Archive for the ‘Open & Obvious’ Category

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…)

Advertisements

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…)

(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.

A Trip to the Festival – Woman Injured from Exposed Pipe on Unpaved Walkway to a Parking Lot; Issues of Fact for the Jury (FL)

August 21, 2015

Cook v. Bay Area Renaissance Festival of Largo, Inc. (Florida)

Plaintiff attended a festival organized by the defendant, and she tripped and fell over an exposed pipe on an unpaved walkway connecting the festival grounds to an overflow parking lot.  Plaintiff filed an action action against the organizer, contending that it negligently maintained the property where the incident occurred.  The defendant filed a motion for summary judgment, arguing that there was no proof that it had control over the premises where the incident occurred.  Although plaintiff was directed by festival volunteers to park in the overflow parking, there was conflicting testimony concerning whether the volunteers directed her to use the unpaved walkway.  The trial court granted the defendant’s motion, and the plaintiff appealed.

On appeal, the District Court of Appeal of Florida reversed the decision and remanded the matter for further proceedings.  First, the Court held that there was a genuine issue of material fact as to whether the organizer had exercised control of the unpaved area.  The Court stated “[a] party ‘who assumes control over the premises in question, no matter under what guise, assumes also the duty to keep them in repair.'”  The defendant was clearly using the overflow parking, and there was conflicting evidence as to whether the defendant intended its invitees to use the unpaved walkway.  The Court also noted that the evidence showed that the defendant took action to remove the pipe from the area after the incident.  Such evidence suggested the defendant’s control over the premises.

Second, the Court held there was also a genuine issue of material fact as to whether the pipe was a dangerous condition, and whether warnings from the plaintiff’s husband and other attendees were sufficient to absolve the defendant from liability.  The defendant argued that the pipe was “open and obvious,” such that it did not owe her a duty to warn her about the hazard.  However, the Court explained that “even when a hazard is open and obvious, a landowner or possessor can still be held liable for failing ‘to exercise reasonable care to prevent foreseeable injury’ to invitees.”

 

On the Rocks – Woman Injury Jumping Off Rock in the Ocean; Liability is an Issue for the Jury (MA)

July 29, 2015

Cohen v. Elephant Rock Beach Club, Inc. (Massachusetts)
(trial court disposition)

he plaintiff was a guest at the defendant’s beach club.  During her stay, plaintiff saw guests swimming to and around, and jumping off of, a large rock that was 250 feet off the shore.  She decided that she wanted to go to the rock, and did so by walking from the beach to the water and swimming to the rock.  After watching adults and children take a running start and then jump off the highest part of the rock, plaintiff waited her turn and did the same thing.  After she jumped, her foot smashed into a portion of the rock below the surface of the water, resulting in a compound fracture of plaintiff’s leg.  Lifeguards from the defendant that were on duty noticed plaintiff after she hit the water and went to assist her.

Plaintiff filed a complaint alleging negligence based on premises liability, and a duty to warn her of the dangerous condition of the rock.  The defendant club filed a motion for summary judgment.  In support of its motion, the defendant filed a late supplemental expert witness report, and the plaintiff filed a motion to strike the report.  As to the motion to strike, the U.S. District Court denied the motion, finding that the untimely disclosure of the supplemental report was harmless.

(more…)

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…)

Yellow Flag – Amusement Park Go-Kart Operator Not Liable for Injury from On-Track Collision (TX)

June 3, 2015

Weaver v. Celebration Station Properties, Inc. (Texas)

Kerri Weaver (“Weaver”) and her three children visited the defendant’s amusement park in Oklahoma City, Oklahoma.  Weaver took one of her children on a go-kart ride at the facility and was involved in an on-track incident.  Another driver bumped Weaver’s go-kart, causing Weaver to suffer a heel fracture.  Weaver filed a state court action in Texas, alleging defendant’s “negligent failure to inspect the amusement area, adequately warn customers not to bump into other go-karts, train and supervise its employees, and instruct and train go-kart drivers, caused her injury.”  Additionally, Weaver filed a claim on behalf of her minor child for “bystander suffering.”  The defendant timely removed the case to federal court on the basis of diversity jurisdiction and, after discovery, moved to summary judgment, “arguing that it owed Weaver no duty to warn her about the open and obvious risks inherent in go-kart racing and, in any event, did not breach that duty.”

In opposition to the motion, Weaver argued that defendant “owed her a duty as a business invitee and breached this duty when it failed to guard against other reckless drivers.”  In her opposition, Weaver referred to her own deposition testimony and the deposition testimony of the defendant’s corporate representative.  However, Weaver failed to attach the deposition testimony to her opposition.  Defendant replied, reiterating its previous arguments and citing Weaver’s failure to attach the evidence.  Weaver filed a surreply, attaching the documents she failed to submit earlier, and the defendant moved to strike the surreply.

(more…)