Archive for the ‘Infliction of Emotional Distress’ Category

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.

(more…)

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…)

Pipe Dream for Expert in Motocross Case

May 12, 2011

McCassy v. Superior Court (California – UNPUBLISHED)
(Minor motocross rider injured during practice ride; with the rider unable to recall the incident, her expert speculates that irrigation piping near the track caused her to lose control; the court finds a lack of evidence to support the theory and grants defendant’s motion for summary judgment.)

A 17-year-old female motocross rider was at a motocross track practicing, and she was involved in an incident occurred in which she left the track and struck an embankment. The rider did not remember how the incident occurred, but alleged that she struck a portion of PVC pipe about 10 feet from the racing surface which was part of the track’s irrigation system, causing her to lose control of the motorcycle. She alleged premises liability, and her father and brother, both of whom were present, sued for infliction of emotional distress.

An expert for the plaintiffs asserted that the track increased the normal risk of injury by placing the PVC pipe close to the track and that if a rider lost control and left the track, there was a high probability of striking it. The trial court denied the defendant’s motion for summary judgment based upon primary assumption of the risk, noting that placement of the irrigation system so close to the track was not inherently required for the sport. The defendant petitioned for review, and the Court of Appeal granted the Petition.

(more…)