Archive for the ‘Field/Surface Conditions’ Category

Root of the Problem – Claims of Woman Injured on Segway Tour Barred by Exculpatory Agreement (CA)

November 9, 2015

Lamb v. San Francisco Electric Tour Company (California)
(not published)

The plaintiff and her husband went to Golden Gate Park with their son and took a guided tour of the park on individual Segway transporter vehicles.  The tour was operated by the defendant.  Plaintiff was injured on the tour and filed a lawsuit against the defendant, alleging vehicle negligence, general negligence, and common carrier negligence.  The defendant filed a motion for summary judgment based on the express waiver provisions of an agreement signed by the plaintiff, the express assumption of the risk provisions of that same agreement, and the primary assumption of the risk doctrine.  The trial court granted the motion, finding that the exculpatory agreement signed by the plaintiff was enforceable and contemplated the circumstances of the accident.  Plaintiff appealed.

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No Relief – Issue of Town’s Liability Regarding Condition of High School Baseball Field for the Jury (MA)

October 19, 2015

Murray v. Town of Hudson (Massachusetts)

A relief pitcher for a high school baseball team injured his knee while warming up in the visiting team bullpen.  He filed a lawsuit against the town that maintained the park at which the baseball field was located, alleging that the injury was caused by the town’s negligence and its wanton and reckless conduct in allowing the visiting team to use a dangerous bullpen.  The town filed a motion for summary judgment arguing that the negligence claim was barred by the Massachusetts recreational use statute, and that the evidence did not support a finding of wanton or reckless conduct.  The trial court granted the defendant’s motion, and the pitcher appealed.

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(Un)Safe! – High School Softball Playing Injured During Sliding Drill; Triable Issues Regarding Increased Risks (NY)

August 31, 2015

Brown v. Roosevelt Union Free School District (New York)

A high school senior softball player was injured while participating in an infield sliding drill during softball practice on an elementary school field.  The team was practicing on the elementary school field because the high school field was being renovated.  The injured player’s mother filed a lawsuit on her behalf alleging that the coach increased the inherent risks of the softball by having her perform an infield sliding drill on a grass field.  The defendant school filed a motion for summary judgment, arguing that the claim was barred by the doctrine of primary assumption of risk.  Defendant asserted that under the law, the risks of an activity include risks associated with the construction of the playing surface and any open and obvious condition on it.  The trial court denied the defendant’s motion, and the defendant appealed.

The Appellate Division of the Supreme Court affirmed the trial court decision.  The Court concluded that “the defendants failed to establish, prima facie, that the infant’s coach, by having her perform an infield sliding drill on the subject grass field, did not unreasonably increase the inherent risks of the activity.”  In that the defendant failed to meet its burden, the Court said it did not need to determine the sufficiency of the plaintiff’s opposition papers.

All Wet – Airport Not Liable for Failed “Soft-Field Take Off” (NY)

August 5, 2015

Bouck v. Skaneateles Aerodrome, LLC (New York)

This matter involved an unsuccessful attempt by a private plane to take off from a grass-surfaced runway at the defendant’s airport.  Plaintiff suffered personal injury when his plane encountered a soft and wet area on the runway, causing the plane to dig in and tip over.  Plaintiff was a flight instructor with 40 years of experience and he had utilized the defendant’s runway for more than 100 take offs and landings.  Although it had not rained on the day of the incident, it had rained for several days prior.  Before attempting to take off, plaintiff inspected the runway because he was concerned that the surface was soft and wet.  The trial court denied the defendant’s motion for summary judgment, and the defendant appealed.

On appeal, the Appellate Division of the Supreme Court reversed the decision.  The Court indicated that it agreed with defendant “that its airport is a designated venue for the recreational activity of private aviation and that plaintiff’s use thereof was in furtherance of his pursuit of that activity.”  The Court noted that “plaintiff’s recreational use of defendant’s airport was a qualifying activity under the doctrine of primary assumption of the risk” and that the “primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions.”  It was not necessary for the plaintiff to have foreseen the exact manner in which his injury occurred, so long as he was aware of the potential for injury or the mechanism from which injury resulted.

Deeply Depressed – Experienced Skier Claim Relating to “Depressions” in Snow Survives Court Motion (NY)

May 26, 2015

Paulus v. Holimont, Inc. (New York)

The sixty-right year old plaintiff was a self-described “accomplished” skier, who had been skiing since the age of 5.  Plaintiff had participated in various ski races throughout the years, and he had skied on different mountains throughout the world involving varying terrain, including ice and moguls.  Plaintiff drove from his home in Ohio to the defendant’s ski area in New York.  It was his second visit to the defendant’s resort.  On his first run of the day, plaintiff was coming down a trail at the facility called “Corkscrew” (a trail rated “more difficult” with a blue square), when he encountered difficult terrain and crashed, suffering injuries.  Plaintiff used racing skis and boots, and he admitted that he liked to ski fast.  He estimated that he was traveling twenty miles an hour at the time of the incident.  Plaintiff acknowledged that a “blaze orange caution sign was placed directly at the top of the portion of the Corkscrew trail where [he] was injured.”  However, the plaintiff testified that he did not believe he had observed the sign as he cut over to the Corkscrew trail from another trail (i.e., plaintiff believed he skied onto the Corkscrew trail below the caution sign).

Plaintiff (and his wife) sued the defendant for negligence, and the defendant filed a motion for summary judgment, asserting that plaintiff’s claim should be barred by primary assumption of risk.  The trial court acknowledged that in New York “[d]ownhill skier ‘assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and manmade objects that are incidental to the provision or maintenance of a ski facility.'”  The doctrine is recognized in New York’s Safety in Skiing Code.  Additionally, “variations in terrain, including moguls, are recognized risks that are inherent in the sport of downhill skiing.”

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And the Runner is Out – Claim By Spectator at a Little League Game Barred by Recreational Use Statute (RI)

May 11, 2015

Carlson v. Town of South Kingston (Rhode Island)

The plaintiff was attending her son’s little league game being played at a park and field owned and maintained by the defendant town.  As she was walking from a batting cage area over to a concession stand to meet her son, she stepped in a “divot” and broke her leg.  Testimony established that the “divot” was created by kids waiting to get into the batting cages when they would dig their cleats into the ground.  Plaintiff filed an action against the town, alleging the town negligently maintained the premises.  The town moved for summary judgment based on Rhode Island’s Recreational Use Statute (“RUS”).  Plaintiff objected to the motion citing two exceptions to the RUS and alleging: (1) the town had “willfully or maliciously failed to guard or warn against a dangerous condition on the land,” and (2) the town had charged plaintiff for her access to the park.  The trial court granted the motion, and the plaintiff appealed.

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In the Rough – Golf Course Defeats Claim of Golfer Who Tripped Over a “Clump” of Mowed Grass (NY)

May 5, 2015

German v. City of New York (New York)
(unreported trial court disposition)

A veteran golfer tripped and fell on a “clump” of wet grass on a golf course, suffering a significant leg injury.  He filed a negligence lawsuit against the golf course, claiming that it failed to properly maintained the course, failed to properly cut and remove or disburse cut grass at the location of the fall, failed to keep the course free from hazardous conditions, and failed to property train, supervise and coordinate its employees.  The golf course filed a motion for summary judgment based on the doctrine of primary assumption of risk.  The trial court (the Supreme Court of New York) granted the course’s motion.

On the day of the incident, the grass was very wet and golf carts were banned from the fairway.  Plaintiff completed the first 12 holes of the course, and by the time the plaintiff reached the 13th hole, the grass was in the process of being cut.  Plaintiff stepped out of the cart and began walking down the hill towards his ball when he tripped and fell on the clump of wet grass that purportedly was left on the fairway after the grass had been cut.

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Jump? What Jump?

November 15, 2012

Anderson v. Boyne (Michigan)(Not Published)
(A snowboarder was paralyzed in an accident involving a jump in the defendant’s terrain park.  He sued, alleging negligence on the part of the defendant, including with regard to the design of the subject jump.  However, the court held that the jump was open and obvious, and that the Michigan statute addressing ski operator liability protected the defendant under the circumstances.)

At the trial court level, the defendant filed a motion for summary judgment, which was granted on the grounds that the plaintiff’s claim was barred “because the jump was an inherent, obvious, and necessary danger of snowboarding.”  The plaintiff appealed.

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Target Practice

September 20, 2012

Bukowski v. Clarkson University (New York)
(A university baseball pitcher was injured by a line drive while participating in a practice, and he sued the university and his head coach;  the court found that the pitcher had assumed the inherent risk of being hit by the baseball and affirmed the trial court’s directed verdit in favor of the defendants.)

The plaintiff was injured after throwing a fastball to a batter during “live” indoor practice without a protective screen.  The batter struck the ball which hit the plaintiff in the jaw and broker his tooth.  After the lawsuit was filed, the defendants filed a motion for summary judgment, which was denied.  At trial, plaintiff argued “that the risk of being hit by a batted ball was enhanced due to the multicolored pitching backdrop and low lighting at the indoor facility, which made it harder to see the white ball, and the failure to use an L-screen.”

At the close of evidence, the trial court granted defendants’ motion for a directed verdict “on the ground that plaintiff assumed the commonly appreciated risk in baseball of being hit by a line drive.”  Plaintiff appealed.

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Root of the Problem

August 3, 2012

Connelly v. City of Omaha (Nebraska)
(Children were injured while sledding at a public park when they struck a tree, and their parents filed an action agains the city for negligence; liability was imposed against the city for failing to remedy an unreasonable risk of harm.)

The Nebraska Supreme Court determined that the City of Omaha should have realized that the trees in the area of the park used by the public for sledding posed an unreasonable risk of danger.  Moreover, the Court explained that the city should have expected that lawful visitors to that area of the park for sledding would fail to protect themselves against the danger posed by trees in the area.  Key facts in the litigation revolved around the city’s efforts to restore and renovate the subject park where the incident occurred about 10 year prior to the incident.  The city held public hearing opportunities, and issues relating to “sledding opportunities” were discussed in detail.  City officials also specifically debated issues regarding the placement of trees and how such placement could affect the sledding activities.  Several years later, many trees were planted at the park in an area previously identified as the location for sledding.  There was also an indication of prior similar incidents in the area.

The verdict from a bench trial was affirmed, and the children and parents were awarded damages.  The damages of all parties were subject to damage caps pursuant to Nebraska’s statutory scheme limiting the liability exposure of political subdivisions.

NOTE: Cases like this are a reason that government entities are hesitant to fully embrace recreational activities on public lands.  It ia also a lesson to government entities to carefully select their words while making a public record on issues relating to potentially dangerous conditions on public lands.  Unfortunately, the impact of cases like this extends far beyond these parties and the City of Omaha.