Archive for the ‘New York’ Category

And She’s Off . . . Literally – Woman Falls From Treadmill; Unable to Prove Cause (NY)

November 6, 2015

Photo by Jennifer C. (no changes made)

Davis v. Town Sports International (New York)
(not published)

The plaintiff a a member of the defendant health club and she regularly used the treadmills at the facility.  One day she fell while attempting to get on a treadmill, injuring herself.  She filed a negligence lawsuit against the defendant, and the defendant filed a motion for summary judgment.  the New York Supreme Court granted the motion finding that the defendant had established by the evidence (including the plaintiff’s own deposition testimony) that the plaintiff was unable to identify the cause of her fall, and that she could only speculate as to the cause.  Plaintiff was unable to raise any triable issues in opposition to the motion.  The Court further noted that even if it accepted the plaintiff’s speculation that another member had failed to turn off the machine prior to plaintiff attempting to use it, the Court noted that such a claim would be barred by the doctrine of primary assumption of the risk.

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.

 

No Sympathy – Claims of Injured Passenger in Go Kart Barred by Assumption of Risk; No Product Defect (NY)

October 22, 2015

Garnett v. Strike Holdings, LLC (New York)

The plaintiff rode as a passenger in a two-seat go kart driven by her then boyfriend.  While driving on the track, they were allegedly bumped twice by other go karts, allegedly causing the plaintiff to suffer injuries, including “reflex sympathy dystrophy.”  Plaintiff sued the operators of the indoor recreational facility, alleging negligent and defective design, strict products liability, failure to warn, and breach of warranty.

The defendants filed a motion to strike the products liability claim.  However, the trial court denied the motion finding (1) that [the operators] leasing and rental of the go-karts could support the inference that [the operators] had placed the go-karts within the distributive chain,” and (2) the operators’ “waiver form purporting to contain an “express assumption of risk, waiver indemnity and agreement not to sue” was void as against public policy and unenforceable by reason of” New York General Obligations Law Section 5-326.  The parties proceeded with discovery.

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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.

Front Row Seats – Woman Injured by Stampede in Overcrowded Movie Theater; Crowd Control Liability for the Jury (NY)

August 27, 2015

Sachar v. Columbia Pictures Industries, Inc. (New York)

Plaintiff was escorting a group of teenagers to see a free screening of a movie.   Plaintiff’s group was directed to an upper level to find seat, but was then told to turn around and go downstairs.  As the group was returning, there was a sudden stampede of people rushing from behind.  The assistant manager of the movie theater confirmed that there appeared to have been a stampede, and an employee of the movie studio that produced the movie testified that the event was overbooked to ensure that the theater was filled to capacity.

As a result of the stampede, plaintiff was pushed forward and she was “hurled in the air,” suffering personal injury.  Plaintiff filed a lawsuit against both the movie theater and the movie studio.  The defendants filed motions for summary judgment, which were granted by the trial court.  Plaintiff filed a motion to reargue the motions, and upon re-argument, the trial court denied the defendants’ motion.  The defendants then appealed.

On appeal, the Appellate Division of the Supreme Court affirmed the decision.  The Court explained that “[u]nder the circumstances presented, involving the deliberate overbooking of a theater for a free film screening, defendants were required to show that they took adequate crowd control measures to address the foreseeable risks to those attending in order to meet their prima facie burden of demonstrating entitlement to summary judgment.”  However, the defendants failed to present evidence that adequate crowd control measure were in place at the time of the incident.  The Court also stated that “the deposition testimony also creates an issue of fact as to [the movie studio’s] specific security duties, as sponsors of the event, at the screening.”

 

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.

All Wet – Airport Not Liable for Failed “Soft-Field Take Off” (NY)

August 5, 2015

Bouck v. Skaneateles Aerodrome, LLC (New York)

This matter involved an unsuccessful attempt by a private plane to take off from a grass-surfaced runway at the defendant’s airport.  Plaintiff suffered personal injury when his plane encountered a soft and wet area on the runway, causing the plane to dig in and tip over.  Plaintiff was a flight instructor with 40 years of experience and he had utilized the defendant’s runway for more than 100 take offs and landings.  Although it had not rained on the day of the incident, it had rained for several days prior.  Before attempting to take off, plaintiff inspected the runway because he was concerned that the surface was soft and wet.  The trial court denied the defendant’s motion for summary judgment, and the defendant appealed.

On appeal, the Appellate Division of the Supreme Court reversed the decision.  The Court indicated that it agreed with defendant “that its airport is a designated venue for the recreational activity of private aviation and that plaintiff’s use thereof was in furtherance of his pursuit of that activity.”  The Court noted that “plaintiff’s recreational use of defendant’s airport was a qualifying activity under the doctrine of primary assumption of the risk” and that the “primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions.”  It was not necessary for the plaintiff to have foreseen the exact manner in which his injury occurred, so long as he was aware of the potential for injury or the mechanism from which injury resulted.

Feel the Burn – “Boot Camp” Participant Injury Claim Barred (NY)

July 24, 2015

Alonge v. Town Sports International Holdings, Inc. (New York)

The plaintiff participated in a “boot camp” exercise program for approximately a year.  During one of the group exercise programs, another participant ran into her, causing her personal injury.  Plaintiff sued that defendant operator of the camp, alleging negligence.  The defendant filed a motion for summary judgment based on primary assumption if risk.  The trial court granted the defendant’s motion and the plaintiff appealed.

On appeal, the Appellate Division of the Supreme Court affirmed the decision, finding that the plaintiff had observed “the open and obvious risk of running into participants in the class during drill exercises, and after fully appreciating the risk of colliding with other participants, plaintiff nonetheless elected to participate in the activity, thereby assuming the risk that resulted in her injuries.”

Hard Lesson – Defendant Riding School Not Liable for Child Bucked from Horse (NY)

July 8, 2015

Quintanilla v. Thomas School of Horsemanship, Inc. (New York)

A minor child was thrown from a horse while taking an intermediate horse riding lesson, and her mother filed a lawsuit against the horse riding facility.  The defendant filed a motion for summary judgment, contending that the claim was barred by the doctrine of primary assumption of risk.  The trial court denied the motion, but the decision was reversed the the Appellate Division of the Supreme Court.

Prior to the child’s participation in the riding lesson, her parents signed a “Camp and Riding Instruction Agreement and Liability Release,” which warned that the facility’s horses could react if they were frightened or provoked.  During the child’s lesson, several horses came in close proximity to one another, and one of the horses kicked a wooden fence or gate, causing the child’s horse to rear up and throw the child off.  The Court explained that “[t]he risks of falling from a horse or a horse acting in an unintended manner are risks inherent in the sport of horseback riding.”  As such, the defendant was entitled to judgment as a matter of law.

Reality Bites – Defamation and Business Tort Claims of Reality Show Participant Dismissed (NY)

June 29, 2015

Klapper v. Gaziano (New York)

In 2011, the plaintiff agreed to participate in the “Mob Wives” reality television show.  Prior to his participation, he signed an “Appearance Release” in which he agreed to not sue the production company and to release the production company and its affiliates and representatives from all liability.  After the show, plaintiff filed an action against several individual and corporate defendants, alleging defamation and tortious interference with existing contracts and prospective business relationships.  The defendant corporate entities moved to dismiss the amended complaint for failure to state a cause of action and for an award of attorney’s fees.  The trial court granted the motion, and plaintiff appealed. (more…)