment, finding that the team did not breach its limited duty of care to the plaintiff and that the plaintiff’s claims were barred by the assumption of risk doctrine.  Plaintiff appealed.
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Yellow Flag – Amusement Park Go-Kart Operator Not Liable for Injury from On-Track Collision (TX)

June 3, 2015

Weaver v. Celebration Station Properties, Inc. (Texas)

Kerri Weaver (“Weaver”) and her three children visited the defendant’s amusement park in Oklahoma City, Oklahoma.  Weaver took one of her children on a go-kart ride at the facility and was involved in an on-track incident.  Another driver bumped Weaver’s go-kart, causing Weaver to suffer a heel fracture.  Weaver filed a state court action in Texas, alleging defendant’s “negligent failure to inspect the amusement area, adequately warn customers not to bump into other go-karts, train and supervise its employees, and instruct and train go-kart drivers, caused her injury.”  Additionally, Weaver filed a claim on behalf of her minor child for “bystander suffering.”  The defendant timely removed the case to federal court on the basis of diversity jurisdiction and, after discovery, moved to summary judgment, “arguing that it owed Weaver no duty to warn her about the open and obvious risks inherent in go-kart racing and, in any event, did not breach that duty.”

In opposition to the motion, Weaver argued that defendant “owed her a duty as a business invitee and breached this duty when it failed to guard against other reckless drivers.”  In her opposition, Weaver referred to her own deposition testimony and the deposition testimony of the defendant’s corporate representative.  However, Weaver failed to attach the deposition testimony to her opposition.  Defendant replied, reiterating its previous arguments and citing Weaver’s failure to attach the evidence.  Weaver filed a surreply, attaching the documents she failed to submit earlier, and the defendant moved to strike the surreply.

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Black and Blue Light Special – Sporting Goods Store Not Liable for Injury Caused by Bicycle Riding Patron (LA)

May 15, 2015

Orr v. Academy Louisiana Co, LLC (Louisiana)

Plaintiff and her daughter entered an Academy Sports and Outdoor Store in Alexandria, Louisiana to shop for shoes.  While plaintiff was attempting to help her child try on a pair of shoes, she was struck by an adult male who was riding a young girl’s bicycle.  The bicycle rider initially offered assistance to the injured plaintiff, but when she refused, he fled the scene.  After plaintiff reported the incident to the store, they located the bicycle, but could no the man involved.

Plaintiff sued the store and its insurance company, and her husband joined the litigation with a loss of consortium claim.  The defendants denied liability, asserted the fault the unknown bicycle rider, and argued comparative fault on the part of plaintiff.  After a trial on the merits, the trial court found that the store was one hundred percent at fault for the plaintiff’s accident, awarding plaintiff its jurisdictional limit of $50,000 in damages.  Defendant appealed, alleging the trial court erred: (1) in finding that plaintiff had met her burden of proof; (2) in finding that the store was negligent when the incident could not have been reasonably anticipated; and (3) in failing to assign fault on the unknown customer/tortfeasor.

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Unreasonable Eviction – Colorado Supreme Court Finds That Hotel Owed a Duty to Evicted Drunk Guests (CO)

May 6, 2015

Westin Operator, LLC v. Groh (Colorado)

The issue raised by the case (an issue of first impression for the Supreme Court of Colorado) was: “What duty of care, if any, does a hotel owe to a guest during a lawful eviction?”

Following a late night out in downtown Denver, the plaintiff brought a group of friends back to a hotel room she had rented at the hotel operated by the defendant.  Thereafter, security guards from the hotel confronted the group about the noise level coming from their room, and the hotel eventually evicted them from the premises.  Plaintiff and her group were evicted “even though [they] advised the guards that they were drunk and could not drive.”  One of the members of the party asked if he could stay in the lobby to wait for a taxicab because it was cold outside, but the security guarded refused.  Plaintiff and six others got into plaintiff’s car, with a drunk driver behind the wheel.  Fifteen miles later, the car rear-ended another car.  The resulting crash killed a third party and left the plaintiff in a persistent vegetative state with traumatic brain injuries.

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Pit Road Penalty – Release Agreements Enforceable But Not to Bar Negligent Bleacher Maintenance Claim (NY)

May 4, 2015

Stevens v. Payne (NewYork)
(trial court opinion)

The plaintiff was injured while watching his daughter compete as a race care driver at a racetrack in New York.  Plaintiff suffered a heart attack and fell off of bleachers landing six feet below onto the ground, resulting in permanent paralysis of his legs.  He then sued the racetrack (Skyline Raceway) and the sprint car sanctioning entity (Capital Region Sprintcar Agency [“CRSA”]), alleging there was a dangerous condition on the bleachers because they lack side railing.  CRSA file a motion for summary judgment on tow grounds: (1) it did not owe a duty to plaintiff for the condition of the bleachers because it neither owned nor controlled them; and (2) the plaintiff’s cause of action was barred by the two waiver and release agreements signed by the plaintiff (one signed for the CRSA in connection with the race car entry, and one signed for Skyline at the event on the day of the incident).

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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.

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