Archive for the ‘Willful and Wanton Conduct’ Category

No Relief – Issue of Town’s Liability Regarding Condition of High School Baseball Field for the Jury (MA)

October 19, 2015

Murray v. Town of Hudson (Massachusetts)

A relief pitcher for a high school baseball team injured his knee while warming up in the visiting team bullpen.  He filed a lawsuit against the town that maintained the park at which the baseball field was located, alleging that the injury was caused by the town’s negligence and its wanton and reckless conduct in allowing the visiting team to use a dangerous bullpen.  The town filed a motion for summary judgment arguing that the negligence claim was barred by the Massachusetts recreational use statute, and that the evidence did not support a finding of wanton or reckless conduct.  The trial court granted the defendant’s motion, and the pitcher appealed.

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Carried Away – Woman Injured on Zip Line; Enforcement of Release Dependent on “Common Carrier” Factual Determination (IL)

August 28, 2015

Dodge v. Grafton Zipline Adventures, LLC (Illinois)

Plaintiff was a paying guest on an aerial zip line course operated by the defendant.  Like the other guests, plaintiff was outfitted with a harness and pulley system that attached to the suspended cables and was supposed to allow her to control her speed by braking on descents.  However, on the eighth run on the zip line course, the plaintiff’s braking system failed.  She approached the landing platform as a high rate of speed, and she struck the trunk of the tree on which the lading platform was mounted.  Plaintiff filed a complaint against the defendant alleging that the defendant was a common carrier that breached its duty of care by negligently designing and operating the zip line course, intentionally and recklessly violating safety regulations promulgated by the Illinois Department of Labor, and thereby engaging in willful and wanton misconduct.  Plaintiff also alleged that defendant was negligent in instructing her, inspecting and maintaining the braking system, and failing to prevent the incident.

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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…)

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.

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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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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Home Court Disadvantage

September 17, 2010

Galaxy Cable, Inc. v. Davis (Alabama)
(11-year-old playing basketball at a friend’s house tripped over a guy wire maintained by a cable company; liability found for the cable company due to a missing yellow cable guard, but lower court’s ruling as to punitive damaged overturned.)

An 11-year-old boy tripped over a guy cable attached to a telephone pole while retrieving a basketball, lacerating his leg. The minor (through his parents) sued the cable company (among others) for creating a dangerous condition and failing to remedy the condition. A plastic yellow guard that wrapped around the guy cable and provided a visible warning of the cable had been moved, and the cable company had failed to replace or fix the condition despite having routinely inspected the pole. The defendant cable company argued that the condition was open and obvious, but the trial court found in favor of the plaintiff, awarding compensatory damages and punitive damages. The defendant appealed, and ultimately the Alabama Supreme Court affirmed the lower court’s ruling of liability, but overturned the determination of punitive damages due to a lack of evidence establishing “wantonness.”

NOTE: Much of the discussion revolves around whether the plaintiff was an invitee on the premises where the incident occurred. The plaintiff was on land belonging to another, which land was the subject of an easement in favor of the defendant. The parties never agreed on plaintiff’s legal status and the court determined that the defendant had waived the issue as to whether it owed the plaintiff a specialized duty at trial.