Archive for the ‘Violation of Statute’ 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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Blown Engine – Drag Racer Dies During a Track Rental Session; Racetrack Faced with Triable Issues, Possible Punitive Damages (NJ)

August 26, 2015

Cruz v. ATCO Raceway, Inc. (New Jersey)
(trial court disposition)

Jose Cruz was involved a fiery crash that occurred at the drag racing strip owned by the defendant.  The accident was caused by a “catastrophic engine failure,” and Jose was severely burned.  Although he managed to escape the car and walk away from the wreck, he ultimately died at the hospital.  A lawsuit was filed by Jose’s widow on her own behalf and on behalf of Jose’s estate, alleging negligence, negligence per se, wrongful death, and survivorship.  The lawsuit also sought punitive damages.  The defendant filed a motion for summary judgment, and the New Jersey District Court granted the motion in part and denied the motion in part. (more…)

Foul on the Defense – Basketball Rec League Waiver Void Under New York Statute (NY)

June 12, 2015

(photo by Dave Lindblom; unchanged)

Falzone v. City of New York (New York)

Plaintiff paid a fee to register to play in a recreation basketball league.  The league then paid the defendant New York City Department of Eduction a portion of the league registration fees for a permit in order to use a public school gymnasium.  During a game at the facility, the plaintiff was injured when his hand went through the glass window of a door that was behind one of the basketball hoops.  Plaintiff then filed an action against the City of New York and the Department of Education.  After initially responding, the defendant filed a motion for leave to amend their answer to add the affirmative defense of release and filed a motion to dismiss the complaint.  The trial court granted both motions and the plaintiff appealed.

On appeal, the Appellate Division of the Supreme Court determined that the trial court had properly granted the City of New York’s motion to dismiss in that it did not operate, maintain, or control the school premises.  As to the motion by the Department of Eduction to add the affirmative defense of release, the Court reversed the decision.  the Court explained that “[a]lthough leave to amend a pleading should be freely given [citation omitted], a court should deny a motion for leave to amend if the proposed amendment is palpably insufficient, would prejudice or surprise the opposing party, or is patently devoid of merit.”  The Court noted that the proposed amendment regarding the affirmative defense of release was “devoid of merit.”  The plaintiff had signed a “Player Waiver, Release of Liability and Indemnification Agreement” prior to his participation in the basketball league, but he paid a league fee to use the gymnasium and the payment of the fee rendered the waiver and release agreement void pursuant to New York General Obligations Law Section 5-326.  Under Section 5-326, every agreement in connection with a place of recreation in which the owner or operator receives a fee for the use of such facilities that exempts the owner or operator from liability for damages resulting from the negligence of the owner or operator is deemed void as against public policy and wholly unenforceable.

The Shaft

August 29, 2012

Nesbitt v. NMCA, et. al (Illinois – pending)
(A drag racer injured when a driveshaft broker and entered the cockpit is suing multiple parties, including the racing association, the sanctioning body, and the chassis manufacturer.)

CompetitionPlus.com recently posted a story here about the lawsuit filed in Cook County Court.  The article includes an initial response from the National Muscle Car Association (“NMCA”).  The NMCA is not surprised about the lawsuit considering the current state of the judicial system and is very confident in its ability to defend the claim, particularly in light of the waiver and release agreement signed by Nesbitt prior to participation.

NOTE: Legal claims that arise out of these types of incidents that appear to derive from nothing more than the risks inherent in a dangerous sporting activity like motorsports are obviously a significant reason for inconsistency and high cost associated with sports insurance products.

Shooting Blind

August 1, 2012

Blind Industries and Services of Md. v. Route 40 Paintball Park (Maryland)
(A legally blind individual was denied the chance to play paintball at the defendant’s facility, and the plaintiff advocate group filed a claim on his behalf alleging a violation of the Americans with Disabilities Act (“ADA”); the defendant failed to produce evidence regarding a prior personal injury civil suit and the plaintiff filed a motion to compel, which was denied.)

In its demand for production of documents as part of discovery in the litigation, the plaintiff advocate group requested “[a]ll Documents and Communications relating to complaints, grievances, citations, or claims made against the [defendant] by any person for . . . negligence of any type, or safety hazards of any type.”  After the defendant served its responses, the plaintiff noted that the defendant had failed to produce documents relating to a tort action it had discovered alleging unsafe conditions at the defendant’s paintball fields.  The defendant argued that the prior lawsuit was not relevant to the plaintiff’s ADA claim.

The District Court ruled that the defendant was required to only produce copies of any publicly filed documents pertaining to the prior lawsuit.  The Court explained that requiring the defendant to conduct an extensive review and production concerning prior cases “would violate the principles of proportionality.”  Although there is a relatively low standard of relevance required for discovery, the Court felt it was too much of a burden on the defense to produce more than what was part of the public record.  The defendant did contend the blind individual’s visual impairment “posed a safety concern,” but the connection of that allegation with prior claims of unsafe conditions was clearly limited.  The fact that the documents sought by the plaintiff also implicated the attorney-client privilege played a role in the Court’s decision.

As part of its motion to compel, the plaintiff also sought further responses from the defendant regarding the factual basis underlying the defendant’s affirmative defenses, asking that the affirmative defenses be stricken if additional information was not provided. However, the Court found the initial responses, “[t]aken in totality,” to be sufficient.

NOTE: This is certainly a positive decision from a defense perspective, considering the broad standard of “relevancy” in discovery.  Defendants are always concerned about a plaintiff’s ability to make their life unnecessarily difficult (and costly) via the discovery process.  It appears that a fair balance was reached in this instance.

Reality for Dr. Phil

January 27, 2011

Dieu v. Phil McGraw (California)
(Participants recruited to participate in a Dr. Phil reality show sue for negligence and intentional tort claims; waiver and release agreements signed by the participants do not preclude liability for the claims beyond negligence.)

After posting comments on Dr. Phil’s website about their distrust for men, the plaintiffs were recruited by producers to participate in a reality-based television show where they would live in a house and receive therapy from Dr. Phil.  Prior to their participation in the show, the plaintiffs signed several copies of “Dr. Phil Program Appearance Release” forms, all of which were substantially the same (the “Releases”).  In addition to describing the nature of the show (including “heated discussions, commentary and remarks”), the Releases also provided that the plaintiffs agreed not to sue the defendants for failure to disclose the subject matter of the show or the identity of guests, or as a result of dislike of the questioning or outcome from the program.  Additionally, the Releases asserted that the plaintiffs would be not receive therapy from Dr. Phil (contrary to alleged prior representations) and that no representations had been made to (or would be relied upon by) plaintiffs.  Specifically, the Releases waived and released liability of the defendants for “any claims, demands and causes of action for invasion of privacy or publicity, defamation, infliction of emotional distress and any other tort in connection therewith.”

Plaintiffs had a bad experience in connection with the program, alleging that the “mock house” was on a sound stage, was cramped (they shared one bathroom), and was in a bad neighborhood.  Plaintiffs further alleged that they had their laptops and cell phones taken from them and they were not permitted access to the outside world.  The plaintiff assert that they were not provided counseling, and when a plaintiff asked to leave she was convinced to stay through unfulfilled representations by the defendants.  In one instance, the plaintiffs were intentionally exposed to a naked man and were apparently mocked as a result of their reactions (they were “shocked and horrified”).  Despite a lack of cooperation, the plaintiff indicated that there were eventually allowed to leave the house.  Thereafter, the plaintiffs filed a civil action against the defendants alleging various emotional and physical injuries from the experience, asserting claims for (1) fraud, (2) negligent misrepresentation, (3) negligence, (4) breach of fiduciary duty, (5) violations of the Business and Professions Code, (6) rescission, (7 intentional infliction of emotional distress, and (8) negligent infliction of emotional distress.

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Skier v. Snowmobile

May 19, 2009

Robinette v. Snowmass Ski Area (Colorado)
(Federal District Court Rules in Favor of Ski Resort in a Collision Case Based Upon Release)

The Aspen Daily News published an article today discussing the recent decision of a U.S. District Court Judge in Denver Colorado. The article can be found here: http://www.aspendailynews.com/section/home/134580

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Ignorance–Not So Bliss

July 11, 2007

Tassinari v. Key West Water Tours (Florida-UNPUBLISHED)
(Personal Watercraft Collision Victims Sue Alleging Violation of Florida Watercraft Statutes; Federal Court Finds Negligence Per Se; Waiver and Release Ineffective Regarding Violations of Statute)

The defendant watercraft rental agency rented a personal watercraft to the plaintiffs near Key West, Florida. The agency then took a group of personal watercraft renters, including the plaintiffs and third-party defendant Jeffrey Wilkerson, on a guided tour from its marina out to the area’s surrounding waters. During the tour, the watercraft operated by Wilkerson collided with the watercraft operated by plaintiffs, injuring the plaintiffs.

After a lawsuit was filed, the agency filed a motion for summary judgment arguing: (1) it was entitled to exoneration from liability because there was no evidence of negligence or unseaworthiness; (2) alternatively, it was entitled to have its liability limited to the value of the watercraft (approximately $3,000.00) because it was without privity or knowledge of any negligence or unseaworthiness; (3) Florida statutory law did not apply; and (4) the claim of one plaintiff claims was barred by the waiver and “hold harmless” provisions of the rental agreement that he signed. The plaintiffs also filed a motion for summary judgment, arguing that they were entitled to judgment because the agency violated certain Florida State statutes making the agency negligent per se. The plaintiffs also argue that if the agency is negligent per se, then the agency was not entitled to have its liability limited to the value of the watercraft.

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