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.

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.

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.

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.

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.

At the trial court level an eyewitness has testified that the plaintiff rider had screamed just before leaving the track and that she had heard the throttle stuck wide open. The witness also testified that it did not appear that the motorcycle hit the PVC pipe because the trajectory of the motorcycle did not change as it left the track. The trial court had initially deemed the witness’ testimony as “inadmissible personal opinion.” The Court of Appeal disagreed and concluded that the testimony was admissible testimony based on personal observation.

The Court of Appeal further noted that while the plaintiff’s expert had sufficient credentials to establish his expertise, his opinion that the PVC pipe probably had an impact on the incident and increased the risk of injury was without evidentiary support. The expert had not conducted any tests and made no inspection of the scene of the motorcycle. Therefore, the court concluded that it did not need to conduct an analysis of whether the defendant owed a duty of care with regard to the PVC pipe because it increased the risks inherent in the sport because the evidence before the court did not establish that the PVC pipe was involved in the incident.

NOTE: First, this case is notable because the Court of Appeal granted the defendant’s Petition for Writ of MAndate in order to hear defendant’s appeal of the motion for summary judgment lost at the trial court level. the granting of such Petitions is quite rare. The Court of Appeal obviously felt strongly about the evidentiary issues that the case presented. Although the underlying motion was based upon primary assumption of the risk, this case simply case down to a lack of evidence. Since the plaintiff rider was unable to recall details of the incident, she was unable to contradict the testimony of the only apparent witness to the incident itself. Had the rider been able to testify about what occurred, the motion would have undoubtedly been denied and the factual issues relating to the PVC pipe would have been left for a jury to decide.  It’s also interesting to note that this case did not include arguments relative to a waiver and release agreement.  Either the facility did not obtain minor waiver and release agreements from participants or there were some unstated reasons why the defendant did not feel it would have been enforceable.

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.

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.

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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.

The defendants filed a motion to strike under the anti-SLAPP statute, claiming that their conduct was in furtherance of its right of petition or free speech. The trial court denied the motion to strike and the defendants appealed.  On appeal, the court determined that while the defendants did meet the anti-SLAPP threshold of establishing that the challenged cause of action was one arising from a protected activity (i.e., it involved free speech in connection with an issue of public interest), it concluded that the plaintiff had, for at least some of the claims, sufficiently demonstrated a probability of prevailing on the claims, thereby overcoming the anti-SLAPP protections.  The court noted that there was a reasonable inference that plaintiffs placed a trust and confidence in McGraw (as a physician) in order to support a claim of breach of fiduciary relationship.  The court also noted that the allegations regarding various misrepresentations made to the plaintiffs prior to their participation were sufficient to support a claim of misrepresentation, notwithstanding the Releases.  The court explained that “[a] general contractual provision that there were no promises, representations, verbal understandings, or agreements except those contained in the contract does not insulate a party from liability for his fraudulent conduct.”

The defendants argued that the Releases barred the plaintiffs’ claims as a matter of law.  However, the plaintiffs countered by contending that the Releases were “procured by fraud” and they sought to rescind them.  The plaintiffs claimed that they were fraudulently induced to sign the Releases that they were hurried through the process.  Additionally, the plaintiff asserted that pages were added to the Releases after the fact.  Furthermore, the plaintiffs argued that the Releases were unconscionable in that they violated Civil Code Section 1668.  Ultimately, the court ruled that the Releases were not unconscionable (they were largely one-sided in favor of defendants which made them substantively unconscionable to some extent, but there was no evidence that they were procedurally unconscionable, meaning beyond one’s reasonable expectation or oppressive), but that by virtue of Civil Code Section 1668, the Releases did not bar all of the plaintiffs claims.

As recited by the court, Section 1668 “made it clear a party could not contract away liability for his fraudulent or intentional acts or for his negligent violations of statutory law.”  Also referring to the recent California case of City of Santa Barbara v. Superior Court, the court noted that “liability for future gross negligence cannot be released.”  Thus, the court concluded that the plaintiffs’ claims for liability based on intentional wrongs, gross negligence, or violations of law were not barred by the Releases.  However, the court further concluded that the Releases did exempt the defendants from liability for the plaintiffs’ negligence claims (with the exception of negligent misrepresentation, which is deemed to be “fraud”).  Therefore, the Court of Appeal overturned the trial court’s denial of the motion to strike in part as it related to the non-released claims.

NOTE: Reality television programming has become increasing prevalent in the ever-expanding world of entertainment.  Producers of such programming continue to push the boundaries of acceptability as they vie for attention and impact in the marketplace.  The elements of shock and surprise are often important to the success of this type of programming.  Producers and broadcasters have sought to protect themselves from liabilities that they potentially face by exposing participants to outrageous and unexpected conduct or circumstances through the use of express assumption of the risk and waiver and release agreements.  A prevailing approach has been to make such agreements as broad and encompassing as possible.  Such efforts are contradictory to the existing statutory and case law, which precludes prospectively insulting oneself from liability for intentionally tortious conduct or conduct which violates the law, and this decision is an example of that contradiction.  California Civil Code Section 1668, and similar laws in other jurisdictions, provide the potential basis to find such agreements void as contrary to public policy.  In this circumstance, the defendants were fortunate in that the court decided to void only those portions of the releases which were contrary to public policy, as opposed to the entire document.  Other defendants in the future may not be so fortunate.  Other courts could potentially elect to void agreements in their entirety, refusing to enforce any severability clause that a defendant may seek to rely upon, thereby alleviating any legitimate protections that may be found in the agreements (i.e., a release of ordinary negligence).  In the end, producers and broadcasters cannot simply reply upon broad and over-inclusive release agreements as a means to immunize them from fraudulent and other intentionally wrongful conduct, and efforts to draft such documents can be a dangerous prospect.

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.

The insurer had issued a commercial general liability policy to the racetrack, which included an exclusion specifically precluding coverage ““bodily injury or property damage to any participant against another participant while practicing for or participating in a racing program, which is sponsored by the Insured.”  The policy defined a participant to include: “individuals who have registered to and actually do engage in the racing activity provided under the INSURED’S PROGRAM-including drivers, mechanics, pitmen, race officials, flagmen, announcers, ambulance crews, newsmen, photographers, gate workers, and all other persons bearing duly and officially assigned credentials and/or guest pit passes for the program.”  There was no question that the race team and the man driving the race car onto the track were participants.  The only remaining question was whether the minor daughter riding on top of the race car was a participant as defined in the policy, and the Georgia District Court answered that inquiry in the affirmative.  The Court explained that the actions of the minor daughter  brought her “squarely within both the function and definition of a participant” because she had “engaged in the racing activity” and was “bearing a guest pit pass.”  Therefore, the Court found that the insurer had no duty to defend or indemnify the racetrack, its owner, or the driver of the race car at the time of the incident.

NOTE: This case illustrates the extreme importance attached to understanding one’s insurance coverage and making sure that the appropriate policies are in place.  Motorsports facilities should not only understand their basic coverage, but they should be intimately familiar with all applicable exclusions and the potential impact on their liability risks.  Certainly, an operation such as this should have ensured that participant accident coverage was included in its insurance package.  This case also exemplifies how a “participant” in a motorsports event can be defined quite broadly.  Such a broad definition can be beneficial from the perspective of a waiver and release and express assumption of the risk agreement, but could also potentially be detrimental as applied to insurance policy exclusions.