Archive for the ‘Not Published’ Category

Yard Sale – Skier Not Liable for Collision with Ski Instructor (CA)

May 7, 2015

Rees v. Crawford (Calfornia)

The plaintiff ski instructor filed a negligence lawsuit against a skier who collided with her.  The defendant filed a motion for summary judgment on the grounds that the plaintiff had voluntarily assumed the risk of being injured from a collision with another skier.  Defendant further asserted that her conduct was not reckless because it was “neither completely outside the range of ordinary activity involved in the sport, nor done with a deliberate disregard of the high degree of probability that an injury would result.”  The trial court agreed and granted the defendant’s motion.  Plaintiff appealed.

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In the Rough – Golf Course Defeats Claim of Golfer Who Tripped Over a “Clump” of Mowed Grass (NY)

May 5, 2015

German v. City of New York (New York)
(unreported trial court disposition)

A veteran golfer tripped and fell on a “clump” of wet grass on a golf course, suffering a significant leg injury.  He filed a negligence lawsuit against the golf course, claiming that it failed to properly maintained the course, failed to properly cut and remove or disburse cut grass at the location of the fall, failed to keep the course free from hazardous conditions, and failed to property train, supervise and coordinate its employees.  The golf course filed a motion for summary judgment based on the doctrine of primary assumption of risk.  The trial court (the Supreme Court of New York) granted the course’s motion.

On the day of the incident, the grass was very wet and golf carts were banned from the fairway.  Plaintiff completed the first 12 holes of the course, and by the time the plaintiff reached the 13th hole, the grass was in the process of being cut.  Plaintiff stepped out of the cart and began walking down the hill towards his ball when he tripped and fell on the clump of wet grass that purportedly was left on the fairway after the grass had been cut.

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Down the Stretch He Comes – Trainer Not Liable to Boarder for Unleashed Dog that Injured Boarder (CA)

May 1, 2015

Plumer v. Rigdon (California)
(not published)

Plaintiff boarded her horse at Arroyo Del Mar Stables, and the defendant was a horse trainer at the stable.  Plaintiff was injured when the defendant’s dog ran into the barn, ran down the barn aisle, and then collided with plaintiff as it ran by, causing plaintiff to suffer a leg injury.  Plaintiff filed a lawsuit against the defendant, alleging a single cause of action for negligence.  Defendant moved for summary judgment arguing “(1) no legal duty existed to prevent the injury caused by [defendant’s] dog; and (2) the presence of dogs was a condition known to [plaintiff] and a risk she assumed explicitly in a release agreement with the Stables and implicitly by her presence at the Stables.”  The trial court granted the defendant’s motion, finding that defendant owed not duty of care to plaintiff.  Plaintiff filed a motion for reconsideration with the trial court citing San Diego County Code Ordinances and arguing that defendant “had a prima facie claim that [defendant’s] conduct in allowing the dog to run free violated the Ordinances.”  The trial court concluded it lacked jurisdiction to rule on the motion because it had already entered judgment.  Plaintiff then appealed the decision.

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Quite a Show – Concussed Cheerleader Barred From Making Claim RE Failed High School Cheer Stunt (CA)

April 30, 2015

Baggay v. Linfield Christian School (California)
(not published)

A high school cheerleader suffered a concussion while performing a stunt during practice.  She filed a lawsuit against the school, asserting causes of action for (1) “negligence/recklessness,” (2) “false promise,” and (3) negligent misrepresentation.  The school filed a motion for summary judgment, or in the alternative summary adjudication, on the grounds that the claims were barred by the primary assumption of risk doctrine and that the plaintiff could not establish the essential elements of her false promise (promissory fraud) and misrepresentation claims.  The trial court granted the school’s motion, and the cheerleader appealed.

On appeal, the cheerleader argued that her claims were not barred by primary assumption of the risk “because a concussion is not an inherent risk of cheerleading,”  The Court of Appeals for California disagreed, stating that “‘[i]nherent risk’ does not refer to the type of injury that the plaintiff sustains or the manner in which the injury occurred, but rather the reason for the injury.” (Emphasis in the original.)  The Court continued, “An inherent risk is one that, if eliminated, would fundamentally alter the nature of the sport or deter vigorous participation.”  The plaintiff was injured because the group of cheerleaders failed to properly execute a stunt they had previously practiced and had previously successfully executed.  It is fundamental to the nature of modern cheerleading that teams will practice and perform stunts that involve the risk of injury.  Thus, “any type of injury that reasonably could be expected to result from such a fall is an inherent risk of modern cheerleading.” (Emphasis in the original.) (more…)

Blown Away – Recreational Immunity Statute Applied to Incident Involving Charity Hot Air Balloon Ride (WI)

April 30, 2015

Roberts v. T.H.E. Insurance Company (Wisconsin)
(final publication pending decision)

The plaintiff attended a charity event and was waiting in line to participate in a hot air balloon ride.  A gust of wind snapped a tether holding the balloon, sending the balloon and basket sliding across the land, where it crashed into the plaintiff and knocked her down.  The injured plaintiff filed a negligence lawsuit against the balloon ride operator and its insurer.  The defendants filed for summary judgment based upon Wisconsin’s recreational immunity statute, and the trial court granted the motion.  The plaintiff appealed.

On appeal, the Court of Appeals of Wisconsin affirmed the decision.  The plaintiff argued that the recreational immunity statute should not apply because the alleged negligent acts were not directed at the condition of the land itself and “there was nothing about the land that caused [plaintiff’s] injuries.”  The Court explained that the purpose of the statute was “to achieve the goal of encouraging property owners to open their lands to public recreation by limiting the liability of property owners,” and the Court further noted that the statute should be construed liberally in favor of property owners.

The statute applies to anyone that “own, leases, or occupies property” and it applies to “recreational activity” as detailed in the statute.  The plaintiff did not contest that the defendant occupied the property or that the activity satisfied the definition of “recreational activity” under the statute.  However, plaintiff argued that the statute provided that the liability at issue needed to relate to the property itself.  The Court disagreed, referring to the plaintiff’s misinterpretation of the statute and caselaw she cited in opposition to the motion.

Headline: Water is Wet – Defendant Wins Health Club Locker Room Slip and Fall Case (OH)

April 28, 2015

Daher v. Bally’s Total Fitness (Ohio)

The plaintiff was a member of the defendant’s health club.  On a visit to the club, she slipped and fell on a wet surface in the locker room.  Plaintiff filed an action against the defendant alleging negligent maintenance of the premises.  The defendant filed a motion to summary judgment based upon the “open & obvious doctrine” and the contract signed by members containing clear and unequivocal release language.  The plaintiff did not oppose the motion, and the trial court granted the defendants’ motion.  Despite not having opposed the motion, the plaintiff appealed the ruling.

On appeal, the Court of Appeals of Ohio affirmed the trial court ruling.  First, the Court explained that despite the fact that the plaintiff had not opposed the motion, the defendant was not entitled to summary judgment absent proof that such judgment was appropriate.  Looking at the evidence, the Court concluded that “the wet condition of the locker room near the pool area was open and obvious.”  Plaintiff argued that the doctrine should not apply because “there was no alternative route or other means available for [her] to protect herself from the hazard posed by the wet floor,” but the Court was unconvinced. (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.

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Jump? What Jump?

November 15, 2012

Anderson v. Boyne (Michigan)(Not Published)
(A snowboarder was paralyzed in an accident involving a jump in the defendant’s terrain park.  He sued, alleging negligence on the part of the defendant, including with regard to the design of the subject jump.  However, the court held that the jump was open and obvious, and that the Michigan statute addressing ski operator liability protected the defendant under the circumstances.)

At the trial court level, the defendant filed a motion for summary judgment, which was granted on the grounds that the plaintiff’s claim was barred “because the jump was an inherent, obvious, and necessary danger of snowboarding.”  The plaintiff appealed.

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A Racing Incident

September 28, 2012

Ketchum v. Mercer Raceway Park, LLC (Pennsylvania)(Not Published)
(A race team crew member was killed when a race car left the racing surface and struck a guard rail in front of the crew member; his estate sued the speedway for wrongful death.)

The incident occurred in 2007 during a race at the defendant’s speedway.  The decedent and a friend were volunteer members of a pit crew.  They were standing near a guard rail and catch fence barrier of the pit area watching a race when a race car moved across the racing surface and collided with the guard rail and catch fence.  The concrete footing of the fence was ripped from the ground, and a steel pole was separated from the footing, striking the decedent.

According to the evidence presented, sometime prior to the incident, the owner of the racetrack hired the track’s manager to improve the fencing around the track for safety reasons.  The manager designed and installed the barrier “on his own” without instruction, guidance, or formal education or training.  He was learning as he went along and utilized his “best guess” as to how far into the ground to place each pole.  The manager was aware that steel posts could be separated from the footing of a fence and pulled from the ground because he had seen it happen before.

Prior to their entry into the facility and participation on the pit crew, the decedent and his friend paid a pit entrance fee and signed a “Release and Waiver of Liability and Indemnity Agreement.”  They understood what they were signing and knew that crashes occurred and had seen cars collide with walls/guard rails.  They had participated as pit crew members at numerous prior events and had signed many prior waiver and release agreements.  The evidence also showed that the racetrack posted rules specific to the pit area at its entrance, along with warning signs to both participants and patrons concerning the possible dangers of watching automobile racing.

In their lawsuit, the plaintiffs argued that the defendant “acted negligently with respect to the construction and installation of the guard rail and fencing.”  The defendant thereafter moved for summary judgment based upon the waiver and release agreements signed by the injured pit crew members.  The plaintiffs made several arguments against the enforceability of the waiver and release documents, but the trial court disagreed, granting the motion.  The plaintiff appealed.  On appeal, the Court of Appeals addressed each of plaintiffs arguments in turn.

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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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