Archive for the ‘Elementary School’ Category

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…)

Foul on the Defense – Basketball Rec League Waiver Void Under New York Statute (NY)

June 12, 2015

(photo by Dave Lindblom; unchanged)

Falzone v. City of New York (New York)

Plaintiff paid a fee to register to play in a recreation basketball league.  The league then paid the defendant New York City Department of Eduction a portion of the league registration fees for a permit in order to use a public school gymnasium.  During a game at the facility, the plaintiff was injured when his hand went through the glass window of a door that was behind one of the basketball hoops.  Plaintiff then filed an action against the City of New York and the Department of Education.  After initially responding, the defendant filed a motion for leave to amend their answer to add the affirmative defense of release and filed a motion to dismiss the complaint.  The trial court granted both motions and the plaintiff appealed.

On appeal, the Appellate Division of the Supreme Court determined that the trial court had properly granted the City of New York’s motion to dismiss in that it did not operate, maintain, or control the school premises.  As to the motion by the Department of Eduction to add the affirmative defense of release, the Court reversed the decision.  the Court explained that “[a]lthough leave to amend a pleading should be freely given [citation omitted], a court should deny a motion for leave to amend if the proposed amendment is palpably insufficient, would prejudice or surprise the opposing party, or is patently devoid of merit.”  The Court noted that the proposed amendment regarding the affirmative defense of release was “devoid of merit.”  The plaintiff had signed a “Player Waiver, Release of Liability and Indemnification Agreement” prior to his participation in the basketball league, but he paid a league fee to use the gymnasium and the payment of the fee rendered the waiver and release agreement void pursuant to New York General Obligations Law Section 5-326.  Under Section 5-326, every agreement in connection with a place of recreation in which the owner or operator receives a fee for the use of such facilities that exempts the owner or operator from liability for damages resulting from the negligence of the owner or operator is deemed void as against public policy and wholly unenforceable.