Archive for the ‘Fall From Elevation’ Category

Worst Seat in the House – Triable Issue as to Whether Park Had Notice of Dangerous Bleachers (AL)

August 18, 2015

Shirley v. Tuscaloosa County Park and Recreation Authority (Alabama)

Plaintiff was sitting on bleachers at Munny Sokol Park in Alabama watching a youth football game.  Certain welds on the bleachers broke, causing plaintiff to fall and suffer personal injury.  Plaintiff filed a complaint against the parks and recreation authority that owned the property, alleging negligence and wantonness.  Plaintiff later amended her complaint to assert a claim under the Alabama Extended Manufacturer’s Liability Doctrine against several fictitiously named defendants.  The property owner filed a motion for summary judgment arguing it was entitled to immunity under Alabama’s recreational use statute.  The trial court granted the motion, and the plaintiff appealed.

On appeal, plaintiff argued that the trial court improperly entered summary judgment because there was a genuine issue of material fact as to whether the park was being used for commercial purposes and whether the property owner had “actual knowledge or an unreasonable risk of death or serious bodily harm” (both exceptions to the statutory immunity).

The Court of Civil Appeals of Alabama noted that plaintiff presented no evidence indicating that the use of the park was commercial in nature.  However, the Court found that the plaintiff did present evidence that the property owner had actual knowledge regarding the unreasonably dangerous condition of the bleachers and that it failed to guard or warn against the consequences.  The evidence established that an employee of the property owner arrived at the scene of the incident and commented, “I told them earlier to put a cone or a sign on this bleacher until we could get somebody out here to repair it.”  Another witness also confirmed that the the condition of the bleachers was known and should have been “coned off.”  The property owner disputed the facts, but the Court noted that it was required to review the evidence in the light most favorable to the non-movant.  Therefore, the Court reversed the decision and remanded the trial for further proceedings.

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Hard Lesson – Defendant Riding School Not Liable for Child Bucked from Horse (NY)

July 8, 2015

Quintanilla v. Thomas School of Horsemanship, Inc. (New York)

A minor child was thrown from a horse while taking an intermediate horse riding lesson, and her mother filed a lawsuit against the horse riding facility.  The defendant filed a motion for summary judgment, contending that the claim was barred by the doctrine of primary assumption of risk.  The trial court denied the motion, but the decision was reversed the the Appellate Division of the Supreme Court.

Prior to the child’s participation in the riding lesson, her parents signed a “Camp and Riding Instruction Agreement and Liability Release,” which warned that the facility’s horses could react if they were frightened or provoked.  During the child’s lesson, several horses came in close proximity to one another, and one of the horses kicked a wooden fence or gate, causing the child’s horse to rear up and throw the child off.  The Court explained that “[t]he risks of falling from a horse or a horse acting in an unintended manner are risks inherent in the sport of horseback riding.”  As such, the defendant was entitled to judgment as a matter of law.

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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The Art of Recreation – University Not Permitted to Assert Recreational Use Statute Protection Against Spectator Claim (TX)

April 21, 2015

University of Texas at Arlington v. Sandra Williams (Texas)

The plaintiff and her husband attended their daughter’s soccer game played at the football stadium at the University of Texas at Arlington.  She leaned against a gate that separated the stands from the playing field, and the gate unexpectedly opened, causing her to fall five feel to the artificial turf below.  Plaintiff injured a rib and her left arm and sued the University for premises liability, alleging negligence and gross negligence.  As part of its responsive pleadings, the University filed a motion to dismiss claiming (among other things) liability protection under the Texas recreational use statute.

Texas’ recreational use statute (like many similar statutes in other jurisdictions) protects landowners who open property for recreational purposes, limiting their liability to the recreational user.  In such cases, the burden of proof is elevated, requiring either gross negligence or an intent to injure.  Ultimately, the Texas Supreme Court affirmed the decision of both the trial court and the court of appeals and determined that a spectator at a competitive sports event is not “recreation” under the statute such that the liability protection did not apply.

Paying the Price (Twice)

November 7, 2007

Heilig v. Touchstone Climbing, Inc. (California–UNPUBLISHED)
(Rock Climber Falls During a Competition; Release Precludes Negligence Claims; No Allegations or Evidence of “Gross Negligence”; Defendant Entitled to Attorneys Fees Pursuant to Release)

The plaintiff was an experienced and professional rock climber. He was injured in a fall during a rock climbing competition at one of the defendant’s indoor “climbing gyms.” Plaintiff had climbed indoor climbing walls at some of defendant’s six facilities in the Bay Area during the several years preceding the incident. He had been intermittently a member of defendant’s facility, which entitled him to use any of its climbing facilities. Defendant had periodically required plaintiff to sign releases of liability in order to use their facilities.

Plaintiff had taken a few years off from competitive climbing, but had then joined the defendant at its Concord facility on February 4, 2004. At that time, he signed the most recent “Release of Liability and Assumption of Risk Agreement” (“Release”). The Release, in standard form language, specifies that the climber recognizes and assumes the significant risks of climbing, “both known and unknown, whether caused or alleged to be caused by the negligent acts or omission” of the defendant. Pursuant to the Release, plaintiff also agreed to release, discharge, and indemnify or hold harmless defendant from “any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity” or use of defendant’s equipment or facilities, including any “claims which allege negligent acts or omissions” of defendant.

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High School Daredevil

July 5, 2007

Benally v. Tacoma School District No. 10 (Washington)
(High School Student Leaning Over Railing Falls From Elevation; Triable Issue Regarding Condition of Premises Created Triable Issue of Material Fact and Trumped Application of Assumption of the Risk)

The plaintiff high school student and his friends congregated on a second story breezeway at Lincoln High School in Tacoma, Washington. His friends had previously warned plaintiff not to sit on the railing that protected students from falling approximately 20 feet to the ground below. Nonetheless, plaintiff sat on the railing during a lunch period, leaning backwards into space. As his friends had predicted, plaintiff lost his balance and fell to the concrete floor below, sustaining multiple serious injuries.

Plaintiff’s fall was linked to a square stone cap that sat on top of a pillar next to the stairs leading to the ground floor, which was described as a “heavy stone top.” In their depositions, two of his friends recounted that as plaintiff was leaning back, holding onto the stone cap with one hand and the railing with the other, the stone cap shifted as plaintiff fell. The school district filed a motion for summary judgment, which was granted by the court based upon primary implied assumption of the risk, and the plaintiff appealed.

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