Archive for the ‘Statutes’ Category

Too Important – Court Denies Motion to Compel Deposition of “Apex” Executive of Defendant (CA)

October 27, 2015

Kormylo v. Forever Resorts, LLC (California)
(trial court disposition)

Plaintiff was injured while swimming at a Nevada Resort owned and operated by the defendant.  The cause of plaintiff’s injuries were disputed, but plaintiff alleged that he was struck by a chase boat operated by an employee of the defendant.  The boat in question was registered to the President and founder of the defendant, but he was not named as a defendant in the case.

Plaintiff sought to take the President’s deposition, arguing that his testimony was required to defeat the defendant’s twelfth affirmative defense under a Nevada maritime Limitation of Liability Act.  Plaintiff contended that the owner of a vessel who fails to adequately train its crew is not entitled to limit liability under the Act, and that the President’s deposition was needed to establish this lack of training and supervision of defendant’s employees.  Defendant refused to permit the deposition, and plaintiff filed a motion to compel.

(more…)

Advertisements

No Sympathy – Claims of Injured Passenger in Go Kart Barred by Assumption of Risk; No Product Defect (NY)

October 22, 2015

Garnett v. Strike Holdings, LLC (New York)

The plaintiff rode as a passenger in a two-seat go kart driven by her then boyfriend.  While driving on the track, they were allegedly bumped twice by other go karts, allegedly causing the plaintiff to suffer injuries, including “reflex sympathy dystrophy.”  Plaintiff sued the operators of the indoor recreational facility, alleging negligent and defective design, strict products liability, failure to warn, and breach of warranty.

The defendants filed a motion to strike the products liability claim.  However, the trial court denied the motion finding (1) that [the operators] leasing and rental of the go-karts could support the inference that [the operators] had placed the go-karts within the distributive chain,” and (2) the operators’ “waiver form purporting to contain an “express assumption of risk, waiver indemnity and agreement not to sue” was void as against public policy and unenforceable by reason of” New York General Obligations Law Section 5-326.  The parties proceeded with discovery.

(more…)

Scuba Tragedy – Diver Drowns; Releases Enforceability to Protect Diver Association from Ordinary Negligence (HI)

September 3, 2015

Hambrock v. Smith (Hawaii)
(trial court disposition)

Plaintiff, her husband, and their children went on a recreational scuba diving excursion that departed from Hawaii.  During the excursion, plaintiff’s husband died by drowning.  Plaintiff brought a lawsuit against numerous defendants, including (1) the dive guide on the scuba excursion (“Smith”), (2) the co-captain of the dive vessel (“McCrea”), (3) a dive training organization and an association for diving instructors and dive centers in which both the Smith and McCrea were members (“PADI”), and (4) the corporate entity out of which the Smith and McCrea ran their scuba excursions (“HSS”).  The lawsuit alleged negligence (all defendants), gross negligence (all defendants), and vicarious liability on theories of apparent agency, agency by estoppel, and maritime joint venture (against PADI).

PADI filed a motion seeking summary judgment as to both the negligence claims and the vicarious liability claims against it (i.e., all claims except gross negligence) based on the liability releases signed by the plaintiff and her family prior to the scuba diving activities.  In addition to opposing PADI’s motion, the plaintiff also filed a motion for partial summary judgment of her own, challenging the enforceability of the releases.  In addressing the enforceability of the releases, the U.S. District Court for Hawaii reviewed both admiralty law and Hawaii state law.

(more…)