Archive for the ‘Expert Witness Testimony’ Category

No Sympathy – Claims of Injured Passenger in Go Kart Barred by Assumption of Risk; No Product Defect (NY)

October 22, 2015

Garnett v. Strike Holdings, LLC (New York)

The plaintiff rode as a passenger in a two-seat go kart driven by her then boyfriend.  While driving on the track, they were allegedly bumped twice by other go karts, allegedly causing the plaintiff to suffer injuries, including “reflex sympathy dystrophy.”  Plaintiff sued the operators of the indoor recreational facility, alleging negligent and defective design, strict products liability, failure to warn, and breach of warranty.

The defendants filed a motion to strike the products liability claim.  However, the trial court denied the motion finding (1) that [the operators] leasing and rental of the go-karts could support the inference that [the operators] had placed the go-karts within the distributive chain,” and (2) the operators’ “waiver form purporting to contain an “express assumption of risk, waiver indemnity and agreement not to sue” was void as against public policy and unenforceable by reason of” New York General Obligations Law Section 5-326.  The parties proceeded with discovery.

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¡Peligro! – Woman Falls from Treadmill; Waiver Fraud and Gross Negligence Alleged (CA)

July 17, 2015

Jimenez v. 24 Hour Fitness USA, Inc. (California)

The plaintiff fell backwards off a moving treadmill at the defendant’s workout facility and suffered severe head injuries when she hit her head on the exposed steel foot of a leg exercise machine that had been placed behind the treadmill.  Plaintiff filed an action against the workout facility, alleging premises liability, general negligence, and loss of consortium.  Plaintiff contended that the defendant was grossly negligent in setting up the treadmill in a manner that violated the manufacturer’s safety instructions.  The defendant moved for summary judgment based on the liability release that plaintiff signed when she joined the facility.  The trial court granted the defendant’s motion, and the plaintiff appealed. (more…)

Blanked Out – Injured Motocross Rider’s Claims Barred By Assumption of Risk (CA)

July 6, 2015

Storer v. E Street MX, Inc. (California)
(not a published opinion)

The plaintiff was injured while riding his motorcycle on a motocross track operated by the defendants.  After completing two or three laps on the track, the plaintiff “blanked out” and did not recall the incident.  He claimed something hit him, but he did not know what it was.  He filed an action against the defendants for negligence and premises liability.  The defendants filed a motion for summary judgment based upon both primary assumption of risk and the waiver and release document that the plaintiff signed prior to his participation in the motocross activities, and plaintiff filed a motion for leave to file an amended complaint shortly thereafter.

Plaintiff sough to add a new cause of for products liability and also sought to add additional negligence claims relating to defective design, construction, and maintenance of the racetrack, along with a failure to warn him of those defects.   The trial court denied plaintiff’s motion, ruling that the proposed amendment was “prejudicially late” and that it sought to add a “patently frivolous” cause of action for products liability.  Plaintiff had also requested delaying the defendants motion, but the court denied the request.  Thereafter, the trial court granted the defendants’ motion, and the plaintiff appealed. (more…)

Wild Ride – Paraplegic Injured on Roller Coaster Loses Jury Verdict (CA)

July 2, 2015

Rogers v. Magic Mountain, LLC (California)

Plaintiff was involved in an accident in 1996, which caused him to suffer from paraplegia and related medical complications.  In 2010, he rode the X2 “4th Dimension” roller coaster at Six Flags Magic Mountain, an amusement park in Valencia, California.  While on the ride, plaintiff suffered a fracture to his right femur.  Plaintiff did not feel the injury as a result of his paraplegia.  A few days later, his right leg was amputated after blood clotting blocked the flow of blood to his leg.  Plaintiff sued the amusement park and the ride manufacturer, alleging premises liability, general negligence and products liability.

The amusement park filed a motion for summary judgment, which was denied by the trial court.  The case continued, and a ten day jury trial ensued.  After trial, the jury issued a special verdict, finding that the amusement park was negligent, but that its negligence was not a substantial factor in causing harm to the plaintiff.  As to the ride manufacturer, the jury found that (1) the ride did not have potential risks that were known at the time of their design, manufacture and sale that would support a failure to warn claim, and (2) the design of the ride was a substantial factor in causing harm to the plaintiff, but that the risks of the ride did not outweigh the benefits of the design.  Therefore, the jury found that neither defendant had legal responsibility for the harm caused to the plaintiff.

Plaintiff appealed the decision contending that the special verdict was defective and the evidence was insufficient to support the special verdict.  However, the Court of Appeal disagreed and affirmed the judgment in favor of the defendants.  The Court noted that the plaintiff had not objected to the special verdict or any of its stipulated changes.  Regardless, the Court did not find any inconsistency, ambiguity, or unresolved issue in the special verdict.  Plaintiff complained that the jury had improperly allocated 100% fault to the plaintiff without first finding that the plaintiff was negligent.  However, the Court explained that the specific allocation of fault to the plaintiff was merely an “irregularity,” and not an “inconsistency.”  The jury had already determined that neither defendant’s was responsible (the park’s negligence did not cause the harm and the risk of the manufacturer’s design did not outweigh its benefits).  As a result, the Court noted that “it [did] not matter whether plaintiff was negligent or not — he [could not] recover from defendants.”  According to the Court, “the issues of negligence and causation were properly presented to the jury in the special verdict form.”  The Court was also convinced that “there was ample evidence from which the jury could properly conclude that [manufacturer] was unaware of potential risks at the time the X2 vehicles were designed.”

Fender Bender – Claims of Injured “Cyber Sport” Participant Dismissed (NY)

June 5, 2015

Yargeau v. Lasertron (New York)

Plaintiff was injured while participating in a game called Cyber Sport.  In Cyber Sport, participants drive cars similar to bumper cars while they attempt to scoop a ball into a handheld basket and then shoot the ball to score points.  A participant uses a joystick to move the car, but there are no brakes on the cars.  The cars are built to stop moving when the joystick is released or when a signal is sent to the car by an employee of the facility hosting the game.  After riding in her car during a warm up period, the plaintiff was sitting in her car listening to the referee give instructions to the players.  Although the referee had pressed the button that was supposed to give a signal causing all the cars to stop, at least one of the cars still had power and ended up striking plaintiff’s car from behind and causing her personal injury.

Plaintiff sued the manufacturer of the car and the facility hosting the game, alleging products liability claims and negligence.  The defendants filed motions for summary judgment, which were granted by the trial court, and the plaintiff appealed. (more…)

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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Unfortunate Landing

September 6, 2012

Duchesneau v. Cornell University (Pennsylvania Court – New York Law Applied)
(An amateur gymnast suffered a significant injury while attempting a backflip on a rebounding Tumbl Trak apparatus; he sued the manufacturer of the apparatus for a failure to warn of the dangers associated with its use, and he sought punitive damages; the court denied the manufacturer’s motion, allowing the case to proceed to the jury.)

In its motion, the defendant manufacturer alleged (1) plaintiff could not establish a prima facie case of failure to warn; (2) plaintiff was not entitled to punitive damages; and (3) plaintiff assumed the risk of injury when using the apparatus.  In support of its arguments, the manufacturer referred to “general knowledge” that “an individual might land on his head if he attempt[ed] a black flip on a rebounding [apparatus].”  Defendant also referred to plaintiff’s education in basic physics, the fact that he signed a waiver that stated that he understood the risks and dangers associated with gymnastics, the existence of a small warning label on the apparatus that warned of the potential for catastrophic injury (including paralysis or even death from falling on the head or neck), and plaintiff’s knowledge of the concept of spotting from his prior participation in cheerleading.  Viewing all of that evidence, defendant asserted that “‘common sense’ would have informed an individual that he or she was risking landing on their head by using the [apparatus], and, as such, [defendant] had no legal duty to warn Plaintiff.”

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Pipe Dream for Expert in Motocross Case

May 12, 2011

McCassy v. Superior Court (California – UNPUBLISHED)
(Minor motocross rider injured during practice ride; with the rider unable to recall the incident, her expert speculates that irrigation piping near the track caused her to lose control; the court finds a lack of evidence to support the theory and grants defendant’s motion for summary judgment.)

A 17-year-old female motocross rider was at a motocross track practicing, and she was involved in an incident occurred in which she left the track and struck an embankment. The rider did not remember how the incident occurred, but alleged that she struck a portion of PVC pipe about 10 feet from the racing surface which was part of the track’s irrigation system, causing her to lose control of the motorcycle. She alleged premises liability, and her father and brother, both of whom were present, sued for infliction of emotional distress.

An expert for the plaintiffs asserted that the track increased the normal risk of injury by placing the PVC pipe close to the track and that if a rider lost control and left the track, there was a high probability of striking it. The trial court denied the defendant’s motion for summary judgment based upon primary assumption of the risk, noting that placement of the irrigation system so close to the track was not inherently required for the sport. The defendant petitioned for review, and the Court of Appeal granted the Petition.

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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.

Not Making the Grade

November 26, 2007

Harris v. I-44 Lebanon (Missouri)
(Late Model Race Car Driver Injured While Racing on a Dirt Track When a Large Rock Hit His Helmet; Motion for Summary Judgment Based on Waiver and Release Denied; Defense Verdict Issued After Trial)

The case involved late model racing on an oval dirt track in Lebanon, Missouri. The Plaintiff was a 51-year-old lifelong dirt track racer who was injured in 2003 when he was struck by a rock in the mouth area of his helmet during a late model dirt track race.

Roughly five months before this accident, the Lebanon I-44 Speedway was converted from an asphalt track to a dirt race track, which involved laying dirt over the asphalt surface. The initial batch of dirt was unsatisfactory so the track preparer, Randy Mooneyham, removed this dirt and put an entirely new type of dirt on the track. After it was placed on the track, he then used a rock picker, a rock rake and a grader to work the debris out of the track and pack it down throughout the 2003 season. Plaintiff raced on the track several times during 2003 before his accident.

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