“Marketing makes promises Risk Management has to pay for” in this case, the marketing eliminated the protection afforded by the warning labels

Cornell and a manufacturer of a piece of equipment used in a gym at Cornell were being sued by an injured student who used the equipment. The court definitely was leaning towards the student; however, the student had come to court prepared, (and backed by a lot of money I’m guessing.)

Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

State: Pennsylvania, United States District Court for the Eastern District of Pennsylvania

Plaintiff: Randall Duchesneau

Defendant: Cornell University and Tumbltrak

Plaintiff Claims: Product Liability, Failure to Warn, requesting punitive damages

Defendant Defenses:

Holding: No duty, Failure to state a claim, Assumption of Risk & Release?

Year: 2012

This case spent four years getting to this point, and it is obvious the court is a little tired of the litigation. Consequently, the facts are difficult to determine.

It seems the plaintiff was a beginning gymnast and injured himself on a piece of equipment at the Cornell University gym called the Tumbletrak. The extents of his injuries are never clear, but based on the number of experts the plaintiff hired and the lengthy fight; I guess his injuries were extensive.

This case was being heard in a Pennsylvania Federal Court with a Michigan and a New York Defendant. That fact alone is confusing.

The decision is based on motions for summary judgment filed by both Cornell and the manufacturer Tumbletrak.

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

The court first examines the manufacture’s motion for summary judgment. The first issue the manufacturer claimed the plaintiff failed to establish the minimum facts necessary to go to trial; the plaintiff is not entitled to punitive damages, and the plaintiff assumed the risk. The court first looked at what was required to establish a failure to warn case. Meaning a manufacturer has a duty to warn users of the product of the risks and failed to do so.

Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause of the injury to plaintiff; and (4) the plaintiff suffered loss or damage.

The burden is on the plaintiff to prove the failure to warn of the risk by the manufacturer was the cause of the plaintiff’s injury.

This burden includes adducing proof that a user of the product at issue would have read and heeded a warning had one been given. Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.”

Failure to warn can be denied both by proving the plaintiff read and heeded the risk or knew of the risk prior to using the equipment. The manufacturer argued the risk was open and obvious, which does not require proof because the plaintiff should have seen the risk.

T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding

In a footnote at this point, the court states the plaintiff signed a release stating he understood the risks; however, nothing else is mentioned about the release in the rest of the decision.

One way to defend against a motion for summary judgment is to argue there are enough facts or issues that make the facts relied upon by the defendant an issue.  Meaning if enough facts are in dispute, the motion for summary judgement cannot be granted. This is what the plaintiff did through his experts.

Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA, not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. [Emphasize added]

Here the manufacturer shot his defense down before the product left the assembly plant by confusing risk management and marketing. Teddy bears doing the activities unspotted that the warning allegedly warns against eliminated the warning in the court’s eyes. (And rightfully so!) If the manufacturer shows cartoons doing the act without regard for safety, then the act must be safe, no matter what the warning says. If the warning can be located.

In a scary statement, the court held that failure to read the warnings on the product is not an issue in a failure to warn case.

However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.”

The court based this analysis on the many different statements by witnesses who seemed to go in every direction, but all stated they never saw the warning.

Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter.

A warning does not exist unless the consumer can’t miss it. Meaning the warning must be in the consumer’s face every time they go to use a product. On top of that the warning must be in the manual, in some states on the packaging and maybe on a hangtag with the product.

The failure to warn claim was sustained and would be decided at trial.

The court then looked at the assumption of the risk defense brought by the defendant manufacturer. The court started this analysis looking at the requirements to prove a negligence claim in a product case.

To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff.

However, assumption of the risk in a product’s case is a little more stringent then in a recreation case. “Assumption of risk is frequently applied to claims arising out of participation in sporting events.” In sporting or recreation cases, the risk is clear and understood by all involved and to be effective the risk was not altered or enhanced by the defendant. In a product’s case the requirements are slightly different.

Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. To establish assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” This determination depends in part on the openness and obviousness of the risk.

Again, the case goes back to did the plaintiff know of the risks. Where the risks open and obvious or can you prove under the law the plaintiff knew of the risk. Because no one ever saw the warning, the warning had no value. That left it up to a jury to decide if the plaintiff knew the risk of the sport or activity.

The next argument was a motion to eliminate a punitive damages claim by the manufacturer arguing the case should be tried under Michigan’s law because the manufacturer was based in Michigan. Michigan does not allow punitive damages, unless they are expressly authorized by statute.

There has been a prior argument about the jurisdiction and venue of the case decided by a prior judge. (Which is alone confusing since none of the defendants are located in Pennsylvania where the court sits, however, the court is applying New York law?) Because of the prior decision, this court followed it and ruled that New York law would be applied to the facts of the case, and punitive damages were going to be at issue.

Cornell University was then giving a shot at its motions starting with the punitive damages issue. Cornell claimed the plaintiff had not presented any evidence that could support a punitive damages claim. The plaintiff responded arguing facts that could prove a punitive damages claim against the university.

(1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.”

The court defined the requirements to prove a punitive damages claim.

As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness.”

The court found there was sufficient evidence to support a possible punitive damages claim.

There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.

Cornell next argued that the plaintiff assumed the risk and there was no evidence proving causation. Cornell was arguing a breach of a duty was not related to the injury. There was no causation between the two which is required to prove negligence.

The court found that Cornell’s case law did not apply correctly to the facts of this case. That means the case law facts were sufficiently different from the facts of this case, that the law could not be interpreted the same way. “Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here.”

On the causation issues the judge found the plaintiff had presented enough evidence that there could be an issue leading to punitive damages against the college.

Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.

Both defendants failed in their motion for summary judgment, and the decision was to allow the case to proceed to trial.

So Now What?

I have not been able to find the outcome of this case. Meaning it probably settled. The entire issue was the warning on the product; it was not clear; it was not visible, and it could not be seen in normal use.

If you manufacture products and your product poses a risk to the user, then you need to notify the consumer as often and as many were possible that you can. User manuals, hangtags, the container or bag the product is shipped in and on the product itself. It is also not enough that you can say the label or warning is there; the user must be able to see the warning……every time.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

Randall Duchesneau, Plaintiff, v. Cornell University, et al., Defendants.

CIVIL ACTION NO. 08-4856

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2012 U.S. Dist. LEXIS 106412

July 31, 2012, Decided

July 31, 2012, Filed

PRIOR HISTORY: Duchesneau v. Cornell Univ., 2011 U.S. Dist. LEXIS 135211 (E.D. Pa., Nov. 22, 2011)

CORE TERMS: warning, summary judgment, trampoline’s, assumption of risk, punitive damages, unaware, gymnasium, warn, partial, failure to warn, novice, user, assumed risk, inappropriate, punitive, flip, matter of law, warning label, recklessness, supervision, performing, gymnastic, enhanced, hazard, adduce, facie, causation, choice of law, applicable law, case of failure

COUNSEL:  [*1] For RANDALL DUCHESNEAU, Plaintiff: STEWART J. EISENBERG, LEAD ATTORNEY, DANIEL JECK, DANIEL JOSEPH SHERRY, JR., DINO PRIVITERA, KENNETH MICHAEL ROTHWEILER, EISENBERG, ROTHWEILER, WINKLER, EISENBERG & JECK, P.C., PHILADELPHIA, PA; MICHAEL CHOI, CHOI & ASSOCIATES, ELKINS PARK, PA.

For CORNELL UNIVERSITY, Defendant, Cross Claimant: RICHARD B. WICKERSHAM, JR., LEAD ATTORNEY, POST & SCHELL, P.C., PHILADELPHIA, PA; JOE H. TUCKER, JR., THE TUCKER LAW GROUP, ONE PENN CENTER AT SUBURBAN STATION, PHILADELPHIA, PA.

For TUMBLTRAK, Defendant, Cross Defendant: DANIEL J. MCCARTHY, SUSAN R. ENGLE, LEAD ATTORNEYS, MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS LLP, PHILADELPHIA, PA.

JUDGES: C. DARNELL JONES, II, UNITED STATES DISTRICT JUDGE.

OPINION BY: C. DARNELL JONES, II

OPINION

Jones, II, U.S.D.J.

MEMORANDUM

Before the Court is Defendant Tumbl Trak’s (“T-Trak”) Motion for Partial Summary Judgment (Docket No. 169); Cornell University’s Motion for Summary Judgment (Docket No. 171); Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172); and extensive briefing related thereto. 1

1 This matter has been crawling along, with a stunning amount of motion practice and briefing, for years now. The parties and  [*2] this Court are well aware of the tortured factual and procedural background of this case, and setting it forth at length again here would be a waste of judicial resources. Rather, I limit the discussion herein to specific facts as may be relevant to resolution of the Motion.

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, 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.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). To defeat a motion for summary judgment, disputes must be both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and (2) genuine, meaning the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which  [*3] that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. An issue is genuine if the fact finder could reasonably return a verdict in favor of the nonmoving party with respect to that issue. Anderson, 477 U.S. at 249. In reviewing a motion for summary judgment, the court does not make credibility determinations and “must view facts and inferences in the light most favorable to the party opposing the motion.” Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).

T-Trak’s Motion for Partial Summary Judgment

T-Trak seeks partial summary judgment on three bases: (1) Plaintiff cannot establish a prima facie case of failure to warn; (2) Plaintiff is not entitled to punitive damages; and (3) Plaintiff assumed the risk of serious injury when using the Tumbl Trak apparatus (“TTA”). I address these seriatim.

Failure to Warn

Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause  [*4] of the injury to plaintiff; and (4) the plaintiff suffered loss or damage. Humphrey v. Diamant Boart, Inc., 556 F. Supp. 2d 167, 179 (E.D.N.Y. 2008); McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997). The duty to warn can be breached by either “the complete absence of warnings as to a particular hazard,” or “the inclusion of warnings which are insufficient.” Johnson v. Johnson Chem. Co., 183 A.D.2d 64, 588 N.Y.S.2d 607, 610 (N.Y. App. Div. 1992). The adequacy of a warning is normally a question of fact to be determined at trial. Nagel v. Bros. Int’l Foods, Inc., 34 A.D.3d 545, 825 N.Y.S.2d 93, 95 (N.Y. App. Div. 2006).

2 On November 23, 2011, U.S. Magistrate Judge Lynne A. Sitarski analyzed choice of law inquiries in this case and determined New York law applies throughout. Additionally, no party disputes the application of New York law to the failure to warn and assumption of risk claims here. Accordingly, I apply New York law to those claims.

Plaintiff has the burden of proving that T-Trak’s failure to warn was a proximate cause of his injury. See Mulhall v. Hannafin, 45 A.D.3d 55, 841 N.Y.S.2d 282, 285 (N.Y. App. Div. 2007). This burden includes adducing proof that a user of the product at issue would have read and heeded  [*5] a warning had one been given. Sosna v. Am. Home Prods., 298 A.D.2d 158, 748 N.Y.S.2d 548, 549 (N.Y. App. Div. 2002). Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.” Humphrey, 556 F. Supp. 2d at 179-80 (citing Liriano v. Hobart Corp. (Liriano I), 92 N.Y.2d 232, 700 N.E.2d 303, 308, 677 N.Y.S.2d 764 (1998)).

T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” Def.’s Mot. Part. Summ. J. (hereinafter “Def.’s Br.”) 21. More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding [TTA].” Id. T-Trak relies on, inter alia, the following record evidence:

o “Plaintiff, educated in physics, knew that what goes up will come down.” Id. 22; see id. Ex. H, at 380-81.

o Plaintiff  [*6] signed a waiver that stated he understood the risks and dangers associated with gymnastics. Id. Ex. F.

o There was a small warning label on the TTA which stated that any activity “creates the possibility of catastrophic injury, including paralysis or even death from falling on the head or neck. Id. Ex. G.

o Plaintiff “was aware of the safety concept of spotting and had done it in high school as a member of the cheerleading squad.” Id. 23; see id. Ex. H, at 432.

 

Based on these facts, T-Trak contends that “common sense” would have informed an individual that he or she was risking landing on their head by using the TTA, and, as such, T-Trak had no legal duty to warn Plaintiff. Id. 24.

However, there are significant disputes of material fact as to which, if any, hazards associated with the TTA were open and obvious (i.e., could be objectively ascertained) by a similarly-situated novice gymnast. Notably, Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA,  [*7] not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. Pl.’s Resp. Def. T-Trak’s Mot. Part. Summ. J. (hereinafter “Pl.’s Resp. Br.”) Ex. D, at 8-9. Dr. Vigilante’s report clearly suggests there were conflicting messages as to (1) the dangers associated with particular uses of the TTA; (2) how novices should perform backflips off the TTA; and (3) what is the appropriate level of supervision for safety purposes while using the TTA. Dr. Vigilante’s view of the facts is obviously in conflict with that of T-Trak. Cf. Repka v. Arctic Cat, Inc., 20 A.D.3d 916, 798 N.Y.S.2d 629, 631 (N.Y. App. Div. 2005) (triable issue of fact concerning sufficiency of warnings raised through expert).

Apparently as a fallback position, T-Trak also asserts that because Plaintiff never sought to view the warnings prior to his accident, he cannot advance a failure to warn claim. However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.” Johnson, 588 N.Y.S.2d at 611.  [*8] This fact alone is insufficient to secure summary judgment. See Humphrey, 556 F. Supp. 2d at 180-81 (holding plaintiff’s admission that he did not read the warning label or operating instructions on equipment not dispositive under New York law in connection with failure to warn claim). Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. 3 Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter. 4 See Pl.’s Resp. Br. Ex. T.

3 This evidence is buttressed by the fact that T-Trak’s own warnings expert testified at his deposition that the warnings on the TTA were deficient, illegible, and violative of relevant industry standards pertaining to size. Pl.’s Resp. Br. Ex. S.

4 I do not find T-Trak’s argument that Plaintiff submitted a “sham affidavit” to be convincing.

In sum, this evidence of record establishes  [*9] sufficient material disputes of fact as to the level of awareness Plaintiff or any other objective, novice gymnast would have had concerning the danger of specific injuries while performing specific maneuvers on the TTA. Moreover, T-Trak has been unable to adduce undisputed evidence that Plaintiff would have disregarded a proper warning. Accordingly, summary judgment on the failure to warn claim is inappropriate.

Assumption of Risk

T-Trak contends it is entitled to summary judgment on Plaintiff’s negligence claim based on the principle of assumption of risk. 5 To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff. Martinez v Capital One, N.A.,     F. Supp. 2d    , 2012 U.S. Dist. LEXIS 42214, No. 10 Civ. 8028(RJS), 2012 WL 1027571, at *10 (S.D.N.Y. Mar. 27, 2012). Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 431 (S.D.N.Y. 1999); Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964, 967-68, 510 N.Y.S.2d 49 (1986). To establish  [*10] assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” Hedstrom, 76 F. Supp. 2d at 432 (citing Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490, 495 (N.Y. App. Div. 1993)). This determination depends in part on the openness and obviousness of the risk. Id.

5 This argument applies only to Plaintiff’s negligence claim, as New York law does not favor an assumption of risk defense to strict liability claims. Auto. Ins. Co. of Hartford v. Electrolux Home Prods., Inc., 2011 U.S. Dist. LEXIS 12652, 2011 WL 1434672, at *2 (W.D.N.Y. 2011).

Assumption of risk is frequently applied to claims arising out of participation in sporting events. See, e.g., Goodlett v. Kalishek, 223 F.3d 32, 34 (2d Cir. 2000) (airplane racing); Rochford v. Woodloch Pines, Inc., 824 F. Supp. 2d 343, 349-51 (E.D.N.Y. 2011) (golf); Ducrepin v. United States, 964 F. Supp. 659, 664-65 (E.D.N.Y. 1997) (basketball); Mc Duffie v. Watkins Glen Int’l, Inc., 833 F. Supp. 197, 201-02 (W.D.N.Y. 1993) (auto racing); Morgan v. State, 90 N.Y.2d 471, 481-82, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997) (bobsledding and karate, but not tennis where facility’s negligence in failing to repair torn net unduly increased  [*11] the risk); Benitez v. N.Y.C. Bd. of Educ., 73 N.Y.2d 650, 541 N.E.2d 29, 33-34, 543 N.Y.S.2d 29 (1989) (football); Joseph v. N.Y. Racing Ass’n, 28 A.D.3d 105, 809 N.Y.S.2d 526, 529 (N.Y. App. Div. 2006) (horseback riding); Hawley v. Binghamton Mets Baseball Club Inc., 262 A.D.2d 729, 691 N.Y.S.2d 626, 627-28 (N.Y. App. Div. 1999) (baseball). It has even been applied in some (but not all) cases involving jumping on a trampoline. 6 However these cases have a unifying theme — clear risks that were known yet disregarded by the plaintiff, with no negligence by the defendant that enhanced the risk. In cases where the plaintiff was unaware of the risk, or where the defendant’s negligence amplified the risk, summary judgment has not been granted. See, e.g., Clarke v. Peek ‘N Peak Recreation, Inc., 551 F. Supp. 2d 159, 163 (W.D.N.Y. 2008) (ski resort owner’s alleged negligence may have enhanced assumed risk); Hedstrom, 76 F. Supp. 2d at 435-36 (beginning trampoline user unaware and not sufficiently warned of risks); Repka, 798 N.Y.S.2d at 632-33 (assumed risk unduly increased by use of defective snowmobile without adequate warnings); Kroll, 764 N.Y.S.2d at 731 (plaintiff unaware of risk of trampoline’s defect). T-Trak argues vociferously that “Plaintiff  [*12] should have been aware of the risk of injury.” Def.’s Br. 31 (emphasis added). While it is true that Plaintiff had some experience with cheerleading and gymnastics, there is evidence he was a novice nonetheless. Additionally, as discussed supra, there is direct testimony that Plaintiff did not view any warnings and thus was not made explicitly aware of the contents thereof. There is further, disputed testimony as to the reasons why Plaintiff was unaware of the warnings, including evidence that the warnings were patently insufficient and no participant saw or became aware of their contents that day. The survey of trampoline cases herein makes it clear that the use of a trampoline has not been deemed inherently risky as a matter of New York law. All of these relevant disputes — namely, as to Plaintiff’s expertise, knowledge, the sufficiency and quality of the warnings, and the obvious nature of the risk to a casual user of the TTA — preclude this Court from absolving T-Trak on the grounds of assumption of risk. T-Trak’s duty to Plaintiff, if any, is properly an issue for trial.

6 Application of assumption of risk is a fact-specific endeavor, including in trampoline cases, which tend to  [*13] be decided depending on whether the plaintiff was aware of and appreciated the risk in using the trampoline. A plaintiff may prevail where he adduces evidence that he was unaware of the risk of using a trampoline and that he used the trampoline in an ordinary fashion. See, e.g., Hedstrom, 76 F. Supp. 2d at 427, 435 (finding no assumption of risk where plaintiff was a total beginner who did not see warning label and who used trampoline in a “fairly typical manner”); Kroll v. Watt, 309 A.D.2d 1265, 764 N.Y.S.2d 731, 731 (N.Y. App. Div. 2000) (affirming denial of summary judgment on assumption of risk where plaintiff’s awareness of risk of trampoline tipping over and thus causing plaintiff’s injury was a triable issue of fact). On the other hand, assumption of risk applies where the risk of the activity is inherent or where the injured party fully understands, appreciates, and voluntarily assumes the risk through participation. Goodlett, 223 F.3d at 36-37. New York courts have barred the recovery of plaintiffs injured while jumping on a trampoline where the plaintiff was aware of the risk or performed a particularly risky maneuver. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006)  [*14] (affirming application of assumption of risk where plaintiff failed to provide evidence that he was unaware of risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (2005) (finding assumption of risk where plaintiff was aware and appreciative of risk of using trampoline and used it nonetheless); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 728 (N.Y. App. Div. 1998) (holding assumption of risk applicable where plaintiff ignored sign warning against use of trampoline by two or more participants at the same time and then engaged in such activity).

Punitive Damages

U.S. Magistrate Judge Lynne A. Sitarski thoroughly and cogently examined choice of law issues in this case in deciding Defendant Cornell University’s Motion to Establish Applicable Law. See Duchesneau v. Cornell Univ., No. 08-4856, 2011, 2011 U.S. Dist. LEXIS 135211, WL 5902155, at *1 (E.D. Pa. Nov. 23, 2011) (order granting applicable law). T-Trak did not participate in the Motion to Establish Applicable Law. Rather, T-Trak asserts in the instant Motion that, while New York law is almost universally applicable in this case, Michigan law operates to bar recovery of punitive damages. In short, T-Trak contends that because it is domiciled  [*15] in Michigan and the alleged punitive conduct (design and labeling of the product) occurred in Michigan, Michigan law should apply to Plaintiff’s claim for punitive damages. Unsurprisingly, Michigan law bars punitive damage awards unless expressly authorized by statute, which is not the case here. See Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 685 N.W.2d 391, 400 (2004). Plaintiff maintains that New York law properly governs all aspects of this matter, including his punitive damages claim. New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton v. Brown & Williamson Holdings, Inc., 498 F. Supp. 2d 639, 653 (S.D.N.Y. 2007).

Judge Sitarski aptly laid out the applicable conflicts of law framework and conducted a thorough analysis of asserted interests, and this Court need not repeat the legal discussion at length here. Judge Sitarski concluded that New York law applied to Plaintiff’s claims against Cornell, including with regard to punitive damages and contributory negligence. I reach the same conclusion as to T-Trak for substantially the same reasons. Here, T-Trak knew the TTA was to be delivered and used in New York, and, indeed,  [*16] the TTA was used continuously in New York for many years prior to the accident. Generally speaking, courts applying the Pennsylvania choice of law contacts analysis to product liability matters have applied the law of the state where the product was used and where the accident occurred. Shields v. Consol. Rail Corp., 810 F.2d 397, 399-400 (3d Cir. 1987); U.S. Airways, Inc. v. Elliott Equip. Co., Inc., 2008 U.S. Dist. LEXIS 76043, 2008 WL 4461847 (E.D. Pa. Sept. 29, 2008). Plaintiff’s accident was non-fortuitous, and therefore great deference is given to New York as to the law which should apply. LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069 (3d Cir. 1996).

Under the contacts analysis, New York has many compelling interests here: (1) the TTA is located in New York; (2) the accident occurred in New York; (3) Cornell contracted to purchase the TTA in New York; (4) Plaintiff was a student in New York; (5) Plaintiff, although a Pennsylvania resident, received treatment for his injuries in New York; and (6) the key Waiver Agreement in this case governs activities in New York and has its validity determined by New York law. The contacts with Michigan are markedly less. T-Trak’s headquarters is in Michigan. Some design and  [*17] testing of the TTA took place in Michigan. However, the TTA and its warnings were designed by a Washington resident, and the component parts of the TTA were manufactured in multiple states other than Michigan (including the pads which containing the warnings). The actual T-Trak dealer who negotiated the New York contract of sale for the TTA with Cornell was based in Georgia. Finally, the TTA was assembled in New York by Cornell from constituent pieces delivered from various locations. 7

7 These circumstances are readily distinguishable from those in Kelly v. Ford Motor Co., 933 F. Supp. 465 (E.D. Pa. 1996), upon which T-Trak heavily relies. In Kelly, much of the design, testing, assembly, and warning label placement occurred in various Michigan locales under the close coordination of Ford. As mentioned above, T-Trak did not even manufacture or assembly any parts of the TTA in Michigan. Kelly is not persuasive.

Accordingly, I conclude New York law applies to the question of punitive damages against T-Trak. Upon review of the record, I find Plaintiff has adduced sufficient evidence to allow the claim for punitive damages to proceed.

Cornell’s Motion for Partial Summary Judgment on Punitive [*18] Damages

Cornell claims that Plaintiff has failed to adduce any evidence that could justify punitive damages under New York law. Plaintiff responds that “Cornell’s relevant conduct is textbook-appropriate” in terms of punitive damages for multiple reasons: (1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.” See Pl.’s Resp. Opp’n Def. Cornell’s Mot. Summ. J. Punit. Damages 2-3.

As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton, 498 F. Supp. 2d at 653. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct  [*19] constitutes willful or wanton negligence or recklessness.” Buckholz v. Maple Garden Apts., LLC, 38 A.D.3d 584, 832 N.Y.S.2d 255, 256 (N.Y. App. Div. 2007); see also Mahar v. U.S. Xpress Enters., 688 F. Supp. 2d 95, 110 (N.D.N.Y. 2010) (allowing punitive damages in rare cases of egregious and willful conduct that is morally culpable); Black v. George Weston Bakeries, Inc., No. 07-CV-853S, 2008, 2008 U.S. Dist. LEXIS 92031, WL 4911791, at *7 (W.D.N.Y. Nov. 13, 2008) (permitting punitive damages where conduct constitutes conscious disregard of others); Bohannon (ex rel. Estate of Dolik) v. Action Carting Envtl. Servs., Inc., No. 06-CV-5689 (JG), 2008 U.S. Dist. LEXIS 40516, 2008 WL 2106143, at *3 (E.D.N.Y. May 20, 2008) (recognizing utter indifference to the safety of others warrants granting punitive damages).

Upon review of the record, I concur with Plaintiff that there is more than enough evidence to allow Plaintiff’s punitive damages claim to proceed. There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would  [*20] amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.

III. Cornell’s Motion for Summary Judgment

Cornell moves for summary judgment on two bases: (1) Plaintiff assumed the risk of using the TTA and Cornell had no duty to supervise the use of gymnastic equipment by novices, and (2) there is no evidence as to causation concerning Cornell. There are so many material disputes of fact between Plaintiff and Cornell that a lengthy explication of them would be a waste of resources. Suffice it to say that, despite occasional rhetoric to the contrary, Plaintiff and Cornell disagree about nearly every major fact or opinion of record that relates to the issues raised in the Motion. 8 Specific to assumption of risk (discussed supra), there are considerable disputes over whether Plaintiff knew or appreciated the risks of the TTA. Cornell’s  [*21] assertions to the contrary appear to be mostly self-serving statements. Because Plaintiff has adduced plentiful evidence (testimony, admissions, experts) in support of the position that he was not aware of the relevant risk and could not be expected to be aware of that risk, summary judgment is obviously inappropriate. 9

8 These two parties have repeatedly filed briefs of excessive length (50-100 pages each), including unnecessary bolded or italicized text for emphasis, in which they highlight disputes of fact ad infinitum.

9 This conclusion is buttressed by the fact that, as discussed supra, there are even disputes of material fact as to whether (1) the risk of harm was obvious, open, or hidden, and (2) the risk of harm was enhanced by Cornell’s own actions.

Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006) (finding experienced gymnast with six years of instruction assumed known risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (N.Y. App. Div. 2005) (holding plaintiff assumed risk of using trampoline where she failed to  [*22] adduce evidence that she was unaware of the potential for injury); Palozzi v. Priest, 280 A.D.2d 986, 720 N.Y.S.2d 676, 676 (N.Y. App. Div. 2001) (affirming application of assumption of risk to teenager injured while “fake wrestling” on trampoline); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 729 (N.Y. App. Div. 1998) (noting plaintiff assumed risk of “double jumping” despite warnings on trampoline that were deemed adequate as a matter of law); Williams v. Lombardini, 38 Misc. 2d 146, 238 N.Y.S.2d 63, 64-65 (N.Y. Sup. Ct. 1963) (determining plaintiff assumed risk where he admitted seeing rule that prohibited “difficult tricks” but attempted front flip on trampoline anyway). As discussed supra, summary judgment based on assumption of risk is inappropriate where there is a question as to appreciation or understanding of risk. 10 See Hedstrom, 76 F. Supp. 2d at 435-36 (recognizing no assumption of risk by beginning trampoline user who was unaware and not sufficiently warned of risks); Kroll, 764 N.Y.S.2d at 731 (deciding plaintiff did not assume risk because she was unaware of trampoline’s defect). Application of assumption of risk at summary judgment is especially inappropriate here because New York law disfavors using the  [*23] doctrine in cases where there are allegations of reckless or intentional conduct, or concealed or unreasonably increased risks. 11 Morgan, 90 N.Y.2d at 485; see, e.g., Charles v. Uniondale Sch. Dist. Bd. of Educ., 91 A.D.3d 805, 937 N.Y.S.2d 275, 276-77 (N.Y. App. Div. 2012) (denying summary judgment where issues of fact existed as to whether defendant unreasonably increased risk by failing to provide head and face protection to plaintiff lacrosse player); Miller v. Holiday Valley, Inc., 85 A.D.3d 1706, 925 N.Y.S.2d 785, 788 (N.Y. App. Div. 2011) (rejecting summary judgment because plaintiff submitted evidence that defendant’s negligent failure to stop ski lift caused plaintiff’s injuries); Repka, 798 N.Y.S.2d at 632-33 (dismissing summary judgment motion because lack of adequate warnings may have unduly enhanced snowmobile’s concealed defect). In short, I do not find that Cornell is entitled to judgment as a matter of law based on the assumption of risk doctrine.

10 Cornell argues that the warning notice on the TTA itself establishes total assumption of risk. However, a vast portion of the evidence in this case (almost all of it disputed) is about whether the TTA’s warnings were seen, sufficient, or effective. In  [*24] other words, Cornell relies on a highly disputed factual conclusion concerning the adequacy of the warning to justify summary judgment on assumption of risk grounds. This Court cannot follow.

11 I am completely unpersuaded by Cornell’s argument concerning its total lack of a duty of care to a novice student using equipment in the Teagle Gymnasium. N.Y. Gen. Oblig. Law § 5-326 (McKinney 1976) (voiding gymnasium waivers); Eddy v. Syracuse Univ., 78 A.D.2d 989, 433 N.Y.S.2d 923 (App. Div. 1980) (concluding questions of negligence, foreseeability of injury, and duty to protect gym users are all proper issues for a jury); Lorenzo v. Monroe Comm. Coll., 72 A.D.2d 945, 422 N.Y.S.2d 230 (1979) (finding questions of fact existed as to whether defendant provided adequate supervision in gymnasium). Much of Cornell’s arguments are bootstrapped onto a conclusion of assumption of risk — i.e., because a student assumed the risk, the defendant college owes no duty with respect to the dangers inherent in the activity. As discussed, this Court cannot conclude at this stage that there was any assumption of risk. In addition, this Court will not revisit its previous rulings as to the issue of the prior academic year waiver despite Cornell’s  [*25] apparent invitation.

Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). 12 Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.

12 Cornell spends considerable time “debunking” these experts in briefs, often by reference to the testimony of others. By doing so, Cornell highlights some of the very disputes that preclude summary judgment.

Conclusion

Tumbl Trak maintains that Plaintiff cannot prove it inadequately warned him against use of its product.  [*26] Cornell suggests that this case involves nothing more than a “luckless accident” that resulted from Plaintiff’s voluntary participation in vigorous athletic activity. Plaintiff disagrees. He believes that he was harmed by (1) a device with grossly inadequate warnings, and (2) an institution which engaged in a course of conduct of gymnasium operation and supervision which was reprehensible and reckless. Based on the record before me, Plaintiff is entitled to put these questions to a jury.

An appropriate Order follows.

ORDER

AND NOW, this 31st day of July, 2012, it is hereby ORDERED that:

  1. Defendant Tumbl Trak’s Motion for Partial Summary Judgment (Docket No. 169) is DENIED.
  2. Cornell University’s Motion for Summary Judgment (Docket No. 171) is DENIED.
  3. Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172) is DENIED.
  4. The Case Management Order dated April 20, 2012 remains in force.

In addition, this Court has briefly reviewed the initial pre-trial filings in this matter and noticed that they do not conform with the Chambers Policies and Procedures, available at http://www.paed.uscourts.gov. The rules contained therein are not optional, and are to be followed  [*27] to the letter. No party has ever represented to this Court that they cannot work with their colleagues to fulfill their responsibilities under these procedures. Here, it appears the parties have, at least, failed to properly prepare their joint proposed jury instructions and joint proposed voir dire. Instead, three different versions of each document were separately filed by three different parties — a situation that the Chambers Policies obviously sought to preclude. The parties are specifically directed to review the Chambers Policies and Procedures, Civil Cases, Subsection E, which provide two pages of instructions as to the proper preparation and presentation of these and other pre-trial submissions. 13 It is ORDERED that the parties promptly withdraw any non-conforming filings and submit appropriately-prepared ones by August 31, 2012.

13 Parties are expected to be familiar with all Policies and Procedures by the time of the final pre-trial conference, especially the items concerning exhibits, courtroom operation, and attorney conduct during a trial.

BY THE COURT:

/s/ C. Darnell Jones, II

  1. DARNELL JONES, II, U.S.D.J.

 


It is not a perfect world and perfection is not required of camp counselors in New York.

The camp counselor’s reaction when a large camper jumped on his back was not negligence. The injury the plaintiff received was from his own actions, not from the horseplay of others.

Gibbud et al., v Camp Shane, Inc., 30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

State: New York, Supreme Court of New York, Appellate Division, Third Department

Plaintiff: Benjamin W. Gibbud, an Infant, by Melissa H. Gibbud, His Parent, et al.,

Defendant: Camp Shane, Inc.

Plaintiff Claims: Negligence and Negligent Supervision

Defendant Defenses: No negligence

Holding: For the defendant

Year: 2006

This is a simple case. When a large, almost as large as the counselor, camper jumps on the counselor’s back, the counselor’s reaction as long as not overly violent or extreme, is not negligence.

In this case it was raining and the counselor and campers were in their cabin. The campers were baiting one another and one camper who was only 20 pounds lighter than the 335 counselor and one inch taller jumped on the counselor’s back. The counselor shrugged him off and either the camper hit the ground breaking his ankle or broke his ankle when the counselor shoved the camper.

The camper and his mother sued. The trial court granted the defendant summary judgment and the plaintiff’s appealed.

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

The court set out the various New York Laws affecting this case. New York law states the duty of care owed children by persons supervising them is one “is that which a reasonably prudent parent would observe under comparable circumstances.”

Horseplay is always found around groups of kids and is associated with camps. Horseplay is “only to be discouraged when it becomes dangerous.”

Moreover, a parent, teacher or other person entrusted [*867]  with the care or supervision of a child may use such physical force as he or she reasonably believes to be necessary to maintain control and discipline

Moreover the court found the horse play which preceded the event giving rise to the injury of the plaintiff had nothing to do with the plaintiff getting injured. Horseplay was not the cause of the plaintiff’s injury. The case of the plaintiff’s injury was the plaintiff jumping on the back of the counselor, “it was the manner in which he did so, his own impulsive and reckless act of grabbing Wendorf [the counselor] from behind, that led to his injury.”

Given that Wendorf did not know who had suddenly jumped on his back, his reaction to being blindsided and having his arms pinned to his sides in a bear hug by the physically imposing plaintiff raises no issue of his inappropriate or unreasonable use of force.

The court found there was no duty or breach of duty and also found that the injury was not a result of any alleged breach of duty. Three of the four requirements to prove negligence were not met. The decision of the trial court was upheld.

So Now What?

It is also nice to see a case where common sense is obvious in the reasoning of the case. Kids will be kids and whenever there is a group of kids, there will be fooling around. Until the kidding and horse play get dangerous, there is no duty in New York to stop it.

On top of that, when you participate in horse play and get hurt, you can’t blame anyone but yourself.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Gibbud et al., v Camp Shane, Inc., 30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

Gibbud et al., v Camp Shane, Inc., 30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

Benjamin W. Gibbud, an Infant, by Melissa H. Gibbud, His Parent, et al., Appellants, v Camp Shane, Inc., Respondent.

99126

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

June 22, 2006, Decided

June 22, 2006, Entered

Mercure, J.P., Peters, Spain and Kane, JJ., concur. Ordered that the order and judgment are affirmed, with costs.

COUNSEL: Keegan, Keegan & Strutt, L.L.P., White Plains (Barry R. Strutt of counsel), for appellants.

Gordon & Silber, P.C., New York City (Andrew B. Kaufman of counsel), for respondent.

JUDGES: Before: Mercure, J.P., Peters, Spain, Rose and Kane, JJ. Mercure, J.P., Peters, Spain and Kane, JJ., concur.

OPINION BY: Rose

OPINION

[*865] [**436] Rose, J. Appeals (1) from an order of the Supreme Court (Clemente, J.), entered March 9, 2005 in Sullivan County, which granted defendant’s motion for summary judgment dismissing the complaint, and (2) from the judgment entered thereon.

[*866] After being told that he and his bunkmates could “sleep in” one rainy morning at defendant’s summer camp, 15-year-old plaintiff Benjamin W. Gibbud (hereinafter plaintiff) fractured his right ankle when he attempted to engage in horseplay in his cabin by jumping on his counselor’s back. Alleging negligent supervision, plaintiff and his mother commenced this action against defendant. When defendant moved [***2] for summary dismissal of the complaint, Supreme Court granted the motion, finding, among other things, that defendant’s counselor was not shown to have been negligent. Plaintiffs appeal, and we affirm.

At the time of the incident, plaintiff was 6 feet 3 inches and weighed 302 pounds. Alex Wendorf, plaintiff’s cabin counselor, was 21 years old, 6 feet 2 inches and weighed 335 pounds. When another camper, Noah Zilberstein, tried to goad Wendorf into a wrestling match by snapping a rat-tailed bath towel at him, Wendorf grabbed the towel out of Zilberstein’s hand. In his deposition, plaintiff described the encounter between Wendorf and Zilberstein as “just horsing around,” which he later explained as “pushing back and forth” or “trying to grab each other.” Zilberstein then tried to induce the other campers in the cabin to join in and “get” Wendorf. Out of a dozen or so campers, [**437] plaintiff was the only one who responded. Approaching Wendorf from behind, he jumped on Wendorf’s back and grabbed him in a bear hug, pinning Wendorf’s arms to his sides. Wendorf immediately raised his arms, shrugging plaintiff off, and pivoted to see who it was. According to Wendorf and Zilberstein, [***3] plaintiff slid off Wendorf’s back and fell to the floor. Plaintiff’s own account is that Wendorf turned, grabbed him and “started to force [him] down to the ground.” In either event, plaintiff’s foot struck the floor in such a way as to fracture his ankle.

Plaintiffs contend that Supreme Court improperly discredited plaintiff’s account in finding no questions of fact as to whether Wendorf had acted negligently immediately before and after plaintiff jumped on his back. We disagree. [HN1] While the duty of care owed by persons supervising children in a summer camp setting is that which a reasonably prudent parent would observe under comparable circumstances (see Douglas v John Hus Moravian Church of Brooklyn, Inc., 8 AD3d 327, 328, 778 NYS2d 77 [2004]; Gustin v Association of Camps Farthest Out, 267 AD2d 1001, 1002, 700 NYS2d 327 [1999]), “[a] certain amount of horseplay is almost always to be found in gatherings of young people, and is generally associated with children’s camps. It is only to be discouraged when it becomes dangerous” (Kosok v Young Men’s Christian Assn. of Greater N.Y., 24 AD2d 113, 115, 264 NYS2d 123 [1965], affd 19 NY2d 935, 228 NE2d 398, 281 NYS2d 341 [1967]). [***4] Moreover, [HN2] a parent, teacher or other person entrusted [*867] with the care or supervision of a child may use such physical force as he or she reasonably believes to be necessary to maintain control and discipline (see Sindle v New York City Tr. Auth., 33 NY2d 293, 297, 307 NE2d 245, 352 NYS2d 183 [1973]; Matter of Collin H., 28 AD3d 806, 28 AD3d 806, 812 NYS2d 702 [2006]; see also Restatement [Second] of Torts § 147).

Viewing the record in a light most favorable to plaintiffs and accepting plaintiff’s account, we find no factual basis to conclude that Wendorf’s responses to either Zilberstein’s rat-tailing or having been set upon from behind by plaintiff were negligent. Despite plaintiffs’ argument to the contrary, the admissible evidence fails to show that Wendorf’s efforts to quell horseplay by Zilberstein were negligent. In any event, that conduct was not the proximate cause of plaintiff’s injury. While Zilberstein’s interaction with Wendorf may have furnished the occasion for plaintiff to decide to leave his bunk and join in, it was the manner in which he did so, his own impulsive and reckless act of grabbing Wendorf from behind, that led to his [***5] injury (see Lee v New York City Hous. Auth., 25 AD3d 214, 219, 803 NYS2d 538 [2005], lv denied 6 NY3d 708, 812 NYS2d 443, 845 NE2d 1274 [2006]; Loder v Greco, 5 AD3d 978, 979, 774 NYS2d 231 [2004]; Ascher v Scarsdale School Dist., 267 AD2d 339, 339, 700 NYS2d 210 [1999]. Given that Wendorf did not know who had suddenly jumped on his back, his reaction to being blindsided and having his arms pinned to his sides in a bear hug by the physically imposing plaintiff raises no issue of his inappropriate or unreasonable use of force. By plaintiff’s own account, Wendorf merely turned, grabbed him and pushed him down. Under these circumstances, we can draw no inference of negligence (compare Gonzalez v City of New York, 286 AD2d 706, 707-708, 730 NYS2d 154 [2001]).

Mercure, J.P., Peters, Spain and Kane, JJ., concur. ORDERED that the order and judgment are affirmed, with costs.


Release and assumption of the risk are both used to defeat a para-athlete’s claims when she collided with a runner on the cycling portion of the course

A good procedure for tracking releases and bibs help prove the plaintiff had signed the release when she denied that fact in her claims.

Hines v. City of New York, Korff Enterprises, Inc., 2016 N.Y. Misc. LEXIS 1015; 2016 NY Slip Op 30504(U)

State: New York, Supreme Court of New York, New York County

Plaintiff: SUPREME COURT OF NEW YORK, NEW YORK COUNTY

Defendant: City of New York, Korff Enterprises, Inc., and Central Park Conservancy

Plaintiff Claims: negligently permitted and/or allowed a non-participant jogger to enter upon the race course and violently collide with Hines.

Defendant Defenses: Release

Holding: For the Defendant

Year: 2016

This was a simple case where a triathlon course was closed, but a jogger ran into a cyclist. However, there was one quirk. The cyclist was para-athlete riding a push-rim racer.

Hines, an experienced para-athlete, claims she was injured during the running portion of the triathlon when she was operating a push-rim racer and was struck by an alleged non-participant jogger. The accident occurred in Central Park at or around West 100th Street and West Drive.

Although the rights of a para-athlete are identical to those of any other athlete, it is interesting to see if either side used the issue legally to their advantage. Neither did.

The plaintiff sued for her injuries.

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

The court first looked at how releases are viewed under New York law. New York has a statute voiding releases if those places using them are places of amusement charging for admission. See New York Law Restricting the Use of Releases.

§ 5-326.  Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

However, the court found since this was a race it was not an admission fee but a participation fee; the statute did not apply.

Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable where not expressly prohibited by law Language relieving one from liability must be unmistakable and easily understood. The waiver at issue here clearly and unequivocally ex-presses the intention of the parties to relieve defendants of liability for their own negligence and because the entry fee paid by Hines was for her participation in the triathlon, not an admission fee allowing her to use the public park and roadway where her accident allegedly occurred, the waiver does not violate General Obligations Law § 5-326

The next issue was the plaintiff claimed that she did not sign the release. However, the husband under oath testified that the release could have been his wife’s. “George Hines, who as a party to the action is an interested witness, testified that he believed the signature on the waiver was Hines’.”

In addition, the procedures at the beginning of the race required a racer’s signature. A racer did not get a bib until they had signed the release and proving their identify.

Moreover, as defendants point out, athletes could not participate in the triathlon without signing the waiver in person and presenting photographic identification at a pre-race expo and Hines was seen by non-party witness Kathleen Bateman of Achilles International, Inc. at the expo waiting in line with her handlers to pick up her race bib.

Whether the identification and procedures are in place to prevent fraud in case of an accident and subsequent suit or to prevent fraud among the racers is not clear.

The plaintiff also claimed the defendant was negligent in their cone placement and location of race marshals. She argued the cones should have been placed closer together.

On this claim, the court argued the plaintiff had assumed the risk by racing.

Moreover, the primary assumption of the risk doctrine provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” and it is “not necessary to the application of [the doctrine] that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as the he or she is aware of the potential for injury of the mechanism from which the injury results”

The application of the doctrine of assumption of risk is to be applied based upon the background, skill and experience of the plaintiff. In this case, the plaintiff had considerable experience racing in triathlons.

Awareness of risk, including risks created by less than optimal “is not to be determined in a vacuum” but, rather, “against the background of the skill and experience of the particular plaintiff”. Hines is a highly decorated and highly experienced para-athlete who participated in dozens races over her career, many of which took place in Central Park. Hines’ testimony that other race courses in Central Park were set up differently and delineated with cones and marshals differently than the way in which defendants allegedly set up the triathlon course establishes that Hines was aware that collisions with non-participants were an inherent risk in participating in a triathlon in Central Park.

Because the plaintiff was experienced in racing in triathlons and signed a release her claims were barred.

So Now What?

This case resolved around whether or not the defendant could prove the plaintiff had signed a release, when denied she had signed it. By having procedures set that proved who the person was and not allowing the person to receive a bib, and consequently, race, until a release had been signed was pivotal.

On top of that when a party to the suit, in this case the husband admitted the signature could have been the plaintiffs the court took that statement as an admittance against interest. The husband was a litigant because he was claiming damages as a spouse. A spouse’s claim, as in this case are derivative of the other spaces main claims. That means the plaintiff spouse must prove her claims or the derivative claims also fail.

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Hines v. City of New York, Korff Enterprises, Inc., 2016 N.Y. Misc. LEXIS 1015; 2016 NY Slip Op 30504(U)

Hines v. City of New York, Korff Enterprises, Inc., 2016 N.Y. Misc. LEXIS 1015; 2016 NY Slip Op 30504(U)

[**1] Helene Hines and George Hines, Plaintiffs, -against- City of New York, Korff Enterprises, Inc., and Central Park Conservancy, Defendants. Index No. 151542-2012

151542-2012

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2016 N.Y. Misc. LEXIS 1015; 2016 NY Slip Op 30504(U)

March 24, 2016, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: triathlon, cones, marshal, issues of fact, non-participant, collision, summary judgment, participating, placement, signature, triable, expert’s opinion, prima facie, enforceable, admissible, proponent, sport, feet, matter of law, personal injuries, party opposing, causes of action, grossly negligent, intentional wrongdoing, inherent risk, unanticipated, collectively, para-athlete, experienced, entitlement

JUDGES: [*1] HON. GEORGE J. SILVER, J.S.C.

OPINION

DECISION/ORDER

HON. GEORGE J. SILVER, J.S.C.

In this action to recover for personal injuries allegedly sustained by plaintiff Helene Hines (Hines) in the 2011 Nautical New York City Triathlon (triathlon) defendants City of New York, Korpff Enterprises, Inc. and Central Park Conservancy (collectively defendants) move pursuant to CPLR § 3212 for an order granting them summary judgment dismissing the complaint. Hines and her husband, plaintiff George Hines (collectively plaintiffs), who asserts a derivative claim, oppose the motion.

Hines, an experienced para-athlete, claims she was injured during the running portion of the triathlon when she was operating a push-rim racer and was struck by an alleged non-participant jogger. The accident occurred in Central Park at or around West 100th Street and West Drive. The bill of particulars alleges that the defendants were negligent in the ownership, operation, management, maintenance, control and supervision of the incident location in that defendants negligently permitted and/or allowed a non-participant jogger to enter upon the race course and violently collide with Hines. Prior to the triathlon, all participants were required [*2] to sign a liability waiver in person before receiving their race packet and race bibs. Defendants argue that Hines signed the waiver and by doing so expressly assumed the risk of a collision. The waiver, entitled “Event Registration, Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement”, states:

[**2] I HEREBY ACKNOWLEDGE AND ASSUME ALL OF THE RISKS OF PARTICIPATING IN THIS EVENT. . . . I also assume any and all other risks associated with participating in this Event, including but not limited to the following: falls, dangers of collisions with vehicles, pedestrians, other participants and fixed objects; the dangers arising from surface hazards, tides, equipment failure, inadequate safety equipment; and hazard that may be posed by spectators or volunteers; and weather conditions. I further acknowledge that these risks include risks that may be the result of ordinary negligent acts, omissions, and/or carelessness of the Released Parties, as defined herein. I understand that I will be participating in the Event at my own risk, that I am responsible for the risk of participation in the Event.

The waiver further states:

I WAIVE, RELEASE AND FOREVER DISCHARGE Event Producer, [*3] World Triathlon Corporation, the Race Director, USA Triathlon . . . the City of New York, Event sponsors, Event Organizers, Event promoters, Event producers, race directors . . . all other persons or entities involved with the Event, and all state, city, town, county, and other governmental bodies, and/or municipal agencies whose property and/or personnel are used and/or in any way assist in locations in which the Event or segments of the Event take place . . . from any and all claims, liabilities of every kind, demands, damages . . . , losses . . . and causes of action, of any kind or any nature, which I have or may have in future . . . that may arise out of, result from, or relate to my participation in the Event . . . including my death, personal injury, partial or permanent disability, negligence, property damage and damages of any kind, . . . even if any of such claims Claims are caused by the ordinary negligent acts, omissions, or the carelessness of the Released Parties.

Hines denies signing the waiver and argues in the alternative that the waiver violates General Obligations Law § 5-326 because she paid a fee to participate in the triathlon. Hines also contends that defendants created and enhanced an unanticipated [*4] risk within the running portion of the triathlon by inappropriately situating cones and improperly stationing marshals in the area of her accident. Hines argues that she expected, based upon her past triathlon experience, that cones would be separated 20 feet apart and that marshals would be readily apparent within the areas between the cones. Instead, plaintiff claims the cones were separated 70 feet apart and there were no marshals present in the area where her accident occurred. Hines contends that defendants, through there setup of the race course, heightened the risk of non-participants interfering with the race and that she did not assume such heightened risks when she entered the triathlon. According to Hines’ athletic administration and safety management expert, [**3] the placement of cones 70 feet apart limited the sight lines of bystanders walking toward the race and increased the probability of confusion and misapprehension. Hines’ expert also contends that on a race course that traverses a highly populated area marshals must be easily seen and heard on the course. According to Hines’ expert, defendants’ failure to properly delineate the race course with appropriately spaced [*5] cones and to properly position marshals between the cones were deviations from accepted sports safety practices which proximately caused Hines’ accident.

To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor (CPLR § 3212 [b]; Bendik v Dybowski, 227 AD2d 228, 642 N.Y.S.2d 284 [1st Dept 1996]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law by advancing sufficient “evidentiary proof in admissible form” to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 NE2d 642, 487 NYS2d 316 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562, 404 NE2d 718, 427 NYS2d 595 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 N.Y.S.2d 386 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751 N.Y.S.2d 433 [1st Dept 2002]). Thus, the motion must be supported “by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions” (CPLR § 3212 [b]).

To defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR § 3212 [b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable [*6] excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717, 497 NE2d 680, 506 NYS2d 313 [1986]; Zuckerman, 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 N.Y.S.2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman, 49 NY2d at 562). The opponent “must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist” and “the issue must be shown to be real, not feigned, since a sham or frivolous issue will not preclude summary relief” (Kornfeld v NRX Technologies, Inc., 93 AD2d 772, 461 N.Y.S.2d 342 [1st Dept 1983], affd, 62 NY2d 686, 465 NE2d 30, 476 NYS2d 523 [1984]). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v Stewart M Muller Constr. Co., 46 NY2d 276, 281-82, 385 NE2d 1238, 413 NYS2d 309 [1978]; Fried v Bower & Gardner, 46 NY2d 765, 767, 386 NE2d 258, 413 NYS2d 650 [1978]; Plantamura v Penske Truck Leasing, Inc., 246 AD2d 347, 668 N.Y.S.2d 157 [1st Dept 1998]). Summary judgment is a drastic remedy that should only be employed where no doubt exists as to the absence of triable issues (Leighton v Leighton, 46 AD3d 264, 847 N.Y.S.2d 64 [1st Dept 2007]). The key to such procedure is issue-finding, rather than issue-determination (id.).

Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable where not expressly prohibited by law (Gross v Sweet, 49 NY2d 102, 105, 400 NE2d 306, 424 NYS2d 365 [1979]). Language relieving one from liability must be unmistakable and easily understood. (id. at 107). The waiver at issue here clearly and [**4] unequivocally expresses the intention of the parties to relieve defendants of liability for their own negligence (Schwartz v Martin, 82 AD3d 1201, 919 N.Y.S.2d 217 [2d Dept 2011]) and [*7] because the entry fee paid by Hines was for her participation in the triathlon, not an admission fee allowing her to use the public park and roadway where her accident allegedly occurred, the waiver does not violate General Obligations Law § 5-326 (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 N.Y.S.2d 348 [2d Dept 2008]).

With respect to the signature on the waiver, while the opinion of defendants’ forensic expert is inadmissible, an expert’s opinion is not required to establish that the signature on the waiver is Hines’ (see John Deere Ins. Co. v GBE/Alasia Corp., 57 AD3d 620, 869 N.Y.S.2d 198 [2d Dept 2008] [defendant failed to submit an affidavit of a handwriting expert or of a lay witness familiar with defendant’s handwriting to establish that the signature on the agreement was not hers]). George Hines, who as a party to the action is an interested witness, testified that he believed the signature on the waiver was Hines’. Moreover, as defendants point out, athletes could not participate in the triathlon without signing the waiver in person and presenting photographic identification at a pre-race expo and Hines was seen by non-party witness Kathleen Bateman of Achilles International, Inc. at the expo waiting in line with her handlers to pick up her race bib. In opposition to defendants’ prima facie showing that Hines signed the enforceable waiver, Hines’ bald, [*8] self-serving claim that she did not sign it, which is not supported by an expert’s opinion, does not raise a triable issue of fact (see Abrons v 149 Fifth Ave. Corp., 45 AD3d 384, 845 N.Y.S.2d 299 [1st Dept 2007]; Peyton v State of Newburgh, Inc., 14 AD3d 51, 786 N.Y.S.2d 458 [Pt Dept 2004]).

Although an enforceable release will not insulate a party from grossly negligent conduct, the alleged acts of defendants with respect to the placement of cones and the stationing of marshals in the area where Hines’ accident occurred do not rise to the level of intentional wrongdoing or evince a reckless indifference to the rights of others (Schwartz, 82 AD3d at 1202 [alleged acts of negligence did not rise to the level of intentional wrongdoing where a marshal at a bicycle race was injured by a non-participant bicyclist]). Hines’ expert expressly states that defendants’ actions with respect to the placement of cones and marshals were deviations from accepted sports safety practices. Thus, Hines’ expert’s opinion is that defendants were merely negligent, not grossly negligent.

Hines has also failed to raise a triable issue of fact as to whether the placement of cones and marshals by defendants improperly enhanced an unanticipated risk of collision. Hines’ expert’s affidavit fails to establish the foundation or source of the standards underlying the expert’s conclusion that [*9] the placement and positioning of cones and marshals along the running portion of the triathlon was negligent and, as such, the affidavit lacks probative value (see David v County of Suffolk, 1 NY3d 525, 526, 807 NE2d 278, 775 NYS2d 229 [2003]). Moreover, the primary assumption of the risk doctrine provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 NE2d 202, 662 NYS2d 421 [1997]) and it is “not necessary to the application of [the doctrine] that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as the he or she is aware of the potential for injury of the mechanism from which the injury results” (Maddox, 66 NY2d 270, 278, 487 NE2d 553, 496 NYS2d 726 [1985]). Awareness of risk, including risks created by less than optimal conditions [**5] (Latimer v City of New York, 118 AD3d 420, 987 N.Y.S.2d 58 [1st Dept 2014]), “is not to be determined in a vacuum” (Morgan, 90 NY2d at 486) but, rather, “against the background of the skill and experience of the particular plaintiff” (id.). Hines is a highly decorated and highly experienced para-athlete who participated in dozens races over her career, many of which took place in Central Park. Hines’ testimony that other race courses in Central Park were set up differently and delineated with [*10] cones and marshals differently than the way in which defendants allegedly set up the triathlon course establishes that Hines was aware that collisions with non-participants were an inherent risk in participating in a triathlon in Central Park. Hines also testified that she was wearing a helmet at the time of the accident, further proof that she was aware that collisions of some type, whether with participants, non-participants or objects, were an inherent risk of participating in the race. “Inherency is the sine qua non” (Morgan, 90 NY2d at 484-486) and regardless of how defendants situated cones and marshals along the race course, Hines was fully aware of and fully appreciated the inherent risk of injury resulting from a collision during the triathlon. Defendants, therefore, are entitled to summary dismissal of the complaint.

Accordingly, it is hereby

ORDERED that defendants’ motion for summary judgment is granted and the complaint is dismissed in its entirety; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that movants are to serve a copy of this order, with notice of entry, upon plaintiffs within 20 days of entry.

Dated: 3/24/16

New York County

/s/ [*11] George J. Silver

George J. Silver, J.S.C.


Defendant loses an interesting product liability case. Usually, the replacement of a component by the owner of the product after the sale is an intervening act which releases the manufacture from harm. In this case, the change was not enough to overcome the initial negligent design.

The Zip Line was designed with bungee cord that was used to break the ride. The owner of the zip line replaced the bungee cord with another bungee cord that was allegedly shorter than the initial cord in the design by the plaintiff.

Sanchez v. Project Adventure, Inc., 12 A.D.3d 208; 785 N.Y.S.2d 46; 2004 N.Y. App. Div. LEXIS 13184

State: New York, Supreme Court of New York, Appellate Division, First Department

Plaintiff: Benjamin Sanchez, Also Known as Gerard Sanchez

Defendant: Project Adventure, Inc., Appellant-Respondent and Third-Party Plain-tiff-Appellant. Bedford Central School District, Third-Party Defend-ant-Respondent, et al., Third-Party Defendant

Plaintiff Claims: Product Liability Claim

Defendant Defenses: Intervening change in the product

Holding: For the Defendant

Year: 2004

The facts are simple. The plaintiff, a 15-year-old, was on a school trip to a challenge course. A bungee cord was used on the “zip wire” as a braking system. The bungee failed, hitting the plaintiff in the eye blinding him.

The then-15-year-old plaintiff, while on a school field trip to a challenge course located at a facility operated by third-party defendant Bedford Central School District (Bedford), was standing in line for an elevated “zip wire” ride, when the bungee cord used as a braking device on the “zip wire” snapped and hit his right eye. The injury produced by the impact of the bungee cord caused plaintiff to go blind in that eye.

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

The course was designed by the defendant Project Adventure. The design incorporated a bungee cord to break the zip line. The owner of the zip line replaced the original bungee cord with another bungee cord, which was shorter.

The defendant admitted liability for the accident. However, they argued the owner of the zip line who had replaced it was the party with principal liability for the injuries.

The “zip wire” had been designed and inspected by defendant, which conceded liability for the accident, but, citing evidence that the bungee cord used on the “zip wire” had been replaced before the accident by a Bedford employee, contended that Bedford was principally responsible for plaintiff’s harm.

Normally, an intervening, act, such as replacing the cord, in many types of negligence claims is enough to shift the liability of the defendant to a third party.

Here the appellate court agreed with the jury and found that the design was negligent, and the shortness of the replacement bungee was not the cause of the accident. The use of a bungee as a breaking device was the cause of the accident, no matter the length.

Defendant urges that this finding was contrary to the weight of the evidence. We disagree. The evidence fairly interpreted permitted the jury to conclude that while Bedford had been negligent in utilizing a replacement bungee cord that was too short, this negligence merely echoed a design defect for which defendant was responsible, and thus did not appreciably augment the injury-producing risk.

The appellate court agreed with the jury and held the designer of the course liability for the injuries of the plaintiff.

So Now What?

As stated above, this is an odd case because of the intervening act. However, a bad or negligent design, no matter what the intervening act, will not release the defendant from liability.

Product liability cases are hard to win if the design is found to be negligent.

Retailers need to be aware that any act that modifies or changes a product in any way, other than how it arrived from the manufacturer may place them in the same position as a manufacture.

Examples of this are bindings that are mounted on skis or scuba tanks that are filled. In both cases, the general liability policies of ski shops and scuba shops usually understand and have coverage for this. Make sure if you are modifying a product other than how the manufacturer suggested that you understand the risks and have the coverage you need.

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