Archive for the ‘Heirs and Survivors’ Category

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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Blown Engine – Drag Racer Dies During a Track Rental Session; Racetrack Faced with Triable Issues, Possible Punitive Damages (NJ)

August 26, 2015

Cruz v. ATCO Raceway, Inc. (New Jersey)
(trial court disposition)

Jose Cruz was involved a fiery crash that occurred at the drag racing strip owned by the defendant.  The accident was caused by a “catastrophic engine failure,” and Jose was severely burned.  Although he managed to escape the car and walk away from the wreck, he ultimately died at the hospital.  A lawsuit was filed by Jose’s widow on her own behalf and on behalf of Jose’s estate, alleging negligence, negligence per se, wrongful death, and survivorship.  The lawsuit also sought punitive damages.  The defendant filed a motion for summary judgment, and the New Jersey District Court granted the motion in part and denied the motion in part. (more…)

Broken Record – Judgment in Favor of Scuba-Diving Instructor in Death Case Upheld (TX)

April 29, 2015

DeWolf v. Kohler (Texas)

In 2008, Terry Sean DeWolf died while scuba diving more than fifty miles off the coast of Massachusetts.  Initially, the medical examiner identified the cause of death as drowning, but later revised the conclusion to reflect that he died of natural causes (myocarditis).  Terry’ wife thereafter filed a lawsuit against numerous defendants, including (among others) the boat used for the dive, the individual who chartered the boat (Kohler), a television network which had carried a program on which Kohler had appeared, the dive-training company from which Kohler obtained credentials as a scuba-diving instructor, and the scuba-equipment manufacturer that manufactured the rebreather that Terry had used during the dive.  The wife alleged several claims, including violations of the Deceptive Trade Practices Consumer Protection Act, the federal Death on the High Seas Act, and other state law claims.

Numerous motions were filed in this complicated lawsuit, and the trial court addressed many issues relating to personal jurisdiction and statutes of limitation.  Ultimately, Kohler was the only remaining defendant and the case proceeded to trial.  Following a jury trial, the court entered judgment in favor of the defendant, and the wife appealed.  On appeal, the wife challenged instructions that were given to the jury.

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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…)

A Racing Incident

September 28, 2012

Ketchum v. Mercer Raceway Park, LLC (Pennsylvania)(Not Published)
(A race team crew member was killed when a race car left the racing surface and struck a guard rail in front of the crew member; his estate sued the speedway for wrongful death.)

The incident occurred in 2007 during a race at the defendant’s speedway.  The decedent and a friend were volunteer members of a pit crew.  They were standing near a guard rail and catch fence barrier of the pit area watching a race when a race car moved across the racing surface and collided with the guard rail and catch fence.  The concrete footing of the fence was ripped from the ground, and a steel pole was separated from the footing, striking the decedent.

According to the evidence presented, sometime prior to the incident, the owner of the racetrack hired the track’s manager to improve the fencing around the track for safety reasons.  The manager designed and installed the barrier “on his own” without instruction, guidance, or formal education or training.  He was learning as he went along and utilized his “best guess” as to how far into the ground to place each pole.  The manager was aware that steel posts could be separated from the footing of a fence and pulled from the ground because he had seen it happen before.

Prior to their entry into the facility and participation on the pit crew, the decedent and his friend paid a pit entrance fee and signed a “Release and Waiver of Liability and Indemnity Agreement.”  They understood what they were signing and knew that crashes occurred and had seen cars collide with walls/guard rails.  They had participated as pit crew members at numerous prior events and had signed many prior waiver and release agreements.  The evidence also showed that the racetrack posted rules specific to the pit area at its entrance, along with warning signs to both participants and patrons concerning the possible dangers of watching automobile racing.

In their lawsuit, the plaintiffs argued that the defendant “acted negligently with respect to the construction and installation of the guard rail and fencing.”  The defendant thereafter moved for summary judgment based upon the waiver and release agreements signed by the injured pit crew members.  The plaintiffs made several arguments against the enforceability of the waiver and release documents, but the trial court disagreed, granting the motion.  The plaintiff appealed.  On appeal, the Court of Appeals addressed each of plaintiffs arguments in turn.

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Rough Neighborhood

September 24, 2012

Landings Association, Inc. v. Williams (Georgia) (The estate of a victim fatally injured during an alligator attack brought an action against the association that owned the property were the attack occurred; the Supreme Court of Georgia ultimately held that the victim assumed the risk of harm or failed to exercise ordinary care.)

The 83-year-old decedent was house sitting for her daughter and son-in-law at a planned residential development with a golf course.  Prior to the construction of the development, the land was largely marsh, where indigenous alligators lives and thrived.  As part of the development, the defendant association installed a lagoon system which allowed enough drainage to create an area suitable for residential development.  Alligators inhabited the area both before and after the development, although no person had ever previously been attacked.  The decedent went for a walk near one of the lagoons one evening in 2007 and was attacked and killed.

Under Georgia’s premises liability law, the estate of the decedent argued that the association failed to take reasonable steps to protect the decedent from being attacked.  The defendant filed a motion for summary judgment, which was denied by the trial court.  The defendant filed an interlocutory appeal, and the Court of Appeal affirmed the denial.  The defendant then filed a petition for a writ of certiorari with the Supreme Court of Georgia, which was granted.

The Supreme Court reversed the ruling finding that the decedent “had equal knowledge of the threat of alligators within the community.”  The Court explained that decedent “either knowingly assumed the risks of walking in areas inhabited by wild alligators or failed to exercise ordinary care by doing so.”  According to the Court,

“The record shows that, prior to the attack, [decedent] was aware that the property was inhabited by alligators. [Decedent’s] son-in-law testified that, on at least one occasion, he was driving with [decedent] on property in [the development] when he stopped the car to allow [decedent] to look at an alligator. [Decedent’s] son-in-law also testified that [decedent] was, in fact, aware that there were alligators in the lagoons at [the development] and that he believed that [decedent] had a ‘normal’ respect for wild animals.”

Like the Court of Appeal, the dissent from the Supreme Court questioned the extent of the knowledge of the danger by the decedent arguing that there was “no ‘competent evidence that the decedent knew there were alligators over seven feet in size living in the community or living in the lagoon in which [decedent’s] body was found.’”  However, the majority countered by stating that “A reasonable adult who is not disabled understands that small alligators have large parents and are capable of moving from one lagoon to another, and such an adult, therefore, assumes the risk of an alligator attack when, knowing that wild alligators are present in a community, walks near a lagoon in that community after dark.” The dissent also questioned the published policies of the defendant association and the effectiveness of its patrols, inspections, and security.  The dissent expressed that reasonable minds could differ, and that the issue of negligence, contributory negligence, and lack of care for one’s own safety should have been resolved by trial.

NOTE: Considering the discussion in the dissent, the significance of the claim, and the court’s tendency to allow matters of negligence to be determined by a jury as a matter of fact, this is a pretty bold decision.

Scuba Diving School Stays Above Water

July 6, 2008

Booth v. Bowen (U.S. Virgin Islands-UNPUBLISHED)
(Federal Court Enforces Waiver in Favor of Scuba Diving School; Denied Claims of Heirs Suing on Behalf of Novice Scuba Diver Who Died While Completing the School’s Introductory Course.)

This case involved an action brought by the heirs of a deceased scuba diver. The decedent participated in a novice diving course in Saint Thomas, U.S. Virgin Islands. The deceased had no diving experience. Before participating, he signed a “Questionnaire” which was titled “Liability Release and Assumption of Risk Agreement.” The school argued that the language of the agreement relieved them from negligence liability. The plaintiff-heirs argued that the waiver should be unenforceable on public policy grounds because the agreement improperly barred the claims of heirs and family member of the deceased. The plaintiffs contested the fact that the agreement signed by the decedent precluded an undetermined class of individuals (heirs and family members) from filing suit.

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