Archive for the ‘Statutory Immunity’ Category

Worst Seat in the House – Triable Issue as to Whether Park Had Notice of Dangerous Bleachers (AL)

August 18, 2015

Shirley v. Tuscaloosa County Park and Recreation Authority (Alabama)

Plaintiff was sitting on bleachers at Munny Sokol Park in Alabama watching a youth football game.  Certain welds on the bleachers broke, causing plaintiff to fall and suffer personal injury.  Plaintiff filed a complaint against the parks and recreation authority that owned the property, alleging negligence and wantonness.  Plaintiff later amended her complaint to assert a claim under the Alabama Extended Manufacturer’s Liability Doctrine against several fictitiously named defendants.  The property owner filed a motion for summary judgment arguing it was entitled to immunity under Alabama’s recreational use statute.  The trial court granted the motion, and the plaintiff appealed.

On appeal, plaintiff argued that the trial court improperly entered summary judgment because there was a genuine issue of material fact as to whether the park was being used for commercial purposes and whether the property owner had “actual knowledge or an unreasonable risk of death or serious bodily harm” (both exceptions to the statutory immunity).

The Court of Civil Appeals of Alabama noted that plaintiff presented no evidence indicating that the use of the park was commercial in nature.  However, the Court found that the plaintiff did present evidence that the property owner had actual knowledge regarding the unreasonably dangerous condition of the bleachers and that it failed to guard or warn against the consequences.  The evidence established that an employee of the property owner arrived at the scene of the incident and commented, “I told them earlier to put a cone or a sign on this bleacher until we could get somebody out here to repair it.”  Another witness also confirmed that the the condition of the bleachers was known and should have been “coned off.”  The property owner disputed the facts, but the Court noted that it was required to review the evidence in the light most favorable to the non-movant.  Therefore, the Court reversed the decision and remanded the trial for further proceedings.

Out in the Cold – Claim for Injury to Snowmobiler Barred by Recreational Immunity Statute (OR)

July 31, 2015

Stringer v. U.S. Department of Agriculture (Oregon)
(trial court disposition)

A snowmobiler was injured in a national forest when he drove off an embankment.  He filed a lawsuit against the U.S. Forest Service under the Federal Tort Claims Act.  The Forest Service moved to dismiss the claim.  The U.S. District Court ruled that the Forest Service was entitled to statutory immunity.

The Court noted that as stated in the Oregon statutes, “it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes … by limiting their liability toward persons entering thereon for such purposes….” (citation omitted) advances this policy by granting “immunity to landowners who open their land to the public for recreational purposes.”  Referring to one of the exceptions to the immunity, the plaintiff argued that the Forest Service had waived the immunity by charging a fee for use of its lands.  Specifically, plaintiff cited that the Forest Service charged third parties for camping fees and ski-lift fees within the forest lands.  However, the Court disagreed, explaining “The Deschutes National Forest comprises approximately 1.8 million acres of land, including three independent ranger districts. (citation omitted)  A fee charged at one end of the Deschutes National Forest cannot, as a matter of public policy, waive immunity at the other end of the same forest, thousands of miles away, simply because the government made a charge.”

Tragedy at the Beach – State Not Liable for Youth Killed by Collapsed Sand (CA)

July 27, 2015

Buchanan v. California Department of Parks and Recreation (California)
(unpublished opinion)

A seventeen year old boy and his brother participated in a church youth group outing to Sunset State Beach in California.  During the outing, the boy and another member of the church group “created an unnatural condition that was not common to nature and would not naturally occur in that location, in that they were engaged in digging large holes in the sand in a picnic area being used by the church group, which was located within the park boundaries, separated from the beach by sand dunes, but within sight of a nearby elevated life guard station.”  The sand collapsed, burying and killing the boy.  A lawsuit was filed by the boy’s family, with the amended complaint alleging two causes of action.  First, the plaintiffs alleged that the California Department of Parks and Recreation (“DPR”) employees observed (or should have observed) the digging activities and they had a duty to warn the boy and the group of the known risks.  Second, the boy’s brother alleged a claim for negligent infliction of emotional distress as a bystander that witnessed the incident.

The DPR filed a demurrer to the amended complaint, asserting that the complaint failed to show that it owed a duty to the plaintiff and that statutory government immunity applied.  The trial court sustained the demurrer without leave to amend based on the Hazardous Recreational Activity immunity found in Government Code Section 831.7, and it entered a judgment of dismissal in favor of the defendant.  Plaintiffs appealed. (more…)

No Brakes – Village Not Responsible for Injuries to Woman Injured at the Bottom of Sledding Hill (NY)

June 24, 2015

Vannatta v. Village of Otisville (New York)

A woman was standing at the bottom of a hill in an area of village-owned park.  The area was not maintained by the village and was left in its natural state.  The hill had been used for sledding for approximately 50 years, and the woman had walked with her son to the hill to take him sledding.  As she was standing at the bottom of the hill, she was struck by someone coming down the hill.  She filed and action against the village claiming that it “failed to install and maintain proper signage or to employ personnel to prevent [or] safely restrict access to and use of the park and hill or to warn users, including pedestrians such as the Plaintiff, of dangers to such pedestrian users inherent in or incident to the use of the park and hill by others who may be using the park and hill for sleigh riding or similar recreational activities.”

The defendant moved for summary judgment under the New York General Obligations Law Section 9-103, which provides immunity “to private as well as government landowners against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities where the land is suitable for those activities.”  The trial court granted the motion and the plaintiff appealed.  On appeal, the Appellate Division of the Supreme Court agreed that the statute applied and affirmed the trial court ruling, entering judgment for the defendant.

Iced Out – Claim by Skier Who Lost Control Due to Icy Conditions Barred (PA)

June 22, 2015

Smith-Wille v. Ski Shawnee, Inc. (Pennsylvania)
(trial court disposition)

Plaintiff was skiing at the defendant’s ski resort when she encountered icy conditions, causing her to lose control and run into unpadded PVC piping holding a vinyl fence on the ski slope.  Plaintiff suffered personal injury and filed an action against the resort, claiming that there should have been a warning as to the icy conditions.   The defendant filed a motion for summary judgment, arguing that the accident was the result of the inherent risk of skiing.  In opposition to the motion, plaintiff asserted that there were no warnings of the slope conditions that would have allowed her to decide whether or not to proceed in skiing (i.e., she could not assume a risk of which she was not aware).  Plaintiff stated that “her conduct in skiing down the hill in the icy conditions was not voluntary, and that she could not have assumed the risk of any dangerous conditions on the slopes once there was no way to avoid those conditions, namely the ice.”  Plaintiff further contended that she was not adequately warned or the pole or the fencing that she ran into during the incident.

The Court of Common Pleas of Pennsylvania referred to the Pennsylvania Skiers Responsibility Act (“Act”), which was part of Pennsylvania’s comparative negligence statute.  In the Act, the Pennsylvania General Assembly recognized that there were “inherent” risks in the sport of downhill skiing, although those risks were not defined.  The Court concluded that “ice and icy conditions are part of the ‘inherent risks’ envisioned by the General Assembly.”  As such, the defendant did not owe the plaintiff a duty to protect the plaintiff from those conditions.  The Court also pointed out that “from a practical standpoint . . . it would be virtually impossible for a ski area to warn of icy conditions wherever and wherever they may exist.”  Finally, the Court stated that the defendant did not owe a duty to provide plaintiff with an alternate route down the slope.

The Court granted the motion for summary judgment and entered judgment in favor of the defendant.

Short Ride – Minor Child Falls From Horse During Birth Party; Statutory Immunity Applies (AL)

June 19, 2015

Estes v. Stepping Stone Farm, LLC (Alabama)

A four year old child attended a birthday party that included equestrian activities.  She fell from a horse during the party and was injured.  Her father filed a lawsuit against the equine center, the center’s owner, and the center’s employees, alleging claims of negligence, wantonness, and negligent failure to train or supervise.  The defendants filed a motion for summary judgment citing the Alabama Equine Activities Liability Protection Act (“Act”), which limits the civil liability of those involved with equine activities as it pertains to risks inherent in the activities.  The trial court granted the motion, and the plaintiff appealed.
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Wipeout – Sledding Spectator at Birthday Party Assumed risk of Bring Struck (NY)

June 8, 2015

Photo by Tony Fischer (no changes made)

 

Savage v. Brown (New York)

The plaintiff was one of about 15 guests invited to a birthday party held for defendant Tracy Brown (“Tracy”).  The guests were invited to participate in snow sledding at the party.  Plaintiff was standing on the side of the hill watching other attendees sledding when she was struck by a sled carrying Tracy and another guest.  Plaintiff sued Tracy, Tracy’s mother, and the property owner for negligence.  The defendants moved for summary judgment based on the doctrine of assumption of the risk.  Alternatively, the property owner contended that it was entitled to protection of the state’s recreational immunity statute.

The trial court denied the defendants’ motions, and the defendants appealed.  The Appellate Division of the Supreme Court reversed the trial court decisions and entered judgment in favor of the defendants.  The Court compared the plaintiff to a spectator at other sporting activities who assume the risk of being struck, such as a spectator at a baseball game.  The Court concluded that by standing on the side of the hill while watching other people sledding, plaintiff assumed the risk of being struck by a sled.”  Plaintiff testified that she knew the sleds were moving very fast, and she had “observed someone else at the party lose control of her sled and crash into a snow bank, and she saw a sled strike another person.”  Plaintiff’s only argument was that “she did not assume the risk of being struck by a sled because she was standing off to the side of the hill in an area where sleds were unlikely to go.”  However, the Court noted that the evidence showed that the sled turned at the very end of the run and that plaintiff did not have any time to react to it.

In light of the Court’s decision based on assumption of risk, the Court noted that it need not address the applicability of the recreational immunity statute.

Deeply Depressed – Experienced Skier Claim Relating to “Depressions” in Snow Survives Court Motion (NY)

May 26, 2015

Paulus v. Holimont, Inc. (New York)

The sixty-right year old plaintiff was a self-described “accomplished” skier, who had been skiing since the age of 5.  Plaintiff had participated in various ski races throughout the years, and he had skied on different mountains throughout the world involving varying terrain, including ice and moguls.  Plaintiff drove from his home in Ohio to the defendant’s ski area in New York.  It was his second visit to the defendant’s resort.  On his first run of the day, plaintiff was coming down a trail at the facility called “Corkscrew” (a trail rated “more difficult” with a blue square), when he encountered difficult terrain and crashed, suffering injuries.  Plaintiff used racing skis and boots, and he admitted that he liked to ski fast.  He estimated that he was traveling twenty miles an hour at the time of the incident.  Plaintiff acknowledged that a “blaze orange caution sign was placed directly at the top of the portion of the Corkscrew trail where [he] was injured.”  However, the plaintiff testified that he did not believe he had observed the sign as he cut over to the Corkscrew trail from another trail (i.e., plaintiff believed he skied onto the Corkscrew trail below the caution sign).

Plaintiff (and his wife) sued the defendant for negligence, and the defendant filed a motion for summary judgment, asserting that plaintiff’s claim should be barred by primary assumption of risk.  The trial court acknowledged that in New York “[d]ownhill skier ‘assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and manmade objects that are incidental to the provision or maintenance of a ski facility.'”  The doctrine is recognized in New York’s Safety in Skiing Code.  Additionally, “variations in terrain, including moguls, are recognized risks that are inherent in the sport of downhill skiing.”

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Big Bag of Beads – New Orleans Krewe Not Liable for Injury to Parade Attendee (LA)

May 18, 2015

Citron v. Gentilly Carnival Club Inc. (Louisiana)

The plaintiff was a long time member the defendant Endymion Krewe, a carnival organization that hosted parades and events in New Orleans.  Her and her husband attended a parade and extravaganza event hosted by Endymion.  When the parade was making its loop through the Superdome, plaintiff was hit in the head by a bag of beads.  She received first aid treatment on site, and was then transported to a local hospital.

Plaintiff filed a lawsuit against the Endymion Krewe, alleging that it was liable both in its capacity as a organization and vicariously for its krewe member’s actions.  Plaintiff alleged that her injuries were caused by the “deliberate and wanton act or gross negligence” of the defendant, and that the defendant “willfully and knowingly permit its members to throw full bags of beads overhand in a space where people are seated, eating and enjoying musical entertainment.”  Plaintiff also asserted that because the defendant required its float “riders to be masked making identification of the individual tortfeasor impossible,” the defendant “must be liable for the conduct of its members.”

Defendant argued that each member of the Endymion Krewe received two tickets to enter into the subject extravaganza, and the tickets had a limitation of liability and assumption of risk printed on the back.  Defendant also asserted the affirmative defenses of comparative fault on the part of plaintiff (or third parties) and immunity for liability under the Mardi Gras immunity statute (La. R.S. 9:2796).  The statute, which was first enacted in 1979 to help control rising insurance costs for parading organizations, provides broad immunity for krewes that sponsor parades, and it provides that anyone who attends such a parade “assumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tossed or hurled by members.”  The krewe bears the initial burden of providing evidence to establish its right to immunity under the statute.  Once established, the burden then shifts to the claimant to establish that the krewe engaged in gross negligence (an exception to the immunity).

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Attack on Connecticut’s Public Lands

May 12, 2011

Recreation on Public Land Jeopardized (Connecticut)
(Recent developments in Connecticut case-law appear to reverse past trends and open up public lands to liability for injuries incurred in connection with recreational use by members of the public.)

The Overlawyered blog recently posted an article discussing developments which are opening up public lands to potential liability where protections were once found.  This trend could potentially stifle recreational opportunities for state citizens.