Archive for November, 2007

Not Making the Grade

November 26, 2007

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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Posted in Assumption of Risk, Auto Racing, Expert Witness Testimony, Field/Surface Conditions, Gross Negligence, Intentional Tort, Maintenance, Missouri, Promoter, Verdict, Waiver and Release | Leave a Comment »

Paying the Price (Twice)

November 7, 2007

Heilig v. Touchstone Climbing, Inc. (California–UNPUBLISHED)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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Posted in Assumption of Risk, Attorneys Fees, California, Dangerous Condition, Duty to Indemnify, Fall From Elevation, Gross Negligence, Increased Risks, Indemnity/Hold Harmless, Membership Application, Not Published, Premises Liability, Rock Climbing, Waiver and Release | Leave a Comment »

Hitting the Slopes

November 7, 2007

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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Posted in Field/Surface Conditions, Gross Negligence, Promoter, Snow Skiing, State's Highest Court, Utah, Waiver and Release | Leave a Comment »

“Ring of Fear” Results in Death

November 7, 2007

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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Posted in Gross Negligence, Kentucky, Rodeo, Statutory Immunity, Waiver and Release, Wrongful Death | Leave a Comment »

Deadly Collision

November 7, 2007

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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Posted in Assumption of Risk, California, Co-Participant, Personal Watercraft, Wrongful Death | Leave a Comment »

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