If You’re Asked, Put On Your Mask

June 28, 2011 by

Inherent Risks in Baseball (California – Motion for Summary Judgment)
(Injury to catcher not wearing a mask during a bullpen session deemed to be an inherent risk of the sport of baseball.)

Paul Tetreault and Don Ornelas of the law firm of Agajanian, McFall, Weiss, Tetreault & Crist LLP in Los Angeles recently obtained summary judgment on behalf of several clients in the Rancho Cucamonga District of the San Bernardino County Superior Court.  Plaintiff was injured while practicing with his baseball club team, the Chino Dirt Dawgs, when a baseball struck him in the mouth while he was catching during a bullpen session.  Evans was not wearing a catcher’s mask at the time.  He asserted a claim for general negligence against the Dirt Dawgs, and two of its coaches, Brent Billingsley and Kyle Billingsley.

The defendants filed for summary judgment based upon primary assumption of the risk, asserting that plaintiff’s injury was the result of an inherent risk in the sport of baseball and that there was no evidence that they had done anything to “increase the risks” inherent in the sport.  The trial court agreed, and granted the motion, despite plaintiff’s claim that the coaches’ failure to force plaintiff to wear the mask during the bullpen session “increased the risks.”  The court ruled that getting struck in the mouth with a baseball is a risk that is always inherent in the sport of baseball, and plaintiff’s failure to wear a mask at the time of injury did not establish a triable issue of fact as to whether the defendants increased the risks inherent in the sport.

Posted in Assumption of Risk, Baseball, California, Coaches, Government Activity, High School | Leave a Comment »

Assumption of the Risk Does Not Apply to Amusement Park Rides

June 28, 2011 by

Nalwa v. Cedar Fair(California)
(The doctrine of primary, implied assumption of the risk could not be applied to bar plaintiff’s claim for negligence against an amusement park operator.)

In this case, plaintiff Nalwa took her children to Great American Amusement Park in Santa Clara, California for a day of fun.  While there, the family decided to ride the “Rue Le Dodge” bumper car attraction.  Plaintiff’s hand was fractured as the result of a head-on collision with another bumper car.  Plaintiff asserted claims for negligence, common carrier liability and willful misconduct against Cedar Fair, the operator of Great America.

Cedar Fair filed a motion for summary judgment.  As to the negligence claim, Cedar Fair asserted that it was barred by the doctrine of primary assumption of the risk, claiming that plaintiff’s injuries arose from bumping, a risk inherent in the “activity” of riding bumper cars.  The trial court granted the motion, and plaintiff appealed.

In reversing the trial court’s ruling, the Court of Appeal ruled that primary assumption of the risk did not apply to the case because bumper car riding was not an “activity” or “sport” according to established case-law definitions.  The Court also held that public policy considerations precluded the application of primary assumption of the risk because amusement park operators had traditionally been held to a “higher standard of care” normally reserved for so-called “common carriers”, which are parties hired to transport passengers.

The Court also found the fact the Cedar Fair had taken steps to make similar rides at its other facilities safer compelling.  The record reflected that Cedar Fair had installed “islands” to prevent head-on collisions at some of its other bumper car rides throughout the country.  The Court felt that the company should have taken similar steps at Great America to “minimize the risks” inherent in the ride.

NOTE: The published decision contains an extensive dissenting opinion making a compelling argument for the application of primary assumption of the risk in this case. The dissent cites to extensive legal authority establishing that participation in bumper car rides could be characterized as an “activity”. The dissent also emphasizes the fact that requiring the park operator to install islands in the ride is tantamount to compelling the operator to “decrease the risks” inherent in the activity, which California case-law clearly does not require.

Posted in Amusement Park, Assumption of Risk, California | Leave a Comment »

Attack on Connecticut’s Public Lands

May 12, 2011 by

Recreation on Public Land Jeopardized (Connecticut)
(Recent developments in Connecticut case-law appear to reverse past trends and open up public lands to liability for injuries incurred in connection with recreational use by members of the public.)

The Overlawyered blog recently posted an article discussing developments which are opening up public lands to potential liability where protections were once found.  This trend could potentially stifle recreational opportunities for state citizens.

Posted in Connecticut, Government Immunity, Government Property, Recreational Use Statute, Statutory Immunity | Leave a Comment »

No More Bling

May 12, 2011 by

Guivi v. Spectrum Club (California – UNPUBLISHED)
(A health club member had jewelry allegedly stolen from a locker while she was receiving a message; the court found that the membership application with waiver and release and assumption of the risk language precluded her claim for negligence; no evidence of gross negligence was established.)

The plaintiff had valuable jewelry stolen from her gym locker while she was getting a message. She sued the health club for negligence in providing facilities and for negligently training staff for the security of her property. The health club moved for summary judgment based on the membership application agreement with waiver and release language that the plaintiff signed with the health club. The application also specifically included language warning the plaintiff about loss or theft of her property, and expressly stated that the health club was not responsible for lost or stolen articles. According to the agreement, the lockers were offered to the member without any representation that they will be effective in protecting valuables. The trial court granted the defendant’s motion, and the plaintiff appealed.

On appeal, the Court ruled that the membership agreement unambiguously released the facility from its negligence and was not contrary to public policy. The Court did not accept plaintiff’s argument that agreements involving health clubs are matters of public interest. Further, the court noted that there was no alleged violation of law. Additionally, the Court did not accept the plaintiff’s argument that there was the potential for gross negligence or that the health club failed to deal with a known theft problem. No evidence had been presented in that regard.

NOTE: The ruling in this case is consistent with California law which provides that broad releases of liability will be enforced in this context, including with regard to ordinary premises liability claims as opposed to injury or damage that occurs directly as the result of participation in hazardous recreational activities. Had there been an obvious track record of items being stolen from members or a repeated pattern of a complete lack of security on the part of the health club, this case may have proceeded to trial on the factual issue of whether the facility engaged in grossly negligent conduct.

Posted in Assumption of Risk, California, Gross Negligence, Health & Fitness Facility, Not Published, Premises Liability, Security, Waiver and Release | Leave a Comment »

Pipe Dream for Expert in Motocross Case

May 12, 2011 by

McCassy v. Superior Court (California – UNPUBLISHED)
(Minor motocross rider injured during practice ride; with the rider unable to recall the incident, her expert speculates that irrigation piping near the track caused her to lose control; the court finds a lack of evidence to support the theory and grants defendant’s motion for summary judgment.)

A 17-year-old female motocross rider was at a motocross track practicing, and she was involved in an incident occurred in which she left the track and struck an embankment. The rider did not remember how the incident occurred, but alleged that she struck a portion of PVC pipe about 10 feet from the racing surface which was part of the track’s irrigation system, causing her to lose control of the motorcycle. She alleged premises liability, and her father and brother, both of whom were present, sued for infliction of emotional distress.

An expert for the plaintiffs asserted that the track increased the normal risk of injury by placing the PVC pipe close to the track and that if a rider lost control and left the track, there was a high probability of striking it. The trial court denied the defendant’s motion for summary judgment based upon primary assumption of the risk, noting that placement of the irrigation system so close to the track was not inherently required for the sport. The defendant petitioned for review, and the Court of Appeal granted the Petition.

Read the rest of this entry »

Posted in Assumption of Risk, California, Dangerous Condition, Expert Witness Testimony, Field/Surface Conditions, Increased Risks, Infliction of Emotional Distress, Minor, Motorcycle Racing, Not Published | Leave a Comment »

Rubbin’ Is Not Racin’

May 4, 2011 by

Pit Area Intentional Misconduct (Nebraska)
(Race car driver who intentionally drove into another participant in a restricted area receives criminal sentence.)

Short track race car driver Cory Dumpert was recently sentenced to 18 months probation by a judge in Cass County, Nebraska in connection with an incident that occurred at I-80 Speedway in Greenwood, Nebraska in June of 2010.  Dumpert intentionally sped through the infield pit area and slammed into the car driven by fellow racer Chad Sanders, who received minor injuries.  Dumpert was suspended for a year and fined $500 by the track.  Criminal charges were filed against Dumpert and he was ultimately sentenced on charges of third-degree assault and criminal mischief.

NOTE: It will be interesting to see if Sanders brings a civil action against Dumpert and/or the track. Waiver and release documents are enforceable in Nebraska and the track also potentially could be expected to assert that as a defense to any civil action brought by Sanders. One might expect an argument to be made, however, that being injured as a result of Dumpert’s intentional assault is not an incident that is reasonably related to the claimant’s auto racing activities at the track.

Posted in Auto Racing, Criminal Conduct, Intentional Tort, Nebraska | Leave a Comment »

Experienced Sky Diver Killed in Mid-Air Collision

May 4, 2011 by

Los Angeles Times (California)

Two men were killed as the result of a mid-air collision while sky diving in Perris, California on March 31.  The collision apparently rendered the men unable to deploy their parachutes and they both fell to their deaths.  One of the decedents is a veteran sky diver with over 17,000 jumps to his name.

Should this case proceed to litigation, it would appear to be ripe for the application of the defense of primary assumption of the risk, especially as to the instructor, whom had extensive sky diving experience and undoubtedly voluntarily assumed the risks inherent in sky diving, the most obvious of which is injury or death due to this sort of incident.

For more information, click here.

Posted in Assumption of Risk, California, Sky Diving | Leave a Comment »

Risks are in the Eyes of the (Little) Beholders

March 30, 2011 by

Playground Warning Sign a Bit Much?(Washington D.C.)
(Clearly American children are way behind this whole understanding the risks situation.)
FutureofCapitalism.com recently posted an entertaining image depicting the legal compartmentalization of recreational risks in today’s world. Perhaps we should consider checking identification at local parks just to be sure.

Posted in Assumption of Risk, District of Columbia, Minor, Parks and Recreation, Warnings | Leave a Comment »

Reality for Dr. Phil

January 27, 2011 by

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.

Read the rest of this entry »

Posted in California, Gross Negligence, Intentional Tort, Not Published, Reality Television, Television Production, Violation of Statute, Waiver and Release, Willful and Wanton Conduct | Leave a Comment »

Coverage Denied for Injury to Motorsports “Participant”

January 19, 2011 by

T.H.E. Insurance v. Cochran Motor Speedway (Georgia)
(Minor in the pit area of a racetrack deemed to be a participant; insurance coverage denied due to a participant exclusion.)

A stepfather and his minor daughter attended a racing event at the defendant’s racing facility.  The stepfather purchased pit passes for himself and the minor, and he signed a waiver and release from liability and indemnity agreement on their behalf.  The stepfather had some sort of affiliation with one of the racing team’s that happened to be crowned the winner of the local points championship on the evening in question.  The team decided to celebrate the championship by driving the racecar back onto the racetrack to the front straightaway.  The minor daughter was placed on top of the car and it began to drive onto the racetrack.  While it was moving, she fell from the car and was injured.  The minor daughter then filed a lawsuit against the racetrack, its owner, and the driver of the race car to recover for her personal injuries.  The racetrack submitted the claim to its insurance company, which denied coverage and filed a claim for declaratory relief.  Eventually, the plaintiff insurer filed a motion for summary judgment based upon exclusions in the policy, and the Court granted the motion. Read the rest of this entry »

Posted in Auto Racing, Co-Participant, Duty to Defend, Duty to Indemnify, Federal Litigation, Georgia, Liability Insurance, Minor, Policy Exclusions, Promoter, Waiver and Release | Leave a Comment »

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