In this mountain biking case, fighting each claim pays off.Posted: September 10, 2012
Gross negligence claim is thrown out because the complaint failed to plead enough facts.
This case is about a minor, who was attending a Boy Scout summer camp. While at camp, he went mountain biking on a camp bicycle. While riding the mountain bike the plaintiff alleges the brakes were not working and the plaintiff road off the trail and hit a tree.
The plaintiff’s complaint alleged the following:
(1) it failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners.
The plaintiff also requested gross negligence as part of his damages. His complaint stated, “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff….”
Generally, gross negligence is defined as greater than normal negligence. (Only a lawyer could get away with that definition….) A better definition might be:
Another definition is the failure to exercise that care that even a careless person would exercise. Gross Negligence falls just short of a reckless disregard of the consequences of the actor’s acts. Aggravated Negligence is gross negligence. The actual differences between ordinary negligence and gross negligence are difficult to define, and ordinarily done by the jury.
For more on Gross Negligence see Good Release stops lawsuit against Michigan’s bicycle renter based on marginal acts of bicycle renter or New Jersey upholds release for injury in faulty bike at fitness club.
The defendant camp filed a motion for summary judgment to eliminate the claim for gross negligence. The reason is based upon the complaint the allegation of gross negligence is the only real basis for the demand for punitive damages. Eliminate the claim for gross negligence and you have taken most of the fight out of the gross negligence claim and a lot of the ability of the plaintiff to threaten from the case.
A claim of gross negligence is not enough under Tennessee’s law to allow a jury to award punitive damages. Punitive damages can only be awarded if the jury finds the defendant acted “(1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.
Intentionally, fraudulently and maliciously are easily understood. In Tennessee, a person acts recklessly when:
A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.
Because the complaint did not allege how or why the defendant was aware of the problems with the bicycle or the trail, he could not sustain a claim for gross negligence and consequently, claim punitive damages.
The court granted the defendants claim.
Not every lawsuit provides the opportunity to start and win a fight based on the pleadings. However, every pleading, complaint, should be examined to make sure, under the law of that state, the pleadings make a legal case.
Even if a flaw is found, you need to examine the cost of the fight and the benefit. Sometimes a flaw can be allowed to survive to be attacked later. However, litigation is a fight and every opportunity to weaken the opposing side should be taken.
For additional cases looking at the legal issues of cycling see:
Release stops most of the litigation against a ski area and USA Cycling in a Mountain Bike race but leaves other members out in the cold or should I say stuck in the courtroom
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 Outdoor Recreation Risk Management, Insurance and Law, Chapter 7