Archive for the ‘Assumption of Risk’ Category

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If You’re Asked, Put On Your Mask

June 28, 2011

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

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 »

No More Bling

May 12, 2011

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

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.

(more…)

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 »

Experienced Sky Diver Killed in Mid-Air Collision

May 4, 2011

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

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 »

MMA Competition at Gym Results in Death

September 21, 2010

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.

Posted in Assumption of Risk, Health & Fitness Facility, Missouri, Mixed Martial Arts, Wrongful Death | Leave a Comment »

Michigan Has a Major Minor’s Problem

July 16, 2010

The Supreme Court of Michigan recently confirmed that waiver and release documents signed by parents on behalf of their children are unenforceable in that state.  In Woodman v. Kera (2010) 2010 WL 2471902, a five year old boy was injured during his birthday party, which was being held at an indoor facility containing inflatable play equipment.  Prior to his injury, the boy’s father signed a liability waiver on his son’s behalf.  After the trial court level enforced the waiver as to some of the plaintiffs’ claims, the Court of Appeal reversed, holding that the waiver and release document could not be enforced pursuant to longstanding Michigan common law, which does not allow parents to waive or release prospective claims on behalf of their children.  The Supreme Court affirmed the appellate court’s ruling on similar grounds.

Of note is the lengthy “dissenting” opinion submitted by Justice Stephen Markman.  Justice Markman concurred with the majority opinion and took the position that the waiver should not be enforced under the circumstances, but only because he believed that the language of the waiver was deficient.  Justice Markman opined that Michigan’s common law did not preclude the Supreme Court from enforcing the waiver.  In fact, it appears that if Justice Markman had authored the majority opinion, the waiver would have been enforced.

Note:   This decision is significant in that it confirms that minor’s waiver documents cannot be enforced in Michigan.

Posted in Assumption of Risk, Assumption of Risk Statute, Legislation, Michigan, Minor, State's Highest Court, Waiver and Release | Leave a Comment »

Injured Shot Putter Chances in Court Are Shot

July 6, 2008

Gerry v. Commack Union Free School District (New York)
(Injured High School Shot Putter’s Assumed Risk of Being Hit by Shot.)

The plaintiff, a high school student-athlete shot putter, was injured when he was hit with a shot thrown by the defendant during a track meet. As a member of the school’s track team, plaintiff had participated in 10 to 15 similar track meets, and he had thrown the shot himself between 100 and 200 times. The trial court granted the defendant school district’s motion, dismissing the case, and the plaintiff appealed. On appeal, the Court explained that “[i]n assessing whether a defendant has violated a duty of care in the context of an injury sustained during a sport or game, [it] must [be] determine[d] whether the defendant created a unique condition ‘over and above the usual dangers that are inherent in the sport’.” The Court concluded that there was “no evidence in the record that any conduct on the part of the defendants created a unique condition over and above the usual dangers associated with the sport of shot put.” Therefore, the Court affirmed the ruling. The plaintiff attempted to offer the declaration of an expert witness on appeal, but the Court stated that the plaintiff had unreasonably delayed in identifying the expert witness.

NOTE: Technically a determination of the inherent risks in an activity should not inolve the analysis of a participant’s subjective experience. The inherent risks are the inherent risks regardless of anyone’s particular experience or knowledge. Nonetheless, whenever evidence of extensive experience is available, it is generally useful to include from a defendant perspective as it may help balance the equities and alleviate any sympathy facotrs that may be asserted. It would have been interesting to see how the court would have dealt with the expert witness testimony if it had been timely and admissible. It has always been a point of contention, and there is not been total consensus, in terms of whether or not expert witnesses should be allowed to offer opinions to the court as to what it or is not an inherent risk in an activity.

Posted in Assumption of Risk, Co-Participant, Expert Witness Testimony, High School, Minor, New York, Struck By Object, Track and Field, Youth Sports | 1 Comment »

Injured Baseball Fan Cries Foul

July 6, 2008

Roberts v. Boys and Girls Republic (New York)
(Court Denies Recovery for Baseball Fan Struck by a Bat Accidentally Thrown by Batter in an Off-Field, On-Deck Circle.)

The plaintiff, was an observer at a baseball game as was struck by a bat accidentally thrown from the on-deck circle located just off of the playing field. The trial court granted the defendant baseball association’s motion, dismissing the case based upon the doctrine of assumption of the risk. The plaintiff appealed. On appeal, the Court affirmed the decision and noted that the plaintiff could not recover “because plaintiff concededly observed batting equipment and players swinging bats in the area where the accident occurred.”

NOTE: This decision is in line with the majority position that spectators at a baseball game assume the risk of balls and equipment flying into the stands from the field of play. There has been some minor erosion of this majority position in some jurisdictions (e.g., liability being established if a mascot was distracting the spectators during play), but the cases have been rather consistent in this area of the law.

Posted in Assumption of Risk, Baseball, New York, Spectator, Stadium, Struck By Object | Leave a Comment »

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