Archive for the ‘Inherent Risks’ Category

Nothing to Make Light Of – Court Determines that Risk of Injury from Mislabeled, Heavy Box Assumed by Delivery Driver (CA)

January 13, 2016

Moore v. William Jessup University (California)

A UPS deliver driver was injured when he lifted a box that was shipped by the defendant university.  When it prepared the table for the box, the defendant inaccurately stated the weight of the box.  The driver filed a negligence action against the defendant, and the defendant filed a motion for summary judgment contending that the driver’s claim was barred by the primary assumption of risk doctrine.  The trial court granted the defendant’s motion, finding that the defendant did not owe the driver a duty of care with regard to the box, and the driver appealed the decision.

The California Court of Appeal affirmed the trial court decision.  The driver argued that the defendant increased the risk of injury by mislabeling the box.  However, the Court held that “the risk of injury from lifting heavy boxes that may be labeled with inaccurate weight information was inherent in [defendant’s] job as a UPS delivery driver.”  UPS did not require customers to weigh their packages before labeling them, and customers were sometimes inaccurate in the identification of their weight.  In California, “Courts have held that, as a matter of public policy, it is unfair to impose a duty on a defendant to prevent an injury to a plaintiff arising from the very condition or hazard the defendant retained the plaintiff to confront.”

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Speed Wobble – Discovery Regarding Failure to Warn Allowed in Longboarding Death Case (VT)

November 5, 2015

Cernansky v. Lefebvre (Vermont)
(trial court disposition)

A college student was fatally injured while riding a longboard style of skateboard.  His estate brought a lawsuit against the roommate who lent him the board and the skateboard shop that sponsored the roommate as a longboard rider.  The complaint alleged wrongful death and negligent failure to warn the decedent about the dangers associated with the activity (the roommate did not provide the decedent with any safety instructions prior to taking the decedent longboarding).  The roommate filed a motion to dismiss the action for failure to state a claim, and the skateboard shop filed a motion to dismiss the action against it based on a lack of personal jurisdiction.

The United States District Court for the District of Vermont denied both motions.  First, the Court held that the estate’s complaint did state a claim against the roommate under Vermont law for negligent failure to warn.  The Court explained:

“. . . the Complaint alleges [the roommate] should have foreseen the potential for serious injury based upon his knowledge of long boarding. More specifically, [the roommate] allegedly should have foreseen that sending [the decedent], a first-time longboarder, down a hill without a helmet or instruction presented a risk of harm giving rise to a legal duty. Plaintiff claims that [the roommate] breached that duty.  ¶  The fact that the longboard was loaned to [the decedent] does not alter the negligence analysis. In the comparable context of negligent entrustment, the ‘theory requires a showing that the entruster knew or should have known some reason why entrusting the item to another was foolish or negligent.'”

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Snowmobile Wins Again – Claims of Injured Ski Racer Survive Motion Based on Waiver and Assumption of Risk Statutes (CO)

October 29, 2015

Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp. (Colorado)
(trial court disposition)

Plaintiff was a member of the Sarasota, Florida Ski Team.  She traveled to the Steamboat Springs Ski Resort in Colorado to participate in ski races.  After finishing her second race and exiting the race course, plaintiff skied down a trail and headed toward the ski lift.  She attempted to ski past the lift to a picnic area to meet up with other racers.  However, she collided with a snowmobile that was parked near the lift.  Plaintiff sued the ski resort alleging (1) common law negligence in parking the snowmobile in a dangerous, high-traffic area, and (2) negligence per se under the Colorado Ski Safety Act (“SSA”) by failing to mark and pad the snowmobile.

The defendant moved for summary judgment, arguing (1) that the exculpatory clause contained in the race participation agreement signed by the plaintiff prior to her participation barred the plaintiff’s claims, (2) the common law negligence claim was barred by the SSA (“no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing”), and (3) the negligence per se claim failed because the SSA does not apply under the circumstances (i.e., with regard to a parked snowmobile).

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No Sympathy – Claims of Injured Passenger in Go Kart Barred by Assumption of Risk; No Product Defect (NY)

October 22, 2015

Garnett v. Strike Holdings, LLC (New York)

The plaintiff rode as a passenger in a two-seat go kart driven by her then boyfriend.  While driving on the track, they were allegedly bumped twice by other go karts, allegedly causing the plaintiff to suffer injuries, including “reflex sympathy dystrophy.”  Plaintiff sued the operators of the indoor recreational facility, alleging negligent and defective design, strict products liability, failure to warn, and breach of warranty.

The defendants filed a motion to strike the products liability claim.  However, the trial court denied the motion finding (1) that [the operators] leasing and rental of the go-karts could support the inference that [the operators] had placed the go-karts within the distributive chain,” and (2) the operators’ “waiver form purporting to contain an “express assumption of risk, waiver indemnity and agreement not to sue” was void as against public policy and unenforceable by reason of” New York General Obligations Law Section 5-326.  The parties proceeded with discovery.

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Capped and Dismissed – Arbitration Provision with Damages Cap in Zip-Line Waiver and Release Enforced (VT)

September 30, 2015

Littlejohn v. Timberquest Park at Magic, LLC (Vermont)
(trial court disposition)

The seventy-six year old plaintiff was severely injured while participating in an adventure zip-line course in Vermont.  Plaintiff had never participated in an adventure course before.  Despite having received instruction from the zip-line facility, the plaintiff mistakenly attached his equipment to a guy wire, thinking it was a zip-line cable.  While descending, he ran into a tree that anchored the other end of the guy wire.  He sued the zip-line facility alleging that it negligently designed, constructed, and operated the course.

Plaintiff’s friend had purchased their tickets for the adventure course online through the facility’s website.  Plaintiff arrived at the facility, and they were presented with a “Release of Liability, Waiver of Claims, Indemnification, and Arbitration Agreement” to sign.  Plaintiff contended that the website had not warned them that they would be required to sign a liability waiver in order to participate in the activities.  The agreement was presented in digital format on an electronic device, and plaintiff was instructed to read and sign it electronically.  The agreement specifically included a provision pursuant to which the plaintiff agreed to submit any claims in excess of $75,000 to binding arbitration.  Alternatively, if plaintiff filed a lawsuit in court, the agreement provided that plaintiff agreed that his damages would be capped at $75,000.  The agreement further attempted to require the arbitration panel or court (as applicable) to decide the enforceability of the agreement as a “threshold matter.”

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Let It Snow – Triable Issue Existed as to Whether Nine Year Old That Collided with Snowmaking Machine Assumed the Risk (PA)

August 19, 2015

MD ex rel Mora-Dillon v. Ski Shawnee (Pennsylvania)
(trial court disposition)

Plaintiff was a nine year old girl that participated in a ski trip with her elementary school as a novice skier with no skiing experience other than three lessons.  As she was skiing down one of the slopes, she collided with a snowmaking machine, suffering several bone fractures and other injuries.  Plaintiff filed a negligence lawsuit against the ski resort, contending that the resort failed to adequately place padding on the metal components of the snowmaking machine.  The ski resort filed a motion for summary judgment, asserting that it had no duty to protect plaintiff from the inherent risks associated with downhill skiing.  Defendant argued that even though plaintiff had no knowledge of the risk presented, the plaintiff implicitly assumed the risk of colliding with snowmaking equipment, negating any duty it had to plaintiff. (more…)

Hard Lesson – Defendant Riding School Not Liable for Child Bucked from Horse (NY)

July 8, 2015

Quintanilla v. Thomas School of Horsemanship, Inc. (New York)

A minor child was thrown from a horse while taking an intermediate horse riding lesson, and her mother filed a lawsuit against the horse riding facility.  The defendant filed a motion for summary judgment, contending that the claim was barred by the doctrine of primary assumption of risk.  The trial court denied the motion, but the decision was reversed the the Appellate Division of the Supreme Court.

Prior to the child’s participation in the riding lesson, her parents signed a “Camp and Riding Instruction Agreement and Liability Release,” which warned that the facility’s horses could react if they were frightened or provoked.  During the child’s lesson, several horses came in close proximity to one another, and one of the horses kicked a wooden fence or gate, causing the child’s horse to rear up and throw the child off.  The Court explained that “[t]he risks of falling from a horse or a horse acting in an unintended manner are risks inherent in the sport of horseback riding.”  As such, the defendant was entitled to judgment as a matter of law.

Blanked Out – Injured Motocross Rider’s Claims Barred By Assumption of Risk (CA)

July 6, 2015

Storer v. E Street MX, Inc. (California)
(not a published opinion)

The plaintiff was injured while riding his motorcycle on a motocross track operated by the defendants.  After completing two or three laps on the track, the plaintiff “blanked out” and did not recall the incident.  He claimed something hit him, but he did not know what it was.  He filed an action against the defendants for negligence and premises liability.  The defendants filed a motion for summary judgment based upon both primary assumption of risk and the waiver and release document that the plaintiff signed prior to his participation in the motocross activities, and plaintiff filed a motion for leave to file an amended complaint shortly thereafter.

Plaintiff sough to add a new cause of for products liability and also sought to add additional negligence claims relating to defective design, construction, and maintenance of the racetrack, along with a failure to warn him of those defects.   The trial court denied plaintiff’s motion, ruling that the proposed amendment was “prejudicially late” and that it sought to add a “patently frivolous” cause of action for products liability.  Plaintiff had also requested delaying the defendants motion, but the court denied the request.  Thereafter, the trial court granted the defendants’ motion, and the plaintiff appealed. (more…)

No Brakes – Village Not Responsible for Injuries to Woman Injured at the Bottom of Sledding Hill (NY)

June 24, 2015

Vannatta v. Village of Otisville (New York)

A woman was standing at the bottom of a hill in an area of village-owned park.  The area was not maintained by the village and was left in its natural state.  The hill had been used for sledding for approximately 50 years, and the woman had walked with her son to the hill to take him sledding.  As she was standing at the bottom of the hill, she was struck by someone coming down the hill.  She filed and action against the village claiming that it “failed to install and maintain proper signage or to employ personnel to prevent [or] safely restrict access to and use of the park and hill or to warn users, including pedestrians such as the Plaintiff, of dangers to such pedestrian users inherent in or incident to the use of the park and hill by others who may be using the park and hill for sleigh riding or similar recreational activities.”

The defendant moved for summary judgment under the New York General Obligations Law Section 9-103, which provides immunity “to private as well as government landowners against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities where the land is suitable for those activities.”  The trial court granted the motion and the plaintiff appealed.  On appeal, the Appellate Division of the Supreme Court agreed that the statute applied and affirmed the trial court ruling, entering judgment for the defendant.

Iced Out – Claim by Skier Who Lost Control Due to Icy Conditions Barred (PA)

June 22, 2015

Smith-Wille v. Ski Shawnee, Inc. (Pennsylvania)
(trial court disposition)

Plaintiff was skiing at the defendant’s ski resort when she encountered icy conditions, causing her to lose control and run into unpadded PVC piping holding a vinyl fence on the ski slope.  Plaintiff suffered personal injury and filed an action against the resort, claiming that there should have been a warning as to the icy conditions.   The defendant filed a motion for summary judgment, arguing that the accident was the result of the inherent risk of skiing.  In opposition to the motion, plaintiff asserted that there were no warnings of the slope conditions that would have allowed her to decide whether or not to proceed in skiing (i.e., she could not assume a risk of which she was not aware).  Plaintiff stated that “her conduct in skiing down the hill in the icy conditions was not voluntary, and that she could not have assumed the risk of any dangerous conditions on the slopes once there was no way to avoid those conditions, namely the ice.”  Plaintiff further contended that she was not adequately warned or the pole or the fencing that she ran into during the incident.

The Court of Common Pleas of Pennsylvania referred to the Pennsylvania Skiers Responsibility Act (“Act”), which was part of Pennsylvania’s comparative negligence statute.  In the Act, the Pennsylvania General Assembly recognized that there were “inherent” risks in the sport of downhill skiing, although those risks were not defined.  The Court concluded that “ice and icy conditions are part of the ‘inherent risks’ envisioned by the General Assembly.”  As such, the defendant did not owe the plaintiff a duty to protect the plaintiff from those conditions.  The Court also pointed out that “from a practical standpoint . . . it would be virtually impossible for a ski area to warn of icy conditions wherever and wherever they may exist.”  Finally, the Court stated that the defendant did not owe a duty to provide plaintiff with an alternate route down the slope.

The Court granted the motion for summary judgment and entered judgment in favor of the defendant.