Archive for the ‘Maintenance’ Category

Worst Seat in the House – Triable Issue as to Whether Park Had Notice of Dangerous Bleachers (AL)

August 18, 2015

Shirley v. Tuscaloosa County Park and Recreation Authority (Alabama)

Plaintiff was sitting on bleachers at Munny Sokol Park in Alabama watching a youth football game.  Certain welds on the bleachers broke, causing plaintiff to fall and suffer personal injury.  Plaintiff filed a complaint against the parks and recreation authority that owned the property, alleging negligence and wantonness.  Plaintiff later amended her complaint to assert a claim under the Alabama Extended Manufacturer’s Liability Doctrine against several fictitiously named defendants.  The property owner filed a motion for summary judgment arguing it was entitled to immunity under Alabama’s recreational use statute.  The trial court granted the motion, and the plaintiff appealed.

On appeal, plaintiff argued that the trial court improperly entered summary judgment because there was a genuine issue of material fact as to whether the park was being used for commercial purposes and whether the property owner had “actual knowledge or an unreasonable risk of death or serious bodily harm” (both exceptions to the statutory immunity).

The Court of Civil Appeals of Alabama noted that plaintiff presented no evidence indicating that the use of the park was commercial in nature.  However, the Court found that the plaintiff did present evidence that the property owner had actual knowledge regarding the unreasonably dangerous condition of the bleachers and that it failed to guard or warn against the consequences.  The evidence established that an employee of the property owner arrived at the scene of the incident and commented, “I told them earlier to put a cone or a sign on this bleacher until we could get somebody out here to repair it.”  Another witness also confirmed that the the condition of the bleachers was known and should have been “coned off.”  The property owner disputed the facts, but the Court noted that it was required to review the evidence in the light most favorable to the non-movant.  Therefore, the Court reversed the decision and remanded the trial for further proceedings.

Imperfect Storm – Hockey Arena Snow Remover Not Liable for Slip and Fall Injury During Storm (NY)

August 17, 2015

Harvey v. LAZ Parking Ltd. (New York)

A hockey fan slipped and fell on an icy pedestrian area while exiting a hockey arena.  He filed a lawsuit against the city and its snow removal contractor.  The fan’s wife also filed a claim for loss of consortium.  The defendant filed a motion for summary judgment.  The trial court granted the motion, and the plaintiffs appealed.

On appeal, the Appellate Division of the Supreme Court affirmed the trial court decision, holding that the defendants were not liable pursuant to the “storm in progress rule.”  According to the rule, “[a] landowner has no duty to remedy a dangerous condition resulting from a storm while the storm is in progress and has a reasonable amount of time after the storm has ended to take corrective action.”  The defendants relied on plaintiffs’ own testimony that there was precipitation during and after the game, and they also relied on weather data and climatological records establishing the timing of the precipitation.  The evidence was sufficient to demonstrate that the ice was formed by the ongoing weather conditions.  Once established, the burden then shifts to the plaintiff to produce  “admissible evidence that the ice that caused plaintiff’s slip and fall existed prior to the storm in progress, and that defendant[s] had actual or constructive notice of the hazard.”  The Court concluded that the plaintiff’s expert affidavit failed to meet that burden.

Maintenance Mystery – Gross Negligence is an Issue of Fact for Jury in Fitness Club Equipment Case (CA)

August 7, 2015

Chavez v. 24 Hour Fitness USA, Inc. (California)

Plaintiff suffered a traumatic brain injury when the back panel of a “FreeMotion cable crossover machine struck her in the head at the defendant’s workout facility.  Plaintiff filed a complaint alleging claims for ordinary and gross negligence and strict product liability.  The defendant moved for summary judgment arguing (1) the written release of liability in its membership application was a complete defense to the negligence claims, (2) it could not be liable under a products liability claim because it was a service provide and it was not in the chain of commerce, and (3) the plaintiff could not reasonably demonstrate an extreme departure from the ordinary standard of care or a failure to exercise scant care which was required to state a claim for gross negligence because the defendant’s technician routinely inspected the equipment and performed preventative maintenance on it.

Plaintiff opposed the motion, and, in the alternative, sought a continuance of the motion based on the fact that the defendant claimed that it was unable to produce the maintenance technician for deposition because he was not longer employed by defendant and he could not be found.  The trial court denied plaintiff’s motion to continue, noting that the maintenance technician had been identified many months before the defendant filed its motion for summary judgment, but plaintiff elected not to subpoena him until after it received the motion.  The trial court then granted the defendant’s motion finding (1) the primary purpose of the membership agreement was the provision of fitness services such that defendant could not be held strictly responsible under the products liability claim, (2) the ordinary negligence and premises liability claims were barred by the release of liability in the membership agreement, and (3) the defendant had met its burden to show it was not grossly negligent by establishing “it had a system of preventative and responsive maintenance of its equipment.”  Plaintiff appealed the trial court decision, but only as to the ruling on its motion to continue and as to the gross negligence claim. (more…)

And the Runner is Out – Claim By Spectator at a Little League Game Barred by Recreational Use Statute (RI)

May 11, 2015

Carlson v. Town of South Kingston (Rhode Island)

The plaintiff was attending her son’s little league game being played at a park and field owned and maintained by the defendant town.  As she was walking from a batting cage area over to a concession stand to meet her son, she stepped in a “divot” and broke her leg.  Testimony established that the “divot” was created by kids waiting to get into the batting cages when they would dig their cleats into the ground.  Plaintiff filed an action against the town, alleging the town negligently maintained the premises.  The town moved for summary judgment based on Rhode Island’s Recreational Use Statute (“RUS”).  Plaintiff objected to the motion citing two exceptions to the RUS and alleging: (1) the town had “willfully or maliciously failed to guard or warn against a dangerous condition on the land,” and (2) the town had charged plaintiff for her access to the park.  The trial court granted the motion, and the plaintiff appealed.

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Headline: Water is Wet – Defendant Wins Health Club Locker Room Slip and Fall Case (OH)

April 28, 2015

Daher v. Bally’s Total Fitness (Ohio)

The plaintiff was a member of the defendant’s health club.  On a visit to the club, she slipped and fell on a wet surface in the locker room.  Plaintiff filed an action against the defendant alleging negligent maintenance of the premises.  The defendant filed a motion to summary judgment based upon the “open & obvious doctrine” and the contract signed by members containing clear and unequivocal release language.  The plaintiff did not oppose the motion, and the trial court granted the defendants’ motion.  Despite not having opposed the motion, the plaintiff appealed the ruling.

On appeal, the Court of Appeals of Ohio affirmed the trial court ruling.  First, the Court explained that despite the fact that the plaintiff had not opposed the motion, the defendant was not entitled to summary judgment absent proof that such judgment was appropriate.  Looking at the evidence, the Court concluded that “the wet condition of the locker room near the pool area was open and obvious.”  Plaintiff argued that the doctrine should not apply because “there was no alternative route or other means available for [her] to protect herself from the hazard posed by the wet floor,” but the Court was unconvinced. (more…)

Golf Course Backs Out of Liability to Injured Golfer

July 6, 2008

Parsons v. Arrowhead Golf (Indiana)
(Court Holds that Golf Course Owed No Duty to Prevent a Golfer’s Back Injury Suffered When He Stepped Out of Golf Cart.)

The defendant managed an 18-hole golf course where the plaintiff was playing golf. The plaintiff stepped off of a golf cart, landed “straight-legged” and immediately experienced lower back pain. The plaintiff stated that the drop was four to twelve inches deep, and that he had not noticed this irregularity on the grounds during his past years of golfing experience on this course. Plaintiff had golfed here once per week for over two years. The manager of the course had regularly inspected the grounds for dangerous conditions and moved walking paths as necessary to ensure that they did not become worn out. In this particular instance, the manager had placed stone where the plaintiff was injured. Plaintiff alleged that the defendant had failed to take reasonable safety measures by negligently maintaining the premises and failing to warn him about the danger. The trial court granted summary judgment in favor of the defendant based on assumption of the risk, and the plaintiff appealed.

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Not Making the Grade

November 26, 2007

Harris v. I-44 Lebanon (Missouri)
(Late Model Race Car Driver Injured While Racing on a Dirt Track When a Large Rock Hit His Helmet; Motion for Summary Judgment Based on Waiver and Release Denied; Defense Verdict Issued After Trial)

The case involved late model racing on an oval dirt track in Lebanon, Missouri. The Plaintiff was a 51-year-old lifelong dirt track racer who was injured in 2003 when he was struck by a rock in the mouth area of his helmet during a late model dirt track race.

Roughly five months before this accident, the Lebanon I-44 Speedway was converted from an asphalt track to a dirt race track, which involved laying dirt over the asphalt surface. The initial batch of dirt was unsatisfactory so the track preparer, Randy Mooneyham, removed this dirt and put an entirely new type of dirt on the track. After it was placed on the track, he then used a rock picker, a rock rake and a grader to work the debris out of the track and pack it down throughout the 2003 season. Plaintiff raced on the track several times during 2003 before his accident.

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Sticking To It

October 24, 2007

Zipusch v. LA Workout, Inc. (California)
(Woman Falls Due to Sticky Substance on Treadmill; Poorly Worded Waiver and Release Fails to Protect the Health Club from Negligence Liability)

In October of 2004, the plaintiff signed a “Membership Agreement” and, thereafter, became a member of the defendant health club’s facility. On December 10, 2004, plaintiff allegedly sustained injuries when her foot became stuck to a sticky substance on a treadmill at the facility, causing her to lose her balance. Plaintiff filed a complaint against the facility for general negligence and premises liability, alleging its failure to inspect and maintain the exercise equipment resulted in the sticky substance remaining on the treadmill. The defendant filed a motion for summary judgment based upon the waiver and release and express assumption of the risk provisions in the agreement, and it alternatively argued that it did not have actual or constructive notice of the allegedly dangerous condition. The trial court granted the defendant’s motion, and the plaintiff appealed.

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Re-Buffed

July 2, 2007

Kudrov v. Laro Services Systems, Inc. (New York)
(Female Bus Rider Slipped and Fell on Waxed Smooth Floor in Bus Terminal; Court Granted Maintenance Company’s Motion for Summary Judgment for Lack of Evidence; Simply Because Floor was Waxed, Slippery and Smooth Did Not Infer Negligence)

A female bus rider brought a personal injury claim against the bus terminal maintenance company after she slipped and fell on the slippery floor. The trial court denied the maintenance company’s motion for summary judgment, and the company appealed.

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