Archive for the ‘New York’ Category

Down for the Count – Sports Bar and Entertainment Device Owner Subject to Potential Liability RE Placement of Punching Machine (NY)

April 30, 2015

Weierheiser v. McCann’s Inc. (New York)

The plaintiff sustained injuries while using an punching bag entertainment device at a sports bar and grill, and he filed an action against the bar and the owner of the device.  The defendants filed a motion for summary judgment based upon the doctrine of assumption of risk.  The trial court denied the motion and the defendants appealed.  On appeal, the Appellate Division of the Supreme Court of New York affirmed the decision.

The Court  explained that it was not a situation in which the bar was being called to account to the plaintiff in damages “solely by reason of having sponsored or otherwise supported some risk-laden but socially valuable voluntary activity.”  Pointing to the improper placement of the device, the plaintiff alleged that the device amounted to a dangerous condition.

The device owner first alleged that it did not owe a duty of care to the plaintiff.  However, the Court disagreed, noting that “[l]iability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of [the] premises.”  The device owner “failed to establish that non of those elements was present.”  With regard to the device owner’s breach of a duty owed to the plaintiff, the Court stated that the testimony in the case indicated that “the device should be placed in an area that had sufficient side clearance because of the follow through inherent in every punch to the device, and that placing the device in a corner could lead to a player hitting the wall.”  The evidence clearly indicated that the the device owner’s employees had placed the device on the premises, but the employees could not recall whether or not they had placed it in a corner.  As such, the device owner failed to meet it initial burden of establishing it was entitled to summary judgment.

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.)

Blades of Gory – Hockey Locker Room Injury Inherent in the Sport (NY)

April 22, 2015

Litz v. Clinton Central School District (New York)

Plaintiff sustained an injury in the locker room following a high school hockey practice when a teammate still wearing skates stepped backward on the plaintiff’s bare foot.  Plaintiff filed an action against several defendants, including the school district, the head coach, and the assistant coach.  The school defendants filed a motion for summary judgment, contending that the plaintiff had assumed the risks associated with the sport of hockey, and that the defendant did not owe a duty to protect the plaintiff from those risks.  The New York Supreme Court entered summary judgment for the defendants and dismissed the complaint, and plaintiff appealed.   (more…)

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.

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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.

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Slipping and Sliding Away

September 20, 2012

Close v. Darien Lake Theme Park and Camping Resort, Inc. (New York)
(A guest at an amusement park suffered an injury on a water ride and sued the park; the court held that the park owner was not liable for the injury.)

In this very short opinion, the Court explained, “[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.”  It also noted that “[a]wareness of the risk is ‘to be assessed against the background of the skill and experience of the particular plaintiff’.'”  The defendant had successfully met its burden by proving that the plaintiff understood and voluntarily assumed the risks.  Despite, plaintiff’s contention to the contrary, the plaintiff was unable to raise a triable issue regarding reckless or intentional conduct or that there was a dangerous concealed condition.

NOTE: The published opinion does not include any factual details of the incident or the facility’s specific role in the incident.

Target Practice

September 20, 2012

Bukowski v. Clarkson University (New York)
(A university baseball pitcher was injured by a line drive while participating in a practice, and he sued the university and his head coach;  the court found that the pitcher had assumed the inherent risk of being hit by the baseball and affirmed the trial court’s directed verdit in favor of the defendants.)

The plaintiff was injured after throwing a fastball to a batter during “live” indoor practice without a protective screen.  The batter struck the ball which hit the plaintiff in the jaw and broker his tooth.  After the lawsuit was filed, the defendants filed a motion for summary judgment, which was denied.  At trial, plaintiff argued “that the risk of being hit by a batted ball was enhanced due to the multicolored pitching backdrop and low lighting at the indoor facility, which made it harder to see the white ball, and the failure to use an L-screen.”

At the close of evidence, the trial court granted defendants’ motion for a directed verdict “on the ground that plaintiff assumed the commonly appreciated risk in baseball of being hit by a line drive.”  Plaintiff appealed.

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Unfortunate Landing

September 6, 2012

Duchesneau v. Cornell University (Pennsylvania Court – New York Law Applied)
(An amateur gymnast suffered a significant injury while attempting a backflip on a rebounding Tumbl Trak apparatus; he sued the manufacturer of the apparatus for a failure to warn of the dangers associated with its use, and he sought punitive damages; the court denied the manufacturer’s motion, allowing the case to proceed to the jury.)

In its motion, the defendant manufacturer alleged (1) plaintiff could not establish a prima facie case of failure to warn; (2) plaintiff was not entitled to punitive damages; and (3) plaintiff assumed the risk of injury when using the apparatus.  In support of its arguments, the manufacturer referred to “general knowledge” that “an individual might land on his head if he attempt[ed] a black flip on a rebounding [apparatus].”  Defendant also referred to plaintiff’s education in basic physics, the fact that he signed a waiver that stated that he understood the risks and dangers associated with gymnastics, the existence of a small warning label on the apparatus that warned of the potential for catastrophic injury (including paralysis or even death from falling on the head or neck), and plaintiff’s knowledge of the concept of spotting from his prior participation in cheerleading.  Viewing all of that evidence, defendant asserted that “‘common sense’ would have informed an individual that he or she was risking landing on their head by using the [apparatus], and, as such, [defendant] had no legal duty to warn Plaintiff.”

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Injured Shot Putter Chances in Court Are Shot

July 6, 2008

Gerry v. Commack Union Free School District (New York)
(Injured High School Shot Putter’s Assumed Risk of Being Hit by Shot.)

The plaintiff, a high school student-athlete shot putter, was injured when he was hit with a shot thrown by the defendant during a track meet. As a member of the school’s track team, plaintiff had participated in 10 to 15 similar track meets, and he had thrown the shot himself between 100 and 200 times. The trial court granted the defendant school district’s motion, dismissing the case, and the plaintiff appealed. On appeal, the Court explained that “[i]n assessing whether a defendant has violated a duty of care in the context of an injury sustained during a sport or game, [it] must [be] determine[d] whether the defendant created a unique condition ‘over and above the usual dangers that are inherent in the sport’.” The Court concluded that there was “no evidence in the record that any conduct on the part of the defendants created a unique condition over and above the usual dangers associated with the sport of shot put.” Therefore, the Court affirmed the ruling. The plaintiff attempted to offer the declaration of an expert witness on appeal, but the Court stated that the plaintiff had unreasonably delayed in identifying the expert witness.

NOTE: Technically a determination of the inherent risks in an activity should not inolve the analysis of a participant’s subjective experience. The inherent risks are the inherent risks regardless of anyone’s particular experience or knowledge. Nonetheless, whenever evidence of extensive experience is available, it is generally useful to include from a defendant perspective as it may help balance the equities and alleviate any sympathy facotrs that may be asserted. It would have been interesting to see how the court would have dealt with the expert witness testimony if it had been timely and admissible. It has always been a point of contention, and there is not been total consensus, in terms of whether or not expert witnesses should be allowed to offer opinions to the court as to what it or is not an inherent risk in an activity.

Injured Baseball Fan Cries Foul

July 6, 2008

Roberts v. Boys and Girls Republic (New York)
(Court Denies Recovery for Baseball Fan Struck by a Bat Accidentally Thrown by Batter in an Off-Field, On-Deck Circle.)

The plaintiff, was an observer at a baseball game as was struck by a bat accidentally thrown from the on-deck circle located just off of the playing field. The trial court granted the defendant baseball association’s motion, dismissing the case based upon the doctrine of assumption of the risk. The plaintiff appealed. On appeal, the Court affirmed the decision and noted that the plaintiff could not recover “because plaintiff concededly observed batting equipment and players swinging bats in the area where the accident occurred.”

NOTE: This decision is in line with the majority position that spectators at a baseball game assume the risk of balls and equipment flying into the stands from the field of play. There has been some minor erosion of this majority position in some jurisdictions (e.g., liability being established if a mascot was distracting the spectators during play), but the cases have been rather consistent in this area of the law.