Archive for the ‘Failure to Warn’ Category

Speed Wobble – Discovery Regarding Failure to Warn Allowed in Longboarding Death Case (VT)

November 5, 2015

Cernansky v. Lefebvre (Vermont)
(trial court disposition)

A college student was fatally injured while riding a longboard style of skateboard.  His estate brought a lawsuit against the roommate who lent him the board and the skateboard shop that sponsored the roommate as a longboard rider.  The complaint alleged wrongful death and negligent failure to warn the decedent about the dangers associated with the activity (the roommate did not provide the decedent with any safety instructions prior to taking the decedent longboarding).  The roommate filed a motion to dismiss the action for failure to state a claim, and the skateboard shop filed a motion to dismiss the action against it based on a lack of personal jurisdiction.

The United States District Court for the District of Vermont denied both motions.  First, the Court held that the estate’s complaint did state a claim against the roommate under Vermont law for negligent failure to warn.  The Court explained:

“. . . the Complaint alleges [the roommate] should have foreseen the potential for serious injury based upon his knowledge of long boarding. More specifically, [the roommate] allegedly should have foreseen that sending [the decedent], a first-time longboarder, down a hill without a helmet or instruction presented a risk of harm giving rise to a legal duty. Plaintiff claims that [the roommate] breached that duty.  ¶  The fact that the longboard was loaned to [the decedent] does not alter the negligence analysis. In the comparable context of negligent entrustment, the ‘theory requires a showing that the entruster knew or should have known some reason why entrusting the item to another was foolish or negligent.'”

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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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Bitten – Questions Certified to Supreme Court on Huge Jury Verdict for Student Stricken by Illness on School Tour (CT)

October 16, 2015

Munn v. Hotchkiss (Connecticut)

A fifteen-year-old freshman at a private boarding school participated in a month-long summer program in China organized by the school.  Prior to participating in the program, the school sent the student and her parents a packet outlining the activities and a set of legal forms requesting that the parents waive legal claims against the school.  The school also sent medical advice regarding the trip, including a link to the Centers for Disease Control and Prevention (“CDC”) webpage and a note that the school’s infirmary could “serve as a travel clinic.”  However, the CDC website reference was incorrect and the infirmary was unable to provide independent medical advice.  The school also later sent an itinerary, a packing list (including a general reference to “bug spray”), and a handbook on international travel.  However, there were no specific warnings about insect-borne diseases where health risks were mentioned in the materials.

During the program, the students went on a weekend excursion without any bug sprays warnings being given.  After walking through trees and brush, the student had numerous bug bites and an itchy welt on her left arm.  Ten days later, the student awoke with a headache, fever, and wooziness.  Her condition deteriorated and she was taken to the hospital.  Eventually, the student’s parents traveled to China from the United States to be with her in the hospital.  She was severely ill and partially paralyzed, and was airlifted back to New York.  The student was diagnosed with tick-borne encephalitis (“TBE”), a viral infectious disease that affects the central nervous system.  She lost the ability to speak and lost cognitive function, although she managed to live a functional life, finishing high school and attending college.

The student and her parents filed a diversity action in federal court against the school, alleging that the school was negligent in the planning and supervision of the trip.  Plaintiffs claimed that the school failed to warn them about the risks of viral encephalitis and failed to provide her with protective clothing, bug spray, or vaccinations.  They also alleged that the school failed to provide medical personnel on the trip and failed to establish procedures for medical emergencies.  The defendant school argued that the “Agreement Waiver, and Release of Liability” form that was signed by the student’s parents prior to the program precluded liability, but the District Court excluded the document, finding that its language was ambiguous and that it was contrary to public policy under Connecticut law.

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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.”

 

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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Tragedy at the Beach – State Not Liable for Youth Killed by Collapsed Sand (CA)

July 27, 2015

Buchanan v. California Department of Parks and Recreation (California)
(unpublished opinion)

A seventeen year old boy and his brother participated in a church youth group outing to Sunset State Beach in California.  During the outing, the boy and another member of the church group “created an unnatural condition that was not common to nature and would not naturally occur in that location, in that they were engaged in digging large holes in the sand in a picnic area being used by the church group, which was located within the park boundaries, separated from the beach by sand dunes, but within sight of a nearby elevated life guard station.”  The sand collapsed, burying and killing the boy.  A lawsuit was filed by the boy’s family, with the amended complaint alleging two causes of action.  First, the plaintiffs alleged that the California Department of Parks and Recreation (“DPR”) employees observed (or should have observed) the digging activities and they had a duty to warn the boy and the group of the known risks.  Second, the boy’s brother alleged a claim for negligent infliction of emotional distress as a bystander that witnessed the incident.

The DPR filed a demurrer to the amended complaint, asserting that the complaint failed to show that it owed a duty to the plaintiff and that statutory government immunity applied.  The trial court sustained the demurrer without leave to amend based on the Hazardous Recreational Activity immunity found in Government Code Section 831.7, and it entered a judgment of dismissal in favor of the defendant.  Plaintiffs appealed. (more…)

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.”

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…)

Short Ride – Minor Child Falls From Horse During Birth Party; Statutory Immunity Applies (AL)

June 19, 2015

Estes v. Stepping Stone Farm, LLC (Alabama)

A four year old child attended a birthday party that included equestrian activities.  She fell from a horse during the party and was injured.  Her father filed a lawsuit against the equine center, the center’s owner, and the center’s employees, alleging claims of negligence, wantonness, and negligent failure to train or supervise.  The defendants filed a motion for summary judgment citing the Alabama Equine Activities Liability Protection Act (“Act”), which limits the civil liability of those involved with equine activities as it pertains to risks inherent in the activities.  The trial court granted the motion, and the plaintiff appealed.
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