Archive for the ‘Minor’ Category

Into the Void – Claims of Sixteen-Year-Old Skydiver Not Barred by Waiver and Release (OK)

January 4, 2016

Wethington v. Swainson (Oklahoma)

Accompanied by her parents, a sixteen-year-old girl went to the defendant to learn how to skydive.  As part of the registration process, the girl signed a “Registration Form and Medical Statement” that included a disclaimer near the bottom referring to the serious risks associated with skydiving.  The girl participated in an instruction course, which included fours hours of training.  In connection with the instruction course, the girl and her parents signed a detailed “Agreement, Release of Liability and Acknowledgement of Risk” form, which included numerous exculpatory provisions (the “Release”).  The Release also included a “Ratification by Parent/Guardian,” which was signed by both of the girl’s parents.  When she jumped from the plane, the girl’s parachute malfunctioned, causing her to spin rapidly toward the ground.  She landed at a high speed and impact, causing her to sustain serious injury.

The girl and her parents sued the defendant, and the defendant filed a motion for summary judgment, arguing that the Release barred the plaintiffs’ claims.  The U.S. District Court for the Western District of Oklahoma granted the motion in part and denied the motion in part.  Reviewing Oklahoma law and the terms of the Release, the Court concluded that “the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused by Defendant’s negligence, equipment failure, or inadequate instruction.”  However, the Court acknowledged that the minor had voided the Release due to her status as a minor, and the Court noted that “[u]nder Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent.”

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Not Amusing – Assumption of Risk, Contributory Negligence Not Applicable to Injured Two Year Old; Triable Issues RE Accident (MD)

October 26, 2015

McNeill v. Trimper’s Rides of Ocean City, Inc. (Maryland)
(trial court disposition)

A two-year-old boy went to an amusement park under the watch of his uncle.  He was on a ride for young children when the rider operator stopped the ride to remove another rider.  When the ride stopped, the boy apparently thought the ride was over and go out of his seat.  The ride operator then resumed the ride and the it struck the boy.  The boy’s father sued the amusement park, alleging that the ride operator negligently failed to insure that the boy was safely out of the way of danger before putting the ride back into motion.  The defendant filed an answer which included the affirmative defenses of assumption of the risk and contributory negligence.  Defendant also argued that the lawsuit was barred by the statute of limitations.

Plaintiff filed a motion for summary judgment, arguing that the defendants’ affirmative defenses of assumption of the risk and contributory negligence were inapplicable because the boy was only two years old.  Plaintiff further asserted that under Maryland law, any negligence on the part of the child could not be imputed to a parent or caretaker.  The defendant’s opposition to the motion conceded “that the affirmative defenses of statute of limitations, contributory negligence, and assumption of the risk do not apply on the present record.”  However, the District Court explained that the concession did not create a basis for an award of summary judgment in favor of plaintiff because it was not a res ipsa loquitor case and the plaintiff still needed to prove the elements of negligence.

Neither party had been able to locate and depose the operator of the ride at the time of the incident.  Additionally, the boy’s uncle was the only available eyewitness in the case, but his view of the accident was obstructed and he could not testify as to what exactly had happened.  The Court noted that the plaintiff may eventually prevail at trial, but that it could not, by way of a motion, resolve factual disputes as to how the incident occurred.   The Court also ruled that the lawsuit was not time-barred.

 

Ejected – Claim of Youth Group Employee Thrown from Golf Cart at Fundraising Event Barred by Assumption of Risk (NY)

October 23, 2015

Valverde v. Great Expectations, LLC (New York)

An employee of a youth group was injured during a fund raising event at a golf course.  The employee was being driven in a golf cart by a 17-year-old participant in the event.  The participant tried to make a sharp turn into a parking lot and the employee flew out of the cart.  The employee filed a lawsuit against the participant, and the participant filed a motion for summary judgment arguing that the employee’s claims were barred by the doctrine of assumption of risk.  The trial court denied the participant’s motion, and he appealed.

On appeal, the Appellate Division of the Supreme Court reversed the decision and entered judgment in favor of the participant.  The Court noted that in the context of a sporting or recreational event, not only do the participants consent to the risks inherent in the sport or event, but a “nonparticipant may also be subject to a defense based on the doctrine of assumed risk.”  The Court held that the employee knowingly and voluntarily rode in the gold cart during the golf tournament in which she was assigned to monitor one of the holes.  Even though the employee did not know the participant did not have a driver’s license, “she knew that he was a minor yet made no attempt to determine whether he had a license or whether he should be operating a golf cart.”  The Court further noted that it did not render the assumption of the risk doctrine inapplicable simply because the employee was not actively performing her duties of minoring the hole at the time of the incident.  The incident “occurred in a designated athletic or recreational venue.”

Finally, the employee argued that she was under an “inherent compulsion” to assume the risk, but the Court stated there was no evidence to support the claim.

 

Failure to Warn – Supreme Court Find Triable Issue Regarding School District’s Breach of Duty to Deceased Youth (WY)

October 21, 2015

Amos v. Lincoln County School District No. 2 (Wyoming)

A five-year-old boy was attending a basketball game at a school that had been converted to a community center.  He was playing with other children on a stage near the basketball court when a lunchroom bench tipped over and fell on top of him, causing a basal skull fracture and killing him instantly.  The lunchroom bench had been removed from the gymnasium wall and had been placed against the wall in a storage room adjacent to the stage.  A year later, the boy’s personal representative filed a wrongful death action against the school district, along with the town and county where the facility was located.

The county filed an “affidavit of noninvolvement” with the trial court in lieu of an answer.  In response, the trial court entered an order dismissing the county from the action without prejudice.  The court explained that it found that “there [were] not enough facts to show that [the county was] responsible but if facts come forward or are discovered that show that [the county was] responsible, either directly or indirectly, [the county] shall be reinstated as a Defendant.”

The school district filed a motion for summary judgment, arguing that it had turned over possession and maintenance of the building to the community group such that it did not owe the plaintiff a duty of care and was, therefore, entitled to judgment as a matter of law.  The trial court denied the school district’s motion, holding: “Viewing these basic facts in a light most favorable to the Plaintiff, the School District, as the owner, is in the same position as a landlord is to its tenants and their invitees. As such, it owed all persons entering the building as invitees the duty of reasonable and ordinary care under the circumstances.”  Notwithstanding the ruling, the trial court did express concern that the facts may not ultimately establish a breach of the school district’s duty or that the district’s actions were the proximate cause of the incident.

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No Relief – Issue of Town’s Liability Regarding Condition of High School Baseball Field for the Jury (MA)

October 19, 2015

Murray v. Town of Hudson (Massachusetts)

A relief pitcher for a high school baseball team injured his knee while warming up in the visiting team bullpen.  He filed a lawsuit against the town that maintained the park at which the baseball field was located, alleging that the injury was caused by the town’s negligence and its wanton and reckless conduct in allowing the visiting team to use a dangerous bullpen.  The town filed a motion for summary judgment arguing that the negligence claim was barred by the Massachusetts recreational use statute, and that the evidence did not support a finding of wanton or reckless conduct.  The trial court granted the defendant’s motion, and the pitcher appealed.

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Bitten – Questions Certified to Supreme Court on Huge Jury Verdict for Student Stricken by Illness on School Tour (CT)

October 16, 2015

Munn v. Hotchkiss (Connecticut)

A fifteen-year-old freshman at a private boarding school participated in a month-long summer program in China organized by the school.  Prior to participating in the program, the school sent the student and her parents a packet outlining the activities and a set of legal forms requesting that the parents waive legal claims against the school.  The school also sent medical advice regarding the trip, including a link to the Centers for Disease Control and Prevention (“CDC”) webpage and a note that the school’s infirmary could “serve as a travel clinic.”  However, the CDC website reference was incorrect and the infirmary was unable to provide independent medical advice.  The school also later sent an itinerary, a packing list (including a general reference to “bug spray”), and a handbook on international travel.  However, there were no specific warnings about insect-borne diseases where health risks were mentioned in the materials.

During the program, the students went on a weekend excursion without any bug sprays warnings being given.  After walking through trees and brush, the student had numerous bug bites and an itchy welt on her left arm.  Ten days later, the student awoke with a headache, fever, and wooziness.  Her condition deteriorated and she was taken to the hospital.  Eventually, the student’s parents traveled to China from the United States to be with her in the hospital.  She was severely ill and partially paralyzed, and was airlifted back to New York.  The student was diagnosed with tick-borne encephalitis (“TBE”), a viral infectious disease that affects the central nervous system.  She lost the ability to speak and lost cognitive function, although she managed to live a functional life, finishing high school and attending college.

The student and her parents filed a diversity action in federal court against the school, alleging that the school was negligent in the planning and supervision of the trip.  Plaintiffs claimed that the school failed to warn them about the risks of viral encephalitis and failed to provide her with protective clothing, bug spray, or vaccinations.  They also alleged that the school failed to provide medical personnel on the trip and failed to establish procedures for medical emergencies.  The defendant school argued that the “Agreement Waiver, and Release of Liability” form that was signed by the student’s parents prior to the program precluded liability, but the District Court excluded the document, finding that its language was ambiguous and that it was contrary to public policy under Connecticut law.

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(Un)Safe! – High School Softball Playing Injured During Sliding Drill; Triable Issues Regarding Increased Risks (NY)

August 31, 2015

Brown v. Roosevelt Union Free School District (New York)

A high school senior softball player was injured while participating in an infield sliding drill during softball practice on an elementary school field.  The team was practicing on the elementary school field because the high school field was being renovated.  The injured player’s mother filed a lawsuit on her behalf alleging that the coach increased the inherent risks of the softball by having her perform an infield sliding drill on a grass field.  The defendant school filed a motion for summary judgment, arguing that the claim was barred by the doctrine of primary assumption of risk.  Defendant asserted that under the law, the risks of an activity include risks associated with the construction of the playing surface and any open and obvious condition on it.  The trial court denied the defendant’s motion, and the defendant appealed.

The Appellate Division of the Supreme Court affirmed the trial court decision.  The Court concluded that “the defendants failed to establish, prima facie, that the infant’s coach, by having her perform an infield sliding drill on the subject grass field, did not unreasonably increase the inherent risks of the activity.”  In that the defendant failed to meet its burden, the Court said it did not need to determine the sufficiency of the plaintiff’s opposition papers.

A Racing Incident – Claims of Go Kart Driver Injured by Driver with Down Syndrome to be Decided by a Jury (NY)

August 20, 2015

Corneli v. Adventure Racing Co., LLC (New York)
(trial court disposition)

Plaintiff participated as driver in go kart activities at the defendant’s racing entertainment facility, and he was injured when his go kart was struck by the go kart operated by defendant C.S., a seventeen-year-old who suffered from Down’s Syndrome.  Plaintiff filed a lawsuit against the facility, alleging that the facility was negligent in the ownership, operation, management, maintenance supervision, staff training and control of the go kart ride and in the supervision and control of C.S.  The lawsuit was also filed against C.S. for negligently operating and driving the go kart, and C.S.’s alleged mother and father for negligent entrustment and allowing C.S. to negligently operate the go kart in a dangerous manner.

The defendant go kart facility filed a motion for summary judgment based on the doctrine of assumption of risk.  C.S.’s alleged mother and father filed cross-claims against the facility, and the mother and father filed a motion for summary judgment, claiming that they were not responsible for C.S.’s conduct.  Plaintiff then filed his own motion for summary judgment.  The New York U.S. District Court addressed each motion in turn.
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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…)

Tragedy at the Beach – State Not Liable for Youth Killed by Collapsed Sand (CA)

July 27, 2015

Buchanan v. California Department of Parks and Recreation (California)
(unpublished opinion)

A seventeen year old boy and his brother participated in a church youth group outing to Sunset State Beach in California.  During the outing, the boy and another member of the church group “created an unnatural condition that was not common to nature and would not naturally occur in that location, in that they were engaged in digging large holes in the sand in a picnic area being used by the church group, which was located within the park boundaries, separated from the beach by sand dunes, but within sight of a nearby elevated life guard station.”  The sand collapsed, burying and killing the boy.  A lawsuit was filed by the boy’s family, with the amended complaint alleging two causes of action.  First, the plaintiffs alleged that the California Department of Parks and Recreation (“DPR”) employees observed (or should have observed) the digging activities and they had a duty to warn the boy and the group of the known risks.  Second, the boy’s brother alleged a claim for negligent infliction of emotional distress as a bystander that witnessed the incident.

The DPR filed a demurrer to the amended complaint, asserting that the complaint failed to show that it owed a duty to the plaintiff and that statutory government immunity applied.  The trial court sustained the demurrer without leave to amend based on the Hazardous Recreational Activity immunity found in Government Code Section 831.7, and it entered a judgment of dismissal in favor of the defendant.  Plaintiffs appealed. (more…)