Archive for the ‘New York’ Category

No Brakes – Village Not Responsible for Injuries to Woman Injured at the Bottom of Sledding Hill (NY)

June 24, 2015

Vannatta v. Village of Otisville (New York)

A woman was standing at the bottom of a hill in an area of village-owned park.  The area was not maintained by the village and was left in its natural state.  The hill had been used for sledding for approximately 50 years, and the woman had walked with her son to the hill to take him sledding.  As she was standing at the bottom of the hill, she was struck by someone coming down the hill.  She filed and action against the village claiming that it “failed to install and maintain proper signage or to employ personnel to prevent [or] safely restrict access to and use of the park and hill or to warn users, including pedestrians such as the Plaintiff, of dangers to such pedestrian users inherent in or incident to the use of the park and hill by others who may be using the park and hill for sleigh riding or similar recreational activities.”

The defendant moved for summary judgment under the New York General Obligations Law Section 9-103, which provides immunity “to private as well as government landowners against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities where the land is suitable for those activities.”  The trial court granted the motion and the plaintiff appealed.  On appeal, the Appellate Division of the Supreme Court agreed that the statute applied and affirmed the trial court ruling, entering judgment for the defendant.

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 

Foul on the Defense – Basketball Rec League Waiver Void Under New York Statute (NY)

June 12, 2015

(photo by Dave Lindblom; unchanged)

Falzone v. City of New York (New York)

Plaintiff paid a fee to register to play in a recreation basketball league.  The league then paid the defendant New York City Department of Eduction a portion of the league registration fees for a permit in order to use a public school gymnasium.  During a game at the facility, the plaintiff was injured when his hand went through the glass window of a door that was behind one of the basketball hoops.  Plaintiff then filed an action against the City of New York and the Department of Education.  After initially responding, the defendant filed a motion for leave to amend their answer to add the affirmative defense of release and filed a motion to dismiss the complaint.  The trial court granted both motions and the plaintiff appealed.

On appeal, the Appellate Division of the Supreme Court determined that the trial court had properly granted the City of New York’s motion to dismiss in that it did not operate, maintain, or control the school premises.  As to the motion by the Department of Eduction to add the affirmative defense of release, the Court reversed the decision.  the Court explained that “[a]lthough leave to amend a pleading should be freely given [citation omitted], a court should deny a motion for leave to amend if the proposed amendment is palpably insufficient, would prejudice or surprise the opposing party, or is patently devoid of merit.”  The Court noted that the proposed amendment regarding the affirmative defense of release was “devoid of merit.”  The plaintiff had signed a “Player Waiver, Release of Liability and Indemnification Agreement” prior to his participation in the basketball league, but he paid a league fee to use the gymnasium and the payment of the fee rendered the waiver and release agreement void pursuant to New York General Obligations Law Section 5-326.  Under Section 5-326, every agreement in connection with a place of recreation in which the owner or operator receives a fee for the use of such facilities that exempts the owner or operator from liability for damages resulting from the negligence of the owner or operator is deemed void as against public policy and wholly unenforceable.

Teachable Moment – Claims of Student Chaperon Injured While Whitewater Rafting Barred by Release (PA)

June 10, 2015

McDonald v. Whitewater Challengers, Inc. (Pennsylvania)

The plaintiff (a New York resident) was a school teacher who chaperoned seventh and eighth grade school children on a whitewater rafting field trip with other faculty members.  While she was rafting, her raft struck a large rock, causing her personal injury.  Plaintiff filed a negligence lawsuit against against the whitewater facility, alleging that the facility failed to provide a river guide/instructor in her boat, failed to provide a properly inflated raft, failed to advise her on the grade/class of whitewater rapids she would encounter, failed to instruct her on how to safely and effectively maneuver the rapids, and allowed an unsafe number of inexperiences rafters in the boat.

The defendant filed a motion for summary judgment based on the waiver and release agreement signed by plaintiff prior to her participating in the rafting.  The trial court denied the motion.  Following further discovery, plaintiff then filed a motion for partial summary judgment arguing that New York law (and not Pennsylvania law) should be applied to the facts, and defendant filed a second motion for summary judgment.  Applying Pennsylvania law, the trial court denied both motions.  While the court acknowledged that the Pennsylvania Supreme Court had previously “affirmed the validity of such exculpatory releases in inherently dangerous recreational activities,” the court held that there were “material issues of fact existed regarding whether she was economically compelled to sign the release” by her employer/school.  The parties filed petitions for permission to file an interlocutory appeals, which were granted.

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Wipeout – Sledding Spectator at Birthday Party Assumed risk of Bring Struck (NY)

June 8, 2015

Photo by Tony Fischer (no changes made)

 

Savage v. Brown (New York)

The plaintiff was one of about 15 guests invited to a birthday party held for defendant Tracy Brown (“Tracy”).  The guests were invited to participate in snow sledding at the party.  Plaintiff was standing on the side of the hill watching other attendees sledding when she was struck by a sled carrying Tracy and another guest.  Plaintiff sued Tracy, Tracy’s mother, and the property owner for negligence.  The defendants moved for summary judgment based on the doctrine of assumption of the risk.  Alternatively, the property owner contended that it was entitled to protection of the state’s recreational immunity statute.

The trial court denied the defendants’ motions, and the defendants appealed.  The Appellate Division of the Supreme Court reversed the trial court decisions and entered judgment in favor of the defendants.  The Court compared the plaintiff to a spectator at other sporting activities who assume the risk of being struck, such as a spectator at a baseball game.  The Court concluded that by standing on the side of the hill while watching other people sledding, plaintiff assumed the risk of being struck by a sled.”  Plaintiff testified that she knew the sleds were moving very fast, and she had “observed someone else at the party lose control of her sled and crash into a snow bank, and she saw a sled strike another person.”  Plaintiff’s only argument was that “she did not assume the risk of being struck by a sled because she was standing off to the side of the hill in an area where sleds were unlikely to go.”  However, the Court noted that the evidence showed that the sled turned at the very end of the run and that plaintiff did not have any time to react to it.

In light of the Court’s decision based on assumption of risk, the Court noted that it need not address the applicability of the recreational immunity statute.

Fender Bender – Claims of Injured “Cyber Sport” Participant Dismissed (NY)

June 5, 2015

Yargeau v. Lasertron (New York)

Plaintiff was injured while participating in a game called Cyber Sport.  In Cyber Sport, participants drive cars similar to bumper cars while they attempt to scoop a ball into a handheld basket and then shoot the ball to score points.  A participant uses a joystick to move the car, but there are no brakes on the cars.  The cars are built to stop moving when the joystick is released or when a signal is sent to the car by an employee of the facility hosting the game.  After riding in her car during a warm up period, the plaintiff was sitting in her car listening to the referee give instructions to the players.  Although the referee had pressed the button that was supposed to give a signal causing all the cars to stop, at least one of the cars still had power and ended up striking plaintiff’s car from behind and causing her personal injury.

Plaintiff sued the manufacturer of the car and the facility hosting the game, alleging products liability claims and negligence.  The defendants filed motions for summary judgment, which were granted by the trial court, and the plaintiff appealed. (more…)

Bite Worse Than the Bark – Whether Adopter of Dog Reasonably Relied on Representation of Shelter is a Jury Issue (NY)

June 2, 2015

 

Lawrence v. North Country Animal Control Center, Inc. (New York)

Plaintiffs adopted a basset hound named Brutus from the defendant facility, a not-for-profit animal shelter.  Less than a month later, the dog attacked one of plaintiffs’ other dogs.  One of the plaintiffs was able to separate the animals, but Brutus attacked the plaintiff during the altercation, causing severe injuries to both of his arms.  An employee of the defendant facility removed the dog from the plaintiffs’ home on the same day.  The defendant facility thereafter refused to return the dog to the plaintiffs and sent the dog to a rescue organization out of state.  Plaintiffs tracked down Brutus’ prior owner, who claimed that about a month prior to the adoption, Brutus had been turned over to the defendant facility “to be euthanized because he had attacked the owner and her child.”

Plaintiffs filed an action against the defendant facility and its employee, alleging causes of action for, among other things, negligence, fraudulent misrepresentation, products liability, and intentional infliction of emotional distress.  The defendants moved for summary judgment, and plaintiffs cross-moved to amend the complaint and for summary judgment on their claim for intentional spoliation (the defendant facility did not produce Brutus and did not know its current whereabouts).  The trial court granted the cross-motion to amend, denied plaintiffs’ cross motion for summary judgment, and treated the claim for spoliation as a request for sanctions.  However, the trial court ruled (without prejudice to raise the issue again upon completion of discovery) that it was not imposing sanctions in connection with the defendants failure to produce the dog.  The trial court further partially granted the defendants’ motion, dismissing the products liability claim and one other cause of action.  The plaintiffs and defendants both appealed. (more…)

Feeling the Heat – Kids Gym Did Not Cause Burn Injury to Grandmother (NY)

June 1, 2015

Riccio v. Kid Fit, Inc. (New York)

It’s all fun and games until someone gets burned.  The plaintiff was attending her grandson’s birthday party at a kids gym facility.  She attempted to carry a chafing tray from a table to a nearby sink, and she was burned by the lit sterno cannister.  Plaintiff filed an action against the gym facility, and the defendant filed a motion for summary judgment, which was granted by the trial court.

Plaintiff appealed, but the decision was affirmed by the Appellate Division of the Supreme Court.  First, the Court disagreed with the defendant concerning the application of the doctrine of primary assumption of risk.  The Court explained that the doctrine did not apply because “the plaintiff was not involved in a sporting event or a recreational activity when she allegedly was injured.”  Nonetheless, the Court affirmed the decision based on causation.

The Court noted that “[a]lthough the issue of proximate cause is generally for the jury, liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes.”  The employees of the defendant had “inadvertently disposed of the caps to the sterno cannisters prior to the accident,” but that “merely furnished the occasion for the accident, and any alleged negligence by the defendant did not proximately cause the accident.”  In conclusion, “[t]he plaintiff’s actions in carrying the lit sterno cannister so close to her body superseded the defendants’ conduct and terminated the defendants’ liability for her injuries.”

Deeply Depressed – Experienced Skier Claim Relating to “Depressions” in Snow Survives Court Motion (NY)

May 26, 2015

Paulus v. Holimont, Inc. (New York)

The sixty-right year old plaintiff was a self-described “accomplished” skier, who had been skiing since the age of 5.  Plaintiff had participated in various ski races throughout the years, and he had skied on different mountains throughout the world involving varying terrain, including ice and moguls.  Plaintiff drove from his home in Ohio to the defendant’s ski area in New York.  It was his second visit to the defendant’s resort.  On his first run of the day, plaintiff was coming down a trail at the facility called “Corkscrew” (a trail rated “more difficult” with a blue square), when he encountered difficult terrain and crashed, suffering injuries.  Plaintiff used racing skis and boots, and he admitted that he liked to ski fast.  He estimated that he was traveling twenty miles an hour at the time of the incident.  Plaintiff acknowledged that a “blaze orange caution sign was placed directly at the top of the portion of the Corkscrew trail where [he] was injured.”  However, the plaintiff testified that he did not believe he had observed the sign as he cut over to the Corkscrew trail from another trail (i.e., plaintiff believed he skied onto the Corkscrew trail below the caution sign).

Plaintiff (and his wife) sued the defendant for negligence, and the defendant filed a motion for summary judgment, asserting that plaintiff’s claim should be barred by primary assumption of risk.  The trial court acknowledged that in New York “[d]ownhill skier ‘assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and manmade objects that are incidental to the provision or maintenance of a ski facility.'”  The doctrine is recognized in New York’s Safety in Skiing Code.  Additionally, “variations in terrain, including moguls, are recognized risks that are inherent in the sport of downhill skiing.”

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Pit Road Penalty – Release Agreements Enforceable But Not to Bar Negligent Bleacher Maintenance Claim (NY)

May 4, 2015

Stevens v. Payne (NewYork)
(trial court opinion)

The plaintiff was injured while watching his daughter compete as a race care driver at a racetrack in New York.  Plaintiff suffered a heart attack and fell off of bleachers landing six feet below onto the ground, resulting in permanent paralysis of his legs.  He then sued the racetrack (Skyline Raceway) and the sprint car sanctioning entity (Capital Region Sprintcar Agency [“CRSA”]), alleging there was a dangerous condition on the bleachers because they lack side railing.  CRSA file a motion for summary judgment on tow grounds: (1) it did not owe a duty to plaintiff for the condition of the bleachers because it neither owned nor controlled them; and (2) the plaintiff’s cause of action was barred by the two waiver and release agreements signed by the plaintiff (one signed for the CRSA in connection with the race car entry, and one signed for Skyline at the event on the day of the incident).

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