Archive for the ‘Government Immunity’ Category

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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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.

Out in the Cold – Claim for Injury to Snowmobiler Barred by Recreational Immunity Statute (OR)

July 31, 2015

Stringer v. U.S. Department of Agriculture (Oregon)
(trial court disposition)

A snowmobiler was injured in a national forest when he drove off an embankment.  He filed a lawsuit against the U.S. Forest Service under the Federal Tort Claims Act.  The Forest Service moved to dismiss the claim.  The U.S. District Court ruled that the Forest Service was entitled to statutory immunity.

The Court noted that as stated in the Oregon statutes, “it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes … by limiting their liability toward persons entering thereon for such purposes….” (citation omitted) advances this policy by granting “immunity to landowners who open their land to the public for recreational purposes.”  Referring to one of the exceptions to the immunity, the plaintiff argued that the Forest Service had waived the immunity by charging a fee for use of its lands.  Specifically, plaintiff cited that the Forest Service charged third parties for camping fees and ski-lift fees within the forest lands.  However, the Court disagreed, explaining “The Deschutes National Forest comprises approximately 1.8 million acres of land, including three independent ranger districts. (citation omitted)  A fee charged at one end of the Deschutes National Forest cannot, as a matter of public policy, waive immunity at the other end of the same forest, thousands of miles away, simply because the government made a charge.”

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…)

Show’s Over – Indemnity Dispute Between State Fair and Equipment Lessor Regarding Collapsed Stage Continues (IN)

May 29, 2015

In re Indiana State Fair Litigation (Indiana)
(one Judge dissenting)

This case arises from a collapsed stage at a state fair in August of 2011, which caused several deaths and injuries.  The issue was whether the stage equipment supplier (Mid-America Sound [“Mid-America”]) was entitled to indemnification from the event operator (the Indiana State Fair Commission [“Commission”]) based on the terms and conditions of the typical course of business between them.

Dating back to the mid-1990s, the Commission leased temporary roof structures and other equipment from Mid-America to use for outdoor concerts on property operated by the Commission.  During the last ten years of their relationship, the parties followed the same procedure with regard to the equipment leasing.  Mid-America delivered the equipment before the event and then later returned to pick up the equipment after the event.  When it picked up the equipment, Mid-America would sign contracts for the rented items and submit the contracts to the Commission.  The Commission audited each contract to make sure it conformed to the agreement of the parties and then issued payment.

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Attack on Connecticut’s Public Lands

May 12, 2011

Recreation on Public Land Jeopardized (Connecticut)
(Recent developments in Connecticut case-law appear to reverse past trends and open up public lands to liability for injuries incurred in connection with recreational use by members of the public.)

The Overlawyered blog recently posted an article discussing developments which are opening up public lands to potential liability where protections were once found.  This trend could potentially stifle recreational opportunities for state citizens.

Risks of Tackle Football Under Review

September 17, 2010

Betts v. New Castle Youth Development Center (Pennsylvania)
(17-year-old suffers spinal cord injury while playing “pick-up” football at a government youth development center; the center and its employees are found immune under the Eleventh Amendment to the Constitution.)

The 17-year-old plaintiff severely injured himself while attempting to make a tackle in a “pick up” tackle football game without any pads, helmets, or other safety gear. He thereafter sued the New Castle Youth Development Center (a facility that houses youths that have been adjudicated delinquent and committed to the state’s care) and several members of its staff, alleging that his rights were violated under the Eighth Amendment (prohibition of “cruel and unusual punishment”) and Fourteenth Amendment (deprivation of substantive due process) of the United States Constitution. The evidence indicated that immediately after the incident, an employee of the facility asked the plaintiff to tell authorities that he was playing touch football at the time of the injury rather than tackle football. The defendants filed a motion for summary judgment contending that they were immune from liability under the Eleventh Amendment and the United States District Court agreed, finding that the facility was an administrative agency “without existence apart from the Commonwealth.” As for the claims against the individual employees, the District Court ruled that there was insufficient evidence to show a “substantial risk of serious harm” and “deliberate indifference to that risk.” The court stated that the challenged behavior of allowing the youths to play tackle football without equipment “did not shock the conscience.” The plaintiff appealed and the Court of Appeal affirmed the District Court’s decision.

NOTE: In ruling against the plaintiff on the Eighth Amendment claim, the court included the following notable quotable: “Life is fraught with risk of serious harm and the sports world is no exception.” The discussion by the Court of Appeal in terms of the risk evaluation of tackle football is quite interesting. Citing past incidents of publicized spinal cord injuries, the plaintiff asserted that the risk of serious harm inherent in playing tackle football without equipment was “obvious.” However, the Court of Appeal stated that the plaintiff’s evidence shed “no light on the frequency or likelihood of such injuries” and did not mean that there was a “substantial risk.” The Court concluded that there was no “evidence from which a reasonable jury could conclude that serious injury is a common or likely occurrence in tackle football games.” The Court also referred to the fact that there had been no prior reported injuries as a result of tackle football games at the facility, supporting the conclusion that there could be no deliberate indifference to a serious risk on the part of the facility or its employees.

No Free License to Mow Down Bikers

August 28, 2010

Klein v. U.S. (California)
(California Supreme Court rules that the liability shield of California’s recreational use statute did not extend to acts of vehicular negligence.)

The plaintiff was riding a bicycle for recreation on a two-lane paved road in Angeles National Forest in Southern California when he was struck head-on by an automobile driven by a part-time volunteer working for the United States Fish and Wildlife Service. The court ruled that California Civil Code Section 846, which provides that a landowner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose” did not extend to acts of vehicular negligence. The Court based its decisions on the plain language of the statute noting that the statutory phrase “keep the premises safe” related to property-based duties underlying premises liability, not including vehicular negligence.

NOTE: The Court’s conclusion was logical based upon the clearly defined duties related to premises liability.

Gimme a W-A-I-V-E-R . . . What’s that Spell?!

July 2, 2007

Jestes v. Cleveland County Board of Education (North Carolina)
(High School Cheerleader Injured During Practice and Sued School Board; School Board was Partially Immune Pursuant to Government Immunity Statutes, But Waived Immunity in Part By Procuring Excess Liability Insurance)

A cheerleader, who was injured while participating in a cheerleading practice, brought a lawsuit against the school board and its cheerleading coach. The school board filed a motion for summary judgment, citing government immunity barring actions against the state, its counties, and its public officials sued in their official capacity. The trial court denied the motion in part and granted it in part, finding that the board was immune up to a certain dollar value, but that the board had waived its immunity above that value by procuring excess liability insurance coverage. The board appealed the ruling.

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