Defending Sports Blog

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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Harris v. I-44 Lebanon (Missouri)
(Late Model Race Car Driver Injured While Racing on a Dirt Track When a Large Rock Hit His Helmet; Motion for Summary Judgment Based on Waiver and Release Denied; Defense Verdict Issued After Trial)

The case involved late model racing on an oval dirt track in Lebanon, Missouri. The Plaintiff was a 51-year-old lifelong dirt track racer who was injured in 2003 when he was struck by a rock in the mouth area of his helmet during a late model dirt track race.

Roughly five months before this accident, the Lebanon I-44 Speedway was converted from an asphalt track to a dirt race track, which involved laying dirt over the asphalt surface. The initial batch of dirt was unsatisfactory so the track preparer, Randy Mooneyham, removed this dirt and put an entirely new type of dirt on the track. After it was placed on the track, he then used a rock picker, a rock rake and a grader to work the debris out of the track and pack it down throughout the 2003 season. Plaintiff raced on the track several times during 2003 before his accident.

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Heilig v. Touchstone Climbing, Inc. (California–UNPUBLISHED)
(Rock Climber Falls During a Competition; Release Precludes Negligence Claims; No Allegations or Evidence of “Gross Negligence”; Defendant Entitled to Attorneys Fees Pursuant to Release)

The plaintiff was an experienced and professional rock climber. He was injured in a fall during a rock climbing competition at one of the defendant’s indoor “climbing gyms.” Plaintiff had climbed indoor climbing walls at some of defendant’s six facilities in the Bay Area during the several years preceding the incident. He had been intermittently a member of defendant’s facility, which entitled him to use any of its climbing facilities. Defendant had periodically required plaintiff to sign releases of liability in order to use their facilities.

Plaintiff had taken a few years off from competitive climbing, but had then joined the defendant at its Concord facility on February 4, 2004. At that time, he signed the most recent “Release of Liability and Assumption of Risk Agreement” (”Release”). The Release, in standard form language, specifies that the climber recognizes and assumes the significant risks of climbing, “both known and unknown, whether caused or alleged to be caused by the negligent acts or omission” of the defendant. Pursuant to the Release, plaintiff also agreed to release, discharge, and indemnify or hold harmless defendant from “any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity” or use of defendant’s equipment or facilities, including any “claims which allege negligent acts or omissions” of defendant.

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Berry v. Greater Park City Company (Utah)
(Experienced Skier in Competition Breaks Neck and Suffers Paralysis; Release Enforceable to Preclude Liability for Ordinary Negligence; Triable Issues of Fact Existed Regarding “Gross Negligence”; Dismissal of Strict Liability Claim was Proper)

The plaintiff was a twenty-six year old expert skier who entered a “skiercross” race which took place on a course constructed on the defendant’s ski runs. In the “skiercross” race format, four racers simultaneously descended a course that featured difficult turns and tabletop jumps. The racers competed against each other as they skied down the mountain to complete the course first. On plaintiff’s fourth trip down the course, he attempted to negotiate a tabletop jump. Upon landing from the jump, he fell and fractured his neck, resulting in permanent paralysis. Before being allowed to participate in the contest, plaintiff was required to sign a “Release of Liability and Indemnity Agreement,” which purported to release defendant from negligence liability. Although plaintiff did not read the agreement, he signed it twelve days before the race.

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Davis v. 3 Bar F Rodeo (Kentucky)
(Man Killed by Aggravated Bull at Rodeo; Release Signed by Decedent Precluded Negligence Liability Despite Failure to Post Proper Warnings Under Kentucky’s Farm Animals Activities Act; Triable Issues Existed as to Release and as to Whether Aggravating the Bull Amounted to “Gross Negligence”)

The decedent attended a rodeo, and he volunteered to participate in a game called the “Ring of Fear.” The game called for audience members to enter the rodeo ring and stand in marked circles on the ground. A bull was released into the ring, and the winner of the game was the last person standing inside his or her circle in the ring. The winner of the game won $50. The decedent entered the ring to try his luck at the game. It was alleged that before it was released, the bull was angered by someone jabbing him with a wooden object and beating sticks against his cage. After the bull was released, he charged and drove his head into the decedent’s abdomen, lifting him off the ground. After the game, the decedent made his way back into the stands, not knowing that his liver had burst as a result of the incident and that he was bleeding internally. The decedent faded into temporary unconsciousness and died the next morning.

Decedent’s wife brought a wrongful death action against the rodeo operators, alleging negligence. The defendants moved for summary judgment based upon a release the decedent had signed prior to participating. The decedent’s wife filed a cross-motion for summary judgment, asserting that the defendants failed to properly warn her husband of the dangers of the “Ring of Fear” as required by Kentucky statutes as part of the Farm Animals Activities Act (”FAAA”). The trial court granted defendants’ summary judgment, finding that the release was sufficient to exempt them from liability, and the trial court denied plaintiff’s cross-motion for summary judgment. Plaintiff thereafter appealed.

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Long Truong v. Cu Van Nguyen (California)
(Woman Died in Watercraft Collision on Lack; Court Ruled Primary Assumption of the Risk Barred Negligent Operation Claim and There was No Evidence of Negligent Entrustment)

The plaintiff was a passenger on a personal watercraft being operated on a lake. She was killed in a collision with another personal watercraft. Decedent’s parents filed a lawsuit alleging that the other rider was negligent in the operation of the personal watercraft and that the owner of the watercraft had negligently entrusted the watercraft to the other rider. The defendants filed a motion for summary judgment arguing that the primary assumption of the risk doctrine precluded negligence liability because they had no duty to protect the decedent from the risks inherent in the activity of riding on a personal watercraft. Defendants also argued that there was no evidence of negligent entrustment. The trial court granted defendants’ motion, and the plaintiffs appealed.

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Krathen v. School Board of Monroe County (Florida)
(High School Cheerleader Injured During Practice; Waiver and Release Signed by Parent Enforced, Negligence Claims Barred)

A high school student injured during a cheerleading practice brought a negligence action against the school board. She alleged that the school board was negligent in the following respects: (1) by failing to adequately supervise the cheerleading practice; (2) by conducting the practice without adequate preparation; (3) by using inexperienced or untrained personnel to supervise the practice; (4) by failing to place protective mats on the floor so as to cushion the impact; (5) by conducting the practice without the coach being present; and (6) by failing to abide by or follow appropriate school board policies and/or procedures relating to extracurricular activities. The defendant school board filed a motion for summary judgment based upon the “Consent and Release of Liability Certificate” signed by the cheerleader and her parents prior to her participation. The trial court granted the motion, and the cheerleader appealed.

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Patterson v. Sacramento City Unified School District (California)
(Truck Driver Student Injured Unloading Bleachers During a Community Service Project; School Owed a Duty to Supervise; Activity Not Inherently Dangerous and Primary Assumption of Risk Doctrine Did Not Apply)

The plaintiff was an adult truck driver training course student. He brought a negligent supervision action against a school district after he was injured while loading bleachers onto a flat-bed trailer as part of an off-campus community service project. The defendant school district filed a motion for summary judgment, which was eventually granted by the trial court. The court ruled, in part, that the plaintiff’s claims were barred by the primary assumption of the risk doctrine in that he voluntarily assumed the risks inherent in the activity and the defendant did nothing to increase those risks. The plaintiff appealed.

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Zipusch v. LA Workout, Inc. (California)
(Woman Falls Due to Sticky Substance on Treadmill; Poorly Worded Waiver and Release Fails to Protect the Health Club from Negligence Liability)

In October of 2004, the plaintiff signed a “Membership Agreement” and, thereafter, became a member of the defendant health club’s facility. On December 10, 2004, plaintiff allegedly sustained injuries when her foot became stuck to a sticky substance on a treadmill at the facility, causing her to lose her balance. Plaintiff filed a complaint against the facility for general negligence and premises liability, alleging its failure to inspect and maintain the exercise equipment resulted in the sticky substance remaining on the treadmill. The defendant filed a motion for summary judgment based upon the waiver and release and express assumption of the risk provisions in the agreement, and it alternatively argued that it did not have actual or constructive notice of the allegedly dangerous condition. The trial court granted the defendant’s motion, and the plaintiff appealed.

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Shin v. Ahn (California)
(Golfer Learns Lesson About Standing in Front of Another golfer Teeing Off; Court Allows Case to Proceed to Trial on Issue of Reckless Conduct)

The plaintiff was golfing in a threesome. He took a shortcut from one hole to the other, which placed him in front of the defendant and to the defendant’s left. Plaintiff stopped at that point to get a bottle of water out of his golf bag and to check his cell phone for messages. He did so even though he knew (1) that he was in front of the tee box, (2) that defendant was preparing to tee off, and (3) that he should stand behind a player who was teeing off. The defendant golfer inadvertently “pulled” his tee shot to the left, hitting plaintiff in the temple. The plaintiff brought a negligence action against other golfer. The parties disputed whether the defendant golfer knew where plaintiff was standing when he teed off. The plaintiff alleged that he and defendant made eye contact before defendant hit his shot, but his accounts of just when that eye contact occurred appeared to be inconsistent and in dispute.

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