Archive for the ‘Struck By Object’ Category

Not Amusing – Assumption of Risk, Contributory Negligence Not Applicable to Injured Two Year Old; Triable Issues RE Accident (MD)

October 26, 2015

McNeill v. Trimper’s Rides of Ocean City, Inc. (Maryland)
(trial court disposition)

A two-year-old boy went to an amusement park under the watch of his uncle.  He was on a ride for young children when the rider operator stopped the ride to remove another rider.  When the ride stopped, the boy apparently thought the ride was over and go out of his seat.  The ride operator then resumed the ride and the it struck the boy.  The boy’s father sued the amusement park, alleging that the ride operator negligently failed to insure that the boy was safely out of the way of danger before putting the ride back into motion.  The defendant filed an answer which included the affirmative defenses of assumption of the risk and contributory negligence.  Defendant also argued that the lawsuit was barred by the statute of limitations.

Plaintiff filed a motion for summary judgment, arguing that the defendants’ affirmative defenses of assumption of the risk and contributory negligence were inapplicable because the boy was only two years old.  Plaintiff further asserted that under Maryland law, any negligence on the part of the child could not be imputed to a parent or caretaker.  The defendant’s opposition to the motion conceded “that the affirmative defenses of statute of limitations, contributory negligence, and assumption of the risk do not apply on the present record.”  However, the District Court explained that the concession did not create a basis for an award of summary judgment in favor of plaintiff because it was not a res ipsa loquitor case and the plaintiff still needed to prove the elements of negligence.

Neither party had been able to locate and depose the operator of the ride at the time of the incident.  Additionally, the boy’s uncle was the only available eyewitness in the case, but his view of the accident was obstructed and he could not testify as to what exactly had happened.  The Court noted that the plaintiff may eventually prevail at trial, but that it could not, by way of a motion, resolve factual disputes as to how the incident occurred.   The Court also ruled that the lawsuit was not time-barred.

 

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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.

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Failure to Warn – Supreme Court Find Triable Issue Regarding School District’s Breach of Duty to Deceased Youth (WY)

October 21, 2015

Amos v. Lincoln County School District No. 2 (Wyoming)

A five-year-old boy was attending a basketball game at a school that had been converted to a community center.  He was playing with other children on a stage near the basketball court when a lunchroom bench tipped over and fell on top of him, causing a basal skull fracture and killing him instantly.  The lunchroom bench had been removed from the gymnasium wall and had been placed against the wall in a storage room adjacent to the stage.  A year later, the boy’s personal representative filed a wrongful death action against the school district, along with the town and county where the facility was located.

The county filed an “affidavit of noninvolvement” with the trial court in lieu of an answer.  In response, the trial court entered an order dismissing the county from the action without prejudice.  The court explained that it found that “there [were] not enough facts to show that [the county was] responsible but if facts come forward or are discovered that show that [the county was] responsible, either directly or indirectly, [the county] shall be reinstated as a Defendant.”

The school district filed a motion for summary judgment, arguing that it had turned over possession and maintenance of the building to the community group such that it did not owe the plaintiff a duty of care and was, therefore, entitled to judgment as a matter of law.  The trial court denied the school district’s motion, holding: “Viewing these basic facts in a light most favorable to the Plaintiff, the School District, as the owner, is in the same position as a landlord is to its tenants and their invitees. As such, it owed all persons entering the building as invitees the duty of reasonable and ordinary care under the circumstances.”  Notwithstanding the ruling, the trial court did express concern that the facts may not ultimately establish a breach of the school district’s duty or that the district’s actions were the proximate cause of the incident.

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Maintenance Mystery – Gross Negligence is an Issue of Fact for Jury in Fitness Club Equipment Case (CA)

August 7, 2015

Chavez v. 24 Hour Fitness USA, Inc. (California)

Plaintiff suffered a traumatic brain injury when the back panel of a “FreeMotion cable crossover machine struck her in the head at the defendant’s workout facility.  Plaintiff filed a complaint alleging claims for ordinary and gross negligence and strict product liability.  The defendant moved for summary judgment arguing (1) the written release of liability in its membership application was a complete defense to the negligence claims, (2) it could not be liable under a products liability claim because it was a service provide and it was not in the chain of commerce, and (3) the plaintiff could not reasonably demonstrate an extreme departure from the ordinary standard of care or a failure to exercise scant care which was required to state a claim for gross negligence because the defendant’s technician routinely inspected the equipment and performed preventative maintenance on it.

Plaintiff opposed the motion, and, in the alternative, sought a continuance of the motion based on the fact that the defendant claimed that it was unable to produce the maintenance technician for deposition because he was not longer employed by defendant and he could not be found.  The trial court denied plaintiff’s motion to continue, noting that the maintenance technician had been identified many months before the defendant filed its motion for summary judgment, but plaintiff elected not to subpoena him until after it received the motion.  The trial court then granted the defendant’s motion finding (1) the primary purpose of the membership agreement was the provision of fitness services such that defendant could not be held strictly responsible under the products liability claim, (2) the ordinary negligence and premises liability claims were barred by the release of liability in the membership agreement, and (3) the defendant had met its burden to show it was not grossly negligent by establishing “it had a system of preventative and responsive maintenance of its equipment.”  Plaintiff appealed the trial court decision, but only as to the ruling on its motion to continue and as to the gross negligence claim. (more…)

Crying Foul – Federal Litigation in California Seeks to Change Baseball’s “Limited Duty Rule” (CA)

July 15, 2015

Crying Foul – Federal Litigation in California Seeks to Change Baseball’s “Limited Duty Rule” (ESPN.com Article)

The sport of baseball has long felt the benefit of the “limited duty rule.”  The rule protects baseball teams and stadium operators from liability to spectators for injuries caused by balls and bats that fly into the seats.  The rule generally requires the team or stadium operator to provide a sufficient number of protected seats for those spectators who want them, and to provide protection for all spectators located in the most dangerous parts of the stadium, notably the areas that pose the highest risk of injury from fouls balls, such as the seating directly behind home plate.

There have been numerous challenges to the rule over the years, and now we have a new one in California.  As described in the ESPN.com article here, an Oakland Athletics season-ticket holder has filed a federal court action seeking class-action status on behalf of all fans buying season tickets in unprotected areas of the ballpark.  The goal appears to be the installation of safety netting from foul pole to foul pole.

Unwanted Souvenir – Woman Struck by Foul Ball During MLB Batting Practice; Claim Barred (WA)

July 7, 2015

Reed-Jennings v. Baseball Club of Seattle, L.P. (Washington)
(unreported decision)

The plaintiff was seriously injured while attending a Seattle Mariners Major League Baseball game.  She was struck by a foul ball hit into the stands during batting practice.  Plaintiff filed a negligence based lawsuit against the team, but the trial court granted the defendant’s motion for summary judgment, finding that the team did not breach its limited duty of care to the plaintiff and that the plaintiff’s claims were barred by the assumption of risk doctrine.  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.

Fender Bender – Claims of Injured “Cyber Sport” Participant Dismissed (NY)

June 5, 2015

Yargeau v. Lasertron (New York)

Plaintiff was injured while participating in a game called Cyber Sport.  In Cyber Sport, participants drive cars similar to bumper cars while they attempt to scoop a ball into a handheld basket and then shoot the ball to score points.  A participant uses a joystick to move the car, but there are no brakes on the cars.  The cars are built to stop moving when the joystick is released or when a signal is sent to the car by an employee of the facility hosting the game.  After riding in her car during a warm up period, the plaintiff was sitting in her car listening to the referee give instructions to the players.  Although the referee had pressed the button that was supposed to give a signal causing all the cars to stop, at least one of the cars still had power and ended up striking plaintiff’s car from behind and causing her personal injury.

Plaintiff sued the manufacturer of the car and the facility hosting the game, alleging products liability claims and negligence.  The defendants filed motions for summary judgment, which were granted by the trial court, and the plaintiff appealed. (more…)

Show’s Over – Indemnity Dispute Between State Fair and Equipment Lessor Regarding Collapsed Stage Continues (IN)

May 29, 2015

In re Indiana State Fair Litigation (Indiana)
(one Judge dissenting)

This case arises from a collapsed stage at a state fair in August of 2011, which caused several deaths and injuries.  The issue was whether the stage equipment supplier (Mid-America Sound [“Mid-America”]) was entitled to indemnification from the event operator (the Indiana State Fair Commission [“Commission”]) based on the terms and conditions of the typical course of business between them.

Dating back to the mid-1990s, the Commission leased temporary roof structures and other equipment from Mid-America to use for outdoor concerts on property operated by the Commission.  During the last ten years of their relationship, the parties followed the same procedure with regard to the equipment leasing.  Mid-America delivered the equipment before the event and then later returned to pick up the equipment after the event.  When it picked up the equipment, Mid-America would sign contracts for the rented items and submit the contracts to the Commission.  The Commission audited each contract to make sure it conformed to the agreement of the parties and then issued payment.

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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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