Archive for the ‘Public Policy’ Category

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.

(more…)

Capped and Dismissed – Arbitration Provision with Damages Cap in Zip-Line Waiver and Release Enforced (VT)

September 30, 2015

Littlejohn v. Timberquest Park at Magic, LLC (Vermont)
(trial court disposition)

The seventy-six year old plaintiff was severely injured while participating in an adventure zip-line course in Vermont.  Plaintiff had never participated in an adventure course before.  Despite having received instruction from the zip-line facility, the plaintiff mistakenly attached his equipment to a guy wire, thinking it was a zip-line cable.  While descending, he ran into a tree that anchored the other end of the guy wire.  He sued the zip-line facility alleging that it negligently designed, constructed, and operated the course.

Plaintiff’s friend had purchased their tickets for the adventure course online through the facility’s website.  Plaintiff arrived at the facility, and they were presented with a “Release of Liability, Waiver of Claims, Indemnification, and Arbitration Agreement” to sign.  Plaintiff contended that the website had not warned them that they would be required to sign a liability waiver in order to participate in the activities.  The agreement was presented in digital format on an electronic device, and plaintiff was instructed to read and sign it electronically.  The agreement specifically included a provision pursuant to which the plaintiff agreed to submit any claims in excess of $75,000 to binding arbitration.  Alternatively, if plaintiff filed a lawsuit in court, the agreement provided that plaintiff agreed that his damages would be capped at $75,000.  The agreement further attempted to require the arbitration panel or court (as applicable) to decide the enforceability of the agreement as a “threshold matter.”

(more…)

“Baled” Out – Woman Trips on Stairs at Farm; Indemnity Agreement in Release Contrary to Public Policy (CT)

September 2, 2015

Squinobal v. Zenko (Connecticut)

Plaintiff was injured when she slipped and fell on wooden stairs located on the defendant’s premises.  The defendant operated a farm and equestrian facility.  At the time of the incident, plaintiff was carrying a bale of hay and seed to a feed trailer.  Plaintiff filed a complaint alleging that her injuries resulted from the negligence and carelessness of the defendant.  The defendant filed a counterclaim based on a “Lesson, Horse Rental, and Arena Use Release” document (“Release”) signed by the plaintiff in order to ride horses at the facility.  The defendant then filed a motion for partial summary judgment on the ground that plaintiff had a duty to defend and indemnify the defendant under the terms of the Release. (more…)

Carried Away – Woman Injured on Zip Line; Enforcement of Release Dependent on “Common Carrier” Factual Determination (IL)

August 28, 2015

Dodge v. Grafton Zipline Adventures, LLC (Illinois)

Plaintiff was a paying guest on an aerial zip line course operated by the defendant.  Like the other guests, plaintiff was outfitted with a harness and pulley system that attached to the suspended cables and was supposed to allow her to control her speed by braking on descents.  However, on the eighth run on the zip line course, the plaintiff’s braking system failed.  She approached the landing platform as a high rate of speed, and she struck the trunk of the tree on which the lading platform was mounted.  Plaintiff filed a complaint against the defendant alleging that the defendant was a common carrier that breached its duty of care by negligently designing and operating the zip line course, intentionally and recklessly violating safety regulations promulgated by the Illinois Department of Labor, and thereby engaging in willful and wanton misconduct.  Plaintiff also alleged that defendant was negligent in instructing her, inspecting and maintaining the braking system, and failing to prevent the incident.

(more…)

Out in the Cold – Ski Lift Ticket Release Agreement Contrary to Public Policy (OR)

April 27, 2015

Becker v. Hoodoo Ski Area (Oregon)

A skier was injured when she was struck by a moving chairlift.  She brought a negligence action against the ski area operator.  The defendant filed a motion for summary judgment arguing that it was entitled to judgment as a matter of law based on a “Release Agreement” that occupied approximately one-half of the face of the lift ticket purchased by the skier on the day in question.  The skier denied having noticed or read the release agreement document.  The skier filed a cross-motion for partial summary judgment, arguing that the waiver and release document that she signed was procedurally and substantively unconscionable.  The trial court granted the defendant’s motion and denied the plaintiff’s motion, and the plaintiff appealed.

On appeal, plaintiff renewed her argument that the waiver and release was unenforceable because it was contrary to public policy and was unconscionable.  The Court of Appeals of Oregon reversed the trial court and remanded the case to trial.  Relying on the Oregon Supreme Court decision in Bagley v. Mt. Bachelor (2014), the Court of Appeals held that the release agreement was unconscionable.  The Court discussed numerous factors that went into the analysis including the “superior bargaining strength” of the defendant, the release agreement being offered on a “take-it-or-leave-it basis,” and the lack of an “opportunity to negotiate for different terms or pay an additional fee for protection against defendant’s negligence.”  The Court further concluded that the “‘enforcement of the release would cause a harsh and inequitable result’ to befall the plaintiffs, and the Court noted that the “defendant’s business operation [was] sufficiently tied to the public interest as to require the performance of its private duties to patrons.”