Georgia court finds no requirement for an employee to intervene when higher trained first aid providers are present.

Sixteen-year-old collapsed at the defendant YMCA. A sheriff deputy and EMT provided CPR. Court held that the congenital heart disease had no causal connection to the Y’s negligence if there was any. Court also held the Y was not negligent because the employees did nothing, because higher trained medical personnel were already attending to the victim.

Goins et al. v. The Family Y et al. 326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

State: Georgia, Court of Appeals

Plaintiff: James and Jennifer Goins

Defendant: The Family YMCA

Plaintiff Claims: negligence and fraud

Defendant Defenses: No duty and proximate causation

Holding: for the defendant

Year: 2014

The plaintiffs are the parents of a sixteen-year-old who died walking on a treadmill at the defendant Family Y (YMCA). It was determined the deceased died from congenital heart disease.

The plaintiff’s brought their son to the YMCA to get ready for baseball season and to lose some weight. They chose the Y because it was a safe and positive environment with adequate well trained employees “on hand at all times and that these employees would have access to life-saving equipment and would know how to use it.”

(This is an example of looking at the website and brochure post-accident and looking for information or is this why they picked the Y?)

An employee of the Y saw the deceased fall and immediately called 911. She did not go to the deceased because she said there was a sheriff’s deputy who was a first responder and had another first aid training attending to the deceased. Soon thereafter, an EMT also assisted the deceased.

The parents, plaintiff’s, sued the defendant because their son:

…was under the “personal care” of a Y employee who had no CPR or first aid training, in spite of representations made by the fitness center. The Goins also claimed that the Y employees stood around and did nothing after Brant collapsed. The complaint alleged that the AED or defibrillator was locked away and not available in case of emergency. There was also a fraud count in which the Goins contended that the Y made misrepresentations to them that led them to believe that the Y was a “safe and positive” environment for their son.

The trial court dismissed their claims, and the plaintiff’s appealed.

Analysis: making sense of the law based on these facts.

The first issue was whether there was a duty to render first aid and whether the representations that the Y misled the parents. The court first outlined the requirements to prove negligence in Georgia.

The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. This issue is a question of law.

The plaintiffs argued there was a special relationship between themselves and the Y because the Y assumed a special duty to supervise minor children. The appellate court shot down that argument with one sentence. “Brant Goins was 16 years of age and the only duty undertaken by the Y was to provide him with a personal trainer to help him lose weight. It is undisputed that this is what occurred.”

The second issue on appeal was the negligence claim. As stated above to prove negligence, there must be a connection between the injury and the breach of the duty. Here the duty was alleged to be a lack of training, as advertised by the Y., However, the court could not find a connection. CPR would not have saved the deceased’s life and the people attempting to do so were better trained then the employees. “…the [plaintiff’s] cannot show a causal connection between Mason’s or any other employee’s lack of CPR training and Brant Goins’ death.” A casual connection is less than the proximate causation required to prove negligence.

It is undisputed that there was an emergency medical technician, and a deputy sheriff trained as a first-responder present at the time of Brant’s collapse. There would have been no reason for a Y employee to interfere with the care being given by the two qualified first responders.

The final issue was the fraud claim. The fraud claim was based on the allegations that the Y promised the plaintiff’s that the YMCA was a safe and positive environment and that there would be adequate and well-trained employees, and the employees would have access to life-saving equipment.

There was not argument that this did not occur. The plaintiff’s then tried to tie together the fact these things did not occur and that because their son had died, proving negligence.  (The absence of facts does not prove a point in most cases and those facts that exist must link to each other in a legal way.) However, the court did not find this to be proved either.

Even assuming that the Goins could establish the other elements of their fraud claim, they can show no damage as the result of this claimed fraud. The EMT and the deputy were clearly the most highly trained people present in administering CPR. Neither called for a defibrillator and both testified that a defibrillator, would not be used on someone with a pulse who was still breathing.

Not brought up in the decision on this argument was proximate causation. There was no connection between the facts that if the Y had not done any of the issues pled in the fraud that the misrepresentation had anything to do with the death of their son.

The appellate court affirmed the lower court’s decision.

So Now What?

First, it is great to have a court require a special relationship or acceptance of a duty that can be proved, not just argued and based on trying to tie loose facts together. The Y’s acceptance of the deceased minor to provide a trainer came with no other requirements, and the Y did nothing to create additional duties which it could be held too.

This is critical that in bringing in business, you don’t make promises that either you can’t complete or that may come back to haunt you.

Second, although specifically identified, the issue of higher medical care prevailed. I’ve never seen this issue argued in a case, that the person with the higher medical care, once they step in, are in charge and owes any duty. We are all taught this issue in first aid classes, but courts have never identified it. Here the court uses the argument and supports it.

Too often we start any defense of a lawsuit by lining up the defenses. All too often in the outdoor recreation community, we need to see if (1) we did anything wrong and (2) is there a connection with what was done incorrectly or not done and the injury. That is, was a duty breached and was there a proximate connection between the breach and the injury.

Amazing how a well-argued decision can be so short.

What do you think? Leave a comment.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Negligence, Duty, Proximate Causation, Proximate Cause, YMCA, Y, Fraud, Georgia, GA, First Aid, Higher Medical Authority,

 

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Bergans having Warehouse Sale November 21 and 22

Bergans


Whippet Ski Poles

Black Diamond Equipment

Identifying Information

Remedy: free replacement for the upper shaft

Contact Info: Black Diamond Equipment at (800) 775-5552 from 8 a.m. to 5 p.m. MT Monday through Friday or

online at www.blackdiamondequipment.com and select Customer Service at the top of the page then click on Product Recalls in the drop-down menu for more information

or http://blackdiamondequipment.com/en/whippet-recall.html.

Units: 3,000

Year Manufactured: 2013-2014

Incidents/Injuries: None

Sold: May 2013 through January 2014

The Whippet is gray with two telescoping shafts and the Carbon Whippet is black with three telescoping shafts.

The upper shaft of both models is made of aluminum and has a black and orange rubber handgrip with a built-in, stainless steel, serrated pick and a black nylon wrist strap with a an orange Black Diamond logo. “Black Diamond” and the Black Diamond logo are on the upper shaft of both models.

The Whippet has an aluminum lower shaft with an orange and silver locking mechanism. “Whippet” and the logo are on the lower shaft. The middle and lower shafts of the Carbon Whippet are made of carbon fiber and have orange and silver locking mechanisms. “Carbon Whippet” and the logo are on the lower shaft.

Both models have a 4-inch plastic powder basket on the lower shaft near the tip and graduation marks on the shafts to show the various lengths of the pole in centimeters. The Whippet can be extended from 99 centimeters (39 inches) to 142 centimeters (56 inches) long. The Carbon Whippet can be extended from 67.9 centimeters (26.75 inches) to 142 centimeters (56 inches) long.

Recalled poles have picks with polished surfaces, a notch in the top of the pick and a date code between 13121 and 14015 etched on the pole. The date code can be found by removing the locking mechanism on the middle shaft of the Carbon Whippet and the lower shaft of the Whippet.

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see: http://blackdiamondequipment.com/en/whippet-recall.html

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, Black Diamond, Black Diamond Equipment Company, Whippet, Whippet Ski Poles,

 


Bowman v. The Chicago Park District, 2014 IL App (1st) 132122; 2014 Ill. App. LEXIS 648

Bowman v. The Chicago Park District, 2014 IL App (1st) 132122; 2014 Ill. App. LEXIS 648

Artenia Bowman, Individually and as Mother and Next Friend of Cheneka Ross, a Minor, Plaintiff-Appellant, v. The Chicago Park District, a Municipal Corporation, Defendant-Appellee.

No. 1-13-2122

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

2014 IL App (1st) 132122; 2014 Ill. App. LEXIS 648

September 5, 2014, Decided

SUBSEQUENT HISTORY: As Corrected.

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Cook County. No. 11 L 7865. The Honorable Kathy M. Flanagan, Judge Presiding.

Bowman v. Chi. Park Dist., 2014 IL App (1st) 132122-U, 2014 Ill. App. Unpub. LEXIS 1420 (2014)

DISPOSITION: Reversed and remanded.

COUNSEL: For Appellant: Paul A. Greenberg, Briskman Briskman & Greenberg, of Chicago, IL.

For Appellee: George P. Smyrniotis, Risk Management Senior Counsel, Robert L. Raymond, Marie Christelle Levesque (Legal Extern), Chicago Park District, of Chicago, IL.

JUDGES: JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Taylor concurred in the judgment and opinion.

OPINION BY: GORDON

OPINION

[*P1] Plaintiff Artenia Bowman, individually and as mother and next friend of Cheneka Ross, a minor, filed suit in the circuit court of Cook County against the Chicago Park District (CPD) alleging willful and wanton conduct for failing, for almost a year, to repair a damaged slide. Plaintiff’s daughter, Cheneka Ross, age 13, was going down a slide on April 21, 2011, when her foot became caught in a hole in the plastic at the bottom of the slide, resulting in a fractured ankle. Defendant CPD owns the property and maintains the playground equipment, including the slide.

[*P2] Defendant filed a motion for summary judgment (735 ILCS 5/2-1005 (West 2010)) claiming: (1) that it did not owe any duty to Cheneka because she was not an intended user of the slide since she was 13 years old and the slide was intended for children aged under 12; and (2) that the hole at the bottom of the curved slide was an open and obvious risk that the 13-year-old [**2] should have avoided. Plaintiff, in her response to defendant’s motion for summary judgment, claims.

[*P3] The trial court granted defendant’s motion for summary judgment, finding that 13-year-old Cheneka had violated a CPD ordinance by using a slide that had been designed for children under 12 years old, although there were no signs to indicate an age limit. Since the trial court found that Cheneka was not an intended user of the slide, it did not discuss whether the damage was open and obvious or whether CPD’s failure to repair the slide was willful and wanton conduct.

[*P4] On this direct appeal, plaintiff argues: (1) that the trial court erred by granting defendant summary judgment on the basis that 13-year-old Cheneka was not an intended user of defendant’s slide; (2) that the danger created by the hole at the [**3] bottom of the curved slide was not open and obvious; and (3) that CPD’s failure to repair the slide, after being informed of its condition almost a year earlier, constituted willful and wanton conduct.

[*P5] For the following reasons, we find the trial court erred in granting summary judgment on the basis that Cheneka was not the intended user of the slide and reverse. We remand for the trial court to decide whether the slide’s condition was open and obvious and whether CPD’s failure to repair the slide after being notified was willful and wanton conduct.

[*P6] BACKGROUND

[*P7] I. The Complaint

[*P8] The complaint at issue on this appeal is plaintiff’s second amended complaint, which was filed on March 1, 2012. The suit seeks damages for injuries sustained by plaintiff’s daughter, Cheneka, when she damaged her ankle on a park slide on April 21, 2011. The complaint alleges that Cheneka was using the slide when her foot came in contact with a hole that caused a fracture in her ankle; and that defendant CPD was aware that the slide was dangerous and had failed to repair it. Count I alleges defendant acted willfully and wantonly toward users of the slide by failing to repair the slide even though it had received [**4] numerous complaints from the community. Count II sought recovery on behalf of her daughter’s medical expenses under the Rights of Married Persons Act, commonly known as the Family Expense Act. 750 ILCS 65/15 (West 2010).

[*P9] II. Defendant’s Motion for Summary Judgment

[*P10] On January 13, 2013, defendant, as noted, filed a motion for summary judgment, claiming: (1) that it did not owe any duty to Cheneka because she was not an intended user of the slide; and (2) that the slide was an open and obvious risk that the 13-year-old should have avoided.

[*P11] CPD argued that it had an ordinance stating that children age 12 and older should not use playground equipment designed for children under the age of 12. CPD claims that, since Cheneka was 13 years old, she violated the ordinance, and CPD was immune from liability.

[*P12] CPD also claimed that the danger at the bottom of the curved slide was open and obvious, and that the 13-year-old should not have used the slide because a reasonable child would have avoided it. CPD also claimed that, since the 13-year-old was unsupervised, she should be old enough to appreciate obvious risks; however, issues of supervision were not raised on appeal.

[*P13] Plaintiff responded to the motion contending [**5] that defendant had failed to establish that the 13-year-old was not the intended user of the slide. She claimed that the park was open to the public and no sign was present in the park prohibiting children age 12 and older from using the slide. Plaintiff also contended that the hole at the bottom of the curved slide was not open and obvious because she was unable to see the hole prior to being injured. The slide was curved, which made it difficult for children to observe what was in front of them.

[*P14] III. Exhibits

[*P15] A. Cheneka Ross’s Deposition

[*P16] Cheneka testified in a discovery deposition that, on April 21, 2011, she went with friends to a park located at 1420 North Artesian Avenue1 to play a game of tag. Most of her friends were several years younger than her, including her brother. It was around 7 p.m. and starting to become dark. She had played at this park before and had been there several times. While playing tag, Cheneka ran to the slide to avoid being tagged by one of her friends. She went up the slide and when she descended, her foot became caught in a hole in the plastic, at the bottom of the slide, causing a fractured ankle requiring surgery.

1 The parties agree that the park is known [**6] as Park 399.

[*P17] Cheneka testified that she did not observe the hole at the bottom of the slide before her foot became caught. She did not observe the crack from the top of the slide and identified a photograph of the slide. The photograph, which was introduced at the deposition, showed that the slide was curved, and the top of the slide did not line up with the bottom.

[*P18] B. Artenia Bowman’s Affidavit and Deposition

[*P19] Artenia Bowman is Cheneka’s mother. In an affidavit attached to plaintiff’s response to the motion for summary judgment, Cheneka’s mother alleges that there were no signs posted which designated the age group for the playground. Specifically, there were no signs stating that the play equipment was intended for those 2 to 12 years old2 and that those 13 years or older were prohibited.

2 We note that this age range conflicts with the Chicago Park District Code (CPD Code), which states certain parks are designated for children under age 12. Chicago Park District Code ch. 7, § B(3)(e) (amended July 28, 1992).

[*P20] Cheneka’s mother testified that, after the incident, the park had been renovated, and after the renovation, new signs were posted stating that the park was intended for children [**7] under the age of 12.

[*P21] C. Juan Moreno’s Deposition

[*P22] Juan Moreno lives about 300 feet away from the park. Moreno testified in a discovery deposition that he goes to the park on a daily basis for a walk and some fresh air. He observed the damage to the slide for about a year and a half. He testified that the slide was “cracked really bad,” and it had a lot of water buildup at its bottom. Moreno had called 311 and was directed to CPD several times to report the broken slide’s condition before Cheneka was injured. Moreno testified that he spoke to an unnamed CPD supervisor in person, about a year prior to the incident, to complain about the slide. He also has contacted Alderman Roberto Maldonado’s office three times regarding the condition of the slide.

[*P23] Moreno testified that he still observed children playing on the broken slide despite its condition. He also mentioned that he observed older children at the park.

[*P24] D. Kathleen Oskandy’s Deposition

[*P25] Kathleen Oskandy, Alderman Maldonado’s chief of staff, spoke to Cheneka’s mother after the incident. Oskandy testified in a discovery deposition that she informed Cheneka’s mother that Moreno had already filed complaints with the alderman’s office [**8] about the slide before the incident. Oskandy reported the condition of the slide to CPD in July 2010 after being informed by Moreno.

[*P26] Oskandy provided a computer printout of the complaints regarding the park maintained by her office. It was a timeline of Moreno’s initial complaint, along with subsequent comments. The log showed a complaint made on July 29, 2010, about the slide’s condition and additional comments when CPD was contacted. On August 24, 2010, the log stated: “slide boarded up and waiting for repair.” One week prior to the incident in April 2011, the log stated, “slide west of park still broken.” On April 25, 2011, the log mentioned that Cheneka was injured and “[CPD] replaced slide for repair.”

[*P27] E. Gladys Ruiz’s Deposition

[*P28] Gladys Ruiz works in Alderman Maldonado’s office answering calls and inputting data. Ruiz explained in a discovery deposition the procedure of how staff entered complaints in the office computer. On July 29, 2010,3 Moreno had called the office, and Ruiz logged his complaint about the slide. She made a note about the damaged slide in the computer log. Ruiz interpreted the log provided by Oskandy and explained that Oskandy was the one that closed out the [**9] file on August 27 when Oskandy contacted CPD.

3 The computer printout of the log shows a date of July 29, but Ruiz’s deposition testimony states July 19.

[*P29] F. Robert Rejman’s Affidavit and Deposition

[*P30] Robert Rejman is the director of development and planning for CPD. His duties include developing policies for park district facilities and establishing and improving playgrounds. In an affidavit attached to defendant’s motion for summary judgment, Rejman stated that “he was personally familiar with Park 399″ and he “reviewed the plaintiff’s photographs of the playground equipment and can say that this equipment is commonly in the design of playgrounds that are intended for users between the ages of two to twelve.” He additionally stated that a sign was posted at the park indicating that playground equipment is designed for children aged 2 to 124; however, his affidavit did not state when the sign was posted or whether the sign was posted at the time of 13-year-old Cheneka’s injury.

4 We note that this age range conflicts with the CPD Code, which states certain parks are designated for children under age 12. Chicago Park District Code ch. 7, § B(3)(e) (amended July 28, 1992).

[*P31] Rejman later testified [**10] in a discovery deposition that he visited the park only once at some unknown point before the incident. He stated that he was unaware if there were any signs posted outside the park designating the age range when he was there. We observe that this testimony conflicts with the affidavit, where he stated that a sign was posted in the park. Rejman also stated that he was unaware if there had been any recent improvements to the park. Rejman characterized the park as a “play lot,” a park with most equipment for children age 12 and under. He testified there are different areas for younger children because “it’s safer for kids within a certain age groups to have space to play *** within that age group. *** It’s important to [parents] to provide that safe zone of play for younger children.”

[*P32] G. John Shostack’s Deposition

[*P33] John Shostack is a maintenance foreman for CPD’s natural resources landscape maintenance department. He testified in a discovery deposition that he was assigned to the park in 2010, but was not assigned there at the time of the incident in 2011. Shostack claimed to have stopped by the park at least once a week when he was assigned to the park. He admitted that he was aware [**11] of the slide’s damaged condition in 2010. Shostack placed a work order in 2010 to have the slide repaired; however, it was not his job to follow up, as that task was assigned to a different department. Shostack testified that he remembered seeing a wooden board placed at the top of the slide to prevent use, and yellow caution tape surrounded the slide. Shostack could not recall how long the board or caution tape was present on the slide. He would put up caution tape as a courtesy on one day, and it would be absent the next time he was there. He also testified that he could not recall if any actual repairs were done on the slide while he was assigned to the park.

[*P34] IV. Trial Court’s Order Granting Summary Judgment

[*P35] On June 10, 2013, the trial court granted summary judgment to defendant CPD, finding that Cheneka had violated a CPD ordinance and was not an intended user:

“Here, there is a dispute as to whether the subject playground displayed a sign restricting the use of the playground to persons under the age of twelve. However, the Chicago Park District enacted an ordinance restricting the use of playgrounds to children under the age of twelve. The ordinance itself is the manifestation [**12] of the Park District’s intent vis-a-vis the use of the playground. As such, whether or not there was a sign on the subject playground, the minor Plaintiff here was not an intended user of it.”

[*P36] The trial court did not discuss whether the damage to the slide was open and obvious, or whether CPD’s failure to repair the slide was willful and wanton conduct. The trial court granted summary judgment solely on the ground that the 13-year-old was not an intended user because of her age.

[*P37] On July 13, 2013, plaintiff filed a notice of appeal, and this appeal followed.

[*P38] ANALYSIS

[*P39] Plaintiff Artenia Bowman appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendant Chicago Park District.

[*P40] On this appeal, plaintiff argues: (1) that the trial court erred by granting defendant summary judgment on the basis that 13-year-old Cheneka was not an intended user of defendant’s slide; (2) that the danger created by the hole at the bottom of the curved slide was not open and obvious; and (3) that CPD’s failure to repair the slide, after being informed of its condition almost a year earlier, constituted willful and wanton conduct.

[*P41] With respect to the first issue, defendant [**13] claims that Cheneka was not the intended user of the slide, and therefore, it is not liable. For the following reasons, we find the trial court erred in granting summary judgment on this ground and reverse. We remand for the trial court to decide whether the slide’s condition was open and obvious, and whether CPD’s failure to repair the slide after being notified was willful and wanton conduct.

[*P42] I. Standard of Review

[*P43] [HN1] A trial court is permitted to grant summary judgment only “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2010). The trial court must view these documents and exhibits in the light most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315, 821 N.E.2d 269, 290 Ill. Dec. 218 (2004). We review a trial court’s decision to grant a motion for summary judgment de novoOutboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992). De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578, 948 N.E.2d 132, 350 Ill. Dec. 63 (2011).

[*P44] [HN2] “Summary judgment is a drastic measure and should only be granted if the movant’s right to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102. However, “[m]ere speculation, conjecture, or guess is insufficient [**14] to withstand summary judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328, 722 N.E.2d 227, 242 Ill. Dec. 738 (1999). A defendant moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624, 872 N.E.2d 431, 313 Ill. Dec. 448 (2007). The defendant may meet his burden of proof either by affirmatively showing that some element of the case must be resolved in his favor or by establishing “‘that there is an absence of evidence to support the nonmoving party’s case.’” Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). In other words, there is no evidence to support the plaintiff’s complaint.

[*P45] “‘The purpose of summary judgment is not to try an issue of fact but *** to determine whether a triable issue of fact exists.’” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708, 767 N.E.2d 376, 262 Ill. Dec. 916 (2002) (quoting Luu v. Kim, 323 Ill. App. 3d 946, 952, 752 N.E.2d 547, 256 Ill. Dec. 667 (2001)). “‘To withstand a summary judgment motion, the nonmoving party need not prove his case at this preliminary stage but must present some factual basis that would support his claim.’” Schrager, 328 Ill. App. 3d at 708 (quoting Luu, 323 Ill. App. 3d at 952). We may affirm on any basis appearing in the record, whether or not the trial court relied on that basis or its reasoning was correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50, 594 N.E.2d 1344, 171 Ill. Dec. 824 (1992).

[*P46] II. Intended User of Slide

[*P47] CPD argues that, since Cheneka was not the intended user of the slide, it cannot be liable for her injuries. [HN3] As a local public entity, CPD is entitled to the protection of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1-101 et seq. (West 2010)). [**15]

[*P48] In order for a municipality to have immunity under the Act, a duty must be owed under section 3-102 (745 ILCS 10/3-102 (West 2010)) for any of the subsequent immunity sections to apply. Swett v. Village of Algonquin, 169 Ill. App. 3d 78, 95, 523 N.E.2d 594, 119 Ill. Dec. 838 (1988). Section 3-102(a) states:

[HN4] “Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” (Emphasis added.) 745 ILCS 10/3-102(a) (West 2010).

[*P49] Thus, [HN5] according to the Act, a municipality owes a duty of care only to those who are both intended and permitted users of municipal property. 745 ILCS 10/3-102(a) (West 2010). Because “the Act ‘is in derogation of the common law,’” we must construe it strictly against the municipal defendant. Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 158, 651 N.E.2d 1115, 209 Ill. Dec. 667 (1995) (quoting Curatola v. Village of Niles, 154 Ill. 2d 201, 208, 608 N.E.2d 882, 181 Ill. Dec. 631 (1993)). “[A]n intended user of property is, by definition, also a permitted user; [**16] a permitted user of property, however, is not necessarily an intended user.” Boub v. Township of Wayne, 183 Ill. 2d 520, 524, 702 N.E.2d 535, 234 Ill. Dec. 195 (1998).

[*P50] “[T]he duty of a municipality depends on whether the use of the property was a permitted and intended use. [Citation.] Whether a particular use of property was permitted and intended is determined by looking to the nature of the property itself. [Citation.]” (Emphasis omitted.) Vaughn, 166 Ill. 2d at 162-63. “Intent must be inferred from the circumstances.” Sisk v. Williamson County, 167 Ill. 2d 343, 351, 657 N.E.2d 903, 212 Ill. Dec. 558 (1995).

[*P51] Defendant contends that, as a 13-year-old, Cheneka was not the intended or permitted user of the slide at the park. CPD claims, first, that this park was intended only for children 12 and younger. Second, chapter 7, section B(3)(e), of the CPD Code states:

“Playgrounds Designated for Persons under Twelve Years of Age.

[HN6] No person the age of twelve years or older shall use playground equipment designed for persons under the age of twelve years.” Chicago Park District Code ch. 7, § B(3)(e) (amended July 28, 1992).

[HN7] The CPD Code has the same force as a municipal ordinance. Chicago Park District v. Canfield, 382 Ill. 218, 223-24, 47 N.E.2d 61 (1943). Defendant claims it is immune from liability, because the 13-year-old violated the CPD Code by allegedly using equipment “designed” for younger children.

[*P52] [HN8] To determine whether plaintiff was an intended user of property, we [**17] look to the property itself to determine its intended use. Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 426, 592 N.E.2d 1098, 170 Ill. Dec. 418, (1992).

[*P53] Defendant cites Montano v. City of Chicago, 308 Ill. App. 3d 618, 624, 720 N.E.2d 628, 242 Ill. Dec. 7 (1999), where this court ruled that the defendant city was not liable when an adult pedestrian, who was injured on the pavement in an alleyway, had been violating an ordinance governing the use of alleys. The court found that there is no duty owed to pedestrians on thoroughfares not intended for pedestrian traffic. Montano, 308 Ill. App. 3d at 625.

[*P54] In Prokes v. City of Chicago, 208 Ill. App. 3d 748, 750, 567 N.E.2d 592, 153 Ill. Dec. 634 (1991), this court found the defendant city not liable when an adult bicyclist had been injured on a sidewalk. The city had an ordinance stating, “‘No person twelve or more years of age shall ride a bicycle upon any sidewalk in any district ***.’” Prokes, 208 Ill. App. 3d at 749 (quoting Chicago Municipal Code § 27-296 (1984)).

[*P55] In both Prokes and Montanto, the adult plaintiffs were not found to be intended users of the premises on which they were injured because they had violated a Chicago ordinance. However, defendant does not cite a case where a child was charged with the responsibility of knowing municipal ordinances, without a sign or other notice.

[*P56] In addition, nothing in the record shows that even adult members of the public had any means of knowing that CPD had allegedly designated this particular park for a certain age group. [HN9] Publication [**18] of ordinances is necessary so that the public can be informed of the contents of ordinances. City of Rockford v. Suski, 90 Ill. App. 3d 681, 685, 413 N.E.2d 527, 46 Ill. Dec. 87 (1980). It is a long-established principle that members of the public must have a reasonable opportunity to be informed of an ordinance so that they may conform their conduct accordingly and avoid liability under the ordinance. Schott v. People, 89 Ill. 195, 197-98 (1878). While the CPD Code prohibited children age 12 and over from playing on playgrounds “designed” for children younger than 12, nothing in the CPD Code stated that this particular park was designated for children under age 12 or that this slide was designed for children under age 12. The CPD website for the park, attached to plaintiff’s response to defendant’s motion for summary judgment, mentions no age range, only stating: “This park features a playground and swings and green space. It is an active community park.”

[*P57] There were also no signs on the playground or any other indications that the playground was designated or designed for children under 12 years old. Plaintiff states in her affidavit that the park did not have a sign designating the playground for younger children. Robert Rejman, CPD’s director of development and planning, admitted at his deposition that he did not [**19] know whether there was a sign posted. Nothing in the record shows that CPD took any measures to prevent children age 12 and older from using this park. Playgrounds are designed for children. What would prompt a 13-year-old child to observe a slide and think, “am I really the intended user of this slide?”

[*P58] CPD stated that plaintiff presented no case or legal authority to support the assumption that all community members are intended users of a park called a “community park.” However, [HN10] it is the defendant’s burden to prove that it is immune from liability. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 377-78, 657 N.E.2d 887, 212 Ill. Dec. 542 (1995); Van Meter v. Darien Park District, 207 Ill. 2d 359, 370, 799 N.E.2d 273, 278 Ill. Dec. 555 (2003). In addition, CPD has pointed to no legal authority claiming that the public generally is not allowed to use public parks.

[*P59] Plaintiff contends that CPD did not follow the administrative provisions in chapter 7, section C, of the CPD Code for designating the playground as solely for children under the age of 12 years old. However, we do not consider this issue, because [HN11] issues not raised in the trial court are waived and may not be considered for the first time on appeal. Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536, 662 N.E.2d 1248, 215 Ill. Dec. 108 (1996). Nothing in plaintiff’s complaint or her response to defendant’s motion for summary judgment argued that CPD failed to follow its own administrative procedures under [**20] chapter 7, section C, of the CPD Code.

[*P60] Defendant argues that placing signage is discretionary, and it has no duty to post its ordinances at every park. The CPD Code is available online; however, the Code does not state which parks have been designated for a certain age group. [HN12] An ordinance is invalid if a municipality cannot prove it was published (Suski, 90 Ill. App. 3d at 685), and here there is no showing that it was published.

[*P61] CONCLUSION

[*P62] We must reverse the trial court’s grant of summary judgment which was granted solely on the basis that a 13-year-old was not an intended user of the slide.

[*P63] First, the defendant does not cite a case where a child was charged with the responsibility of knowing municipal ordinances, without a sign or other notice, nor can we find such a case.

[*P64] Second, defendant failed to inform park users of any age, by any means, that this park and the slide were intended for children younger than age 12.

[*P65] For these reasons, we must reverse. We remand for the trial court to decide whether the slide’s condition was open and obvious, and whether CPD’s failure to repair the slide after being notified was willful and wanton conduct.

[*P66] Reversed and remanded.


Boyce v. Cycle Spectrum, Inc., et al., 2014 U.S. Dist. LEXIS 96545

Boyce v. Cycle Spectrum, Inc., et al., 2014 U.S. Dist. LEXIS 96545

Timothy Boyce and Courtney Boyce, Plaintiffs, – against – Cycle Spectrum, Inc.; AZ Velo Imports, Inc.; CS Velo AZ Inc.; AZ Desert Velo, Inc.; CS Bike, Inc.; CS Velo HT, Inc.; Velo Bdbi Support, Inc.; Cycle Support, Inc.; Spratt Cycle Support, Inc.; Windsor America Corporation; and HL Corp (USA), Defendants.

14-CV-1163

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

2014 U.S. Dist. LEXIS 96545

July 14, 2014, Decided

July 15, 2014, Filed

COUNSEL: [*1] For Courtney Boyce, Timothy Boyce, Plaintiffs, Counter Defendant: Gary A. Zucker, LEAD ATTORNEY, Zucker & Bennett, P.C, Brooklyn, NY.

For Velo BDBI Suport, Inc., Spratt Cycle Support, Inc., Defendant, Cross Claimants, Cross Defendants: Angelantonio Bianchi, LEAD ATTORNEY, Cohen Kuhn & Associates, New York, NY.

For HL Corp (USA), Defendant, Cross Defendant, Cross Defendant: Cynthia K. Messemer, George S. Hodges, Hodges Walsh Messemer & Moroknek, LLP, White Plains, NY; Paul E. Svensson, Hodges, Walsh & Slater, LLP, White Plains, NY.

For Advanced Sports, Inc., Defendant, Cross Defendant, Cross Claimant: Richard H. Bakalor, LEAD ATTORNEY, Quirk & Bakalor, New York, NY.

JUDGES: Jack B. Weinstein, Senior United States District Judge.

OPINION BY: Jack B. Weinstein

OPINION

MEMORANDUM, ORDER, & JUDGMENT

Jack B. Weinstein, Senior United States District Judge:

Contents

I. Introduction
II. Facts
III. Law
A. Personal Jurisdiction Generally
B. Specific Jurisdiction in New York
C. Constitutional Limits on Personal Jurisdiction
IV. Application of Law to Facts
A. Specific Jurisdiction in New York
B. Constitutional Limits on Personal Jurisdiction
V. Conclusion

I. Introduction

Plaintiffs sue Defendant HL Corp. (USA), among others, for injuries plaintiff [*2] Timothy Boyce he sustained while riding a bicycle. Defendant HL Corp. (USA) moves to dismiss for lack of personal jurisdiction.

For the reasons stated below, the motion is granted.

II. Facts

On April 25, 2010 plaintiff Timothy Boyce purchased a Windsor Timeline bicycle from bikesdirect.com, a website operated by Velo BDBI from outside New York. See Am. Compl. ¶ 36. The bicycle was shipped to his residence in New York from a place outside New York. See Pl’s Aff. in Opp., Ex. B.

In July 2012, plaintiff, a New York resident, was riding the bicycle across the Manhattan Bridge when the handlebar broke, causing him injuries. See id. ¶ 51-52.

The alleged manufacturer of the handlebar part is HL Corp (Shenzhen), an organization operating outside of New York. See Pl. Mem. in Opp. 3; Def.’s Reply, Ex. A. HL Corp. (USA) (hereinafter “HL”) is a California Corporation that sells bicycle parts, sporting goods, and medical equipment manufactured by HL Corp. (Shenzhen), presumably in China. See Def.’s Reply Aff. These bicycle components are sold to companies in California, Wisconsin, Minnesota, Florida, and Idaho. See id. HL does not sell bicycle parts in New York. It has sold medical equipment in New [*3] York in quantities and at a time not yet revealed. See Def. HL’s Answers ¶ 9. HL does not sell handlebars for the Windsor TimeLine model bicycle used by plaintiff. See Def.’s Reply Aff.; Def.’s Reply Mem., Ex. A.

III. Law

A. Personal Jurisdiction Generally

“District courts resolving issues of personal jurisdiction must engage in a two-part analysis.” Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005) (internal quotation marks and ellipses omitted). First, the court looks to the personal jurisdiction law of the forum state and determines whether it is satisfied. See Metro. Life Ins. C. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996). Once state law is found to confer personal jurisdiction over the defendant, the court determines whether the exercise of personal jurisdiction comports with constitutional due process requirements. Id.

There are two traditional foundations for personal jurisdiction in the forum state, New York: general and specific, the latter known as long-arm jurisdiction. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n.15, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). Plaintiff relies on specific jurisdiction. See Pl’s Opp. Mem. 7.

B. Specific Jurisdiction [*4] in New York

Plaintiff supports its claim for jurisdiction by subsection 302(a)(3)(ii) of the New York Civil Practice Law and Rules (“N.Y.C.P.L.R.”), which provides specific personal jurisdiction over a non-domiciliary that “expects or should reasonably expect [its actions] to have consequences in the state and derives substantial revenue from interstate or international commerce.” N.Y.C.P.L.R. 302(a)(3)(ii). Establishing jurisdiction under this subsection requires satisfaction of five elements: “(1) the defendant’s tortious act was committed outside New York, (2) the cause of action arose from that act, (3) the tortious act caused an injury to a person or property in New York, (4) the defendant expected or should reasonably have expected that his or her action would have consequences in New York, and (5) the defendant derives substantial revenue from interstate or international commerce.” Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 35 (2d Cir. 2010). In the instant case, the parties dispute the fourth element.

C. Constitutional Limits on Personal Jurisdiction

The Due Process Clause of the Fourteenth Amendment “protects a person without meaningful ties to the forum state from being [*5] subjected to binding judgments within in its jurisdiction.” Metro. Life Ins. C. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996). To decide whether this requirement is met, courts analyze two factors: (1) minimum contacts; and (2) reasonableness. Id. An inquiry into minimum contacts asks “whether the defendant has sufficient contacts with the forum state to justify the court’s exercise of personal jurisdiction.” Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 164 (2d Cir. 2010). The second component, reasonableness, involves consideration of “whether the assertion of personal jurisdiction comports with ‘traditional notions of fair play and substantial justice’–that is, whether it is reasonable to exercise personal jurisdiction under the circumstances of the particular case.” Id.

“The import of the ‘reasonableness’ inquiry varies inversely with the strength of the ‘minimum contacts’ showing–a strong (or weak) showing by the plaintiff on ‘minimum contacts’ reduces (or increases) the weight given to ‘reasonableness.’” Bank Brussels Lambert, 305 F.3d at 129 (citations omitted). For example, “[a]ssuming that a constitutional threshold of contacts has been demonstrated, fewer [*6] contacts may be necessary where the ‘reasonableness’ factors weigh heavily in favor of an exercise of jurisdiction.” City of New York v. A-1 Jewelry & Pawn, Inc., 247 F.R.D. 296, 335 (E.D.N.Y. 2007) (citing Metro. Life Ins. Co., 84 F.3d at 568).

IV. Application of Law to Facts

A. Specific Jurisdiction in New York

Plaintiff claims that the court has specific jurisdiction under C.P.L.R. 302(a)(3)(ii) because HL should have expected that New York residents would purchase bikes outfitted with its products. See Pl’s Opp. Mem. He does not directly rely on HL’s sales of medical equipment at some time in New York. Defendant responds that it has no distribution or sales agreements for bicycle parts in New York, had no knowledge or expectation that its customers would sell bicycle products containing its parts to individuals in New York, and has not established any contact with New York. See Def.’s Mem.

There is no HL contact with New York supporting a finding of specific jurisdiction. Bicycles are generally limited, unlike cars, to local use. Expansion of jurisdiction to this case would exceed New York statutory limits.

Foreign and out-of-state manufacturers have been held amenable to product liability [*7] suits after their products were distributed to New York through third parties and caused injury within the State. In those cases, the defendants had distribution or sales agreements with its customers that gave rise to the reasonable expectation that its product would be used in New York. See, e.g., LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214-16, 735 N.E.2d 883, 713 N.Y.S.2d 304 (2000) (Texas manufacturer of rear-loading device subject to specific jurisdiction based on agreement with New York-based distributor that sold device to plaintiff’s employer); see Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 242-44 (2d Cir. 1999) (Japanese manufacturer of hot stamping press subject to specific jurisdiction based on targeting North American market generally, including New York, with its products through an “exclusive sales rights agreement” with a Pennsylvania distributor).

In the instant case, HL did not enter into any distribution or sales agreements with its customers leading to an expectation that its product would be sold to or used by a person in New York. Def. Reply Mem. 1, 3; Id., Ex. D.

The allegations and conceivable facts are insufficient to establish specific jurisdiction under New York law. See Kernan, 997 F. Supp. at 372 [*8] (“The ‘reasonable expectation’ test . . . is not satisfied by ‘[t]he mere likelihood that a product will find its way into the forum state . . . .” (quoting Cortlandt Racquet Club, Inc. v. OySaunatec, Ltd., 978 F. Supp. 520, 523 (S.D.N.Y. 1997)); see also Jash Raj Films (USA) Inc. v. Dishant.com LLC, 2009 U.S. Dist. LEXIS 116431, 2009 WL 4891764 (E.D.N.Y. 2009) ([T]he Second Circuit requires “a discernible effort [by the defendant] to directly or indirectly serve the New York market.” (quoting Kernan, 175 F.3d at 241).

B. Constitutional Limits on Personal Jurisdiction

Even if plaintiff could show specific jurisdiction under New York law, the case would still warrant dismissal on due process grounds. Plaintiff’s theory is that defendant established the requisite minimum contacts with New York by placing its goods into the national stream of commerce. See Pl’s Mem. in Opp. 10-12.

In a recent opinion, a plurality of the Supreme Court addressed this argument: “The principal inquiry in cases of this sort is whether the defendant’s activities manifest an intention to submit to the power of a sovereign. . . . [A]s a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum [*9] State.” J. McIntyre Mach., Ltd V. Nicastro, 131 S. Ct. 2780, 2788, 180 L. Ed. 2d 765 (2011) (plurality opinion). Concurring in the opinion, Justice Breyer explained that jurisdiction is lacking when:

there is no “‘regular . . . flow’ or ‘regular course’ of sales in [the State]; and there is no ‘something more,’ such as special state-related design, advertising, advice, marketing, or anything else. . . . And [defendant has not] ‘purposefully avail[ed] itself of the privilege of conducting activities’ within [the State], or that it delivered its goods in the stream of commerce ‘with the expectation that they will be purchased’ by [the State's] users.”

Id. at 2792 (Breyer, J. concurring) (citations omitted).

Plaintiff has failed to allege facts sufficient to establish minimum contacts. Absent are any arrangements with companies incorporated or doing business in New York to sell bicycle parts or bicycles containing their parts in New York. HL did not target the New York market. See id. at 2788 (“The defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum.”) (plurality opinion).

V. Conclusion

For the foregoing reasons, defendant HL [*10] Corp. (USA)’s motion to dismiss due to lack of personal jurisdiction is granted.

SO ORDERED.

/s/ Jack B. Weinstein

Jack B. Weinstein

Senior United States District Judge

Dated: July 14, 2014

Brooklyn, New York


The harder a court works to justify its decision the more suspect the reasoning. In this case, a ski area is liable for injuries to a spectator no matter what risks she knew and assumed.

Neither the Pennsylvania Skier’s Responsibility Act, assumption of the risk, nor the No Duty Rule were enough to stop this lawsuit. Spectators are always at risk. Either that or the defense attorneys failed to discover the necessary elements to prove their case in deposition.

Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029

State: Pennsylvania, US District Court for the Middle District of Pennsylvania

Plaintiff: Colleen Barillari and William Barillari

Defendant: Ski Shawnee, Inc.

Plaintiff Claims: negligence

Defendant Defenses: Pennsylvania Skier’s Responsibility Act and Assumption of the Risk

Holding: for the plaintiff

Year: 2013

The plaintiff was a skier. On the day in question she was not skiing but was watching her husband take a lesson. She was standing on the snow but not close enough, in her opinion, to be at risk. She was behind a tape that separated the ski run from the instruction area. She was standing on a ski run though.

The plaintiffs are residents of New Jersey; Ski Shawnee is located in Pennsylvania. Residents of two different states gave the Federal District Court jurisdiction for the case. The federal court system was created so residents of two different states involved in litigation did not feel like the home state was favoring the person who lived there.

Standing there a skier collided with her. She filed a complaint alleging negligence and her husband filed a claim for loss of consortium. The ski area filed a motion for summary judgment based on the Pennsylvania Skier’s Responsibility Act and assumption of the risk which the court denied with this decision.

Analysis: making sense of the law based on these facts.

The defense relied upon two distinct but similar theories for its case, The Pennsylvania Skier’s Responsibility Act and assumption of the risk. The court went through an extensive analysis of the law and other, mostly conflicting case law in its decision. What was even more interesting though was the court applied traditional definitions of assumption of the risk in its analysis of the Pennsylvania Skier’s Responsibility Act even though the act defines the risks assumed by a skier as under the doctrine of voluntary assumption of the risk.

(c)  Downhill skiing.

    (2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1).

The doctrine of voluntary assumption of risk has been defined by Pennsylvania courts as “where one, with full knowledge or full opportunity of knowledge, voluntarily-assumes a danger he is barred from recovery under the doctrine of voluntary assumption of risk:” As interpreted by another decision “plaintiff knew of the risk, appreciated its character and voluntarily chose to accept it.”

Here the court started with the RESTATEMENT (SECOND) OF TORTS, § 496A which defines the doctrine of assumption of risk as “”[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” The Restatement of Torts is a compendium of the law put together by experts, mostly legal professors who have reviewed the law of the states in their area of expertise and put it down in the restatement. It is the basis of research and provides a foundation for understanding the law on a particular subject. Rarely do courts adopt the restatement as is. It is modified and adapted based on prior case law in the state and how the state supreme court follows the law.

The court then stated that when this definition and defense, assumption of the risk, is applied to sport it is called the No Duty Rule, “the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.”

Under Pennsylvania law when applied to ski areas this has been interpreted to mean “ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.”

Consequently, “[w]here there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.

The court stated Pennsylvania had a two-step analysis to determine whether a plaintiff is subject to the rule.

First, this Court must determine whether [the Plaintiff] was engaged in the sport of downhill skiing at the time of her injury. If that answer is affirmative, we must then determine whether the risk of being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . .

The court then looked at several if not all the instances where Pennsylvania courts had determined someone was skiing and assumed the risk. At the end of the analysis, the court stated the plaintiff was a spectator at the time of the incident. Then the court stated that the plaintiff could assume the risk of a collision with another skier, but did not assume the risk of a collision with a skier when she was a spectator because she did not know she could be hit by a skier as a spectator…..standing on a run at the base of a hill.

Because the court found the spectator, who was a skier did not understand that standing on a ski run would subject to the possibility of being hit by another skier, she did not know the risk and therefore, could not assume the risk. Under the Pennsylvania Skier’s Responsibility Act the plaintiff did not assume the risk and the defendant would not rely on the protection it afforded.

The court then analyzed whether the plaintiff assumed the risk with a traditional definition.

The decision spent two paragraphs describing the defense as a hydra that would not die. Under Pennsylvania law, there are four different types of assumption of risk. The court defined two of them: “One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware.”

A second related corollary of the assumption of risk doctrine is sometimes titled the “no-duty rule.” It applies when a plaintiff tacitly agrees to relieve the defendant of a duty by entering a certain relationship with the defendant, when the plaintiff is then injured by an inherent risk of that activity, such as a spectator at a sporting event.

The court determined the two remaining types of assumption of the risk did not apply in this case in a footnote.

The two remaining forms of assumption of the risk do not apply to this case. These are i) express assumption of the risk; and, ii) situations in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable.

Under Pennsylvania law assumption of the risk is a three-step process (even though the decision stated earlier it was only two):

[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed. This assumption of risk defense is established as a matter of law “only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Moreover, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.”

The court focused on the knowledge of the plaintiff. “Rather, the plaintiff must be aware of “the particular danger” from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.”

Again, the court went through several Pennsylvania cases distinguishing the definition of assumption of the risk the judge wanted to use from the other cases in Pennsylvania. The court then held:

Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered–namely, a skier crashing into a spectator.

This decision was based on the plaintiff’s statement:

Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, “because [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn’t standing with a bunch of skiers. [She] was standing with spectators.”

Under this logic, you would not know you could be hit skiing by a skier if you were standing in a group of trees……on the side of a run.

Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury.

The court then went back and looked at whether the No Duty Rule applied in this case. The No Duty Rule is defined as:

…the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.

Again, the court wove its way through the Pennsylvania case law, even at one point stating the No Duty Rule applied to spectators. However, the court found the rule did not apply in this case because there was a difference in the risk the rule applied to. The risk the rule applied to must be a necessary element of the sport, not just a possible risk.

Applying these principles to the case before the Court, the no-duty rule cannot protect the Defendant and bar Mrs. Barillari’s claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball–Mrs. Barillari was a spectator by a ski slope that was hit by a skier. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport

The court summed up its decision by stating the burden on ski areas to protect spectators would not be that great.

Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with “no-duty,” will not in any way affect the essence of skiing. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.

So Now What?

Spectators will be protected because in the future I’m sure they will not be allowed anywhere near the slopes in Pennsylvania for fear of being sued.

One of the biggest holes in all ski area defenses is spectators. Either watching friends or loved one’s ski or attending an event or race, spectators are always subject to injury. I believe only the Colorado Skier Safety act has been interpreted broadly enough, because it is written broadly enough to protect the ski area from suits by spectators.

Not only do spectators get hit by skiers, they get knocked by racers who leave the trail and plow into them. The slip and fall getting on or off the slope, and they get lost hiking up or down the hill appearing suddenly on an open run or not appearing for hours.

This case is a great look at the law of Assumption of the Risk in Pennsylvania. Other than that, it is a judicial greased pig to reach a decision that the court wanted.

What do you think? Leave a comment.

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, No Duty Rule, Assumption of the Risk, Pennsylvania Skier’s Responsibility Act, Pennsylvania, Skiing, Ski Area, Ski Shawnee, Inc., Restatement (Second) of Torts, Doctrine of Voluntary Assumption of Risk,

 


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