Archive for the ‘Personal Jurisdiction’ Category

Speed Wobble – Discovery Regarding Failure to Warn Allowed in Longboarding Death Case (VT)

November 5, 2015

Cernansky v. Lefebvre (Vermont)
(trial court disposition)

A college student was fatally injured while riding a longboard style of skateboard.  His estate brought a lawsuit against the roommate who lent him the board and the skateboard shop that sponsored the roommate as a longboard rider.  The complaint alleged wrongful death and negligent failure to warn the decedent about the dangers associated with the activity (the roommate did not provide the decedent with any safety instructions prior to taking the decedent longboarding).  The roommate filed a motion to dismiss the action for failure to state a claim, and the skateboard shop filed a motion to dismiss the action against it based on a lack of personal jurisdiction.

The United States District Court for the District of Vermont denied both motions.  First, the Court held that the estate’s complaint did state a claim against the roommate under Vermont law for negligent failure to warn.  The Court explained:

“. . . the Complaint alleges [the roommate] should have foreseen the potential for serious injury based upon his knowledge of long boarding. More specifically, [the roommate] allegedly should have foreseen that sending [the decedent], a first-time longboarder, down a hill without a helmet or instruction presented a risk of harm giving rise to a legal duty. Plaintiff claims that [the roommate] breached that duty.  ¶  The fact that the longboard was loaned to [the decedent] does not alter the negligence analysis. In the comparable context of negligent entrustment, the ‘theory requires a showing that the entruster knew or should have known some reason why entrusting the item to another was foolish or negligent.'”

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Broken Record – Judgment in Favor of Scuba-Diving Instructor in Death Case Upheld (TX)

April 29, 2015

DeWolf v. Kohler (Texas)

In 2008, Terry Sean DeWolf died while scuba diving more than fifty miles off the coast of Massachusetts.  Initially, the medical examiner identified the cause of death as drowning, but later revised the conclusion to reflect that he died of natural causes (myocarditis).  Terry’ wife thereafter filed a lawsuit against numerous defendants, including (among others) the boat used for the dive, the individual who chartered the boat (Kohler), a television network which had carried a program on which Kohler had appeared, the dive-training company from which Kohler obtained credentials as a scuba-diving instructor, and the scuba-equipment manufacturer that manufactured the rebreather that Terry had used during the dive.  The wife alleged several claims, including violations of the Deceptive Trade Practices Consumer Protection Act, the federal Death on the High Seas Act, and other state law claims.

Numerous motions were filed in this complicated lawsuit, and the trial court addressed many issues relating to personal jurisdiction and statutes of limitation.  Ultimately, Kohler was the only remaining defendant and the case proceeded to trial.  Following a jury trial, the court entered judgment in favor of the defendant, and the wife appealed.  On appeal, the wife challenged instructions that were given to the jury.

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