Archive for the ‘Parents’ Category

Into the Void – Claims of Sixteen-Year-Old Skydiver Not Barred by Waiver and Release (OK)

January 4, 2016

Wethington v. Swainson (Oklahoma)

Accompanied by her parents, a sixteen-year-old girl went to the defendant to learn how to skydive.  As part of the registration process, the girl signed a “Registration Form and Medical Statement” that included a disclaimer near the bottom referring to the serious risks associated with skydiving.  The girl participated in an instruction course, which included fours hours of training.  In connection with the instruction course, the girl and her parents signed a detailed “Agreement, Release of Liability and Acknowledgement of Risk” form, which included numerous exculpatory provisions (the “Release”).  The Release also included a “Ratification by Parent/Guardian,” which was signed by both of the girl’s parents.  When she jumped from the plane, the girl’s parachute malfunctioned, causing her to spin rapidly toward the ground.  She landed at a high speed and impact, causing her to sustain serious injury.

The girl and her parents sued the defendant, and the defendant filed a motion for summary judgment, arguing that the Release barred the plaintiffs’ claims.  The U.S. District Court for the Western District of Oklahoma granted the motion in part and denied the motion in part.  Reviewing Oklahoma law and the terms of the Release, the Court concluded that “the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused by Defendant’s negligence, equipment failure, or inadequate instruction.”  However, the Court acknowledged that the minor had voided the Release due to her status as a minor, and the Court noted that “[u]nder Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent.”

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Bitten – Questions Certified to Supreme Court on Huge Jury Verdict for Student Stricken by Illness on School Tour (CT)

October 16, 2015

Munn v. Hotchkiss (Connecticut)

A fifteen-year-old freshman at a private boarding school participated in a month-long summer program in China organized by the school.  Prior to participating in the program, the school sent the student and her parents a packet outlining the activities and a set of legal forms requesting that the parents waive legal claims against the school.  The school also sent medical advice regarding the trip, including a link to the Centers for Disease Control and Prevention (“CDC”) webpage and a note that the school’s infirmary could “serve as a travel clinic.”  However, the CDC website reference was incorrect and the infirmary was unable to provide independent medical advice.  The school also later sent an itinerary, a packing list (including a general reference to “bug spray”), and a handbook on international travel.  However, there were no specific warnings about insect-borne diseases where health risks were mentioned in the materials.

During the program, the students went on a weekend excursion without any bug sprays warnings being given.  After walking through trees and brush, the student had numerous bug bites and an itchy welt on her left arm.  Ten days later, the student awoke with a headache, fever, and wooziness.  Her condition deteriorated and she was taken to the hospital.  Eventually, the student’s parents traveled to China from the United States to be with her in the hospital.  She was severely ill and partially paralyzed, and was airlifted back to New York.  The student was diagnosed with tick-borne encephalitis (“TBE”), a viral infectious disease that affects the central nervous system.  She lost the ability to speak and lost cognitive function, although she managed to live a functional life, finishing high school and attending college.

The student and her parents filed a diversity action in federal court against the school, alleging that the school was negligent in the planning and supervision of the trip.  Plaintiffs claimed that the school failed to warn them about the risks of viral encephalitis and failed to provide her with protective clothing, bug spray, or vaccinations.  They also alleged that the school failed to provide medical personnel on the trip and failed to establish procedures for medical emergencies.  The defendant school argued that the “Agreement Waiver, and Release of Liability” form that was signed by the student’s parents prior to the program precluded liability, but the District Court excluded the document, finding that its language was ambiguous and that it was contrary to public policy under Connecticut law.

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A Racing Incident – Claims of Go Kart Driver Injured by Driver with Down Syndrome to be Decided by a Jury (NY)

August 20, 2015

Corneli v. Adventure Racing Co., LLC (New York)
(trial court disposition)

Plaintiff participated as driver in go kart activities at the defendant’s racing entertainment facility, and he was injured when his go kart was struck by the go kart operated by defendant C.S., a seventeen-year-old who suffered from Down’s Syndrome.  Plaintiff filed a lawsuit against the facility, alleging that the facility was negligent in the ownership, operation, management, maintenance supervision, staff training and control of the go kart ride and in the supervision and control of C.S.  The lawsuit was also filed against C.S. for negligently operating and driving the go kart, and C.S.’s alleged mother and father for negligent entrustment and allowing C.S. to negligently operate the go kart in a dangerous manner.

The defendant go kart facility filed a motion for summary judgment based on the doctrine of assumption of risk.  C.S.’s alleged mother and father filed cross-claims against the facility, and the mother and father filed a motion for summary judgment, claiming that they were not responsible for C.S.’s conduct.  Plaintiff then filed his own motion for summary judgment.  The New York U.S. District Court addressed each motion in turn.
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