Archive for the ‘Jurisdiction’ Category

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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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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