Archive for the ‘Not Published’ Category

Root of the Problem – Claims of Woman Injured on Segway Tour Barred by Exculpatory Agreement (CA)

November 9, 2015

Lamb v. San Francisco Electric Tour Company (California)
(not published)

The plaintiff and her husband went to Golden Gate Park with their son and took a guided tour of the park on individual Segway transporter vehicles.  The tour was operated by the defendant.  Plaintiff was injured on the tour and filed a lawsuit against the defendant, alleging vehicle negligence, general negligence, and common carrier negligence.  The defendant filed a motion for summary judgment based on the express waiver provisions of an agreement signed by the plaintiff, the express assumption of the risk provisions of that same agreement, and the primary assumption of the risk doctrine.  The trial court granted the motion, finding that the exculpatory agreement signed by the plaintiff was enforceable and contemplated the circumstances of the accident.  Plaintiff appealed.

(more…)

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.

Pass Interference – Woman Injured Chasing Frisbee Thrown From Stage; Claims Barred as a Matter of Law (MN)

November 2, 2015

Strelow v. Winona Steamboat Days Festival Association (Minnesota)
(not published)

Plaintiff attended a festival organized by the defendant.  During a break in the music, representatives from a local radio station went on stage and began throwing t-shirts and Frisbees from the stage.  The Frisbees had tickets to the local zoo attached to them.  Plaintiff gestured as if she wanted to catch a Frisbee and one of the people on stage threw one in her direction, but it veered off course.  Plaintiff took took four to six steps diagonally and slightly backwards with her arms in the air, trying to catch it.  However, plaintiff fell down, rolled against a curb, and fractured her shoulder.

Plaintiff and her husband filed a lawsuit against the defendant event organizer, alleging that defendant failed to maintain a safe area and failed to warn plaintiff of a hazardous condition on the premises.  Plaintiff contended that she fell as a result of tripping on electrical cords that were “black and rubbery” and “bigger than extension cords.”  She indicated that she did not know whether they were connected to anything, she said she did not see them before she fell, and she had not previously walked in the area of the incident.  Plaintiff was unable to find any witnesses to her fall.

Defendant filed a motion for summary judgment, asserting (1) no evidence of a dangerous condition caused by defendant existed, (2) any alleged dangerous condition was open and obvious, (3) the defendant did not owe the plaintiff a duty because it had no actual or constructive notice of the alleged condition, and (4) plaintiff’s claims were barred by primary assumption of risk.  The trial court granted defendant’s motion, finding that plaintiff “failed to establish a prima facie case of negligence because no evidence was presented that any cords ran over the blacktop” in the area of the incident.  Plaintiff appealed.

(more…)

Rather Shallow – Man Broke His Neck Diving Into Lake; Risk Deemed Open and Obvious (IL)

September 16, 2015

Bujnowski v. Birchland, Inc. (Illinois)
(not published)

The plaintiff was visiting a recreational area operated by the defendant.  He dove off a pier into a lake on the property and broke his neck.  He sued the defendant alleging that the defendant had no employees monitoring the area, and that the defendant was negligent in failing to supervise or train customers properly on the use of the are and failing to warn them of the dangers of using the area.  The defendant filed a motion for summary judgment on the basis that it did not owe a duty to plaintiff because the danger of diving into water was open and obvious.  The trial court granted the defendant’s motion, and the plaintiff appealed.

(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…)

Up the Creek Without a Row Machine – Claim of Man Injured at Fitness Facility Barred by Membership Agreement (DE)

July 13, 2015

Ketler v. PFPA, LLC (Delaware)
(unpublished trial court disposition)

Plaintiff purchased a gym membership from Planet Fitness and agreed to the terms of the facility’s membership agreement.  Plaintiff thereafter sustained personal injuries at the defendant’s workout facility when a cable broke on a seated rowing machine that he was using.  He and his wife filed a lawsuit against Planet Fitness, alleging negligence, and Planet Fitness filed an answer asserting primary assumption of the risk as an affirmative defense based on the language of the membership agreement.  The defendant then filed a motion for a judgment on the pleadings.

The plaintiff did not dispute that he signed the membership agreement, but he argued that the agreement did not include a specific reference to the negligent wrongdoing alleged.  The court disagreed, noting that the agreement clearly provided that plaintiff could not hold the defendant liable for any injury even if the defendant’s own negligence caused the injury.  The court found the membership agreement to be “an unambiguous and express release.”

Plaintiff contended that he was entitled to factual discovery before the court cold resolve the issue.  However, the court stated that the language of the membership agreement was controlling and no further discovery was needed.  The court explained that “Delaware’s decisional law on contract interpretation permit the Court to give full force and effect to the Release.”

Unwanted Souvenir – Woman Struck by Foul Ball During MLB Batting Practice; Claim Barred (WA)

July 7, 2015

Reed-Jennings v. Baseball Club of Seattle, L.P. (Washington)
(unreported decision)

The plaintiff was seriously injured while attending a Seattle Mariners Major League Baseball game.  She was struck by a foul ball hit into the stands during batting practice.  Plaintiff filed a negligence based lawsuit against the team, but the trial court granted the defendant’s motion for summary judgment, finding that the team did not breach its limited duty of care to the plaintiff and that the plaintiff’s claims were barred by the assumption of risk doctrine.  Plaintiff appealed.
(more…)

Blanked Out – Injured Motocross Rider’s Claims Barred By Assumption of Risk (CA)

July 6, 2015

Storer v. E Street MX, Inc. (California)
(not a published opinion)

The plaintiff was injured while riding his motorcycle on a motocross track operated by the defendants.  After completing two or three laps on the track, the plaintiff “blanked out” and did not recall the incident.  He claimed something hit him, but he did not know what it was.  He filed an action against the defendants for negligence and premises liability.  The defendants filed a motion for summary judgment based upon both primary assumption of risk and the waiver and release document that the plaintiff signed prior to his participation in the motocross activities, and plaintiff filed a motion for leave to file an amended complaint shortly thereafter.

Plaintiff sough to add a new cause of for products liability and also sought to add additional negligence claims relating to defective design, construction, and maintenance of the racetrack, along with a failure to warn him of those defects.   The trial court denied plaintiff’s motion, ruling that the proposed amendment was “prejudicially late” and that it sought to add a “patently frivolous” cause of action for products liability.  Plaintiff had also requested delaying the defendants motion, but the court denied the request.  Thereafter, the trial court granted the defendants’ motion, and the plaintiff appealed. (more…)

Dressed for the Occasion – Wedding Reception Guests Pour Soap and Water on Dance Floor; Hotel Potentially Liable for Slip and Fall (Puerto Rico)

May 19, 2015

Blomquist v. Horned Dorset Primavera (Puerto Rico)
(unpublished trial court disposition)

Plaintiff was attending the wedding of a friend in Puerto Rico.  At some point during the reception, she left to change into a bathing suit as some of the guests were going to use the hotel’s pool.  While plaintiff was gone, other wedding guests poured water and soap onto the dance floor and used the dance floor to dance, slip, and slide on the wet soapy surface.  Plaintiff returned from changing and she slipped and fell on the wet, soapy dance floor, suffering personal injury.  Plaintiff sued the hotel, contending that the hotel failed to maintain the dance floor in a safe condition and failed to warn her of the dangerous condition that caused her to fall.  Defendant filed a motion for summary judgment, arguing that the wedding guests (including plaintiff) created the allegedly dangerous condition and that there was not enough time for defendant to discovery or stop the “self-inflicted hazard.”

(more…)

Nice Save – Hockey Spectator Take a Puck in the Head; Team and Arena Not Liable (CT)

May 12, 2015

 

Lukacko v. Connecticut Islanders, LLC (Connecticut)

Plaintiff and his wife were spectators at an American Hockey League (“AHL”) game at Webster Bank Arena in Bridgeport, Connecticut.  At some point during the hockey match, a puck left the ice surface, traveled over the tempered glass barrier surrounding the rink, and struck plaintiff, causing a head laceration, scarring and emotional and physical distress.  Plaintiff filed a complaint against the hockey team and the arena operator alleging numerous counts of negligent conduct.

In response. the defendants claimed that the arena had typical protections for fans and patrons of the hockey game, including “plexiglass walls above the dasher boards surrounding the rink and netting placed at either end of the rink, in the most dangerous sections of the Arena in accordance with the approved standards of the [AHL].”  Plaintiff was not sitting at either end of the rink or behind the goals.  The defendants asked the Superior Court to adopt the “limited duty rule” (also referred to as the “baseball rule”), which is different from the general negligence standard.  Under the “limited duty rule,” once the defendant facility “has provided adequately screened seats for all those desiring them, the [facility] owner has fulfilled his duty of care as a matter of law.”  The Court explained that “[t]he limited duty rule holds that the stadium owner/operator is only responsible for screening the spectator seats in the most dangerous section of the field (in baseball, the area behind home plate).”

(more…)