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.
Guivi v. Spectrum Club (California – UNPUBLISHED)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.
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.
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.
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.
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. (more…)
Galloway v. State (Iowa)
(14-year-old injured on an educational field trip; Supreme Court of Iowa rules that public policy precludes enforcement of parents’ pre-injury waiver on behalf of minor.)
The 14-year-old plaintiff was struck by a car while crossing the street during an educational field trip organized by the University of Northern Iowa and the State of Iowa. Prior to participation in the event, the plaintiff’s mother signed both a “Field Trip Permission Form” and a “Release and Medical Authorization.” Plaintiff filed a lawsuit against the State, alleging negligence. The State filed a motion for summary judgment based on the documents signed by the mother, and the District Court ruled that the released constituted a valid waiver of claims, granting the motion. Plaintiff appealed, and the Iowa Supreme Court ultimately reversed the ruling. After balancing public policy interests against the need to enforce contracts, the Supreme Court explained that although deference is given to parents’ decisions affecting the control of their children, such deference has limitations in some contexts.
The court noted that “children must be accorded a measure or protection against improvident decisions of their parents.” The Court also considered the “harsh consequences of preinjury releases,” and noted that there is “a clear majority of other courts deciding such releases are unenforceable.” The State argued that as a result of the Court’s ruling, “recreational, cultural, and educational opportunities for youths will cease because organizations sponsoring them will be unable or unwilling to purchase insurance or otherwise endure the risks of civil liability.” However, the Court asserted that “the fear of dire consequences from our adoption of the majority rule is speculative and overstated,” noting that they found no reason to believe that such opportunities had been comprised in those other jurisdictions.
NOTE: With this ruling, Iowa joins more than 15 other jurisdictions with similar reulings against minor waiver and release agreements. Approximately 11 jursidictions have case law or statutes speaking favorably to minor agreements, while the remainder of jurisdictions remain undecided. The current trend across the country seems to be against enforcement of preinjury waiver and release agreements signed by parents on behalf of minors participating in recreational activities.
Post from Gulf of Mexico Oil Spill Blog (Alabama)
(Alabama Governor Bob Riley urges BP and President Obama to ensure injured residents need not sign unreasonable liability waivers in order to accept claims payments.)
A post from the Gulf of Mexico Oil Spill Blog discussed an interesting issue as the claims process in connection with the BP oil spill moved into its second stage. Obviously, to the extent that BP pays damage claims in connection with the spill, it is interested in capping its exposure and alleviating further liability. However, there is concern being expressed regarding the signing of potential waivers and releases of liability in connection with the claims payments. Governor Riley expressed concerns because the release documents applying to “anyone who is or could be responsible or liable in any way for the incident,” as opposed to just BP. There is also concern about the release being too broad as to the scope of claims, as well as it being applicable to spouses, heirs, parents, partners and others affiliated with the injured parties. Although this news item is not related to sports, recreation, or entertainment, it is instructive as to the need to pay close attention to, and to analyze, the breadth and scope of waiver and release documents that are offered in settlement of claims. The terms do matter, and they can certainly impact important future rights.
NOTE: In the end, BP is not going to settle final claims without some protections. This issue will come down to tailoring the waiver and release documents to a scope acceptable by all parties. As Governor Riley has expressed, “If a release is absolutely necessary, write one that is limited to the person making the claim, the company paying the claim, the damages asserted in the claim, and the information available as of submission of the final claim.”
Report from KSDK.com (Missouri)
(The family of 27-year-old man who died following a kickboxing match has filed a wrongful death lawsuit against the gym where the match took place.)
The story from ksdk.com reports that the family is alleging that the decedent should not have been allowed to fight because he had been injured a few days earlier in a practice session. The gym owner contends that he had never seen the decedent practice at his facility. The article did not indicate whether or not the decedent had signed any sort of waiver and release document. Assumption of the risk principles will certainly be in play during the litigation.
NOTE: The allegation that an injured participant was allowed to fight despite an injury could potentially impact some highly publicized elimination competitions where participants advance toward a championship, such as on The Ultimate Fighter.
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.
