Archive for the ‘Scope’ Category

Snowmobile Wins Again – Claims of Injured Ski Racer Survive Motion Based on Waiver and Assumption of Risk Statutes (CO)

October 29, 2015

Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp. (Colorado)
(trial court disposition)

Plaintiff was a member of the Sarasota, Florida Ski Team.  She traveled to the Steamboat Springs Ski Resort in Colorado to participate in ski races.  After finishing her second race and exiting the race course, plaintiff skied down a trail and headed toward the ski lift.  She attempted to ski past the lift to a picnic area to meet up with other racers.  However, she collided with a snowmobile that was parked near the lift.  Plaintiff sued the ski resort alleging (1) common law negligence in parking the snowmobile in a dangerous, high-traffic area, and (2) negligence per se under the Colorado Ski Safety Act (“SSA”) by failing to mark and pad the snowmobile.

The defendant moved for summary judgment, arguing (1) that the exculpatory clause contained in the race participation agreement signed by the plaintiff prior to her participation barred the plaintiff’s claims, (2) the common law negligence claim was barred by the SSA (“no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing”), and (3) the negligence per se claim failed because the SSA does not apply under the circumstances (i.e., with regard to a parked snowmobile).

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Beyond Control – Woman Injured on Costa Rican Bicycle Tour; Claims Survive Motion to Dismiss (CO)

October 15, 2015

Steinfeld v. EmPG International, LLC (Colorado)
(trial court disposition)

A woman fell off her bicycle during a bicycle your vacation in Costa Rica.  She and her husband filed a lawsuit against the bicycle tour company.  The lawsuit was filed in Pennsylvania where the plaintiffs resided, but the Pennsylvania District Court held that is lacked personal jurisdiction over the defendant tour company that was based in Colorado.  The defendant filed a motion to dismiss based in large part on the assumption of risk and waiver of liability forms (“Releases”) signed by the plaintiffs prior to their participation in the tour.  However, the Colorado District Court applied Colorado law (as having the “most significant relationship” to claims), denied the motion, and allowed the case to proceed to discovery, finding that the Releases did not bar all of the plaintiffs claims.  The Court explained:

“A waiver implicitly or explicitly is grounded on warranties of fitness, and assumption of risk can only take place when the risk is inherent and clearly foreseeable.  The Complaint in this case abounds with allegations of misrepresentations and abandonment of good faith attempts to fulfill the obligations of the contract.”

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Reality Bites – Defamation and Business Tort Claims of Reality Show Participant Dismissed (NY)

June 29, 2015

Klapper v. Gaziano (New York)

In 2011, the plaintiff agreed to participate in the “Mob Wives” reality television show.  Prior to his participation, he signed an “Appearance Release” in which he agreed to not sue the production company and to release the production company and its affiliates and representatives from all liability.  After the show, plaintiff filed an action against several individual and corporate defendants, alleging defamation and tortious interference with existing contracts and prospective business relationships.  The defendant corporate entities moved to dismiss the amended complaint for failure to state a cause of action and for an award of attorney’s fees.  The trial court granted the motion, and plaintiff appealed. (more…)

Mirror Mirror Off the Wall – Fitness Member’s Injury Claim Relating to Falling Mirror Survives Release Motion (IL)

June 16, 2015

Hawkins v. Capital Fitness, Inc. (Illinois)

Plaintiff was a member of the defendant’s fitness club.  He was injured when a mirror fell from the wall and struck him in the head.  As a result, he filed a personal injury action, alleging the negligent failure to secure the mirror or warn patrons about the mirror.  The defendant filed a motion for summary judgment based on the “Disclaimers, Waiver, Release, and Indemnification” language found in the defendant’s membership agreement.  The trial court granted the motion, entering judgment for the defendant, and the plaintiff appealed. (more…)

No Free Lunch (or Vacation) – Florida Supreme Court Confirms Decision to Enforce Release Despite Lack of “Negligence” Language (FL)

May 13, 2015

Sanislo v.Give the Kids the World, Inc. (Florida)

The defendant non-profit organization provided free vacations to seriously ill children and their families.  The plaintiff went with her ill child on one of the defendant’s vacations, and she suffered an injury when a wheelchair lift collapsed at a resort village.  The plaintiff filed a negligence lawsuit against the defendant, and the defendant filed a motion for summary judgment based upon a both release of liability that was included in in the wish request form filled out by the plaintiff and a liability release form signed by the plaintiff after she arrived at the resort village.  Plaintiff countered with her own motion for partial summary judgment on the defendant’s affirmative defense of release.  The trial court granted the plaintiff’s motion and denied the defendant’s motion, and the case proceeded to trial.

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