Archive for the ‘Student-Instructor’ Category

Hard Lesson – Defendant Riding School Not Liable for Child Bucked from Horse (NY)

July 8, 2015

Quintanilla v. Thomas School of Horsemanship, Inc. (New York)

A minor child was thrown from a horse while taking an intermediate horse riding lesson, and her mother filed a lawsuit against the horse riding facility.  The defendant filed a motion for summary judgment, contending that the claim was barred by the doctrine of primary assumption of risk.  The trial court denied the motion, but the decision was reversed the the Appellate Division of the Supreme Court.

Prior to the child’s participation in the riding lesson, her parents signed a “Camp and Riding Instruction Agreement and Liability Release,” which warned that the facility’s horses could react if they were frightened or provoked.  During the child’s lesson, several horses came in close proximity to one another, and one of the horses kicked a wooden fence or gate, causing the child’s horse to rear up and throw the child off.  The Court explained that “[t]he risks of falling from a horse or a horse acting in an unintended manner are risks inherent in the sport of horseback riding.”  As such, the defendant was entitled to judgment as a matter of law.

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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.

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Quite a Show – Concussed Cheerleader Barred From Making Claim RE Failed High School Cheer Stunt (CA)

April 30, 2015

Baggay v. Linfield Christian School (California)
(not published)

A high school cheerleader suffered a concussion while performing a stunt during practice.  She filed a lawsuit against the school, asserting causes of action for (1) “negligence/recklessness,” (2) “false promise,” and (3) negligent misrepresentation.  The school filed a motion for summary judgment, or in the alternative summary adjudication, on the grounds that the claims were barred by the primary assumption of risk doctrine and that the plaintiff could not establish the essential elements of her false promise (promissory fraud) and misrepresentation claims.  The trial court granted the school’s motion, and the cheerleader appealed.

On appeal, the cheerleader argued that her claims were not barred by primary assumption of the risk “because a concussion is not an inherent risk of cheerleading,”  The Court of Appeals for California disagreed, stating that “‘[i]nherent risk’ does not refer to the type of injury that the plaintiff sustains or the manner in which the injury occurred, but rather the reason for the injury.” (Emphasis in the original.)  The Court continued, “An inherent risk is one that, if eliminated, would fundamentally alter the nature of the sport or deter vigorous participation.”  The plaintiff was injured because the group of cheerleaders failed to properly execute a stunt they had previously practiced and had previously successfully executed.  It is fundamental to the nature of modern cheerleading that teams will practice and perform stunts that involve the risk of injury.  Thus, “any type of injury that reasonably could be expected to result from such a fall is an inherent risk of modern cheerleading.” (Emphasis in the original.) (more…)

Broken Record – Judgment in Favor of Scuba-Diving Instructor in Death Case Upheld (TX)

April 29, 2015

DeWolf v. Kohler (Texas)

In 2008, Terry Sean DeWolf died while scuba diving more than fifty miles off the coast of Massachusetts.  Initially, the medical examiner identified the cause of death as drowning, but later revised the conclusion to reflect that he died of natural causes (myocarditis).  Terry’ wife thereafter filed a lawsuit against numerous defendants, including (among others) the boat used for the dive, the individual who chartered the boat (Kohler), a television network which had carried a program on which Kohler had appeared, the dive-training company from which Kohler obtained credentials as a scuba-diving instructor, and the scuba-equipment manufacturer that manufactured the rebreather that Terry had used during the dive.  The wife alleged several claims, including violations of the Deceptive Trade Practices Consumer Protection Act, the federal Death on the High Seas Act, and other state law claims.

Numerous motions were filed in this complicated lawsuit, and the trial court addressed many issues relating to personal jurisdiction and statutes of limitation.  Ultimately, Kohler was the only remaining defendant and the case proceeded to trial.  Following a jury trial, the court entered judgment in favor of the defendant, and the wife appealed.  On appeal, the wife challenged instructions that were given to the jury.

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Untrained Warrior – High Schooler Injured in Self-Defense Course Gets Her Day in Court (NY)

April 19, 2015

Pierre v. Ramapo Central School District (New York)

A minor high school student was injured while competing as a participant in her school’s self-defense tournament, a voluntary competition open to female students who were enrolled in an elective self-defense class taught by a physical education teacher.  The student filed an action against the school district claiming that the class was actually a mixed martial arts class and alleging that the district was negligent in allowing the class to be instructed by (and the tournament to be refereed by) a person with little martial arts training.

The defendant school district filed a motion for summary judgment, arguing that the doctrine of primary assumption of risk barred the action and that any negligent supervision on its behalf was not the proximate cause of the plaintiff’s injuries.  The Supreme Court initially denied the motion, and the defendant appealed.

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Go Team!

November 15, 2012

Kristina D. v. Nesaquake Middle School (New York)
(A cheerleader was injured when she fell from a shoulder stand during practice; she sued the district, coach and others for her personal injuries; the trial court denied the defendants’ motion for summary judgment based on assumption of the risk, but the decision was reversed on appeal.)

The minor plaintiff was an experienced middle school cheerleader who was injured performing a “shoulder stand” during practice, a stunt she had performed many times in the past.  She filed a claim alleging that the school district and the coach acted negligently by, among other things, “failing to supervise the cheerleaders properly in performing the stunt.”  The defendants filed a motion for summary judgment arguing that the claims were barred by assumption of the risk.  The motion was denied, and the defendants appealed.

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Target Practice

September 20, 2012

Bukowski v. Clarkson University (New York)
(A university baseball pitcher was injured by a line drive while participating in a practice, and he sued the university and his head coach;  the court found that the pitcher had assumed the inherent risk of being hit by the baseball and affirmed the trial court’s directed verdit in favor of the defendants.)

The plaintiff was injured after throwing a fastball to a batter during “live” indoor practice without a protective screen.  The batter struck the ball which hit the plaintiff in the jaw and broker his tooth.  After the lawsuit was filed, the defendants filed a motion for summary judgment, which was denied.  At trial, plaintiff argued “that the risk of being hit by a batted ball was enhanced due to the multicolored pitching backdrop and low lighting at the indoor facility, which made it harder to see the white ball, and the failure to use an L-screen.”

At the close of evidence, the trial court granted defendants’ motion for a directed verdict “on the ground that plaintiff assumed the commonly appreciated risk in baseball of being hit by a line drive.”  Plaintiff appealed.

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Injured High School Track Athlete Hurdles Summary Judgment

July 6, 2008

Morales v. Beacon City School District (New York)
(Inexperienced High School Track Athlete Injured During Practice After Coach Directed Him to Run Hurdles With Minimal Instruction; Court Denied School’s Summary Judgment Due to Triable Issue of Fact Regarding Increased Risks.)

The plaintiff was a high school track athlete who had minimal experience running hurdles. He claimed that the coach told him to run hurdles, but failed to give him adequate instruction, resulting in his personal injury. Additionally, the athlete contended the hurdle he fell over was not set up properly because the horizontal bar was uneven. The defendant school moved for summary judgment on the grounds that the plaintiff had assumed the inherent risks of injury by participating in this sports activity. The court denied the motion and the school appealed

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Scuba Diving School Stays Above Water

July 6, 2008

Booth v. Bowen (U.S. Virgin Islands-UNPUBLISHED)
(Federal Court Enforces Waiver in Favor of Scuba Diving School; Denied Claims of Heirs Suing on Behalf of Novice Scuba Diver Who Died While Completing the School’s Introductory Course.)

This case involved an action brought by the heirs of a deceased scuba diver. The decedent participated in a novice diving course in Saint Thomas, U.S. Virgin Islands. The deceased had no diving experience. Before participating, he signed a “Questionnaire” which was titled “Liability Release and Assumption of Risk Agreement.” The school argued that the language of the agreement relieved them from negligence liability. The plaintiff-heirs argued that the waiver should be unenforceable on public policy grounds because the agreement improperly barred the claims of heirs and family member of the deceased. The plaintiffs contested the fact that the agreement signed by the decedent precluded an undetermined class of individuals (heirs and family members) from filing suit.

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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.

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