Archive for the ‘Reckless Conduct’ Category

No Relief – Issue of Town’s Liability Regarding Condition of High School Baseball Field for the Jury (MA)

October 19, 2015

Murray v. Town of Hudson (Massachusetts)

A relief pitcher for a high school baseball team injured his knee while warming up in the visiting team bullpen.  He filed a lawsuit against the town that maintained the park at which the baseball field was located, alleging that the injury was caused by the town’s negligence and its wanton and reckless conduct in allowing the visiting team to use a dangerous bullpen.  The town filed a motion for summary judgment arguing that the negligence claim was barred by the Massachusetts recreational use statute, and that the evidence did not support a finding of wanton or reckless conduct.  The trial court granted the defendant’s motion, and the pitcher appealed.

(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…)

Bad Aim – Checking Out a Friend’s Firearm in Your Garage is Not a Recreational Activity (OH)

July 28, 2015

Lovegrove v. Stapleton (Ohio)

The plaintiff and the defendant were both experienced gunman who shared a common interest in competitive shooting.  Plaintiff and defendant participated together in a Tuesday night shooting league, and they would sometimes go to shooting ranges together on weekends.  In the summer of 2012, plaintiff drove to the defendant’s home to have the defendant notarize some paperwork for him.  Plaintiff brought his new gun with him, knowing that defendant would likely want to check out it out, which, as the evidence established, is something that happens often in the culture of the competitive shooting community.

Before entering defendant’s garage, plaintiff removed the magazine from the gun.  In the garage, he removed the gun from the holster on his waistband, checked the chamber, and set the gun on a workbench.  Defendant notarized plaintiff’s paperwork and then checked out the gun “dry-firing” it multiple times.  Defendant’s children came into the garage a couple of time, but were sent back into the house for their own safety.

Defendant stepped into the house to check on his wife, who was in the backyard.  Plaintiff picked up his paperwork and his gun, and he put the magazine back in the gun.  Since no round was chambered, he could not put on the gun’s safety.  Plaintiff turned around and saw defendant’s children standing in front of him wanting to show him a trophy.  Defendant placed the gun back on the workbench and told the children he would put his things back in his truck and then come inside.  Plaintiff ushered the children back into the house and closed the door.  As plaintiff was turning around he heard the gun go off.  The defendant had returned, picked up the gun from the workbench, and fired the gun.  The bullet hit the workbench and ricocheted, hitting plaintiff in the abdomen.

A year later, plaintiff filed a lawsuit against the defendant alleging that the defendant acted negligently and recklessly in shooting the gun.  The defendant filed a motion for summary judgment, claiming that plaintiff was engaged in a recreational activity and that primary assumption of risk precluded plaintiff’s negligence claim.  Defendant also contended that he had not acted recklessly.  The trial court granted defendant’s motion, and plaintiff appealed.
(more…)

Reckless Abandon – Allegations of Recklessness and Punitive Damages Survive in Ski Collision Case (PA)

June 11, 2015

Doyle v. Dianna (Pennsylvania)
(trial court disposition)

The plaintiff was skiing with his son in a highly congested area of a ski resort when he was struck by the defendant who was “allegedly skiing abnormally fast, out-of-control, recklessly” and who became airborne such that he was unable to slow down, stop, or avoid the impact.  Plaintiff filed an against against the defendant skier alleging that he acted recklessly and should be liable for punitive damages.  The defendant moved to strike both the references to “recklessness” and the punitive damages claim from the complaint.

Reviewing the applicable standards under Pennsylvania law, the Court of Common Pleas of Pennsylvania denied the defendant’s motion.  The defendant had argued that the complaint lacked specificity to support an allegation of reckless conduct, but the court disagreed, noting that in Pennsylvania “recklessness is a condition of the mind that may be averred generally.”

With regard to the claim for punitive damages, the court stated that it “must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.”  The court then concluded that the plaintiff alleged facts that, if true, were sufficient justify punitive damages.  Plaintiff had alleged:

“Defendant knew he was skiing in an area that ‘is generally highly congested … with other skiers.’ [Citation omitted.]  The Plaintiffs further aver that the Defendant was (a) skiing at an abnormally high rate of speed, (b) jumping and/or becoming airborne ‘rendering himself completely out-of-control and unable to change his course of direction,’ and (c) that he knew that he would not be able to stop in an emergency situation due to the conditions of the area.”

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.

(more…)

Slipping and Sliding Away

September 20, 2012

Close v. Darien Lake Theme Park and Camping Resort, Inc. (New York)
(A guest at an amusement park suffered an injury on a water ride and sued the park; the court held that the park owner was not liable for the injury.)

In this very short opinion, the Court explained, “[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.”  It also noted that “[a]wareness of the risk is ‘to be assessed against the background of the skill and experience of the particular plaintiff’.'”  The defendant had successfully met its burden by proving that the plaintiff understood and voluntarily assumed the risks.  Despite, plaintiff’s contention to the contrary, the plaintiff was unable to raise a triable issue regarding reckless or intentional conduct or that there was a dangerous concealed condition.

NOTE: The published opinion does not include any factual details of the incident or the facility’s specific role in the incident.

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.”

(more…)

Wreck-less Behavior

July 20, 2012

Tayar v. Camelback Ski Corporation (Pennsylvania)
(A snow tuber involved in a collision sued a ski resort for negligence and reckless conduct;  the trial court granted the defendant’s motion, dismissing the entire action based on the waiver and release signed by the plaintiff; the decision was overturned on appeal as to the reckless conduct allegations.)

The plaintiff was participating in snow tubing activities at the defendant’s ski resort.  On her fifth run of the day, she was struck by another participant coming down the run.  She was also narrowly missed by others.  Plaintiff filed a complaint against the ski resort, which filed a motion for summary judgment based upon a pre-printed release form that plaintiff had signed prior to participation.  The release applied to all liability that was “the result of negligence or any other improper conduct on the part of the snowtubing facility.”

(more…)

C-P-Rn’t You Glad You Didn’t Enroll in this Course?

June 22, 2008

Schoenlank v. Yonkers YMCA  (New York)
(A CPR student was injured by an instructor who applied “’forceful’ and excessive pressure and torque to the student’s head and neck for a period of approximately 20 seconds”; Court denied summary judgment for the instructor in finding that a triable issue of fact remained as to whether the instructor had negligently or recklessly enhanced the risk of injury associated with this demonstration.)

The plaintiff was an experienced lifeguard. While taking a CPR re-certification course, the plaintiff decided to volunteer to be part of a demonstration where the instructor showed the class how to “properly” perform a cardio pulmonary resuscitation (CPR) technique known as a “head-tilt, chin-lift.” This technique is a method of clearing the airway of an unconscious person in an emergency situation. During the demonstration, the plaintiff suffered injuries from what he described as an, “application of ‘forceful’ and excessive pressure and torque to [his] head for a period of approximately 20 seconds.” The lower court granted the defendant’s motion for summary judgment in holding that plaintiff was barred from recovery because he had primarily assumed the risk of injury by volunteering to participate in the demonstration. That court found this risk as being inherent in this sports/recreational activity.

(more…)

Fore Head

September 19, 2007

Shin v. Ahn (California)
(Golfer Learns Lesson About Standing in Front of Another golfer Teeing Off; Court Allows Case to Proceed to Trial on Issue of Reckless Conduct)

The plaintiff was golfing in a threesome. He took a shortcut from one hole to the other, which placed him in front of the defendant and to the defendant’s left. Plaintiff stopped at that point to get a bottle of water out of his golf bag and to check his cell phone for messages. He did so even though he knew (1) that he was in front of the tee box, (2) that defendant was preparing to tee off, and (3) that he should stand behind a player who was teeing off. The defendant golfer inadvertently “pulled” his tee shot to the left, hitting plaintiff in the temple. The plaintiff brought a negligence action against other golfer. The parties disputed whether the defendant golfer knew where plaintiff was standing when he teed off. The plaintiff alleged that he and defendant made eye contact before defendant hit his shot, but his accounts of just when that eye contact occurred appeared to be inconsistent and in dispute.

(more…)