Scottsdale Insurance Company v. Cutz, LLC (Florida)
(Insurer Had No Duty to Defend Lessor of Premises in Negligent Security Lawsuit.)

In September 2003, two men were shot to death at a Cutz, LLC (Cutz) barbershop. Personal representatives of the deceased men brought suit against Cutz (the lessee) and G&G Laboratories (the lessor of the premises), seeking damages for wrongful death and negligence based upon a failure to provide security at the barbershop. Cutz was the named insured under an insurance policy issued by Scottsdale Insurance Company (Scottsdale). Both Cutz and G&G Laboratories (G&G) tendered their defense and requested indemnity from Scottsdale. Scottsdale sought a declaration from the Court that it was not responsible for G&G.

Those named in the policy as additional insureds included “operators” of the property, although the term “operator” was not defined in the policy itself. In the insurance application Cutz had used “operators” to refer to its employees. G&G argued it was an operator of the premises, akin to the employees of Cut, but the Court rejected the argument. The Court indicated that G&G could not be considered an “operator” simply because it considered the property one of its principle places of business.

NOTE: This case is an important reminder to facility owners. If facility owners lease out all of (or portions of) their premises, they should be sure that the proper and appropriate insurance protection is in place. They should not simply rely on the lessee to procure the necessary protections. Lease agreements should specifically include indemnity provisions and they should specifically require that the facility owners be added as additional insureds and provided copies of all applicable policies including declarations and endorsements. Typically, lease agreements require the lessee to provide a certificate of insurance as evidence of insurance coverage. However, certificates are not considered part of the policy itself, and they can include errors and/or they can be manipulated. As such, it is best to obtain complete copies of policies where possible.

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.

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.

Craig v. Amateur Softball Association of America (Pennsylvania)
(Softball Player Struck in the Head by Softball During Game Assumed the Risk of Injury.)

Plaintiff was struck in the head by a softball while playing in a slow-pitch softball game. He was not wearing a helmet at the time and his injuries were serious injuries. The defendant softball league filed a motion for summary judgment, asserting that it did not owe a duty of care to plaintiff to prevent the injury, and that even if such a duty existed, that plaintiff had assumed the risk of this injury by voluntarily choosing not to wear a helmet. In granting defendant’s motion, the trial court ruled that defendant owed no duty to prevent inherent risks of softball. Plaintiff appealed.

On appeal, plaintiff argued that his claim should be excepted from the “no-duty” rule because his injury was not the type that was inherent in softball. However, the Court disagreed, highlighting the fact that many prior cases in this jurisdiction had held that the risk of being struck by a softball was inherent in the sport. As a secondary argument, plaintiff argued that because he paid registration dues to the organization, a contractual arrangement had been formed which heightened the duty of care owed to him by the defendant. However, there was no provision in the alleged contract between the parties which supported the application of a higher duty of care.

Additionally, plaintiff argued that public policy favored the finding of a duty of care because there was “a strong public interest in ensuring the safety of athletes, and . . . prevent[ing] horrific head injuries from occurring during participation in . . . softball game[s].” However, the Court found no basis in the law for such a conclusion. Moreover, plaintiff asserted that he did not knowingly consent to the risk encountered, such that he did not assume the risk. However, the Court explained that even if it accepted, for argument’s sake, that the risk of being struck by a softball must be explicitly assumed (which position was not supported by case law), the Court did not need to determine whether plaintiff assumed the risk of being struck as he was not owed a duty of care (i.e., the risk was inherent in the activity).

Finally, plaintiff contended the defendant “deviated from the established custom of requiring or at least recommending the wearing of batting helmets during softball games.” However, the plaintiff failed to provide any evidence of the custom he alleged was established. The Court indicated it was not permitted to reverse the trial court simply because plaintiff “baldly avers” the defendant had violated established custom. Plaintiff argued that it should have been allowed to conduct additional discovery to uncover evidence that it was foreseeable that players not wearing helmets during softball games could be injured. But the Court stated that the plaintiff’s logic was “defective.” The Court explained that “[a]ll inherent risks which fall within the auspices of the no-duty rule are by definition foreseeable.” Therefore, “[o]nce a risk is deemed inherent, it no longer matters whether the risk is foreseeable, as the inherency determination mandates application of the no-duty rule ab initio.” Thus, further discovery was not warranted, and the lower court’s decision was affirmed.

NOTE: Plaintiff in this case certainly had a tough row to hoe. You would think a plaintiff would have a difficult time arguing (with a straight face) that being struck by a softball is not an inherent risk in the sport of softball. Apparently anything is possible. The plaintiff came at it from all angles, and was rebuffed on all accounts. Sport facilities and organizations should be cognizant that injured plaintiffs will be apt to argue that failure to enforce rules increases the risk of injury (e.g., not enforcing a helmet rule). If a facility or organization is aware that rules are not being enforced, and it appears that such failure could potentially lead to injury, action should be taken. One should not rely on assumption of the risk arguments alone.

Parsons v. Arrowhead Golf (Indiana)
(Court Holds that Golf Course Owed No Duty to Prevent a Golfer’s Back Injury Suffered When He Stepped Out of Golf Cart.)

The defendant managed an 18-hole golf course where the plaintiff was playing golf. The plaintiff stepped off of a golf cart, landed “straight-legged” and immediately experienced lower back pain. The plaintiff stated that the drop was four to twelve inches deep, and that he had not noticed this irregularity on the grounds during his past years of golfing experience on this course. Plaintiff had golfed here once per week for over two years. The manager of the course had regularly inspected the grounds for dangerous conditions and moved walking paths as necessary to ensure that they did not become worn out. In this particular instance, the manager had placed stone where the plaintiff was injured. Plaintiff alleged that the defendant had failed to take reasonable safety measures by negligently maintaining the premises and failing to warn him about the danger. The trial court granted summary judgment in favor of the defendant based on assumption of the risk, and the plaintiff appealed.

On appeal, the Court held that the proper standard of care for sporting events and practices was to “avoid reckless or malicious behavior or intentional injury.” Under the primary assumption of the risk doctrine, a party assumes the risks inherent to a particular sport, and there is no duty owed to the plaintiff to avoid those risks. Plaintiff argued that the danger he encountered was not the type that was inherent in the sport because it was not reasonably foreseeable (i.e., he did not assume the risk of a defect in a designated walkway from the cart path to the green).

In analyzing the duty of care, the court noted that plaintiff was required to prove all of the following: (1) a duty owed by the defendant to the plaintiff, arising from the relationship between the defendant and the plaintiff; (2) breach of this duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach. The ultimately Court found: (1) the relationship of the parties was based on plaintiff’s participation in the game of golf, and plaintiff was very familiar with both the game of golf and the subject golf course; (2) golf is played outside, on grassy and often uneven surfaces, and injuries from stepping on uneven surfaces are an inherent risk of the game, and it was reasonably foreseeable that plaintiff could have been injured while stepping onto the green; and (3) plaintiff was in the best position to prevent the injury that occurred while he was golfing. Therefore, the court affirmed the lower court ruling.

Seeking to avoid the application of assumption of the risk, plaintiff argued that the case was more analogous to a slip-and-fall premises liability case than a case involving an injury in a sporting event. However, the Court again disagreed noting that plaintiff response to defendant’s motion failed to meet the burden of setting forth specifically designated facts regarding a breach of duty, and plaintiff failed to provide any evidence showing an unreasonable risk of harm.

NOTE: Applying assumption of the risk often comes down to analyzing what it or is not part of the game. Had the plaintiff been injured by a condition on the premises while walking along a path to the first tee, the result may have been different. Court’s are often hesitant to make bold proclamations about risks that are inherent in a sporting activity. However, this court properly focused on the fact that varying conditions and surfaces, and walking along all parts of the course, are important parts of the game of golf. The golf course’s ability to present affirmative evidence of inspection and maintenance was certainly beneficial. The more a defendant provides evidence-wise to demonstrate an interest in avoiding injury, the better.

Allred v. Broekhuis (Michigan-UNPUBLISHED)
(Court Denies Co-Participant’s Demurrer to Claim by Injure Co-Participant Based on the “Recreational Activities Doctrine.”)

In 2005, the plaintiff was riding an all-terrain vehicle (ATV) eastward on a path designated for use by off-road vehicles. Simultaneously, the defendant was riding an ATV westward on the same course. When passing each other, defendant’s ATV crossed onto the eastbound side of the course and struck the plaintiff. Defendant moved for a judgment on the pleadings based on Michigan’s “recreational activities doctrine” (RAD). Under the RAD, co-participants in recreational activities owe a minimum standard of care not to act recklessly towards other participants. However, plaintiff argued that the RAD did not apply under the circumstances, and that Michigan’s Motor Vehicle Code should control.

The Federal Court referred to a previous case which held that ordinary negligence applied to off road vehicles under the Motor Vehicle Code. After going through a detailed statutory analysis of conflicting Michigan law, the Court ultimately disagreed with the defendant’s contention that the RAD (and a reduced duty of care) should apply. The Court explained that no language in the RAD suggested that it should apply to activities involving motorized vehicles. Previous RAD cases dealt with distinguished circumstances including duck hunting, amateur hockey, baseball, golf, etc. According to the Court, the RAD’s scope was to be decided on a case by case basis. The Court denied the defendant’s motion and allowed the case to proceed.

NOTE: We should note that the Court did not rule that that RAD may NEVER apply to cases involving off road vehicles. Perhaps, where it is shown that the vehicles were purely used for recreational activities, instead of mixed use recreational and non-recreational activities, the RAD may apply reducing a party’s duty of care. It is unclear whether this same type of argument would apply in the context of auto racing. In addition to waiver and release agreements, defendant auto racing facilities often assert assumption of the risk as a defense to liability. In auto racing situations, it will presumably be much more difficult to argue that the activity is not purely recreational, such that the protections of the RAD would not be available.

Morales v. Beacon City School District (New York)
(Inexperienced High School Track Athlete Injured During Practice After Coach Directed Him to Run Hurdles With Minimal Instruction; Court Denied School’s Summary Judgment Due to Triable Issue of Fact Regarding Increased Risks.)

The plaintiff was a high school track athlete who had minimal experience running hurdles. He claimed that the coach told him to run hurdles, but failed to give him adequate instruction, resulting in his personal injury. Additionally, the athlete contended the hurdle he fell over was not set up properly because the horizontal bar was uneven. The defendant school moved for summary judgment on the grounds that the plaintiff had assumed the inherent risks of injury by participating in this sports activity. The court denied the motion and the school appealed

On appeal, the Court affirmed the ruling, finding that the assumption of the risk doctrine in competitive athletics did not completely bar the plaintiff’s recovery. Despite his participation, the Court indicated that the defendant still owed the plaintiff a duty to avoid unreasonably increasing the inherent risks in the sports activity. Due to the alleged dangerous conditions and the lack of instruction given by the coach, the Court stated that there was a triable issue as to whether the risks were increased.

NOTE: Decisions like this are difficult for schools. Inevitably, coaches will be asked to push students to learn and try new activities. The courts walk a fine line in deciding when a coach does or does not increase the risks inherent in an activity. From a defense perspective, it is difficult to accept that a runner on a track team does not generally assume the risk of falling and suffering personal injury while engaging in all track activities. Having read this opinion, a school is left with the tough task of deciding what is sufficient instruction before encouraging an athlete to try a new activity. In the end, this type of decision may tend to discourage vigorous participation in school organized sports.

Booth v. Bowen (U.S. Virgin Islands-UNPUBLISHED)
(Federal Court Enforces Waiver in Favor of Scuba Diving School; Denied Claims of Heirs Suing on Behalf of Novice Scuba Diver Who Died While Completing the School’s Introductory Course.)

This case involved an action brought by the heirs of a deceased scuba diver. The decedent participated in a novice diving course in Saint Thomas, U.S. Virgin Islands. The deceased had no diving experience. Before participating, he signed a “Questionnaire” which was titled “Liability Release and Assumption of Risk Agreement.” The school argued that the language of the agreement relieved them from negligence liability. The plaintiff-heirs argued that the waiver should be unenforceable on public policy grounds because the agreement improperly barred the claims of heirs and family member of the deceased. The plaintiffs contested the fact that the agreement signed by the decedent precluded an undetermined class of individuals (heirs and family members) from filing suit.

The waiver was in all capital letters and stated that the defendants were released “from all liability or responsibility whatsoever for personal injury, property damage or wrongful death, however caused, including but not limited to the negligence of [the defendants], whether passive or active.” Other paragraphs of the waiver further specified and made it abundantly clear that this release prevented the defendants’ responsibility for any injury, death or other damages to decedent’s family or other heirs. The Court looked to other states’ laws which held that the word “negligence” in a waiver is sufficient to insulate a party from negligence liability.

Using the “plain meaning rule,” the Third Circuit Court held that the language was clear and unambiguous. Additionally, the agreement was validly signed by the decedent. Therefore, despite a Virgin Islands wrongful death statute which allows heirs the right to recover for their pecuniary losses caused by their decedent’s death, the Court decided not to disturb freedom of contract principles by altering the express agreement. The Court found no case law supporting the plaintiffs’ public policy argument. The court granted defendants’ motion for summary judgment.

NOTE: The ability to waive claims on behalf of heirs and family members exists in the majority of jurisdictions. The inexperience of the decedent did not (and should not) play a role in determining the enforceability of the waiver and release. So long as an agreement is written clearly and unambiguously, the court should generally not need to look beyond the four corners of the document.

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.

However, the New York Appeals Court reversed the lower court. This Court held that a triable issue of fact still remained as to whether the defendant had negligently enhanced the risk of injury to the plaintiff by performing the “head-tilt, chin-lift” technique in a negligent or reckless fashion. The Appeals Court did not deny that the doctrine of primary assumption of the risk could potentially bar the plaintiff’s recovery if the injury had resulted from a regular risk that was inherent in performing demonstration. However, the Court simply was not convinced that the given facts led to the conclusion that the defendant had performed the technique in such a way that it was an inherent risk associated with the activity. In the end, the Court allowed the case to go to trial to determine whether the defendant had unreasonably increased the risks such that he (or the school for which he worked) could be held liable for damages.

NOTE: This case gives an important lesson to those involved in ancillary activities which involve risky behavior, but which are not technically sports or recreational activities. Determining the risks inherent in these types of activities tend to be unclear. It is important for instructional schools like this to strongly consider this case. The bottom line is that these schools cannot simply assume that since their line of business involves danger and risk and is akin to a sports and recreation activity, they will be adequately protected under the primary assumption of the risk doctrine. Strongly worded and clear waivers are recommended.

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.

On August 23, 2003, Plaintiff entered the Lebanon I-44 Speedway and signed a waiver and release which included an express assumption of risk. During a race, his car slowed and pulled off the track. An object appeared to have struck his helmet, and a rock about the size of a tennis ball was removed from the racecar. Plaintiff was treated for a broken jaw and missing teeth; eight months later, he underwent surgery on his neck for a herniated disc and a degenerated disc.

Before trial, the Defendant twice raised the issue of release of liability based on the written release signed by plaintiff via two motions for summary judgment. The trial court denied both motions. Despite the fact that the agreement was a typical motorsports waiver and release, which have generally been upheld on a national basis, the court ruled that the written release lacked clear and explicit language to exonerate the track from acts of future negligence. The court also ruled that the agreement was drafted to broadly so as to potentially exonerate the defendant from gross negligence or intentional torts, which would have been contrary to public policy.

At trial, Plaintiff argued that the Defendant should have sifted its track dirt with a power screen sifting machine before the 2003 season. Plaintiff offered the testimony of Russell Darnell, PhD, on the use of power screening machines to prepare dirt racing surfaces. The plaintiff also called Rick Stephenson, PhD, to testify about the movement of rocks within dirt—i.e. that rocks will move upward in dirt when stress is placed on the surface. Plaintiff admitted that his signature was on the waiver and release but that he did not read it. He introduced the release into evidence and testified that he believed it was a health insurance policy covering injuries from the event.

The Defendant presented evidence that sifting track dirt is not the custom and practice of the dirt track racing industry, that there was no evidence that sifting would have removed the rock that struck plaintiff and that plaintiff assumed the risk of this accident. The Defendant offered the testimony of two experts, Larry Kemp (Eldora Speedway) and Cary Agajanian. They testified that virtually no tracks across the country sift dirt before applying it to the track surface. They also testified that flying rocks are a risk of dirt track racing and that the waiver and release is used nationwide in racing events.

Randy Mooneyham also testified as an expert on behalf of the Defendant and discussed in detail the measures he took to work on the track surface, including the weekly preparation as well as the use of the rock rake and rock picker. Because plaintiff raised the issue of health insurance, Mr. Mooneyham testified that he had purchased a participant benefit policy, which had paid its limits of $15,000 on behalf of Plaintiff.

In closing arguments, Plaintiff asked the jury for a total of $934,571.88, which included a $15,000 reduction for Defendant’s health insurance payments. After about 70 minutes of deliberation, the jury returned a verdict for the Defendant Lebanon I-44 Speedway.

Firm Contact Information
Joel A. Block: joel.block@burkarthunt.com
Burkart & Hunt, P.C.
242 S. National Ave.
Springfield, MO 65802
P: 417.864.4906
F: 417.864.7859