Archive for the ‘Fraud’ 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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¡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…)

Bite Worse Than the Bark – Whether Adopter of Dog Reasonably Relied on Representation of Shelter is a Jury Issue (NY)

June 2, 2015

 

Lawrence v. North Country Animal Control Center, Inc. (New York)

Plaintiffs adopted a basset hound named Brutus from the defendant facility, a not-for-profit animal shelter.  Less than a month later, the dog attacked one of plaintiffs’ other dogs.  One of the plaintiffs was able to separate the animals, but Brutus attacked the plaintiff during the altercation, causing severe injuries to both of his arms.  An employee of the defendant facility removed the dog from the plaintiffs’ home on the same day.  The defendant facility thereafter refused to return the dog to the plaintiffs and sent the dog to a rescue organization out of state.  Plaintiffs tracked down Brutus’ prior owner, who claimed that about a month prior to the adoption, Brutus had been turned over to the defendant facility “to be euthanized because he had attacked the owner and her child.”

Plaintiffs filed an action against the defendant facility and its employee, alleging causes of action for, among other things, negligence, fraudulent misrepresentation, products liability, and intentional infliction of emotional distress.  The defendants moved for summary judgment, and plaintiffs cross-moved to amend the complaint and for summary judgment on their claim for intentional spoliation (the defendant facility did not produce Brutus and did not know its current whereabouts).  The trial court granted the cross-motion to amend, denied plaintiffs’ cross motion for summary judgment, and treated the claim for spoliation as a request for sanctions.  However, the trial court ruled (without prejudice to raise the issue again upon completion of discovery) that it was not imposing sanctions in connection with the defendants failure to produce the dog.  The trial court further partially granted the defendants’ motion, dismissing the products liability claim and one other cause of action.  The plaintiffs and defendants both appealed. (more…)

Stuck Between a Dumbbell and a Hard Place – Fitness Club Members Claims RE Smashed Finger Dismissed (TX)

May 12, 2015

 

Grijalva v. Bally Total Fitness (Texas)

Plaintiff had been a member of defendant’s health and fitness club for many years.  When he joined, plaintiff signed a detailed Membership Application, which included waiver and release and assumption of risk language.  About a year after he joined, plaintiff was injured while lifting weights.  His finger was caught between his own weights and a set of weights that was left on the floor by another member, causing disfigurement and loss of use.  Plaintiff sued the defendant club for premises liability, negligence, intentional infliction of emotional distress, breach of common law warranty, fraudulent inducement, and breach of contract.  In particular, plaintiff alleged that there were “several weights or dumbbells left around the various benches nearby [the bench where he was lifting weights] that were not returned to their regular and specific rack locations.”  A set of those weights left by another member caused plaintiff’s injury.  The intentional conduct claim was based on plaintiff’s allegation that the defendant failed to assist him “in mitigating the extent of his injuries to his finger” by “failing to summon medical assistance immediately.”

Defendant moved for summary judgment, contending (1) plaintiff had waived his right to pursue his negligence claims by executing the waiver and release provisions of the Membership Application, and (2) plaintiff could not provide evidence of all essential elements of his remaining claims.  Initially, plaintiff asserted that he did not sign a waiver and release in the Membership Agreement (he claimed that while he signed the second page of the agreement, the waiver and release provision is on the third page, which he did not sign), that he did not “speak and write English properly,” and that the club did not discuss the waiver and release with him.  He also argued that the waiver and release in the Membership Application did not meet Texas’ “fair notice requirement” because it was not conspicuous.  The trial court granted the club’s motion, dismissing plaintiff’s claims, and plaintiff appealed.

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Quite a Show – Concussed Cheerleader Barred From Making Claim RE Failed High School Cheer Stunt (CA)

April 30, 2015

Baggay v. Linfield Christian School (California)
(not published)

A high school cheerleader suffered a concussion while performing a stunt during practice.  She filed a lawsuit against the school, asserting causes of action for (1) “negligence/recklessness,” (2) “false promise,” and (3) negligent misrepresentation.  The school filed a motion for summary judgment, or in the alternative summary adjudication, on the grounds that the claims were barred by the primary assumption of risk doctrine and that the plaintiff could not establish the essential elements of her false promise (promissory fraud) and misrepresentation claims.  The trial court granted the school’s motion, and the cheerleader appealed.

On appeal, the cheerleader argued that her claims were not barred by primary assumption of the risk “because a concussion is not an inherent risk of cheerleading,”  The Court of Appeals for California disagreed, stating that “‘[i]nherent risk’ does not refer to the type of injury that the plaintiff sustains or the manner in which the injury occurred, but rather the reason for the injury.” (Emphasis in the original.)  The Court continued, “An inherent risk is one that, if eliminated, would fundamentally alter the nature of the sport or deter vigorous participation.”  The plaintiff was injured because the group of cheerleaders failed to properly execute a stunt they had previously practiced and had previously successfully executed.  It is fundamental to the nature of modern cheerleading that teams will practice and perform stunts that involve the risk of injury.  Thus, “any type of injury that reasonably could be expected to result from such a fall is an inherent risk of modern cheerleading.” (Emphasis in the original.) (more…)

Can’t Catch a “Brake” – Woman Injured on Foreign Bicycle Tour Forced to Litigate Away from Home (PA)

April 20, 2015

Steinfeld v. EMPG International (Pennsylvania)

The Pennsylvania plaintiffs were injured during a trip to Costa Rica.  Prior to leaving for Costa Rica, the plaintiffs visited the website of defendant EMPG International, LLC (a Colorado limited liability company) and consummated an online transaction to rent bicycles and sign up for a bicycle tour while in Costa Rica.  The bicycle equipment was allegedly not in the condition originally promised by the defendant, and one of the plaintiffs was injured during the tour due to faulty brakes on the bicycle.  The plaintiffs filed a federal lawsuit in the U.S. District Court for the Eastern District of Pennsylvania, alleging negligence, negligent hiring and retention, vicarious liability, joint enterprise, agency, breach of contract, violation of the Pennsylvania Consumer Protection Law, fraud, negligent misrepresentation, and loss of consortium.

The defendant filed a motion to dismiss the action based on a lack of personal jurisdiction and a failure to state a claim under which relief could be granted.  Following a pretrial conference, the Court entered an order permitting the parties to conduct discovery regarding jurisdiction, and the court required the parties to submit a joint stipulation of facts with respect to jurisdiction so that it could rule on the defendant’s motion to dismiss.  After reviewing the evidence and stipulated facts, the Court found that the “plaintiffs’ cause of action did not arise out of or relate to the company’s contacts with Pennsylvania.”  However, because the defendant was subject to general personal jurisdiction in Colorado, the Court transferred the case to the U.S. District Court for the District of Colorado.

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