Archive for the ‘Increased Risks’ Category

C-P-Rn’t You Glad You Didn’t Enroll in this Course?

June 22, 2008

Schoenlank v. Yonkers YMCA  (New York)
(A CPR student was injured by an instructor who applied “’forceful’ and excessive pressure and torque to the student’s head and neck for a period of approximately 20 seconds”; Court denied summary judgment for the instructor in finding that a triable issue of fact remained as to whether the instructor had negligently or recklessly enhanced the risk of injury associated with this demonstration.)

The plaintiff was an experienced lifeguard. While taking a CPR re-certification course, the plaintiff decided to volunteer to be part of a demonstration where the instructor showed the class how to “properly” perform a cardio pulmonary resuscitation (CPR) technique known as a “head-tilt, chin-lift.” This technique is a method of clearing the airway of an unconscious person in an emergency situation. During the demonstration, the plaintiff suffered injuries from what he described as an, “application of ‘forceful’ and excessive pressure and torque to [his] head for a period of approximately 20 seconds.” The lower court granted the defendant’s motion for summary judgment in holding that plaintiff was barred from recovery because he had primarily assumed the risk of injury by volunteering to participate in the demonstration. That court found this risk as being inherent in this sports/recreational activity.

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Paying the Price (Twice)

November 7, 2007

Heilig v. Touchstone Climbing, Inc. (California–UNPUBLISHED)
(Rock Climber Falls During a Competition; Release Precludes Negligence Claims; No Allegations or Evidence of “Gross Negligence”; Defendant Entitled to Attorneys Fees Pursuant to Release)

The plaintiff was an experienced and professional rock climber. He was injured in a fall during a rock climbing competition at one of the defendant’s indoor “climbing gyms.” Plaintiff had climbed indoor climbing walls at some of defendant’s six facilities in the Bay Area during the several years preceding the incident. He had been intermittently a member of defendant’s facility, which entitled him to use any of its climbing facilities. Defendant had periodically required plaintiff to sign releases of liability in order to use their facilities.

Plaintiff had taken a few years off from competitive climbing, but had then joined the defendant at its Concord facility on February 4, 2004. At that time, he signed the most recent “Release of Liability and Assumption of Risk Agreement” (“Release”). The Release, in standard form language, specifies that the climber recognizes and assumes the significant risks of climbing, “both known and unknown, whether caused or alleged to be caused by the negligent acts or omission” of the defendant. Pursuant to the Release, plaintiff also agreed to release, discharge, and indemnify or hold harmless defendant from “any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity” or use of defendant’s equipment or facilities, including any “claims which allege negligent acts or omissions” of defendant.

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Youth Was Served

July 5, 2007

Peterson v. Donahue (Minnesota)
(11 Year Old Experienced Skier Speeding Down the Ski Slope Collided with Adult Skier Crossing the Slope; Assumption of the Risk Precluded Negligence Claim by Youth)

The 11 year old plaintiff was skiing fast down the slope when he encountered the defendant adult skiier, who was slowly crossing the slope to access the parking lot. The two skiers collided, resulting in personal injury to the plaintiff. The plaintiff sued the defendant skier, claiming that he was negligent in failing to look up the slope for others skiers before crossing. The defendant filed a motion for summary judgment based upon primary assumption of the risk. The court granted the motion and the minor plaintiff appealed.

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