Archive for the ‘Legislation’ Category

Root of the Problem

August 3, 2012

Connelly v. City of Omaha (Nebraska)
(Children were injured while sledding at a public park when they struck a tree, and their parents filed an action agains the city for negligence; liability was imposed against the city for failing to remedy an unreasonable risk of harm.)

The Nebraska Supreme Court determined that the City of Omaha should have realized that the trees in the area of the park used by the public for sledding posed an unreasonable risk of danger.  Moreover, the Court explained that the city should have expected that lawful visitors to that area of the park for sledding would fail to protect themselves against the danger posed by trees in the area.  Key facts in the litigation revolved around the city’s efforts to restore and renovate the subject park where the incident occurred about 10 year prior to the incident.  The city held public hearing opportunities, and issues relating to “sledding opportunities” were discussed in detail.  City officials also specifically debated issues regarding the placement of trees and how such placement could affect the sledding activities.  Several years later, many trees were planted at the park in an area previously identified as the location for sledding.  There was also an indication of prior similar incidents in the area.

The verdict from a bench trial was affirmed, and the children and parents were awarded damages.  The damages of all parties were subject to damage caps pursuant to Nebraska’s statutory scheme limiting the liability exposure of political subdivisions.

NOTE: Cases like this are a reason that government entities are hesitant to fully embrace recreational activities on public lands.  It ia also a lesson to government entities to carefully select their words while making a public record on issues relating to potentially dangerous conditions on public lands.  Unfortunately, the impact of cases like this extends far beyond these parties and the City of Omaha.

Shooting Blind

August 1, 2012

Blind Industries and Services of Md. v. Route 40 Paintball Park (Maryland)
(A legally blind individual was denied the chance to play paintball at the defendant’s facility, and the plaintiff advocate group filed a claim on his behalf alleging a violation of the Americans with Disabilities Act (“ADA”); the defendant failed to produce evidence regarding a prior personal injury civil suit and the plaintiff filed a motion to compel, which was denied.)

In its demand for production of documents as part of discovery in the litigation, the plaintiff advocate group requested “[a]ll Documents and Communications relating to complaints, grievances, citations, or claims made against the [defendant] by any person for . . . negligence of any type, or safety hazards of any type.”  After the defendant served its responses, the plaintiff noted that the defendant had failed to produce documents relating to a tort action it had discovered alleging unsafe conditions at the defendant’s paintball fields.  The defendant argued that the prior lawsuit was not relevant to the plaintiff’s ADA claim.

The District Court ruled that the defendant was required to only produce copies of any publicly filed documents pertaining to the prior lawsuit.  The Court explained that requiring the defendant to conduct an extensive review and production concerning prior cases “would violate the principles of proportionality.”  Although there is a relatively low standard of relevance required for discovery, the Court felt it was too much of a burden on the defense to produce more than what was part of the public record.  The defendant did contend the blind individual’s visual impairment “posed a safety concern,” but the connection of that allegation with prior claims of unsafe conditions was clearly limited.  The fact that the documents sought by the plaintiff also implicated the attorney-client privilege played a role in the Court’s decision.

As part of its motion to compel, the plaintiff also sought further responses from the defendant regarding the factual basis underlying the defendant’s affirmative defenses, asking that the affirmative defenses be stricken if additional information was not provided. However, the Court found the initial responses, “[t]aken in totality,” to be sufficient.

NOTE: This is certainly a positive decision from a defense perspective, considering the broad standard of “relevancy” in discovery.  Defendants are always concerned about a plaintiff’s ability to make their life unnecessarily difficult (and costly) via the discovery process.  It appears that a fair balance was reached in this instance.

Michigan Has a Major Minor’s Problem

July 16, 2010

The Supreme Court of Michigan recently confirmed that waiver and release documents signed by parents on behalf of their children are unenforceable in that state.  In Woodman v. Kera (2010) 2010 WL 2471902, a five year old boy was injured during his birthday party, which was being held at an indoor facility containing inflatable play equipment.  Prior to his injury, the boy’s father signed a liability waiver on his son’s behalf.  After the trial court level enforced the waiver as to some of the plaintiffs’ claims, the Court of Appeal reversed, holding that the waiver and release document could not be enforced pursuant to longstanding Michigan common law, which does not allow parents to waive or release prospective claims on behalf of their children.  The Supreme Court affirmed the appellate court’s ruling on similar grounds.

Of note is the lengthy “dissenting” opinion submitted by Justice Stephen Markman.  Justice Markman concurred with the majority opinion and took the position that the waiver should not be enforced under the circumstances, but only because he believed that the language of the waiver was deficient.  Justice Markman opined that Michigan’s common law did not preclude the Supreme Court from enforcing the waiver.  In fact, it appears that if Justice Markman had authored the majority opinion, the waiver would have been enforced.

Note:   This decision is significant in that it confirms that minor’s waiver documents cannot be enforced in Michigan.

ATV Co-Participant Collision Case Stays On Course

July 6, 2008

Allred v. Broekhuis (Michigan-UNPUBLISHED)
(Court Denies Co-Participant’s Demurrer to Claim by Injure Co-Participant Based on the “Recreational Activities Doctrine.”)

In 2005, the plaintiff was riding an all-terrain vehicle (ATV) eastward on a path designated for use by off-road vehicles. Simultaneously, the defendant was riding an ATV westward on the same course. When passing each other, defendant’s ATV crossed onto the eastbound side of the course and struck the plaintiff. Defendant moved for a judgment on the pleadings based on Michigan’s “recreational activities doctrine” (RAD). Under the RAD, co-participants in recreational activities owe a minimum standard of care not to act recklessly towards other participants. However, plaintiff argued that the RAD did not apply under the circumstances, and that Michigan’s Motor Vehicle Code should control.

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The Wrong “Approach”

June 26, 2007

Robinson v. Kroger (Georgia)
(Woman Falls Due to Hole in Parking Lot and Sues Grocery Store; Court Finds Store Not Liable for Parking Lot Area Under Lease Agreement and Applicable Statute)

Plaintiff had gone to the bank inside the defendant Kroger grocery store, and she was walking back to her car when the accident occurred. Plaintiff stepped over a concrete bumper in the parking space next to the space in which she had parked. the bumper obscured a hole in the pavement, and when plaintiff stepped over it, her foot went into the hole and she fell to the ground.

Plaintiff sued Kroger, and Kroger filed a motion for summary judgment contending that it was responsible only for the leased premises and approaches to the store. Kroger pointed out that its lease does not extend to the parking lot, which is designated a “Common Area” for the use of all the tenants and their customers. Further, Kroger stated that it was the landlord’s responsibility to maintain those common areas. The trial court ruled in favor of Kroger, and the plaintiff appealed.

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