Archive for the ‘Gross Negligence’ 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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Scuba Tragedy – Diver Drowns; Releases Enforceability to Protect Diver Association from Ordinary Negligence (HI)

September 3, 2015

Hambrock v. Smith (Hawaii)
(trial court disposition)

Plaintiff, her husband, and their children went on a recreational scuba diving excursion that departed from Hawaii.  During the excursion, plaintiff’s husband died by drowning.  Plaintiff brought a lawsuit against numerous defendants, including (1) the dive guide on the scuba excursion (“Smith”), (2) the co-captain of the dive vessel (“McCrea”), (3) a dive training organization and an association for diving instructors and dive centers in which both the Smith and McCrea were members (“PADI”), and (4) the corporate entity out of which the Smith and McCrea ran their scuba excursions (“HSS”).  The lawsuit alleged negligence (all defendants), gross negligence (all defendants), and vicarious liability on theories of apparent agency, agency by estoppel, and maritime joint venture (against PADI).

PADI filed a motion seeking summary judgment as to both the negligence claims and the vicarious liability claims against it (i.e., all claims except gross negligence) based on the liability releases signed by the plaintiff and her family prior to the scuba diving activities.  In addition to opposing PADI’s motion, the plaintiff also filed a motion for partial summary judgment of her own, challenging the enforceability of the releases.  In addressing the enforceability of the releases, the U.S. District Court for Hawaii reviewed both admiralty law and Hawaii state law.

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Maintenance Mystery – Gross Negligence is an Issue of Fact for Jury in Fitness Club Equipment Case (CA)

August 7, 2015

Chavez v. 24 Hour Fitness USA, Inc. (California)

Plaintiff suffered a traumatic brain injury when the back panel of a “FreeMotion cable crossover machine struck her in the head at the defendant’s workout facility.  Plaintiff filed a complaint alleging claims for ordinary and gross negligence and strict product liability.  The defendant moved for summary judgment arguing (1) the written release of liability in its membership application was a complete defense to the negligence claims, (2) it could not be liable under a products liability claim because it was a service provide and it was not in the chain of commerce, and (3) the plaintiff could not reasonably demonstrate an extreme departure from the ordinary standard of care or a failure to exercise scant care which was required to state a claim for gross negligence because the defendant’s technician routinely inspected the equipment and performed preventative maintenance on it.

Plaintiff opposed the motion, and, in the alternative, sought a continuance of the motion based on the fact that the defendant claimed that it was unable to produce the maintenance technician for deposition because he was not longer employed by defendant and he could not be found.  The trial court denied plaintiff’s motion to continue, noting that the maintenance technician had been identified many months before the defendant filed its motion for summary judgment, but plaintiff elected not to subpoena him until after it received the motion.  The trial court then granted the defendant’s motion finding (1) the primary purpose of the membership agreement was the provision of fitness services such that defendant could not be held strictly responsible under the products liability claim, (2) the ordinary negligence and premises liability claims were barred by the release of liability in the membership agreement, and (3) the defendant had met its burden to show it was not grossly negligent by establishing “it had a system of preventative and responsive maintenance of its equipment.”  Plaintiff appealed the trial court decision, but only as to the ruling on its motion to continue and as to the gross negligence claim. (more…)

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…)

¡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…)

Big Bag of Beads – New Orleans Krewe Not Liable for Injury to Parade Attendee (LA)

May 18, 2015

Citron v. Gentilly Carnival Club Inc. (Louisiana)

The plaintiff was a long time member the defendant Endymion Krewe, a carnival organization that hosted parades and events in New Orleans.  Her and her husband attended a parade and extravaganza event hosted by Endymion.  When the parade was making its loop through the Superdome, plaintiff was hit in the head by a bag of beads.  She received first aid treatment on site, and was then transported to a local hospital.

Plaintiff filed a lawsuit against the Endymion Krewe, alleging that it was liable both in its capacity as a organization and vicariously for its krewe member’s actions.  Plaintiff alleged that her injuries were caused by the “deliberate and wanton act or gross negligence” of the defendant, and that the defendant “willfully and knowingly permit its members to throw full bags of beads overhand in a space where people are seated, eating and enjoying musical entertainment.”  Plaintiff also asserted that because the defendant required its float “riders to be masked making identification of the individual tortfeasor impossible,” the defendant “must be liable for the conduct of its members.”

Defendant argued that each member of the Endymion Krewe received two tickets to enter into the subject extravaganza, and the tickets had a limitation of liability and assumption of risk printed on the back.  Defendant also asserted the affirmative defenses of comparative fault on the part of plaintiff (or third parties) and immunity for liability under the Mardi Gras immunity statute (La. R.S. 9:2796).  The statute, which was first enacted in 1979 to help control rising insurance costs for parading organizations, provides broad immunity for krewes that sponsor parades, and it provides that anyone who attends such a parade “assumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tossed or hurled by members.”  The krewe bears the initial burden of providing evidence to establish its right to immunity under the statute.  Once established, the burden then shifts to the claimant to establish that the krewe engaged in gross negligence (an exception to the immunity).

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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.

Legal Workout – Fitness Club Defends Negligence, Gross Negligence, Products Claims (CA)

March 23, 2015

24 hour fitness logoGrebing v. 24 Hour Fitness USA, Inc. (California)

In 2012, a member of a 24 Hour Fitness facility in La Mirada, California was injured while using a “low row” machine during a workout.  The clip holding the weight on the machine failed, causing the machine’s handlebar to strike the plaintiff in the forehead and allegedly causinghead, back, and neck injuries.  Plaintiff filed a complaint against the fitness facility for (1) negligence, (2) negligent products liability, (3) strict products liability, and (4) breach of implied warranty of merchantability.
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Coach of Youth Equestrian Rider Escapes Liability in Wrongful Death Case (CA)

March 11, 2015

Eriksson v. Nunnink (California)

In 2006, a 17-year old girl was killed while riding a horse in competition in California.  The parents of the decedent sued for wrongful death and negligent infliction of emotional distress, alleging that the horse was “unfit to ride because of prior falls and lack of practice.”  After the plaintiffs presented evidence at trial, the trial court granted defendant’s motion for entry of judgment, which the plaintiffs appealed.  The Court of Appeal held that the minor waiver and release agreement signed by the decedent and her mother prior to decedent’s participation in the competition was enforceable as a liability defense to the wrongful death claim.  Although a minor can “disaffirm” a written contract, the terms of the waiver and release agreement became “irrevocable and binding” under California caselaw when the agreement was signed by the minor’s parent. (more…)

Monkey Business

August 31, 2012

Howard v. Chimps, Inc. (Oregon)
(An intern at a chimpanzee sanctuary was injured when she was attacked by a chimpanzee;  she sued the sanctuary but the court dismissed her negligence and strict liability claims in light of the intern manual that she read and signed that included a waiver and release agreement;  the court also determined that there was no reasonable evidence of gross negligence.)

An intern at a chimpanzee sanctuary was injured just ten days after her start date.  A chimpanzee attacked her while she was cleaning a cage, and she brought an action against the sanctuary for negligence and strict liability.  Plaintiff thereafter moved for partial summary judgment, arguing that the waiver and release she signed was not enforceable.  The trial court denied that motion and later granted the defendant’s motion for summary judgment finding that the waiver and release precluded the plaintiff’s claims.  Plaintiff then appealed.

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