Archive for the ‘Minor’ Category

Cleanup in Aisle 5 – Child Injured on Bicycle Inside Wal-Mart; Store Not Liable (MS)

July 23, 2015

Wilson ex rel. Purser v. Wal-Mart Stores, Inc. (Mississippi)

A step-father and his two minor boys visited a Wal-Mart store in Batesville, Mississippi looking to purchase a basketball.  While the step-father was paying for the basketball, the two boys started looking at bicycles.  Both boys got on bicycles that had been on the bicycle racks and began riding up and down the nearby aisles.  During the ride, one of the boys was riding fast and could not figure out how to stop.  He tried to brake using the pedals, but the bike only had handbrakes.  The boy ran into a wall and cut his leg on a shelf.  “The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.”

The boys’ mother filed a lawsuit on behalf of her injured child, contending that Wal-Mart was negligent by failing to keep the premises reasonably safe and failing to warn of the danger posed by the bikes.  Wal-Mart filed a motion for summary judgment, arguing that the plaintiff could not show the existence of a dangerous condition.  The trial court granted the defendant’s motion, and the plaintiff filed a motion to reconsider.  Plaintiff’s motion was denied, and an appeal was filed.

On appeal, plaintiff argued that “whether an unlocked or readily available bicycle on the sales floor constituted a dangerous condition was a genuine issue of material fact that should have been submitted to a jury.”  However, the Court disagreed, affirming the trial court decision.

Formal Hazards – Liability Releases for Prom Parties? (NY Times)

June 15, 2015

The New York Times recently published an article about parents requiring liability release and indemnity documents in connection with after-prom parties.  It’s certainly not an unexpected development in today’s litigious society.  How would you react if your son or daughter came home with something like this?

Prom Accessories: Corsages, Limousines and Liability Waivers 

Taking One for the Team – Minor Cheerleader Assumed the Risk of Practicing with an Injured Teammate (NY)

April 23, 2015

Photo by Adam Burke. No changes made.

Kurt T. Jurgensen, as Parent and Natural Guardian of Jayna R. Jurgensen (New York)

A minor student was injured while working with her teammates on a choreographed stunt that involved two cheerleaders (the “bases”) throwing the student into the air and then catching her.  The stunt was completed successfully on the first attempt on the day of the incident, but on the second attempt, the student felt plaintiff in her knee when her teammates threw her up in the air.  The student suffered a ligament injury to her knee, and she alleged that the injury occurred because one of her teammates was practicing that day with a sprained ankle, which caused her to hold the student’s foot for too long before throwing her in the air.  The student’s father filed a lawsuit on the student’s behalf, alleging that the school district was negligent in allowing the injured teammate to participate in the practice.  The defendant moved for summary judgment, contending that the action was barred by the doctrine of assumption of risk.  The Supreme Court of New York denied the motion, and the defendant appealed.

The Appellate Division of the Supreme Court of New York reversed the decision.  The Court concluded that the plaintiff’s daughter knew that her teammate was injured, and that the teammate had not been cleared to practice.  Additionally, the plaintiff’s daughter had performed the stunt with the same teammate earlier on the day in question, and the daughter said she had noticed the based was “a little more shaky” than usual.  Despite this knowledge, the daughter testified that she “didn’t think it was that big of a deal.”  The Court asserted that the daughter practicing with a teammate knowing the teammate was injured was analogous to a cheerleader practicing without a mat or an athlete playing on a field that is in less than perfect condition.  Therefore, the Court held that the action was barred by the doctrine of assumption of risk.

(Photo by Adam Burke.  No changes made.)

Untrained Warrior – High Schooler Injured in Self-Defense Course Gets Her Day in Court (NY)

April 19, 2015

Pierre v. Ramapo Central School District (New York)

A minor high school student was injured while competing as a participant in her school’s self-defense tournament, a voluntary competition open to female students who were enrolled in an elective self-defense class taught by a physical education teacher.  The student filed an action against the school district claiming that the class was actually a mixed martial arts class and alleging that the district was negligent in allowing the class to be instructed by (and the tournament to be refereed by) a person with little martial arts training.

The defendant school district filed a motion for summary judgment, arguing that the doctrine of primary assumption of risk barred the action and that any negligent supervision on its behalf was not the proximate cause of the plaintiff’s injuries.  The Supreme Court initially denied the motion, and the defendant appealed.

(more…)

Coach of Youth Equestrian Rider Escapes Liability in Wrongful Death Case (CA)

March 11, 2015

Eriksson v. Nunnink (California)

In 2006, a 17-year old girl was killed while riding a horse in competition in California.  The parents of the decedent sued for wrongful death and negligent infliction of emotional distress, alleging that the horse was “unfit to ride because of prior falls and lack of practice.”  After the plaintiffs presented evidence at trial, the trial court granted defendant’s motion for entry of judgment, which the plaintiffs appealed.  The Court of Appeal held that the minor waiver and release agreement signed by the decedent and her mother prior to decedent’s participation in the competition was enforceable as a liability defense to the wrongful death claim.  Although a minor can “disaffirm” a written contract, the terms of the waiver and release agreement became “irrevocable and binding” under California caselaw when the agreement was signed by the minor’s parent. (more…)

Go Team!

November 15, 2012

Kristina D. v. Nesaquake Middle School (New York)
(A cheerleader was injured when she fell from a shoulder stand during practice; she sued the district, coach and others for her personal injuries; the trial court denied the defendants’ motion for summary judgment based on assumption of the risk, but the decision was reversed on appeal.)

The minor plaintiff was an experienced middle school cheerleader who was injured performing a “shoulder stand” during practice, a stunt she had performed many times in the past.  She filed a claim alleging that the school district and the coach acted negligently by, among other things, “failing to supervise the cheerleaders properly in performing the stunt.”  The defendants filed a motion for summary judgment arguing that the claims were barred by assumption of the risk.  The motion was denied, and the defendants appealed.

(more…)

Speed Trap

November 15, 2012

Hines v. Camper (Ohio)(Not Published)
(A passenger in a car participating in a street race was injured when the car crashed.  After the insurer of the driver’s car refused to afford coverage, the plaintiff brought an uninsured/underinsured action against it.  The trial court ruled that the policy exclusion relating to racing and speed contests precluded coverage.  The passenger appealed, arguing he was not a “participant,” but  the decision was affirmed on appeal.)

The plaintiff and several of his friends gathered to participate in an amateur street drag race one evening.  Plaintiff sat in the back seat of the car during the race since the front passenger seat did not have a seatbelt.  During the race, the driver of the car lost control and they crashed, with the plaintiff suffering numerous injuries.  Following the incident, the plaintiff sought recovery from the insurance company that insured the parents of the driver.  However, the claim was denied based upon the exclusion that provided that the insurer “will not pay any damages an insured person or an additional insured person is legally entitled to recover because of bodily injury . . . arising out of the participation in a pre-arranged, organized, or spontaneous . . . racing contest . . . speed contest . . .or use of an auto at a track or course designed or used for racing or high performance driving . . . .”

At the trial court level, the defendant insurer’s motion for summary judgment was granted based on both the aforementioned policy exclusion and the plaintiff’s assumption of the risk of injury associated with him entering the vehicle involved in the street race.  The plaintiff appealed, arguing (1) he was not a “participant” in the street race because he was not driving and (2) there was a triable issue of material fact pertaining to his assumption of the risk.

(more…)

Deflated

October 1, 2012

Interstate Fire & Casualty v. Abernathy (Florida)
(A minor festival attendee was injured while using an inflatable bungee run; the mother of the minor sued the club that was hosting the event; after settling with the club for millions of dollars and obtaining a judgment, the mother then filed an action against the club’s insurer for failing to provide coverage and for engaging in bad faith; the court ruled that the coverage did not extend back four days to liability for the prior known injury.)

Interstate Fire & Casualty appealed a final judgment against it awarding the injured minor more than six million dollars.  The trial court had determined that a certificate of insurance that was issued by a broker on April 18, 2007 conferred coverage on a purported additional insured (the club hosting the festival) for liability for the minor’s injury that occurred four days earlier on April 14, 2007.

(more…)

Little League Lawsuit Settlement

August 23, 2012

$14.5 Million Settlement for Injured Minor (New Jersey)
(A 12 year old pitcher playing in a youth baseball game was struck in the chest by a ball projected from a metal bat; his family’s lawsuit against the bat manufacturer, Little League Baseball, and the Sports Authority sporting goods chain was settled.)

As reported here on ESPN.com, the terms of the settlement agreement preclude the parties from discussing its details, including whether any of the defendants admitted liability.  It appears that the issue revolved around whether the metal bat used at the time of the incident was appropriate and safe.  Little League Baseball certifies certain bats for approved use in games involving children.  The injured boy encountered cardiac arrest that led to permanent brain damage, and the settlement will help provide long term care for him for the rest of his life.

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.